May23, 1967

Mr. H. M. Cardwell, President Opinion No. M-78 Board of Vocational Nurse Examiners 1008 SamHouston Building Re: Whether Board of VocaAustin, Texas tional Nurse Examiners is authorized to subscribe to the National League for Nursing test pool examination as the Bear Mr. Cardwell: Board's testing method.

Youhave requested the opinion of this office concerning the question of whether the Board of Vocational Nurse Examiners mayuse the National League for Nursing test pool examination as its llcensure examination for those Individuals seeking to obtain a license as aLicensed Vocational Nurse pursuant to the provisions of Article 4528c, Vernon!s Civil Statutes.

In connection with the foregoing question you have stated that: "It has been the practice of the Board of Vocational Nurse Examiners for the past fourteen years to construct Its ownlicensure examination for graduates of the year's vocational nurse training program. All of the states except Texas subscribe to the National League for Nursing test pool examination as their testing method, making It necessary for our LVN's seeking reciprocity In other states to write examination twice. "

. . . "TheBoard does not examine the questions before the examination is given but does examine themat the time of the examination andsets the grades. Thecontract with the National League for Nursing for use of the pool examination could be cancelled at anytime by our Board a;d wecould go back to giving our ownexaminations.

- 352 --. .

. -’

Mr. H. M.Cardwell, page 2 (M-78)

Section 5 of Article 4528c,provides, in part, that:

“(a) Except as provided In Section 6and Section 7 of this Act, every person desiring to be licensed as aLicensed Vocational Nurse or use the abbreviation L. V. N. In the State of Texas, shall be required to pass the examination given by the Board of Vocational NurseExaminers.

. . .*

. . . accrediting? “(cl In conducting examinations andIn

chools of Vocational Nurses and hospitals as provided for In this Act, it shall bemandatory upon the Board to ascertain that each Vocational Nurse shall have been taught the ?undamentals of basic bedside nursing I th home andIn the hospital.

. . .” (HmphasisnaddEd.) In Attorney General’s Opinion No. v-736 (1948),this office hadbefore It a like question dealing with examinations given by the State Board of Nurse Examiners. In holding that the State Board of Nurse Examlners could use questions prepared bythe National League of Nursing Education for the examination of applicants to practice professional nursing, the opinion stated:

“Not only do the above quoted statutes impose aduty uponthe Board to prescribe the type of examinations as it maydeembest in order to determine the fitness of the avnlicants to practice professional nursing, but it-leaves it within the sound discretion and judgment of the Board as to the method of prescribing such examinations as well as grading the examination papers of the applicants.

“True, the Board is not authorized to delegate the power of giving such examinations to anyone else. However,’ wedonot believe that the mere fact that the Board adopts questions prepared by the National League of Nursing Education amounts to adelegation of power. Onthe contrary, if the Board thinks that the purpose of the lawwould be more effectively carried out by conducting such examinations through the method referred to In your l;;equest, webelieve that it has such power.

. . . (Bnphasls added.)

-353-. Mr. H. M.Cardwell, page 3 (M-78)

In Attorney General's Opinion No. ~-2831 (1952),this office hadbefore it the question of whether the Board of Vocational Nurse Examiners could prescribe examinations formulated by the National League of Nursing Education, andin such opinion it was stated:

II .it Is apparent that adistinction mustbe drawnbetween anydelegation of the power to examine onthe one handanda simple choice to prescribe that set of questions which the national group has drafted in each instance. TheBoard maynot surrender its power to prescribe the questions for the examinations by ablanket order adopting In advance anyandall questions drafted by the National League of Nursing Education, to the exclusion of the Board's duty to pass onthe adequacy andacceptability of each set of questions andto formulate other questions if it finds that those prepared bythe National League are not suitable. However, as washeld in Opinion v-736,the Board mayadopt questions repared by the National League If upon scrutiny neach Instance It finds that the set of questions furnished to it is satisfactory." (Emphasis addd ) e
. Attorney General's Opinion Nos. v-736 (1948)and~-2831 (1952) clearly disclose that the Board of Vocational Nurse Examiners Is authorized to use the National League for Nursing test pool exsmlnation as Its llcensure examination for those Individuals seeking to obtain 'alicense as a Licensed Vocational Nurse pursuant to the provisions of Article 4528~. Themere fact that the membersof the Board of Vocational Nurse Examiners donot see the examination questions until the time of the examination Is not in Itself sufficient to reach a'conclusion that there has been anImproper delegation of the Board's authority to prescribe the examination to be given applicants for llcensure. TheBoard still retains the right to study the examination questions provided by the National League for Nursing andreach adecision as to whether the questions submitted are satisfactory andwill be used. Asthe Board sets the grades In connection with the examination andcan terminate use of the test pool examinations submitted by the National League for Nursing at anytime, weare of the opinion that anarrangement such as proposed would be wlthin the authority andsound discretion of the Board and would not constitute animproper delegation of their duties andauthority in connection with the examination of applicants for llcensure.

-354-‘

. - -

Mr. H.M. Cardwell, page 4 (M-78)

If the Board should determine that the test pool examination is lnadequate'to meet the requirements of Article, 4528c, then It will be the duty of the Board to give additional examination questions in order that the examination will comply with the mandatory requirements of said Article.

SUMMARY TheBoard of Vocational Nurse Examiners may use the National League for Nursing test pool examination as its licensure examination for those individuals seeking to obtain a license as a Licensed Vocational Nurse pursuant to Article 4528c, Vernon's Civil Statutes, andunder the proposed arrangement such action would not constitute an improper delegation of the Board's duties andauthority in connection with the examination of applicants for licensure. If the Board should determine that the teat pool examination is inadequate to meet the requirements of Article 4528c, then it will be the duty of the Board to give additional examination questions In ord,er that the examination will comply with the mandatory requirements of said Article. Vm truly yours,

g?z-

. ‘MARTN General of Texas Prepared by Pat Bailey Assistant Attorney General APPROVED: OPINIONCOMMITTEE Hawthorne Phillips, Chairman

. W.V. Geppert, Co-Chairman Lewis Berry Ralph Rash Jack Sparks JamesMcCoy STAFFLEGAL

ASSISTANT A. J. Carubbl, Jr.

-355-