SECTION 213.30. Declaratory Order of Eligibility for Licensure

(a) For purposes of this section only, "petitioner" means an individual who:

(1) is enrolled or planning to enroll in an educational nursing program that prepares individuals for initial licensure as a registered or vocational nurse;

(2) seeks licensure by endorsement pursuant to §217.5 of this title (relating to Temporary License and Endorsement); or

(3) seeks licensure by examination pursuant to §217.2 (relating to Licensure by Examination for Graduates of Nursing Education Programs Within the United States, its Territories, or Possessions) or §217.4 (relating to Requirements for Initial Licensure by Examination for Nurses Who Graduate From Nursing Education Programs Outside of United States' Jurisdiction) of this title.

(b) An individual who has reason to believe that he or she may be ineligible for initial licensure or licensure by endorsement due to issues discussed in this rule may petition the Board for a declaratory order as to his or her eligibility.

(c) A petitioner must submit a petition, on forms provided by the Board, and the following information:

(1) a statement by the petitioner indicating the reason(s) and basis of his/her potential ineligibility;

(2) if the potential ineligibility is due to the petitioner's criminal history, all court documents, including, but not limited to: indictments, agreements for pre-trial diversion or deferred prosecution, orders of deferred adjudication, judgments, probation records, and evidence of completion of probation, as applicable;

(3) if the potential ineligibility is due to the petitioner's mental health condition or diminished capacity, verifiable and reliable evidence of controlled behavior and consistent compliance with recommended treatment, including compliance with a prescribed medication regime, for a reasonable amount of time, as applicable;

(4) if the potential ineligibility is due to the petitioner's substance use disorder and/or the abuse/misuse of alcohol or drugs, verifiable and reliable evidence of sobriety and abstinence from drugs and alcohol, which may include evidence of the completion of inpatient, outpatient, or aftercare treatment, random drug screens, individual or group therapy, and/or support group attendance;

(5) the required fee, which is not refundable; and

(6) an evaluation that meets the criteria of the Occupations Code §301.4521 and §213.33 of this chapter (relating to Factors Considered for Imposition of Penalties/Sanctions), as applicable.

(d) Once the Board has received all necessary information, including the information required by subsection (c) of this section, an investigation of the petition and the petitioner's eligibility shall be conducted. The investigation will be based upon an evaluation of the individualized factors of the case, the potential risk of harm the individual's practice may pose to patients/clients and/or the public, and the petitioner's ability to meet the requirements of §213.27 (relating to Good Professional Character), §213.28 (relating to Licensure of Individuals with Criminal History), and §213.29 (relating to Fitness to Practice) of this chapter, as applicable. Based upon the individualized facts of the case, the Board may approve licensure without encumbrance, impose probationary conditions or restrictions on the individual's ability to practice nursing in this state, or deny licensure.

(e) The petitioner or the Board may amend the petition to include additional grounds for potential ineligibility at any time before a final determination is made.

(f) If an individual is seeking licensure by endorsement pursuant to §217.5 of this title and has been licensed to practice nursing in any jurisdiction and has been disciplined in that jurisdiction or allowed to surrender in lieu of discipline in that jurisdiction, the provisions of §213.27(e) of this chapter will apply to the eligibility of the petitioner.

(g) If a petitioner's potential ineligibility is due to his/her criminal history, the provisions of §213.28 of this chapter will apply to the eligibility of the petitioner.

(h) If a petitioner's potential ineligibility is due to a substance use disorder and/or the abuse/misuse of alcohol or drugs, a mental health condition or diminished capacity, or another issue relating to the individual's fitness to practice, the provisions of §213.29 of this chapter will apply to the eligibility of the petitioner.

(i) If the Executive Director proposes to find the petitioner ineligible for licensure, the petitioner may obtain a hearing be-fore the State Office of Administrative Hearings (SOAH). The Executive Director shall have discretion to set a hearing and give notice of the hearing to the petitioner. The hearing shall be conducted in accordance with §213.22 of this chapter (relating to Formal Proceedings) and the rules of SOAH. When in conflict, SOAH's rules of procedure will prevail. The decision of the Board shall be rendered in accordance with §213.23 of this chapter (relating to Decision of the Board).

(j) A final Board order is issued after an appeal results in a Proposal for Decision from SOAH. The Board's final order must set out each basis for potential ineligibility and the Board's determination as to eligibility. In the absence of new evidence not disclosed by the petitioner or not reasonably available to the Board at the time the order is issued, the Board's ruling determines the petitioner's eligibility with respect to the grounds for potential ineligibility as set out in the order. An individual whose petition is denied by final order of the Board may not file another petition or seek licensure by endorsement or examination until after the expiration of three years from the date of the Board's order denying the petition. If the petitioner does not appeal or request a formal hearing at SOAH after a letter proposal to deny eligibility made by the Eligibility and Disciplinary Committee of the Board or the Executive Director, the petitioner may re-petition or seek licensure by endorsement or examination after the expiration of one year from the date of the proposal to deny eligibility, in accordance with this section and the Occupations Code §301.257.

(k) The following eligibility and disciplinary sanction policies, as applicable, shall be used by the Executive Director, SOAH, and the Board in evaluating an eligibility matter under this section:

(1) Sanctions for Behavior Involving Fraud, Theft, and Deception, approved by the Board and published on August 28, 2015, in the Texas Register and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html;

(2) Sanctions for Behavior Involving Lying and Falsification, approved by the Board and published on August 28, 2015, in the Texas Register and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html;

(3) Sanctions for Sexual Misconduct approved by the Board and published on February 22, 2008, in the Texas Register (33 TexReg 1649) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html; and

(4) Sanctions for Substance Use Disorders and Other Alcohol and Drug Related Conduct, approved by the Board and published on August 28, 2015, in the Texas Register and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.

(l) If an individual seeking licensure by endorsement under §217.5 of this title or licensure by examination under §217.2 or §217.4 of this title should have had an eligibility issue addressed pursuant to the Occupations Code §301.257, the filed application will be treated and processed as a petition for declaratory order under this section, and the individual will be treated as a petitioner under this section and will be required to pay the non-refundable fee required by this section and §223.1 of this title (relating to Fees).

(m) This section implements the requirements of the Occupations Code Chapter 53 Subchapter D and the Occupations Code §301.257.

Source Note: The provisions of this §213.30 adopted to be effective August 15, 2002, 27 TexReg 7107; amended to be effective May 17, 2004, 29 TexReg 4884; amended to be effective February 19, 2006, 31 TexReg 847; amended to be effective October 10, 2007, 32 TexReg 7058; amended to be effective July 2, 2008, 33 TexReg 5007; amended to be effective November 15, 2009, 34 TexReg 7812; amended to be effective July 12, 2010, 35 TexReg 6074; amended to be effective July 10, 2013, 38 TexReg 4342; amended to be effective October 29, 2015, 40 TexReg 7422