Texas Register, Volume 35, Number 7, Pages 961-1384, February 12, 2010 Page: 1,208

                                
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Effective date: February 17, 2010
Proposal publication date: July 31, 2009
For further information, please call: (512) 475-1497
19 TAC 150.1008
The repeal is adopted under the Texas Education Code,
21.351, which authorizes the commissioner of education to
adopt a recommended appraisal process and criteria on which
to appraise the performance of teachers.
The repeal implements the Texas Education Code, 21.351 and
21.352.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of the Secretary of State on January 28,
2010.
TRD-201000416
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Effective date: February 17, 2010
Proposal publication date: July 31, 2009
For further information, please call: (512) 475-1497
TITLE 22. EXAMINING BOARDS
PART 11. TEXAS BOARD OF NURSING
CHAPTER 213. PRACTICE AND PROCEDURE
22 TAC 213.33
INTRODUCTION. The Texas Board of Nursing (Board) adopts
amendments to 213.33, concerning Factors Considered for Im-
position of Penalties/Sanctions with changes to subsections (k)
and (I) of the proposed text published in the December 4, 2009,
issue of the Texas Register (34 TexReg 8628).
REASONED JUSTIFICATION. The amendments are adopted
under the Occupations Code 301.452, 301.4521, 301.453,
301.4531, 301.454(d), 301.455(a) and (b), 301.4551, 301.461,
301.462, 301.467, 301.468(a), 301.501, 301.502, and 301.151
and are necessary to: (i) implement House Bill (HB) 3961, en-
acted by the 81st Legislature, Regular Session, effective June
19, 2009, which adds 301.4521 to the Occupations Code Chap-
ter 301; and (ii) adopt the Disciplinary Matrix (Matrix), which is
used in the resolution of eligibility and disciplinary matters before
the Board, in rule.
The Board first proposed amendments to 213.33 in the Septem-
ber 11, 2009, issue of the Texas Register (34 TexReg 6255).
Based upon comments received, the Board determined that it
would reconsider the amendments to 213.33 in a separate rule-
making action in lieu of adopting the amendments as proposed
at that time. The Board withdrew the proposed amendments
to 213.33 in the November 6, 2009, issue of the Texas Regis-

ter (34 TexReg 7775). The Board re-proposed amendments to
213.33 in the December 4, 2009, issue of the Texas Register
(34 TexReg 8628) to address physical and psychological eval-
uations under the Occupations Code 301.4521, to adopt the
Matrix in rule, and to re-designate the subsections of 213.33
for consistency and cohesiveness. In response to written com-
ments on the published proposal, the Board has changed some
of the proposed language in the text of the rule as adopted. The
changes, however, do not materially alter issues raised in the
proposal, introduce new subject matter, or affect persons other
than those previously on notice.
The Board has made changes to 213.33(k) as adopted in
response to comments that the proposed amendments did not
clearly delineate the differences between the scope of a re-
quired evaluation and a requested evaluation under 301.4521.
Specifically, commenters expressed concern that the pro-
posed amendments did not preclude the Board from utilizing
a "forensic" evaluation, including a polygraph examination,
as a component of a required evaluation under 301.4521.
Commenters further stated that the testing of professional
character and veracity through the use of a polygraph examina-
tion should be limited to evaluations that are requested under
301.4521. The Board has made changes to 213.33(k) as
adopted to further clarify the scope of a required evaluation
under 301.4521. Specifically, the Board has eliminated all
references to "forensic component" and "forensic evaluation" in
213.33(k) as adopted to clarify that a required evaluation under
301.4521 will not include a forensic evaluation or the use of a
forensic component as part of a required evaluation. Further, the
provisions of 213.33(l) as adopted make clear that a requested
evaluation under 301.4521 may include a forensic evaluation
or the use of a forensic component as part of a requested
evaluation. The Board has also made changes to 213.33(1) as
adopted in response to comments that the proposed language
in 213.33(l)(4) created ambiguity regarding the applicability
of 301.4521 to evaluations required under 213.33(k). The
Board has deleted the proposed language in 213.33(l)(4) from
the adopted rule in order to eliminate any ambiguity that was
created by the proposal. However, the Board re-iterates that the
provisions of 301.4521 will apply to any evaluation required or
requested under 213.33(k) or (I) as adopted.
In response to recommendations from the Eligibility and Disci-
plinary Advisory Committee (Committee), the Board has added
the terms "neuropsychologist" and "neuropsychological" to
213.33(k) and (I) as adopted in order to appropriately reference
this sub-specialty. Further, in response to recommendations
from the Committee, the Board has changed 213.33(k) and (I)
as adopted to include advanced practice registered nurses in
the listing of health care providers that the Board may approve
to conduct an evaluation. The Board emphasizes, however,
that although an advanced practice registered nurse may be
considered by the Board to conduct an evaluation, the Board
will carefully review the credentials, experience, and expertise
of the advanced practice registered nurse before approving the
individual to conduct an evaluation under adopted 213.33(k)
or (I).
The Occupations Code 301.4521
HB 3961 adds 301.4521 to Chapter 301, which authorizes the
Board to: (i) require an individual to submit to a physical or psy-
chological evaluation if the Board has probable cause to believe
that the individual is unable to practice nursing safely due to
physical impairment, mental impairment, chemical dependency,

35 TexReg 1208  February 12, 2010

Texas Register