1-1 By: Moncrief S.B. No. 839
1-2 (In the Senate - Filed March 11, 1993; March 15, 1993, read
1-3 first time and referred to Committee on Health and Human Services;
1-4 May 5, 1993, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 8, Nays 0; May 5, 1993,
1-6 sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Zaffirini x
1-10 Ellis x
1-11 Madla x
1-12 Moncrief x
1-13 Nelson x
1-14 Patterson x
1-15 Shelley x
1-16 Truan x
1-17 Wentworth x
1-18 COMMITTEE SUBSTITUTE FOR S.B. No. 839 By: Moncrief
1-19 A BILL TO BE ENTITLED
1-20 AN ACT
1-21 relating to the regulation of the practice of vocational nursing
1-22 and to the continuation of the Board of Vocational Nurse Examiners;
1-23 providing penalties.
1-24 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-25 SECTION 1. Subsection (b), Section 1, Chapter 118, Acts of
1-26 the 52nd Legislature, 1951 (Article 4528c, Vernon's Texas Civil
1-27 Statutes), are amended to read as follows:
1-28 (b) "Licensed Vocational Nurse" means a person who is
1-29 licensed under this Act by the Board of Vocational Nurse Examiners.
1-30 SECTION 2. Section 5, Chapter 118, Acts of the 52nd
1-31 Legislature, 1951 (Article 4528c, Vernon's Texas Civil Statutes),
1-32 is amended to read as follows:
1-33 Sec. 5. TERM OF OFFICE, ORGANIZATION, MEETINGS OF BOARD<;
1-34 CONTINUING EDUCATION>. (a) There is hereby created a board to be
1-35 known as the Board of Vocational Nurse Examiners, consisting of
1-36 fifteen (15) <twelve (12)> members to be appointed by the Governor
1-37 and confirmed by the State Senate. Appointments to the Board shall
1-38 be made without regard to the race, creed, sex, religion, or
1-39 national origin of the appointees.
1-40 Seven (7) members of the Board must be Licensed Vocational
1-41 Nurses who are graduates of approved schools of vocational nursing,
1-42 who have been actively engaged in the practice of vocational
1-43 nursing for five (5) years immediately preceding their
1-44 appointments, and who are not licensed physicians, registered
1-45 professional nurses, or hospital administrators.
1-46 One (1) member of the Board must be a Registered Nurse
1-47 licensed by the Board of Nurse Examiners who is actively engaged in
1-48 a teaching, administrative, or supervisory capacity in a vocational
1-49 nursing educational program and who is not a licensed physician,
1-50 hospital administrator, or licensed vocational nurse.
1-51 One (1) member of the Board must be a physician licensed by
1-52 the Texas State Board of Medical Examiners who has been actively
1-53 engaged in the practice of medicine for five (5) years immediately
1-54 preceding appointment and who is not a hospital administrator,
1-55 registered professional nurse, or licensed vocational nurse.
1-56 One (1) member of the Board must be a hospital administrator
1-57 who has been actively engaged in hospital administration for a
1-58 period of five (5) years and who is not a licensed physician,
1-59 registered professional nurse, or licensed vocational nurse.
1-60 Five (5) <Two (2)> members of the Board must be
1-61 representatives of the general public. A person is not eligible
1-62 for appointment as a public member of the Board if the person or
1-63 the person's spouse:
1-64 (1) is registered, certified, or licensed by an
1-65 occupational regulatory agency in the field of health care;
1-66 (2) is employed by or participates in the management
1-67 of a business entity or other organization regulated by the Board
1-68 or receiving funds from the Board;
2-1 (3) owns or controls, directly or indirectly, more
2-2 than a 10 percent interest in a business entity or other
2-3 organization regulated by the Board or receiving funds from the
2-4 Board; or
2-5 (4) uses or receives a substantial amount of tangible
2-6 goods, services, or funds from the Board, other than compensation
2-7 or reimbursement authorized by law for Board membership,
2-8 attendance, or expenses <if the person or the person's spouse is
2-9 licensed by an occupational regulatory agency in the field of
2-10 health care or is employed by, participates in the management of,
2-11 or has, other than as a consumer, a financial interest in a
2-12 business entity or other organization that provides health-care
2-13 services or that sells, manufactures, or distributes health-care
2-14 supplies or equipment>.
2-15 (b) The term of office of each member of the Board shall be
2-16 six (6) years. A member may not immediately succeed the member's
2-17 term <himself (or herself)> in office. In case of death,
2-18 resignation or vacancy from any cause on the Board, the vacancy of
2-19 the unexpired term shall be filled by the Governor within sixty
2-20 (60) days after the occurrence of such vacancy.
2-21 Each appointee to the Board <of Vocational Nurse Examiners>
2-22 shall, within fifteen (15) days of the date of his appointment,
2-23 qualify by taking the constitutional oath of office.
2-24 (c)(1) An officer, employee, or paid consultant of a Texas
2-25 trade association in the field of health care may not be a Board
2-26 member.
2-27 (2) A person who is the spouse of an officer, manager,
2-28 or paid consultant of a Texas trade association in the field of
2-29 health care may not be a Board member.
2-30 (3) For the purposes of this section, a Texas trade
2-31 association is a nonprofit, cooperative, and voluntarily joined
2-32 association of business or professional competitors in this state
2-33 designed to assist its members and its industry or profession in
2-34 dealing with mutual business or professional problems and in
2-35 promoting their common interest. <A member or employee of the
2-36 Board may not be an officer, employee, or paid consultant of a
2-37 national or state trade association in the vocational nursing
2-38 field.>
2-39 (d) A person may not serve as a Board member if the person
2-40 is required to register as a lobbyist under Chapter 305, Government
2-41 Code, and its subsequent amendments, because of the person's
2-42 activities for compensation on behalf of a profession related to
2-43 the operation of the Board. <member or employee of the Board may
2-44 not be related within the second degree by affinity or
2-45 consanguinity, as determined under Article 5996h, Revised Statutes,
2-46 to a person who is an officer, employee, or paid consultant of a
2-47 national or state trade association in the vocational nursing
2-48 field.>
2-49 (e)(1) It is a ground for removal from the Board if a
2-50 member:
2-51 (A) <(1)> does not have at the time of
2-52 appointment the qualifications required by Subsection (a) of this
2-53 section <for appointment to the Board>;
2-54 (B) <(2)> does not maintain during <his> service
2-55 on the Board the qualifications required by Subsection (a) of this
2-56 section <for appointment to the Board>;
2-57 (C) <(3)> violates a prohibition established
2-58 <prescribed> by Subsections <Subsection> (c) and <or> (d) of this
2-59 section;
2-60 (D) cannot discharge the member's duties for a
2-61 substantial part of the term for which the member is appointed
2-62 because of illness or disability; or
2-63 (E) is absent from more than half of the
2-64 regularly scheduled Board meetings that the member is eligible to
2-65 attend during a calendar year unless the absence is excused by
2-66 majority vote of the Board.
2-67 (2) The validity of an action of the Board is not
2-68 affected by the fact that it is taken when a ground for removal of
2-69 a Board member exists.
2-70 (3) If the executive director has knowledge that a
3-1 potential ground for removal exists, the executive director shall
3-2 notify the presiding officer of the Board of the ground. The
3-3 presiding officer shall then notify the governor that a potential
3-4 ground for removal exists.
3-5 <(4) fails to attend at least half of the regularly
3-6 scheduled Board meetings held in a calendar year, excluding
3-7 meetings held while the person was not a Board member.>
3-8 (f) The governor shall designate from the members of the
3-9 Board the President of the Board. The person designated as
3-10 President serves in that capacity at the will of the governor.
3-11 <validity of an action of the Board is not affected by the fact
3-12 that it was taken when a ground for removal of a member of the
3-13 Board existed.>
3-14 <(g)> The Board shall elect a <President,> Vice-president<,>
3-15 and Secretary-treasurer yearly at an annual meeting. The Board may
3-16 make such rules and regulations as may be necessary to govern its
3-17 proceedings and to carry in effect the purposes of this law. The
3-18 Secretary-treasurer shall be required to keep minutes of each
3-19 meeting of said Board, a register of the names of all nurses
3-20 licensed under this law, and books of account of fees received and
3-21 disbursements; and all minutes, the register of Licensed Vocational
3-22 Nurses and books of account shall be at all times open to public
3-23 inspection. The financial transactions of this Board are subject
3-24 to audit by the state auditor in accordance with Chapter 321,
3-25 Government Code. The Board shall employ a person other than a
3-26 member of the Board as the executive director of the Board. The
3-27 executive director shall perform the administrative functions of
3-28 the Board. The Board shall employ other persons that it considers
3-29 necessary in carrying out the provisions of this law. The
3-30 Secretary-treasurer shall be bonded by the Board in such amount as
3-31 may be recommended by the State Auditor.
3-32 (g) <(h) The executive director or his designee shall
3-33 develop a system of annual performance evaluations based on
3-34 measurable job tasks. All merit pay authorized by the executive
3-35 director must be based on the system established under this
3-36 subsection.>
3-37 <(i)> The Board shall employ a full-time Director of
3-38 Education, who shall have had at least five (5) years experience in
3-39 teaching nursing in an accredited school of nursing or an approved
3-40 program in vocational nursing. The Board may select either a
3-41 Licensed Vocational Nurse or a Registered Nurse as the Director of
3-42 Education. The duties of the Director of Education shall be to
3-43 visit and inspect all schools of vocational nursing to determine
3-44 whether the Board's minimum requirements for vocational nursing
3-45 programs are being met. The Board shall prescribe such methods and
3-46 rules of visiting, and such methods of reporting by the Board
3-47 <Director of Education> as may in its judgment be deemed proper.
3-48 (h) <(j)> Regular meetings of the Board shall be held at
3-49 least twice a year, one of which shall be designated as an Annual
3-50 Meeting for election of officers and the reading of auditors'
3-51 reports. At least twice each year the Board shall hold
3-52 examinations in various cities in the state for qualified
3-53 applicants for licensure. Examinations may be held under the
3-54 supervision of a Board member or such other person as the Board may
3-55 specify. Not less than sixty (60) days notice of the holding of
3-56 the examination shall be given by publication in at least three (3)
3-57 daily newspapers of general circulation, to be selected by the
3-58 Board; special meetings shall be held upon request of five (5)
3-59 <four (4)> members of the Board or upon the call of the president;
3-60 eight (8) <six (6)> members of the Board shall constitute a quorum
3-61 for the transaction of business, and should a quorum not be present
3-62 on the day appointed for any meeting, those persons present may
3-63 adjourn from day to day until a quorum shall be present, providing
3-64 that such period shall not be longer than three (3) successive
3-65 days; each member of said Board is entitled to a per diem set by
3-66 legislative appropriation for each day that the member engages in
3-67 the business of the Board. A member may not receive any
3-68 compensation for travel expenses, including expenses for meals and
3-69 lodging, other than transportation expenses. A member is entitled
3-70 to compensation for transportation expenses as provided by the
4-1 General Appropriations Act.
4-2 (i) <(k)> The Board may not adopt rules restricting
4-3 competitive bidding or advertising by a licensee of the Board
4-4 except to prohibit false, misleading, or deceptive practices by the
4-5 licensee. The Board may not include in its rules to prohibit
4-6 false, misleading, or deceptive practices by a licensee a rule
4-7 that:
4-8 (1) restricts the licensee's use of any medium for
4-9 advertising;
4-10 (2) restricts the licensee's personal appearance or
4-11 use of the person's <his> voice in an advertisement;
4-12 (3) relates to the size or duration of an
4-13 advertisement by the licensee; or
4-14 (4) restricts the licensee's advertisement under a
4-15 trade name.
4-16 (j) <(l)(1) The Board may recognize, prepare, or implement
4-17 continuing education programs for licensees and may require
4-18 participation in continuing education programs as a condition of
4-19 renewal of a license.>
4-20 <(2) The Board may not require more than a total of 20
4-21 hours of continuing education in a two-year license period and may
4-22 not require that more than 10 of those hours consist of classroom
4-23 instruction in approved programs. The remaining 10 hours may
4-24 consist of any combination of classroom instruction,
4-25 institutional-based instruction, or individualized study.>
4-26 <(3) If the Board requires participation in continuing
4-27 education programs as a condition of renewal of a license, the
4-28 Board shall by rule establish a system for the approval of programs
4-29 and providers of continuing education. In adopting the rules, the
4-30 board shall consider but is not obligated to approve programs or
4-31 providers approved or accredited through continuing education
4-32 accreditation systems established by national or state associations
4-33 of licensed vocational nurses and nurse in-service programs offered
4-34 by hospitals accredited by the Joint Commission on Accreditation of
4-35 Healthcare Organizations, certified by Medicare, or maintained or
4-36 operated by the federal government or the State of Texas. The
4-37 Board may assess programs and providers a fee in an amount
4-38 reasonable and necessary to defray the costs incurred in approving
4-39 providers and programs. The fee collected under this subsection
4-40 shall be deposited in the Vocational Nurse Examiners Fund.>
4-41 <(4) The Board may adopt other rules as necessary to
4-42 implement this section.>
4-43 <(m)> The Board shall prepare information of consumer
4-44 interest describing the regulatory functions of the Board and the
4-45 Board's procedures by which consumer complaints are filed with and
4-46 resolved by the Board. The Board shall make the information
4-47 available to the general public and appropriate state agencies.
4-48 (k) <(n)> The Board shall enforce this Act. The Board may
4-49 retain outside legal counsel to represent the Board. However,
4-50 before the Board may retain outside counsel, the Board shall
4-51 request the attorney general to perform the necessary services and
4-52 may retain the outside counsel only if the attorney general
4-53 certifies to the Board that the services cannot be performed.
4-54 (l) <(o) A person who is required to register as a lobbyist
4-55 under Chapter 305, Government Code, may not serve as a member of
4-56 the Board or act as the general counsel to the Board.>
4-57 <(p)> The Board of Vocational Nurse Examiners is subject to
4-58 Chapter 325, Government Code (Texas Sunset Act). Unless continued
4-59 in existence as provided by that chapter, the board is abolished
4-60 and this Act expires September 1, 2005 <1993>.
4-61 (m) <(q)> The Board is subject to the open meetings law,
4-62 Chapter 271, Acts of the 60th Legislature, Regular Session, 1967,
4-63 as amended (Article 6252-17, Vernon's Texas Civil Statutes), and
4-64 the Administrative Procedure and Texas Register Act, as amended
4-65 (Article 6252-13a, Vernon's Texas Civil Statutes).
4-66 (n) <(r)> If the appropriate standing committees of both
4-67 houses of the legislature acting under Subsection (g), Section 5,
4-68 Administrative Procedure and Texas Register Act, as amended
4-69 (Article 6252-13a, Vernon's Texas Civil Statutes), transmit to the
4-70 Board statements opposing adoption of a rule under that section,
5-1 the rule may not take effect, or if the rule has already taken
5-2 effect, the rule is repealed effective on the date the Board
5-3 receives the committee's statements.
5-4 (o)(1) The executive director or the executive director's
5-5 designee shall develop an intraagency career ladder program. The
5-6 program shall require intraagency posting of all non-entry-level
5-7 positions concurrently with any public posting.
5-8 (2) The executive director or the executive director's
5-9 designee shall develop a system of annual performance evaluations
5-10 based on measurable job tasks. All merit pay for Board employees
5-11 must be based on the system established under this subsection.
5-12 (p)(1) The executive director or the executive director's
5-13 designee shall prepare and maintain a written policy statement to
5-14 assure implementation of a program of equal employment opportunity
5-15 under which all personnel transactions are made without regard to
5-16 race, color, disability, sex, religion, age, or national origin.
5-17 The policy statement must include:
5-18 (A) personnel policies, including policies
5-19 relating to recruitment, evaluation, selection, application,
5-20 training, and promotion of personnel that are in compliance with
5-21 the Commission on Human Rights Act (Article 5221k, Vernon's Texas
5-22 Civil Statutes), and its subsequent amendments;
5-23 (B) a comprehensive analysis of the Board work
5-24 force that meets federal and state guidelines;
5-25 (C) procedures by which a determination can be
5-26 made of significant underutilization in the Board work force of all
5-27 persons for whom federal or state guidelines encourage a more
5-28 equitable balance; and
5-29 (D) reasonable methods to appropriately address
5-30 those areas of underutilization.
5-31 (2) A policy statement prepared under Subdivision (1)
5-32 of this subsection must cover an annual period, be updated
5-33 annually, be reviewed by the Commission on Human Rights for
5-34 compliance with Subdivision (1)(A) of this subsection, and be filed
5-35 with the governor's office.
5-36 (3) The governor's office shall deliver a biennial
5-37 report to the legislature based on the information received under
5-38 Subdivision (2) of this subsection. The report may be made
5-39 separately or as part of other biennial reports to the legislature.
5-40 (q)(1) The Board shall prepare information of public
5-41 interest describing the functions of the Board and the Board's
5-42 procedures by which complaints are filed with and resolved by the
5-43 Board. The Board shall make the information available to the
5-44 public and appropriate state agencies.
5-45 (2) The Board by rule shall establish methods by which
5-46 consumers and service recipients are notified of the name, mailing
5-47 address, and telephone number of the Board for the purpose of
5-48 directing complaints to the Board. The Board may provide for that
5-49 notification:
5-50 (A) on each registration form, application, or
5-51 written contract for services of an individual or entity regulated
5-52 by the Board;
5-53 (B) on a sign prominently displayed in the place
5-54 of business of each individual or entity regulated by the Board; or
5-55 (C) in a bill for service provided by an
5-56 individual or entity regulated by the Board.
5-57 (3) The Board shall list along with its regular
5-58 telephone number the toll-free telephone number that may be called
5-59 to present a complaint about a health professional if the toll-free
5-60 number is established under other state law.
5-61 (r) The Board shall develop and implement policies that
5-62 provide the public with a reasonable opportunity to appear before
5-63 the Board and to speak on any issue under the jurisdiction of the
5-64 Board.
5-65 (s) The Board shall prepare and maintain a written plan that
5-66 describes how a person who does not speak English can be provided
5-67 reasonable access to the Board's programs. The Board shall also
5-68 comply with federal and state laws for program and facility
5-69 accessibility.
5-70 (t)(1) The Board shall establish a training program for the
6-1 members of the Board.
6-2 (2) Before a member of the Board may assume the
6-3 member's duties and before the member may be confirmed by the
6-4 senate, the member must complete at least one course of the
6-5 training program established under this subsection.
6-6 (3) A training program established under this
6-7 subsection shall provide information to a participant regarding:
6-8 (A) the enabling legislation that created the
6-9 Board;
6-10 (B) the programs operated by the Board;
6-11 (C) the role and functions of the Board;
6-12 (D) the rules of the Board with an emphasis on
6-13 the rules that relate to disciplinary and investigatory authority;
6-14 (E) the current budget for the Board;
6-15 (F) the results of the most recent formal audit
6-16 of the Board;
6-17 (G) the requirements of the:
6-18 (i) open meetings law, Chapter 271, Acts
6-19 of the 60th Legislature, Regular Session, 1967 (Article 6252-17,
6-20 Vernon's Texas Civil Statutes), and its subsequent amendments;
6-21 (ii) open records law, Chapter 424, Acts
6-22 of the 63rd Legislature, Regular Session, 1973 (Article 6252-17a,
6-23 Vernon's Texas Civil Statutes), and its subsequent amendments; and
6-24 (iii) Administrative Procedure and Texas
6-25 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes) and
6-26 its subsequent amendments;
6-27 (H) the requirements of the conflict of interest
6-28 laws and other laws relating to public officials; and
6-29 (I) any applicable ethics policies adopted by
6-30 the Board or the Texas Ethics Commission.
6-31 (4) In developing the training requirements provided
6-32 for in this subsection, the Board shall consult with the governor's
6-33 office, the attorney general's office, and the Texas Ethics
6-34 Commission.
6-35 (5) In the event that another state agency or entity
6-36 is given the authority to establish the training requirements, the
6-37 Board shall allow that training in lieu of developing its own
6-38 program.
6-39 (u) The Board shall provide to its members and employees, as
6-40 often as necessary, information regarding their qualifications for
6-41 office or employment under this article and their responsibilities
6-42 under applicable laws relating to standards of conduct for state
6-43 officers or employees.
6-44 (v) The Board may enter interagency contracts for any
6-45 purpose authorized by law.
6-46 SECTION 3. Section 6, Chapter 118, Acts of the 52nd
6-47 Legislature, 1951 (Article 4528c, Vernon's Texas Civil Statutes),
6-48 is amended to read as follows:
6-49 Sec. 6. Examination and Licenses. (a) Except as provided
6-50 in Section 7 of this Act, every person desiring to be licensed as a
6-51 Licensed Vocational Nurse or use the abbreviation L.V.N. in the
6-52 State of Texas, shall be required to pass the examination approved
6-53 <given> by the Board of Vocational Nurse Examiners <or its
6-54 delegate>. The applicant shall make application by presenting to
6-55 <the secretary of> the Board, on forms furnished by the Board,
6-56 satisfactory sworn evidence that the applicant has had at least two
6-57 (2) years of high school education or its equivalent and has
6-58 completed an approved course <of not less than twelve (12) months>
6-59 in an approved school for educating vocational nurses. An approved
6-60 school as used herein shall mean one approved by the Board.
6-61 Application for examination by the Board or its delegate shall be
6-62 made at least thirty (30) days prior to the date set for the
6-63 examination.
6-64 (b) The Board in its discretion may waive the requirement in
6-65 Subsection (a) of this section for completion of a course in an
6-66 approved school for educating vocational or practical nurses upon
6-67 presentation of satisfactory sworn evidence that the applicant has
6-68 completed an acceptable level <at least two (2) years> of education
6-69 in a nursing school approved by the State Board of Nurse Examiners
6-70 of Texas or in some other school of professional nurse education
7-1 located in another state, the District of Columbia, a possession of
7-2 the United States, or a foreign country. The Board by rule shall
7-3 determine acceptable levels of education. The Board shall have the
7-4 written portion of the examination, if any, validated by an
7-5 independent testing professional. If the applicant received
7-6 training in another state, the District of Columbia, a possession
7-7 of the United States, or a foreign country, the applicant must
7-8 present evidence satisfactory to the Board that the nursing
7-9 education received is equivalent to that required for licensure as
7-10 a vocational nurse in this state.
7-11 (c) Not later than the 30th day <Within 30 days> after the
7-12 date a licensing examination is administered under this Act, the
7-13 Board shall notify each examinee of the results of the examination.
7-14 However, if an examination is graded or reviewed by a national
7-15 testing service, the Board shall notify each examinee of the
7-16 results of the examination within two weeks after the date the
7-17 Board receives the results from the testing service. If the notice
7-18 of the examination results will be delayed for more than 90 days
7-19 after the examination date, the Board shall notify each examinee of
7-20 the reason for the delay before the 90th day. If requested in
7-21 writing by a person who fails the licensing examination
7-22 administered under this Act, the Board shall furnish the person
7-23 with an analysis of the person's performance on the examination or
7-24 other information which the Board has available to it after the
7-25 tests are scored.
7-26 (d) If an applicant has graduated from an approved
7-27 educational program in vocational nursing in this state, another
7-28 state, or the District of Columbia, or successfully completed two
7-29 years of an associate degree program or diploma program in
7-30 professional nursing education in this state, another state, or the
7-31 District of Columbia, the Board may issue to the applicant, pending
7-32 the results of the licensing examination, a temporary permit to
7-33 practice vocational nursing under the direct supervision of a
7-34 licensed vocational nurse, registered professional nurse, or
7-35 licensed physician. A permit issued to an applicant who fails the
7-36 examination expires on the date indicated on the permit. A permit
7-37 issued to an applicant who passes the examination expires on the
7-38 applicant's receipt of a license from the Board. A permit may not
7-39 be issued to an applicant who has previously failed an examination
7-40 administered by the Board or by another state. <The Board may
7-41 issue a temporary permit to practice vocational nursing to an
7-42 applicant who is a vocational or practical nurse who has graduated
7-43 from an approved program for educating vocational or practical
7-44 nurses, holds a license as a vocational or practical nurse from
7-45 another state, the District of Columbia, or a possession of the
7-46 United States, and has actually been engaged in the practice of
7-47 vocational or practical nursing within the past five years. Such
7-48 an applicant must practice under the direct supervision of a
7-49 licensed vocational nurse, registered professional nurse, or
7-50 licensed physician. A temporary permit issued to an applicant from
7-51 another state, the District of Columbia, or a possession of the
7-52 United States expires on receipt of a license from the Board or on
7-53 the expiration of 90 days, whichever occurs first. The Board may,
7-54 by mutual agreement, assign the function of physical distribution
7-55 of the temporary permits to an agent designated by the Board to act
7-56 on behalf of the Board.>
7-57 (e) Any nurse who is licensed under the provisions of this
7-58 Act, when on duty in a public or private hospital, nursing home, or
7-59 licensed health-care facility, shall wear <identifying> insignia
7-60 identifying the nurse as a licensed vocational nurse <on white caps
7-61 or uniforms>.
7-62 SECTION 4. Section 7, Chapter 118, Acts of the 52nd
7-63 Legislature, 1951 (Article 4528c, Vernon's Texas Civil Statutes),
7-64 is amended to read as follows:
7-65 Sec. 7. QUALIFICATION FOR LICENSING BY ENDORSEMENT. (a) To
7-66 qualify for a temporary license to practice as a licensed
7-67 vocational nurse by endorsement, an applicant for licensing must:
7-68 (1) submit to the Board an application fee as
7-69 determined by the Board and a completed application given under
7-70 oath, in the form prescribed by the Board;
8-1 (2) have possessed at the time of initial licensing as
8-2 a licensed vocational nurse the qualifications necessary to have
8-3 been eligible for licensing at that time in this state;
8-4 (3) have presented to the Board proof of initial
8-5 licensing by examination and proof that the license and other
8-6 license or licenses granted to the applicant by any other state
8-7 have not been suspended, revoked, canceled, surrendered, or
8-8 otherwise restricted for any reason; and
8-9 (4) submit to the Board a notice of sponsorship of the
8-10 applicant by the holder of a Texas health care professional license
8-11 under whom the applicant will practice.
8-12 (b) A holder of a temporary license under this section shall
8-13 receive a permanent license if the applicant:
8-14 (1) has verified the academic and professional
8-15 credentials of the applicant; and
8-16 (2) satisfies any other requirement set by statute.
8-17 (c) The Board shall either grant or deny an application for
8-18 a permanent license within 180 days after the date of the Board's
8-19 receipt of all required forms or information. The Board may extend
8-20 the 180-day deadline to allow for the receipt and tabulation of
8-21 pending examination results.
8-22 (d) The Board shall adopt rules relating to the conditions
8-23 of sponsorship under Subsection (a)(4) of this section, including
8-24 waiver of the requirement in the event of a hardship. <Any
8-25 applicant who holds a license as a Vocational Nurse or Practical
8-26 Nurse issued by the District of Columbia or another state whose
8-27 requirements are equal to those of Texas, and whose individual
8-28 qualifications shall be equivalent to those required by this law,
8-29 may be granted a license to practice nursing as a Licensed
8-30 Vocational Nurse in this State without examination provided the
8-31 required fee is paid to the Board by such applicant.>
8-32 SECTION 5. Subsections (a), (b), and (c), Section 8, Chapter
8-33 118, Acts of the 52nd Legislature, 1951 (Article 4528c, Vernon's
8-34 Texas Civil Statutes), are amended to read as follows:
8-35 (a) The Board <board> by rule shall adopt a system under
8-36 which licenses expire on various dates during the year <every two
8-37 years>. <For the year in which the expiration date is changed,
8-38 license fees payable on September 1 shall be prorated on a monthly
8-39 basis so that each licensee shall pay only that portion of the
8-40 license fee which is allocable to the number of months during which
8-41 the license is valid. On renewal of the license on the new
8-42 expiration date, the total license renewal fee is payable.>
8-43 (b) At <The Board shall notify each licensee about the
8-44 expiration date of the person's license at> least 30 days before
8-45 the expiration of a person's license, the Board <date. The Board
8-46 by United States mail> shall send written notice of the impending
8-47 license expiration to the person, at the person's last known
8-48 address according to the Board's records <with the notice an
8-49 application for license renewal to the licensee's address contained
8-50 in the Board's records. A licensee whose completed application for
8-51 renewal is received by the Board after the expiration date of the
8-52 license shall be charged a late fee>.
8-53 (c) If a person's license has been expired for <not more
8-54 than> 90 days or less, the person may renew the license by paying
8-55 to the Board the required renewal fee and a fee that is one-half
8-56 the examination fee for the license. If a person's license has
8-57 been expired for more than 90 days but less than one year <two
8-58 years>, the person may renew the license by paying to the Board all
8-59 unpaid renewal fees and a fee that is equal to the examination fee
8-60 for the license. The Board by rule shall set a length of time
8-61 beyond which an expired license may not be renewed. The Board by
8-62 rule may establish additional requirements that apply to the
8-63 renewal of a license that has been expired for more than one year
8-64 but less than the period set by the Board beyond which a license
8-65 may not be renewed <If a person's license has been expired for two
8-66 years or more, the person may renew the license by complying with
8-67 the requirements set forth in substantive rules adopted by the
8-68 Board>. The person may obtain a new license by submitting to
8-69 reexamination and complying with the requirements and procedures
8-70 for obtaining an original license. However, the Board may renew
9-1 without examination an expired license of a person who was licensed
9-2 in this state, moved to another state, and is currently licensed
9-3 and has been in practice in the other state for the two years
9-4 preceding application. The person must pay to the Board a fee that
9-5 is equal to the examination fee for the license.
9-6 SECTION 6. Chapter 118, Acts of the 52nd Legislature, 1951
9-7 (Article 4528c, Vernon's Texas Civil Statutes), is amended by
9-8 adding Section 8A to read as follows:
9-9 Sec. 8A. MANDATORY CONTINUING EDUCATION REQUIREMENTS.
9-10 (a) To renew a license, a licensee must demonstrate to the
9-11 satisfaction of the Board completion of the requirement for
9-12 continuing professional education.
9-13 (b) The Board shall adopt rules relating to the operation of
9-14 the mandatory continuing education programs. In establishing the
9-15 requirement for continuing education, the Board shall consider:
9-16 (1) factors that lead to the competent performance of
9-17 professional duties; and
9-18 (2) the continuing education needs of licensees.
9-19 (c) The Board shall adopt rules relating to the adoption or
9-20 approval of mandatory continuing education programs and providers
9-21 and shall adopt rules to evaluate the effectiveness of the programs
9-22 and a licensee's participation and performance in the programs.
9-23 SECTION 7. Section 9, Chapter 118, Acts of the 52nd
9-24 Legislature, 1951 (Article 4528c, Vernon's Texas Civil Statutes),
9-25 is amended to read as follows:
9-26 Sec. 9. Fees. (a) The Board by rule shall establish
9-27 reasonable and necessary fees so that the fees, in the aggregate,
9-28 produce sufficient revenue to cover the cost of administering this
9-29 Act. The fees set by the Board may be adjusted so that the total
9-30 fees collected shall be sufficient to meet the expenses of
9-31 administering this Act. The Board may not set a fee for an amount
9-32 less than the amount of that fee on September 1, 1993 <for the
9-33 administration of this Act in amounts not to exceed:>
9-34 <(1) examination and application fee: $40;>
9-35 <(2) reexamination fee: $40;>
9-36 <(3) renewal fee: $20;>
9-37 <(4) endorsement fee: $40;>
9-38 <(5) accreditation of new programs fee: $75;>
9-39 <(6) duplicate temporary permit or license fee: $10;>
9-40 <(7) filing of affidavits in rechange of name fee:
9-41 $10;>
9-42 <(8) endorsement to another state fee: $40; and>
9-43 <(9) reactivating from inactive status fee: $30>.
9-44 The Board shall not maintain unnecessary fund balances, and fee
9-45 amounts shall be set in accordance with this requirement.
9-46 (b) All expenses under this Act shall be paid from fees
9-47 collected by the Board under this Act, and no expense incurred
9-48 under this Act shall ever be charged against the funds of the State
9-49 of Texas.
9-50 (c) On or before January 1 of each year, the Board shall
9-51 make in writing to the Governor and the presiding officer of each
9-52 house of the legislature a complete and detailed report accounting
9-53 for all funds received and disbursed by the Board during the
9-54 preceding year. The annual report must be in the form and reported
9-55 in the time provided by the General Appropriations Act.
9-56 SECTION 8. Chapter 118, Acts of the 52nd Legislature, 1951
9-57 (Article 4528c, Vernon's Texas Civil Statutes), is amended by
9-58 adding Sections 10A through 10F to read as follows:
9-59 Sec. 10A. RECORDS OF COMPLAINTS. (a) The Board shall keep
9-60 an information file about each complaint filed with the Board. The
9-61 Board's information file shall be kept current and contain a record
9-62 for each complaint of:
9-63 (1) all persons contacted in relation to the
9-64 complaint;
9-65 (2) a summary of findings made at each step of the
9-66 complaint process;
9-67 (3) an explanation of the legal basis and reason for a
9-68 complaint that is dismissed; and
9-69 (4) other relevant information.
9-70 (b) If a written complaint is filed with the Board that the
10-1 Board has authority to resolve, the Board, at least as frequently
10-2 as quarterly and until final disposition of the complaint, shall
10-3 notify the parties to the complaint of the status of the complaint
10-4 unless the notice would jeopardize an undercover investigation.
10-5 (c) The Board by rule shall adopt a form to standardize
10-6 information concerning complaints made to the Board. The Board by
10-7 rule shall prescribe information to be provided to a person when
10-8 the person files a complaint with the Board.
10-9 (d) The Board shall provide reasonable assistance to a
10-10 person who wishes to file a complaint with the Board.
10-11 Sec. 10B. COMPLAINT INVESTIGATION AND DISPOSITION. (a) The
10-12 Board shall adopt rules concerning the investigation of a complaint
10-13 filed with the Board. The rules adopted under this subsection
10-14 shall:
10-15 (1) distinguish between categories of complaints;
10-16 (2) ensure that complaints are not dismissed without
10-17 appropriate consideration;
10-18 (3) require that the Board be advised of a complaint
10-19 that is dismissed and that a letter be sent to the person who filed
10-20 the complaint explaining the action taken on the dismissed
10-21 complaint;
10-22 (4) ensure that the person who filed the complaint has
10-23 an opportunity to explain the allegations made in the complaint;
10-24 and
10-25 (5) prescribe guidelines concerning the categories of
10-26 complaints that require the use of a private investigator and the
10-27 procedures for the Board to obtain the services of a private
10-28 investigator.
10-29 (b) The Board shall dispose of all complaints in a timely
10-30 manner. The Board shall establish a time line for conducting each
10-31 phase of a complaint that is under the control of the Board not
10-32 later than the 30th day after the date the complaint is received by
10-33 the Board. The time line shall be kept in the information file for
10-34 the complaint, and all parties shall be notified of the projected
10-35 time requirements for pursuing the complaint. A change in the time
10-36 line must be noted in the complaint information file, and all
10-37 parties to the complaint must be notified not later than the
10-38 seventh day after the date the change is made.
10-39 (c) The executive director shall notify the Board of a
10-40 complaint that extends beyond the time prescribed by the Board for
10-41 resolving the complaint so that the Board may take necessary action
10-42 on the complaint.
10-43 Sec. 10C. INFORMAL PROCEEDINGS. (a) The Board by rule
10-44 shall adopt procedures governing:
10-45 (1) informal disposition of a contested case under
10-46 Subsection (e), Section 13, Administrative Procedure and Texas
10-47 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), and
10-48 its subsequent amendments; and
10-49 (2) informal proceedings held in compliance with
10-50 Subsection (c), Section 18, Administrative Procedure and Texas
10-51 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), and
10-52 its subsequent amendments.
10-53 (b) Rules adopted under this section must provide the
10-54 complainant and the licensee an opportunity to be heard and must
10-55 require the presence of a representative of the Board's legal staff
10-56 or of the office of the attorney general to advise the Board or the
10-57 Board's employees.
10-58 Sec. 10D. MONITORING OF LICENSEE. The Board by rule shall
10-59 develop a system for monitoring licensees' compliance with the
10-60 requirements of this Act. Rules adopted under this section shall
10-61 include procedures for monitoring a licensee who is ordered by the
10-62 Board to perform certain acts to ascertain that the licensee
10-63 performs the required acts and to identify and monitor licensees
10-64 who represent a risk to the public.
10-65 Sec. 10E. ADMINISTRATIVE PENALTIES. (a) The Board may
10-66 impose an administrative penalty against a person licensed or
10-67 regulated under this Act who violates this Act or a rule or order
10-68 adopted under this Act.
10-69 (b) The penalty for each violation may be in an amount not
10-70 to exceed $1,000. Each day a violation continues or occurs is a
11-1 separate violation for purposes of imposing a penalty.
11-2 (c) The amount of the penalty shall be based on:
11-3 (1) the seriousness of the violation, including the
11-4 nature, circumstances, extent, and gravity of any prohibited acts,
11-5 and the hazard or potential hazard created to the health, safety,
11-6 or economic welfare of the public;
11-7 (2) the economic harm to property or the environment
11-8 caused by the violation;
11-9 (3) the history of previous violations;
11-10 (4) the amount necessary to deter future violations;
11-11 (5) efforts to correct the violation; and
11-12 (6) any other matter that justice may require.
11-13 (d) If the executive director determines that a violation
11-14 has occurred, the executive director may issue to the Board a
11-15 report that states the facts on which the determination is based
11-16 and the executive director's recommendation on the imposition of a
11-17 penalty, including a recommendation on the amount of the penalty.
11-18 (e) Within 14 days after the date the report is issued, the
11-19 executive director shall give written notice of the report to the
11-20 person. The notice may be given by certified mail. The notice
11-21 must include a brief summary of the alleged violation and a
11-22 statement of the amount of the recommended penalty and must inform
11-23 the person that the person has a right to a hearing on the
11-24 occurrence of the violation, the amount of the penalty, or both the
11-25 occurrence of the violation and the amount of the penalty.
11-26 (f) Within 20 days after the date the person receives the
11-27 notice, the person in writing may accept the determination and
11-28 recommended penalty of the executive director or may make a written
11-29 request for a hearing on the occurrence of the violation, the
11-30 amount of the penalty, or both the occurrence of the violation and
11-31 the amount of the penalty.
11-32 (g) If the person accepts the determination and recommended
11-33 penalty of the executive director, the Board by order shall approve
11-34 the determination and impose the recommended penalty.
11-35 (h) If the person requests a hearing or fails to respond
11-36 timely to the notice, the executive director shall set a hearing
11-37 and give notice of the hearing to the person. The hearing shall be
11-38 held by an administrative law judge of the State Office of
11-39 Administrative Hearings. The administrative law judge shall make
11-40 findings of fact and conclusions of law. The administrative law
11-41 judge shall promptly issue to the Board a proposal for a decision
11-42 about the occurrence of the violation and the amount of a proposed
11-43 penalty. Based on the findings of fact, conclusions of law, and
11-44 proposal for a decision, the Board by order may find that a
11-45 violation has occurred and impose a penalty or may find that no
11-46 violation occurred.
11-47 (i) The notice of the Board's order given to the person
11-48 under the Administrative Procedure and Texas Register Act (Article
11-49 6252-13a, Vernon's Texas Civil Statutes) and its subsequent
11-50 amendments must include a statement of the right of the person to
11-51 judicial review of the order.
11-52 (j) Within 30 days after the date the Board's order is final
11-53 as provided by Subsection (c), Section 16, Administrative Procedure
11-54 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
11-55 Statutes), and its subsequent amendments, the person shall:
11-56 (1) pay the amount of the penalty;
11-57 (2) pay the amount of the penalty and file a petition
11-58 for judicial review contesting the occurrence of the violation, the
11-59 amount of the penalty, or both the occurrence of the violation and
11-60 the amount of the penalty; or
11-61 (3) without paying the amount of the penalty, file a
11-62 petition for judicial review contesting the occurrence of the
11-63 violation, the amount of the penalty, or both the occurrence of the
11-64 violation and the amount of the penalty.
11-65 (k) Within the 30-day period, a person who acts under
11-66 Subsection (j)(3) of this section may:
11-67 (1) stay enforcement of the penalty by:
11-68 (A) paying the amount of the penalty to the
11-69 court for placement in an escrow account; or
11-70 (B) giving to the court a supersedeas bond
12-1 approved by the court for the amount of the penalty and that is
12-2 effective until all judicial review of the Board's order is final;
12-3 or
12-4 (2) request the court to stay enforcement of the
12-5 penalty by:
12-6 (A) filing with the court a sworn affidavit of
12-7 the person stating that the person is financially unable to pay the
12-8 amount of the penalty and is financially unable to give the
12-9 supersedeas bond; and
12-10 (B) giving a copy of the affidavit to the
12-11 executive director by certified mail.
12-12 (l) An executive director who receives a copy of an
12-13 affidavit under Subsection (k)(2) of this section may file with the
12-14 court, within five days after the date the copy is received, a
12-15 contest to the affidavit. The court shall hold a hearing on the
12-16 facts alleged in the affidavit as soon as practicable and shall
12-17 stay the enforcement of the penalty on finding that the alleged
12-18 facts are true. The person who files an affidavit has the burden
12-19 of proving that the person is financially unable to pay the amount
12-20 of the penalty and to give a supersedeas bond.
12-21 (m) If the person does not pay the amount of the penalty and
12-22 the enforcement of the penalty is not stayed, the executive
12-23 director may refer the matter to the attorney general for
12-24 collection of the amount of the penalty.
12-25 (n) Judicial review of the order of the Board:
12-26 (1) is instituted by filing a petition as provided by
12-27 Section 19, Administrative Procedure and Texas Register Act
12-28 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
12-29 subsequent amendments; and
12-30 (2) is under the substantial evidence rule.
12-31 (o) If the court sustains the occurrence of the violation,
12-32 the court may uphold or reduce the amount of the penalty and order
12-33 the person to pay the full or reduced amount of the penalty. If
12-34 the court does not sustain the occurrence of the violation, the
12-35 court shall order that no penalty is owed.
12-36 (p) When the judgment of the court becomes final, the court
12-37 shall proceed under this subsection. If the person paid the amount
12-38 of the penalty and if that amount is reduced or is not upheld by
12-39 the court, the court shall order that the appropriate amount plus
12-40 accrued interest be remitted to the person. The rate of the
12-41 interest is the rate charged on loans to depository institutions by
12-42 the New York Federal Reserve Bank, and the interest shall be paid
12-43 for the period beginning on the date the penalty was paid and
12-44 ending on the date the penalty is remitted. If the person gave a
12-45 supersedeas bond and if the amount of the penalty is not upheld by
12-46 the court, the court shall order the release of the bond. If the
12-47 person gave a supersedeas bond and if the amount of the penalty is
12-48 reduced, the court shall order the release of the bond after the
12-49 person pays the amount.
12-50 (q) A penalty collected under this section shall be remitted
12-51 to the comptroller for deposit in the general revenue fund.
12-52 (r) All proceedings under this section are subject to the
12-53 Administrative Procedure and Texas Register Act (Article 6252-13a,
12-54 Vernon's Texas Civil Statutes) and its subsequent amendments.
12-55 Sec. 10F. SCHEDULE OF SANCTIONS. The schedule of sanctions
12-56 adopted by the Board by rule shall be used by the State Office of
12-57 Administrative Hearings for any sanction imposed as the result of a
12-58 hearing conducted by that office.
12-59 SECTION 9. Section 11, Chapter 118, Acts of the 52nd
12-60 Legislature, 1951 (Article 4528c, Vernon's Texas Civil Statutes),
12-61 is amended by adding Subsection (c) to read as follows:
12-62 (c) A person who violates this Act is liable to the state
12-63 for a civil penalty that does not exceed $1,000 a day. The civil
12-64 penalty may be collected in a suit initiated by the Board.
12-65 SECTION 10. (a) The changes in law made by this Act in the
12-66 qualifications of members of the Board of Vocational Nurse
12-67 Examiners do not affect the entitlement of a member appointed
12-68 before September 1, 1993, to continue to hold office for the term
12-69 for which the member was appointed. The changes in the
12-70 qualifications apply only to a member appointed on or after
13-1 September 1, 1993.
13-2 (b) As soon as possible on or after September 1, 1993, the
13-3 governor shall appoint three additional public members to the Board
13-4 of Vocational Nurse Examiners. In making the initial appointments
13-5 of the new members, the governor shall designate one for a term
13-6 expiring on the regular expiration date of board members in 1995,
13-7 one for a term expiring on the regular expiration date of board
13-8 members in 1997, and one for a term expiring on the regular
13-9 expiration date of board members in 1999.
13-10 SECTION 11. This Act takes effect September 1, 1993.
13-11 SECTION 12. The importance of this legislation and the
13-12 crowded condition of the calendars in both houses create an
13-13 emergency and an imperative public necessity that the
13-14 constitutional rule requiring bills to be read on three several
13-15 days in each house be suspended, and this rule is hereby suspended.
13-16 * * * * *
13-17 Austin,
13-18 Texas
13-19 May 5, 1993
13-20 Hon. Bob Bullock
13-21 President of the Senate
13-22 Sir:
13-23 We, your Committee on Health and Human Services to which was
13-24 referred S.B. No. 839, have had the same under consideration, and I
13-25 am instructed to report it back to the Senate with the
13-26 recommendation that it do not pass, but that the Committee
13-27 Substitute adopted in lieu thereof do pass and be printed.
13-28 Zaffirini,
13-29 Chair
13-30 * * * * *
13-31 WITNESSES
13-32 FOR AGAINST ON
13-33 ___________________________________________________________________
13-34 Name: Felice Mathisen x
13-35 Representing: Tx League of Vocational Nurses
13-36 City: Texas City
13-37 -------------------------------------------------------------------
13-38 Name: Elise Kahlden x
13-39 Representing: Self
13-40 City: Columbus
13-41 -------------------------------------------------------------------
13-42 Name: Iva Burgan x
13-43 Representing: Tx Council Vocation Nurses
13-44 City: Alice
13-45 -------------------------------------------------------------------
13-46 Name: Evelyn Robert
13-47 Representing: Tx Lic. Vocational Nurses
13-48 City: Texas City
13-49 -------------------------------------------------------------------
13-50 Name: Cyndie Schmitt x
13-51 Representing: Sunset Commission
13-52 City: Austin
13-53 -------------------------------------------------------------------
13-54 Name: Karen Hamlett x
13-55 Representing: LVN Asso of Tx
13-56 City: Austin
13-57 -------------------------------------------------------------------
13-58 Name: Majorie A. Bronk x
13-59 Representing: BD of Vocational Nurse Ex
13-60 City: Austin
13-61 -------------------------------------------------------------------
13-62 Name: Deborah Williams x x
13-63 Representing: Tx League of Vocational Nurse
13-64 City: Texas City
13-65 -------------------------------------------------------------------
13-66 Name: Valerie Spurgin x
13-67 Representing: Tx League of Vocational Nurse
13-68 City: Texas City
13-69 -------------------------------------------------------------------
13-70 Name: Mae J. Ferguson x x
14-1 Representing: Tx League Vocational Nurses
14-2 City: Texas City
14-3 -------------------------------------------------------------------
14-4 Name: Irene B. Ray x
14-5 Representing: Tx Lic. Vocational Nurses
14-6 City: Texas City
14-7 -------------------------------------------------------------------
14-8 Name: Minnie Urbanek x x
14-9 Representing: Tx League of Vocational Nurses
14-10 City: La Marque
14-11 -------------------------------------------------------------------
14-12 FOR AGAINST ON
14-13 ___________________________________________________________________
14-14 Name: Charles Ken Bergeron x
14-15 Representing: Tx League Vocational Nurses
14-16 City: League City
14-17 -------------------------------------------------------------------