73R9642 CAG-D
By Black H.B. No. 2180
Substitute the following for H.B. No. 2180:
By Berlanga C.S.H.B. No. 2180
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of the practice of registered nursing
1-3 and to the continuation of the Board of Nurse Examiners; providing
1-4 penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Article 4513, Revised Statutes, is amended to
1-7 read as follows:
1-8 Art. 4513. BOARD OF NURSE EXAMINERS
1-9 Sec. 1. Composition of Board; Programs of Study. The Board
1-10 of Nurse Examiners is composed of nine members appointed by the
1-11 governor with the advice and consent of the senate. Appointments
1-12 to the board shall be made without regard to the race, color
1-13 <creed>, disability, sex, religion, age, or national origin of the
1-14 appointees. The board <Board of Nurse Examiners> shall prescribe
1-15 three programs of study to prepare professional nurse
1-16 practitioners, to wit: (1) The Baccalaureate Degree Program--A
1-17 program leading to a baccalaureate degree in nursing conducted by
1-18 an educational unit in nursing (department, division, school, or
1-19 college) which is a part of a senior college or university; (2) The
1-20 Associate Degree Program--A program leading to an associate degree
1-21 in nursing conducted by an educational unit in nursing within the
1-22 structure of a college or a university; and (3) The Diploma
1-23 Program--A program leading to a diploma in nursing conducted by a
1-24 single purpose school usually under the control of a hospital. Six
2-1 of the board members must be Registered Nurses, three of whom shall
2-2 be engaged in professional nurse education and shall be
2-3 representative of said three programs in that one shall be a nurse
2-4 faculty member in a school of nursing pursuing the Baccalaureate
2-5 Degree Program; one shall be a nurse faculty member in a school of
2-6 nursing pursuing the Associate Degree Program; and one shall be a
2-7 nurse faculty member in a school of nursing pursuing the Diploma
2-8 Program. Three members must be members of the general public.
2-9 Sec. 2. Terms; Requirements of Professional Nurse Members
2-10 and Public Members. (a) The members of the board shall hold
2-11 office for staggered terms of six years, with the terms of one
2-12 practicing registered nurse, one professional nurse engaged in
2-13 nurse education, and one public member expiring on January 31 of
2-14 odd-numbered years. The professional nurse members must be
2-15 actually employed in the nursing profession for at least three
2-16 years before their appointment.
2-17 (b) A person is not eligible for appointment as a public
2-18 member of the board if the person or the person's spouse:
2-19 (1) is registered, certified, or licensed by an
2-20 occupational regulatory agency in the field of health care;
2-21 (2) is employed by or participates in the management
2-22 of a business entity or other organization regulated by the board
2-23 or receiving funds from the board;
2-24 (3) owns or controls, directly or indirectly, more
2-25 than a 10 percent interest in a business entity or other
2-26 organization regulated by the board or receiving funds from the
2-27 board; or
3-1 (4) uses or receives a substantial amount of tangible
3-2 goods, services, or funds from the board, other than compensation
3-3 or reimbursement authorized by law for board membership,
3-4 attendance, or expenses. <A person is not eligible for appointment
3-5 as a public member if the person or the person's spouse:>
3-6 <(1) is licensed by an occupational regulatory agency
3-7 in the field of health care;>
3-8 <(2) is employed by or participates in the management
3-9 of a business entity or other organization that provides
3-10 health-care services or that sells, manufactures, or distributes
3-11 health-care supplies or equipment; or>
3-12 <(3) owns, controls, or has, directly or indirectly,
3-13 more than a 10 percent interest in a business entity or other
3-14 organization that provides health-care services or that sells,
3-15 manufacturers, or distributes health-care supplies or equipment.>
3-16 Sec. 3. CONFLICT OF INTEREST RESTRICTIONS. (a) An officer,
3-17 employee, or paid consultant of a Texas trade association in the
3-18 field of health care may not be a board member.
3-19 (b) A person who is the spouse of an officer, manager, or
3-20 paid consultant of a Texas trade association in the field of health
3-21 care may not be a board member.
3-22 (c) For the purposes of this section, a Texas trade
3-23 association is a nonprofit, cooperative, and voluntarily joined
3-24 association of business or professional competitors in this state
3-25 designed to assist its members and its industry or profession in
3-26 dealing with mutual business or professional problems and in
3-27 promoting their common interest.
4-1 Sec. 4. EFFECT OF LOBBYING ACTIVITY. A person may not serve
4-2 as a board member if the person is required to register as a
4-3 lobbyist under Chapter 305, Government Code, and its subsequent
4-4 amendments, because of the person's activities for compensation on
4-5 behalf of a profession related to the operation of the board.
4-6 Sec. 5. GROUNDS FOR REMOVAL FROM BOARD. (a) It is a ground
4-7 for removal from the board if a member:
4-8 (1) does not have at the time of appointment the
4-9 qualifications required by Section 1 of this Act;
4-10 (2) does not maintain during service on the board the
4-11 qualifications required by Section 1 of this Act;
4-12 (3) violates a prohibition established by Section 3 or
4-13 4 of this Act;
4-14 (4) cannot discharge the member's term for a
4-15 substantial part of the term for which the member is appointed
4-16 because of illness or disability; or
4-17 (5) is absent from more than half of the regularly
4-18 scheduled board meetings that the member is eligible to attend
4-19 during a calendar year unless the absence is excused by majority
4-20 vote of the board.
4-21 (b) The validity of an action of the board is not affected
4-22 by the fact that it is taken when a ground for removal of a board
4-23 member exists.
4-24 (c) If the executive director has knowledge that a potential
4-25 ground for removal exists, the executive director shall notify the
4-26 presiding officer of the board of the ground. The presiding
4-27 officer shall then notify the governor that a potential ground for
5-1 removal exists.
5-2 Sec. 6. TRAINING; STANDARDS OF CONDUCT INFORMATION. (a)
5-3 Each board member shall comply with the board member training
5-4 requirements established by any other state agency that is given
5-5 authority to establish the requirements for the board.
5-6 (b) The board shall provide to its members and employees, as
5-7 often as necessary, information regarding their qualifications for
5-8 office or employment under this Act and their responsibilities
5-9 under applicable laws relating to standards of conduct for state
5-10 officers or employees.
5-11 Sec. 7. STAFF. The board shall develop and implement
5-12 policies that clearly define the respective responsibilities of the
5-13 board and the staff of the board.
5-14 Sec. 8. ANNUAL FINANCIAL REPORT. The board shall file
5-15 annually with the governor and the presiding officer of each house
5-16 of the legislature a complete and detailed written report
5-17 accounting for all funds received and disbursed by the board during
5-18 the preceding fiscal year. The annual report must be in the form
5-19 and reported in the time provided by the General Appropriations
5-20 Act.
5-21 Sec. 9. PERSONNEL POLICIES. (a) The executive director or
5-22 the director's designee shall develop an intra-agency career ladder
5-23 program. The program shall require intra-agency posting of all
5-24 nonentry level positions concurrently with any public posting.
5-25 (b) The executive director or the director's designee shall
5-26 develop a system of annual performance evaluations based on
5-27 measurable job tasks. All merit pay for board employees must be
6-1 based on the system established under this subsection.
6-2 Sec. 10. EQUAL EMPLOYMENT OPPORTUNITY POLICIES. (a) The
6-3 executive director or the director's designee shall prepare and
6-4 maintain a written policy statement to ensure implementation of a
6-5 program of equal employment opportunity under which all personnel
6-6 transactions are made without regard to race, color, disability,
6-7 sex, religion, age, or national origin. The policy statement must
6-8 include:
6-9 (1) personnel policies, including policies relating to
6-10 recruitment, evaluation, selection, application, training, and
6-11 promotion of personnel that are in compliance with the Commission
6-12 on Human Rights Act (Article 5221k, Vernon's Texas Civil Statutes)
6-13 and its subsequent amendments;
6-14 (2) a comprehensive analysis of the board work force
6-15 that meets federal and state guidelines;
6-16 (3) procedures by which a determination can be made of
6-17 significant underuse in the board work force of all persons for
6-18 whom federal or state guidelines encourage a more equitable
6-19 balance; and
6-20 (4) reasonable methods to appropriately address those
6-21 areas of underuse.
6-22 (b) A policy statement prepared under Subsection (a) of this
6-23 section must cover an annual period, be updated annually, be
6-24 reviewed by the Commission on Human Rights for compliance with
6-25 Subsection (a)(1) of this section, and be filed with the governor's
6-26 office.
6-27 (c) The governor's office shall deliver a biennial report to
7-1 the legislature based on the information received under Subsection
7-2 (b) of this section. The report may be made separately or as part
7-3 of other biennial reports to the legislature.
7-4 Sec. 11. PUBLIC INTEREST INFORMATION. (a) The board shall
7-5 prepare information of public interest describing the functions of
7-6 the board and the procedures by which complaints are filed with and
7-7 resolved by the board. The board shall make the information
7-8 available to the public and appropriate state agencies.
7-9 (b) The board by rule shall establish methods by which
7-10 consumers and service recipients are notified of the name, mailing
7-11 address, and telephone number of the board for the purpose of
7-12 directing complaints to the board. The board may provide for that
7-13 notification:
7-14 (1) on each registration form, application, or written
7-15 contract for services of an individual or entity regulated by the
7-16 board;
7-17 (2) on a sign prominently displayed in the place of
7-18 business of each individual or entity regulated by the board; or
7-19 (3) in a bill for service provided by an individual or
7-20 entity regulated by the board.
7-21 (c) The board shall list along with its regular telephone
7-22 number the toll-free telephone number that may be called to present
7-23 a complaint about a health professional if the toll-free number is
7-24 established under other state law.
7-25 Sec. 12. PUBLIC PARTICIPATION IN BOARD HEARINGS. The board
7-26 shall develop and implement policies that provide the public with a
7-27 reasonable opportunity to appear before the board and to speak on
8-1 any issue under the jurisdiction of the board.
8-2 Sec. 13. PROGRAM ACCESSIBILITY. The board shall prepare and
8-3 maintain a written plan that describes how a person who does not
8-4 speak English can be provided reasonable access to the board's
8-5 programs. The board shall also comply with federal and state laws
8-6 for program and facility accessibility.
8-7 Sec. 14. TRAINING; STANDARDS OF CONDUCT INFORMATION. Each
8-8 board member shall comply with the board member training
8-9 requirements established by any other state agency that is given
8-10 authority to establish the requirements for the board.
8-11 Sec. 15. INTERAGENCY CONTRACTS. The board may enter
8-12 interagency contracts for any purpose authorized by law.
8-13 <RESTRICTIONS ON MEMBERS, EMPLOYEES, AND GENERAL COUNSEL. A member
8-14 or employee of the board may not be an officer, employee, or paid
8-15 consultant of a national or statewide trade association in the
8-16 health-care industry. A member or employee of the board may not be
8-17 related within the second degree by affinity or within the second
8-18 degree by consanguinity, as determined under Article 5996h, Revised
8-19 Statutes, to a person who is an officer, employee, or paid
8-20 consultant of a national or statewide trade association in the
8-21 regulated industry. A person who is required to register as a
8-22 lobbyist under Chapter 305, Government Code, by virtue of his
8-23 activities on behalf of a national or statewide trade or
8-24 professional association in a health-services industry may not
8-25 serve as a member of the board or act as the general counsel to the
8-26 board.>
8-27 <Sec. 4. GROUNDS FOR REMOVAL. It is grounds for removal
9-1 from the board if a member:>
9-2 <(1) does not have at the time of appointment the
9-3 qualifications required for appointment to the board;>
9-4 <(2) does not maintain during the service on the board
9-5 the qualifications for appointment to the board;>
9-6 <(3) violates a prohibition imposed on members of the
9-7 board; or>
9-8 <(4) fails to attend at least half of the regularly
9-9 scheduled board meetings held in a calendar year, excluding
9-10 meetings held while the person was not a board member.>
9-11 <Sec. 5. VALIDITY OF ACTIONS. The validity of an action of
9-12 the board is not affected by the fact that it was taken when a
9-13 ground for removal of a member of the board existed.>
9-14 SECTION 2. Article 4513a, Revised Statutes, is amended to
9-15 read as follows:
9-16 Art. 4513a. SUNSET PROVISION
9-17 The Board of Nurse Examiners is subject to Chapter 325,
9-18 Government Code (Texas Sunset Act). Unless continued in existence
9-19 as provided by that chapter, the board is abolished September 1,
9-20 2005 <1993>.
9-21 SECTION 3. Article 4514, Revised Statutes, is amended to
9-22 read as follows:
9-23 Art. 4514. Organization of board
9-24 Sec. 1. President; Special Meetings; Powers. The members of
9-25 the board shall elect from their number a president. Special
9-26 meetings of said board shall be called by the president acting upon
9-27 the written request of any two members. The board shall have the
10-1 authority and power to make and enforce all rules and regulations
10-2 necessary for the performance of its duties and conducting of
10-3 proceedings before it, to establish standards of professional
10-4 conduct for all persons licensed under the provisions of this law
10-5 in keeping with its purpose and objectives, to regulate the
10-6 practice of registered nurses <professional nursing> and to
10-7 determine whether or not an act constitutes the practice of
10-8 registered nurses <professional nursing>, not inconsistent with
10-9 this Act. Such rules and regulations shall not be inconsistent
10-10 with the provisions of this law.
10-11 Sec. 2. Legislative Disapproval of Rules. If the
10-12 appropriate standing committees of both houses of the legislature
10-13 acting under Subsection (g), Section 5, Administrative Procedure
10-14 and Texas Register Act, as amended (Article 6252-13a, Vernon's
10-15 Texas Civil Statutes), transmit to the board statements opposing
10-16 adoption of a rule under that section, the rule may not take
10-17 effect, or if the rule has already taken effect, the rule is
10-18 repealed effective on the date the board receives the committee's
10-19 statements.
10-20 Sec. 3. Rules Restricting Competitive Bidding or Advertising
10-21 Prohibited. The board may not promulgate rules restricting
10-22 competitive bidding or advertising by licensees except to prohibit
10-23 false, misleading, or deceptive practices by the person. The board
10-24 may not include in its rules to prohibit false, misleading, or
10-25 deceptive practices by a person regulated by the board a rule that:
10-26 (1) restricts the person's use of any medium for
10-27 advertising;
11-1 (2) restricts the person's personal appearance or use
11-2 of the person's <his or her> voice in an advertisement;
11-3 (3) relates to the size or duration of an
11-4 advertisement by the person; or
11-5 (4) restricts the person's advertisement under a trade
11-6 name.
11-7 Sec. 4. RECORDS; <CONSUMER INFORMATION;> ASSISTANCE TO LEGAL
11-8 AUTHORITIES. The executive director <secretary> shall be required
11-9 to keep a record of each meeting of said board, including a
11-10 register of the names of all nurses registered under this law,
11-11 which shall be at all times open to public inspection. The <board
11-12 shall prepare information of consumer interest describing the
11-13 regulatory functions of the board and the board's procedures by
11-14 which consumer complaints are filed with and resolved by the board.
11-15 The board shall make the information available to the general
11-16 public and appropriate state agencies. Said> board shall assist
11-17 the proper legal authorities in the prosecution of all persons
11-18 violating any provision of this law. Nothing herein shall either
11-19 expand or contract the board's present powers as they relate to the
11-20 regulation of nursing education.
11-21 Sec. 5. Open Meetings; Administrative Procedure. The board
11-22 is subject to the open meetings law, Chapter 271, Acts of the 60th
11-23 Legislature, Regular Session, 1967, as amended (Article 6252-17,
11-24 Vernon's Texas Civil Statutes), and the Administrative Procedure
11-25 and Texas Register Act, as amended (Article 6252-13a, Vernon's
11-26 Texas Civil Statutes).
11-27 Sec. 6. Recommendation of Rules Relating to Delegation of
12-1 Medical Acts by Physicians. The board may recommend to the Texas
12-2 State Board of Medical Examiners the adoption of rules relating to
12-3 physician's delegating medical acts to registered nurses <persons>
12-4 licensed by the board. The recommendations shall be acted on in
12-5 the same manner as a petition for the adoption of a rule by an
12-6 interested party under the Administrative Procedure and Texas
12-7 Register Act, as amended (Article 6252-13a, Vernon's Texas Civil
12-8 Statutes). The board in making recommendations may distinguish
12-9 between nurses on the basis of special training and education. The
12-10 board <Board of Nurse Examiners> in recommending rules and the
12-11 Texas State Board of Medical Examiners in acting on recommended
12-12 rules shall act, to the extent allowable under state and federal
12-13 statutes and regulations, so as to permit the state to obtain its
12-14 fair share of federal funds available for the delivery of health
12-15 care in this state.
12-16 Sec. 7. Rules. The board shall adopt rules establishing:
12-17 (1) any specialized education and training, including
12-18 pharmacology, a registered nurse must have to carry out a
12-19 prescription drug order pursuant to Subdivision (5), Subsection
12-20 (d), Section 3.06, Medical Practice Act (Article 4495b, Vernon's
12-21 Texas Civil Statutes); and
12-22 (2) a system for assigning an identification number to
12-23 a registered nurse who provides the board with evidence of
12-24 completing the required specialized education and training.
12-25 SECTION 4. Article 4515, Revised Statutes, is amended to
12-26 read as follows:
12-27 Art. 4515. Per diem, salary, travel and other expenses
13-1 Each member of the board is entitled to a per diem as set by
13-2 legislative appropriation for each day that the member engages in
13-3 the business of the board. A member may not receive any
13-4 compensation for travel expenses, including expenses for meals and
13-5 lodging, other than transportation expenses. A member is entitled
13-6 to compensation for transportation expenses as provided by the
13-7 General Appropriations Act. The board shall determine the salaries
13-8 and compensation to be paid to employees and persons retained by
13-9 the board.
13-10 SECTION 5. Article 4517, Revised Statutes, is amended to
13-11 read as follows:
13-12 Art. 4517. EXECUTIVE DIRECTOR <SECRETARY> AND BONDS.
13-13 <Sec. 1.> The board shall employ a qualified executive director
13-14 <secretary>, who shall not be a member of the board. Under the
13-15 direction of the board, the executive director <secretary> shall
13-16 perform duties required by this Act and duties designated by the
13-17 board. Also, the board shall employ all other persons necessary to
13-18 carry on the work of the board. The executive director <secretary>
13-19 shall upon employment execute a bond in the sum of One Thousand
13-20 Dollars payable to the Governor. The bond is conditioned that the
13-21 executive director <secretary> shall faithfully perform the duties
13-22 of the <his or her> office and shall account for funds coming into
13-23 the director's <his or her> hands as executive director
13-24 <secretary>. The bond shall be signed by two or more sufficient
13-25 sureties or by a surety company authorized to do business in this
13-26 state and approved by the president of the board.
13-27 <Sec. 2. The executive secretary or his designee shall
14-1 develop a system of annual performance evaluations based on
14-2 measurable job tasks. All merit pay authorized by the executive
14-3 secretary must be based on the system established under this
14-4 section.>
14-5 SECTION 6. Sections 1, 3, and 4, Article 4518, Revised
14-6 Statutes, are amended to read as follows:
14-7 Sec. 1. It shall be the duty of the Board <of Nurse
14-8 Examiners> to prescribe and publish the minimum requirements and
14-9 standards for a course of study in programs which prepare
14-10 professional nurse practitioners. All other regulations necessary
14-11 to conduct accredited schools of nursing and educational programs
14-12 for the preparation of professional nurses shall be as prescribed
14-13 by the Board, provided, however, that the minimum period of time
14-14 that the Board may require shall be at least two (2) academic years
14-15 and the maximum period of time shall not exceed four (4) calendar
14-16 years. The Board shall accredit such schools of nursing and
14-17 educational programs as meet its requirements and shall deny or
14-18 withdraw accreditation from schools of nursing and educational
14-19 programs which fail to meet the prescribed course of study or other
14-20 standards.
14-21 The Board shall give those persons and organizations affected
14-22 by its orders or decisions under this Article reasonable notice
14-23 thereof, not less than twenty (20) days, and an opportunity to
14-24 appear and be heard with respect to same. The Board shall hear all
14-25 protests or complaints from such persons and organizations affected
14-26 by such rule, regulation or decision as to the inadequacy or
14-27 unreasonableness of any rule, regulation or order promulgated or
15-1 adopted by it, or the injustice of any order or decision by it. If
15-2 any person or organization which shall be affected by such order or
15-3 decision shall be dissatisfied with any regulation, rule or order
15-4 by such Board, such person or organization shall have the right,
15-5 within thirty (30) days from the date such order is entered and
15-6 approved by the board of nursing, to bring an action against said
15-7 Board in the District Court of Travis County, Texas, to have such
15-8 regulation, rule or order vacated or modified, and shall set forth
15-9 in a petition therefor the principal grounds of objection to any or
15-10 all of such rules, regulations or orders. Such appeal as herein
15-11 provided shall be de novo as that term is known and understood in
15-12 appeals from the Justice Court to the County Court.
15-13 Sec. 3. Every applicant for registration as a registered
15-14 nurse <under this law> shall present to the Board <of Nurse
15-15 Examiners> evidence of successful completion of an accredited
15-16 program of professional nursing education and a sworn application
15-17 and shall upon payment of required fees be entitled to take the
15-18 examination prescribed by the Board. Upon <making a> passing the
15-19 examination <grade>, the applicant shall be entitled to receive
15-20 from said Board a certificate attested by the seal of said Board,
15-21 entitling such person to practice as a registered nurse in the
15-22 State of Texas. The Board shall determine the criteria <score>,
15-23 not to exceed the criteria <a score> required by a majority of the
15-24 states, that constitutes <a> passing <grade on> the examination.
15-25 Sec. 4. Any person practicing or offering to practice
15-26 professional nursing in this state for compensation, shall
15-27 hereafter be required to submit evidence to the Board <of Nurse
16-1 Examiners> that the person <he or she> is qualified to practice and
16-2 shall be registered as provided by this law.
16-3 SECTION 7. Sections 7(a), (b), and (c), Article 4518,
16-4 Revised Statutes, are amended to read as follows:
16-5 (a) To renew a license to practice as a registered nurse, a
16-6 licensee must demonstrate to the satisfaction of the Board
16-7 completion of the requirement for continuing professional education
16-8 <The Board may recognize, prepare, or implement continuing
16-9 education programs for its licensees and may require participation
16-10 in continuing education programs as a condition of renewal of a
16-11 registration certificate>.
16-12 (b) The Board shall adopt rules relating to the operation of
16-13 the mandatory continuing education programs. In establishing the
16-14 requirement for continuing education, the Board shall consider:
16-15 (1) factors that lead to the competent performance of
16-16 professional duties; and
16-17 (2) the continuing education needs of licensees <The
16-18 Board may not require more than a total of 20 hours of continuing
16-19 education in a two-year registration period and may not require
16-20 that more than 10 of those hours consist of classroom instruction
16-21 in approved programs. The remaining 10 hours may consist of any
16-22 combination of classroom instruction, institutional-based
16-23 instruction, or individualized study>.
16-24 (c) The Board shall adopt rules relating to the adoption or
16-25 approval of mandatory continuing education programs and providers
16-26 and shall adopt rules to evaluate the effectiveness of the programs
16-27 and a licensee's participation and performance in the programs <If
17-1 the Board requires participation in continuing education programs
17-2 as a condition of renewal of a registration certificate, the Board
17-3 shall by rule establish a system for the approval of programs and
17-4 providers of continuing education. In adopting the rules, the
17-5 Board shall consider but is not obligated to approve programs or
17-6 providers approved or accredited through the Board of Accreditation
17-7 of the American Nurses' Association or the National Federation of
17-8 Specialty Nursing Organizations and nurse in-service programs
17-9 offered by hospitals accredited by the Joint Commission on
17-10 Accreditation of Healthcare Organizations, certified by Medicare,
17-11 or maintained or operated by the federal government or the State of
17-12 Texas. The Board may assess programs and providers a fee in an
17-13 amount reasonable and necessary to defray the costs incurred in
17-14 approving providers and programs. The fee collected under this
17-15 subsection shall be deposited in the Professional Nurse
17-16 Registration Fund>.
17-17 SECTION 8. Article 4519, Revised Statutes, is amended to
17-18 read as follows:
17-19 Art. 4519. EXAMINATION <AND FEE>. (a) An applicant that
17-20 wishes to take a licensing examination must submit to the board an
17-21 application demonstrating the applicant's qualifications under this
17-22 chapter. If the board determines that the applicant meets the
17-23 qualifications, the applicant may take the licensing examination
17-24 <Upon filing application for examination each applicant shall pay
17-25 an examination fee which shall in no case be returned to the
17-26 applicant. If the applicant passes the examination, then no
17-27 further fee shall be required for registration. Any applicant for
18-1 registration who fails to successfully pass the examination herein
18-2 provided for shall have the right to stand a second examination>.
18-3 The examination shall be given in various cities throughout the
18-4 State and shall be of such character as to determine the fitness of
18-5 the applicant to practice professional nursing. A written
18-6 examination prepared, approved, or offered by the board, including
18-7 a standardized national examination, shall be validated by an
18-8 independent testing professional. Not later than the 30th day
18-9 <Within 30 days> after the date on which a licensing examination is
18-10 administered under this article, the board shall notify each
18-11 examinee of the results of the examination. However, if an
18-12 examination is graded or reviewed by a national testing service,
18-13 the board shall notify each examinee of the results of the
18-14 examination not later than the 14th day <within two weeks> after
18-15 the date the board receives the results from the testing service.
18-16 If the notice of the examination results graded or reviewed by a
18-17 national testing service will be delayed for more than 90 days
18-18 after the examination date, the board shall notify each examinee of
18-19 the reason for the delay before the 90th day. If requested in
18-20 writing by a person who fails the licensing examination, the board
18-21 shall furnish the person with an analysis of the person's
18-22 performance on the examination. If the result of the examination
18-23 be satisfactory to the board, a certificate shall be issued to the
18-24 applicant, signed by the president of the board, and executive
18-25 director <secretary> and attested by the seal of said board, which
18-26 certificate shall qualify the person receiving the same to practice
18-27 professional nursing in this State.
19-1 (b) The board by rule shall establish the conditions under
19-2 which an applicant who fails the licensing examination may retake
19-3 the examination. After twice failing the examination, the board
19-4 may require an applicant to fulfill additional educational
19-5 requirements and, after twice failing an examination, may deny an
19-6 applicant who failed the examination the opportunity to retake the
19-7 examination.
19-8 SECTION 9. Article 4521, Revised Statutes, is amended to
19-9 read as follows:
19-10 Art. 4521. TEMPORARY LICENSE; ENDORSEMENT <CERTIFICATE FROM
19-11 ANOTHER STATE>. (a) To qualify for a temporary license to
19-12 practice as a registered nurse by endorsement, an applicant for
19-13 licensing must:
19-14 (1) submit to the board an endorsement fee as
19-15 determined by the board and a completed application given under
19-16 oath, in the form prescribed by the board;
19-17 (2) have possessed at the time of initial licensing as
19-18 a registered nurse other qualifications necessary to have been
19-19 eligible for licensing at that time in this state; and
19-20 (3) have presented to the board proof of initial
19-21 licensing by examination and proof that the license and other
19-22 license or licenses granted to the applicant by any other state
19-23 have not been suspended, revoked, canceled, surrendered, or
19-24 otherwise restricted for any reason.
19-25 (b) A holder of a temporary license under this section shall
19-26 receive a permanent license if the applicant:
19-27 (1) has verified the academic and professional
20-1 credentials of the applicant; and
20-2 (2) satisfies any other requirement set by statute.
20-3 (c) The board shall either grant or deny an application for
20-4 a permanent license within 180 days after the date of the board's
20-5 receipt of all required forms or information. The board may extend
20-6 the 180-day time limit to allow for the receipt and tabulation of
20-7 examination results.
20-8 (d) Any applicant who holds a registration certificate as a
20-9 registered nurse from another state, district, territory or
20-10 possession of the United States, or from a foreign country, may be
20-11 issued a license to practice as a registered nurse in the State of
20-12 Texas by endorsement and without examination upon the payment of a
20-13 fee established by the board, provided in the opinion of the Board
20-14 of Nurse Examiners such other board issuing such other certificate
20-15 in its examination required the same general degree of fitness
20-16 required by this state.
20-17 SECTION 10. Chapter 7, Title 71, Revised Statutes, is
20-18 amended by adding Articles 4524A-4524D to read as follows:
20-19 Art. 4524A. RECORDS OF COMPLAINTS. (a) The board shall
20-20 keep an information file about each complaint filed with the board.
20-21 The board's information file shall be kept current and contain a
20-22 record for each complaint of:
20-23 (1) all persons contacted in relation to the
20-24 complaint;
20-25 (2) a summary of findings made at each step of the
20-26 complaint process;
20-27 (3) an explanation of the legal basis and reason for a
21-1 complaint that is dismissed; and
21-2 (4) other relevant information.
21-3 (b) If a written complaint is filed with the board that the
21-4 board has authority to resolve, the board, at least as frequently
21-5 as quarterly and until final disposition of the complaint, shall
21-6 notify the parties to the complaint of the status of the complaint
21-7 unless the notice would jeopardize an undercover investigation.
21-8 (c) The board by rule shall adopt a form to standardize
21-9 information concerning complaints made to the board. The board by
21-10 rule shall prescribe information to be provided to a person when
21-11 the person files a complaint with the board.
21-12 (d) The board shall provide reasonable assistance to a
21-13 person who wishes to file a complaint with the board.
21-14 Art. 4524B. COMPLAINT INVESTIGATION AND DISPOSITION. (a)
21-15 The board shall adopt rules concerning the investigation of a
21-16 complaint filed with the board. The rules adopted under this
21-17 subsection shall:
21-18 (1) distinguish between categories of complaints;
21-19 (2) ensure that complaints are not dismissed without
21-20 appropriate consideration;
21-21 (3) require that the board be advised of a complaint
21-22 that is dismissed and that a letter be sent to the person who filed
21-23 the complaint explaining the action taken on the dismissed
21-24 complaint;
21-25 (4) ensure that the person who filed the complaint has
21-26 an opportunity to explain the allegations made in the complaint;
21-27 and
22-1 (5) prescribe guidelines concerning the categories of
22-2 complaints that require the use of a private investigator and the
22-3 procedures for the board to obtain the services of a private
22-4 investigator.
22-5 (b) The board shall dispose of all complaints in a timely
22-6 manner. The board shall establish a timeline for conducting each
22-7 phase of a complaint that is under the control of the board not
22-8 later than the 30th day after the date the complaint is received by
22-9 the board. The timeline shall be kept in the information file for
22-10 the complaint and all parties shall be notified of the projected
22-11 time requirements for pursuing the complaint. A change in the
22-12 timeline must be noted in the complaint information file and all
22-13 parties to the complaint must be notified not later than the
22-14 seventh day after the date the change is made.
22-15 (c) The executive director of the board shall notify the
22-16 board of a complaint that extends beyond the time prescribed by the
22-17 board for resolving the complaint so that the board may take
22-18 necessary action on the complaint.
22-19 Art. 4524C. INFORMAL PROCEEDINGS. (a) The board by rule
22-20 shall adopt procedures governing:
22-21 (1) informal disposition of a contested case under
22-22 Section 13(e), Administrative Procedure and Texas Register Act
22-23 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
22-24 subsequent amendments; and
22-25 (2) informal proceedings held in compliance with
22-26 Section 18(c), Administrative Procedure and Texas Register Act
22-27 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
23-1 subsequent amendments.
23-2 (b) Rules adopted under this article must provide the
23-3 complainant and the licensee an opportunity to be heard and must
23-4 require the presence of a representative of the board's legal staff
23-5 or of the office of the attorney general to advise the board or the
23-6 board's employees.
23-7 Art. 4524D. MONITORING OF LICENSEE. The board by rule shall
23-8 develop a system for monitoring licensees' compliance with the
23-9 requirements of this chapter. Rules adopted under this article
23-10 shall include procedures for monitoring a licensee who is ordered
23-11 by the board to perform certain acts to ascertain that the licensee
23-12 performs the required acts and to identify and monitor licensees
23-13 who represent a risk to the public.
23-14 SECTION 11. Article 4525, Revised Statutes, is amended by
23-15 amending Subsections (a), (b), and (e) and adding Subsection (k) to
23-16 read as follows:
23-17 (a) The board <of nurse examiners> may refuse to admit
23-18 persons to its examinations, may refuse to issue a license or
23-19 certificate of registration or to issue a certificate of renewal
23-20 <re-registration>, may refuse to issue a temporary permit,
23-21 endorsement, or license, may issue a warning or reprimand with or
23-22 without stipulations, may suspend for any period not to exceed 5
23-23 years, or may revoke the license or certificate of any practitioner
23-24 of professional nursing, for any of the following reasons:
23-25 (1) The violation of any of the provisions of this
23-26 law, any rule, regulation not inconsistent with this law, or order
23-27 issued hereinunder.
24-1 (2) Is guilty of fraud or deceit in procuring or
24-2 attempting to procure a license to practice professional nursing.
24-3 (3) Conviction of a crime of the grade of felony, or a
24-4 crime of lesser grade which involves moral turpitude, or any
24-5 conduct resulting in the revocation of probation imposed pursuant
24-6 to such conviction.
24-7 (4) The use of any nursing license, certificate,
24-8 diploma or permit, or transcript of such license, certificate,
24-9 diploma or permit, which has been fraudulently purchased, issued,
24-10 counterfeited, or materially altered.
24-11 (5) The impersonation of, or the acting as a proxy
24-12 for, another in any examination required by law to obtain a license
24-13 to practice professional nursing.
24-14 (6) Aiding or abetting, directly or indirectly, or in
24-15 any manner whatsoever, any unlicensed person in connection with the
24-16 unauthorized practice of professional nursing.
24-17 (7) Revocation, suspension, or denial of or any other
24-18 action relating to the license to practice nursing in another
24-19 jurisdiction. Certified copy of the order of denial, suspension,
24-20 revocation, or any other action shall be conclusive evidence
24-21 thereof.
24-22 (8) Intemperate use of alcohol or drugs that the board
24-23 determines endangers or could endanger patients. Intemperate use
24-24 includes but is not limited to practicing professional nursing or
24-25 being on duty or call while under the influence of alcohol or
24-26 drugs.
24-27 (9) Unprofessional or dishonorable conduct which, in
25-1 the opinion of the board, is likely to deceive, defraud, or injure
25-2 patients or the public.
25-3 (10) Adjudication of mental incompetency.
25-4 (11) Lack of fitness to practice by reason of mental
25-5 or physical health that could result in injury to patients or the
25-6 public.
25-7 (12) Failing to care adequately for patients or to
25-8 conform to the minimum standards of acceptable professional nursing
25-9 practice that, in the opinion of the board, exposes a patient or
25-10 other person unnecessarily to risk of harm.
25-11 (b) Proceedings under this article shall be begun by filing
25-12 a written complaint with the board <of nurse examiners>. Such
25-13 complaint may be made by any person or filed by the board on its
25-14 own initiative. Unless it would jeopardize an investigation, the
25-15 board shall notify the registered nurse that a complaint has been
25-16 filed and the nature of the complaint after a determination of the
25-17 identity of the subject of the complaint. <An information file
25-18 about each complaint filed relating to a licensee shall be
25-19 maintained by the board. If a written complaint is filed with the
25-20 board relating to a licensee, the board at least as frequently as
25-21 quarterly and until final disposition of the complaint, shall
25-22 notify the party that filed the complaint of the status of the file
25-23 unless notice would jeopardize an investigation.> The board shall
25-24 make a timely and appropriate preliminary investigation of the
25-25 complaint and may issue a warning or reprimand to the person
25-26 against whom the complaint was filed. If the investigation reveals
25-27 probable cause to take further disciplinary action, the board shall
26-1 either attempt an informal disposition of the complaint or file
26-2 formal charges against the registered nurse stating the provisions
26-3 of this chapter or the board's rules that are alleged to have been
26-4 violated and a brief description of the acts or omissions that
26-5 constituted the violation. If the board proposes to refuse to
26-6 admit a person to its examination, to refuse to issue a temporary
26-7 permit, license, certificate of registration, certificate of
26-8 re-registration, or to suspend or revoke a person's permit,
26-9 license, or certificate, the person is entitled to a hearing before
26-10 the State Office of Administrative Hearings <board. The hearing
26-11 may be before a subcommittee of the board, a majority of which is
26-12 composed of registered nurses. The person shall on request be
26-13 granted a hearing before the entire board>. Proceedings for a
26-14 disciplinary action are governed by the Administrative Procedure
26-15 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
26-16 Statutes). The board may assess a person found to have violated
26-17 any provision of this chapter the administrative costs of
26-18 conducting a hearing to determine that violation. If a licensed
26-19 professional nurse voluntarily surrenders his or her license to the
26-20 board and executes a sworn statement that he or she no longer
26-21 desires to be licensed, the board may revoke his or her license
26-22 without the necessity of formal charges, notice, or opportunity of
26-23 hearing.
26-24 (e) The board <of nurse examiners> is charged with the duty
26-25 of aiding in the enforcement of the provisions of this chapter, and
26-26 may retain legal counsel to represent the board, but prior to
26-27 retaining outside legal counsel, the board shall request the
27-1 attorney general to perform such services and may only retain
27-2 outside counsel if the attorney general so certifies to the board
27-3 that the attorney general cannot provide such services. The board
27-4 shall have the power to issue subpoenas, compel the attendance of
27-5 witnesses, administer oaths to persons giving testimony at
27-6 hearings, and cause the prosecution of all persons violating any
27-7 provisions of this chapter. It shall keep a record of all its
27-8 proceedings and make an annual report to the Governor. Any member
27-9 of the board may present to a prosecuting officer complaints
27-10 relating to violations of any of the provisions of this chapter,
27-11 and the board through its members, officers, counsel, or agents
27-12 shall assist in the trial of any cases involving alleged violation
27-13 of this chapter, subject to the control of the prosecuting
27-14 officers. The Attorney General is directed to render such legal
27-15 assistance as may be necessary in enforcing and making effective
27-16 the provisions of this chapter; provided that this shall not
27-17 relieve the local prosecuting officers of any of their duties under
27-18 the law as such.
27-19 (k) The schedule of sanctions adopted by the board by rule
27-20 shall be used by the State Office of Administrative Hearings for
27-21 any sanction imposed as the result of a hearing conducted by that
27-22 office.
27-23 SECTION 12. Section 1, Article 4525a, Revised Statutes, is
27-24 amended to read as follows:
27-25 Sec. 1. REPORTING REQUIREMENTS. The board shall adopt rules
27-26 governing reporting required under this article to minimize
27-27 unnecessary duplicative reporting and the reporting of minor
28-1 incidents. A "minor incident" means conduct that does not indicate
28-2 the nurse's continuing to practice professional nursing poses a
28-3 risk of harm to a client or other person <REGISTERED NURSES; DUTY
28-4 TO REPORT VIOLATIONS. Each registered nurse having reasonable
28-5 cause to suspect that a registered nurse has exposed or is likely
28-6 to expose a patient or other person unnecessarily to a risk of harm
28-7 because of unprofessional conduct, failure to care adequately for a
28-8 patient, failure to conform to the minimum standards of acceptable
28-9 professional nursing practice, or impaired status shall report in a
28-10 signed, written report to the board the name of the nurse
28-11 committing the violation or suspected violation and any other
28-12 pertinent information within the nurse's knowledge as the board may
28-13 require. A registered nurse without personal knowledge of the
28-14 nurse's actions is not required to report under this section if she
28-15 or he has reasonable cause to believe the nurse has already been
28-16 reported>.
28-17 SECTION 13. Chapter 7, Title 71, Revised Statutes, is
28-18 amended by adding Article 4525c to read as follows:
28-19 Art. 4525c. MEMORANDUM OF UNDERSTANDING. The board shall
28-20 sign a memorandum of understanding with state agencies that
28-21 license, register, or certify a facility required by law to have a
28-22 registered nurse peer review committee. The memorandum of
28-23 understanding shall:
28-24 (1) state the actions the board and agency shall take
28-25 to encourage compliance with the requirement to have a registered
28-26 nurse peer review committee; and
28-27 (2) be adopted as a rule of the board and the agency.
29-1 SECTION 14. Chapter 7, Title 71, Revised Statutes, is
29-2 amended by adding Article 4525e to read as follows:
29-3 Art. 4525e. TEMPORARY SUSPENSION OF LICENSE. If the
29-4 majority of the board or a three-member committee of board members
29-5 designated by the board determines from the evidence or information
29-6 presented to it that a registered nurse by continuation in practice
29-7 would constitute a continuing and imminent threat to the public
29-8 welfare, the board or the three-member committee shall temporarily
29-9 suspend the license of the registered nurse. The license may be
29-10 suspended under this article without notice or hearing on the
29-11 complaint, provided institution of proceedings for a hearing before
29-12 the State Office of Administrative Hearings is initiated
29-13 simultaneously with the temporary suspension and provided that a
29-14 hearing is held as soon as can be accomplished under this chapter
29-15 and the Administrative Procedure and Texas Register Act (Article
29-16 6252-13a, Vernon's Texas Civil Statutes) and its subsequent
29-17 amendments. The State Office of Administrative Hearings shall hold
29-18 a preliminary hearing not later than the 14th day after the date of
29-19 the temporary suspension to determine if probable cause exists that
29-20 a continuing and imminent threat to the public welfare still
29-21 exists. A final hearing on the matter shall be held not later than
29-22 the 61st day after the date of temporary suspension.
29-23 SECTION 15. Article 4526, Revised Statutes, is amended to
29-24 read as follows:
29-25 Art. 4526. LICENSE RENEWAL <Re-registration>. The board by
29-26 rule may <shall> adopt a system under which licenses expire on
29-27 various dates during the year <issued by the board shall be renewed
30-1 each biennium>. <For the year in which the expiration date is
30-2 changed, registration fees payable on or before March 31 shall be
30-3 prorated on a monthly basis so that each registrant shall pay only
30-4 that portion of the re-registration fee that is allocable to the
30-5 months in which the registration is valid. On the new expiration
30-6 date, the total re-registration fee is payable. The board shall
30-7 notify each licensee at least 30 days in advance of the date of
30-8 expiration of the license. The application for re-registration
30-9 shall be mailed by United States mail to the address shown in the
30-10 board's records. Any application received after the expiration
30-11 date shall be charged a late fee.> If a person's license has been
30-12 expired for <not more than> 90 days or less, the person may renew
30-13 the license by paying to the board the required renewal fee and a
30-14 fee that is one-half the examination fee for the license. If a
30-15 license has been expired for <more than> 90 days but less than one
30-16 year <two years>, the person may renew the license by paying to the
30-17 board all unpaid renewal fees and a fee that is equal to the
30-18 examination fee for the license. The board shall by rule set a
30-19 length of time beyond which an expired license may not be renewed.
30-20 The board may establish by rule additional requirements that shall
30-21 apply to the renewal of a license that has been expired for more
30-22 than one year but less than the time limit set by the board beyond
30-23 which a license may not be renewed <If a license has been expired
30-24 for two years or more, the person may renew the license on meeting
30-25 the requirements that the board considers necessary>. The person
30-26 may obtain a new license by submitting to reexamination and
30-27 complying with the requirements and procedures for obtaining an
31-1 original license. However, the board may renew without
31-2 reexamination an expired license of a person who was licensed in
31-3 this state, moved to another state, and is currently licensed and
31-4 has been in practice in the other state for the two years preceding
31-5 application. The person must pay to the State Board of Nursing a
31-6 fee that is equal to the examination fee for the license. At least
31-7 30 days before the expiration of the person's license, the State
31-8 Board of Nursing shall send written notice of the impending license
31-9 expiration to the person at the person's last known address
31-10 according to the records of the board. If any registered nurse
31-11 continues to practice professional nursing beyond the time for
31-12 which the nurse is registered <or re-registered>, the nurse shall
31-13 be considered to be an illegal practitioner and the license may be
31-14 revoked or suspended.
31-15 SECTION 16. Article 4527, Revised Statutes, is amended to
31-16 read as follows:
31-17 Art. 4527. Fees.
31-18 Sec. 1. The board by rule shall establish reasonable and
31-19 necessary fees so that the fees, in the aggregate, produce
31-20 sufficient revenue to cover the cost of administering this chapter.
31-21 The board may not set a fee for an amount less than the amount of
31-22 that fee on September 1, 1993. <The Board of Nurse Examiners shall
31-23 establish reasonable and necessary fees for the administration of
31-24 its functions in amounts not to exceed:>
31-25 <Admission fee to examination ......................... $200>
31-26 <Duplicate or substitute of current certificate ....... 25>
31-27 <Duplicate or substitute of permanent certificate ..... 25>
32-1 <Duplicate permits .................................... 15>
32-2 <Endorsement with or without examination .............. 150>
32-3 <Re-registration ...................................... 50>
32-4 <Issuance of a temporary permit under Art. 4523 ....... 25>
32-5 <Reactivating from inactive status .................... 30>
32-6 <Accreditation of new schools and programs ............ 150>
32-7 <Filing of affidavits in re-change of name ............ 10>
32-8 <Verification of records .............................. 50>
32-9 <Bad checks ........................................... 25>
32-10 <Advanced Nurse Practitioner-initial credentials ...... 50>
32-11 <Advanced Nurse Practitioner-renewal of credentials ... 25>
32-12 <Issuance of declaratory order of eligibility>
32-13 <for license ........................................ 25>
32-14 Sec. 2. The board may receive gifts, grants, or other funds
32-15 or assets <The Board shall not maintain unnecessary fund balances,
32-16 and fee amounts shall be set in accordance with this
32-17 requirement. The Board shall set and collect a sales charge for
32-18 copies of any paper or record in the office of the Board and for
32-19 any printed material published by the Board. The charges are to be
32-20 in an amount considered sufficient to reimburse the Board for its
32-21 actual expenses>.
32-22 Sec. 3. All fees received by said Board under this law
32-23 shall be placed in the State Treasury to the credit of a special
32-24 fund to be known as the "Professional Nurse Registration Fund" and
32-25 the Comptroller shall upon requisition of the Board from time to
32-26 time draw warrants upon the State Treasurer for the amounts
32-27 specified in such requisition; provided, however, all fees
33-1 collected by the Board and deposited in the Professional Nurse
33-2 Registration Fund shall be expended as specified by itemized
33-3 appropriation in the General Appropriations Act and shall be used
33-4 by the Board, and under its directions, only for purposes of
33-5 carrying out this Act. <The Board may use any of the fees and
33-6 charges collected by it, as necessary, to retain, hire, or contract
33-7 for additional prosecutors, hearing examiners, investigators, and
33-8 support staff as necessary to aid in the investigation of
33-9 complaints and the prosecution of persons subject to the Board's
33-10 jurisdiction. This provision shall apply to all fees of whatsoever
33-11 nature as permitted by law. The financial transactions of the
33-12 Board are subject to audit by the state auditor in accordance with
33-13 Chapter 321, Government Code.>
33-14 SECTION 17. Article 4527b, Revised Statutes, is amended to
33-15 read as follows:
33-16 Art. 4527b. PENALTIES <Penalty>. (a) A person who violates
33-17 any provision of Article 4527a, Revised Statutes, commits an
33-18 offense. Except as provided by this section, an offense under that
33-19 article is a Class A misdemeanor. If it is shown in the trial of a
33-20 person allegedly in violation of that article that the person has
33-21 once before been convicted of a violation of Article 4527a, on
33-22 conviction the person shall be punished for a third degree felony.
33-23 Each day of violation constitutes a separate offense. On final
33-24 conviction of an offense under that article, a person forfeits all
33-25 rights and privileges conferred by virtue of licensure under this
33-26 chapter.
33-27 (b) A person who violates Article 4527a, Revised Statutes,
34-1 is liable to the state for a civil penalty that does not exceed
34-2 $1,000 a day. The civil penalty may be collected in a suit
34-3 initiated by the board.
34-4 SECTION 18. Chapter 7, Title 71, Revised Statutes, is
34-5 amended by adding Article 4527d to read as follows:
34-6 Art. 4527d. ADMINISTRATIVE PENALTIES. (a) The board may
34-7 impose an administrative penalty against a person licensed or
34-8 regulated under this Act who violates this Act or a rule or order
34-9 adopted under this Act.
34-10 (b) The penalty for each violation may be in an amount not
34-11 to exceed $2,500. Each day a violation continues or occurs is a
34-12 separate violation for purposes of imposing a penalty.
34-13 (c) The amount of the penalty shall be based on:
34-14 (1) the seriousness of the violation, including the
34-15 nature, circumstances, extent, and gravity of any prohibited acts,
34-16 and the hazard or potential hazard created to the health, safety,
34-17 or economic welfare of the public;
34-18 (2) the economic harm to property or the environment
34-19 caused by the violation;
34-20 (3) the history of previous violations;
34-21 (4) the amount necessary to deter future violations;
34-22 (5) efforts to correct the violation; and
34-23 (6) any other matter that justice may require.
34-24 (d) The executive director who determines that a violation
34-25 has occurred may issue to the board a report that states the facts
34-26 on which the determination is based and the director's
34-27 recommendation on the imposition of a penalty, including a
35-1 recommendation on the amount of the penalty.
35-2 (e) Within 14 days after the date the report is issued, the
35-3 executive director shall give written notice of the report to the
35-4 person. The notice may be given by certified mail. The notice
35-5 must include a brief summary of the alleged violation and a
35-6 statement of the amount of the recommended penalty and must inform
35-7 the person that the person has a right to a hearing on the
35-8 occurrence of the violation, the amount of the penalty, or both the
35-9 occurrence of the violation and the amount of the penalty.
35-10 (f) Within 20 days after the date the person receives the
35-11 notice, the person in writing may accept the determination and
35-12 recommended penalty of the executive director or may make a written
35-13 request for a hearing on the occurrence of the violation, the
35-14 amount of the penalty, or both the occurrence of the violation and
35-15 the amount of the penalty.
35-16 (g) If the person accepts the determination and recommended
35-17 penalty of the executive director, the board by order shall approve
35-18 the determination and impose the recommended penalty.
35-19 (h) If the person requests a hearing or fails to respond
35-20 timely to the notice, the executive director shall set a hearing
35-21 and give notice of the hearing to the person. The hearing shall be
35-22 held by an administrative law judge of the State Office of
35-23 Administrative Hearings. The administrative law judge shall make
35-24 findings of fact and conclusions of law. The administrative law
35-25 judge shall promptly issue to the board a proposal for a decision
35-26 about the occurrence of the violation and the amount of a proposed
35-27 penalty. Based on the findings of fact, conclusions of law, and
36-1 proposal for a decision, the board by order may find that a
36-2 violation has occurred and impose a penalty or may find that no
36-3 violation occurred.
36-4 (i) The notice of the board's order given to the person
36-5 under the Administrative Procedure and Texas Register Act (Article
36-6 6252-13a, Vernon's Texas Civil Statutes) and its subsequent
36-7 amendments must include a statement of the right of the person to
36-8 judicial review of the order.
36-9 (j) Within 30 days after the date the board's order is final
36-10 as provided by Section 16(c), Administrative Procedure and Texas
36-11 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), the
36-12 person shall:
36-13 (1) pay the amount of the penalty;
36-14 (2) pay the amount of the penalty and file a petition
36-15 for judicial review contesting the occurrence of the violation, the
36-16 amount of the penalty, or both the occurrence of the violation and
36-17 the amount of the penalty; or
36-18 (3) without paying the amount of the penalty, file a
36-19 petition for judicial review contesting the occurrence of the
36-20 violation, the amount of the penalty, or both the occurrence of the
36-21 violation and the amount of the penalty.
36-22 (k) Within the 30-day period, a person who acts under
36-23 Subsection (j)(3) of this section may:
36-24 (1) stay enforcement of the penalty by:
36-25 (A) paying the amount of the penalty to the
36-26 court for placement in an escrow account; or
36-27 (B) giving to the court a supersedeas bond
37-1 approved by the court for the amount of the penalty and that is
37-2 effective until all judicial review of the board's order is final;
37-3 or
37-4 (2) request the court to stay enforcement of the
37-5 penalty by:
37-6 (A) filing with the court a sworn affidavit of
37-7 the person stating that the person is financially unable to pay the
37-8 amount of the penalty and is financially unable to give the
37-9 supersedeas bond; and
37-10 (B) giving a copy of the affidavit to the
37-11 executive director by certified mail.
37-12 (l) The executive director who receives a copy of an
37-13 affidavit under Subsection (k)(2) of this section may file with the
37-14 court, within five days after the date the copy is received, a
37-15 contest to the affidavit. The court shall hold a hearing on the
37-16 facts alleged in the affidavit as soon as practicable and shall
37-17 stay the enforcement of the penalty on finding that the alleged
37-18 facts are true. The person who files an affidavit has the burden
37-19 of proving that the person is financially unable to pay the amount
37-20 of the penalty and to give a supersedeas bond.
37-21 (m) If the person does not pay the amount of the penalty and
37-22 the enforcement of the penalty is not stayed, the executive
37-23 director may refer the matter to the attorney general for
37-24 collection of the amount of the penalty.
37-25 (n) Judicial review of the order of the board:
37-26 (1) is instituted by filing a petition as provided by
37-27 Section 19, Administrative Procedure and Texas Register Act
38-1 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
38-2 subsequent amendments; and
38-3 (2) is under the substantial evidence rule.
38-4 (o) If the court sustains the occurrence of the violation,
38-5 the court may uphold or reduce the amount of the penalty and order
38-6 the person to pay the full or reduced amount of the penalty. If
38-7 the court does not sustain the occurrence of the violation, the
38-8 court shall order that no penalty is owed.
38-9 (p) When the judgment of the court becomes final, the court
38-10 shall proceed under this subsection. If the person paid the amount
38-11 of the penalty and if that amount is reduced or is not upheld by
38-12 the court, the court shall order that the appropriate amount plus
38-13 accrued interest be remitted to the person. The rate of the
38-14 interest is the rate charged on loans to depository institutions by
38-15 the New York Federal Reserve Bank, and the interest shall be paid
38-16 for the period beginning on the date the penalty was paid and
38-17 ending on the date the penalty is remitted. If the person gave a
38-18 supersedeas bond and if the amount of the penalty is not upheld by
38-19 the court, the court shall order the release of the bond. If the
38-20 person gave a supersedeas bond and if the amount of the penalty is
38-21 reduced, the court shall order the release of the bond after the
38-22 person pays the amount.
38-23 (q) A penalty collected under this section shall be remitted
38-24 to the comptroller for deposit in the general revenue fund.
38-25 (r) All proceedings under this section are subject to the
38-26 Administrative Procedure and Texas Register Act (Article 6252-13a,
38-27 Vernon's Texas Civil Statutes) and its subsequent amendments.
39-1 SECTION 19. Article 4516, Revised Statutes, is repealed.
39-2 SECTION 20. The changes in law made by this Act in the
39-3 qualifications of members of the Board of Nurse Examiners do not
39-4 affect the entitlement of a member appointed before September 1,
39-5 1993, to continue to hold office to the term to which the member
39-6 was appointed. The change in qualifications applies only to a
39-7 member appointed on or after September 1, 1993.
39-8 SECTION 21. This Act takes effect September 1, 1993.
39-9 SECTION 22. The importance of this legislation and the
39-10 crowded condition of the calendars in both houses create an
39-11 emergency and an imperative public necessity that the
39-12 constitutional rule requiring bills to be read on three several
39-13 days in each house be suspended, and this rule is hereby suspended.