73R10828 CAG-D
By Moncrief S.B. No. 839
Substitute the following for S.B. No. 839:
By Berlanga C.S.S.B. No. 839
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, color, handicap <creed>, sex, religion,
1-22 or national 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, by rule, may establish a
7-13 separate fee for the survey of approved programs. The Board shall
7-14 prescribe such methods and rules of visiting, and such methods of
7-15 reporting <by the Director of Education> as may in its judgment be
7-16 deemed proper.
7-17 (h) <(j)> Regular meetings of the Board shall be held at
7-18 least twice a year, one of which shall be designated as an Annual
7-19 Meeting for election of officers and the reading of auditors'
7-20 reports. At least twice each year the Board shall hold
7-21 examinations in various cities in the state for qualified
7-22 applicants for licensure. Examinations may be held under the
7-23 supervision of a Board member or such other person as the Board may
7-24 specify. Special <Not less than sixty (60) days notice of the
7-25 holding of the examination shall be given by publication in at
7-26 least three (3) daily newspapers of general circulation, to be
7-27 selected by the Board; special> meetings shall be held upon request
8-1 of five (5) <four (4)> members of the Board or upon the call of the
8-2 president; eight (8) <six (6)> members of the Board shall
8-3 constitute a quorum for the transaction of business, and should a
8-4 quorum not be present on the day appointed for any meeting, those
8-5 persons present may adjourn from day to day until a quorum shall be
8-6 present, providing that such period shall not be longer than three
8-7 (3) successive days; each member of said Board is entitled to a per
8-8 diem set by legislative appropriation for each day that the member
8-9 engages in the business of the Board. A member may not receive any
8-10 compensation for travel expenses, including expenses for meals and
8-11 lodging, other than transportation expenses. A member is entitled
8-12 to compensation for transportation expenses as provided by the
8-13 General Appropriations Act.
8-14 (i) <(k)> The Board may not adopt rules restricting
8-15 competitive bidding or advertising by a licensee of the Board
8-16 except to prohibit false, misleading, or deceptive practices by the
8-17 licensee. The Board may not include in its rules to prohibit
8-18 false, misleading, or deceptive practices by a licensee a rule
8-19 that:
8-20 (1) restricts the licensee's use of any medium for
8-21 advertising;
8-22 (2) restricts the licensee's personal appearance or
8-23 use of the person's <his> voice in an advertisement;
8-24 (3) relates to the size or duration of an
8-25 advertisement by the licensee; or
8-26 (4) restricts the licensee's advertisement under a
8-27 trade name.
9-1 <(l)(1) The Board may recognize, prepare, or implement
9-2 continuing education programs for licensees and may require
9-3 participation in continuing education programs as a condition of
9-4 renewal of a license.>
9-5 <(2) The Board may not require more than a total of 20
9-6 hours of continuing education in a two-year license period and may
9-7 not require that more than 10 of those hours consist of classroom
9-8 instruction in approved programs. The remaining 10 hours may
9-9 consist of any combination of classroom instruction,
9-10 institutional-based instruction, or individualized study.>
9-11 <(3) If the Board requires participation in continuing
9-12 education programs as a condition of renewal of a license, the
9-13 Board shall by rule establish a system for the approval of programs
9-14 and providers of continuing education. In adopting the rules, the
9-15 board shall consider but is not obligated to approve programs or
9-16 providers approved or accredited through continuing education
9-17 accreditation systems established by national or state associations
9-18 of licensed vocational nurses and nurse in-service programs offered
9-19 by hospitals accredited by the Joint Commission on Accreditation of
9-20 Healthcare Organizations, certified by Medicare, or maintained or
9-21 operated by the federal government or the State of Texas. The
9-22 Board may assess programs and providers a fee in an amount
9-23 reasonable and necessary to defray the costs incurred in approving
9-24 providers and programs. The fee collected under this subsection
9-25 shall be deposited in the Vocational Nurse Examiners Fund.>
9-26 <(4) The Board may adopt other rules as necessary to
9-27 implement this section.>
10-1 (j) <(m) The Board shall prepare information of consumer
10-2 interest describing the regulatory functions of the Board and the
10-3 Board's procedures by which consumer complaints are filed with and
10-4 resolved by the Board. The Board shall make the information
10-5 available to the general public and appropriate state agencies.>
10-6 <(n)> The Board shall enforce this Act. The Board may
10-7 retain outside legal counsel to represent the Board. However,
10-8 before the Board may retain outside counsel, the Board shall
10-9 request the attorney general to perform the necessary services and
10-10 may retain the outside counsel only if the attorney general
10-11 certifies to the Board that the services cannot be performed.
10-12 (k) <(o) A person who is required to register as a lobbyist
10-13 under Chapter 305, Government Code, may not serve as a member of
10-14 the Board or act as the general counsel to the Board.>
10-15 <(p)> The Board of Vocational Nurse Examiners is subject to
10-16 Chapter 325, Government Code (Texas Sunset Act). Unless continued
10-17 in existence as provided by that chapter, the board is abolished
10-18 and this Act expires September 1, 2005 <1993>.
10-19 (l) <(q)> The Board is subject to the open meetings law,
10-20 Chapter 271, Acts of the 60th Legislature, Regular Session, 1967,
10-21 as amended (Article 6252-17, Vernon's Texas Civil Statutes), and
10-22 the Administrative Procedure and Texas Register Act, as amended
10-23 (Article 6252-13a, Vernon's Texas Civil Statutes).
10-24 <(r) If the appropriate standing committees of both houses
10-25 of the legislature acting under Subsection (g), Section 5,
10-26 Administrative Procedure and Texas Register Act, as amended
10-27 (Article 6252-13a, Vernon's Texas Civil Statutes), transmit to the
11-1 Board statements opposing adoption of a rule under that section,
11-2 the rule may not take effect, or if the rule has already taken
11-3 effect, the rule is repealed effective on the date the Board
11-4 receives the committee's statements.>
11-5 (m)(1) The executive director or the executive director's
11-6 designee shall develop an intra-agency career ladder program. The
11-7 program shall require intra-agency posting of all nonentry level
11-8 positions concurrently with any public posting.
11-9 (2) The executive director or the executive director's
11-10 designee shall develop a system of annual performance evaluations
11-11 based on measurable job tasks. All merit pay for Board employees
11-12 must be based on the system established under this subsection.
11-13 (n)(1) The executive director or the executive director's
11-14 designee shall prepare and maintain a written policy statement to
11-15 assure implementation of a program of equal employment opportunity
11-16 under which all personnel transactions are made without regard to
11-17 race, color, disability, sex, religion, age, or national origin.
11-18 The policy statement must include:
11-19 (A) personnel policies, including policies
11-20 relating to recruitment, evaluation, selection, application,
11-21 training, and promotion of personnel that are in compliance with
11-22 the Commission on Human Rights Act (Article 5221k, Vernon's Texas
11-23 Civil Statutes), and its subsequent amendments;
11-24 (B) a comprehensive analysis of the Board
11-25 workforce that meets federal and state guidelines;
11-26 (C) procedures by which a determination can be
11-27 made of significant underuse in the Board workforce of all persons
12-1 for whom federal or state guidelines encourage a more equitable
12-2 balance; and
12-3 (D) reasonable methods to appropriately address
12-4 those areas of underuse.
12-5 (2) A policy statement prepared under Subdivision (1)
12-6 of this subsection must cover an annual period, be updated
12-7 annually, be reviewed by the Commission on Human Rights for
12-8 compliance with Subdivision (1)(A) of this subsection, and be filed
12-9 with the governor's office.
12-10 (3) The governor's office shall deliver a biennial
12-11 report to the legislature based on the information received under
12-12 Subdivision (2) of this subsection. The report may be made
12-13 separately or as part of other biennial reports to the legislature.
12-14 (o)(1) The Board shall prepare information of public
12-15 interest describing the functions of the Board and the Board's
12-16 procedures by which complaints are filed with and resolved by the
12-17 Board. The Board shall make the information available to the
12-18 public and appropriate state agencies.
12-19 (2) The Board by rule shall establish methods by which
12-20 consumers and service recipients are notified of the name, mailing
12-21 address, and telephone number of the Board for the purpose of
12-22 directing complaints to the Board. The Board may provide for that
12-23 notification:
12-24 (A) on each registration form, application, or
12-25 written contract for services of an individual or entity regulated
12-26 by the Board;
12-27 (B) on a sign prominently displayed in the place
13-1 of business of each individual or entity regulated by the Board; or
13-2 (C) in a bill for service provided by an
13-3 individual or entity regulated by the Board.
13-4 (3) The Board shall enter into memoranda of
13-5 understanding with each state agency that licenses health care
13-6 facilities or agencies for the purpose of coordinating any
13-7 notification requirements under Subdivision (2) of this subsection
13-8 with notification requirements that may be imposed on the health
13-9 care facility or agency by any other state agency.
13-10 (4) The Board shall list along with its regular
13-11 telephone number the toll-free telephone number that may be called
13-12 to present a complaint about a health professional if the toll-free
13-13 number is established under other state law.
13-14 (p) The Board shall develop and implement policies that
13-15 provide the public with a reasonable opportunity to appear before
13-16 the Board and to speak on any issue under the jurisdiction of the
13-17 Board.
13-18 (q) The Board shall prepare and maintain a written plan that
13-19 describes how a person who does not speak English can be provided
13-20 reasonable access to the Board's programs. The Board shall also
13-21 comply with federal and state laws for program and facility
13-22 accessibility.
13-23 (r)(1) The Board shall establish a training program for the
13-24 members of the Board.
13-25 (2) Before a member of a Board may assume the member's
13-26 duties, the member must complete at least one course of the
13-27 training program established under this subsection, and before the
14-1 member may be confirmed by the senate.
14-2 (3) A training program established under this
14-3 subsection shall provide information to a participant regarding:
14-4 (A) the enabling legislation that created the
14-5 Board;
14-6 (B) the programs operated by the Board;
14-7 (C) the role and functions of the Board;
14-8 (D) the rules of the Board with an emphasis on
14-9 the rules that relate to disciplinary and investigatory authority;
14-10 (E) the current budget for the Board;
14-11 (F) the results of the most recent formal audit
14-12 of the Board;
14-13 (G) the requirements of the:
14-14 (i) open meetings law, Chapter 271, Acts
14-15 of the 60th Legislature, Regular Session, 1967 (Article 6252-17,
14-16 Vernon's Texas Civil Statutes), and its subsequent amendments;
14-17 (ii) open records law, Chapter 424, Acts
14-18 of the 63rd Legislature, Regular Session, 1973 (Article 6252-17a,
14-19 Vernon's Texas Civil Statutes), and its subsequent amendments; and
14-20 (iii) Administrative Procedure and Texas
14-21 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes) and
14-22 its subsequent amendments;
14-23 (H) the requirements of the conflict of interest
14-24 laws and other laws relating to public officials; and
14-25 (I) any applicable ethics policies adopted by
14-26 the Board or the Texas Ethics Commission.
14-27 (4) In developing the training requirements provided
15-1 for in this subsection, the Board shall consult with the governor's
15-2 office, the attorney general's office, and the Texas Ethics
15-3 Commission.
15-4 (5) In the event that another state agency or entity
15-5 is given the authority to establish the training requirements, the
15-6 Board shall allow that training in lieu of developing its own
15-7 program.
15-8 (s) The Board shall provide to its members and employees, as
15-9 often as necessary, information regarding their qualifications for
15-10 office or employment under this article and their responsibilities
15-11 under applicable laws relating to standards of conduct for state
15-12 officers or employees.
15-13 (t) The Board may enter interagency contracts for any
15-14 purpose authorized by law.
15-15 SECTION 3. Section 6, Chapter 118, Acts of the 52nd
15-16 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
15-17 Civil Statutes), is amended to read as follows:
15-18 Sec. 6. Examination and Licenses. (a) Except as provided
15-19 in Section 7 of this Act, every person desiring to be licensed as a
15-20 Licensed Vocational Nurse or use the abbreviation L.V.N. in the
15-21 State of Texas, shall be required to pass the examination approved
15-22 <given> by the Board of Vocational Nurse Examiners <or its
15-23 delegate>. The applicant shall make application by presenting to
15-24 <the secretary of> the Board, on forms furnished by the Board,
15-25 satisfactory sworn evidence that the applicant has had at least two
15-26 (2) years of high school education or its equivalent and has
15-27 completed an approved course <of not less than twelve (12) months>
16-1 in an approved school for educating vocational nurses. An approved
16-2 school as used herein shall mean one approved by the Board or by
16-3 another state. Application for examination by the Board or its
16-4 delegate shall be made at least thirty (30) days prior to the date
16-5 set for the examination.
16-6 (b) The Board in its discretion may waive the requirement in
16-7 Subsection (a) of this section for completion of a course in an
16-8 approved school for educating vocational or practical nurses upon
16-9 presentation of satisfactory sworn evidence that the applicant has
16-10 completed an acceptable level <at least two (2) years> of education
16-11 in a nursing school approved by the State Board of Nurse Examiners
16-12 of Texas or in some other school of professional nurse education
16-13 located in another state, the District of Columbia, a possession of
16-14 the United States, or a foreign country. The Board by rule shall
16-15 determine acceptable levels of education. The Board shall have the
16-16 written portion of the examination, if any, validated by an
16-17 independent testing professional. If the applicant received
16-18 training in another state, the District of Columbia, a possession
16-19 of the United States, or a foreign country, the applicant must
16-20 present evidence satisfactory to the Board that the nursing
16-21 education received is equivalent to that required for licensure as
16-22 a vocational nurse in this state.
16-23 (c) Not later than the 30th day <Within 30 days> after the
16-24 date a licensing examination is administered under this Act, the
16-25 Board shall notify each examinee of the results of the examination.
16-26 However, if an examination is graded or reviewed by a national
16-27 testing service, the Board shall notify each examinee of the
17-1 results of the examination within two weeks after the date the
17-2 Board receives the results from the testing service. If the notice
17-3 of the examination results will be delayed for more than 90 days
17-4 after the examination date, the Board shall notify each examinee of
17-5 the reason for the delay before the 90th day. If requested in
17-6 writing by a person who fails the licensing examination
17-7 administered under this Act, the Board shall furnish the person
17-8 with an analysis of the person's performance on the examination or
17-9 other information which the Board has available to it after the
17-10 tests are scored.
17-11 (d) If an applicant has graduated from an approved
17-12 educational program in vocational nursing in this state, another
17-13 state, or the District of Columbia, or successfully completed an
17-14 acceptable level of education in a professional nursing program
17-15 <two years of an associate degree program or diploma program in
17-16 professional nursing education> in this state, another state, or
17-17 the District of Columbia, the Board may issue to the applicant,
17-18 pending the results of the licensing examination, a temporary
17-19 permit to practice vocational nursing under the direct supervision
17-20 of a licensed vocational nurse, registered professional nurse, or
17-21 licensed physician. A permit issued to an applicant who fails the
17-22 examination expires on the date indicated on the permit. A permit
17-23 issued to an applicant who passes the examination expires on the
17-24 applicant's receipt of a license from the Board. A permit may not
17-25 be issued to an applicant who has previously failed an examination
17-26 administered by the Board or by another state. <The Board may
17-27 issue a temporary permit to practice vocational nursing to an
18-1 applicant who is a vocational or practical nurse who has graduated
18-2 from an approved program for educating vocational or practical
18-3 nurses, holds a license as a vocational or practical nurse from
18-4 another state, the District of Columbia, or a possession of the
18-5 United States, and has actually been engaged in the practice of
18-6 vocational or practical nursing within the past five years. Such
18-7 an applicant must practice under the direct supervision of a
18-8 licensed vocational nurse, registered professional nurse, or
18-9 licensed physician. A temporary permit issued to an applicant from
18-10 another state, the District of Columbia, or a possession of the
18-11 United States expires on receipt of a license from the Board or on
18-12 the expiration of 90 days, whichever occurs first. The Board may,
18-13 by mutual agreement, assign the function of physical distribution
18-14 of the temporary permits to an agent designated by the Board to act
18-15 on behalf of the Board.>
18-16 (e) Any nurse who is licensed under the provisions of this
18-17 Act, when on duty in a public or private hospital, nursing home, or
18-18 licensed health-care facility, shall wear <identifying> insignia
18-19 identifying the nurse as a licensed vocational nurse <on white caps
18-20 or uniforms>.
18-21 SECTION 4. Section 7, Chapter 118, Acts of the 52nd
18-22 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
18-23 Civil Statutes), is amended to read as follows:
18-24 Sec. 7. QUALIFICATION FOR LICENSING BY ENDORSEMENT. (a) To
18-25 qualify for a temporary license to practice as a licensed
18-26 vocational nurse by endorsement, an applicant for licensing must:
18-27 (1) submit to the Board an application fee as
19-1 determined by the Board and a completed application given under
19-2 oath, in the form prescribed by the Board;
19-3 (2) have possessed at the time of initial licensing as
19-4 a licensed vocational nurse the qualifications necessary to have
19-5 been eligible for licensing at that time in this state;
19-6 (3) have presented to the Board proof of initial
19-7 licensing by examination and proof that the current active license
19-8 and other license or licenses granted to the applicant by any other
19-9 state have not been suspended, revoked, canceled, surrendered, or
19-10 otherwise restricted for any reason; and
19-11 (4) submit to the Board a notice of sponsorship of the
19-12 applicant by the holder of a Texas health care professional license
19-13 under whom the applicant will practice.
19-14 (b) A holder of a temporary license under this section shall
19-15 receive a permanent license if the applicant:
19-16 (1) has submitted official verification of the
19-17 academic and professional credentials of the applicant; and
19-18 (2) satisfies any other requirement set by statute.
19-19 (c) The Board shall either grant or deny an application for
19-20 a permanent license within 180 days after the date of the Board's
19-21 receipt of all required forms or information. The Board may extend
19-22 the 180-day deadline to allow for the receipt and tabulation of
19-23 pending examination results.
19-24 (d) The Board shall adopt rules relating to the conditions
19-25 of sponsorship under Subsection (a)(4) of this section, including
19-26 waiver of the requirement in the event of a hardship. <Any
19-27 applicant who holds a license as a Vocational Nurse or Practical
20-1 Nurse issued by the District of Columbia or another state whose
20-2 requirements are equal to those of Texas, and whose individual
20-3 qualifications shall be equivalent to those required by this law,
20-4 may be granted a license to practice nursing as a Licensed
20-5 Vocational Nurse in this State without examination provided the
20-6 required fee is paid to the Board by such applicant.>
20-7 SECTION 5. Sections 8(a), (b), and (c), Chapter 118, Acts of
20-8 the 52nd Legislature, Regular Session, 1951 (Article 4528c,
20-9 Vernon's Texas Civil Statutes), are amended to read as follows:
20-10 (a) The Board <board> by rule shall adopt a system under
20-11 which licenses expire on various dates during the year <every two
20-12 years>. <For the year in which the expiration date is changed,
20-13 license fees payable on September 1 shall be prorated on a monthly
20-14 basis so that each licensee shall pay only that portion of the
20-15 license fee which is allocable to the number of months during which
20-16 the license is valid. On renewal of the license on the new
20-17 expiration date, the total license renewal fee is payable.>
20-18 (b) At <The Board shall notify each licensee about the
20-19 expiration date of the person's license at> least 30 days before
20-20 the expiration of a person's license, the Board <date. The Board
20-21 by United States mail> shall send written notice of the impending
20-22 license expiration to the person, at the person's last known
20-23 address according to the Board's records <with the notice an
20-24 application for license renewal to the licensee's address contained
20-25 in the Board's records. A licensee whose completed application for
20-26 renewal is received by the Board after the expiration date of the
20-27 license shall be charged a late fee>.
21-1 (c) If a person's license has been expired for <not more
21-2 than> 90 days or less, the person may renew the license by paying
21-3 to the Board the required renewal fee and a fee that is one-half
21-4 the examination fee for the license. If a person's license has
21-5 been expired for more than 90 days but less than one year <two
21-6 years>, the person may renew the license by paying to the Board all
21-7 unpaid renewal fees and a fee that is equal to the examination fee
21-8 for the license. The Board by rule shall set a length of time
21-9 beyond which an expired license may not be renewed. The Board by
21-10 rule may establish additional requirements that apply to the
21-11 renewal of a license that has been expired for more than one year
21-12 but less than the period set by the Board beyond which a license
21-13 may not be renewed <If a person's license has been expired for two
21-14 years or more, the person may renew the license by complying with
21-15 the requirements set forth in substantive rules adopted by the
21-16 Board>. The person may obtain a new license by submitting to
21-17 reexamination and complying with the requirements and procedures
21-18 for obtaining an original license. However, the Board may renew
21-19 without examination an expired license of a person who was licensed
21-20 in this state, moved to another state, and is currently licensed
21-21 and has been in practice in the other state for the two years
21-22 preceding application. The person must pay to the Board a fee that
21-23 is equal to the examination fee for the license.
21-24 SECTION 6. Chapter 118, Acts of the 52nd Legislature,
21-25 Regular Session, 1951 (Article 4528c, Vernon's Texas Civil
21-26 Statutes), is amended by adding Section 8A to read as follows:
21-27 Sec. 8A. MANDATORY CONTINUING EDUCATION REQUIREMENTS.
22-1 (a) To renew a license, a licensee must demonstrate to the
22-2 satisfaction of the Board completion of the requirement for
22-3 continuing professional education.
22-4 (b) The Board shall adopt rules relating to the operation of
22-5 the mandatory continuing education programs. In establishing the
22-6 requirement for continuing education, the Board shall consider:
22-7 (1) factors that lead to the competent performance of
22-8 professional duties; and
22-9 (2) the continuing education needs of licensees.
22-10 (c) The Board shall adopt rules relating to the adoption or
22-11 approval of mandatory continuing education programs and providers
22-12 and shall adopt rules to evaluate the effectiveness of the programs
22-13 and a licensee's participation and performance in the programs.
22-14 SECTION 7. Section 9, Chapter 118, Acts of the 52nd
22-15 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
22-16 Civil Statutes), is amended to read as follows:
22-17 Sec. 9. Fees. (a) The Board by rule shall establish
22-18 reasonable and necessary fees so that the fees, in the aggregate,
22-19 produce sufficient revenue to cover the cost of administering this
22-20 Act. The fees set by the Board may be adjusted so that the total
22-21 fees collected shall be sufficient to meet the expenses of
22-22 administering this Act. The Board may not set a fee for an amount
22-23 less than the amount of that fee on September 1, 1993 <for the
22-24 administration of this Act in amounts not to exceed:>
22-25 <(1) examination and application fee: $40;>
22-26 <(2) reexamination fee: $40;>
22-27 <(3) renewal fee: $20;>
23-1 <(4) endorsement fee: $40;>
23-2 <(5) accreditation of new programs fee: $75;>
23-3 <(6) duplicate temporary permit or license fee: $10;>
23-4 <(7) filing of affidavits in rechange of name fee:
23-5 $10;>
23-6 <(8) endorsement to another state fee: $40; and>
23-7 <(9) reactivating from inactive status fee: $30>.
23-8 The Board shall not maintain unnecessary fund balances, and fee
23-9 amounts shall be set in accordance with this requirement.
23-10 (b) All expenses under this Act shall be paid from fees
23-11 collected by the Board under this Act, and no expense incurred
23-12 under this Act shall ever be charged against the funds of the State
23-13 of Texas.
23-14 (c) On or before January 1 of each year, the Board shall
23-15 make in writing to the Governor and the presiding officer of each
23-16 house of the legislature a complete and detailed report accounting
23-17 for all funds received and disbursed by the Board during the
23-18 preceding year. The annual report must be in the form and reported
23-19 in the time provided by the General Appropriations Act.
23-20 SECTION 8. Chapter 118, Acts of the 52nd Legislature,
23-21 Regular Session, 1951 (Article 4528c, Vernon's Texas Civil
23-22 Statutes), is amended by adding Sections 10A-10F to read as
23-23 follows:
23-24 Sec. 10A. RECORDS OF COMPLAINTS. (a) The Board shall keep
23-25 an information file about each complaint filed with the Board. The
23-26 Board's information file shall be kept current and contain a record
23-27 for each complaint of:
24-1 (1) all persons contacted in relation to the
24-2 complaint;
24-3 (2) a summary of findings made at each step of the
24-4 complaint process;
24-5 (3) an explanation of the legal basis and reason for a
24-6 complaint that is dismissed; and
24-7 (4) other relevant information.
24-8 (b) If a written complaint is filed with the Board that the
24-9 Board has authority to resolve, the Board, at least as frequently
24-10 as quarterly and until final disposition of the complaint, shall
24-11 notify the parties to the complaint of the status of the complaint
24-12 unless the notice would jeopardize an undercover investigation.
24-13 (c) The Board by rule shall adopt a form to standardize
24-14 information concerning complaints made to the Board. The Board by
24-15 rule shall prescribe information to be provided to a person when
24-16 the person files a complaint with the Board.
24-17 (d) The Board shall provide reasonable assistance to a
24-18 person who wishes to file a complaint with the Board.
24-19 Sec. 10B. COMPLAINT INVESTIGATION AND DISPOSITION. (a) The
24-20 Board shall adopt rules concerning the investigation of a complaint
24-21 filed with the Board. The rules adopted under this subsection
24-22 shall:
24-23 (1) distinguish between categories of complaints;
24-24 (2) ensure that complaints are not dismissed without
24-25 appropriate consideration;
24-26 (3) require that the Board be advised of a complaint
24-27 that is dismissed and that a letter be sent to the person who filed
25-1 the complaint explaining the action taken on the dismissed
25-2 complaint;
25-3 (4) ensure that the person who filed the complaint has
25-4 an opportunity to explain the allegations made in the complaint;
25-5 and
25-6 (5) prescribe guidelines concerning the categories of
25-7 complaints that require the use of a private investigator and the
25-8 procedures for the Board to obtain the services of a private
25-9 investigator.
25-10 (b) The Board shall dispose of all complaints in a timely
25-11 manner. The Board shall establish a timeline for conducting each
25-12 phase of a complaint that is under the control of the Board not
25-13 later than the 30th day after the date the complaint is received by
25-14 the Board. The timeline shall be kept in the information file for
25-15 the complaint and all parties shall be notified of the projected
25-16 time requirements for pursuing the complaint. A change in the
25-17 timeline must be noted in the complaint information file and all
25-18 parties to the complaint must be notified not later than the
25-19 seventh day after the date the change is made.
25-20 (c) The executive director shall notify the Board of a
25-21 complaint that extends beyond the time prescribed by the Board for
25-22 resolving the complaint so that the Board may take necessary action
25-23 on the complaint.
25-24 Sec. 10C. INFORMAL PROCEEDINGS. (a) The Board by rule
25-25 shall adopt procedures governing:
25-26 (1) informal disposition of a contested case under
25-27 Section 13(e), Administrative Procedure and Texas Register Act
26-1 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
26-2 subsequent amendments; and
26-3 (2) informal proceedings held in compliance with
26-4 Section 18(c), Administrative Procedure and Texas Register Act
26-5 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
26-6 subsequent amendments.
26-7 (b) Rules adopted under this section must provide the
26-8 complainant and the licensee an opportunity to be heard and must
26-9 require the presence of a representative of the Board's legal staff
26-10 or of the office of the attorney general to advise the Board or the
26-11 Board's employees.
26-12 Sec. 10D. MONITORING OF LICENSEE. The Board by rule shall
26-13 develop a system for monitoring licensees' compliance with the
26-14 requirements of this Act. Rules adopted under this section shall
26-15 include procedures for monitoring a licensee who is ordered by the
26-16 Board to perform certain acts to ascertain that the licensee
26-17 performs the required acts and to identify and monitor licensees
26-18 who represent a risk to the public.
26-19 Sec. 10E. ADMINISTRATIVE PENALTIES. (a) The Board may
26-20 impose an administrative penalty against a person licensed or
26-21 regulated under this Act who violates this Act or a rule or order
26-22 adopted under this Act.
26-23 (b) The penalty for each violation may be in an amount not
26-24 to exceed $1,000. Each day a violation continues or occurs is a
26-25 separate violation for purposes of imposing a penalty.
26-26 (c) The amount of the penalty shall be based on:
26-27 (1) the seriousness of the violation, including the
27-1 nature, circumstances, extent, and gravity of any prohibited acts,
27-2 and the hazard or potential hazard created to the health, safety,
27-3 or economic welfare of the public;
27-4 (2) the economic harm to property or the environment
27-5 caused by the violation;
27-6 (3) the history of previous violations;
27-7 (4) the amount necessary to deter future violations;
27-8 (5) efforts to correct the violation; and
27-9 (6) any other matter that justice may require.
27-10 (d) If the executive director determines that a violation
27-11 has occurred, the executive director may issue to the Board a
27-12 report that states the facts on which the determination is based
27-13 and the executive director's recommendation on the imposition of a
27-14 penalty, including a recommendation on the amount of the penalty.
27-15 (e) Within 14 days after the date the report is issued, the
27-16 executive director shall give written notice of the report to the
27-17 person. The notice may be given by certified mail. The notice
27-18 must include a brief summary of the alleged violation and a
27-19 statement of the amount of the recommended penalty and must inform
27-20 the person that the person has a right to a hearing on the
27-21 occurrence of the violation, the amount of the penalty, or both the
27-22 occurrence of the violation and the amount of the penalty.
27-23 (f) Within 20 days after the date the person receives the
27-24 notice, the person in writing may accept the determination and
27-25 recommended penalty of the executive director or may make a written
27-26 request for a hearing on the occurrence of the violation, the
27-27 amount of the penalty, or both the occurrence of the violation and
28-1 the amount of the penalty.
28-2 (g) If the person accepts the determination and recommended
28-3 penalty of the executive director, the Board by order shall approve
28-4 the determination and impose the recommended penalty.
28-5 (h) If the person requests a hearing or fails to respond
28-6 timely to the notice, the executive director shall set a hearing
28-7 and give notice of the hearing to the person. The hearing shall be
28-8 held by an administrative law judge of the State Office of
28-9 Administrative Hearings. The administrative law judge shall make
28-10 findings of fact and conclusions of law. The administrative law
28-11 judge shall promptly issue to the Board a proposal for a decision
28-12 about the occurrence of the violation and the amount of a proposed
28-13 penalty. Based on the findings of fact, conclusions of law, and
28-14 proposal for a decision, the Board by order may find that a
28-15 violation has occurred and impose a penalty or may find that no
28-16 violation occurred.
28-17 (i) The notice of the Board's order given to the person
28-18 under the Administrative Procedure and Texas Register Act (Article
28-19 6252-13a, Vernon's Texas Civil Statutes) and its subsequent
28-20 amendments must include a statement of the right of the person to
28-21 judicial review of the order.
28-22 (j) Within 30 days after the date the Board's order is final
28-23 as provided by Section 16(c), Administrative Procedure and Texas
28-24 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), the
28-25 person shall:
28-26 (1) pay the amount of the penalty;
28-27 (2) pay the amount of the penalty and file a petition
29-1 for judicial review contesting the occurrence of the violation, the
29-2 amount of the penalty, or both the occurrence of the violation and
29-3 the amount of the penalty; or
29-4 (3) without paying the amount of the penalty, file a
29-5 petition for judicial review contesting the occurrence of the
29-6 violation, the amount of the penalty, or both the occurrence of the
29-7 violation and the amount of the penalty.
29-8 (k) Within the 30-day period, a person who acts under
29-9 Subsection (j)(3) of this section may:
29-10 (1) stay enforcement of the penalty by:
29-11 (A) paying the amount of the penalty to the
29-12 court for placement in an escrow account; or
29-13 (B) giving to the court a supersedeas bond
29-14 approved by the court for the amount of the penalty and that is
29-15 effective until all judicial review of the Board's order is final;
29-16 or
29-17 (2) request the court to stay enforcement of the
29-18 penalty by:
29-19 (A) filing with the court a sworn affidavit of
29-20 the person stating that the person is financially unable to pay the
29-21 amount of the penalty and is financially unable to give the
29-22 supersedeas bond; and
29-23 (B) giving a copy of the affidavit to the
29-24 executive director by certified mail.
29-25 (l) An executive director who receives a copy of an
29-26 affidavit under Subsection (k)(2) of this section may file with the
29-27 court, within five days after the date the copy is received, a
30-1 contest to the affidavit. The court shall hold a hearing on the
30-2 facts alleged in the affidavit as soon as practicable and shall
30-3 stay the enforcement of the penalty on finding that the alleged
30-4 facts are true. The person who files an affidavit has the burden
30-5 of proving that the person is financially unable to pay the amount
30-6 of the penalty and to give a supersedeas bond.
30-7 (m) If the person does not pay the amount of the penalty and
30-8 the enforcement of the penalty is not stayed, the executive
30-9 director may refer the matter to the attorney general for
30-10 collection of the amount of the penalty.
30-11 (n) Judicial review of the order of the Board:
30-12 (1) is instituted by filing a petition as provided by
30-13 Section 19, Administrative Procedure and Texas Register Act
30-14 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
30-15 subsequent amendments; and
30-16 (2) is under the substantial evidence rule.
30-17 (o) If the court sustains the occurrence of the violation,
30-18 the court may uphold or reduce the amount of the penalty and order
30-19 the person to pay the full or reduced amount of the penalty. If
30-20 the court does not sustain the occurrence of the violation, the
30-21 court shall order that no penalty is owed.
30-22 (p) When the judgment of the court becomes final, the court
30-23 shall proceed under this subsection. If the person paid the amount
30-24 of the penalty and if that amount is reduced or is not upheld by
30-25 the court, the court shall order that the appropriate amount plus
30-26 accrued interest be remitted to the person. The rate of the
30-27 interest is the rate charged on loans to depository institutions by
31-1 the New York Federal Reserve Bank, and the interest shall be paid
31-2 for the period beginning on the date the penalty was paid and
31-3 ending on the date the penalty is remitted. If the person gave a
31-4 supersedeas bond and if the amount of the penalty is not upheld by
31-5 the court, the court shall order the release of the bond. If the
31-6 person gave a supersedeas bond and if the amount of the penalty is
31-7 reduced, the court shall order the release of the bond after the
31-8 person pays the amount.
31-9 (q) A penalty collected under this section shall be remitted
31-10 to the comptroller for deposit in the general revenue fund.
31-11 (r) All proceedings under this section are subject to the
31-12 Administrative Procedure and Texas Register Act (Article 6252-13a,
31-13 Vernon's Texas Civil Statutes) and its subsequent amendments.
31-14 Sec. 10F. SCHEDULE OF SANCTIONS. The schedule of sanctions
31-15 adopted by the Board by rule shall be used by the State Office of
31-16 Administrative Hearings for any sanction imposed as the result of a
31-17 hearing conducted by that office.
31-18 SECTION 9. Section 11, Chapter 118, Acts of the 52nd
31-19 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
31-20 Civil Statutes), is amended by adding Subsection (c) to read as
31-21 follows:
31-22 (c) A person who violates this Act is liable to the state
31-23 for a civil penalty that does not exceed $1,000 a day. The civil
31-24 penalty may be collected in a suit initiated by the Board.
31-25 SECTION 10. (a) The changes in law made by this Act in the
31-26 qualifications of members of the Board of Vocational Nurse
31-27 Examiners do not affect the entitlement of a member appointed
32-1 before September 1, 1993, to continue to hold office for the term
32-2 for which the member was appointed. The changes in the
32-3 qualifications apply only to a member appointed on or after
32-4 September 1, 1993.
32-5 (b) As soon as possible on or after September 1, 1993, the
32-6 governor shall appoint three additional public members to the Board
32-7 of Vocational Nurse Examiners. In making the initial appointments
32-8 of the new members, the governor shall designate one for a term
32-9 expiring on the regular expiration date of board members in 1995,
32-10 one for a term expiring on the regular expiration date of board
32-11 members in 1997, and one for a term expiring on the regular
32-12 expiration date of board members in 1999.
32-13 SECTION 11. This Act takes effect September 1, 1993.
32-14 SECTION 12. The importance of this legislation and the
32-15 crowded condition of the calendars in both houses create an
32-16 emergency and an imperative public necessity that the
32-17 constitutional rule requiring bills to be read on three several
32-18 days in each house be suspended, and this rule is hereby suspended.