    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
