73R10276 CAG-D
By Black, Berlanga H.B. No. 2865
Substitute the following for H.B. No. 2865:
By Berlanga C.S.H.B. No. 2865
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of the practice of vocational nursing
1-3 and to the continuation of the Board of Vocational Nurse Examiners;
1-4 providing penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Sections 1(a) and (b), Chapter 118, Acts of the
1-7 52nd Legislature, Regular Session, 1951 (Article 4528c, Vernon's
1-8 Texas Civil Statutes), are amended to read as follows:
1-9 (a) "Board" means the Board of Vocational Nurse
1-10 Examiners.
1-11 (b) "Licensed Vocational Nurse" means a person who is
1-12 licensed under this Act by the Board of Vocational Nurse Examiners.
1-13 SECTION 2. Section 5, Chapter 118, Acts of the 52nd
1-14 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
1-15 Civil Statutes), is amended to read as follows:
1-16 Sec. 5. TERM OF OFFICE, ORGANIZATION, MEETINGS OF BOARD<;
1-17 CONTINUING EDUCATION>. (a) There is hereby created a board to be
1-18 known as the Board of Vocational Nurse Examiners, consisting of 15
1-19 <twelve (12)> members to be appointed by the Governor and confirmed
1-20 by the State Senate. Appointments to the Board shall be made
1-21 without regard to the race, creed, sex, religion, or national
1-22 origin of the appointees.
1-23 Seven (7) members of the Board must be Licensed Vocational
1-24 Nurses who are graduates of approved schools of vocational nursing,
2-1 who have been actively engaged in the practice of vocational
2-2 nursing for five (5) years immediately preceding their
2-3 appointments, and who are not licensed physicians, registered
2-4 professional nurses, or hospital administrators.
2-5 One (1) member of the Board must be a Registered Nurse
2-6 licensed by the Board of Nurse Examiners who is actively engaged in
2-7 a teaching, administrative, or supervisory capacity in a vocational
2-8 nursing educational program and who is not a licensed physician,
2-9 hospital administrator, or licensed vocational nurse.
2-10 One (1) member of the Board must be a physician licensed by
2-11 the Texas State Board of Medical Examiners who has been actively
2-12 engaged in the practice of medicine for five (5) years immediately
2-13 preceding appointment and who is not a hospital administrator,
2-14 registered professional nurse, or licensed vocational nurse.
2-15 One (1) member of the Board must be a hospital administrator
2-16 who has been actively engaged in hospital administration for a
2-17 period of five (5) years and who is not a licensed physician,
2-18 registered professional nurse, or licensed vocational nurse.
2-19 Five (5) <Two (2)> members of the Board must be
2-20 representatives of the general public. A person is not eligible
2-21 for appointment as a public member of the Board if the person or
2-22 the person's spouse:
2-23 (1) is registered, certified, or licensed by an
2-24 occupational regulatory agency in the field of health care;
2-25 (2) is employed by or participates in the management
2-26 of a business entity or other organization regulated by the Board
2-27 or receiving funds from the Board;
3-1 (3) owns or controls, directly or indirectly, more
3-2 than 10 percent interest in a business entity or other organization
3-3 regulated by the Board or receiving funds from the Board; or
3-4 (4) uses or receives a substantial amount of tangible
3-5 goods, services, or funds from the Board, other than compensation
3-6 or reimbursement authorized by law for Board membership,
3-7 attendance, or expenses. <A person is not eligible for appointment
3-8 as a public member if the person or the person's spouse is licensed
3-9 by an occupational regulatory agency in the field of health care or
3-10 is employed by, participates in the management of, or has, other
3-11 than as a consumer, a financial interest in a business entity or
3-12 other organization that provides health-care services or that
3-13 sells, manufactures, or distributes health-care supplies or
3-14 equipment.>
3-15 (b) The term of office of each member of the Board shall be
3-16 six (6) years. A member may not immediately succeed the member's
3-17 term <himself (or herself)> in office. In case of death,
3-18 resignation or vacancy from any cause on the Board, the vacancy of
3-19 the unexpired term shall be filled by the Governor within sixty
3-20 (60) days after the occurrence of such vacancy.
3-21 Each appointee to the Board <of Vocational Nurse Examiners>
3-22 shall, within fifteen (15) days of the date of his appointment,
3-23 qualify by taking the constitutional oath of office.
3-24 (c)(1) An officer, employee, or paid consultant of a Texas
3-25 trade association in the field of health care may not be a Board
3-26 member.
3-27 (2) A person who is the spouse of an officer, manager,
4-1 or paid consultant of a Texas trade association in the field of
4-2 health care may not be a Board member.
4-3 (3) For the purposes of this section, a Texas trade
4-4 association is a nonprofit, cooperative, and voluntarily joined
4-5 association of business or professional competitors in this state
4-6 designed to assist its members and its industry or profession in
4-7 dealing with mutual business or professional problems and in
4-8 promoting their common interest. <A member or employee of the
4-9 Board may not be an officer, employee, or paid consultant of a
4-10 national or state trade association in the vocational nursing
4-11 field.>
4-12 (d) A person may not serve as a Board member if the person
4-13 is required to register as a lobbyist under Chapter 305, Government
4-14 Code, and its subsequent amendments, because of the person's
4-15 activities for compensation on behalf of a profession related to
4-16 the operation of the Board. <A member or employee of the Board may
4-17 not be related within the second degree by affinity or
4-18 consanguinity, as determined under Article 5996h, Revised Statutes,
4-19 to a person who is an officer, employee, or paid consultant of a
4-20 national or state trade association in the vocational nursing
4-21 field.>
4-22 (e)(1) It is a ground for removal from the Board if a
4-23 member:
4-24 (A) does not have at the time of appointment the
4-25 qualifications required by Subsection (a) of this section;
4-26 (B) does not maintain during service on the
4-27 Board the qualifications required by Subsection (a) of this
5-1 section;
5-2 (C) violates a prohibition established by
5-3 Subsections (c) and (d) of this section;
5-4 (D) cannot discharge the member's term for a
5-5 substantial part of the term for which the member is appointed
5-6 because of illness or disability; or
5-7 (E) is absent from more than half of the
5-8 regularly scheduled Board meetings that the member is eligible to
5-9 attend during a calendar year unless the absence is excused by
5-10 majority vote of the Board.
5-11 (2) The validity of an action of the Board is not
5-12 affected by the fact that it is taken when a ground for removal of
5-13 a Board member exists.
5-14 (3) If the executive director has knowledge that a
5-15 potential ground for removal exists, the executive director shall
5-16 notify the presiding officer of the Board of the ground. The
5-17 presiding officer shall then notify the governor that a potential
5-18 ground for removal exists.
5-19 <(1) does not have at the time of appointment the
5-20 qualifications required by Subsection (a) of this section for
5-21 appointment to the Board;>
5-22 <(2) does not maintain during his service on the Board
5-23 the qualifications required by Subsection (a) of this section for
5-24 appointment to the Board;>
5-25 <(3) violates a prohibition prescribed by Subsection
5-26 (c) or (d) of this section; or>
5-27 <(4) fails to attend at least half of the regularly
6-1 scheduled Board meetings held in a calendar year, excluding
6-2 meetings held while the person was not a Board member.>
6-3 (f) The governor shall designate from the members of the
6-4 Board the President of the Board. The person designated as
6-5 President serves in that capacity at the will of the governor.
6-6 <The validity of an action of the Board is not affected by the fact
6-7 that it was taken when a ground for removal of a member of the
6-8 Board existed.>
6-9 <(g)> The Board shall elect a <President,> Vice-president<,>
6-10 and Secretary-treasurer yearly at an annual meeting. The Board may
6-11 make such rules and regulations as may be necessary to govern its
6-12 proceedings and to carry in effect the purposes of this law. The
6-13 Secretary-treasurer shall be required to keep minutes of each
6-14 meeting of said Board, a register of the names of all nurses
6-15 licensed under this law, and books of account of fees received and
6-16 disbursements; and all minutes, the register of Licensed Vocational
6-17 Nurses and books of account shall be at all times open to public
6-18 inspection. The financial transactions of this Board are subject
6-19 to audit by the state auditor in accordance with Chapter 321,
6-20 Government Code. The Board shall employ a person other than a
6-21 member of the Board as the executive director of the Board. The
6-22 executive director shall perform the administrative functions of
6-23 the Board. The Board shall employ other persons that it considers
6-24 necessary in carrying out the provisions of this law. The
6-25 Secretary-treasurer shall be bonded by the Board in such amount as
6-26 may be recommended by the State Auditor.
6-27 <(h) The executive director or his designee shall develop a
7-1 system of annual performance evaluations based on measurable job
7-2 tasks. All merit pay authorized by the executive director must be
7-3 based on the system established under this subsection.>
7-4 (g) <(i)> The Board shall employ a full-time Director of
7-5 Education, who shall have had at least five (5) years experience in
7-6 teaching nursing in an accredited school of nursing or an approved
7-7 program in vocational nursing. The Board may select either a
7-8 Licensed Vocational Nurse or a Registered Nurse as the Director of
7-9 Education. The duties of the Director of Education shall be to
7-10 visit and inspect all schools of vocational nursing to determine
7-11 whether the Board's minimum requirements for vocational nursing
7-12 programs are being met. The Board shall prescribe such methods and
7-13 rules of visiting, and such methods of reporting by the Board
7-14 <Director of Education> as may in its judgment be deemed proper.
7-15 (h) <(j)> Regular meetings of the Board shall be held at
7-16 least twice a year, one of which shall be designated as an Annual
7-17 Meeting for election of officers and the reading of auditors'
7-18 reports. At least twice each year the Board shall hold
7-19 examinations in various cities in the state for qualified
7-20 applicants for licensure. Examinations may be held under the
7-21 supervision of a Board member or such other person as the Board may
7-22 specify. Not less than sixty (60) days notice of the holding of
7-23 the examination shall be given by publication in at least three (3)
7-24 daily newspapers of general circulation, to be selected by the
7-25 Board; special meetings shall be held upon request of five (5)
7-26 <four (4)> members of the Board or upon the call of the president;
7-27 eight (8) <six (6)> members of the Board shall constitute a quorum
8-1 for the transaction of business, and should a quorum not be present
8-2 on the day appointed for any meeting, those persons present may
8-3 adjourn from day to day until a quorum shall be present, providing
8-4 that such period shall not be longer than three (3) successive
8-5 days; each member of said Board is entitled to a per diem set by
8-6 legislative appropriation for each day that the member engages in
8-7 the business of the Board. A member may not receive any
8-8 compensation for travel expenses, including expenses for meals and
8-9 lodging, other than transportation expenses. A member is entitled
8-10 to compensation for transportation expenses as provided by the
8-11 General Appropriations Act.
8-12 (i) <(k)> The Board may not adopt rules restricting
8-13 competitive bidding or advertising by a licensee of the Board
8-14 except to prohibit false, misleading, or deceptive practices by the
8-15 licensee. The Board may not include in its rules to prohibit
8-16 false, misleading, or deceptive practices by a licensee a rule
8-17 that:
8-18 (1) restricts the licensee's use of any medium for
8-19 advertising;
8-20 (2) restricts the licensee's personal appearance or
8-21 use of the person's <his> voice in an advertisement;
8-22 (3) relates to the size or duration of an
8-23 advertisement by the licensee; or
8-24 (4) restricts the licensee's advertisement under a
8-25 trade name.
8-26 <(l)(1) The Board may recognize, prepare, or implement
8-27 continuing education programs for licensees and may require
9-1 participation in continuing education programs as a condition of
9-2 renewal of a license.>
9-3 <(2) The Board may not require more than a total of 20
9-4 hours of continuing education in a two-year license period and may
9-5 not require that more than 10 of those hours consist of classroom
9-6 instruction in approved programs. The remaining 10 hours may
9-7 consist of any combination of classroom instruction,
9-8 institutional-based instruction, or individualized study.>
9-9 <(3) If the Board requires participation in continuing
9-10 education programs as a condition of renewal of a license, the
9-11 Board shall by rule establish a system for the approval of programs
9-12 and providers of continuing education. In adopting the rules, the
9-13 board shall consider but is not obligated to approve programs or
9-14 providers approved or accredited through continuing education
9-15 accreditation systems established by national or state associations
9-16 of licensed vocational nurses and nurse in-service programs offered
9-17 by hospitals accredited by the Joint Commission on Accreditation of
9-18 Healthcare Organizations, certified by Medicare, or maintained or
9-19 operated by the federal government or the State of Texas. The
9-20 Board may assess programs and providers a fee in an amount
9-21 reasonable and necessary to defray the costs incurred in approving
9-22 providers and programs. The fee collected under this subsection
9-23 shall be deposited in the Vocational Nurse Examiners Fund.>
9-24 <(4) The Board may adopt other rules as necessary to
9-25 implement this section.>
9-26 (j) <(m)> The Board shall prepare information of consumer
9-27 interest describing the regulatory functions of the Board and the
10-1 Board's procedures by which consumer complaints are filed with and
10-2 resolved by the Board. The Board shall make the information
10-3 available to the general public and appropriate state agencies.
10-4 (k) <(n)> The Board shall enforce this Act. The Board may
10-5 retain outside legal counsel to represent the Board. However,
10-6 before the Board may retain outside counsel, the Board shall
10-7 request the attorney general to perform the necessary services and
10-8 may retain the outside counsel only if the attorney general
10-9 certifies to the Board that the services cannot be performed.
10-10 (l) <(o) A person who is required to register as a lobbyist
10-11 under Chapter 305, Government Code, may not serve as a member of
10-12 the Board or act as the general counsel to the Board.>
10-13 <(p)> The Board of Vocational Nurse Examiners is subject to
10-14 Chapter 325, Government Code (Texas Sunset Act). Unless continued
10-15 in existence as provided by that chapter, the board is abolished
10-16 and this Act expires September 1, 2005 <1993>.
10-17 (m) <(q)> The Board is subject to the open meetings law,
10-18 Chapter 271, Acts of the 60th Legislature, Regular Session, 1967,
10-19 as amended (Article 6252-17, Vernon's Texas Civil Statutes), and
10-20 the Administrative Procedure and Texas Register Act, as amended
10-21 (Article 6252-13a, Vernon's Texas Civil Statutes).
10-22 (n) <(r)> If the appropriate standing committees of both
10-23 houses of the legislature acting under Subsection (g), Section 5,
10-24 Administrative Procedure and Texas Register Act, as amended
10-25 (Article 6252-13a, Vernon's Texas Civil Statutes), transmit to the
10-26 Board statements opposing adoption of a rule under that section,
10-27 the rule may not take effect, or if the rule has already taken
11-1 effect, the rule is repealed effective on the date the Board
11-2 receives the committee's statements.
11-3 (o)(1) The executive director or the executive director's
11-4 designee shall develop an intra-agency career ladder program. The
11-5 program shall require intra-agency posting of all nonentry level
11-6 positions concurrently with any public posting.
11-7 (2) The executive director or the executive director's
11-8 designee shall develop a system of annual performance evaluations
11-9 based on measurable job tasks. All merit pay for Board employees
11-10 must be based on the system established under this subsection.
11-11 (p)(1) The executive director or the executive director's
11-12 designee shall prepare and maintain a written policy statement to
11-13 assure implementation of a program of equal employment opportunity
11-14 under which all personnel transactions are made without regard to
11-15 race, color, disability, sex, religion, age, or national origin.
11-16 The policy statement must include:
11-17 (A) personnel policies, including policies
11-18 relating to recruitment, evaluation, selection, application,
11-19 training, and promotion of personnel that are in compliance with
11-20 the Commission on Human Rights Act (Article 5221k, Vernon's Texas
11-21 Civil Statutes), and its subsequent amendments;
11-22 (B) a comprehensive analysis of the Board
11-23 workforce that meets federal and state guidelines;
11-24 (C) procedures by which a determination can be
11-25 made of significant underuse in the Board workforce of all persons
11-26 for whom federal or state guidelines encourage a more equitable
11-27 balance; and
12-1 (D) reasonable methods to appropriately address
12-2 those areas of underuse.
12-3 (2) A policy statement prepared under Subdivision (1)
12-4 of this subsection must cover an annual period, be updated
12-5 annually, be reviewed by the Commission on Human Rights for
12-6 compliance with Subdivision (1)(A) of this subsection, and be filed
12-7 with the governor's office.
12-8 (3) The governor's office shall deliver a biennial
12-9 report to the legislature based on the information received under
12-10 Subdivision (2) of this subsection. The report may be made
12-11 separately or as part of other biennial reports to the legislature.
12-12 (q)(1) The Board shall prepare information of public
12-13 interest describing the functions of the Board and the Board's
12-14 procedures by which complaints are filed with and resolved by the
12-15 Board. The Board shall make the information available to the
12-16 public and appropriate state agencies.
12-17 (2) The Board by rule shall establish methods by which
12-18 consumers and service recipients are notified of the name, mailing
12-19 address, and telephone number of the Board for the purpose of
12-20 directing complaints to the Board. The Board may provide for that
12-21 notification:
12-22 (A) on each registration form, application, or
12-23 written contract for services of an individual or entity regulated
12-24 by the Board;
12-25 (B) on a sign prominently displayed in the place
12-26 of business of each individual or entity regulated by the Board; or
12-27 (C) in a bill for service provided by an
13-1 individual or entity regulated by the Board.
13-2 (3) The Board shall list along with its regular
13-3 telephone number the toll-free telephone number that may be called
13-4 to present a complaint about a health professional if the toll-free
13-5 number is established under other state law.
13-6 (r) The Board shall develop and implement policies that
13-7 provide the public with a reasonable opportunity to appear before
13-8 the Board and to speak on any issue under the jurisdiction of the
13-9 Board.
13-10 (s) The Board shall prepare and maintain a written plan that
13-11 describes how a person who does not speak English can be provided
13-12 reasonable access to the Board's programs. The Board shall also
13-13 comply with federal and state laws for program and facility
13-14 accessibility.
13-15 (t)(1) The Board shall establish a training program for the
13-16 members of the Board.
13-17 (2) Before a member of a Board may assume the member's
13-18 duties, the member must complete at least one course of the
13-19 training program established under this subsection, and before the
13-20 member may be confirmed by the senate, the member must pass an
13-21 examination given in conjunction with the attorney general on
13-22 subjects described by Subdivisions (3)(G), (H), and (I) of this
13-23 subsection.
13-24 (3) A training program established under this
13-25 subsection shall provide information to a participant regarding:
13-26 (A) the enabling legislation that created the
13-27 Board;
14-1 (B) the programs operated by the Board;
14-2 (C) the role and functions of the Board;
14-3 (D) the rules of the Board with an emphasis on
14-4 the rules that relate to disciplinary and investigatory authority;
14-5 (E) the current budget for the Board;
14-6 (F) the results of the most recent formal audit
14-7 of the Board;
14-8 (G) the requirements of the:
14-9 (i) open meetings law, Chapter 271, Acts
14-10 of the 60th Legislature, Regular Session, 1967 (Article 6252-17,
14-11 Vernon's Texas Civil Statutes), and its subsequent amendments;
14-12 (ii) open records law, Chapter 424, Acts
14-13 of the 63rd Legislature, Regular Session, 1973 (Article 6252-17a,
14-14 Vernon's Texas Civil Statutes), and its subsequent amendments; and
14-15 (iii) Administrative Procedure and Texas
14-16 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes) and
14-17 its subsequent amendments;
14-18 (H) the requirements of the conflict of interest
14-19 laws and other laws relating to public officials; and
14-20 (I) any applicable ethics policies adopted by
14-21 the Board or the Texas Ethics Commission.
14-22 (4) In developing the training requirements provided
14-23 for in this subsection, the Board shall consult with the governor's
14-24 office, the attorney general's office, and the Texas Ethics
14-25 Commission.
14-26 (5) In the event that another state agency or entity
14-27 is given the authority to establish the training requirements, the
15-1 Board shall allow that training in lieu of developing its own
15-2 program.
15-3 (u) The Board shall provide to its members and employees, as
15-4 often as necessary, information regarding their qualifications for
15-5 office or employment under this article and their responsibilities
15-6 under applicable laws relating to standards of conduct for state
15-7 officers or employees.
15-8 (v) The Board may enter interagency contracts for any
15-9 purpose authorized by law.
15-10 SECTION 3. Section 6, Chapter 118, Acts of the 52nd
15-11 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
15-12 Civil Statutes), is amended to read as follows:
15-13 Sec. 6. Examination and Licenses. (a) Except as provided
15-14 in Section 7 of this Act, every person desiring to be licensed as a
15-15 Licensed Vocational Nurse or use the abbreviation L.V.N. in the
15-16 State of Texas, shall be required to pass the examination approved
15-17 <given> by the Board of Vocational Nurse Examiners <or its
15-18 delegate>. The applicant shall make application by presenting to
15-19 <the secretary of> the Board, on forms furnished by the Board,
15-20 satisfactory sworn evidence that the applicant has had at least two
15-21 (2) years of high school education or its equivalent and has
15-22 completed an approved course <of not less than twelve (12) months>
15-23 in an approved school for educating vocational nurses. An approved
15-24 school as used herein shall mean one approved by the Board.
15-25 Application for examination by the Board or its delegate shall be
15-26 made at least thirty (30) days prior to the date set for the
15-27 examination.
16-1 (b) The Board in its discretion may waive the requirement in
16-2 Subsection (a) of this section for completion of a course in an
16-3 approved school for educating vocational or practical nurses upon
16-4 presentation of satisfactory sworn evidence that the applicant has
16-5 completed an acceptable level <at least two (2) years> of education
16-6 in a nursing school approved by the State Board of Nurse Examiners
16-7 of Texas or in some other school of professional nurse education
16-8 located in another state, the District of Columbia, a possession of
16-9 the United States, or a foreign country. The Board by rule shall
16-10 determine acceptable levels of education. The Board shall have the
16-11 written portion of the examination, if any, validated by an
16-12 independent testing professional. If the applicant received
16-13 training in another state, the District of Columbia, a possession
16-14 of the United States, or a foreign country, the applicant must
16-15 present evidence satisfactory to the Board that the nursing
16-16 education received is equivalent to that required for licensure as
16-17 a vocational nurse in this state.
16-18 (c) Not later than the 30th day <Within 30 days> after the
16-19 date a licensing examination is administered under this Act, the
16-20 Board shall notify each examinee of the results of the examination.
16-21 However, if an examination is graded or reviewed by a national
16-22 testing service, the Board shall notify each examinee of the
16-23 results of the examination within two weeks after the date the
16-24 Board receives the results from the testing service. If the notice
16-25 of the examination results will be delayed for more than 90 days
16-26 after the examination date, the Board shall notify each examinee of
16-27 the reason for the delay before the 90th day. If requested in
17-1 writing by a person who fails the licensing examination
17-2 administered under this Act, the Board shall furnish the person
17-3 with an analysis of the person's performance on the examination or
17-4 other information which the Board has available to it after the
17-5 tests are scored.
17-6 (d) If an applicant has graduated from an approved
17-7 educational program in vocational nursing in this state, another
17-8 state, or the District of Columbia, or successfully completed two
17-9 years of an associate degree program or diploma program in
17-10 professional nursing education in this state, another state, or the
17-11 District of Columbia, the Board may issue to the applicant, pending
17-12 the results of the licensing examination, a temporary permit to
17-13 practice vocational nursing under the direct supervision of a
17-14 licensed vocational nurse, registered professional nurse, or
17-15 licensed physician. A permit issued to an applicant who fails the
17-16 examination expires on the date indicated on the permit. A permit
17-17 issued to an applicant who passes the examination expires on the
17-18 applicant's receipt of a license from the Board. A permit may not
17-19 be issued to an applicant who has previously failed an examination
17-20 administered by the Board or by another state. <The Board may
17-21 issue a temporary permit to practice vocational nursing to an
17-22 applicant who is a vocational or practical nurse who has graduated
17-23 from an approved program for educating vocational or practical
17-24 nurses, holds a license as a vocational or practical nurse from
17-25 another state, the District of Columbia, or a possession of the
17-26 United States, and has actually been engaged in the practice of
17-27 vocational or practical nursing within the past five years. Such
18-1 an applicant must practice under the direct supervision of a
18-2 licensed vocational nurse, registered professional nurse, or
18-3 licensed physician. A temporary permit issued to an applicant from
18-4 another state, the District of Columbia, or a possession of the
18-5 United States expires on receipt of a license from the Board or on
18-6 the expiration of 90 days, whichever occurs first. The Board may,
18-7 by mutual agreement, assign the function of physical distribution
18-8 of the temporary permits to an agent designated by the Board to act
18-9 on behalf of the Board.>
18-10 (e) Any nurse who is licensed under the provisions of this
18-11 Act, when on duty in a public or private hospital, nursing home, or
18-12 licensed health-care facility, shall wear <identifying> insignia
18-13 identifying the nurse as a licensed vocational nurse <on white caps
18-14 or uniforms>.
18-15 SECTION 4. Section 7, Chapter 118, Acts of the 52nd
18-16 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
18-17 Civil Statutes), is amended to read as follows:
18-18 Sec. 7. QUALIFICATION FOR LICENSING BY ENDORSEMENT. (a) To
18-19 qualify for a temporary license to practice as a licensed
18-20 vocational nurse by endorsement, an applicant for licensing must:
18-21 (1) submit to the Board an application fee as
18-22 determined by the Board and a completed application given under
18-23 oath, in the form prescribed by the Board;
18-24 (2) have possessed at the time of initial licensing as
18-25 a licensed vocational nurse the qualifications necessary to have
18-26 been eligible for licensing at that time in this state;
18-27 (3) have presented to the Board proof of initial
19-1 licensing by examination and proof that the license and other
19-2 license or licenses granted to the applicant by any other state
19-3 have not been suspended, revoked, canceled, surrendered, or
19-4 otherwise restricted for any reason; and
19-5 (4) submit to the Board a notice of sponsorship of the
19-6 applicant by the holder of a Texas health care professional license
19-7 under whom the applicant will practice.
19-8 (b) A holder of a temporary license under this section shall
19-9 receive a permanent license if the applicant:
19-10 (1) has verified the academic and professional
19-11 credentials of the applicant; and
19-12 (2) satisfies any other requirement set by statute.
19-13 (c) The Board shall either grant or deny an application for
19-14 a permanent license within 180 days after the date of the Board's
19-15 receipt of all required forms or information. The Board may extend
19-16 the 180-day deadline to allow for the receipt and tabulation of
19-17 pending examination results.
19-18 (d) The Board shall adopt rules relating to the conditions
19-19 of sponsorship under Subsection (a)(4) of this section, including
19-20 waiver of the requirement in the event of a hardship. <Any
19-21 applicant who holds a license as a Vocational Nurse or Practical
19-22 Nurse issued by the District of Columbia or another state whose
19-23 requirements are equal to those of Texas, and whose individual
19-24 qualifications shall be equivalent to those required by this law,
19-25 may be granted a license to practice nursing as a Licensed
19-26 Vocational Nurse in this State without examination provided the
19-27 required fee is paid to the Board by such applicant.>
20-1 SECTION 5. Sections 8(a), (b), and (c), Chapter 118, Acts of
20-2 the 52nd Legislature, Regular Session, 1951 (Article 4528c,
20-3 Vernon's Texas Civil Statutes), are amended to read as follows:
20-4 (a) The Board <board> by rule shall adopt a system under
20-5 which licenses expire on various dates during the year <every two
20-6 years>. <For the year in which the expiration date is changed,
20-7 license fees payable on September 1 shall be prorated on a monthly
20-8 basis so that each licensee shall pay only that portion of the
20-9 license fee which is allocable to the number of months during which
20-10 the license is valid. On renewal of the license on the new
20-11 expiration date, the total license renewal fee is payable.>
20-12 (b) At <The Board shall notify each licensee about the
20-13 expiration date of the person's license at> least 30 days before
20-14 the expiration of a person's license, the Board <date. The Board
20-15 by United States mail> shall send written notice of the impending
20-16 license expiration to the person, at the person's last known
20-17 address according to the Board's records <with the notice an
20-18 application for license renewal to the licensee's address contained
20-19 in the Board's records. A licensee whose completed application for
20-20 renewal is received by the Board after the expiration date of the
20-21 license shall be charged a late fee>.
20-22 (c) If a person's license has been expired for <not more
20-23 than> 90 days or less, the person may renew the license by paying
20-24 to the Board the required renewal fee and a fee that is one-half
20-25 the examination fee for the license. If a person's license has
20-26 been expired for more than 90 days but less than one year <two
20-27 years>, the person may renew the license by paying to the Board all
21-1 unpaid renewal fees and a fee that is equal to the examination fee
21-2 for the license. The Board by rule shall set a length of time
21-3 beyond which an expired license may not be renewed. The Board by
21-4 rule may establish additional requirements that apply to the
21-5 renewal of a license that has been expired for more than one year
21-6 but less than the period set by the Board beyond which a license
21-7 may not be renewed <If a person's license has been expired for two
21-8 years or more, the person may renew the license by complying with
21-9 the requirements set forth in substantive rules adopted by the
21-10 Board>. The person may obtain a new license by submitting to
21-11 reexamination and complying with the requirements and procedures
21-12 for obtaining an original license. However, the Board may renew
21-13 without examination an expired license of a person who was licensed
21-14 in this state, moved to another state, and is currently licensed
21-15 and has been in practice in the other state for the two years
21-16 preceding application. The person must pay to the Board a fee that
21-17 is equal to the examination fee for the license.
21-18 SECTION 6. Chapter 118, Acts of the 52nd Legislature,
21-19 Regular Session, 1951 (Article 4528c, Vernon's Texas Civil
21-20 Statutes), is amended by adding Section 8A to read as follows:
21-21 Sec. 8A. MANDATORY CONTINUING EDUCATION REQUIREMENTS.
21-22 (a) To renew a license, a licensee must demonstrate to the
21-23 satisfaction of the Board completion of the requirement for
21-24 continuing professional education.
21-25 (b) The Board shall adopt rules relating to the operation of
21-26 the mandatory continuing education programs. In establishing the
21-27 requirement for continuing education, the Board shall consider:
22-1 (1) factors that lead to the competent performance of
22-2 professional duties; and
22-3 (2) the continuing education needs of licensees.
22-4 (c) The Board shall adopt rules relating to the adoption or
22-5 approval of mandatory continuing education programs and providers
22-6 and shall adopt rules to evaluate the effectiveness of the programs
22-7 and a licensee's participation and performance in the programs.
22-8 SECTION 7. Section 9, Chapter 118, Acts of the 52nd
22-9 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
22-10 Civil Statutes), is amended to read as follows:
22-11 Sec. 9. Fees. <(a)> The Board by rule shall establish
22-12 reasonable and necessary fees so that the fees, in the aggregate,
22-13 produce sufficient revenue to cover the cost of administering this
22-14 Act. The fees set by the Board may be adjusted so that the total
22-15 fees collected shall be sufficient to meet the expenses of
22-16 administering this Act. The Board may not set a fee for an amount
22-17 less than the amount of that fee on September 1, 1993 <for the
22-18 administration of this Act in amounts not to exceed:>
22-19 <(1) examination and application fee: $40;>
22-20 <(2) reexamination fee: $40;>
22-21 <(3) renewal fee: $20;>
22-22 <(4) endorsement fee: $40;>
22-23 <(5) accreditation of new programs fee: $75;>
22-24 <(6) duplicate temporary permit or license fee: $10;>
22-25 <(7) filing of affidavits in rechange of name fee:
22-26 $10;>
22-27 <(8) endorsement to another state fee: $40; and>
23-1 <(9) reactivating from inactive status fee: $30>.
23-2 The Board shall not maintain unnecessary fund balances, and fee
23-3 amounts shall be set in accordance with this requirement.
23-4 (b) All expenses under this Act shall be paid from fees
23-5 collected by the Board under this Act, and no expense incurred
23-6 under this Act shall ever be charged against the funds of the State
23-7 of Texas.
23-8 (c) On or before January 1 of each year, the Board shall
23-9 make in writing to the Governor and the presiding officer of each
23-10 house of the legislature a complete and detailed report accounting
23-11 for all funds received and disbursed by the Board during the
23-12 preceding year. The annual report must be in the form and reported
23-13 in the time provided by the General Appropriations Act.
23-14 SECTION 8. Chapter 118, Acts of the 52nd Legislature,
23-15 Regular Session, 1951 (Article 4528c, Vernon's Texas Civil
23-16 Statutes), is amended by adding Sections 10A-10F to read as
23-17 follows:
23-18 Sec. 10A. RECORDS OF COMPLAINTS. (a) The Board shall keep
23-19 an information file about each complaint filed with the Board. The
23-20 Board's information file shall be kept current and contain a record
23-21 for each complaint of:
23-22 (1) all persons contacted in relation to the
23-23 complaint;
23-24 (2) a summary of findings made at each step of the
23-25 complaint process;
23-26 (3) an explanation of the legal basis and reason for a
23-27 complaint that is dismissed; and
24-1 (4) other relevant information.
24-2 (b) If a written complaint is filed with the Board that the
24-3 Board has authority to resolve, the Board, at least as frequently
24-4 as quarterly and until final disposition of the complaint, shall
24-5 notify the parties to the complaint of the status of the complaint
24-6 unless the notice would jeopardize an undercover investigation.
24-7 (c) The Board by rule shall adopt a form to standardize
24-8 information concerning complaints made to the Board. The Board by
24-9 rule shall prescribe information to be provided to a person when
24-10 the person files a complaint with the Board.
24-11 (d) The Board shall provide reasonable assistance to a
24-12 person who wishes to file a complaint with the Board.
24-13 Sec. 10B. COMPLAINT INVESTIGATION AND DISPOSITION. (a) The
24-14 Board shall adopt rules concerning the investigation of a complaint
24-15 filed with the Board. The rules adopted under this subsection
24-16 shall:
24-17 (1) distinguish between categories of complaints;
24-18 (2) ensure that complaints are not dismissed without
24-19 appropriate consideration;
24-20 (3) require that the Board be advised of a complaint
24-21 that is dismissed and that a letter be sent to the person who filed
24-22 the complaint explaining the action taken on the dismissed
24-23 complaint;
24-24 (4) ensure that the person who filed the complaint has
24-25 an opportunity to explain the allegations made in the complaint;
24-26 and
24-27 (5) prescribe guidelines concerning the categories of
25-1 complaints that require the use of a private investigator and the
25-2 procedures for the Board to obtain the services of a private
25-3 investigator.
25-4 (b) The Board shall dispose of all complaints in a timely
25-5 manner. The Board shall establish a timeline for conducting each
25-6 phase of a complaint that is under the control of the Board not
25-7 later than the 30th day after the date the complaint is received by
25-8 the Board. The timeline shall be kept in the information file for
25-9 the complaint and all parties shall be notified of the projected
25-10 time requirements for pursuing the complaint. A change in the
25-11 timeline must be noted in the complaint information file and all
25-12 parties to the complaint must be notified not later than the
25-13 seventh day after the date the change is made.
25-14 (c) The executive director shall notify the Board of a
25-15 complaint that extends beyond the time prescribed by the Board for
25-16 resolving the complaint so that the Board may take necessary action
25-17 on the complaint.
25-18 Sec. 10C. INFORMAL PROCEEDINGS. (a) The Board by rule
25-19 shall adopt procedures governing:
25-20 (1) informal disposition of a contested case under
25-21 Section 13(e), Administrative Procedure and Texas Register Act
25-22 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
25-23 subsequent amendments; and
25-24 (2) informal proceedings held in compliance with
25-25 Section 18(c), Administrative Procedure and Texas Register Act
25-26 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
25-27 subsequent amendments.
26-1 (b) Rules adopted under this section must provide the
26-2 complainant and the licensee an opportunity to be heard and must
26-3 require the presence of a representative of the Board's legal staff
26-4 or of the office of the attorney general to advise the Board or the
26-5 Board's employees.
26-6 Sec. 10D. MONITORING OF LICENSEE. The Board by rule shall
26-7 develop a system for monitoring licensees' compliance with the
26-8 requirements of this Act. Rules adopted under this section shall
26-9 include procedures for monitoring a licensee who is ordered by the
26-10 Board to perform certain acts to ascertain that the licensee
26-11 performs the required acts and to identify and monitor licensees
26-12 who represent a risk to the public.
26-13 Sec. 10E. ADMINISTRATIVE PENALTIES. (a) The Board may
26-14 impose an administrative penalty against a person licensed or
26-15 regulated under this Act who violates this Act or a rule or order
26-16 adopted under this Act.
26-17 (b) The penalty for each violation may be in an amount not
26-18 to exceed $1,000. Each day a violation continues or occurs is a
26-19 separate violation for purposes of imposing a penalty.
26-20 (c) The amount of the penalty shall be based on:
26-21 (1) the seriousness of the violation, including the
26-22 nature, circumstances, extent, and gravity of any prohibited acts,
26-23 and the hazard or potential hazard created to the health, safety,
26-24 or economic welfare of the public;
26-25 (2) the economic harm to property or the environment
26-26 caused by the violation;
26-27 (3) the history of previous violations;
27-1 (4) the amount necessary to deter future violations;
27-2 (5) efforts to correct the violation; and
27-3 (6) any other matter that justice may require.
27-4 (d) If the executive director determines that a violation
27-5 has occurred, the executive director may issue to the Board a
27-6 report that states the facts on which the determination is based
27-7 and the executive director's recommendation on the imposition of a
27-8 penalty, including a recommendation on the amount of the penalty.
27-9 (e) Within 14 days after the date the report is issued, the
27-10 executive director shall give written notice of the report to the
27-11 person. The notice may be given by certified mail. The notice
27-12 must include a brief summary of the alleged violation and a
27-13 statement of the amount of the recommended penalty and must inform
27-14 the person that the person has a right to a hearing on the
27-15 occurrence of the violation, the amount of the penalty, or both the
27-16 occurrence of the violation and the amount of the penalty.
27-17 (f) Within 20 days after the date the person receives the
27-18 notice, the person in writing may accept the determination and
27-19 recommended penalty of the executive director or may make a written
27-20 request for a hearing on the occurrence of the violation, the
27-21 amount of the penalty, or both the occurrence of the violation and
27-22 the amount of the penalty.
27-23 (g) If the person accepts the determination and recommended
27-24 penalty of the executive director, the Board by order shall approve
27-25 the determination and impose the recommended penalty.
27-26 (h) If the person requests a hearing or fails to respond
27-27 timely to the notice, the executive director shall set a hearing
28-1 and give notice of the hearing to the person. The hearing shall be
28-2 held by an administrative law judge of the State Office of
28-3 Administrative Hearings. The administrative law judge shall make
28-4 findings of fact and conclusions of law. The administrative law
28-5 judge shall promptly issue to the Board a proposal for a decision
28-6 about the occurrence of the violation and the amount of a proposed
28-7 penalty. Based on the findings of fact, conclusions of law, and
28-8 proposal for a decision, the Board by order may find that a
28-9 violation has occurred and impose a penalty or may find that no
28-10 violation occurred.
28-11 (i) The notice of the Board's order given to the person
28-12 under the Administrative Procedure and Texas Register Act (Article
28-13 6252-13a, Vernon's Texas Civil Statutes) and its subsequent
28-14 amendments must include a statement of the right of the person to
28-15 judicial review of the order.
28-16 (j) Within 30 days after the date the Board's order is final
28-17 as provided by Section 16(c), Administrative Procedure and Texas
28-18 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), the
28-19 person shall:
28-20 (1) pay the amount of the penalty;
28-21 (2) pay the amount of the penalty and file a petition
28-22 for judicial review contesting the occurrence of the violation, the
28-23 amount of the penalty, or both the occurrence of the violation and
28-24 the amount of the penalty; or
28-25 (3) without paying the amount of the penalty, file a
28-26 petition for judicial review contesting the occurrence of the
28-27 violation, the amount of the penalty, or both the occurrence of the
29-1 violation and the amount of the penalty.
29-2 (k) Within the 30-day period, a person who acts under
29-3 Subsection (j)(3) of this section may:
29-4 (1) stay enforcement of the penalty by:
29-5 (A) paying the amount of the penalty to the
29-6 court for placement in an escrow account; or
29-7 (B) giving to the court a supersedeas bond
29-8 approved by the court for the amount of the penalty and that is
29-9 effective until all judicial review of the Board's order is final;
29-10 or
29-11 (2) request the court to stay enforcement of the
29-12 penalty by:
29-13 (A) filing with the court a sworn affidavit of
29-14 the person stating that the person is financially unable to pay the
29-15 amount of the penalty and is financially unable to give the
29-16 supersedeas bond; and
29-17 (B) giving a copy of the affidavit to the
29-18 executive director by certified mail.
29-19 (l) An executive director who receives a copy of an
29-20 affidavit under Subsection (k)(2) of this section may file with the
29-21 court, within five days after the date the copy is received, a
29-22 contest to the affidavit. The court shall hold a hearing on the
29-23 facts alleged in the affidavit as soon as practicable and shall
29-24 stay the enforcement of the penalty on finding that the alleged
29-25 facts are true. The person who files an affidavit has the burden
29-26 of proving that the person is financially unable to pay the amount
29-27 of the penalty and to give a supersedeas bond.
30-1 (m) If the person does not pay the amount of the penalty and
30-2 the enforcement of the penalty is not stayed, the executive
30-3 director may refer the matter to the attorney general for
30-4 collection of the amount of the penalty.
30-5 (n) Judicial review of the order of the Board:
30-6 (1) is instituted by filing a petition as provided by
30-7 Section 19, Administrative Procedure and Texas Register Act
30-8 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
30-9 subsequent amendments; and
30-10 (2) is under the substantial evidence rule.
30-11 (o) If the court sustains the occurrence of the violation,
30-12 the court may uphold or reduce the amount of the penalty and order
30-13 the person to pay the full or reduced amount of the penalty. If
30-14 the court does not sustain the occurrence of the violation, the
30-15 court shall order that no penalty is owed.
30-16 (p) When the judgment of the court becomes final, the court
30-17 shall proceed under this subsection. If the person paid the amount
30-18 of the penalty and if that amount is reduced or is not upheld by
30-19 the court, the court shall order that the appropriate amount plus
30-20 accrued interest be remitted to the person. The rate of the
30-21 interest is the rate charged on loans to depository institutions by
30-22 the New York Federal Reserve Bank, and the interest shall be paid
30-23 for the period beginning on the date the penalty was paid and
30-24 ending on the date the penalty is remitted. If the person gave a
30-25 supersedeas bond and if the amount of the penalty is not upheld by
30-26 the court, the court shall order the release of the bond. If the
30-27 person gave a supersedeas bond and if the amount of the penalty is
31-1 reduced, the court shall order the release of the bond after the
31-2 person pays the amount.
31-3 (q) A penalty collected under this section shall be remitted
31-4 to the comptroller for deposit in the general revenue fund.
31-5 (r) All proceedings under this section are subject to the
31-6 Administrative Procedure and Texas Register Act (Article 6252-13a,
31-7 Vernon's Texas Civil Statutes) and its subsequent amendments.
31-8 Sec. 10F. SCHEDULE OF SANCTIONS. The schedule of sanctions
31-9 adopted by the Board by rule shall be used by the State Office of
31-10 Administrative Hearings for any sanction imposed as the result of a
31-11 hearing conducted by that office.
31-12 SECTION 9. Section 11, Chapter 118, Acts of the 52nd
31-13 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
31-14 Civil Statutes), is amended by adding Subsection (c) to read as
31-15 follows:
31-16 (c) A person who violates this Act is liable to the state
31-17 for a civil penalty that does not exceed $1,000 a day. The civil
31-18 penalty may be collected in a suit initiated by the Board.
31-19 SECTION 10. (a) The changes in law made by this Act in the
31-20 qualifications of members of the Board of Vocational Nurse
31-21 Examiners do not affect the entitlement of a member appointed
31-22 before September 1, 1993, to continue to hold office for the term
31-23 for which the member was appointed. The changes in the
31-24 qualifications apply only to a member appointed on or after
31-25 September 1, 1993.
31-26 (b) As soon as possible on or after September 1, 1993, the
31-27 governor shall appoint three additional public members to the Board
32-1 of Vocational Nurse Examiners. In making the initial appointments
32-2 of the new members, the governor shall designate one for a term
32-3 expiring on the regular expiration date of board members in 1995,
32-4 one for a term expiring on the regular expiration date of board
32-5 members in 1997, and one for a term expiring on the regular
32-6 expiration date of board members in 1999.
32-7 SECTION 11. This Act takes effect September 1, 1993.
32-8 SECTION 12. The importance of this legislation and the
32-9 crowded condition of the calendars in both houses create an
32-10 emergency and an imperative public necessity that the
32-11 constitutional rule requiring bills to be read on three several
32-12 days in each house be suspended, and this rule is hereby suspended.