TITLE 22. EXAMINING BOARDS

PART 11. TEXAS BOARD OF NURSING

CHAPTER 217. LICENSURE, PEER ASSISTANCE AND PRACTICE

22 TAC §217.2, §217.4

The Texas Board of Nursing (Board) adopts amendments to §217.2, concerning Licensure by Examination for Graduates of Nursing Education Programs Within the United States, its Territories, or Possessions, and §217.4, concerning Requirements for Initial Licensure by Examination for Nurses Who Graduate from Nursing Education Programs Outside of United States' Jurisdiction. Sections 217.2 and 217.4 are adopted without changes to the proposed text published in the February 20, 2009, issue of the Texas Register (34 TexReg 1171) and will not be republished.

The amendments to §217.2 and §217.4 are adopted under the Occupations Code §§301.157, 301.252, 301.259, and 301.151 and are necessary to: (i) ensure that applicants for vocational nurse licensure complete an appropriate education program for the vocational scope of practice; and (ii) allow qualifying nurses to apply to the Board for a six month accustomation permit, which would permit them to participate in nursing education courses and clinical experiences in Texas. Currently, §217.2(a)(4)(B) permits an applicant for vocational nurse licensure who has attended a (Texas-based) professional nursing education program to substitute completion of an acceptable level of a Board-approved professional nursing education program, as determined by the Board. Because students in professional education programs are prepared for the professional role and do not typically study the differentiation of professional versus vocational roles, this provision no longer has its intended effect. As such, adopted §217.2(a)(4)(B) eliminates this provision so that all licensed vocational nurse applicants must complete approved vocational education programs for initial licensure under §217.2. Currently, §217.4(a)(1)(B) permits an applicant for vocational nurse licensure who was educated in a program outside of United States jurisdictions to substitute (i) completion of curriculum content comparable to the Texas curriculum requirements for graduates of approved vocational nursing education programs in lieu of (ii) completion of an approved vocational nursing education program. In essence, §217.4(a)(1)(B) allows licensed vocational nurse applicants to substitute the completion of a professional nursing education program for the completion of a vocational nursing education program for purposes of initial licensure under §217.4. Because the scopes of practice of vocational nurses and professional nurses are different, however, and because nursing education programs outside of United States jurisdictions do not address the vocational nursing role, this provision no longer has its intended effect. As such, adopted §217.4(a)(1)(B) eliminates this provision so that all licensed vocational nurse applicants must complete approved vocational education programs for initial licensure under §217.4. The adopted amendment to §217.4(e) is necessary to provide qualifying nurses the opportunity to participate in clinical experiences in Texas prior to taking an NCLEX exam. Specifically, the adopted amendment will allow certain nurses who have graduated from accredited nursing programs outside the United States to apply to the Board for a six month accustomation permit. This six month accustomation permit will allow a qualifying nurse to participate in nursing education courses and clinical experiences in Texas. Currently, a nurse who has graduated from an accredited nursing program outside the United States does not have access to education courses or clinical experiences designed to facilitate a transition to United States nursing practice. As a result, many of these nurses find it difficult to acclimate to the nuances of the United States healthcare system and to pass an NCLEX exam. The intended purpose of the adopted amendment is to ease the transition of these nurses into the United States healthcare system and to facilitate a higher passage rate of the NCLEX exam. In order for an applicant to be eligible for an accustomation permit, the applicant must have graduated from an accredited nursing program outside the United States, may not have taken the NCLEX-PN (applicants for vocational license) or the NCLEX-RN (applicants for professional license) prior to applying for the accustomation permit, and must successfully complete a credential evaluation service from one of the following Board approved credentialing agencies: (i) the Commission on Graduates of Foreign Nursing Schools; (ii) the Educational Records Evaluation Service; or (iii) the International Education Research Foundation. Additionally, certain restrictions have been adopted in order to ensure that the public is properly protected once an accustomation permit is approved. Upon receipt of the accustomation permit, the applicant may only participate in nursing education courses and clinical experiences under the direct supervision of a registered nurse who holds an unencumbered Texas license. Adopted §217.4(e) also makes clear that an applicant may not be left alone with a patient at any time. These limiting conditions are necessary to maintain a safe environment for patients and others and to ensure the highest quality of nursing care.

The following is a section-by-section overview of the adopted amendments.

Section 217.2. Licensure by Examination for Graduates of Nursing Education Programs Within the United States, its Territories, or Possessions. Adopted §217.2(a)(4)(B) eliminates subparagraph (B) in its entirety, which states "who have attended a professional nursing education program shall meet all of the requirements for licensure by examination as stated in this section, but may substitute completion of an acceptable level of a board-approved professional nursing education program as determined by the board". The remaining adopted amendments to §217.2 re-designate the subparagraph accordingly.

Section 217.4. Requirements for Initial Licensure by Examination for Nurses Who Graduate from Nursing Education Programs Outside of United States' Jurisdictions. Adopted §217.4(a)(1)(B) removes the phrase "or curriculum content comparable to the Texas curriculum requirements for graduates of approved vocational nursing education programs" from subparagraph (B). Adopted §217.4(e)(1) permits an applicant who has graduated from an accredited nursing program outside the United States to apply to the Board for a six month accustomation permit by completing an application and paying a fee. Further, adopted §217.4(e)(1) permits an applicant holding an accustomation permit to participate in nursing education courses and clinical experiences. Adopted §217.4(e)(2) provides that an applicant is eligible to apply for an accustomation permit only if the applicant has: (i) graduated from an accredited nursing program outside the United States; (ii) never taken the NCLEX-PN (LVN applicants) or NCLEX-RN (RN applicants); and (iii) successfully completed a credential evaluation service from a board approved credentialing agency. Adopted §217.4(e)(3) requires an applicant holding an accustomation permit to participate in nursing education courses and clinical experiences under the direct supervision of a registered nurse who holds a current and unencumbered Texas license only. Finally, adopted §217.4(e)(3) prohibits an applicant from being left alone with a patient at any time. The remaining adopted amendments to §217.4 re-designate the subsections accordingly.

SUMMARY OF COMMENTS AND AGENCY RESPONSE.

Section 217.2(a)(4)(B).

Comment: A commenter states that she believes that the proposed amendment to §217.2(a)(4)(B) will contribute to further decline in the number of nurses for the state of Texas. She further states that her institution has had students who did not complete the entire ADN program, but met the Board's required educational hours to take the NCLEX-PN examination. Further, these students passed the NCLEX-PN examination on their first attempt and, from all reports, have become safe practicing vocational nurses. The commenter states that some students have returned to enroll in the LVN to RN Transition program and went on to become registered nurses. The commenter states that she would hate to see her institution's students have to "jump through hoops" and possibly not have the opportunity to become a LVN after completing all but a portion of the final semester of a 2 year ADN program, as well as risk the chance of never becoming a registered nurse. The commenter also states that if the Board believes that this group of candidates lack understanding of the "role performance and scope of practice appropriate for a licensed vocational nurse", maybe the Board could offer a short on-line course to teach and test this content. The commenter states that her institution's ADN Program includes the role of the vocational nurse versus the registered nurse in the Introduction to Professional Nursing Course. The commenter states that her institution also includes discussion of the different practices established in the DELC's for the Vocational Nurses versus the Registered Nurse. The students also implement these different role concepts in their Leadership clinical rotation. Lastly, the commenter states that since there is such a small number of individuals affected by the current licensure code (39 from 2003-2008) and because of the benefits of the current ruling to the nursing profession identified in her comment, she urges the Board to reconsider and deny approval of the proposed amendment to §217.2(a)(4)(B).

Board Response: The Board declines to deny adoption of the proposed amendments to §217.2(a)(4)(B). First, the Board disagrees that the adopted amendments to §217.2(a)(4)(B) will have a measurable impact on the number of nurses in the state of Texas. Current data from the National Council of State Boards of Nursing (NCSBN) covering the time period of January 1, 2003 through December 30, 2008 shows that only an average of approximately 39 individuals each year partially complete a professional nursing educational program and become a licensed vocational nurse in Texas by taking the NCLEX-PN® examination. Further, only an average of approximately seven individuals each year graduate from a professional nursing educational program, fail the NCLEX RN® examination, and go on to become a licensed vocational nurse in Texas by taking the NCLEX-PN® examination. Based on these figures, the Board anticipates that the adopted amendments will only impact approximately 46 licensed vocational nurse applicants each year. In comparison, approximately 5,800 licensed vocational nurse applicants will not be affected by the adopted amendments each year, as these applicants typically complete a traditional vocational educational program prior to taking the NCLEX-PN® examination. Further, the Board anticipates that the benefits of the adopted amendments will outweigh any negative effects the adopted amendments may have on the 46 licensed vocational nurse applicants each year. The primary intention of the adopted amendments is to ensure that applicants for vocational nurse licensure complete an appropriate education program for the vocational scope of practice. The Board has been made aware of public concern that applicants who become licensed vocational nurses in Texas by substituting the completion of a professional nursing education program for the completion of an approved vocational nursing education program often lack education in the areas of role performance and scope of practice. This is particularly concerning to the Board because licensed vocational nurses are limited in their scopes of practice and should be aware of such limitations. Further, deans and directors of professional nursing educational programs have expressed difficulty in completing required forms for out-of-state and United States territories' vocational nurse graduates and registered nurse undergraduates because required vocational nursing educational curricula content and contact hours are not easily equated to the curricula content and contact hours in professional nursing educational programs. This is particularly true in regard to content addressing the role, responsibilities, and scope of practice of the licensed vocational nurse. Great variation exists in the interpretation of equitable curricula content and contact hours. The adopted amendments will eliminate the need for deans and directors of professional nursing educational programs to calculate equitable curricula content and contact hours in this context, which should alleviate any perceived unfairness surrounding this process. Further, the adoption of the proposed amendments will result in better compatibility with other states and ensure the appropriate level of competence of all licensed vocational nurse applicants. The Board is a member of the Nurse Licensure Compact (Compact). One of the general purposes of the Compact is to ensure and encourage the cooperation of party states in the areas of nurse licensing and regulation. Most other Compact party states do not offer vocational nurse applicants who have attended a professional nursing educational program the option of substituting the completion of their professional nursing educational program for the completion of a vocational educational program in order that they may take the NCLEX-PN® examination. These Compact party states also do not allow individuals utilizing such an option in another state to be licensed by endorsement in their state. The adopted amendments will eliminate this option in Texas, thus aligning Texas' licensing requirements for vocational nurses more closely with other Compact party states. The elimination of this option in Texas should also enable more vocational nurse licensures by endorsement in other Compact party states. Lastly, at the Board's regularly scheduled July 2008 meeting, the Board issued a charge to the Advisory Committee on Education (Committee) to study and make recommendations regarding the issues involved with permitting a student who has partially completed a professional nursing educational program or graduated from a professional nursing educational program and then failed the NCLEX-RN® Examination to apply for licensure as a vocational nurse in Texas by taking the NCLEX-PN® Examination. The Committee addressed this charge during the November 17, 2008 Committee meeting in Austin and finalized its recommendation to the Board during the December 15, 2008 Committee conference call meeting. After a thorough discussion and review of the issue, the Committee recommended eliminating the possibility for anyone who has not completed a state-board approved vocational nursing educational program to apply for licensure in Texas as a licensed vocational nurse by either examination or endorsement and recommended any necessary amendments to §217.2 to achieve this end. The Board's adoption of the proposed amendments to §217.2(a)(4)(B) is consistent with the Committee's recommendations on this issue. Further, the Board does not necessarily disagree that an on-line course and/or exam may be an appropriate method to teach and test the role performance and scope of practice appropriate for a licensed vocational nurse. However, no such course and/or exam presently exists, and the Board has not considered the feasibility of such an option. As such, while an online course and/or exam may be an option for further consideration in the future, the Board declines to delay or deny adoption of the proposed amendments to §217.2(a)(4)(B) based upon that possibility.

NAMES OF THOSE COMMENTING FOR AND AGAINST THE PROPOSAL.

For: None.

For, with changes: None.

Against: College of the Mainland.

Neither for nor against, with recommended changes: None.

The amendments are adopted pursuant to the authority of the Occupations Code §§301.157, 301.252, 301.259, and 301.151, which authorizes the Texas Board of Nursing to adopt, enforce, and repeal rules consistent with its legislative authority under the Nursing Practice Act.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on April 24, 2009.

TRD-200901557

James W. Johnston

General Counsel

Texas Board of Nursing

Effective date: May 14, 2009

Proposal publication date: February 20, 2009

For further information, please call: (512) 305-6811


CHAPTER 223. FEES

22 TAC §223.1

The Texas Board of Nursing (Board) adopts amendments to §223.1, concerning Fees. Section 223.1 is adopted without changes to the proposed text published in the February 20, 2009, issue of the Texas Register (34 TexReg 1176) and will not be republished.

The amendments to §223.1(a)(8) are adopted under the Occupations Code §301.151 and §301.155 and are necessary to (i) implement a new $25 fee, as required by adopted §217.4 of this title (relating to Requirements For Initial Licensure By Examination for Nurses Who Graduate from Nursing Education Programs Outside of United States' Jurisdiction) and (ii) clarify the amount of the fees referenced in §223.1(a)(8) for the issuance of a temporary permit for completing a refresher course and for the issuance of a temporary permit under the Occupations Code §301.258. Simultaneously with the adoption of the amendments to §223.1(a)(8), the Board is also adopting amendments to §217.4 that will permit nurses meeting specified criteria to apply to the Board for accustomation permits. These adopted amendments are also published in this edition of the Texas Register. These six month accustomation permits will authorize qualifying nurses to participate in nursing education courses and clinical experiences in Texas. The adopted amendments to §217.4 also require each applicant to submit an accompanying fee to the Board with each accustomation permit application. As a result, adopted §223.1(a)(8) is necessary to implement the fee requirements of adopted §217.4. The Occupations Code §301.155(a) requires the Board to adopt fees in amounts reasonable and necessary to cover the costs of administering the Occupations Code Chapter 301. The adopted new $25 fee in §223.1(a)(8) is necessary to cover the costs associated with receiving, reviewing, and processing an accustomation permit application under adopted §217.4. The adopted amendments to §223.1(a)(8) also clarify that the fee for the issuance of a temporary permit for completing a refresher course and the fee for the issuance of a temporary permit under §301.258 is $25.

The following is a section-by-section overview of the adopted amendments.

Section 223.1. Fees. Adopted §223.1(a)(8) provides that the issuance of a temporary permit for completing a refresher course, a temporary permit under §301.258, or an accustomation permit is $25.

The Board did not receive any comments on the proposed amendments.

The amendments are adopted under the Occupations Code §301.155 and §301.151. The Occupations Code §301.155 provides that the Board by rule shall establish fees in amounts reasonable and necessary to cover the costs of administering the Occupations Code Chapter 301. The Occupations Code §301.151 provides that the Board may adopt and enforce rules consistent with the Occupations Code Chapter 301 and that are necessary to perform its duties and conduct proceedings before the Board, regulate the practice of professional and vocational nursing, establish standards of professional conduct for license holders, and determine whether an act constitutes the practice of professional or vocational nursing.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on April 24, 2009.

TRD-200901558

James W. Johnston

General Counsel

Texas Board of Nursing

Effective date: May 14, 2009

Proposal publication date: February 20, 2009

For further information, please call: (512) 305-6811