By: Moncrief S.B. No. 839
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the regulation of the practice of vocational nursing
1-2 and to the continuation of the Board of Vocational Nurse Examiners;
1-3 providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subsection (b), Section 1, Chapter 118, Acts of
1-6 the 52nd Legislature, 1951 (Article 4528c, Vernon's Texas Civil
1-7 Statutes), are amended to read as follows:
1-8 (b) "Licensed Vocational Nurse" means a person who is
1-9 licensed under this Act by the Board of Vocational Nurse Examiners.
1-10 SECTION 2. Section 5, Chapter 118, Acts of the 52nd
1-11 Legislature, 1951 (Article 4528c, Vernon's Texas Civil Statutes),
1-12 is amended to read as follows:
1-13 Sec. 5. TERM OF OFFICE, ORGANIZATION, MEETINGS OF BOARD<;
1-14 CONTINUING EDUCATION>. (a) There is hereby created a board to be
1-15 known as the Board of Vocational Nurse Examiners, consisting of
1-16 fifteen (15) <twelve (12)> members to be appointed by the Governor
1-17 and confirmed by the State Senate. Appointments to the Board shall
1-18 be made without regard to the race, creed, sex, religion, or
1-19 national origin of the appointees.
1-20 Seven (7) members of the Board must be Licensed Vocational
1-21 Nurses who are graduates of approved schools of vocational nursing,
1-22 who have been actively engaged in the practice of vocational
1-23 nursing for five (5) years immediately preceding their
1-24 appointments, and who are not licensed physicians, registered
2-1 professional nurses, or hospital administrators.
2-2 One (1) member of the Board must be a Registered Nurse
2-3 licensed by the Board of Nurse Examiners who is actively engaged in
2-4 a teaching, administrative, or supervisory capacity in a vocational
2-5 nursing educational program and who is not a licensed physician,
2-6 hospital administrator, or licensed vocational nurse.
2-7 One (1) member of the Board must be a physician licensed by
2-8 the Texas State Board of Medical Examiners who has been actively
2-9 engaged in the practice of medicine for five (5) years immediately
2-10 preceding appointment and who is not a hospital administrator,
2-11 registered professional nurse, or licensed vocational nurse.
2-12 One (1) member of the Board must be a hospital administrator
2-13 who has been actively engaged in hospital administration for a
2-14 period of five (5) years and who is not a licensed physician,
2-15 registered professional nurse, or licensed vocational nurse.
2-16 Five (5) <Two (2)> members of the Board must be
2-17 representatives of the general public. A person is not eligible
2-18 for appointment as a public member of the Board if the person or
2-19 the person's spouse:
2-20 (1) is registered, certified, or licensed by an
2-21 occupational regulatory agency in the field of health care;
2-22 (2) is employed by or participates in the management
2-23 of a business entity or other organization regulated by the Board
2-24 or receiving funds from the Board;
2-25 (3) owns or controls, directly or indirectly, more
2-26 than a 10 percent interest in a business entity or other
2-27 organization regulated by the Board or receiving funds from the
3-1 Board; or
3-2 (4) uses or receives a substantial amount of tangible
3-3 goods, services, or funds from the Board, other than compensation
3-4 or reimbursement authorized by law for Board membership,
3-5 attendance, or expenses <if the person or the person's spouse is
3-6 licensed by an occupational regulatory agency in the field of
3-7 health care or is employed by, participates in the management of,
3-8 or has, other than as a consumer, a financial interest in a
3-9 business entity or other organization that provides health-care
3-10 services or that sells, manufactures, or distributes health-care
3-11 supplies or equipment>.
3-12 (b) The term of office of each member of the Board shall be
3-13 six (6) years. A member may not immediately succeed the member's
3-14 term <himself (or herself)> in office. In case of death,
3-15 resignation or vacancy from any cause on the Board, the vacancy of
3-16 the unexpired term shall be filled by the Governor within sixty
3-17 (60) days after the occurrence of such vacancy.
3-18 Each appointee to the Board <of Vocational Nurse Examiners>
3-19 shall, within fifteen (15) days of the date of his appointment,
3-20 qualify by taking the constitutional oath of office.
3-21 (c)(1) An officer, employee, or paid consultant of a Texas
3-22 trade association in the field of health care may not be a Board
3-23 member.
3-24 (2) A person who is the spouse of an officer, manager,
3-25 or paid consultant of a Texas trade association in the field of
3-26 health care may not be a Board member.
3-27 (3) For the purposes of this section, a Texas trade
4-1 association is a nonprofit, cooperative, and voluntarily joined
4-2 association of business or professional competitors in this state
4-3 designed to assist its members and its industry or profession in
4-4 dealing with mutual business or professional problems and in
4-5 promoting their common interest. <A member or employee of the
4-6 Board may not be an officer, employee, or paid consultant of a
4-7 national or state trade association in the vocational nursing
4-8 field.>
4-9 (d) A person may not serve as a Board member if the person
4-10 is required to register as a lobbyist under Chapter 305, Government
4-11 Code, and its subsequent amendments, because of the person's
4-12 activities for compensation on behalf of a profession related to
4-13 the operation of the Board. <member or employee of the Board may
4-14 not be related within the second degree by affinity or
4-15 consanguinity, as determined under Article 5996h, Revised Statutes,
4-16 to a person who is an officer, employee, or paid consultant of a
4-17 national or state trade association in the vocational nursing
4-18 field.>
4-19 (e)(1) It is a ground for removal from the Board if a
4-20 member:
4-21 (A) <(1)> does not have at the time of
4-22 appointment the qualifications required by Subsection (a) of this
4-23 section <for appointment to the Board>;
4-24 (B) <(2)> does not maintain during <his> service
4-25 on the Board the qualifications required by Subsection (a) of this
4-26 section <for appointment to the Board>;
4-27 (C) <(3)> violates a prohibition established
5-1 <prescribed> by Subsections <Subsection> (c) and <or> (d) of this
5-2 section;
5-3 (D) cannot discharge the member's duties for a
5-4 substantial part of the term for which the member is appointed
5-5 because of illness or disability; or
5-6 (E) is absent from more than half of the
5-7 regularly scheduled Board meetings that the member is eligible to
5-8 attend during a calendar year unless the absence is excused by
5-9 majority vote of the Board.
5-10 (2) The validity of an action of the Board is not
5-11 affected by the fact that it is taken when a ground for removal of
5-12 a Board member exists.
5-13 (3) If the executive director has knowledge that a
5-14 potential ground for removal exists, the executive director shall
5-15 notify the presiding officer of the Board of the ground. The
5-16 presiding officer shall then notify the governor that a potential
5-17 ground for removal exists.
5-18 <(4) fails to attend at least half of the regularly
5-19 scheduled Board meetings held in a calendar year, excluding
5-20 meetings held while the person was not a Board member.>
5-21 (f) The governor shall designate from the members of the
5-22 Board the President of the Board. The person designated as
5-23 President serves in that capacity at the will of the governor.
5-24 <validity of an action of the Board is not affected by the fact
5-25 that it was taken when a ground for removal of a member of the
5-26 Board existed.>
5-27 <(g)> The Board shall elect a <President,> Vice-president<,>
6-1 and Secretary-treasurer yearly at an annual meeting. The Board may
6-2 make such rules and regulations as may be necessary to govern its
6-3 proceedings and to carry in effect the purposes of this law. The
6-4 Secretary-treasurer shall be required to keep minutes of each
6-5 meeting of said Board, a register of the names of all nurses
6-6 licensed under this law, and books of account of fees received and
6-7 disbursements; and all minutes, the register of Licensed Vocational
6-8 Nurses and books of account shall be at all times open to public
6-9 inspection. The financial transactions of this Board are subject
6-10 to audit by the state auditor in accordance with Chapter 321,
6-11 Government Code. The Board shall employ a person other than a
6-12 member of the Board as the executive director of the Board. The
6-13 executive director shall perform the administrative functions of
6-14 the Board. The Board shall employ other persons that it considers
6-15 necessary in carrying out the provisions of this law. The
6-16 Secretary-treasurer shall be bonded by the Board in such amount as
6-17 may be recommended by the State Auditor.
6-18 (g) <(h) The executive director or his designee shall
6-19 develop a system of annual performance evaluations based on
6-20 measurable job tasks. All merit pay authorized by the executive
6-21 director must be based on the system established under this
6-22 subsection.>
6-23 <(i)> The Board shall employ a full-time Director of
6-24 Education, who shall have had at least five (5) years experience in
6-25 teaching nursing in an accredited school of nursing or an approved
6-26 program in vocational nursing. The Board may select either a
6-27 Licensed Vocational Nurse or a Registered Nurse as the Director of
7-1 Education. The duties of the Director of Education shall be to
7-2 visit and inspect all schools of vocational nursing to determine
7-3 whether the Board's minimum requirements for vocational nursing
7-4 programs are being met. The Board shall prescribe such methods and
7-5 rules of visiting, and such methods of reporting by the Board
7-6 <Director of Education> as may in its judgment be deemed proper.
7-7 (h) <(j)> Regular meetings of the Board shall be held at
7-8 least twice a year, one of which shall be designated as an Annual
7-9 Meeting for election of officers and the reading of auditors'
7-10 reports. At least twice each year the Board shall hold
7-11 examinations in various cities in the state for qualified
7-12 applicants for licensure. Examinations may be held under the
7-13 supervision of a Board member or such other person as the Board may
7-14 specify. Not less than sixty (60) days notice of the holding of
7-15 the examination shall be given by publication in at least three (3)
7-16 daily newspapers of general circulation, to be selected by the
7-17 Board; special meetings shall be held upon request of five (5)
7-18 <four (4)> members of the Board or upon the call of the president;
7-19 eight (8) <six (6)> members of the Board shall constitute a quorum
7-20 for the transaction of business, and should a quorum not be present
7-21 on the day appointed for any meeting, those persons present may
7-22 adjourn from day to day until a quorum shall be present, providing
7-23 that such period shall not be longer than three (3) successive
7-24 days; each member of said Board is entitled to a per diem set by
7-25 legislative appropriation for each day that the member engages in
7-26 the business of the Board. A member may not receive any
7-27 compensation for travel expenses, including expenses for meals and
8-1 lodging, other than transportation expenses. A member is entitled
8-2 to compensation for transportation expenses as provided by the
8-3 General Appropriations Act.
8-4 (i) <(k)> The Board may not adopt rules restricting
8-5 competitive bidding or advertising by a licensee of the Board
8-6 except to prohibit false, misleading, or deceptive practices by the
8-7 licensee. The Board may not include in its rules to prohibit
8-8 false, misleading, or deceptive practices by a licensee a rule
8-9 that:
8-10 (1) restricts the licensee's use of any medium for
8-11 advertising;
8-12 (2) restricts the licensee's personal appearance or
8-13 use of the person's <his> voice in an advertisement;
8-14 (3) relates to the size or duration of an
8-15 advertisement by the licensee; or
8-16 (4) restricts the licensee's advertisement under a
8-17 trade name.
8-18 (j) <(l)(1) The Board may recognize, prepare, or implement
8-19 continuing education programs for licensees and may require
8-20 participation in continuing education programs as a condition of
8-21 renewal of a license.>
8-22 <(2) The Board may not require more than a total of 20
8-23 hours of continuing education in a two-year license period and may
8-24 not require that more than 10 of those hours consist of classroom
8-25 instruction in approved programs. The remaining 10 hours may
8-26 consist of any combination of classroom instruction,
8-27 institutional-based instruction, or individualized study.>
9-1 <(3) If the Board requires participation in continuing
9-2 education programs as a condition of renewal of a license, the
9-3 Board shall by rule establish a system for the approval of programs
9-4 and providers of continuing education. In adopting the rules, the
9-5 board shall consider but is not obligated to approve programs or
9-6 providers approved or accredited through continuing education
9-7 accreditation systems established by national or state associations
9-8 of licensed vocational nurses and nurse in-service programs offered
9-9 by hospitals accredited by the Joint Commission on Accreditation of
9-10 Healthcare Organizations, certified by Medicare, or maintained or
9-11 operated by the federal government or the State of Texas. The
9-12 Board may assess programs and providers a fee in an amount
9-13 reasonable and necessary to defray the costs incurred in approving
9-14 providers and programs. The fee collected under this subsection
9-15 shall be deposited in the Vocational Nurse Examiners Fund.>
9-16 <(4) The Board may adopt other rules as necessary to
9-17 implement this section.>
9-18 <(m)> The Board shall prepare information of consumer
9-19 interest describing the regulatory functions of the Board and the
9-20 Board's procedures by which consumer complaints are filed with and
9-21 resolved by the Board. The Board shall make the information
9-22 available to the general public and appropriate state agencies.
9-23 (k) <(n)> The Board shall enforce this Act. The Board may
9-24 retain outside legal counsel to represent the Board. However,
9-25 before the Board may retain outside counsel, the Board shall
9-26 request the attorney general to perform the necessary services and
9-27 may retain the outside counsel only if the attorney general
10-1 certifies to the Board that the services cannot be performed.
10-2 (l) <(o) A person who is required to register as a lobbyist
10-3 under Chapter 305, Government Code, may not serve as a member of
10-4 the Board or act as the general counsel to the Board.>
10-5 <(p)> The Board of Vocational Nurse Examiners is subject to
10-6 Chapter 325, Government Code (Texas Sunset Act). Unless continued
10-7 in existence as provided by that chapter, the board is abolished
10-8 and this Act expires September 1, 2005 <1993>.
10-9 (m) <(q)> The Board is subject to the open meetings law,
10-10 Chapter 271, Acts of the 60th Legislature, Regular Session, 1967,
10-11 as amended (Article 6252-17, Vernon's Texas Civil Statutes), and
10-12 the Administrative Procedure and Texas Register Act, as amended
10-13 (Article 6252-13a, Vernon's Texas Civil Statutes).
10-14 (n) <(r)> If the appropriate standing committees of both
10-15 houses of the legislature acting under Subsection (g), Section 5,
10-16 Administrative Procedure and Texas Register Act, as amended
10-17 (Article 6252-13a, Vernon's Texas Civil Statutes), transmit to the
10-18 Board statements opposing adoption of a rule under that section,
10-19 the rule may not take effect, or if the rule has already taken
10-20 effect, the rule is repealed effective on the date the Board
10-21 receives the committee's statements.
10-22 (o)(1) The executive director or the executive director's
10-23 designee shall develop an intraagency career ladder program. The
10-24 program shall require intraagency posting of all non-entry-level
10-25 positions concurrently with any public posting.
10-26 (2) The executive director or the executive director's
10-27 designee shall develop a system of annual performance evaluations
11-1 based on measurable job tasks. All merit pay for Board employees
11-2 must be based on the system established under this subsection.
11-3 (p)(1) The executive director or the executive director's
11-4 designee shall prepare and maintain a written policy statement to
11-5 assure implementation of a program of equal employment opportunity
11-6 under which all personnel transactions are made without regard to
11-7 race, color, disability, sex, religion, age, or national origin.
11-8 The policy statement must include:
11-9 (A) personnel policies, including policies
11-10 relating to recruitment, evaluation, selection, application,
11-11 training, and promotion of personnel that are in compliance with
11-12 the Commission on Human Rights Act (Article 5221k, Vernon's Texas
11-13 Civil Statutes), and its subsequent amendments;
11-14 (B) a comprehensive analysis of the Board work
11-15 force that meets federal and state guidelines;
11-16 (C) procedures by which a determination can be
11-17 made of significant underutilization in the Board work force of all
11-18 persons for whom federal or state guidelines encourage a more
11-19 equitable balance; and
11-20 (D) reasonable methods to appropriately address
11-21 those areas of underutilization.
11-22 (2) A policy statement prepared under Subdivision (1)
11-23 of this subsection must cover an annual period, be updated
11-24 annually, be reviewed by the Commission on Human Rights for
11-25 compliance with Subdivision (1)(A) of this subsection, and be filed
11-26 with the governor's office.
11-27 (3) The governor's office shall deliver a biennial
12-1 report to the legislature based on the information received under
12-2 Subdivision (2) of this subsection. The report may be made
12-3 separately or as part of other biennial reports to the legislature.
12-4 (q)(1) The Board shall prepare information of public
12-5 interest describing the functions of the Board and the Board's
12-6 procedures by which complaints are filed with and resolved by the
12-7 Board. The Board shall make the information available to the
12-8 public and appropriate state agencies.
12-9 (2) The Board by rule shall establish methods by which
12-10 consumers and service recipients are notified of the name, mailing
12-11 address, and telephone number of the Board for the purpose of
12-12 directing complaints to the Board. The Board may provide for that
12-13 notification:
12-14 (A) on each registration form, application, or
12-15 written contract for services of an individual or entity regulated
12-16 by the Board;
12-17 (B) on a sign prominently displayed in the place
12-18 of business of each individual or entity regulated by the Board; or
12-19 (C) in a bill for service provided by an
12-20 individual or entity regulated by the Board.
12-21 (3) The Board shall list along with its regular
12-22 telephone number the toll-free telephone number that may be called
12-23 to present a complaint about a health professional if the toll-free
12-24 number is established under other state law.
12-25 (r) The Board shall develop and implement policies that
12-26 provide the public with a reasonable opportunity to appear before
12-27 the Board and to speak on any issue under the jurisdiction of the
13-1 Board.
13-2 (s) The Board shall prepare and maintain a written plan that
13-3 describes how a person who does not speak English can be provided
13-4 reasonable access to the Board's programs. The Board shall also
13-5 comply with federal and state laws for program and facility
13-6 accessibility.
13-7 (t)(1) The Board shall establish a training program for the
13-8 members of the Board.
13-9 (2) Before a member of the Board may assume the
13-10 member's duties and before the member may be confirmed by the
13-11 senate, the member must complete at least one course of the
13-12 training program established under this subsection.
13-13 (3) A training program established under this
13-14 subsection shall provide information to a participant regarding:
13-15 (A) the enabling legislation that created the
13-16 Board;
13-17 (B) the programs operated by the Board;
13-18 (C) the role and functions of the Board;
13-19 (D) the rules of the Board with an emphasis on
13-20 the rules that relate to disciplinary and investigatory authority;
13-21 (E) the current budget for the Board;
13-22 (F) the results of the most recent formal audit
13-23 of the Board;
13-24 (G) the requirements of the:
13-25 (i) open meetings law, Chapter 271, Acts
13-26 of the 60th Legislature, Regular Session, 1967 (Article 6252-17,
13-27 Vernon's Texas Civil Statutes), and its subsequent amendments;
14-1 (ii) open records law, Chapter 424, Acts
14-2 of the 63rd Legislature, Regular Session, 1973 (Article 6252-17a,
14-3 Vernon's Texas Civil Statutes), and its subsequent amendments; and
14-4 (iii) Administrative Procedure and Texas
14-5 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes) and
14-6 its subsequent amendments;
14-7 (H) the requirements of the conflict of interest
14-8 laws and other laws relating to public officials; and
14-9 (I) any applicable ethics policies adopted by
14-10 the Board or the Texas Ethics Commission.
14-11 (4) In developing the training requirements provided
14-12 for in this subsection, the Board shall consult with the governor's
14-13 office, the attorney general's office, and the Texas Ethics
14-14 Commission.
14-15 (5) In the event that another state agency or entity
14-16 is given the authority to establish the training requirements, the
14-17 Board shall allow that training in lieu of developing its own
14-18 program.
14-19 (u) The Board shall provide to its members and employees, as
14-20 often as necessary, information regarding their qualifications for
14-21 office or employment under this article and their responsibilities
14-22 under applicable laws relating to standards of conduct for state
14-23 officers or employees.
14-24 (v) The Board may enter interagency contracts for any
14-25 purpose authorized by law.
14-26 SECTION 3. Section 6, Chapter 118, Acts of the 52nd
14-27 Legislature, 1951 (Article 4528c, Vernon's Texas Civil Statutes),
15-1 is amended to read as follows:
15-2 Sec. 6. Examination and Licenses. (a) Except as provided
15-3 in Section 7 of this Act, every person desiring to be licensed as a
15-4 Licensed Vocational Nurse or use the abbreviation L.V.N. in the
15-5 State of Texas, shall be required to pass the examination approved
15-6 <given> by the Board of Vocational Nurse Examiners <or its
15-7 delegate>. The applicant shall make application by presenting to
15-8 <the secretary of> the Board, on forms furnished by the Board,
15-9 satisfactory sworn evidence that the applicant has had at least two
15-10 (2) years of high school education or its equivalent and has
15-11 completed an approved course <of not less than twelve (12) months>
15-12 in an approved school for educating vocational nurses. An approved
15-13 school as used herein shall mean one approved by the Board.
15-14 Application for examination by the Board or its delegate shall be
15-15 made at least thirty (30) days prior to the date set for the
15-16 examination.
15-17 (b) The Board in its discretion may waive the requirement in
15-18 Subsection (a) of this section for completion of a course in an
15-19 approved school for educating vocational or practical nurses upon
15-20 presentation of satisfactory sworn evidence that the applicant has
15-21 completed an acceptable level <at least two (2) years> of education
15-22 in a nursing school approved by the State Board of Nurse Examiners
15-23 of Texas or in some other school of professional nurse education
15-24 located in another state, the District of Columbia, a possession of
15-25 the United States, or a foreign country. The Board by rule shall
15-26 determine acceptable levels of education. The Board shall have the
15-27 written portion of the examination, if any, validated by an
16-1 independent testing professional. If the applicant received
16-2 training in another state, the District of Columbia, a possession
16-3 of the United States, or a foreign country, the applicant must
16-4 present evidence satisfactory to the Board that the nursing
16-5 education received is equivalent to that required for licensure as
16-6 a vocational nurse in this state.
16-7 (c) Not later than the 30th day <Within 30 days> after the
16-8 date a licensing examination is administered under this Act, the
16-9 Board shall notify each examinee of the results of the examination.
16-10 However, if an examination is graded or reviewed by a national
16-11 testing service, the Board shall notify each examinee of the
16-12 results of the examination within two weeks after the date the
16-13 Board receives the results from the testing service. If the notice
16-14 of the examination results will be delayed for more than 90 days
16-15 after the examination date, the Board shall notify each examinee of
16-16 the reason for the delay before the 90th day. If requested in
16-17 writing by a person who fails the licensing examination
16-18 administered under this Act, the Board shall furnish the person
16-19 with an analysis of the person's performance on the examination or
16-20 other information which the Board has available to it after the
16-21 tests are scored.
16-22 (d) If an applicant has graduated from an approved
16-23 educational program in vocational nursing in this state, another
16-24 state, or the District of Columbia, or successfully completed two
16-25 years of an associate degree program or diploma program in
16-26 professional nursing education in this state, another state, or the
16-27 District of Columbia, the Board may issue to the applicant, pending
17-1 the results of the licensing examination, a temporary permit to
17-2 practice vocational nursing under the direct supervision of a
17-3 licensed vocational nurse, registered professional nurse, or
17-4 licensed physician. A permit issued to an applicant who fails the
17-5 examination expires on the date indicated on the permit. A permit
17-6 issued to an applicant who passes the examination expires on the
17-7 applicant's receipt of a license from the Board. A permit may not
17-8 be issued to an applicant who has previously failed an examination
17-9 administered by the Board or by another state. <The Board may
17-10 issue a temporary permit to practice vocational nursing to an
17-11 applicant who is a vocational or practical nurse who has graduated
17-12 from an approved program for educating vocational or practical
17-13 nurses, holds a license as a vocational or practical nurse from
17-14 another state, the District of Columbia, or a possession of the
17-15 United States, and has actually been engaged in the practice of
17-16 vocational or practical nursing within the past five years. Such
17-17 an applicant must practice under the direct supervision of a
17-18 licensed vocational nurse, registered professional nurse, or
17-19 licensed physician. A temporary permit issued to an applicant from
17-20 another state, the District of Columbia, or a possession of the
17-21 United States expires on receipt of a license from the Board or on
17-22 the expiration of 90 days, whichever occurs first. The Board may,
17-23 by mutual agreement, assign the function of physical distribution
17-24 of the temporary permits to an agent designated by the Board to act
17-25 on behalf of the Board.>
17-26 (e) Any nurse who is licensed under the provisions of this
17-27 Act, when on duty in a public or private hospital, nursing home, or
18-1 licensed health-care facility, shall wear <identifying> insignia
18-2 identifying the nurse as a licensed vocational nurse <on white caps
18-3 or uniforms>.
18-4 SECTION 4. Section 7, Chapter 118, Acts of the 52nd
18-5 Legislature, 1951 (Article 4528c, Vernon's Texas Civil Statutes),
18-6 is amended to read as follows:
18-7 Sec. 7. QUALIFICATION FOR LICENSING BY ENDORSEMENT. (a) To
18-8 qualify for a temporary license to practice as a licensed
18-9 vocational nurse by endorsement, an applicant for licensing must:
18-10 (1) submit to the Board an application fee as
18-11 determined by the Board and a completed application given under
18-12 oath, in the form prescribed by the Board;
18-13 (2) have possessed at the time of initial licensing as
18-14 a licensed vocational nurse the qualifications necessary to have
18-15 been eligible for licensing at that time in this state;
18-16 (3) have presented to the Board proof of initial
18-17 licensing by examination and proof that the license and other
18-18 license or licenses granted to the applicant by any other state
18-19 have not been suspended, revoked, canceled, surrendered, or
18-20 otherwise restricted for any reason; and
18-21 (4) submit to the Board a notice of sponsorship of the
18-22 applicant by the holder of a Texas health care professional license
18-23 under whom the applicant will practice.
18-24 (b) A holder of a temporary license under this section shall
18-25 receive a permanent license if the applicant:
18-26 (1) has verified the academic and professional
18-27 credentials of the applicant; and
19-1 (2) satisfies any other requirement set by statute.
19-2 (c) The Board shall either grant or deny an application for
19-3 a permanent license within 180 days after the date of the Board's
19-4 receipt of all required forms or information. The Board may extend
19-5 the 180-day deadline to allow for the receipt and tabulation of
19-6 pending examination results.
19-7 (d) The Board shall adopt rules relating to the conditions
19-8 of sponsorship under Subsection (a)(4) of this section, including
19-9 waiver of the requirement in the event of a hardship. <Any
19-10 applicant who holds a license as a Vocational Nurse or Practical
19-11 Nurse issued by the District of Columbia or another state whose
19-12 requirements are equal to those of Texas, and whose individual
19-13 qualifications shall be equivalent to those required by this law,
19-14 may be granted a license to practice nursing as a Licensed
19-15 Vocational Nurse in this State without examination provided the
19-16 required fee is paid to the Board by such applicant.>
19-17 SECTION 5. Subsections (a), (b), and (c), Section 8, Chapter
19-18 118, Acts of the 52nd Legislature, 1951 (Article 4528c, Vernon's
19-19 Texas Civil Statutes), are amended to read as follows:
19-20 (a) The Board <board> by rule shall adopt a system under
19-21 which licenses expire on various dates during the year <every two
19-22 years>. <For the year in which the expiration date is changed,
19-23 license fees payable on September 1 shall be prorated on a monthly
19-24 basis so that each licensee shall pay only that portion of the
19-25 license fee which is allocable to the number of months during which
19-26 the license is valid. On renewal of the license on the new
19-27 expiration date, the total license renewal fee is payable.>
20-1 (b) At <The Board shall notify each licensee about the
20-2 expiration date of the person's license at> least 30 days before
20-3 the expiration of a person's license, the Board <date. The Board
20-4 by United States mail> shall send written notice of the impending
20-5 license expiration to the person, at the person's last known
20-6 address according to the Board's records <with the notice an
20-7 application for license renewal to the licensee's address contained
20-8 in the Board's records. A licensee whose completed application for
20-9 renewal is received by the Board after the expiration date of the
20-10 license shall be charged a late fee>.
20-11 (c) If a person's license has been expired for <not more
20-12 than> 90 days or less, the person may renew the license by paying
20-13 to the Board the required renewal fee and a fee that is one-half
20-14 the examination fee for the license. If a person's license has
20-15 been expired for more than 90 days but less than one year <two
20-16 years>, the person may renew the license by paying to the Board all
20-17 unpaid renewal fees and a fee that is equal to the examination fee
20-18 for the license. The Board by rule shall set a length of time
20-19 beyond which an expired license may not be renewed. The Board by
20-20 rule may establish additional requirements that apply to the
20-21 renewal of a license that has been expired for more than one year
20-22 but less than the period set by the Board beyond which a license
20-23 may not be renewed <If a person's license has been expired for two
20-24 years or more, the person may renew the license by complying with
20-25 the requirements set forth in substantive rules adopted by the
20-26 Board>. The person may obtain a new license by submitting to
20-27 reexamination and complying with the requirements and procedures
21-1 for obtaining an original license. However, the Board may renew
21-2 without examination an expired license of a person who was licensed
21-3 in this state, moved to another state, and is currently licensed
21-4 and has been in practice in the other state for the two years
21-5 preceding application. The person must pay to the Board a fee that
21-6 is equal to the examination fee for the license.
21-7 SECTION 6. Chapter 118, Acts of the 52nd Legislature, 1951
21-8 (Article 4528c, Vernon's Texas Civil Statutes), is amended by
21-9 adding Section 8A to read as follows:
21-10 Sec. 8A. MANDATORY CONTINUING EDUCATION REQUIREMENTS.
21-11 (a) To renew a license, a licensee must demonstrate to the
21-12 satisfaction of the Board completion of the requirement for
21-13 continuing professional education.
21-14 (b) The Board shall adopt rules relating to the operation of
21-15 the mandatory continuing education programs. In establishing the
21-16 requirement for continuing education, the Board shall consider:
21-17 (1) factors that lead to the competent performance of
21-18 professional duties; and
21-19 (2) the continuing education needs of licensees.
21-20 (c) The Board shall adopt rules relating to the adoption or
21-21 approval of mandatory continuing education programs and providers
21-22 and shall adopt rules to evaluate the effectiveness of the programs
21-23 and a licensee's participation and performance in the programs.
21-24 SECTION 7. Section 9, Chapter 118, Acts of the 52nd
21-25 Legislature, 1951 (Article 4528c, Vernon's Texas Civil Statutes),
21-26 is amended to read as follows:
21-27 Sec. 9. Fees. (a) The Board by rule shall establish
22-1 reasonable and necessary fees so that the fees, in the aggregate,
22-2 produce sufficient revenue to cover the cost of administering this
22-3 Act. The fees set by the Board may be adjusted so that the total
22-4 fees collected shall be sufficient to meet the expenses of
22-5 administering this Act. The Board may not set a fee for an amount
22-6 less than the amount of that fee on September 1, 1993 <for the
22-7 administration of this Act in amounts not to exceed:>
22-8 <(1) examination and application fee: $40;>
22-9 <(2) reexamination fee: $40;>
22-10 <(3) renewal fee: $20;>
22-11 <(4) endorsement fee: $40;>
22-12 <(5) accreditation of new programs fee: $75;>
22-13 <(6) duplicate temporary permit or license fee: $10;>
22-14 <(7) filing of affidavits in rechange of name fee:
22-15 $10;>
22-16 <(8) endorsement to another state fee: $40; and>
22-17 <(9) reactivating from inactive status fee: $30>.
22-18 The Board shall not maintain unnecessary fund balances, and fee
22-19 amounts shall be set in accordance with this requirement.
22-20 (b) All expenses under this Act shall be paid from fees
22-21 collected by the Board under this Act, and no expense incurred
22-22 under this Act shall ever be charged against the funds of the State
22-23 of Texas.
22-24 (c) On or before January 1 of each year, the Board shall
22-25 make in writing to the Governor and the presiding officer of each
22-26 house of the legislature a complete and detailed report accounting
22-27 for all funds received and disbursed by the Board during the
23-1 preceding year. The annual report must be in the form and reported
23-2 in the time provided by the General Appropriations Act.
23-3 SECTION 8. Chapter 118, Acts of the 52nd Legislature, 1951
23-4 (Article 4528c, Vernon's Texas Civil Statutes), is amended by
23-5 adding Sections 10A through 10F to read as follows:
23-6 Sec. 10A. RECORDS OF COMPLAINTS. (a) The Board shall keep
23-7 an information file about each complaint filed with the Board. The
23-8 Board's information file shall be kept current and contain a record
23-9 for each complaint of:
23-10 (1) all persons contacted in relation to the
23-11 complaint;
23-12 (2) a summary of findings made at each step of the
23-13 complaint process;
23-14 (3) an explanation of the legal basis and reason for a
23-15 complaint that is dismissed; and
23-16 (4) other relevant information.
23-17 (b) If a written complaint is filed with the Board that the
23-18 Board has authority to resolve, the Board, at least as frequently
23-19 as quarterly and until final disposition of the complaint, shall
23-20 notify the parties to the complaint of the status of the complaint
23-21 unless the notice would jeopardize an undercover investigation.
23-22 (c) The Board by rule shall adopt a form to standardize
23-23 information concerning complaints made to the Board. The Board by
23-24 rule shall prescribe information to be provided to a person when
23-25 the person files a complaint with the Board.
23-26 (d) The Board shall provide reasonable assistance to a
23-27 person who wishes to file a complaint with the Board.
24-1 Sec. 10B. COMPLAINT INVESTIGATION AND DISPOSITION. (a) The
24-2 Board shall adopt rules concerning the investigation of a complaint
24-3 filed with the Board. The rules adopted under this subsection
24-4 shall:
24-5 (1) distinguish between categories of complaints;
24-6 (2) ensure that complaints are not dismissed without
24-7 appropriate consideration;
24-8 (3) require that the Board be advised of a complaint
24-9 that is dismissed and that a letter be sent to the person who filed
24-10 the complaint explaining the action taken on the dismissed
24-11 complaint;
24-12 (4) ensure that the person who filed the complaint has
24-13 an opportunity to explain the allegations made in the complaint;
24-14 and
24-15 (5) prescribe guidelines concerning the categories of
24-16 complaints that require the use of a private investigator and the
24-17 procedures for the Board to obtain the services of a private
24-18 investigator.
24-19 (b) The Board shall dispose of all complaints in a timely
24-20 manner. The Board shall establish a time line for conducting each
24-21 phase of a complaint that is under the control of the Board not
24-22 later than the 30th day after the date the complaint is received by
24-23 the Board. The time line shall be kept in the information file for
24-24 the complaint, and all parties shall be notified of the projected
24-25 time requirements for pursuing the complaint. A change in the time
24-26 line must be noted in the complaint information file, and all
24-27 parties to the complaint must be notified not later than the
25-1 seventh day after the date the change is made.
25-2 (c) The executive director shall notify the Board of a
25-3 complaint that extends beyond the time prescribed by the Board for
25-4 resolving the complaint so that the Board may take necessary action
25-5 on the complaint.
25-6 Sec. 10C. INFORMAL PROCEEDINGS. (a) The Board by rule
25-7 shall adopt procedures governing:
25-8 (1) informal disposition of a contested case under
25-9 Subsection (e), Section 13, Administrative Procedure and Texas
25-10 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), and
25-11 its subsequent amendments; and
25-12 (2) informal proceedings held in compliance with
25-13 Subsection (c), Section 18, Administrative Procedure and Texas
25-14 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), and
25-15 its subsequent amendments.
25-16 (b) Rules adopted under this section must provide the
25-17 complainant and the licensee an opportunity to be heard and must
25-18 require the presence of a representative of the Board's legal staff
25-19 or of the office of the attorney general to advise the Board or the
25-20 Board's employees.
25-21 Sec. 10D. MONITORING OF LICENSEE. The Board by rule shall
25-22 develop a system for monitoring licensees' compliance with the
25-23 requirements of this Act. Rules adopted under this section shall
25-24 include procedures for monitoring a licensee who is ordered by the
25-25 Board to perform certain acts to ascertain that the licensee
25-26 performs the required acts and to identify and monitor licensees
25-27 who represent a risk to the public.
26-1 Sec. 10E. ADMINISTRATIVE PENALTIES. (a) The Board may
26-2 impose an administrative penalty against a person licensed or
26-3 regulated under this Act who violates this Act or a rule or order
26-4 adopted under this Act.
26-5 (b) The penalty for each violation may be in an amount not
26-6 to exceed $1,000. Each day a violation continues or occurs is a
26-7 separate violation for purposes of imposing a penalty.
26-8 (c) The amount of the penalty shall be based on:
26-9 (1) the seriousness of the violation, including the
26-10 nature, circumstances, extent, and gravity of any prohibited acts,
26-11 and the hazard or potential hazard created to the health, safety,
26-12 or economic welfare of the public;
26-13 (2) the economic harm to property or the environment
26-14 caused by the violation;
26-15 (3) the history of previous violations;
26-16 (4) the amount necessary to deter future violations;
26-17 (5) efforts to correct the violation; and
26-18 (6) any other matter that justice may require.
26-19 (d) If the executive director determines that a violation
26-20 has occurred, the executive director may issue to the Board a
26-21 report that states the facts on which the determination is based
26-22 and the executive director's recommendation on the imposition of a
26-23 penalty, including a recommendation on the amount of the penalty.
26-24 (e) Within 14 days after the date the report is issued, the
26-25 executive director shall give written notice of the report to the
26-26 person. The notice may be given by certified mail. The notice
26-27 must include a brief summary of the alleged violation and a
27-1 statement of the amount of the recommended penalty and must inform
27-2 the person that the person has a right to a hearing on the
27-3 occurrence of the violation, the amount of the penalty, or both the
27-4 occurrence of the violation and the amount of the penalty.
27-5 (f) Within 20 days after the date the person receives the
27-6 notice, the person in writing may accept the determination and
27-7 recommended penalty of the executive director or may make a written
27-8 request for a hearing on the occurrence of the violation, the
27-9 amount of the penalty, or both the occurrence of the violation and
27-10 the amount of the penalty.
27-11 (g) If the person accepts the determination and recommended
27-12 penalty of the executive director, the Board by order shall approve
27-13 the determination and impose the recommended penalty.
27-14 (h) If the person requests a hearing or fails to respond
27-15 timely to the notice, the executive director shall set a hearing
27-16 and give notice of the hearing to the person. The hearing shall be
27-17 held by an administrative law judge of the State Office of
27-18 Administrative Hearings. The administrative law judge shall make
27-19 findings of fact and conclusions of law. The administrative law
27-20 judge shall promptly issue to the Board a proposal for a decision
27-21 about the occurrence of the violation and the amount of a proposed
27-22 penalty. Based on the findings of fact, conclusions of law, and
27-23 proposal for a decision, the Board by order may find that a
27-24 violation has occurred and impose a penalty or may find that no
27-25 violation occurred.
27-26 (i) The notice of the Board's order given to the person
27-27 under the Administrative Procedure and Texas Register Act (Article
28-1 6252-13a, Vernon's Texas Civil Statutes) and its subsequent
28-2 amendments must include a statement of the right of the person to
28-3 judicial review of the order.
28-4 (j) Within 30 days after the date the Board's order is final
28-5 as provided by Subsection (c), Section 16, Administrative Procedure
28-6 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
28-7 Statutes), and its subsequent amendments, the person shall:
28-8 (1) pay the amount of the penalty;
28-9 (2) pay the amount of the penalty and file a petition
28-10 for judicial review contesting the occurrence of the violation, the
28-11 amount of the penalty, or both the occurrence of the violation and
28-12 the amount of the penalty; or
28-13 (3) without paying the amount of the penalty, file a
28-14 petition for judicial review contesting the occurrence of the
28-15 violation, the amount of the penalty, or both the occurrence of the
28-16 violation and the amount of the penalty.
28-17 (k) Within the 30-day period, a person who acts under
28-18 Subsection (j)(3) of this section may:
28-19 (1) stay enforcement of the penalty by:
28-20 (A) paying the amount of the penalty to the
28-21 court for placement in an escrow account; or
28-22 (B) giving to the court a supersedeas bond
28-23 approved by the court for the amount of the penalty and that is
28-24 effective until all judicial review of the Board's order is final;
28-25 or
28-26 (2) request the court to stay enforcement of the
28-27 penalty by:
29-1 (A) filing with the court a sworn affidavit of
29-2 the person stating that the person is financially unable to pay the
29-3 amount of the penalty and is financially unable to give the
29-4 supersedeas bond; and
29-5 (B) giving a copy of the affidavit to the
29-6 executive director by certified mail.
29-7 (l) An executive director who receives a copy of an
29-8 affidavit under Subsection (k)(2) of this section may file with the
29-9 court, within five days after the date the copy is received, a
29-10 contest to the affidavit. The court shall hold a hearing on the
29-11 facts alleged in the affidavit as soon as practicable and shall
29-12 stay the enforcement of the penalty on finding that the alleged
29-13 facts are true. The person who files an affidavit has the burden
29-14 of proving that the person is financially unable to pay the amount
29-15 of the penalty and to give a supersedeas bond.
29-16 (m) If the person does not pay the amount of the penalty and
29-17 the enforcement of the penalty is not stayed, the executive
29-18 director may refer the matter to the attorney general for
29-19 collection of the amount of the penalty.
29-20 (n) Judicial review of the order of the Board:
29-21 (1) is instituted by filing a petition as provided by
29-22 Section 19, Administrative Procedure and Texas Register Act
29-23 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
29-24 subsequent amendments; and
29-25 (2) is under the substantial evidence rule.
29-26 (o) If the court sustains the occurrence of the violation,
29-27 the court may uphold or reduce the amount of the penalty and order
30-1 the person to pay the full or reduced amount of the penalty. If
30-2 the court does not sustain the occurrence of the violation, the
30-3 court shall order that no penalty is owed.
30-4 (p) When the judgment of the court becomes final, the court
30-5 shall proceed under this subsection. If the person paid the amount
30-6 of the penalty and if that amount is reduced or is not upheld by
30-7 the court, the court shall order that the appropriate amount plus
30-8 accrued interest be remitted to the person. The rate of the
30-9 interest is the rate charged on loans to depository institutions by
30-10 the New York Federal Reserve Bank, and the interest shall be paid
30-11 for the period beginning on the date the penalty was paid and
30-12 ending on the date the penalty is remitted. If the person gave a
30-13 supersedeas bond and if the amount of the penalty is not upheld by
30-14 the court, the court shall order the release of the bond. If the
30-15 person gave a supersedeas bond and if the amount of the penalty is
30-16 reduced, the court shall order the release of the bond after the
30-17 person pays the amount.
30-18 (q) A penalty collected under this section shall be remitted
30-19 to the comptroller for deposit in the general revenue fund.
30-20 (r) All proceedings under this section are subject to the
30-21 Administrative Procedure and Texas Register Act (Article 6252-13a,
30-22 Vernon's Texas Civil Statutes) and its subsequent amendments.
30-23 Sec. 10F. SCHEDULE OF SANCTIONS. The schedule of sanctions
30-24 adopted by the Board by rule shall be used by the State Office of
30-25 Administrative Hearings for any sanction imposed as the result of a
30-26 hearing conducted by that office.
30-27 SECTION 9. Section 11, Chapter 118, Acts of the 52nd
31-1 Legislature, 1951 (Article 4528c, Vernon's Texas Civil Statutes),
31-2 is amended by adding Subsection (c) to read as follows:
31-3 (c) A person who violates this Act is liable to the state
31-4 for a civil penalty that does not exceed $1,000 a day. The civil
31-5 penalty may be collected in a suit initiated by the Board.
31-6 SECTION 10. (a) The changes in law made by this Act in the
31-7 qualifications of members of the Board of Vocational Nurse
31-8 Examiners do not affect the entitlement of a member appointed
31-9 before September 1, 1993, to continue to hold office for the term
31-10 for which the member was appointed. The changes in the
31-11 qualifications apply only to a member appointed on or after
31-12 September 1, 1993.
31-13 (b) As soon as possible on or after September 1, 1993, the
31-14 governor shall appoint three additional public members to the Board
31-15 of Vocational Nurse Examiners. In making the initial appointments
31-16 of the new members, the governor shall designate one for a term
31-17 expiring on the regular expiration date of board members in 1995,
31-18 one for a term expiring on the regular expiration date of board
31-19 members in 1997, and one for a term expiring on the regular
31-20 expiration date of board members in 1999.
31-21 SECTION 11. This Act takes effect September 1, 1993.
31-22 SECTION 12. The importance of this legislation and the
31-23 crowded condition of the calendars in both houses create an
31-24 emergency and an imperative public necessity that the
31-25 constitutional rule requiring bills to be read on three several
31-26 days in each house be suspended, and this rule is hereby suspended.