The opinion
I
”
THE ATFORNE~ GENE
OFTEXAS
The Honorable Waldeen D. Wilson, R. N. Opinion No. H- 136
Executive Secretary, Board of
Vocational Nurse Examiners Re: Authority of Board of
406 Sam Houston State Office Bldg. Vocational Nurse Examiners
Austin, Texas 78701 to administer a proficiency
examination to practical/
vocational nurses licensed
Dear Ms. Wilson: by waiver.
You have requested an opinion from this office which reads in part as
follows:
“The State Board of Vocational Nurse Examiners
have been contacted by the Department of Health,
Education and Welfare, Bureau of Health Insurance,
Social Security Administration, to administer a
proficiency examination for practical-vocational
nurses who have received State licensure by waiver.
“The examination will in no way affect the licensure
status of the L. V. N.
“The Board would like an opinion regarding its
responsibility in the administration of a pro-
ficiency examination. Statutorily can the Board
administer the examination? How should the
cost be computed?”
The examination for vocational nurses is occasioned by regulations of
the Social Security Administration of the Department of Health, Education
and Welfare, Title 20, C. F. R. and particularly $ 405.1010 providing for
the special certification of hospitals for medical benefits.
Section 405.1024 of Title 20, C. F. R., generally requires as a
p. 650
The Honorable Waldeen D. Wilson, R. N. , page 2 (H-136)
“Condition of Participation” that a hospital have a licensed registered
professional nurse on duty at all times. Section 405.1010 provides
exceptions. Subsection c authorizes the Secretary of Health, Education
and Welfare to waive the requirement of $ 405.1024 upon findings, cer-
tified by the State agency (see $ 405.1004) that, among other things:
“There is present on the premises to render or
supervise the nursing service provided throughout
all tours of duty not covered by a registered nurse:
(i) A licensed practical (vocational) nurse who is.~
a graduate of a State-approved school of practical
(vocational) nursing, or (ii) a licensed practical
(vocational) nurse who has successfully participated
in a proficiency examination approved by the Sec-
retary, or ( iii) prior to the time such an exam-
ination is available, a waivered licensed practical
(vocational) nurse (A waivered licensed practical
nurse is one whose license was granted after
waiver by the State of the requirement that she be
a graduate of an approved school. )” (Emphasis
added)
In connection with the giving of such examination, the Director of Bureau
of Health Insurance of the Department of H. E. W. , under date of June, 1973,
issued a letter which set out the guidelines for proficiency examination for
practical nurses licensed by waiver.
The letter states:
“The State agency responsible for Medicare certification
activities, or another State agency with which the certi-
fication agency makes arrangements, will conduct the
actual administration of the examination. ” (Emphas,is
added)
And:
“State expenses for conducting the examination are
legitimate expenditures of Medicare funds available
to the State agency. ‘I
p. 651
The Honorable Waldeen D. Wilson, R. N. , page 3 (H-136)
Section 5 of Article 4528c, Vernon’s Texas Civil Statutes provides
for examination and licensing of vocational nurses by your Department.
Sections 6 and 7, provide for licensure by~waiver. Your Department
would be the agency most interested in administering. this examination
by which individuals will be qualified to obtain unployrnent at hospitals
that care for Medicare patients. In our opinion, Article 4528~ authorizes
your Board to administer the examination in question.
With regard to your second question, it is our .opinion that you should
determine the actual expense the Board incurs in offering the examination
and submit this to I-L E. W. for reimbursement. We further believe that
Article V, $19 of the Appropriations Act for fiscal 1974 and19,75 (House
Bill 139, 63rd Leg. ) will authorize the acceptance and use of federal funds
for this purpose.
SIJMMA,RY
The Texas Board of Vocational Nurse Examiners
is authorized to administer a test to vacational nurses
licensed by waiver in order to meet the requirements
of Federal Medicare rules with reference to partici-
pating hospitals, and to be reimbursed its expenses.
Very truly yours,
Attorney General of Texas
APP V: D:
&,jy
DAVID M. KENDALL, Chairman
Opinion Committee
p. 652