By: Moncrief S.B. No. 839
73R4041 CAG-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of the practice of nursing and to the
1-3 creation of a new state board to replace the Board of Nurse
1-4 Examiners and the Board of Vocational Nurse Examiners; providing
1-5 penalties.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 ARTICLE 1. STATE BOARD OF EXAMINERS FOR PROFESSIONAL NURSES
1-8 SECTION 1.01. Chapter 7, Title 71, Revised Statutes, is
1-9 amended by adding Article 4513-1 to read as follows:
1-10 Art. 4513-1. STATE BOARD OF EXAMINERS FOR PROFESSIONAL
1-11 NURSES
1-12 Sec. 1. STATE BOARD OF EXAMINERS FOR PROFESSIONAL NURSES.
1-13 (a) The State Board of Examiners for Professional Nurses consists
1-14 of:
1-15 (1) four members licensed as registered nurses;
1-16 (2) four members licensed as licensed vocational
1-17 nurses; and
1-18 (3) four members who represent the public.
1-19 (b) Members of the board are appointed by the governor with
1-20 the advice and consent of the senate. The governor shall designate
1-21 the presiding officer of the board.
1-22 (c) Appointments to the board shall be made without regard
1-23 to the race, color, disability, sex, religion, age, or national
1-24 origin of the appointees.
2-1 Sec. 2. MEETINGS; COMPENSATION. (a) The board shall hold
2-2 at least two regular meetings each year at which time an
2-3 examination for a license under a law administered by the board
2-4 shall be offered. Additional meetings may be held on the call of
2-5 the presiding officer or at the written request of three members of
2-6 the board.
2-7 (b) A member of the board is entitled to a per diem as set
2-8 by the General Appropriations Act for each day that the member
2-9 engages in the business of the board. A member may not receive any
2-10 compensation for travel expenses, including expenses for meals and
2-11 lodging, other than transportation expenses as provided by the
2-12 General Appropriations Act.
2-13 Sec. 3. TERMS. (a) Members of the board are appointed for
2-14 staggered six-year terms, with four members' terms expiring on
2-15 February 1 of each odd-numbered year.
2-16 (b) A member appointed to fill a vacancy shall hold office
2-17 for the remainder of that term.
2-18 Sec. 4. PUBLIC MEMBERSHIP RESTRICTION. A person is not
2-19 eligible for appointment as a public member of the board if the
2-20 person or the person's spouse:
2-21 (1) is registered, certified, or licensed by an
2-22 occupational regulatory agency in the field of health care;
2-23 (2) is employed by or participates in the management
2-24 of a business entity or other organization regulated by the board
2-25 or receiving funds from the board;
2-26 (3) owns or controls, directly or indirectly, more
2-27 than 10 percent interest in a business entity or other organization
3-1 regulated by the board or receiving funds from the 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.
3-6 Sec. 5. CONFLICT OF INTEREST RESTRICTIONS. (a) An officer,
3-7 employee, or paid consultant of a Texas trade association in the
3-8 field of health care may not be a member or employee of the board
3-9 who is exempt from the state's position classification plan or is
3-10 compensated at or above the amount prescribed by the General
3-11 Appropriations Act for step 1, salary group 17, of the position
3-12 classification salary schedule.
3-13 (b) A person who is the spouse of an officer, manager, or
3-14 paid consultant of a Texas trade association in the field of health
3-15 care may not be a board member and may not be an employee of the
3-16 board who is exempt from the state's position classification plan
3-17 or is compensated at or above the amount prescribed by the General
3-18 Appropriations Act for step 1, salary group 17, of the position
3-19 classification salary schedule.
3-20 (c) For the purposes of this section, a Texas trade
3-21 association is a nonprofit, cooperative, and voluntarily joined
3-22 association of business or professional competitors in this state
3-23 designed to assist its members and its industry or profession in
3-24 dealing with mutual business or professional problems and in
3-25 promoting their common interest.
3-26 Sec. 6. EFFECT OF LOBBYING ACTIVITY. A person may not serve
3-27 as a member of the board or act as the general counsel to the board
4-1 if the person is required to register as a lobbyist under Chapter
4-2 305, Government Code, and its subsequent amendments because of the
4-3 person's activities for compensation on behalf of a profession
4-4 related to the operation of the board.
4-5 Sec. 7. GROUNDS FOR REMOVAL FROM BOARD. (a) It is a ground
4-6 for removal from the board if a member:
4-7 (1) does not have at the time of appointment the
4-8 qualifications required by Section 1 of this article;
4-9 (2) does not maintain during service on the board the
4-10 qualifications required by Section 1 of this article;
4-11 (3) violates a prohibition established by Section 4,
4-12 5, or 6 of this article;
4-13 (4) cannot discharge the member's term for a
4-14 substantial part of the term for which the member is appointed
4-15 because of illness or disability; or
4-16 (5) is absent from more than half of the regularly
4-17 scheduled board meetings that the member is eligible to attend
4-18 during a calendar year unless the absence is excused by majority
4-19 vote of the board.
4-20 (b) The validity of an action of the board is not affected
4-21 by the fact that it is taken when a ground for removal of a board
4-22 member exists.
4-23 (c) If the executive director has knowledge that a potential
4-24 ground for removal exists, the executive director shall notify the
4-25 presiding officer of the board of the ground. The presiding
4-26 officer shall then notify the governor that a potential ground for
4-27 removal exists.
5-1 Sec. 8. STAFF. (a) The board shall employ an executive
5-2 director and administrative and clerical employees as necessary to
5-3 carry out the board's functions.
5-4 (b) The board shall develop and implement policies that
5-5 clearly define the respective responsibilities of the board and the
5-6 staff of the board.
5-7 Sec. 9. REGULATORY STATUTES ADMINISTERED. The board shall
5-8 administer and enforce:
5-9 (1) the law regulating registered nurses, Chapter 7,
5-10 Title 71, Revised Statutes, and the chapter's subsequent
5-11 amendments; and
5-12 (2) the law regulating licensed vocational nurses,
5-13 Chapter 118, Acts of the 52nd Legislature, Regular Session, 1951
5-14 (Article 4528c, Vernon's Texas Civil Statutes), and its subsequent
5-15 amendments.
5-16 Sec. 10. SEPARATE LICENSES. (a) The board shall issue
5-17 separate licenses for a registered nurse and a licensed vocational
5-18 nurse.
5-19 (b) The board may issue more than one type of license to a
5-20 person under a law regulated by the board if the person is
5-21 qualified to hold each of the licenses issued. The board shall
5-22 adopt rules relating to the issuance of multiple licenses to a
5-23 person under laws administered by the board.
5-24 Sec. 11. RULES. (a) The board may only adopt rules
5-25 proposed to the board by a rules subcommittee established under
5-26 Section 12 of this article. This provision controls
5-27 notwithstanding any conflicting provision of the law regulating
6-1 registered nurses, Chapter 7, Title 71, Revised Statutes, and the
6-2 chapter's subsequent amendments, or the law regulating licensed
6-3 vocational nurses, Chapter 118, Acts of the 52nd Legislature,
6-4 Regular Section, 1951 (Article 4528c, Vernon's Texas Civil
6-5 Statutes), and its subsequent amendments.
6-6 (b) If the board does not approve a rule proposed by a rules
6-7 subcommittee, the board shall indicate to the subcommittee the
6-8 reasons that the board did not approve the rule and return the rule
6-9 to the subcommittee for further development.
6-10 Sec. 12. RULES SUBCOMMITTEES. (a) Two rules subcommittees,
6-11 each consisting of three members of the board, are established as
6-12 follows:
6-13 (1) a rules subcommittee relating to the practice of
6-14 registered nurses consisting of two board members who are
6-15 registered nurses and one member who represents the public; and
6-16 (2) a rules subcommittee relating to the practice of
6-17 licensed vocational nurses consisting of two board members who are
6-18 licensed vocational nurses and one member who represents the
6-19 public.
6-20 (b) A member of the board may not serve on more than one
6-21 rules subcommittee.
6-22 (c) The presiding officer of the board shall designate the
6-23 registered nurse board members, licensed vocational nurse board
6-24 members, and public members of each rules subcommittee.
6-25 (d) A rules subcommittee shall develop and recommend to the
6-26 board for approval rules that regulate the profession to which the
6-27 subcommittee relates. A rules subcommittee periodically shall
7-1 review board rules relating to the profession to which the
7-2 subcommittee relates and shall recommend changes in those rules to
7-3 the board. The authority of a rules subcommittee is not affected
7-4 by Section 5(f), Administrative Procedure and Texas Register Act
7-5 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
7-6 subsequent amendments.
7-7 Sec. 13. EXPENDITURES; AUDIT. (a) The board may authorize,
7-8 from funds appropriated to it, all necessary disbursements to carry
7-9 out:
7-10 (1) this article;
7-11 (2) the law regulating registered nurses, Chapter 7,
7-12 Title 71, Revised Statutes, and the chapter's subsequent
7-13 amendments; and
7-14 (3) the law regulating licensed vocational nurses,
7-15 Chapter 118, Acts of the 52nd Legislature, Regular Session, 1951
7-16 (Article 4528c, Vernon's Texas Civil Statutes), and its subsequent
7-17 amendments.
7-18 (b) The financial transactions of the board are subject to
7-19 audit by the state auditor in accordance with Chapter 321,
7-20 Government Code, and its subsequent amendments.
7-21 Sec. 14. ANNUAL FINANCIAL REPORT. The board shall file
7-22 annually with the governor and the presiding officer of each house
7-23 of the legislature a complete and detailed written report
7-24 accounting for all funds received and disbursed by the board during
7-25 the preceding fiscal year. The annual report must be in the form
7-26 and reported in the time provided by the General Appropriations
7-27 Act.
8-1 Sec. 15. PERSONNEL POLICIES. (a) The executive director or
8-2 the executive director's designee shall develop an intra-agency
8-3 career ladder program. The program shall require intra-agency
8-4 posting of all nonentry level positions concurrently with any
8-5 public posting.
8-6 (b) The executive director or the executive director's
8-7 designee shall develop a system of annual performance evaluations
8-8 based on measurable job tasks. All merit pay for board employees
8-9 must be based on the system established under this subsection.
8-10 Sec. 16. EQUAL EMPLOYMENT OPPORTUNITY POLICIES. (a) The
8-11 executive director or the executive director's designee shall
8-12 prepare and maintain a written policy statement to assure
8-13 implementation of a program of equal employment opportunity under
8-14 which all personnel transactions are made without regard to race,
8-15 color, disability, sex, religion, age, or national origin. The
8-16 policy statement must include:
8-17 (1) personnel policies, including policies relating to
8-18 recruitment, evaluation, selection, application, training, and
8-19 promotion of personnel that are in compliance with the Commission
8-20 on Human Rights Act (Article 5221k, Vernon's Texas Civil Statutes),
8-21 and its subsequent amendments;
8-22 (2) a comprehensive analysis of the board workforce
8-23 that meets federal and state guidelines;
8-24 (3) procedures by which a determination can be made of
8-25 significant underuse in the board workforce of all persons for whom
8-26 federal or state guidelines encourage a more equitable balance; and
8-27 (4) reasonable methods to appropriately address those
9-1 areas of underuse.
9-2 (b) A policy statement prepared under Subsection (a) of this
9-3 section must cover an annual period, be updated annually, be
9-4 reviewed by the Commission on Human Rights for compliance with
9-5 Subsection (a)(1) of this section, and be filed with the governor's
9-6 office.
9-7 (c) The governor's office shall deliver a biennial report to
9-8 the legislature based on the information received under Subsection
9-9 (b) of this section. The report may be made separately or as part
9-10 of other biennial reports to the legislature.
9-11 Sec. 17. PUBLIC INTEREST INFORMATION. (a) The board shall
9-12 prepare information of public interest describing the functions of
9-13 the board and the board's procedures by which complaints are filed
9-14 with and resolved by the board. The board shall make the
9-15 information available to the public and appropriate state agencies.
9-16 (b) The board by rule shall establish methods by which
9-17 consumers and service recipients are notified of the name, mailing
9-18 address, and telephone number of the board for the purpose of
9-19 directing complaints to the board. The board may provide for that
9-20 notification:
9-21 (1) on each registration form, application, or written
9-22 contract for services of an individual or entity regulated by the
9-23 board;
9-24 (2) on a sign prominently displayed in the place of
9-25 business of each individual or entity regulated by the board; or
9-26 (3) in a bill for service provided by an individual or
9-27 entity regulated by the board.
10-1 (c) The board shall list along with its regular telephone
10-2 number the toll-free telephone number that may be called to present
10-3 a complaint about a health professional if the toll-free number is
10-4 established under other state law.
10-5 Sec. 18. PUBLIC PARTICIPATION IN BOARD HEARINGS. The board
10-6 shall develop and implement policies that provide the public with a
10-7 reasonable opportunity to appear before the board and to speak on
10-8 any issue under the jurisdiction of the board.
10-9 Sec. 19. PROGRAM ACCESSIBILITY. The board shall prepare and
10-10 maintain a written plan that describes how a person who does not
10-11 speak English can be provided reasonable access to the board's
10-12 programs. The board shall also comply with federal and state laws
10-13 for program and facility accessibility.
10-14 Sec. 20. TRAINING; STANDARDS OF CONDUCT INFORMATION. (a)
10-15 Each board member shall comply with the board member training
10-16 requirements established by any other state agency that is given
10-17 authority to establish the requirements for the board.
10-18 (b) The board shall provide to its members and employees, as
10-19 often as necessary, information regarding their qualifications for
10-20 office or employment under this article and their responsibilities
10-21 under applicable laws relating to standards of conduct for state
10-22 officers or employees.
10-23 Sec. 21. OPEN MEETINGS AND ADMINISTRATIVE PROCEDURE. The
10-24 board is subject to:
10-25 (1) the open meetings law, Chapter 271, Acts of the
10-26 60th Legislature, Regular Session, 1967 (Article 6252-17, Vernon's
10-27 Texas Civil Statutes), and its subsequent amendments; and
11-1 (2) the Administrative Procedure and Texas Register
11-2 Act (Article 6252-13a, Vernon's Texas Civil Statutes) and its
11-3 subsequent amendments.
11-4 Sec. 22. SUNSET PROVISION. The State Board of Examiners for
11-5 Professional Nurses is subject to Chapter 325, Government Code
11-6 (Texas Sunset Act), and its subsequent amendments. Unless
11-7 continued in existence as provided by that chapter, the board is
11-8 abolished and the following laws expire September 1, 2005:
11-9 (1) this article;
11-10 (2) the law regulating registered nurses, Chapter 7,
11-11 Title 71, Revised Statutes, and the chapter's subsequent
11-12 amendments; and
11-13 (3) the law regulating licensed vocational nurses,
11-14 Chapter 118, Acts of the 52nd Legislature, Regular Session, 1951
11-15 (Article 4528c, Vernon's Texas Civil Statutes), and its subsequent
11-16 amendments.
11-17 ARTICLE 2. REGISTERED NURSES
11-18 SECTION 2.01. Article 4514, Revised Statutes, is amended to
11-19 read as follows:
11-20 Art. 4514. RULEMAKING AUTHORITY <Organization of board>
11-21 Sec. 1. <The members of the board shall elect from their
11-22 number a president. Special meetings of said board shall be called
11-23 by the president acting upon the written request of any two
11-24 members. The board shall have the authority and power to make and
11-25 enforce all rules and regulations necessary for the performance of
11-26 its duties and conducting of proceedings before it, to establish
11-27 standards of professional conduct for all persons licensed under
12-1 the provisions of this law in keeping with its purpose and
12-2 objectives, to regulate the practice of professional nursing and to
12-3 determine whether or not an act constitutes the practice of
12-4 professional nursing, not inconsistent with this Act. Such rules
12-5 and regulations shall not be inconsistent with the provisions of
12-6 this law.>
12-7 <Sec. 2.> If the appropriate standing committees of both
12-8 houses of the legislature acting under Subsection (g), Section 5,
12-9 Administrative Procedure and Texas Register Act, as amended
12-10 (Article 6252-13a, Vernon's Texas Civil Statutes), transmit to the
12-11 board statements opposing adoption of a rule under that section,
12-12 the rule may not take effect, or if the rule has already taken
12-13 effect, the rule is repealed effective on the date the board
12-14 receives the committee's statements.
12-15 Sec. 2. <Sec. 3.> The board may not promulgate rules
12-16 restricting competitive bidding or advertising by licensees except
12-17 to prohibit false, misleading, or deceptive practices by the
12-18 person. The board may not include in its rules to prohibit false,
12-19 misleading, or deceptive practices by a person regulated by the
12-20 board a rule that:
12-21 (1) restricts the person's use of any medium for
12-22 advertising;
12-23 (2) restricts the person's personal appearance or use
12-24 of the person's <his or her> voice in an advertisement;
12-25 (3) relates to the size or duration of an
12-26 advertisement by the person; or
12-27 (4) restricts the person's advertisement under a trade
13-1 name.
13-2 <Sec. 4. The executive secretary shall be required to keep a
13-3 record of each meeting of said board, including a register of the
13-4 names of all nurses registered under this law, which shall be at
13-5 all times open to public inspection. The board shall prepare
13-6 information of consumer interest describing the regulatory
13-7 functions of the board and the board's procedures by which consumer
13-8 complaints are filed with and resolved by the board. The board
13-9 shall make the information available to the general public and
13-10 appropriate state agencies. Said board shall assist the proper
13-11 legal authorities in the prosecution of all persons violating any
13-12 provision of this law. Nothing herein shall either expand or
13-13 contract the board's present powers as they relate to the
13-14 regulation of nursing education.>
13-15 <Sec. 5. The board is subject to the open meetings law,
13-16 Chapter 271, Acts of the 60th Legislature, Regular Session, 1967,
13-17 as amended (Article 6252-17, Vernon's Texas Civil Statutes), and
13-18 the Administrative Procedure and Texas Register Act, as amended
13-19 (Article 6252-13a, Vernon's Texas Civil Statutes).>
13-20 Sec. 3. <Sec. 6.> The board may recommend to the Texas State
13-21 Board of Medical Examiners the adoption of rules relating to
13-22 physician's delegating medical acts to persons licensed by the
13-23 board. The recommendations shall be acted on in the same manner as
13-24 a petition for the adoption of a rule by an interested party under
13-25 the Administrative Procedure and Texas Register Act, as amended
13-26 (Article 6252-13a, Vernon's Texas Civil Statutes). The board in
13-27 making recommendations may distinguish between nurses on the basis
14-1 of special training and education. The board <Board of Nurse
14-2 Examiners> in recommending rules and the Texas State Board of
14-3 Medical Examiners in acting on recommended rules shall act, to the
14-4 extent allowable under state and federal statutes and regulations,
14-5 so as to permit the state to obtain its fair share of federal funds
14-6 available for the delivery of health care in this state.
14-7 Sec. 4. <Sec. 7.> The board shall adopt rules establishing:
14-8 (1) any specialized education and training, including
14-9 pharmacology, a registered nurse must have to carry out a
14-10 prescription drug order pursuant to Subdivision (5), Subsection
14-11 (d), Section 3.06, Medical Practice Act (Article 4495b, Vernon's
14-12 Texas Civil Statutes); and
14-13 (2) a system for assigning an identification number to
14-14 a registered nurse who provides the board with evidence of
14-15 completing the required specialized education and training.
14-16 SECTION 2.02. Sections 1, 3, and 4, Article 4518, Revised
14-17 Statutes, are amended to read as follows:
14-18 Sec. 1. It shall be the duty of the Board <of Nurse
14-19 Examiners> to prescribe and publish the minimum requirements and
14-20 standards for a course of study in programs which prepare
14-21 professional nurse practitioners. All other regulations necessary
14-22 to conduct accredited schools of nursing and educational programs
14-23 for the preparation of professional nurses shall be as prescribed
14-24 by the Board, provided, however, that the minimum period of time
14-25 that the Board may require shall be at least two (2) academic years
14-26 and the maximum period of time shall not exceed four (4) calendar
14-27 years. The Board shall accredit such schools of nursing and
15-1 educational programs as meet its requirements and shall deny or
15-2 withdraw accreditation from schools of nursing and educational
15-3 programs which fail to meet the prescribed course of study or other
15-4 standards.
15-5 The Board shall give those persons and organizations affected
15-6 by its orders or decisions under this Article reasonable notice
15-7 thereof, not less than twenty (20) days, and an opportunity to
15-8 appear and be heard with respect to same. The Board shall hear all
15-9 protests or complaints from such persons and organizations affected
15-10 by such rule, regulation or decision as to the inadequacy or
15-11 unreasonableness of any rule, regulation or order promulgated or
15-12 adopted by it, or the injustice of any order or decision by it. If
15-13 any person or organization which shall be affected by such order or
15-14 decision shall be dissatisfied with any regulation, rule or order
15-15 by such Board, such person or organization shall have the right,
15-16 within thirty (30) days from the date such order is entered, to
15-17 bring an action against said Board in the District Court of Travis
15-18 County, Texas, to have such regulation, rule or order vacated or
15-19 modified, and shall set forth in a petition therefor the principal
15-20 grounds of objection to any or all of such rules, regulations or
15-21 orders. Such appeal as herein provided shall be de novo as that
15-22 term is known and understood in appeals from the Justice Court to
15-23 the County Court.
15-24 Sec. 3. Every applicant for registration under this law
15-25 shall present to the Board <of Nurse Examiners> evidence of
15-26 successful completion of an accredited program of professional
15-27 nursing education and a sworn application and shall upon payment of
16-1 required fees be entitled to take the examination prescribed by the
16-2 Board. Upon making a passing grade, the applicant shall be
16-3 entitled to receive from said Board a certificate attested by the
16-4 seal of said Board, entitling such person to practice as a
16-5 registered nurse in the State of Texas. The Board shall determine
16-6 the score, not to exceed a score required by a majority of the
16-7 states, that constitutes a passing grade on the examination.
16-8 Sec. 4. Any person practicing or offering to practice
16-9 professional nursing in this state for compensation, shall
16-10 hereafter be required to submit evidence to the Board <of Nurse
16-11 Examiners> that the person <he or she> is qualified to practice and
16-12 shall be registered as provided by this law.
16-13 SECTION 2.03. Sections 7(a), (b), and (c), Article 4518,
16-14 Revised Statutes, are amended to read as follows:
16-15 (a) To renew a license to practice as a registered nurse or
16-16 as a licensed vocational nurse, a licensee must demonstrate to the
16-17 satisfaction of the Board completion of the requirement for
16-18 continuing professional education <The Board may recognize,
16-19 prepare, or implement continuing education programs for its
16-20 licensees and may require participation in continuing education
16-21 programs as a condition of renewal of a registration certificate>.
16-22 (b) The Board shall adopt rules relating to the operation of
16-23 the mandatory continuing education programs. In establishing the
16-24 requirement for continuing education, the Board shall consider:
16-25 (1) factors that lead to the competent performance of
16-26 professional duties; and
16-27 (2) the continuing education needs of licensees <The
17-1 Board may not require more than a total of 20 hours of continuing
17-2 education in a two-year registration period and may not require
17-3 that more than 10 of those hours consist of classroom instruction
17-4 in approved programs. The remaining 10 hours may consist of any
17-5 combination of classroom instruction, institutional-based
17-6 instruction, or individualized study>.
17-7 (c) The Board shall adopt rules relating to the adoption or
17-8 approval of mandatory continuing education programs and providers
17-9 and shall adopt rules to evaluate the effectiveness of the programs
17-10 and a licensee's participation and performance in the programs <If
17-11 the Board requires participation in continuing education programs
17-12 as a condition of renewal of a registration certificate, the Board
17-13 shall by rule establish a system for the approval of programs and
17-14 providers of continuing education. In adopting the rules, the
17-15 Board shall consider but is not obligated to approve programs or
17-16 providers approved or accredited through the Board of Accreditation
17-17 of the American Nurses' Association or the National Federation of
17-18 Specialty Nursing Organizations and nurse in-service programs
17-19 offered by hospitals accredited by the Joint Commission on
17-20 Accreditation of Healthcare Organizations, certified by Medicare,
17-21 or maintained or operated by the federal government or the State of
17-22 Texas. The Board may assess programs and providers a fee in an
17-23 amount reasonable and necessary to defray the costs incurred in
17-24 approving providers and programs. The fee collected under this
17-25 subsection shall be deposited in the Professional Nurse
17-26 Registration Fund>.
17-27 SECTION 2.04. Article 4519, Revised Statutes, is amended to
18-1 read as follows:
18-2 Art. 4519. Examination and fee. (a) Upon filing
18-3 application with the intent to take the <for> examination, each
18-4 applicant shall pay an examination fee which shall in no case be
18-5 returned to the applicant. If the applicant passes the
18-6 examination, then no further fee shall be required for
18-7 registration. <Any applicant for registration who fails to
18-8 successfully pass the examination herein provided for shall have
18-9 the right to stand a second examination.> The examination shall be
18-10 given in various cities throughout the State and shall be of such
18-11 character as to determine the fitness of the applicant to practice
18-12 professional nursing. A written examination prepared or offered by
18-13 the board, including a standardized national examination, shall be
18-14 validated by an independent testing professional. Not later than
18-15 the 30th day <Within 30 days> after the date on which a licensing
18-16 examination is administered under this article, the board shall
18-17 notify each examinee of the results of the examination. However,
18-18 if an examination is graded or reviewed by a national testing
18-19 service, the board shall notify each examinee of the results of the
18-20 examination not later than the 14th day <within two weeks> after
18-21 the date the board receives the results from the testing service.
18-22 If the notice of the examination results graded or reviewed by a
18-23 national testing service will be delayed for more than 90 days
18-24 after the examination date, the board shall notify each examinee of
18-25 the reason for the delay before the 90th day. If requested in
18-26 writing by a person who fails the licensing examination, the board
18-27 shall furnish the person with an analysis of the person's
19-1 performance on the examination. If the result of the examination
19-2 be satisfactory to the board, a certificate shall be issued to the
19-3 applicant, signed by the president and executive secretary and
19-4 attested by the seal of said board, which certificate shall qualify
19-5 the person receiving the same to practice professional nursing in
19-6 this State.
19-7 (b) The board by rule shall establish the conditions under
19-8 which an applicant who fails the licensing examination may retake
19-9 the examination. The board may require an applicant to fulfill
19-10 additional educational requirements and may deny an applicant who
19-11 failed the examination the opportunity to retake the examination.
19-12 SECTION 2.05. Article 4521, Revised Statutes, is amended to
19-13 read as follows:
19-14 Art. 4521. LICENSING BY RECIPROCITY <Certificate from
19-15 another state>. (a) To qualify for a temporary license to
19-16 practice as a registered nurse by reciprocity, an applicant for
19-17 licensing must:
19-18 (1) submit to the board a reciprocity fee as
19-19 determined by the board and a completed application given under
19-20 oath, in the form prescribed by the board;
19-21 (2) have possessed at the time of initial licensing as
19-22 a registered nurse other qualifications necessary to have been
19-23 eligible for licensing at that time in this state;
19-24 (3) have presented to the board proof of initial
19-25 licensing by examination and proof that the license and other
19-26 license or licenses granted to the applicant by any other state
19-27 have not been suspended, revoked, canceled, surrendered, or
20-1 otherwise restricted for any reason; and
20-2 (4) submit to the board a notice of sponsorship of the
20-3 applicant by a licensee of the state under whom the applicant will
20-4 practice.
20-5 (b) A holder of a temporary license under this section shall
20-6 receive a permanent license if the applicant:
20-7 (1) has verified the academic and professional
20-8 credentials of the applicant; and
20-9 (2) satisfies any other requirement set by statute.
20-10 (c) An applicant is not eligible for licensing by
20-11 reciprocity unless the state in which the applicant was initially
20-12 licensed as a registered nurse also grants reciprocal licensing to
20-13 registered nurses licensed by examination in this state, under like
20-14 circumstances and conditions.
20-15 (d) The board shall either grant or deny an application for
20-16 a permanent license within 180 days after the date of the board's
20-17 receipt of all required forms or information.
20-18 (e) The board shall adopt rules relating to the conditions
20-19 of sponsorship under Subsection (a)(4) of this article, including
20-20 waiver of the requirement in the event of a hardship. <Any
20-21 applicant who holds a registration certificate as a registered
20-22 nurse from another state, district, territory or possession of the
20-23 United States, or from a foreign country, may be issued a license
20-24 to practice as a registered nurse in the State of Texas by
20-25 endorsement and without examination upon the payment of a fee
20-26 established by the board, provided in the opinion of the Board of
20-27 Nurse Examiners such other board issuing such other certificate in
21-1 its examination required the same general degree of fitness
21-2 required by this state.>
21-3 SECTION 2.06. Chapter 7, Title 71, Revised Statutes, is
21-4 amended by adding Articles 4524A-4524E to read as follows:
21-5 Art. 4524A. PUBLIC INTEREST INFORMATION AND COMPLAINTS;
21-6 PUBLIC ACCESS TO BOARD FUNCTIONS. (a) The board shall prepare
21-7 information of public interest describing the functions of the
21-8 board and the board's procedures by which complaints are filed with
21-9 and resolved by the board. The board shall make the information
21-10 available to the public and appropriate state agencies.
21-11 (b) The board by rule shall establish methods by which
21-12 consumers and care recipients are notified of the name, mailing
21-13 address, and telephone number of the board for the purpose of
21-14 directing complaints to the board. The board may provide for that
21-15 notification:
21-16 (1) on each registration form, application, or written
21-17 contract for services of an individual or entity regulated under
21-18 this chapter;
21-19 (2) on a sign prominently displayed in the place of
21-20 business of each individual or entity regulated under this chapter;
21-21 or
21-22 (3) in a bill for service provided by an individual or
21-23 entity regulated under this chapter.
21-24 (c) The board shall list along with its regular telephone
21-25 number the toll-free telephone number that may be called to present
21-26 a complaint about a health professional if the toll-free number is
21-27 established under other state law.
22-1 (d) The board shall develop and implement policies that
22-2 provide the public with a reasonable opportunity to appear before
22-3 the board and to speak on any issue under the jurisdiction of the
22-4 board.
22-5 (e) The board shall prepare and maintain a written plan that
22-6 describes how a person who does not speak English can be provided
22-7 reasonable access to the board's programs. The board shall also
22-8 comply with federal and state laws for program and facility
22-9 accessibility.
22-10 Art. 4524B. RECORDS OF COMPLAINTS. (a) The board shall
22-11 keep an information file about each complaint filed with the board.
22-12 The board's information file shall be kept current and contain a
22-13 record for each complaint of:
22-14 (1) all persons contacted in relation to the
22-15 complaint;
22-16 (2) a summary of findings made at each step of the
22-17 complaint process;
22-18 (3) an explanation of the legal basis and reason for a
22-19 complaint that is dismissed; and
22-20 (4) other relevant information.
22-21 (b) If a written complaint is filed with the board that the
22-22 board has authority to resolve, the board, at least as frequently
22-23 as quarterly and until final disposition of the complaint, shall
22-24 notify the parties to the complaint of the status of the complaint
22-25 unless the notice would jeopardize an undercover investigation.
22-26 (c) The board by rule shall adopt a form to standardize
22-27 information concerning complaints made to the board. The board by
23-1 rule shall prescribe information to be provided to a person when
23-2 the person files a complaint with the board.
23-3 (d) The board shall provide reasonable assistance to a
23-4 person who wishes to file a complaint with the board.
23-5 Art. 4524C. COMPLAINT INVESTIGATION AND DISPOSITION. (a)
23-6 The board shall adopt rules concerning the investigation of a
23-7 complaint filed with the board. The rules adopted under this
23-8 subsection shall:
23-9 (1) distinguish between categories of complaints;
23-10 (2) ensure that complaints are not dismissed without
23-11 appropriate consideration;
23-12 (3) require that the board be advised of a complaint
23-13 that is dismissed and that a letter be sent to the person who filed
23-14 the complaint explaining the action taken on the dismissed
23-15 complaint;
23-16 (4) ensure that the person who filed the complaint has
23-17 an opportunity to explain the allegations made in the complaint;
23-18 and
23-19 (5) prescribe guidelines concerning the categories of
23-20 complaints that require the use of a private investigator and the
23-21 procedures for the board to obtain the services of a private
23-22 investigator.
23-23 (b) The board shall dispose of all complaints in a timely
23-24 manner. The board shall establish a timeline for conducting each
23-25 phase of a complaint that is under the control of the board not
23-26 later than the 30th day after the date the complaint is received by
23-27 the board. The timeline shall be kept in the information file for
24-1 the complaint and all parties shall be notified of the projected
24-2 time requirements for pursuing the complaint. A change in the
24-3 timeline must be noted in the complaint information file and all
24-4 parties to the complaint must be notified not later than the
24-5 seventh day after the date the change is made.
24-6 (c) The executive director of the board shall notify the
24-7 board of a complaint that extends beyond the time prescribed by the
24-8 board for resolving the complaint so that the board may take
24-9 necessary action on the complaint.
24-10 Art. 4524D. INFORMAL PROCEEDINGS. (a) The board by rule
24-11 shall adopt procedures governing:
24-12 (1) informal disposition of a contested case under
24-13 Section 13(e), Administrative Procedure and Texas Register Act
24-14 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
24-15 subsequent amendments; and
24-16 (2) informal proceedings held in compliance with
24-17 Section 18(c), Administrative Procedure and Texas Register Act
24-18 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
24-19 subsequent amendments.
24-20 (b) Rules adopted under this article must provide the
24-21 complainant and the licensee an opportunity to be heard and must
24-22 require the presence of a representative of the office of the
24-23 attorney general to advise the board or the board's employees.
24-24 Art. 4524E. MONITORING OF LICENSEE. The board by rule shall
24-25 develop a system for monitoring licensees' compliance with the
24-26 requirements of this chapter. Rules adopted under this article
24-27 shall include procedures for monitoring a licensee who is ordered
25-1 by the board to perform certain acts to ascertain that the licensee
25-2 performs the required acts and to identify and monitor licensees
25-3 who represent a risk to the public.
25-4 SECTION 2.07. Article 4525, Revised Statutes, is amended by
25-5 amending Subsections (a), (b), and (e) and adding Subsection (k) to
25-6 read as follows:
25-7 (a) The board <of nurse examiners> may refuse to admit
25-8 persons to its examinations, may refuse to issue a license or
25-9 certificate of registration or to issue a certificate of
25-10 re-registration, may refuse to issue a temporary permit, may issue
25-11 a warning or reprimand with or without stipulations, may suspend
25-12 for any period not to exceed 5 years, or may revoke the license or
25-13 certificate of any practitioner of professional nursing, for any of
25-14 the following reasons:
25-15 (1) The violation of any of the provisions of this
25-16 law, any rule, regulation not inconsistent with this law, or order
25-17 issued hereinunder.
25-18 (2) Is guilty of fraud or deceit in procuring or
25-19 attempting to procure a license to practice professional nursing.
25-20 (3) Conviction of a crime of the grade of felony, or a
25-21 crime of lesser grade which involves moral turpitude, or any
25-22 conduct resulting in the revocation of probation imposed pursuant
25-23 to such conviction.
25-24 (4) The use of any nursing license, certificate,
25-25 diploma or permit, or transcript of such license, certificate,
25-26 diploma or permit, which has been fraudulently purchased, issued,
25-27 counterfeited, or materially altered.
26-1 (5) The impersonation of, or the acting as a proxy
26-2 for, another in any examination required by law to obtain a license
26-3 to practice professional nursing.
26-4 (6) Aiding or abetting, directly or indirectly, or in
26-5 any manner whatsoever, any unlicensed person in connection with the
26-6 unauthorized practice of professional nursing.
26-7 (7) Revocation, suspension, or denial of or any other
26-8 action relating to the license to practice nursing in another
26-9 jurisdiction. Certified copy of the order of denial, suspension,
26-10 revocation, or any other action shall be conclusive evidence
26-11 thereof.
26-12 (8) Intemperate use of alcohol or drugs that the board
26-13 determines endangers or could endanger patients. Intemperate use
26-14 includes but is not limited to practicing professional nursing or
26-15 being on duty or call while under the influence of alcohol or
26-16 drugs.
26-17 (9) Unprofessional or dishonorable conduct which, in
26-18 the opinion of the board, is likely to deceive, defraud, or injure
26-19 patients or the public.
26-20 (10) Adjudication of mental incompetency.
26-21 (11) Lack of fitness to practice by reason of mental
26-22 or physical health that could result in injury to patients or the
26-23 public.
26-24 (12) Failing to care adequately for patients or to
26-25 conform to the minimum standards of acceptable professional nursing
26-26 practice that, in the opinion of the board, exposes a patient or
26-27 other person unnecessarily to risk of harm.
27-1 (b) Proceedings under this article shall be begun by filing
27-2 a written complaint with the board <of nurse examiners>. Such
27-3 complaint may be made by any person or filed by the board on its
27-4 own initiative. Unless it would jeopardize an investigation, the
27-5 board shall notify the registered nurse that a complaint has been
27-6 filed and the nature of the complaint after a determination of the
27-7 identity of the subject of the complaint. <An information file
27-8 about each complaint filed relating to a licensee shall be
27-9 maintained by the board. If a written complaint is filed with the
27-10 board relating to a licensee, the board at least as frequently as
27-11 quarterly and until final disposition of the complaint, shall
27-12 notify the party that filed the complaint of the status of the file
27-13 unless notice would jeopardize an investigation.> The board shall
27-14 make a timely and appropriate preliminary investigation of the
27-15 complaint and may issue a warning or reprimand to the person
27-16 against whom the complaint was filed. If the investigation reveals
27-17 probable cause to take further disciplinary action, the board shall
27-18 either attempt an informal disposition of the complaint or file
27-19 formal charges against the registered nurse stating the provisions
27-20 of this chapter or the board's rules that are alleged to have been
27-21 violated and a brief description of the acts or omissions that
27-22 constituted the violation. If the board proposes to refuse to
27-23 admit a person to its examination, to refuse to issue a temporary
27-24 permit, license, certificate of registration, certificate of
27-25 re-registration, or to suspend or revoke a person's permit,
27-26 license, or certificate, the person is entitled to a hearing before
27-27 the State Office of Administrative Hearings <board. The hearing
28-1 may be before a subcommittee of the board, a majority of which is
28-2 composed of registered nurses. The person shall on request be
28-3 granted a hearing before the entire board>. Proceedings for a
28-4 disciplinary action are governed by the Administrative Procedure
28-5 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
28-6 Statutes). The board may assess a person found to have violated
28-7 any provision of this chapter the administrative costs of
28-8 conducting a hearing to determine that violation. If a licensed
28-9 professional nurse voluntarily surrenders his or her license to the
28-10 board and executes a sworn statement that he or she no longer
28-11 desires to be licensed, the board may revoke his or her license
28-12 without the necessity of formal charges, notice, or opportunity of
28-13 hearing.
28-14 (e) The board <of nurse examiners> is charged with the duty
28-15 of aiding in the enforcement of the provisions of this chapter, and
28-16 may retain legal counsel to represent the board, but prior to
28-17 retaining outside legal counsel, the board shall request the
28-18 attorney general to perform such services and may only retain
28-19 outside counsel if the attorney general so certifies to the board
28-20 that the attorney general cannot provide such services. The board
28-21 shall have the power to issue subpoenas, compel the attendance of
28-22 witnesses, administer oaths to persons giving testimony at
28-23 hearings, and cause the prosecution of all persons violating any
28-24 provisions of this chapter. It shall keep a record of all its
28-25 proceedings and make an annual report to the Governor. Any member
28-26 of the board may present to a prosecuting officer complaints
28-27 relating to violations of any of the provisions of this chapter,
29-1 and the board through its members, officers, counsel, or agents
29-2 shall assist in the trial of any cases involving alleged violation
29-3 of this chapter, subject to the control of the prosecuting
29-4 officers. The Attorney General is directed to render such legal
29-5 assistance as may be necessary in enforcing and making effective
29-6 the provisions of this chapter; provided that this shall not
29-7 relieve the local prosecuting officers of any of their duties under
29-8 the law as such.
29-9 (k) The schedule of sanctions adopted by the board by rule
29-10 shall be used by the State Office of Administrative Hearings for
29-11 any sanction imposed as the result of a hearing conducted by that
29-12 office.
29-13 SECTION 2.08. Article 4525a, Revised Statutes, is amended by
29-14 adding Section 16A to read as follows:
29-15 Sec. 16A. The board by rule shall define actions or
29-16 omissions that must be reported and actions or omissions that are
29-17 not required to be reported under this article.
29-18 SECTION 2.09. Chapter 7, Title 71, Revised Statutes, is
29-19 amended by adding Article 4525c to read as follows:
29-20 Art. 4525c. MEMORANDUM OF UNDERSTANDING. The board shall
29-21 sign a memorandum of understanding with state agencies that license
29-22 a facility required by law to have a registered nurse peer review
29-23 committee. The memorandum of understanding shall:
29-24 (1) state the actions the board and agency shall take
29-25 to comply with the requirement to have a registered nurse peer
29-26 review committee; and
29-27 (2) be adopted as a rule of the board and the agency.
30-1 SECTION 2.10. Chapter 7, Title 71, Revised Statutes, is
30-2 amended by adding Article 4525d to read as follows:
30-3 Art. 4525d. LIMITED PRACTICE LICENSE. (a) The board may
30-4 issue a limited license to practice nursing in a restricted manner.
30-5 This licensure shall be issued if a nurse is unable to practice the
30-6 full range of nursing safely due to a physical or mental
30-7 disability.
30-8 (b) The board by rule may provide for the issuance of a
30-9 temporary license.
30-10 SECTION 2.11. Chapter 7, Title 71, Revised Statutes, is
30-11 amended by adding Article 4525e to read as follows:
30-12 Art. 4525e. TEMPORARY SUSPENSION OF LICENSE. If the
30-13 majority of the board or a three-member committee of board members
30-14 designated by the board determines from the evidence or information
30-15 presented to it that a registered nurse by continuation in practice
30-16 would constitute a continuing and imminent threat to the public
30-17 welfare, the board or the three-member committee shall temporarily
30-18 suspend the license of the registered nurse. The license may be
30-19 suspended under this article without notice or hearing on the
30-20 complaint, provided institution of proceedings for a hearing before
30-21 the State Office of Administrative Hearings is initiated
30-22 simultaneously with the temporary suspension and provided that a
30-23 hearing is held as soon as can be accomplished under this chapter
30-24 and the Administrative Procedure and Texas Register Act (Article
30-25 6252-13a, Vernon's Texas Civil Statutes) and its subsequent
30-26 amendments. The State Office of Administrative Hearings shall hold
30-27 a preliminary hearing not later than the 14th day after the date of
31-1 the temporary suspension to determine if probable cause exists that
31-2 a continuing and imminent threat to the public welfare still
31-3 exists. A final hearing on the matter shall be held not later than
31-4 the 61st day after the date of temporary suspension.
31-5 SECTION 2.12. Article 4526, Revised Statutes, is amended to
31-6 read as follows:
31-7 Art. 4526. LICENSE RENEWAL <Re-registration>. The board by
31-8 rule may <shall> adopt a system under which licenses expire on
31-9 various dates during the year <issued by the board shall be renewed
31-10 each biennium>. For the year in which the license expiration date
31-11 is changed, registration fees payable on or before March 31 shall
31-12 be prorated on a monthly basis so that each registrant shall pay
31-13 only that portion of the registration <re-registration> fee that is
31-14 allocable to the months in which the registration is valid. On
31-15 renewal of the license on the new expiration date, the total
31-16 license renewal <re-registration> fee is payable. <The board shall
31-17 notify each licensee at least 30 days in advance of the date of
31-18 expiration of the license. The application for re-registration
31-19 shall be mailed by United States mail to the address shown in the
31-20 board's records. Any application received after the expiration
31-21 date shall be charged a late fee.> If a person's license has been
31-22 expired for <not more than> 90 days or less, the person may renew
31-23 the license by paying to the board the required renewal fee and a
31-24 fee that is one-half the examination fee for the license. If a
31-25 license has been expired for <more than> 90 days but less than one
31-26 year <two years>, the person may renew the license by paying to the
31-27 board all unpaid renewal fees and a fee that is equal to the
32-1 examination fee for the license. If a license has been expired for
32-2 one year or longer <two years or more>, the person may not renew
32-3 the license <on meeting the requirements that the board considers
32-4 necessary>. The person may obtain a new license by submitting to
32-5 reexamination and complying with the requirements and procedures
32-6 for obtaining an original license. However, the board may renew
32-7 without reexamination an expired license of a person who was
32-8 licensed in this state, moved to another state, and is currently
32-9 licensed and has been in practice in the other state for the two
32-10 years preceding application. The person must pay to the board a
32-11 fee that is equal to the examination fee for the license. At least
32-12 30 days before the expiration of the person's license, the board
32-13 shall send written notice of the impending license expiration to
32-14 the person at the person's last known address according to the
32-15 records of the board. If any registered nurse continues to
32-16 practice professional nursing beyond the time for which the nurse
32-17 is registered <or re-registered>, the nurse shall be considered to
32-18 be an illegal practitioner and the license may be revoked or
32-19 suspended.
32-20 SECTION 2.13. Article 4527, Revised Statutes, is amended to
32-21 read as follows:
32-22 Art. 4527. Fees.
32-23 Sec. 1. The board by rule shall establish reasonable and
32-24 necessary fees so that the fees, in the aggregate, produce
32-25 sufficient revenue to cover the cost of administering this chapter.
32-26 The board may not set a fee for an amount less than the amount of
32-27 that fee on September 1, 1993. <The Board of Nurse Examiners shall
33-1 establish reasonable and necessary fees for the administration of
33-2 its functions in amounts not to exceed:>
33-3 <Admission fee to examination ......................... $200>
33-4 <Duplicate or substitute of current certificate ....... 25>
33-5 <Duplicate or substitute of permanent certificate ..... 25>
33-6 <Duplicate permits .................................... 15>
33-7 <Endorsement with or without examination .............. 150>
33-8 <Re-registration ...................................... 50>
33-9 <Issuance of a temporary permit under Art. 4523 ....... 25>
33-10 <Reactivating from inactive status .................... 30>
33-11 <Accreditation of new schools and programs ............ 150>
33-12 <Filing of affidavits in re-change of name ............ 10>
33-13 <Verification of records .............................. 50>
33-14 <Bad checks ........................................... 25>
33-15 <Advanced Nurse Practitioner-initial credentials ...... 50>
33-16 <Advanced Nurse Practitioner-renewal of credentials ... 25>
33-17 <Issuance of declaratory order of eligibility>
33-18 <for license ........................................ 25>
33-19 Sec. 2. The board may receive gifts, grants, or other funds
33-20 or assets. <The Board shall not maintain unnecessary fund
33-21 balances, and fee amounts shall be set in accordance with this
33-22 requirement. The Board shall set and collect a sales charge for
33-23 copies of any paper or record in the office of the Board and for
33-24 any printed material published by the Board. The charges are to be
33-25 in an amount considered sufficient to reimburse the Board for its
33-26 actual expenses. All fees received by said Board under this law
33-27 shall be placed in the State Treasury to the credit of a special
34-1 fund to be known as the "Professional Nurse Registration Fund" and
34-2 the Comptroller shall upon requisition of the Board from time to
34-3 time draw warrants upon the State Treasurer for the amounts
34-4 specified in such requisition; provided, however, all fees
34-5 collected by the Board and deposited in the Professional Nurse
34-6 Registration Fund shall be expended as specified by itemized
34-7 appropriation in the General Appropriations Act and shall be used
34-8 by the Board, and under its directions, only for purposes of
34-9 carrying out this Act. The Board may use any of the fees and
34-10 charges collected by it, as necessary, to retain, hire, or contract
34-11 for additional prosecutors, hearing examiners, investigators, and
34-12 support staff as necessary to aid in the investigation of
34-13 complaints and the prosecution of persons subject to the Board's
34-14 jurisdiction. This provision shall apply to all fees of whatsoever
34-15 nature as permitted by law. The financial transactions of the
34-16 Board are subject to audit by the state auditor in accordance with
34-17 Chapter 321, Government Code.>
34-18 SECTION 2.14. Article 4527b, Revised Statutes, is amended to
34-19 read as follows:
34-20 Art. 4527b. PENALTIES <Penalty>. (a) A person who violates
34-21 any provision of Article 4527a, Revised Statutes, commits an
34-22 offense. Except as provided by this section, an offense under that
34-23 article is a Class A misdemeanor. If it is shown in the trial of a
34-24 person allegedly in violation of that article that the person has
34-25 once before been convicted of a violation of Article 4527a, on
34-26 conviction the person shall be punished for a third degree felony.
34-27 Each day of violation constitutes a separate offense. On final
35-1 conviction of an offense under that article, a person forfeits all
35-2 rights and privileges conferred by virtue of licensure under this
35-3 chapter.
35-4 (b) A person who violates Article 4527a, Revised Statutes,
35-5 is liable to the state for a civil penalty that does not exceed
35-6 $1,000 a day. The civil penalty may be collected in a suit
35-7 initiated by the board.
35-8 SECTION 2.15. Chapter 7, Title 71, Revised Statutes, is
35-9 amended by adding Article 4527d to read as follows:
35-10 Art. 4527d. ADMINISTRATIVE PENALTIES. (a) If a person
35-11 licensed under this chapter violates a provision of this chapter or
35-12 a rule or order adopted by the board under this chapter, the board
35-13 may assess an administrative penalty against the person as provided
35-14 by this article.
35-15 (b) The penalty for each violation may be in an amount not
35-16 to exceed $2,500. Each day a violation continues or occurs may be
35-17 considered a separate violation for purposes of penalty
35-18 assessments.
35-19 (c) In determining the amount of the penalty, the executive
35-20 director shall consider:
35-21 (1) the seriousness of the violation, including but
35-22 not limited to the nature, circumstances, extent, and gravity of
35-23 the prohibited acts, and the hazard or potential hazard created to
35-24 the health or safety of the public;
35-25 (2) the economic damage to property or the environment
35-26 caused by the violation;
35-27 (3) the history of previous violations;
36-1 (4) the amount necessary to deter future violations;
36-2 (5) efforts to correct the violation; and
36-3 (6) any other matter that justice may require.
36-4 (d) If, after investigation of a possible violation and the
36-5 facts surrounding that possible violation, the executive director
36-6 determines that a violation has occurred, the executive director
36-7 may issue a violation report stating the facts on which the
36-8 conclusion that a violation occurred is based, recommending that an
36-9 administrative penalty under this section be imposed on the person
36-10 charged and recommending the amount of that proposed penalty. The
36-11 executive director shall base the recommended amount of the
36-12 proposed penalty on the seriousness of the violation determined by
36-13 consideration of the factors set forth in Subsection (c) of this
36-14 article.
36-15 (e) Not later than the 14th day after the date on which the
36-16 report is issued, the executive director shall give written notice
36-17 of the report to the person charged. The notice shall include a
36-18 brief summary of the charges, a statement of the amount of the
36-19 penalty recommended, and a statement of the right of the person
36-20 charged to a hearing on the occurrence of the violation or the
36-21 amount of the penalty, or both the occurrence of the violation and
36-22 the amount of the penalty.
36-23 (f) Not later than the 20th day after the date on which
36-24 notice is received, the person charged may accept the determination
36-25 of the executive director made under Subsection (d) of this
36-26 article, including the recommended penalty, or make a written
36-27 request for a hearing on the determination.
37-1 (g) If the person charged with the violation accepts the
37-2 determination of the executive director, the board shall issue an
37-3 order approving the determination and ordering the payment of the
37-4 recommended penalty.
37-5 (h) If the person charged requests a hearing or fails to
37-6 timely respond to the notice, the executive director shall set a
37-7 hearing and give notice of the hearing. The hearing shall be held
37-8 by the State Office of Administrative Hearings. The State Office
37-9 of Administrative Hearings shall make findings of fact and
37-10 conclusions of law and promptly issue to the board a proposal for
37-11 decision as to the occurrence of the violation, including a
37-12 recommendation as to the amount of the proposed penalty if a
37-13 penalty is warranted. Based on the findings of fact, conclusions
37-14 of law, and recommendations of the hearing examiner, the board by
37-15 order may find a violation has occurred and may assess a penalty or
37-16 may find that no violation has occurred. All proceedings under
37-17 this subsection are subject to the Administrative Procedure and
37-18 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
37-19 Statutes) and its subsequent amendments.
37-20 (i) The executive director shall give notice of the board's
37-21 order to the person charged. The notice shall include:
37-22 (1) the findings of fact and conclusions of law
37-23 separately stated;
37-24 (2) the amount of the penalty ordered, if any;
37-25 (3) a statement of the right of the person charged to
37-26 judicial review of the board's order, if any; and
37-27 (4) other information required by law.
38-1 (j) Within the 30-day period immediately following the day
38-2 on which the order becomes final as provided by Section 16(c),
38-3 Administrative Procedure and Texas Register Act (Article 6252-13a,
38-4 Vernon's Texas Civil Statutes), and its subsequent amendments, the
38-5 person charged with the penalty shall:
38-6 (1) pay the penalty in full; or
38-7 (2) if the person files a petition for judicial review
38-8 contesting either the amount of the penalty or the fact of the
38-9 violation or contesting both the fact of the violation and the
38-10 amount of the penalty:
38-11 (A) forward the amount to the executive director
38-12 for placement in an escrow account; or
38-13 (B) in lieu of payment into escrow, post with
38-14 the executive director a supersedeas bond in a form approved by the
38-15 executive director for the amount of the penalty, the bond to be
38-16 effective until all judicial review of the order or decision is
38-17 final.
38-18 (k) If a person charged is financially unable to either
38-19 forward the amount of the penalty for placement in an escrow
38-20 account or post a supersedeas bond for the amount of the penalty,
38-21 the person may satisfy the requirements of Subsection (j)(2) of
38-22 this section by filing with the executive director an affidavit
38-23 sworn by the person charged, stating that the person is financially
38-24 unable to either forward the amount of the penalty or post a bond.
38-25 (l) Failure to forward the money to or to post the bond or
38-26 file the affidavit with the executive director within the time
38-27 provided by Subsection (j) of this article results in a waiver of
39-1 all legal rights to judicial review. Also, if the person charged
39-2 fails to pay the penalty in full as provided under Subsection
39-3 (j)(1) of this article or forward the money, post the bond, or file
39-4 the affidavit as provided by Subsection (j) or (k) of this article,
39-5 the executive director may forward the matter to the attorney
39-6 general for enforcement.
39-7 (m) Judicial review of the order or decision of the board
39-8 assessing the penalty shall be under the substantial evidence rule
39-9 and shall be instituted by filing a petition with a district court
39-10 in Travis County, as provided by Section 19, Administrative
39-11 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
39-12 Civil Statutes), and its subsequent amendments.
39-13 (n) If the penalty is reduced or not assessed by the court,
39-14 the executive director shall remit to the person charged the
39-15 appropriate amount plus accrued interest if the penalty has been
39-16 paid or shall execute a release of the bond if a supersedeas bond
39-17 has been posted. The accrued interest on amounts remitted by the
39-18 executive director under this subsection shall be paid at a rate
39-19 equal to the rate charged on loans to depository institutions by
39-20 the New York Federal Reserve Bank and shall be paid for the period
39-21 beginning on the date the penalty is paid to the executive director
39-22 under Subsection (j) of this article and ending on the date the
39-23 penalty is remitted.
39-24 (o) A penalty collected under this section for a violation
39-25 by a person licensed under this chapter shall be deposited in the
39-26 general revenue fund.
39-27 ARTICLE 3. LICENSED VOCATIONAL NURSES
40-1 SECTION 3.01. Sections 1(a) and (b), Chapter 118, Acts of
40-2 the 52nd Legislature, Regular Session, 1951 (Article 4528c,
40-3 Vernon's Texas Civil Statutes), are amended to read as follows:
40-4 (a) "Board" means the State Board of <Vocational
40-5 Nurse> Examiners for Professional Nurses.
40-6 (b) "Licensed Vocational Nurse" means a person who is
40-7 licensed under this Act by the State Board of <Vocational Nurse>
40-8 Examiners for Professional Nurses.
40-9 SECTION 3.02. Section 6, Chapter 118, Acts of the 52nd
40-10 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
40-11 Civil Statutes), is amended to read as follows:
40-12 Sec. 6. Examination and Licenses. (a) Except as provided
40-13 in Section 7 of this Act, every person desiring to be licensed as a
40-14 Licensed Vocational Nurse or use the abbreviation L.V.N. in the
40-15 State of Texas, shall be required to pass the examination given by
40-16 the State Board of <Vocational Nurse> Examiners for Professional
40-17 Nurses <or its delegate>. The applicant shall make application by
40-18 presenting to <the secretary of> the Board, on forms furnished by
40-19 the Board, satisfactory sworn evidence that the applicant has had
40-20 at least two (2) years of high school education or its equivalent
40-21 and has completed an approved course <of not less than twelve (12)
40-22 months> in an approved school for educating vocational nurses. An
40-23 approved school as used herein shall mean one approved by the
40-24 Board. Application for examination by the Board or its delegate
40-25 shall be made at least thirty (30) days prior to the date set for
40-26 the examination.
40-27 (b) The Board in its discretion may waive the requirement in
41-1 Subsection (a) of this section for completion of a course in an
41-2 approved school for educating vocational or practical nurses upon
41-3 presentation of satisfactory sworn evidence that the applicant has
41-4 completed an acceptable level <at least two (2) years> of education
41-5 in a nursing school approved by the State Board of <Nurse>
41-6 Examiners for Professional Nurses <of Texas> or in some other
41-7 school of professional nurse education located in another state,
41-8 the District of Columbia, a possession of the United States, or a
41-9 foreign country. The Board by rule shall determine acceptable
41-10 levels of education. The Board shall have the written portion of
41-11 the examination, if any, validated by an independent testing
41-12 professional. If the applicant received training in another state,
41-13 the District of Columbia, a possession of the United States, or a
41-14 foreign country, the applicant must present evidence satisfactory
41-15 to the Board that the nursing education received is equivalent to
41-16 that required for licensure as a vocational nurse in this state.
41-17 (c) Not later than the 30th day <Within 30 days> after the
41-18 date a licensing examination is administered under this Act, the
41-19 Board shall notify each examinee of the results of the examination.
41-20 However, if an examination is graded or reviewed by a national
41-21 testing service, the Board shall notify each examinee of the
41-22 results of the examination within two weeks after the date the
41-23 Board receives the results from the testing service. If the notice
41-24 of the examination results will be delayed for more than 90 days
41-25 after the examination date, the Board shall notify each examinee of
41-26 the reason for the delay before the 90th day. If requested in
41-27 writing by a person who fails the licensing examination
42-1 administered under this Act, the Board shall furnish the person
42-2 with an analysis of the person's performance on the examination or
42-3 other information which the Board has available to it after the
42-4 tests are scored.
42-5 (d) <If an applicant has graduated from an approved
42-6 educational program in vocational nursing in this state, another
42-7 state, or the District of Columbia, or successfully completed two
42-8 years of an associate degree program or diploma program in
42-9 professional nursing education in this state, another state, or the
42-10 District of Columbia, the Board may issue to the applicant, pending
42-11 the results of the licensing examination, a temporary permit to
42-12 practice vocational nursing under the direct supervision of a
42-13 licensed vocational nurse, registered professional nurse, or
42-14 licensed physician. A permit issued to an applicant who fails the
42-15 examination expires on the date indicated on the permit. A permit
42-16 issued to an applicant who passes the examination expires on the
42-17 applicant's receipt of a license from the Board. A permit may not
42-18 be issued to an applicant who has previously failed an examination
42-19 administered by the Board or by another state. The Board may issue
42-20 a temporary permit to practice vocational nursing to an applicant
42-21 who is a vocational or practical nurse who has graduated from an
42-22 approved program for educating vocational or practical nurses,
42-23 holds a license as a vocational or practical nurse from another
42-24 state, the District of Columbia, or a possession of the United
42-25 States, and has actually been engaged in the practice of vocational
42-26 or practical nursing within the past five years. Such an applicant
42-27 must practice under the direct supervision of a licensed vocational
43-1 nurse, registered professional nurse, or licensed physician. A
43-2 temporary permit issued to an applicant from another state, the
43-3 District of Columbia, or a possession of the United States expires
43-4 on receipt of a license from the Board or on the expiration of 90
43-5 days, whichever occurs first. The Board may, by mutual agreement,
43-6 assign the function of physical distribution of the temporary
43-7 permits to an agent designated by the Board to act on behalf of the
43-8 Board.>
43-9 <(e)> Any nurse who is licensed under the provisions of this
43-10 Act, when on duty in a public or private hospital, nursing home, or
43-11 licensed health-care facility, shall wear identifying insignia on
43-12 white caps or uniforms.
43-13 SECTION 3.03. Section 7, Chapter 118, Acts of the 52nd
43-14 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
43-15 Civil Statutes), is amended to read as follows:
43-16 Sec. 7. QUALIFICATION FOR LICENSING BY RECIPROCITY
43-17 <Endorsement>. (a) To qualify for a temporary license to practice
43-18 as a licensed vocational nurse by reciprocity, an applicant for
43-19 licensing must:
43-20 (1) submit to the Board a reciprocity fee as
43-21 determined by the Board and a completed application given under
43-22 oath, in the form prescribed by the Board;
43-23 (2) have possessed at the time of initial licensing as
43-24 a licensed vocational nurse the qualifications necessary to have
43-25 been eligible for licensing at that time in this state;
43-26 (3) have presented to the Board proof of initial
43-27 licensing by examination and proof that the license and other
44-1 license or licenses granted to the applicant by any other state
44-2 have not been suspended, revoked, canceled, surrendered, or
44-3 otherwise restricted for any reason; and
44-4 (4) submit to the Board a notice of sponsorship of the
44-5 applicant by a licensee of the state under whom the applicant will
44-6 practice.
44-7 (b) A holder of a temporary license under this section shall
44-8 receive a permanent license if the applicant:
44-9 (1) has verified the academic and professional
44-10 credentials of the applicant; and
44-11 (2) satisfies any other requirement set by statute.
44-12 (c) An applicant is not eligible for licensing by
44-13 reciprocity unless the state in which the applicant was initially
44-14 licensed as a licensed vocational nurse also grants reciprocal
44-15 licensing to licensed vocational nurses duly licensed by
44-16 examination in this state, under like circumstances and conditions.
44-17 (d) The Board shall either grant or deny an application for
44-18 a permanent license within 180 days after the date of the Board's
44-19 receipt of all required forms or information.
44-20 (e) The Board shall adopt rules relating to the conditions
44-21 of sponsorship under Subsection (a)(4) of this section, including
44-22 waiver of the requirement in the event of a hardship. <Any
44-23 applicant who holds a license as a Vocational Nurse or Practical
44-24 Nurse issued by the District of Columbia or another state whose
44-25 requirements are equal to those of Texas, and whose individual
44-26 qualifications shall be equivalent to those required by this law,
44-27 may be granted a license to practice nursing as a Licensed
45-1 Vocational Nurse in this State without examination provided the
45-2 required fee is paid to the Board by such applicant.>
45-3 SECTION 3.04. Sections 8(a), (b), and (c), Chapter 118, Acts
45-4 of the 52nd Legislature, Regular Session, 1951 (Article 4528c,
45-5 Vernon's Texas Civil Statutes), are amended to read as follows:
45-6 (a) The Board <board> by rule shall adopt a system under
45-7 which licenses expire on various dates during the year <every two
45-8 years>. For the year in which the license expiration date is
45-9 changed, license fees payable on September 1 shall be prorated on a
45-10 monthly basis so that each licensee shall pay only that portion of
45-11 the license fee which is allocable to the number of months during
45-12 which the license is valid. On renewal of the license on the new
45-13 expiration date, the total license renewal fee is payable.
45-14 (b) At <The Board shall notify each licensee about the
45-15 expiration date of the person's license at> least 30 days before
45-16 the expiration of a person's license, the Board <date. The Board
45-17 by United States mail> shall send written notice of the impending
45-18 license expiration to the person, at the person's last known
45-19 address according to the Board's records <with the notice an
45-20 application for license renewal to the licensee's address contained
45-21 in the Board's records. A licensee whose completed application for
45-22 renewal is received by the Board after the expiration date of the
45-23 license shall be charged a late fee>.
45-24 (c) If a person's license has been expired for <not more
45-25 than> 90 days or less, the person may renew the license by paying
45-26 to the Board the required renewal fee and a fee that is one-half
45-27 the examination fee for the license. If a person's license has
46-1 been expired for more than 90 days but less than one year <two
46-2 years>, the person may renew the license by paying to the Board all
46-3 unpaid renewal fees and a fee that is equal to the examination fee
46-4 for the license. If a person's license has been expired for one
46-5 year or longer <two years or more>, the person may not renew the
46-6 license <by complying with the requirements set forth in
46-7 substantive rules adopted by the Board>. The person may obtain a
46-8 new license by submitting to reexamination and complying with the
46-9 requirements and procedures for obtaining an original license.
46-10 However, the Board may renew without examination an expired license
46-11 of a person who was licensed in this state, moved to another state,
46-12 and is currently licensed and has been in practice in the other
46-13 state for the two years preceding application. The person must pay
46-14 to the Board a fee that is equal to the examination fee for the
46-15 license.
46-16 SECTION 3.05. Chapter 118, Acts of the 52nd Legislature,
46-17 Regular Session, 1951 (Article 4528c, Vernon's Texas Civil
46-18 Statutes), is amended by adding Section 8A to read as follows:
46-19 Sec. 8A. MANDATORY CONTINUING EDUCATION REQUIREMENTS.
46-20 (a) To renew a license, a licensee must demonstrate to the
46-21 satisfaction of the Board completion of the requirement for
46-22 continuing professional education.
46-23 (b) The Board shall adopt rules relating to the operation of
46-24 the mandatory continuing education programs. In establishing the
46-25 requirement for continuing education, the Board shall consider:
46-26 (1) factors that lead to the competent performance of
46-27 professional duties; and
47-1 (2) the continuing education needs of licensees.
47-2 (c) The Board shall adopt rules relating to the adoption or
47-3 approval of mandatory continuing education programs and providers
47-4 and shall adopt rules to evaluate the effectiveness of the programs
47-5 and a licensee's participation and performance in the programs.
47-6 SECTION 3.06. Section 9, Chapter 118, Acts of the 52nd
47-7 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
47-8 Civil Statutes), is amended to read as follows:
47-9 Sec. 9. Fees. <(a)> The Board by rule shall establish
47-10 reasonable and necessary fees so that the fees, in the aggregate,
47-11 produce sufficient revenue to cover the cost of administering this
47-12 Act. The fees set by the Board may be adjusted so that the total
47-13 fees collected shall be sufficient to meet the expenses of
47-14 administering this Act. The Board may not set a fee for an amount
47-15 less than the amount of that fee on September 1, 1993. <for the
47-16 administration of this Act in amounts not to exceed:>
47-17 <(1) examination and application fee: $40;>
47-18 <(2) reexamination fee: $40;>
47-19 <(3) renewal fee: $20;>
47-20 <(4) endorsement fee: $40;>
47-21 <(5) accreditation of new programs fee: $75;>
47-22 <(6) duplicate temporary permit or license fee: $10;>
47-23 <(7) filing of affidavits in rechange of name fee:
47-24 $10;>
47-25 <(8) endorsement to another state fee: $40; and>
47-26 <(9) reactivating from inactive status fee: $30.>
47-27 <The Board shall not maintain unnecessary fund balances, and fee
48-1 amounts shall be set in accordance with this requirement.>
48-2 <(b) All expenses under this Act shall be paid from fees
48-3 collected by the Board under this Act, and no expense incurred
48-4 under this Act shall ever be charged against the funds of the State
48-5 of Texas.>
48-6 <(c) On or before January 1 of each year, the Board shall
48-7 make in writing to the Governor and the presiding officer of each
48-8 house of the legislature a complete and detailed report accounting
48-9 for all funds received and disbursed by the Board during the
48-10 preceding year.>
48-11 SECTION 3.07. Chapter 118, Acts of the 52nd Legislature,
48-12 Regular Session, 1951 (Article 4528c, Vernon's Texas Civil
48-13 Statutes), is amended by adding Sections 10A-10G to read as
48-14 follows:
48-15 Sec. 10A. PUBLIC INTEREST INFORMATION AND COMPLAINTS; PUBLIC
48-16 ACCESS TO BOARD FUNCTIONS. (a) The Board shall prepare
48-17 information of public interest describing the functions of the
48-18 Board and the Board's procedures by which complaints are filed with
48-19 and resolved by the Board. The Board shall make the information
48-20 available to the public and appropriate state agencies.
48-21 (b) The Board by rule shall establish methods by which
48-22 consumers and service recipients are notified of the name, mailing
48-23 address, and telephone number of the Board for the purpose of
48-24 directing complaints to the Board. The Board may provide for that
48-25 notification:
48-26 (1) on each registration form, application, or written
48-27 contract for services of an individual or entity regulated under
49-1 this Act;
49-2 (2) on a sign prominently displayed in the place of
49-3 business of each individual or entity regulated under this Act; or
49-4 (3) in a bill for service provided by an individual or
49-5 entity regulated under this Act.
49-6 (c) The Board shall list along with its regular telephone
49-7 number the toll-free telephone number that may be called to present
49-8 a complaint about a health professional if the toll-free number is
49-9 established under other state law.
49-10 (d) The Board shall develop and implement policies that
49-11 provide the public with a reasonable opportunity to appear before
49-12 the Board and to speak on any issue under the jurisdiction of the
49-13 Board.
49-14 (e) The Board shall prepare and maintain a written plan that
49-15 describes how a person who does not speak English can be provided
49-16 reasonable access to the Board's programs. The Board shall also
49-17 comply with federal and state laws for program and facility
49-18 accessibility.
49-19 Sec. 10B. RECORDS OF COMPLAINTS. (a) The Board shall keep
49-20 an information file about each complaint filed with the Board. The
49-21 Board's information file shall be kept current and contain a record
49-22 for each complaint of:
49-23 (1) all persons contacted in relation to the
49-24 complaint;
49-25 (2) a summary of findings made at each step of the
49-26 complaint process;
49-27 (3) an explanation of the legal basis and reason for a
50-1 complaint that is dismissed; and
50-2 (4) other relevant information.
50-3 (b) If a written complaint is filed with the Board that the
50-4 Board has authority to resolve, the Board, at least as frequently
50-5 as quarterly and until final disposition of the complaint, shall
50-6 notify the parties to the complaint of the status of the complaint
50-7 unless the notice would jeopardize an undercover investigation.
50-8 (c) The Board by rule shall adopt a form to standardize
50-9 information concerning complaints made to the Board. The Board by
50-10 rule shall prescribe information to be provided to a person when
50-11 the person files a complaint with the Board.
50-12 (d) The Board shall provide reasonable assistance to a
50-13 person who wishes to file a complaint with the Board.
50-14 Sec. 10C. COMPLAINT INVESTIGATION AND DISPOSITION. (a) The
50-15 Board shall adopt rules concerning the investigation of a complaint
50-16 filed with the Board. The rules adopted under this subsection
50-17 shall:
50-18 (1) distinguish between categories of complaints;
50-19 (2) ensure that complaints are not dismissed without
50-20 appropriate consideration;
50-21 (3) require that the Board be advised of a complaint
50-22 that is dismissed and that a letter be sent to the person who filed
50-23 the complaint explaining the action taken on the dismissed
50-24 complaint;
50-25 (4) ensure that the person who filed the complaint has
50-26 an opportunity to explain the allegations made in the complaint;
50-27 and
51-1 (5) prescribe guidelines concerning the categories of
51-2 complaints that require the use of a private investigator and the
51-3 procedures for the Board to obtain the services of a private
51-4 investigator.
51-5 (b) The Board shall dispose of all complaints in a timely
51-6 manner. The Board shall establish a timeline for conducting each
51-7 phase of a complaint that is under the control of the Board not
51-8 later than the 30th day after the date the complaint is received by
51-9 the Board. The timeline shall be kept in the information file for
51-10 the complaint and all parties shall be notified of the projected
51-11 time requirements for pursuing the complaint. A change in the
51-12 timeline must be noted in the complaint information file and all
51-13 parties to the complaint must be notified not later than the
51-14 seventh day after the date the change is made.
51-15 (c) The executive director of the Board shall notify the
51-16 Board of a complaint that extends beyond the time prescribed by the
51-17 Board for resolving the complaint so that the Board may take
51-18 necessary action on the complaint.
51-19 Sec. 10D. INFORMAL PROCEEDINGS. (a) The Board by rule
51-20 shall adopt procedures governing:
51-21 (1) informal disposition of a contested case under
51-22 Section 13(e), Administrative Procedure and Texas Register Act
51-23 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
51-24 subsequent amendments; and
51-25 (2) informal proceedings held in compliance with
51-26 Section 18(c), Administrative Procedure and Texas Register Act
51-27 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
52-1 subsequent amendments.
52-2 (b) Rules adopted under this section must provide the
52-3 complainant and the licensee an opportunity to be heard and must
52-4 require the presence of a representative of the office of the
52-5 attorney general to advise the Board or the Board's employees.
52-6 Sec. 10E. MONITORING OF LICENSEE. The Board by rule shall
52-7 develop a system for monitoring licensees' compliance with the
52-8 requirements of this Act. Rules adopted under this section shall
52-9 include procedures for monitoring a licensee who is ordered by the
52-10 Board to perform certain acts to ascertain that the licensee
52-11 performs the required acts and to identify and monitor licensees
52-12 who represent a risk to the public.
52-13 Sec. 10F. ADMINISTRATIVE PENALTIES. (a) If a person
52-14 licensed under this Act violates a provision of this Act or a rule
52-15 or order adopted by the Board under this Act, the Board may assess
52-16 an administrative penalty against the person as provided by this
52-17 section.
52-18 (b) The penalty for each violation may be in an amount not
52-19 to exceed $1,000. Each day a violation continues or occurs may be
52-20 considered a separate violation for purposes of penalty
52-21 assessments.
52-22 (c) In determining the amount of the penalty, the executive
52-23 director shall consider:
52-24 (1) the seriousness of the violation, including but
52-25 not limited to the nature, circumstances, extent, and gravity of
52-26 the prohibited acts, and the hazard or potential hazard created to
52-27 the health or safety of the public;
53-1 (2) the economic damage to property or the environment
53-2 caused by the violation;
53-3 (3) the history of previous violations;
53-4 (4) the amount necessary to deter future violations;
53-5 (5) efforts to correct the violation; and
53-6 (6) any other matter that justice may require.
53-7 (d) If, after investigation of a possible violation and the
53-8 facts surrounding that possible violation, the executive director
53-9 determines that a violation has occurred, the executive director
53-10 may issue a violation report stating the facts on which the
53-11 conclusion that a violation occurred is based, recommending that an
53-12 administrative penalty under this section be imposed on the person
53-13 charged, and recommending the amount of that proposed penalty. The
53-14 executive director shall base the recommended amount of the
53-15 proposed penalty on the seriousness of the violation determined by
53-16 consideration of the factors set forth in Subsection (c) of this
53-17 section.
53-18 (e) Not later than the 14th day after the date on which the
53-19 report is issued, the executive director shall give written notice
53-20 of the report to the person charged. The notice shall include a
53-21 brief summary of the charges, a statement of the amount of the
53-22 penalty recommended, and a statement of the right of the person
53-23 charged to a hearing on the occurrence of the violation or the
53-24 amount of the penalty, or both the occurrence of the violation and
53-25 the amount of the penalty.
53-26 (f) Not later than the 20th day after the date on which
53-27 notice is received, the person charged may accept the determination
54-1 of the executive director made under Subsection (d) of this
54-2 section, including the recommended penalty, or make a written
54-3 request for a hearing on the determination.
54-4 (g) If the person charged with the violation accepts the
54-5 determination of the executive director, the Board shall issue an
54-6 order approving the determination and ordering the payment of the
54-7 recommended penalty.
54-8 (h) If the person charged requests a hearing or fails to
54-9 timely respond to the notice, the executive director shall set a
54-10 hearing and give notice of the hearing. The hearing shall be held
54-11 by the State Office of Administrative Hearings. The State Office
54-12 of Administrative Hearings shall make findings of fact and
54-13 conclusions of law and promptly issue to the Board a proposal for
54-14 decision as to the occurrence of the violation, including a
54-15 recommendation as to the amount of the proposed penalty if a
54-16 penalty is warranted. Based on the findings of fact, conclusions
54-17 of law, and recommendations of the hearing examiner, the Board by
54-18 order may find a violation has occurred and may assess a penalty or
54-19 may find that no violation has occurred. All proceedings under
54-20 this subsection are subject to the Administrative Procedure and
54-21 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
54-22 Statutes) and its subsequent amendments.
54-23 (i) The executive director shall give notice of the Board's
54-24 order to the person charged. The notice shall include:
54-25 (1) the findings of fact and conclusions of law
54-26 separately stated;
54-27 (2) the amount of the penalty ordered, if any;
55-1 (3) a statement of the right of the person charged to
55-2 judicial review of the Board's order, if any; and
55-3 (4) other information required by law.
55-4 (j) Within the 30-day period immediately following the day
55-5 on which the order becomes final as provided by Section 16(c),
55-6 Administrative Procedure and Texas Register Act (Article 6252-13a,
55-7 Vernon's Texas Civil Statutes), and its subsequent amendments, the
55-8 person charged with the penalty shall:
55-9 (1) pay the penalty in full; or
55-10 (2) if the person files a petition for judicial review
55-11 contesting either the amount of the penalty or the fact of the
55-12 violation or contesting both the fact of the violation and the
55-13 amount of the penalty:
55-14 (A) forward the amount to the executive director
55-15 for placement in an escrow account; or
55-16 (B) in lieu of payment into escrow, post with
55-17 the executive director a supersedeas bond in a form approved by the
55-18 executive director for the amount of the penalty, the bond to be
55-19 effective until all judicial review of the order or decision is
55-20 final.
55-21 (k) If a person charged is financially unable to either
55-22 forward the amount of the penalty for placement in an escrow
55-23 account or post a supersedeas bond for the amount of the penalty,
55-24 the person may satisfy the requirements of Subsection (j)(2) of
55-25 this section by filing with the executive director an affidavit
55-26 sworn by the person charged, stating that the person is financially
55-27 unable to either forward the amount of the penalty or post a bond.
56-1 (l) Failure to forward the money to or to post the bond or
56-2 file the affidavit with the executive director within the time
56-3 provided by Subsection (j) of this section results in a waiver of
56-4 all legal rights to judicial review. Also, if the person charged
56-5 fails to pay the penalty in full as provided under Subsection
56-6 (j)(1) of this section or forward the money, post the bond, or file
56-7 the affidavit as provided by Subsection (j) or (k) of this section,
56-8 the executive director may forward the matter to the attorney
56-9 general for enforcement.
56-10 (m) Judicial review of the order or decision of the Board
56-11 assessing the penalty shall be under the substantial evidence rule
56-12 and shall be instituted by filing a petition with a district court
56-13 in Travis County, as provided by Section 19, Administrative
56-14 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
56-15 Civil Statutes), and its subsequent amendments.
56-16 (n) If the penalty is reduced or not assessed by the court,
56-17 the executive director shall remit to the person charged the
56-18 appropriate amount plus accrued interest if the penalty has been
56-19 paid or shall execute a release of the bond if a supersedeas bond
56-20 has been posted. The accrued interest on amounts remitted by the
56-21 executive director under this subsection shall be paid at a rate
56-22 equal to the rate charged on loans to depository institutions by
56-23 the New York Federal Reserve Bank and shall be paid for the period
56-24 beginning on the date the penalty is paid to the executive director
56-25 under Subsection (j) of this section and ending on the date the
56-26 penalty is remitted.
56-27 (o) A penalty collected under this section for a violation
57-1 by a person licensed under this Act shall be deposited in the
57-2 general revenue fund.
57-3 Sec. 10G. SCHEDULE OF SANCTIONS. The schedule of sanctions
57-4 adopted by the Board by rule shall be used by the State Office of
57-5 Administrative Hearings for any sanction imposed as the result of a
57-6 hearing conducted by that office.
57-7 SECTION 3.08. Section 11, Chapter 118, Acts of the 52nd
57-8 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
57-9 Civil Statutes), is amended by adding Subsection (c) to read as
57-10 follows:
57-11 (c) A person who violates this Act is liable to the state
57-12 for a civil penalty that does not exceed $1,000 a day. The civil
57-13 penalty may be collected in a suit initiated by the Board.
57-14 SECTION 3.09. Chapter 118, Acts of the 52nd Legislature,
57-15 Regular Session, 1951 (Article 4528c, Vernon's Texas Civil
57-16 Statutes), is amended by adding Section 14 to read as follows:
57-17 Sec. 14. COMPETITIVE BIDDING OR ADVERTISING. The Board may
57-18 not adopt rules restricting competitive bidding or advertising by a
57-19 licensee of the Board except to prohibit false, misleading, or
57-20 deceptive practices by the licensee. The Board may not include in
57-21 its rules to prohibit false, misleading, or deceptive practices by
57-22 a licensee a rule that:
57-23 (1) restricts the licensee's use of any medium for
57-24 advertising;
57-25 (2) restricts the licensee's personal appearance or
57-26 use of the licensee's voice in an advertisement;
57-27 (3) relates to the size or duration of an
58-1 advertisement by the licensee; or
58-2 (4) restricts the licensee's advertisement under a
58-3 trade name.
58-4 SECTION 3.10. Chapter 118, Acts of the 52nd Legislature,
58-5 Regular Session, 1951 (Article 4528c, Vernon's Texas Civil
58-6 Statutes), is amended by adding Section 15 to read as follows:
58-7 Sec. 15. RESTRICTION ON RULEMAKING AUTHORITY. If the
58-8 appropriate standing committees of both houses of the legislature
58-9 acting under Section 5(g), Administrative Procedure and Texas
58-10 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), and
58-11 its subsequent amendments transmit to the Board statements opposing
58-12 adoption of a rule under that section, the rule may not take effect
58-13 or, if the rule has already taken effect, the rule is repealed
58-14 effective on the date the Board receives the committee's
58-15 statements.
58-16 ARTICLE 4. TRANSITION; REPEALER; EFFECTIVE DATE; EMERGENCY
58-17 SECTION 4.01. (a) As soon as possible after the effective
58-18 date of this Act, the governor shall appoint the initial members of
58-19 the State Board of Examiners for Professional Nurses in accordance
58-20 with Article 4513-1, Revised Statutes, as added by this Act. In
58-21 making the initial appointments, the governor shall designate
58-22 members to serve terms as follows:
58-23 (1) two members licensed as registered nurses, one
58-24 member licensed as a licensed vocational nurse, and one public
58-25 member serve for terms expiring February 1, 1995;
58-26 (2) one member licensed as a registered nurse, two
58-27 members licensed as licensed vocational nurses, and one public
59-1 member serve for terms expiring February 1, 1997; and
59-2 (3) one member licensed as a registered nurse, one
59-3 member licensed as a licensed vocational nurse, and two public
59-4 members serve for terms expiring February 1, 1999.
59-5 (b) The State Board of Examiners for Professional Nurses may
59-6 not take any action and is not created until the day after the date
59-7 that the last appointee to the initial board takes office. On the
59-8 date of its creation, the board assumes its functions and:
59-9 (1) the Board of Nurse Examiners and the Board of
59-10 Vocational Nurse Examiners are abolished;
59-11 (2) the obligations, rights, contracts, records and
59-12 other property, and personnel of, and unspent money appropriated to
59-13 or for, the abolished boards are transferred to the State Board of
59-14 Examiners for Professional Nurses;
59-15 (3) the rules of the abolished boards are continued in
59-16 effect as rules of the State Board of Examiners for Professional
59-17 Nurses until superseded by rule of the new board;
59-18 (4) the licenses in effect that were issued by the
59-19 abolished boards are continued in effect as licenses of the State
59-20 Board of Examiners for Professional Nurses;
59-21 (5) a complaint or investigation pending before an
59-22 abolished board is transferred without change in status to the
59-23 State Board of Examiners for Professional Nurses;
59-24 (6) a contested case pending before an abolished board
59-25 is transferred to the State Office of Administrative Hearings and
59-26 actions taken in the proceeding are treated as if taken by the
59-27 State Office of Administrative Hearings; and
60-1 (7) any reference in a law to the abolished boards
60-2 means the State Board of Examiners for Professional Nurses.
60-3 (c) Regardless of the changes in law made by this Act, until
60-4 the date that the Board of Nurse Examiners and the Board of
60-5 Vocational Nurse Examiners are abolished as provided by this
60-6 section, the boards continue in existence and shall administer
60-7 their functions under the laws that governed the boards before the
60-8 effective date of this Act, and the prior laws are continued in
60-9 effect for that purpose.
60-10 (d) The State Board of Examiners for Professional Nurses
60-11 shall adopt rules under this Act not later than December 1, 1993.
60-12 SECTION 4.02. The following laws are repealed:
60-13 (1) Articles 4513, 4513a, 4515, 4516, and 4517,
60-14 Revised Statutes; and
60-15 (2) Sections 5 and 10(f), Chapter 118, Acts of the
60-16 52nd Legislature, Regular Session, 1951 (Article 4528c, Vernon's
60-17 Texas Civil Statutes).
60-18 SECTION 4.03. This Act takes effect September 1, 1993.
60-19 SECTION 4.04. The importance of this legislation and the
60-20 crowded condition of the calendars in both houses create an
60-21 emergency and an imperative public necessity that the
60-22 constitutional rule requiring bills to be read on three several
60-23 days in each house be suspended, and this rule is hereby suspended.