Texas Register, Volume 35, Number 28, Pages 5981-6132, July 9, 2010 Page: 6,083

                                
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 June 22, 2010.
TRD-201003573
Jena Abel
Assistant General Counsel
Texas Board of Nursing
Effective date: July 12, 2010
Proposal publication date: May 21, 2010
For further information, please call: (512) 305-6822
CHAPTER 217. LICENSURE, PEER
ASSISTANCE AND PRACTICE
22 TAC 217.2, 217.4, 217.5
INTRODUCTION. The Texas Board of Nursing (Board) adopts
amendments to 217.2 (relating to Licensure by Examination
for Graduates of Nursing Education Programs Within the United
States, its Territories, or Possessions), 217.4 (relating to Re-
quirements for Initial Licensure by Examination for Nurses Who
Graduate from Nursing Education Programs Outside of United
States' Jurisdiction) and 217.5 (relating to Temporary License
and Endorsement) without changes to the proposed text pub-
lished in the May 21, 2010, issue of the Texas Register (35
TexReg 3953).
REASONED JUSTIFICATION. The amendments are adopted
under the Occupations Code 53.101 - 53.105, 301.257, and
301.151 and are necessary to clarify existing language within the
sections and to enhance consistency among Board rules related
to eligibility determinations. Specifically, the adopted amend-
ments eliminate (i) minor inconsistencies among the sections
and (ii) redundant requirements that are more appropriately ad-
dressed in 213.30 of this title (relating to Declaratory Order of
Eligibility for Licensure).
The Occupations Code 301.257 authorizes an individual to pe-
tition the Board for a declaratory order regarding the individual's
eligibility for licensure under Chapter 301 if the individual is en-
rolled, or is planning to enroll, in a nursing education program or
is an applicant for licensure, and has reason to believe he or she
is ineligible for licensure. The Board adopted requirements for
evaluating an individual's eligibility for licensure under 301.257
in 1998. The Board has consistently evaluated an individual's
eligibility for licensure pursuant to those requirements since that
time.
Section 213.30 sets forth the Board's specific procedures and re-
quirements for evaluating an individual's eligibility for licensure.
Pursuant to 213.30, an individual who has reason to believe
that he or she may be ineligible for licensure may petition the
Board for a declaratory order of eligibility. An individual may be
ineligible for licensure for a variety of reasons, including prior
criminal or disciplinary history, mental illness, or chemical de-
pendency. The Board considers eligibility determinations to be
serious in nature and highly relevant to an individual's ability to
safely practice nursing. As such, the Board diligently investi-
gates every request for an eligibility determination pursuant to
the requirements of 213.30 and Chapter 301.

Currently, individuals may seek licensure from the Board in a
variety of ways, depending upon the unique set of factors appli-
cable to the particular individual seeking licensure. For exam-
ple, an individual may submit an application for licensure by ex-
amination to the Board under 217.2 if the individual graduated
from a nursing education program within the United States. An
individual may submit an application for licensure to the Board
under 217.4 if the individual graduated from a nursing educa-
tion program outside of the United States. An individual may
submit an application for licensure by endorsement to the Board
under 217.5 if the individual has been licensed in another juris-
diction prior to applying for licensure in Texas. Finally, an indi-
vidual may submit a petition for a declaratory order to the Board
under 213.30. Regardless of the particular document filed by
an individual, however, the Board reviews all eligibility issues in
accordance with the requirements of 213.30 and requires all
individuals seeking an eligibility determination from the Board to
comply with its requirements.
The Board originally adopted 217.2(b), 217.4(d), and 217.5(e)
to ensure a fair and balanced process for all individuals requiring
eligibility determinations from the Board. Since their enactment,
these rules have ensured that all eligibility issues are reviewed
by the Board through a single, unified process and that all sim-
ilarly situated individuals are treated equally by the Board. The
adopted amendments to 217.2(b), 217.4(d), and 217.5(e) do
not add new requirements to these sections or substantively alter
the existing provisions of these sections. Further, the adopted
amendments do not alter the Board's historic interpretation or
application of the provisions of these rules. Rather, the Board is
adopting amendments to these sections in order to ensure con-
tinuing consistency and clarity in the interpretation and applica-
tion of these rules.
Currently, all eligibility cases are categorized as "applicant"
cases or "petitioner" cases. "Applicant" cases are those cases
in which an eligibility determination is required for an individ-
ual who has filed an application with the Board pursuant to
217.2(b), 217.4(d), or 217.5(e). "Petitioner" cases, on the
other hand, are those cases in which an eligibility determination
is required for an individual who has filed a petition for a declara-
tory order with the Board pursuant to 213.30. Despite these
differences in terminology, there are no substantive differences
in the investigation of an eligibility case or the Board's evaluation
of an individual's eligibility. "Applicant" and "petitioner" cases
are reviewed under the same eligibility processes. All eligibility
determinations are made pursuant to the same eligibility criteria.
Further, "applicants" and "petitioners" are required to submit the
same fee to the Board for an eligibility determination. Further, if
the Board determines that an individual is eligible for licensure,
the Board imposes the same probationary requirements on all
similarly situated individuals, regardless of their status as an "ap-
plicant" or "petitioner". Because "applicants" and "petitioners"
are treated equally for purposes of eligibility determinations, the
Board has determined that any distinction in terminology should
be eliminated from its eligibility processes and final eligibility
orders. This change should promote consistency among the
Board's final eligibility orders and reduce any confusion among
members of the public regarding final eligibility orders.
The Board is also adopting amendments to 217.2(b), 217.4(d),
and 217.5(e) to eliminate redundant provisions that are more
appropriately addressed in 213.30. The existing provisions of
213.30 include the requirements that are being eliminated in
217.2(b), 217.4(d), and 217.5(e). Section 213.30 prescribes
the specific procedures and requirements that apply to eligibility

ADOPTED RULES      July 9, 2010  35 TexReg 6083