1-1 By: Black (Senate Sponsor - Moncrief) H.B. No. 2180
1-2 (In the Senate - Received from the House May 14, 1993;
1-3 May 14, 1993, read first time and referred to Committee on Health
1-4 and Human Services; May 20, 1993, reported adversely, with
1-5 favorable Committee Substitute by the following vote: Yeas 8, Nays
1-6 0; May 20, 1993, sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Zaffirini x
1-10 Ellis x
1-11 Madla x
1-12 Moncrief x
1-13 Nelson x
1-14 Patterson x
1-15 Shelley x
1-16 Truan x
1-17 Wentworth x
1-18 COMMITTEE SUBSTITUTE FOR H.B. No. 2180 By: Moncrief
1-19 A BILL TO BE ENTITLED
1-20 AN ACT
1-21 relating to the regulation of the practice of registered nursing
1-22 and to the continuation of the Board of Nurse Examiners; providing
1-23 penalties.
1-24 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-25 SECTION 1. Article 4513, Revised Statutes, is amended to
1-26 read as follows:
1-27 Art. 4513. BOARD OF NURSE EXAMINERS
1-28 Sec. 1. Composition of Board; Programs of Study. The Board
1-29 of Nurse Examiners is composed of nine members appointed by the
1-30 governor with the advice and consent of the senate. Appointments
1-31 to the board shall be made without regard to the race, color
1-32 <creed>, disability, sex, religion, age, or national origin of the
1-33 appointees. The board <Board of Nurse Examiners> shall prescribe
1-34 three programs of study to prepare professional nurse
1-35 practitioners, to wit: (1) The Baccalaureate Degree Program--A
1-36 program leading to a baccalaureate degree in nursing conducted by
1-37 an educational unit in nursing (department, division, school, or
1-38 college) which is a part of a senior college or university; (2) The
1-39 Associate Degree Program--A program leading to an associate degree
1-40 in nursing conducted by an educational unit in nursing within the
1-41 structure of a college or a university; and (3) The Diploma
1-42 Program--A program leading to a diploma in nursing conducted by a
1-43 single purpose school usually under the control of a hospital. Six
1-44 of the board members must be Registered Nurses, three of whom shall
1-45 be engaged in professional nurse education and shall be
1-46 representative of said three programs in that one shall be a nurse
1-47 faculty member in a school of nursing pursuing the Baccalaureate
1-48 Degree Program; one shall be a nurse faculty member in a school of
1-49 nursing pursuing the Associate Degree Program; and one shall be a
1-50 nurse faculty member in a school of nursing pursuing the Diploma
1-51 Program. Three members must be members of the general public.
1-52 Sec. 2. Terms; Requirements of Professional Nurse Members
1-53 and Public Members. (a) The members of the board shall hold
1-54 office for staggered terms of six years, with the terms of one
1-55 practicing registered nurse, one professional nurse engaged in
1-56 nurse education, and one public member expiring on January 31 of
1-57 odd-numbered years. The professional nurse members must be
1-58 actually employed in the nursing profession for at least three
1-59 years before their appointment.
1-60 (b) A person is not eligible for appointment as a public
1-61 member if the person or the person's spouse:
1-62 (1) is licensed by an occupational regulatory agency
1-63 in the field of health care;
1-64 (2) is employed by or participates in the management
1-65 of a business entity or other organization that provides
1-66 health-care services or that sells, manufactures, or distributes
1-67 health-care supplies or equipment; <or>
1-68 (3) owns, controls, or has, directly or indirectly,
2-1 more than a 10 percent interest in a business entity or other
2-2 organization that provides health-care services or that sells,
2-3 manufactures, or distributes health-care supplies or equipment; or
2-4 (4) uses or receives a substantial amount of tangible
2-5 goods, services, or funds from the board, other than compensation
2-6 or reimbursement authorized by law for board membership,
2-7 attendance, or expenses.
2-8 Sec. 3. CONFLICT OF INTEREST RESTRICTIONS. (a) An officer,
2-9 employee, or paid consultant of a Texas trade association in the
2-10 field of health care may not be a board member or employee of the
2-11 board who is exempt from the state's position classification plan
2-12 or is compensated at or above the amount prescribed by the General
2-13 Appropriations Act for step 1, salary group 17, of the position
2-14 classification salary schedule.
2-15 (b) A person who is the spouse of an officer, manager, or
2-16 paid consultant of a Texas trade association in the field of health
2-17 care may not be a board member or employee of the board who is
2-18 exempt from the state's position classification plan or is
2-19 compensated at or above the amount prescribed by the General
2-20 Appropriations Act for step 1, salary group 17, of the position
2-21 classification salary schedule.
2-22 (c) For the purposes of this section, a Texas trade
2-23 association is a nonprofit, cooperative, and voluntarily joined
2-24 association of business or professional competitors in this state
2-25 designed to assist its members and its industry or profession in
2-26 dealing with mutual business or professional problems and in
2-27 promoting their common interest.
2-28 Sec. 4. EFFECT OF LOBBYING ACTIVITY. A person may not serve
2-29 as a board member or act as general counsel to the board if the
2-30 person is required to register as a lobbyist under Chapter 305,
2-31 Government Code, and its subsequent amendments, because of the
2-32 person's activities for compensation on behalf of a profession
2-33 related to the operation of the board.
2-34 Sec. 5. GROUNDS FOR REMOVAL FROM BOARD. (a) It is a ground
2-35 for removal from the board if a member:
2-36 (1) does not have at the time of appointment the
2-37 qualifications required by Section 1 of this article;
2-38 (2) does not maintain during service on the board the
2-39 qualifications required by Section 1 of this article;
2-40 (3) violates a prohibition established by Section 3 or
2-41 4 of this article;
2-42 (4) cannot discharge the member's term for a
2-43 substantial part of the term for which the member is appointed
2-44 because of illness or disability; or
2-45 (5) is absent from more than half of the regularly
2-46 scheduled board meetings that the member is eligible to attend
2-47 during a calendar year unless the absence is excused by majority
2-48 vote of the board.
2-49 (b) The validity of an action of the board is not affected
2-50 by the fact that it is taken when a ground for removal of a board
2-51 member exists.
2-52 (c) If the executive director has knowledge that a potential
2-53 ground for removal exists, the executive director shall notify the
2-54 presiding officer of the board of the ground. The presiding
2-55 officer shall then notify the governor that a potential ground for
2-56 removal exists.
2-57 Sec. 6. STANDARDS OF CONDUCT INFORMATION. The board shall
2-58 provide to its members and employees, as often as necessary,
2-59 information regarding their qualifications for office or employment
2-60 under this article and their responsibilities under applicable laws
2-61 relating to standards of conduct for state officers or employees.
2-62 Sec. 7. STAFF. The board shall develop and implement
2-63 policies that clearly define the respective responsibilities of the
2-64 board and the staff of the board.
2-65 Sec. 8. ANNUAL FINANCIAL REPORT. The board shall file
2-66 annually with the governor and the presiding officer of each house
2-67 of the legislature a complete and detailed written report
2-68 accounting for all funds received and disbursed by the board during
2-69 the preceding fiscal year. The annual report must be in the form
2-70 and reported in the time provided by the General Appropriations
3-1 Act.
3-2 Sec. 9. PERSONNEL POLICIES. (a) The executive director or
3-3 the director's designee shall develop an intra-agency career ladder
3-4 program. The program shall require intra-agency posting of all
3-5 nonentry level positions concurrently with any public posting.
3-6 (b) The executive director or the director's designee shall
3-7 develop a system of annual performance evaluations based on
3-8 measurable job tasks. All merit pay for board employees must be
3-9 based on the system established under this subsection.
3-10 Sec. 10. EQUAL EMPLOYMENT OPPORTUNITY POLICIES. (a) The
3-11 executive director or the director's designee shall prepare and
3-12 maintain a written policy statement to ensure implementation of a
3-13 program of equal employment opportunity under which all personnel
3-14 transactions are made without regard to race, color, disability,
3-15 sex, religion, age, or national origin. The policy statement must
3-16 include:
3-17 (1) personnel policies, including policies relating to
3-18 recruitment, evaluation, selection, application, training, and
3-19 promotion of personnel that are in compliance with the Commission
3-20 on Human Rights Act (Article 5221k, Vernon's Texas Civil Statutes)
3-21 and its subsequent amendments;
3-22 (2) a comprehensive analysis of the board work force
3-23 that meets federal and state guidelines;
3-24 (3) procedures by which a determination can be made of
3-25 significant underuse in the board work force of all persons for
3-26 whom federal or state guidelines encourage a more equitable
3-27 balance; and
3-28 (4) reasonable methods to appropriately address those
3-29 areas of underuse.
3-30 (b) A policy statement prepared under Subsection (a) of this
3-31 section must cover an annual period, be updated annually, be
3-32 reviewed by the Commission on Human Rights for compliance with
3-33 Subsection (a)(1) of this section, and be filed with the governor's
3-34 office.
3-35 (c) The governor's office shall deliver a biennial report to
3-36 the legislature based on the information received under Subsection
3-37 (b) of this section. The report may be made separately or as part
3-38 of other biennial reports to the legislature.
3-39 Sec. 11. PUBLIC INTEREST INFORMATION. (a) The board shall
3-40 prepare information of public interest describing the functions of
3-41 the board and the procedures by which complaints are filed with and
3-42 resolved by the board. The board shall make the information
3-43 available to the public and appropriate state agencies.
3-44 (b) The board by rule shall establish methods by which
3-45 consumers and service recipients are notified of the name, mailing
3-46 address, and telephone number of the board for the purpose of
3-47 directing complaints to the board. The board may provide for that
3-48 notification:
3-49 (1) on each registration form, application, or written
3-50 contract for services of an individual or entity regulated by the
3-51 board;
3-52 (2) on a sign prominently displayed in the place of
3-53 business of each individual or entity regulated by the board; or
3-54 (3) in a bill for service provided by an individual or
3-55 entity regulated by the board.
3-56 (c) The board shall list along with its regular telephone
3-57 number the toll-free telephone number that may be called to present
3-58 a complaint about a health professional if the toll-free number is
3-59 established under other state law.
3-60 (d) The board shall enter into memoranda of understanding
3-61 with each state agency that licenses health-care facilities or
3-62 agencies for the purpose of coordinating any posting or
3-63 notification requirements under Subsection (b) of this section with
3-64 posting or notification requirements that may be imposed on the
3-65 health-care facility or agency by that state agency.
3-66 Sec. 12. PUBLIC PARTICIPATION IN BOARD HEARINGS. The board
3-67 shall develop and implement policies that provide the public with a
3-68 reasonable opportunity to appear before the board and to speak on
3-69 any issue under the jurisdiction of the board.
3-70 Sec. 13. PROGRAM ACCESSIBILITY. The board shall prepare and
4-1 maintain a written plan that describes how a person who does not
4-2 speak English can be provided reasonable access to the board's
4-3 programs. The board shall also comply with federal and state laws
4-4 for program and facility accessibility.
4-5 Sec. 14. TRAINING; STANDARDS OF CONDUCT INFORMATION.
4-6 (a) The board shall establish a training program for the members
4-7 of the board.
4-8 (b) Before a member of a board may assume the member's
4-9 duties and before the member may be confirmed by the senate, the
4-10 member must complete at least one course of the training program
4-11 established under this section.
4-12 (c) A training program established under this section shall
4-13 provide information to a participant regarding:
4-14 (1) the enabling legislation that created the board;
4-15 (2) the programs operated by the board;
4-16 (3) the role and functions of the board;
4-17 (4) the rules of the board with an emphasis on the
4-18 rules that relate to disciplinary and investigatory authority;
4-19 (5) the current budget for the board;
4-20 (6) the results of the most recent formal audit of the
4-21 board;
4-22 (7) the requirements of the:
4-23 (A) open meetings law, Chapter 271, Acts of the
4-24 60th Legislature, Regular Session, 1967 (Article 6252-17, Vernon's
4-25 Texas Civil Statutes), and its subsequent amendments;
4-26 (B) open records law, Chapter 424, Acts of the
4-27 63rd Legislature, Regular Session, 1973 (Article 6252-17a, Vernon's
4-28 Texas Civil Statutes), and its subsequent amendments; and
4-29 (C) Administrative Procedure and Texas Register
4-30 Act (Article 6252-13a, Vernon's Texas Civil Statutes) and its
4-31 subsequent amendments;
4-32 (8) the requirements of the conflict of interest laws
4-33 and other laws relating to public officials; and
4-34 (9) any applicable ethics policies adopted by that
4-35 state agency or the Texas Ethics Commission.
4-36 (d) In developing the training requirements provided for in
4-37 this section, the board shall consult with the governor's office,
4-38 the attorney general's office, and the ethics commission.
4-39 (e) In the event that another state agency or entity is
4-40 given the authority to establish the training requirements, the
4-41 board shall allow that training in lieu of developing its own
4-42 program.
4-43 Sec. 15. INTERAGENCY CONTRACTS. The board may enter
4-44 interagency contracts for any purpose authorized by law.
4-45 <RESTRICTIONS ON MEMBERS, EMPLOYEES, AND GENERAL COUNSEL. A member
4-46 or employee of the board may not be an officer, employee, or paid
4-47 consultant of a national or statewide trade association in the
4-48 health-care industry. A member or employee of the board may not be
4-49 related within the second degree by affinity or within the second
4-50 degree by consanguinity, as determined under Article 5996h, Revised
4-51 Statutes, to a person who is an officer, employee, or paid
4-52 consultant of a national or statewide trade association in the
4-53 regulated industry. A person who is required to register as a
4-54 lobbyist under Chapter 305, Government Code, by virtue of his
4-55 activities on behalf of a national or statewide trade or
4-56 professional association in a health-services industry may not
4-57 serve as a member of the board or act as the general counsel to the
4-58 board.>
4-59 <Sec. 4. GROUNDS FOR REMOVAL. It is grounds for removal
4-60 from the board if a member:>
4-61 <(1) does not have at the time of appointment the
4-62 qualifications required for appointment to the board;>
4-63 <(2) does not maintain during the service on the board
4-64 the qualifications for appointment to the board;>
4-65 <(3) violates a prohibition imposed on members of the
4-66 board; or>
4-67 <(4) fails to attend at least half of the regularly
4-68 scheduled board meetings held in a calendar year, excluding
4-69 meetings held while the person was not a board member.>
4-70 <Sec. 5. VALIDITY OF ACTIONS. The validity of an action of
5-1 the board is not affected by the fact that it was taken when a
5-2 ground for removal of a member of the board existed.>
5-3 SECTION 2. Article 4513a, Revised Statutes, is amended to
5-4 read as follows:
5-5 Art. 4513a. SUNSET PROVISION. The Board of Nurse Examiners
5-6 is subject to Chapter 325, Government Code (Texas Sunset Act).
5-7 Unless continued in existence as provided by that chapter, the
5-8 board is abolished September 1, 2005 <1993>.
5-9 SECTION 3. Article 4514, Revised Statutes, is amended to
5-10 read as follows:
5-11 Art. 4514. Organization of board
5-12 Sec. 1. President; Special Meetings; Powers. The governor
5-13 shall designate one of the members of the board as presiding
5-14 officer to serve in that capacity at the pleasure of the governor.
5-15 The members of the board shall elect other officers from their
5-16 members <number a president>. Special meetings of said board shall
5-17 be called by the presiding officer <president> acting upon the
5-18 written request of any two members. The board shall have the
5-19 authority and power to make and enforce all rules and regulations
5-20 necessary for the performance of its duties and conducting of
5-21 proceedings before it, to establish standards of professional
5-22 conduct for all persons licensed under the provisions of this law
5-23 in keeping with its purpose and objectives, to regulate the
5-24 practice of professional nursing and to determine whether or not an
5-25 act constitutes the practice of professional nursing, not
5-26 inconsistent with this Act. Such rules and regulations shall not
5-27 be inconsistent with the provisions of this law.
5-28 Sec. 2. <LEGISLATIVE DISAPPROVAL OF RULES. If the
5-29 appropriate standing committees of both houses of the legislature
5-30 acting under Subsection (g), Section 5, Administrative Procedure
5-31 and Texas Register Act, as amended (Article 6252-13a, Vernon's
5-32 Texas Civil Statutes), transmit to the board statements opposing
5-33 adoption of a rule under that section, the rule may not take
5-34 effect, or if the rule has already taken effect, the rule is
5-35 repealed effective on the date the board receives the committee's
5-36 statements.>
5-37 <Sec. 3.> Rules Restricting Competitive Bidding or
5-38 Advertising Prohibited. The board may not promulgate rules
5-39 restricting competitive bidding or advertising by licensees except
5-40 to prohibit false, misleading, or deceptive practices by the
5-41 person. The board may not include in its rules to prohibit false,
5-42 misleading, or deceptive practices by a person regulated by the
5-43 board a rule that:
5-44 (1) restricts the person's use of any medium for
5-45 advertising;
5-46 (2) restricts the person's personal appearance or use
5-47 of the person's <his or her> voice in an advertisement;
5-48 (3) relates to the size or duration of an
5-49 advertisement by the person; or
5-50 (4) restricts the person's advertisement under a trade
5-51 name.
5-52 Sec. 3 <4>. RECORDS; <CONSUMER INFORMATION;> ASSISTANCE TO
5-53 LEGAL AUTHORITIES. The executive director <secretary> shall be
5-54 required to keep a record of each meeting of said board, including
5-55 a register of the names of all nurses registered under this law,
5-56 which shall be at all times open to public inspection. The <board
5-57 shall prepare information of consumer interest describing the
5-58 regulatory functions of the board and the board's procedures by
5-59 which consumer complaints are filed with and resolved by the board.
5-60 The board shall make the information available to the general
5-61 public and appropriate state agencies. Said> board shall assist
5-62 the proper legal authorities in the prosecution of all persons
5-63 violating any provision of this law. Nothing herein shall either
5-64 expand or contract the board's present powers as they relate to the
5-65 regulation of nursing education.
5-66 Sec. 4 <5>. Open Meetings; Administrative Procedure. The
5-67 board is subject to the open meetings law, Chapter 271, Acts of the
5-68 60th Legislature, Regular Session, 1967, as amended (Article
5-69 6252-17, Vernon's Texas Civil Statutes), and the Administrative
5-70 Procedure and Texas Register Act, as amended (Article 6252-13a,
6-1 Vernon's Texas Civil Statutes).
6-2 Sec. 5 <6>. Recommendation of Rules Relating to Delegation
6-3 of Medical Acts by Physicians. The board may recommend to the
6-4 Texas State Board of Medical Examiners the adoption of rules
6-5 relating to physician's delegating medical acts to registered
6-6 nurses <persons> licensed by the board. The recommendations shall
6-7 be acted on in the same manner as a petition for the adoption of a
6-8 rule by an interested party under the Administrative Procedure and
6-9 Texas Register Act, as amended (Article 6252-13a, Vernon's Texas
6-10 Civil Statutes). The board in making recommendations may
6-11 distinguish between nurses on the basis of special training and
6-12 education. The board <Board of Nurse Examiners> in recommending
6-13 rules and the Texas State Board of Medical Examiners in acting on
6-14 recommended rules shall act, to the extent allowable under state
6-15 and federal statutes and regulations, so as to permit the state to
6-16 obtain its fair share of federal funds available for the delivery
6-17 of health care in this state.
6-18 Sec. 6 <7>. Rules. The board shall adopt rules
6-19 establishing:
6-20 (1) any specialized education and training, including
6-21 pharmacology, a registered nurse must have to carry out a
6-22 prescription drug order pursuant to Subdivision (5), Subsection
6-23 (d), Section 3.06, Medical Practice Act (Article 4495b, Vernon's
6-24 Texas Civil Statutes); and
6-25 (2) a system for assigning an identification number to
6-26 a registered nurse who provides the board with evidence of
6-27 completing the required specialized education and training.
6-28 Sec. 7. NURSING PRACTICE ACT. Articles 4513-4528, Revised
6-29 Statutes, collectively may be referred to as the Nursing Practice
6-30 Act.
6-31 SECTION 4. Article 4517, Revised Statutes, is amended to
6-32 read as follows:
6-33 Art. 4517. EXECUTIVE DIRECTOR <SECRETARY> AND BONDS.
6-34 <Sec. 1.> The board shall employ a qualified executive
6-35 director <secretary>, who shall not be a member of the board.
6-36 Under the direction of the board, the executive director
6-37 <secretary> shall perform duties required by this Act and duties
6-38 designated by the board. Also, the board shall employ all other
6-39 persons necessary to carry on the work of the board. The executive
6-40 director <secretary> shall upon employment execute a bond in the
6-41 sum of One Thousand Dollars payable to the Governor. The bond is
6-42 conditioned that the executive director <secretary> shall
6-43 faithfully perform the duties of the <his or her> office and shall
6-44 account for funds coming into the director's <his or her> hands as
6-45 executive director <secretary>. The bond shall be signed by two or
6-46 more sufficient sureties or by a surety company authorized to do
6-47 business in this state and approved by the president of the board.
6-48 <Sec. 2. The executive secretary or his designee shall
6-49 develop a system of annual performance evaluations based on
6-50 measurable job tasks. All merit pay authorized by the executive
6-51 secretary must be based on the system established under this
6-52 section.>
6-53 SECTION 5. Sections 1, 3, and 4, Article 4518, Revised
6-54 Statutes, are amended to read as follows:
6-55 Sec. 1. It shall be the duty of the Board <of Nurse
6-56 Examiners> to prescribe and publish the minimum requirements and
6-57 standards for a course of study in programs which prepare
6-58 professional nurse practitioners. All other regulations necessary
6-59 to conduct accredited schools of nursing and educational programs
6-60 for the preparation of professional nurses shall be as prescribed
6-61 by the Board, provided, however, that the minimum period of time
6-62 that the Board may require shall be at least two (2) academic years
6-63 and the maximum period of time shall not exceed four (4) calendar
6-64 years. The Board shall accredit such schools of nursing and
6-65 educational programs as meet its requirements and shall deny or
6-66 withdraw accreditation from schools of nursing and educational
6-67 programs which fail to meet the prescribed course of study or other
6-68 standards.
6-69 The Board shall give those persons and organizations affected
6-70 by its orders or decisions under this Article reasonable notice
7-1 thereof, not less than twenty (20) days, and an opportunity to
7-2 appear and be heard with respect to same. The Board shall hear all
7-3 protests or complaints from such persons and organizations affected
7-4 by such rule, regulation or decision as to the inadequacy or
7-5 unreasonableness of any rule, regulation or order promulgated or
7-6 adopted by it, or the injustice of any order or decision by it. If
7-7 any person or organization which shall be affected by such order or
7-8 decision shall be dissatisfied with any regulation, rule or order
7-9 by such Board, such person or organization shall have the right,
7-10 within thirty (30) days from the date such order is entered and
7-11 approved by the Board, to bring an action against said Board in the
7-12 District Court of Travis County, Texas, to have such regulation,
7-13 rule or order vacated or modified, and shall set forth in a
7-14 petition therefor the principal grounds of objection to any or all
7-15 of such rules, regulations or orders. Such appeal as herein
7-16 provided shall be de novo as that term is known and understood in
7-17 appeals from the Justice Court to the County Court.
7-18 Sec. 3. Every applicant for registration as a registered
7-19 nurse <under this law> shall present to the Board <of Nurse
7-20 Examiners> evidence of successful completion of an accredited
7-21 program of professional nursing education and a sworn application
7-22 and shall upon payment of required fees be entitled to take the
7-23 examination prescribed by the Board. Upon <making a> passing the
7-24 examination <grade>, the applicant shall be entitled to receive
7-25 from said Board a certificate attested by the seal of said Board,
7-26 entitling such person to practice as a registered nurse in the
7-27 State of Texas. The Board shall determine the criteria <score>,
7-28 not to exceed the criteria <a score> required by a majority of the
7-29 states, that constitutes <a> passing <grade on> the examination.
7-30 Sec. 4. Any person practicing or offering to practice
7-31 professional nursing in this state for compensation, shall
7-32 hereafter be required to submit evidence to the Board <of Nurse
7-33 Examiners> that the person <he or she> is qualified to practice and
7-34 shall be registered as provided by this law.
7-35 SECTION 6. Article 4519, Revised Statutes, is amended to
7-36 read as follows:
7-37 Art. 4519. EXAMINATION <AND FEE>. (a) An applicant that
7-38 wishes to take a licensing examination must submit to the board an
7-39 application demonstrating the applicant's qualifications under this
7-40 chapter. If the board determines that the applicant meets the
7-41 qualifications, the applicant may take the licensing examination
7-42 <Upon filing application for examination each applicant shall pay
7-43 an examination fee which shall in no case be returned to the
7-44 applicant. If the applicant passes the examination, then no
7-45 further fee shall be required for registration. Any applicant for
7-46 registration who fails to successfully pass the examination herein
7-47 provided for shall have the right to stand a second examination>.
7-48 (b) The examination shall be given in various cities
7-49 throughout the State and shall be of such character as to determine
7-50 the fitness of the applicant to practice professional nursing. A
7-51 written examination prepared, approved, or offered by the board,
7-52 including a standardized national examination, shall be validated
7-53 by an independent testing professional. Not later than the 30th
7-54 day <Within 30 days> after the date on which a licensing
7-55 examination is administered under this article, the board shall
7-56 notify each examinee of the results of the examination. However,
7-57 if an examination is graded or reviewed by a national testing
7-58 service, the board shall notify each examinee of the results of the
7-59 examination not later than the 14th day <within two weeks> after
7-60 the date the board receives the results from the testing service.
7-61 If the notice of the examination results graded or reviewed by a
7-62 national testing service will be delayed for more than 90 days
7-63 after the examination date, the board shall notify each examinee of
7-64 the reason for the delay before the 90th day. If requested in
7-65 writing by a person who fails the licensing examination, the board
7-66 shall furnish the person with an analysis of the person's
7-67 performance on the examination. If the result of the examination
7-68 be satisfactory to the board, a certificate shall be issued to the
7-69 applicant, signed by the president of the board, and executive
7-70 director <secretary> and attested by the seal of said board, which
8-1 certificate shall qualify the person receiving the same to practice
8-2 professional nursing in this State.
8-3 (c) The board by rule shall establish the conditions under
8-4 which an applicant who fails the licensing examination may retake
8-5 the examination. After twice failing the examination, the board
8-6 may require an applicant to fulfill additional educational
8-7 requirements and, after twice failing an examination, may deny an
8-8 applicant who failed the examination the opportunity to retake the
8-9 examination.
8-10 SECTION 7. Article 4521, Revised Statutes, is amended to
8-11 read as follows:
8-12 Art. 4521. TEMPORARY LICENSE; ENDORSEMENT <CERTIFICATE FROM
8-13 ANOTHER STATE>. (a) To qualify for a temporary license to
8-14 practice as a registered nurse by endorsement, an applicant for
8-15 licensing must:
8-16 (1) submit to the board an endorsement fee as
8-17 determined by the board and a completed application given under
8-18 oath, in the form prescribed by the board;
8-19 (2) have possessed at the time of initial licensing as
8-20 a registered nurse other qualifications necessary to have been
8-21 eligible for licensing at that time in this state; and
8-22 (3) have presented to the board proof of initial
8-23 licensing by examination and proof that the license and other
8-24 license or licenses granted to the applicant by any other state
8-25 have not been suspended, revoked, canceled, surrendered, or
8-26 otherwise restricted for any reason.
8-27 (b) A holder of a temporary license under this section shall
8-28 receive a permanent license if the applicant:
8-29 (1) has verified the academic and professional
8-30 credentials of the applicant; and
8-31 (2) satisfies any other requirement set by statute.
8-32 (c) The board shall either grant or deny an application for
8-33 a permanent license within 180 days after the date of the board's
8-34 receipt of all required forms or information. The board may extend
8-35 the 180-day time limit to allow for the receipt and tabulation of
8-36 examination results.
8-37 (d) Any applicant who holds a registration certificate as a
8-38 registered nurse from a <another state, district,> territory or
8-39 possession of the United States, or from a foreign country, may be
8-40 issued a license to practice as a registered nurse in the State of
8-41 Texas by endorsement and without examination upon the payment of a
8-42 fee established by the board, provided in the opinion of the Board
8-43 of Nurse Examiners such other board issuing such other certificate
8-44 in its examination required the same general degree of fitness
8-45 required by this state.
8-46 SECTION 8. Article 4523, Revised Statutes, is amended to
8-47 read as follows:
8-48 Art. 4523. Temporary permit. (a) <Any nurse who has
8-49 graduated from an accredited school of nursing, who holds a
8-50 registration certificate as a Registered Nurse from another state
8-51 or from a possession of the United States, and who is actually
8-52 engaged in the pursuit of his or her profession, shall be permitted
8-53 to practice in the state under a permit issued by the board of
8-54 nurse examiners, upon the payment of a fee established by the
8-55 board.>
8-56 <(b)> The board may issue a permit to practice professional
8-57 nursing under the direct supervision of a Registered Nurse to
8-58 graduates of approved educational programs pending the results of
8-59 the licensing examination. The permit expires on receipt of a
8-60 permanent license or on receipt of a notice of failing the
8-61 examination from the board. The permit may not be issued to any
8-62 applicant who has previously failed an examination administered by
8-63 the board or by another state.
8-64 (b) <(c)> To allow a nurse to satisfy a requirement imposed
8-65 under Article 4526, Revised Statutes, to renew an expired <a>
8-66 license <expired for two years or more> or a requirement imposed
8-67 under Article 4526b, Revised Statutes, to reactivate a nursing
8-68 license from inactive status, the board may issue a temporary
8-69 permit to practice professional nursing for the limited purpose of
8-70 satisfying the requirement. A permit issued under this subsection
9-1 expires on the earlier of the receipt of a permanent license or six
9-2 months from the date of issuance.
9-3 (c) <(d)> A person who holds a temporary permit under this
9-4 article is a licensed professional registered nurse for all
9-5 purposes except to the extent of any stipulations or limitations on
9-6 practice imposed by the board as a condition of issuing the permit.
9-7 SECTION 9. Chapter 7, Title 71, Revised Statutes, is amended
9-8 by adding Articles 4524A-4524D to read as follows:
9-9 Art. 4524A. RECORDS OF COMPLAINTS. (a) The board shall
9-10 keep an information file about each complaint filed with the board.
9-11 The board's information file shall be kept current and contain a
9-12 record for each complaint of:
9-13 (1) all persons contacted in relation to the
9-14 complaint;
9-15 (2) a summary of findings made at each step of the
9-16 complaint process;
9-17 (3) an explanation of the legal basis and reason for a
9-18 complaint that is dismissed; and
9-19 (4) other relevant information.
9-20 (b) If a written complaint is filed with the board that the
9-21 board has authority to resolve, the board, at least as frequently
9-22 as quarterly and until final disposition of the complaint, shall
9-23 notify the parties to the complaint of the status of the complaint
9-24 unless the notice would jeopardize an undercover investigation.
9-25 (c) The board by rule shall adopt a form to standardize
9-26 information concerning complaints made to the board. The board by
9-27 rule shall prescribe information to be provided to a person when
9-28 the person files a complaint with the board.
9-29 (d) The board shall provide reasonable assistance to a
9-30 person who wishes to file a complaint with the board.
9-31 Art. 4524B. COMPLAINT INVESTIGATION AND DISPOSITION.
9-32 (a) The board shall adopt rules concerning the investigation of a
9-33 complaint filed with the board. The rules adopted under this
9-34 subsection shall:
9-35 (1) distinguish between categories of complaints;
9-36 (2) ensure that complaints are not dismissed without
9-37 appropriate consideration;
9-38 (3) require that the board be advised of a complaint
9-39 that is dismissed and that a letter be sent to the person who filed
9-40 the complaint explaining the action taken on the dismissed
9-41 complaint;
9-42 (4) ensure that the person who filed the complaint has
9-43 an opportunity to explain the allegations made in the complaint;
9-44 and
9-45 (5) prescribe guidelines concerning the categories of
9-46 complaints that require the use of a private investigator and the
9-47 procedures for the board to obtain the services of a private
9-48 investigator.
9-49 (b) The board shall dispose of all complaints in a timely
9-50 manner. The board shall establish a timeline for conducting each
9-51 phase of a complaint that is under the control of the board not
9-52 later than the 30th day after the date the complaint is received by
9-53 the board. The timeline shall be kept in the information file for
9-54 the complaint and all parties shall be notified of the projected
9-55 time requirements for pursuing the complaint. A change in the
9-56 timeline must be noted in the complaint information file and all
9-57 parties to the complaint must be notified not later than the
9-58 seventh day after the date the change is made.
9-59 (c) The executive director of the board shall notify the
9-60 board of a complaint that extends beyond the time prescribed by the
9-61 board for resolving the complaint so that the board may take
9-62 necessary action on the complaint.
9-63 Art. 4524C. INFORMAL PROCEEDINGS. (a) The board by rule
9-64 shall adopt procedures governing:
9-65 (1) informal disposition of a contested case under
9-66 Section 13(e), Administrative Procedure and Texas Register Act
9-67 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
9-68 subsequent amendments; and
9-69 (2) informal proceedings held in compliance with
9-70 Section 18(c), Administrative Procedure and Texas Register Act
10-1 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
10-2 subsequent amendments.
10-3 (b) Rules adopted under this article must provide the
10-4 complainant and the licensee an opportunity to be heard and must
10-5 require the presence of a representative of the board's legal staff
10-6 or of the office of the attorney general to advise the board or the
10-7 board's employees.
10-8 Art. 4524D. MONITORING OF LICENSEE. The board by rule shall
10-9 develop a system for monitoring licensees' compliance with the
10-10 requirements of this chapter. Rules adopted under this article
10-11 shall include procedures for monitoring a licensee who is ordered
10-12 by the board to perform certain acts to ascertain that the licensee
10-13 performs the required acts and to identify and monitor licensees
10-14 who represent a risk to the public.
10-15 SECTION 10. Article 4525, Revised Statutes, is amended by
10-16 amending Subsections (a), (b), and (e) and adding Subsection (k) to
10-17 read as follows:
10-18 (a) The board <of nurse examiners> may refuse to admit
10-19 persons to its examinations, may refuse to issue a license or
10-20 certificate of registration or to issue a certificate of renewal
10-21 <re-registration>, may refuse to issue a temporary permit, license
10-22 by endorsement, or license, may issue a warning or reprimand with
10-23 or without stipulations, may suspend for any period not to exceed 5
10-24 years, or may revoke the license or certificate of any practitioner
10-25 of professional nursing, for any of the following reasons:
10-26 (1) The violation of any of the provisions of this
10-27 law, any rule, regulation not inconsistent with this law, or order
10-28 issued hereinunder.
10-29 (2) Is guilty of fraud or deceit in procuring or
10-30 attempting to procure a license to practice professional nursing.
10-31 (3) Conviction of a crime of the grade of felony, or a
10-32 crime of lesser grade which involves moral turpitude, or any
10-33 conduct resulting in the revocation of probation imposed pursuant
10-34 to such conviction.
10-35 (4) The use of any nursing license, certificate,
10-36 diploma or permit, or transcript of such license, certificate,
10-37 diploma or permit, which has been fraudulently purchased, issued,
10-38 counterfeited, or materially altered.
10-39 (5) The impersonation of, or the acting as a proxy
10-40 for, another in any examination required by law to obtain a license
10-41 to practice professional nursing.
10-42 (6) Aiding or abetting, directly or indirectly, or in
10-43 any manner whatsoever, any unlicensed person in connection with the
10-44 unauthorized practice of professional nursing.
10-45 (7) Revocation, suspension, or denial of or any other
10-46 action relating to the license to practice nursing in another
10-47 jurisdiction. Certified copy of the order of denial, suspension,
10-48 revocation, or any other action shall be conclusive evidence
10-49 thereof.
10-50 (8) Intemperate use of alcohol or drugs that the board
10-51 determines endangers or could endanger patients. Intemperate use
10-52 includes but is not limited to practicing professional nursing or
10-53 being on duty or call while under the influence of alcohol or
10-54 drugs.
10-55 (9) Unprofessional or dishonorable conduct which, in
10-56 the opinion of the board, is likely to deceive, defraud, or injure
10-57 patients or the public.
10-58 (10) Adjudication of mental incompetency.
10-59 (11) Lack of fitness to practice by reason of mental
10-60 or physical health that could result in injury to patients or the
10-61 public.
10-62 (12) Failing to care adequately for patients or to
10-63 conform to the minimum standards of acceptable professional nursing
10-64 practice that, in the opinion of the board, exposes a patient or
10-65 other person unnecessarily to risk of harm.
10-66 (b) Proceedings under this article shall be begun by filing
10-67 a written complaint with the board <of nurse examiners>. Such
10-68 complaint may be made by any person or filed by the board on its
10-69 own initiative. Unless it would jeopardize an investigation, the
10-70 board shall notify the registered nurse that a complaint has been
11-1 filed and the nature of the complaint after a determination of the
11-2 identity of the subject of the complaint. <An information file
11-3 about each complaint filed relating to a licensee shall be
11-4 maintained by the board. If a written complaint is filed with the
11-5 board relating to a licensee, the board at least as frequently as
11-6 quarterly and until final disposition of the complaint, shall
11-7 notify the party that filed the complaint of the status of the file
11-8 unless notice would jeopardize an investigation.> The board shall
11-9 make a timely and appropriate preliminary investigation of the
11-10 complaint and may issue a warning or reprimand to the person
11-11 against whom the complaint was filed. If the investigation reveals
11-12 probable cause to take further disciplinary action, the board shall
11-13 either attempt an informal disposition of the complaint or file
11-14 formal charges against the registered nurse stating the provisions
11-15 of this chapter or the board's rules that are alleged to have been
11-16 violated and a brief description of the acts or omissions that
11-17 constituted the violation. If the board proposes to refuse to
11-18 admit a person to its examination, to refuse to issue a temporary
11-19 permit, license, certificate of registration, certificate of
11-20 re-registration, or to suspend or revoke a person's permit,
11-21 license, or certificate, the person is entitled to a hearing before
11-22 the State Office of Administrative Hearings <board. The hearing
11-23 may be before a subcommittee of the board, a majority of which is
11-24 composed of registered nurses. The person shall on request be
11-25 granted a hearing before the entire board>. Proceedings for a
11-26 disciplinary action are governed by the Administrative Procedure
11-27 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
11-28 Statutes). The board may assess a person found to have violated
11-29 any provision of this chapter the administrative costs of
11-30 conducting a hearing to determine that violation. If a licensed
11-31 professional nurse voluntarily surrenders his or her license to the
11-32 board and executes a sworn statement that he or she no longer
11-33 desires to be licensed, the board may revoke his or her license
11-34 without the necessity of formal charges, notice, or opportunity of
11-35 hearing.
11-36 (e) The board <of nurse examiners> is charged with the duty
11-37 of aiding in the enforcement of the provisions of this chapter, and
11-38 may retain legal counsel to represent the board, but prior to
11-39 retaining outside legal counsel, the board shall request the
11-40 attorney general to perform such services and may only retain
11-41 outside counsel if the attorney general so certifies to the board
11-42 that the attorney general cannot provide such services. The board
11-43 shall have the power to issue subpoenas, compel the attendance of
11-44 witnesses, administer oaths to persons giving testimony at
11-45 hearings, and cause the prosecution of all persons violating any
11-46 provisions of this chapter. It shall keep a record of all its
11-47 proceedings and make an annual report to the Governor. Any member
11-48 of the board may present to a prosecuting officer complaints
11-49 relating to violations of any of the provisions of this chapter,
11-50 and the board through its members, officers, counsel, or agents
11-51 shall assist in the trial of any cases involving alleged violation
11-52 of this chapter, subject to the control of the prosecuting
11-53 officers. The Attorney General is directed to render such legal
11-54 assistance as may be necessary in enforcing and making effective
11-55 the provisions of this chapter; provided that this shall not
11-56 relieve the local prosecuting officers of any of their duties under
11-57 the law as such.
11-58 (k) The schedule of sanctions adopted by the board by rule
11-59 shall be used by the State Office of Administrative Hearings for
11-60 any sanction imposed as the result of a hearing conducted by that
11-61 office.
11-62 SECTION 11. Section 1, Article 4525a, Revised Statutes, is
11-63 amended to read as follows:
11-64 Sec. 1. REGISTERED NURSES; DUTY TO REPORT VIOLATIONS.
11-65 (a) Each registered nurse having reasonable cause to suspect that
11-66 a registered nurse has exposed or is likely to expose a patient or
11-67 other person unnecessarily to a risk of harm because of
11-68 unprofessional conduct, failure to care adequately for a patient,
11-69 failure to conform to the minimum standards of acceptable
11-70 professional nursing practice, or impaired status shall report in a
12-1 signed, written report to the board the name of the nurse
12-2 committing the violation or suspected violation and any other
12-3 pertinent information within the nurse's knowledge as the board may
12-4 require. A registered nurse without personal knowledge of the
12-5 nurse's actions is not required to report under this section if she
12-6 or he has reasonable cause to believe the nurse has already been
12-7 reported.
12-8 (b) The board shall adopt rules governing reporting required
12-9 under this article to minimize unnecessary duplicative reporting
12-10 and the reporting of minor incidents. A "minor incident" means
12-11 conduct that does not indicate the nurse's continuing to practice
12-12 professional nursing poses a risk of harm to a client or other
12-13 person.
12-14 SECTION 12. Chapter 7, Title 71, Revised Statutes, is
12-15 amended by adding Article 4525c to read as follows:
12-16 Art. 4525c. MEMORANDUM OF UNDERSTANDING. The board shall
12-17 sign a memorandum of understanding with state agencies that
12-18 license, register, or certify a facility required by law to have a
12-19 registered nurse peer review committee. The memorandum of
12-20 understanding shall:
12-21 (1) state the actions the board and agency shall take
12-22 to encourage compliance with the requirement to have a registered
12-23 nurse peer review committee; and
12-24 (2) be adopted as a rule of the board and the agency.
12-25 SECTION 13. Chapter 7, Title 71, Revised Statutes, is
12-26 amended by adding Article 4525e to read as follows:
12-27 Art. 4525e. TEMPORARY SUSPENSION OF LICENSE. If the
12-28 majority of the board or a three-member committee of board members
12-29 designated by the board determines from the evidence or information
12-30 presented to it that a registered nurse by continuation in practice
12-31 would constitute a continuing and imminent threat to the public
12-32 welfare, the board or the three-member committee shall temporarily
12-33 suspend the license of the registered nurse. The license may be
12-34 suspended under this article without notice or hearing on the
12-35 complaint, provided institution of proceedings for a hearing before
12-36 the State Office of Administrative Hearings is initiated
12-37 simultaneously with the temporary suspension and provided that a
12-38 hearing is held as soon as can be accomplished under this chapter
12-39 and the Administrative Procedure and Texas Register Act (Article
12-40 6252-13a, Vernon's Texas Civil Statutes) and its subsequent
12-41 amendments. The State Office of Administrative Hearings shall hold
12-42 a preliminary hearing not later than the 14th day after the date of
12-43 the temporary suspension to determine if probable cause exists that
12-44 a continuing and imminent threat to the public welfare still
12-45 exists. A final hearing on the matter shall be held not later than
12-46 the 61st day after the date of temporary suspension.
12-47 SECTION 14. Article 4526, Revised Statutes, is amended to
12-48 read as follows:
12-49 Art. 4526. LICENSE RENEWAL <Re-registration>. The board by
12-50 rule may <shall> adopt a system under which licenses expire on
12-51 various dates during the year <issued by the board shall be renewed
12-52 each biennium>. <For the year in which the expiration date is
12-53 changed, registration fees payable on or before March 31 shall be
12-54 prorated on a monthly basis so that each registrant shall pay only
12-55 that portion of the re-registration fee that is allocable to the
12-56 months in which the registration is valid. On the new expiration
12-57 date, the total re-registration fee is payable. The board shall
12-58 notify each licensee at least 30 days in advance of the date of
12-59 expiration of the license. The application for re-registration
12-60 shall be mailed by United States mail to the address shown in the
12-61 board's records. Any application received after the expiration
12-62 date shall be charged a late fee.> If a person's license has been
12-63 expired for <not more than> 90 days or less, the person may renew
12-64 the license by paying to the board the required renewal fee and a
12-65 fee that is one-half the amount charged by the board or a designee
12-66 for examination <fee> for the license. If a license has been
12-67 expired for <more than> 90 days but less than one year <two years>,
12-68 the person may renew the license by paying to the board all unpaid
12-69 renewal fees and a fee that is equal to the amount charged by the
12-70 board or a designee for examination <fee> for the license. The
13-1 board shall by rule set a length of time beyond which an expired
13-2 license may not be renewed. The board may establish by rule
13-3 additional requirements that shall apply to the renewal of a
13-4 license that has been expired for more than one year but less than
13-5 the time limit set by the board beyond which a license may not be
13-6 renewed <If a license has been expired for two years or more, the
13-7 person may renew the license on meeting the requirements that the
13-8 board considers necessary>. The person may obtain a new license by
13-9 submitting to reexamination and complying with the requirements and
13-10 procedures for obtaining an original license. However, the board
13-11 may renew without reexamination an expired license of a person who
13-12 was licensed in this state, moved to another state, and is
13-13 currently licensed and has been in practice in the other state for
13-14 the two years preceding application. The person must pay to the
13-15 board a fee that is equal to the initial fee for the license and
13-16 the renewal fee. At least 30 days before the expiration of the
13-17 person's license, the board shall send written notice of the
13-18 impending license expiration to the person at the person's last
13-19 known address according to the records of the board. If any
13-20 registered nurse continues to practice professional nursing beyond
13-21 the time for which the nurse is registered <or re-registered>, the
13-22 nurse shall be considered to be an illegal practitioner and the
13-23 license may be revoked or suspended.
13-24 SECTION 15. Article 4527, Revised Statutes, is amended to
13-25 read as follows:
13-26 Art. 4527. Fees
13-27 Sec. 1. The board by rule shall establish reasonable and
13-28 necessary fees so that the fees, in the aggregate, produce
13-29 sufficient revenue to cover the cost of administering this chapter.
13-30 The board may not set a fee for an amount less than the amount of
13-31 that fee on September 1, 1993. <The Board of Nurse Examiners shall
13-32 establish reasonable and necessary fees for the administration of
13-33 its functions in amounts not to exceed:>
13-34 <Admission fee to examination ......................... $200>
13-35 <Duplicate or substitute of current certificate ....... 25>
13-36 <Duplicate or substitute of permanent certificate ..... 25>
13-37 <Duplicate permits .................................... 15>
13-38 <Endorsement with or without examination .............. 150>
13-39 <Re-registration ...................................... 50>
13-40 <Issuance of a temporary permit under Art. 4523 ....... 25>
13-41 <Reactivating from inactive status .................... 30>
13-42 <Accreditation of new schools and programs ............ 150>
13-43 <Filing of affidavits in re-change of name ............ 10>
13-44 <Verification of records .............................. 50>
13-45 <Bad checks ........................................... 25>
13-46 <Advanced Nurse Practitioner-initial credentials ...... 50>
13-47 <Advanced Nurse Practitioner-renewal of credentials ... 25>
13-48 <Issuance of declaratory order of eligibility>
13-49 <for license ........................................ 25>
13-50 Sec. 2. The board may receive gifts, grants, or other funds
13-51 or assets <The Board shall not maintain unnecessary fund balances,
13-52 and fee amounts shall be set in accordance with this
13-53 requirement. The Board shall set and collect a sales charge for
13-54 copies of any paper or record in the office of the Board and for
13-55 any printed material published by the Board. The charges are to be
13-56 in an amount considered sufficient to reimburse the Board for its
13-57 actual expenses>.
13-58 Sec. 3. All fees received by said Board under this law
13-59 shall be placed in the State Treasury to the credit of a special
13-60 fund to be known as the "Professional Nurse Registration Fund" and
13-61 the Comptroller shall upon requisition of the Board from time to
13-62 time draw warrants upon the State Treasurer for the amounts
13-63 specified in such requisition; provided, however, all fees
13-64 collected by the Board and deposited in the Professional Nurse
13-65 Registration Fund shall be expended as specified by itemized
13-66 appropriation in the General Appropriations Act and shall be used
13-67 by the Board, and under its directions, only for purposes of
13-68 carrying out this Act. <The Board may use any of the fees and
13-69 charges collected by it, as necessary, to retain, hire, or contract
13-70 for additional prosecutors, hearing examiners, investigators, and
14-1 support staff as necessary to aid in the investigation of
14-2 complaints and the prosecution of persons subject to the Board's
14-3 jurisdiction. This provision shall apply to all fees of whatsoever
14-4 nature as permitted by law. The financial transactions of the
14-5 Board are subject to audit by the state auditor in accordance with
14-6 Chapter 321, Government Code.>
14-7 SECTION 16. Article 4527b, Revised Statutes, is amended to
14-8 read as follows:
14-9 Art. 4527b. PENALTIES <Penalty>. (a) A person who violates
14-10 any provision of Article 4527a, Revised Statutes, commits an
14-11 offense. Except as provided by this section, an offense under that
14-12 article is a Class A misdemeanor. If it is shown in the trial of a
14-13 person allegedly in violation of that article that the person has
14-14 once before been convicted of a violation of Article 4527a, on
14-15 conviction the person shall be punished for a third degree felony.
14-16 Each day of violation constitutes a separate offense. On final
14-17 conviction of an offense under that article, a person forfeits all
14-18 rights and privileges conferred by virtue of licensure under this
14-19 chapter.
14-20 (b) A person who violates Article 4527a, Revised Statutes,
14-21 is liable to the state for a civil penalty that does not exceed
14-22 $1,000 a day. The civil penalty may be collected in a suit
14-23 initiated by the board.
14-24 SECTION 17. Chapter 7, Title 71, Revised Statutes, is
14-25 amended by adding Article 4527d to read as follows:
14-26 Art. 4527d. ADMINISTRATIVE PENALTIES. (a) The board may
14-27 impose an administrative penalty against a person licensed or
14-28 regulated under this article who violates this article or a rule or
14-29 order adopted under this article.
14-30 (b) The penalty for each violation may be in an amount not
14-31 to exceed $2,500. Each day a violation continues or occurs is a
14-32 separate violation for purposes of imposing a penalty.
14-33 (c) The amount of the penalty shall be based on:
14-34 (1) the seriousness of the violation, including the
14-35 nature, circumstances, extent, and gravity of any prohibited acts,
14-36 and the hazard or potential hazard created to the health, safety,
14-37 or economic welfare of the public;
14-38 (2) the economic harm to property or the environment
14-39 caused by the violation;
14-40 (3) the history of previous violations;
14-41 (4) the amount necessary to deter future violations;
14-42 (5) efforts to correct the violation; and
14-43 (6) any other matter that justice may require.
14-44 (d) The executive director who determines that a violation
14-45 has occurred may issue to the board a report that states the facts
14-46 on which the determination is based and the director's
14-47 recommendation on the imposition of a penalty, including a
14-48 recommendation on the amount of the penalty.
14-49 (e) Within 14 days after the date the report is issued, the
14-50 executive director shall give written notice of the report to the
14-51 person. The notice may be given by certified mail. The notice
14-52 must include a brief summary of the alleged violation and a
14-53 statement of the amount of the recommended penalty and must inform
14-54 the person that the person has a right to a hearing on the
14-55 occurrence of the violation, the amount of the penalty, or both the
14-56 occurrence of the violation and the amount of the penalty.
14-57 (f) Within 20 days after the date the person receives the
14-58 notice, the person in writing may accept the determination and
14-59 recommended penalty of the executive director or may make a written
14-60 request for a hearing on the occurrence of the violation, the
14-61 amount of the penalty, or both the occurrence of the violation and
14-62 the amount of the penalty.
14-63 (g) If the person accepts the determination and recommended
14-64 penalty of the executive director, the board by order shall approve
14-65 the determination and impose the recommended penalty.
14-66 (h) If the person requests a hearing or fails to respond
14-67 timely to the notice, the executive director shall set a hearing
14-68 and give notice of the hearing to the person. The hearing shall be
14-69 held by an administrative law judge of the State Office of
14-70 Administrative Hearings. The administrative law judge shall make
15-1 findings of fact and conclusions of law. The administrative law
15-2 judge shall promptly issue to the board a proposal for a decision
15-3 about the occurrence of the violation and the amount of a proposed
15-4 penalty. Based on the findings of fact, conclusions of law, and
15-5 proposal for a decision, the board by order may find that a
15-6 violation has occurred and impose a penalty or may find that no
15-7 violation occurred.
15-8 (i) The notice of the board's order given to the person
15-9 under the Administrative Procedure and Texas Register Act (Article
15-10 6252-13a, Vernon's Texas Civil Statutes) and its subsequent
15-11 amendments must include a statement of the right of the person to
15-12 judicial review of the order.
15-13 (j) Within 30 days after the date the board's order is final
15-14 as provided by Section 16(c), Administrative Procedure and Texas
15-15 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), the
15-16 person shall:
15-17 (1) pay the amount of the penalty;
15-18 (2) pay the amount of the penalty and file a petition
15-19 for judicial review contesting the occurrence of the violation, the
15-20 amount of the penalty, or both the occurrence of the violation and
15-21 the amount of the penalty; or
15-22 (3) without paying the amount of the penalty, file a
15-23 petition for judicial review contesting the occurrence of the
15-24 violation, the amount of the penalty, or both the occurrence of the
15-25 violation and the amount of the penalty.
15-26 (k) Within the 30-day period, a person who acts under
15-27 Subsection (j)(3) of this section may:
15-28 (1) stay enforcement of the penalty by:
15-29 (A) paying the amount of the penalty to the
15-30 court for placement in an escrow account; or
15-31 (B) giving to the court a supersedeas bond
15-32 approved by the court for the amount of the penalty and that is
15-33 effective until all judicial review of the board's order is final;
15-34 or
15-35 (2) request the court to stay enforcement of the
15-36 penalty by:
15-37 (A) filing with the court a sworn affidavit of
15-38 the person stating that the person is financially unable to pay the
15-39 amount of the penalty and is financially unable to give the
15-40 supersedeas bond; and
15-41 (B) giving a copy of the affidavit to the
15-42 executive director by certified mail.
15-43 (l) The executive director who receives a copy of an
15-44 affidavit under Subsection (k)(2) of this section may file with the
15-45 court, within five days after the date the copy is received, a
15-46 contest to the affidavit. The court shall hold a hearing on the
15-47 facts alleged in the affidavit as soon as practicable and shall
15-48 stay the enforcement of the penalty on finding that the alleged
15-49 facts are true. The person who files an affidavit has the burden
15-50 of proving that the person is financially unable to pay the amount
15-51 of the penalty and to give a supersedeas bond.
15-52 (m) If the person does not pay the amount of the penalty and
15-53 the enforcement of the penalty is not stayed, the executive
15-54 director may refer the matter to the attorney general for
15-55 collection of the amount of the penalty.
15-56 (n) Judicial review of the order of the board:
15-57 (1) is instituted by filing a petition as provided by
15-58 Section 19, Administrative Procedure and Texas Register Act
15-59 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
15-60 subsequent amendments; and
15-61 (2) is under the substantial evidence rule.
15-62 (o) If the court sustains the occurrence of the violation,
15-63 the court may uphold or reduce the amount of the penalty and order
15-64 the person to pay the full or reduced amount of the penalty. If
15-65 the court does not sustain the occurrence of the violation, the
15-66 court shall order that no penalty is owed.
15-67 (p) When the judgment of the court becomes final, the court
15-68 shall proceed under this subsection. If the person paid the amount
15-69 of the penalty and if that amount is reduced or is not upheld by
15-70 the court, the court shall order that the appropriate amount plus
16-1 accrued interest be remitted to the person. The rate of the
16-2 interest is the rate charged on loans to depository institutions by
16-3 the New York Federal Reserve Bank, and the interest shall be paid
16-4 for the period beginning on the date the penalty was paid and
16-5 ending on the date the penalty is remitted. If the person gave a
16-6 supersedeas bond and if the amount of the penalty is not upheld by
16-7 the court, the court shall order the release of the bond. If the
16-8 person gave a supersedeas bond and if the amount of the penalty is
16-9 reduced, the court shall order the release of the bond after the
16-10 person pays the amount.
16-11 (q) A penalty collected under this section shall be remitted
16-12 to the comptroller for deposit in the general revenue fund.
16-13 (r) All proceedings under this section are subject to the
16-14 Administrative Procedure and Texas Register Act (Article 6252-13a,
16-15 Vernon's Texas Civil Statutes) and its subsequent amendments.
16-16 SECTION 18. Article 4516, Revised Statutes, is repealed.
16-17 SECTION 19. The changes in law made by this Act in the
16-18 qualifications of members of the Board of Nurse Examiners do not
16-19 affect the entitlement of a member appointed before September 1,
16-20 1993, to continue to hold office to the term to which the member
16-21 was appointed. The change in qualifications applies only to a
16-22 member appointed on or after September 1, 1993.
16-23 SECTION 20. This Act takes effect September 1, 1993.
16-24 SECTION 21. The importance of this legislation and the
16-25 crowded condition of the calendars in both houses create an
16-26 emergency and an imperative public necessity that the
16-27 constitutional rule requiring bills to be read on three several
16-28 days in each house be suspended, and this rule is hereby suspended.
16-29 * * * * *
16-30 Austin,
16-31 Texas
16-32 May 20, 1993
16-33 Hon. Bob Bullock
16-34 President of the Senate
16-35 Sir:
16-36 We, your Committee on Health and Human Services to which was
16-37 referred H.B. No. 2180, have had the same under consideration, and
16-38 I am instructed to report it back to the Senate with the
16-39 recommendation that it do not pass, but that the Committee
16-40 Substitute adopted in lieu thereof do pass and be printed.
16-41 Zaffirini,
16-42 Chair
16-43 * * * * *
16-44 WITNESSES
16-45 FOR AGAINST ON
16-46 ___________________________________________________________________
16-47 Name: Louise Waddill x
16-48 Representing: Bd of Nurse Examiners
16-49 City: Austin
16-50 -------------------------------------------------------------------
16-51 Name: Sara Keel x
16-52 Representing: Bd of Nurse Examiners
16-53 City: Houston
16-54 -------------------------------------------------------------------
16-55 Name: Penny Puryear Burt x
16-56 Representing: Bd of Nurse Examiners
16-57 City: Georgetown
16-58 -------------------------------------------------------------------
16-59 Name: James Willmann x
16-60 Representing: Tx Nurses Asso
16-61 City: Austin
16-62 -------------------------------------------------------------------
16-63 Name: Cyndie Schmitt x
16-64 Representing: Sunset Comm
16-65 City: Austin
16-66 -------------------------------------------------------------------
16-67 Name: Matthew Wall x
16-68 Representing: Tx Hospital Asso
16-69 City: Austin
16-70 -------------------------------------------------------------------