73R10141 JMM-F
By Cain, et al. H.B. No. 1665
Substitute the following for H.B. No. 1665:
By Berlanga C.S.H.B. No. 1665
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of health professions, including the
1-3 profession of nursing facility administration, and to the abolition
1-4 of the Texas Board of Licensure for Nursing Home Administrators;
1-5 providing penalties.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 ARTICLE 1. HEALTH PROFESSIONS COUNCIL
1-8 SECTION 1.01. Title 71, Revised Statutes, is amended by
1-9 adding Article 4512p to read as follows:
1-10 Art. 4512p. HEALTH PROFESSIONS COUNCIL
1-11 Sec. 1. HEALTH PROFESSIONS COUNCIL. (a) The Health
1-12 Professions Council shall administer the functions provided by this
1-13 article and coordinate the administrative and regulatory efforts of
1-14 the health licensing agencies represented on the council.
1-15 (b) The council consists of one representative appointed by
1-16 each of the following:
1-17 (1) the governor; and
1-18 (2) each of the following health licensing agencies:
1-19 (A) the Texas Board of Chiropractic Examiners;
1-20 (B) the State Board of Dental Examiners;
1-21 (C) the Texas Optometry Board;
1-22 (D) the Texas State Board of Pharmacy;
1-23 (E) the Texas State Board of Podiatry;
1-24 (F) the Texas State Board of Veterinary Medical
2-1 Examiners;
2-2 (G) the Texas State Board of Medical Examiners;
2-3 (H) the Board of Nurse Examiners;
2-4 (I) the Texas State Board of Examiners of
2-5 Psychologists;
2-6 (J) the Board of Vocational Nurse Examiners;
2-7 (K) the entity that regulates the practice of
2-8 physical therapy;
2-9 (L) the entity that regulates the practice of
2-10 occupational therapy; and
2-11 (M) the Texas Board of Health to represent the
2-12 health licensing division of the Texas Department of Health.
2-13 (c) Members of the council are appointed for two-year terms
2-14 expiring February 1 of each odd-numbered year.
2-15 (d) The council shall elect from the council's members a
2-16 presiding officer and assistant presiding officer to conduct the
2-17 business of the council.
2-18 (e) A member of the council is not entitled to compensation
2-19 or a per diem for the member's service on the council.
2-20 (f) The council may employ staff or designate staff for the
2-21 council from the employees of the health licensing agencies
2-22 represented on the council as necessary for the council to carry
2-23 out the council's responsibilities.
2-24 (g) The council shall adopt an annual budget that is funded
2-25 by a prorated assessment paid by the health licensing agencies
2-26 represented on the council.
2-27 Sec. 2. TOLL-FREE TELEPHONE COMPLAINT SYSTEM. (a) The
3-1 council shall establish and operate a toll-free telephone complaint
3-2 system to provide assistance and referral services for persons
3-3 making a complaint relating to a health profession regulated by the
3-4 state.
3-5 (b) After the establishment of a toll-free telephone
3-6 complaint system under this section, an agency of the state that
3-7 regulates a health profession shall be required to list the
3-8 toll-free telephone number of the system with the agency's regular
3-9 telephone number.
3-10 Sec. 3. TRAINING AND GUIDELINES FOR MEMBERS OF STATE BOARDS
3-11 AND COMMISSIONS. (a) The council shall establish a training
3-12 program for the members of the governing boards of the health
3-13 licensing agencies represented on the council.
3-14 (b) Before a member of a governing board may assume the
3-15 member's duties, the member must complete at least one course of
3-16 the training program established under this section, and before the
3-17 member may be confirmed by the senate, the member must pass an
3-18 examination given in conjunction with the attorney general on
3-19 subjects described by Subsections (c)(7), (8), and (9) of this
3-20 section.
3-21 (c) A training program established under this section shall
3-22 provide information to a participant regarding:
3-23 (1) the enabling legislation that created the
3-24 governing board to which the member is appointed;
3-25 (2) the programs operated by that state agency;
3-26 (3) the role and functions of that state agency;
3-27 (4) the rules of that state agency with an emphasis on
4-1 the rules that relate to disciplinary and investigatory authority;
4-2 (5) the current budget for that state agency;
4-3 (6) the results of the most recent formal audit of
4-4 that state agency;
4-5 (7) the requirements of the:
4-6 (A) open meetings law, Chapter 271, Acts of the
4-7 60th Legislature, Regular Session, 1967 (Article 6252-17, Vernon's
4-8 Texas Civil Statutes), and its subsequent amendments;
4-9 (B) open records law, Chapter 424, Acts of the
4-10 63rd Legislature, Regular Session, 1973 (Article 6252-17a, Vernon's
4-11 Texas Civil Statutes), and its subsequent amendments; and
4-12 (C) Administrative Procedure and Texas Register
4-13 Act (Article 6252-13a, Vernon's Texas Civil Statutes) and its
4-14 subsequent amendments;
4-15 (8) the requirements of the conflict of interest laws
4-16 and other laws relating to public officials; and
4-17 (9) any applicable ethics policies adopted by that
4-18 state agency or the Texas Ethics Commission.
4-19 Sec. 4. UNLAWFUL FALSE, MISLEADING, OR DECEPTIVE
4-20 ADVERTISING. (a) Advertising that is false, misleading, or
4-21 deceptive or that is not readily subject to verification is
4-22 declared unlawful and is subject to action by the appropriate
4-23 health licensing agency as a ground for revocation or denial of a
4-24 license and subject to action by the consumer protection division
4-25 of the office of the attorney general under Sections 17.47, 17.58,
4-26 17.60, and 17.61, Business & Commerce Code.
4-27 (b) False, misleading, or deceptive advertising or
5-1 advertising that is not readily subject to verification includes
5-2 advertising that:
5-3 (1) makes a material misrepresentation of fact or
5-4 omits a fact necessary to make the statement as a whole not
5-5 materially misleading;
5-6 (2) makes a representation likely to create an
5-7 unjustified expectation about the results of a health care service
5-8 or procedure;
5-9 (3) compares a health care professional's services
5-10 with another health care professional's services unless the
5-11 comparison can be factually substantiated;
5-12 (4) contains a testimonial;
5-13 (5) causes confusion or misunderstanding as to the
5-14 credentials, education, or licensure of a health care professional;
5-15 (6) advertises or represents that health care
5-16 insurance deductibles or copayments may be waived or are not
5-17 applicable to health care services to be provided if the
5-18 deductibles or copayments are required;
5-19 (7) advertises or represents that the benefits of a
5-20 health benefit plan will be accepted as full payment when
5-21 deductibles or copayments are required;
5-22 (8) makes a representation that is designed to take
5-23 advantage of the fears or emotions of a particularly susceptible
5-24 type of patient; or
5-25 (9) advertises or represents in the use of a
5-26 professional name a title or professional identification that is
5-27 expressly or commonly reserved to or used by another profession or
6-1 professional.
6-2 (c) A violation of this section does not create a private
6-3 cause of action, including an action for breach of warranty or for
6-4 an implied contract or warranty for good and workmanlike service.
6-5 Sec. 5. BILLING INFORMATION REQUIRED; PROHIBITED PRACTICES.
6-6 (a) On the written request of a patient, a health care
6-7 professional shall provide, in plain language, a written
6-8 explanation of the charges for professional services previously
6-9 made on a bill or statement for the patient.
6-10 (b) A health care professional may not persistently or
6-11 flagrantly overcharge or overtreat a patient.
6-12 (c) A violation of this section is subject to action by the
6-13 appropriate health licensing agency as a ground for revocation or
6-14 denial of a license.
6-15 Sec. 6. CIVIL PENALTY. (a) A person who is in violation of
6-16 this article is liable to the state for a civil penalty not to
6-17 exceed $1,000 for each violation. Each day of violation
6-18 constitutes a separate violation. The attorney general may
6-19 institute an action under this section.
6-20 (b) A civil action filed by the attorney general under this
6-21 section shall be filed in a district court in Travis County or in
6-22 the county in which the violation occurred.
6-23 (c) The attorney general may recover reasonable expenses
6-24 incurred in obtaining a civil penalty under this section, including
6-25 court costs, reasonable attorney's fees, reasonable investigative
6-26 costs, witness fees, and deposition expenses.
6-27 (d) A civil penalty recovered under this section shall be
7-1 deposited in the state treasury to the credit of the general
7-2 revenue fund.
7-3 Sec. 7. INJUNCTIVE ACTION. (a) The attorney general or the
7-4 appropriate health licensing board may bring an injunctive action
7-5 to stop a violation or threatened violation of this article.
7-6 (b) The attorney general or health licensing agency may
7-7 recover reasonable expenses incurred in obtaining injunctive relief
7-8 under this section, including court costs, reasonable attorney's
7-9 fees, reasonable investigative costs, witness fees, and deposition
7-10 expenses.
7-11 Sec. 8. REPORTS AND STUDIES. (a) The council shall prepare
7-12 an annual report to be sent to the governor, the lieutenant
7-13 governor, and the speaker of the house of representatives not later
7-14 than February 1 of each year.
7-15 (b) A report under this section shall include:
7-16 (1) a statistical compilation of enforcement actions
7-17 taken by a health licensing agency represented on the council;
7-18 (2) recommendations for statutory changes to improve
7-19 the regulation of the health care professions; and
7-20 (3) other relevant information and recommendations
7-21 determined necessary by the council.
7-22 (c) The council shall determine and adopt additional
7-23 relevant information to be included in the reports.
7-24 (d) The council shall:
7-25 (1) adopt a memorandum of understanding with the
7-26 General Services Commission to develop and implement a plan to
7-27 collocate the staffs of the health licensing agencies represented
8-1 on the council, except that the memorandum shall provide for a
8-2 study of the feasibility of relocating the health licensing
8-3 division of the Texas Department of Health with the collocated
8-4 staffs;
8-5 (2) develop a plan to centralize the administrative
8-6 functions of the health licensing agencies represented on the
8-7 council;
8-8 (3) develop a plan to coordinate budget preparation
8-9 with concentration on increased funding for enforcement efforts;
8-10 (4) develop and distribute information necessary to
8-11 prepare statistical comparisons of licensing functions and unit
8-12 costs of the health licensing agencies represented on the council
8-13 in cooperation with the staffs of the Legislative Budget Board, the
8-14 governor's office of budget and planning, and the licensing
8-15 division of the Texas Department of Health;
8-16 (5) develop and implement a plan to use the toll-free
8-17 number established under Section 2 of this article to centralize
8-18 the receipt and referral of complaints for the health licensing
8-19 agencies represented on the council;
8-20 (6) study the feasibility of centralizing the receipt
8-21 and investigation of complaints; and
8-22 (7) study the effects of establishing a prohibition to
8-23 prevent individuals who are not licensed physicians from
8-24 intervening in medical practice decisions.
8-25 (e) The council shall appoint working groups consisting of
8-26 the executive directors of the health licensing agencies
8-27 represented on the council to carry out the council's duties under
9-1 Subsection (d) of this section. A working group under this
9-2 subsection shall report to the council.
9-3 (f) The results of the council's studies under Subsection
9-4 (d) of this section shall be reported to the governor, the
9-5 lieutenant governor, and the speaker of the house of
9-6 representatives not later than January 1, 1995.
9-7 Sec. 9. REMEDIES NOT EXCLUSIVE. The provisions of this
9-8 article are in addition to any other remedy provided by any other
9-9 statute, rule, or common law.
9-10 SECTION 1.02. The Healing Art Identification Act (Article
9-11 4590e, Vernon's Texas Civil Statutes) is repealed.
9-12 ARTICLE 2. NURSING FACILITY ADMINISTRATION
9-13 SECTION 2.01. Title 71, Revised Statutes, is amended by
9-14 adding Article 4512q to read as follows:
9-15 Art. 4512q. NURSING FACILITY ADMINISTRATION
9-16 Sec. 1. SHORT TITLE. This article may be cited as the Texas
9-17 Nursing Facility Administrators Licensure Act.
9-18 Sec. 2. DEFINITIONS. In this article:
9-19 (1) "Board" means the Texas Board of Nursing Facility
9-20 Administrators.
9-21 (2) "Department" means the Texas Department of Health.
9-22 (3) "Nursing facility" means an institution or
9-23 facility that is licensed as a nursing home, nursing facility,
9-24 skilled nursing facility, or custodial care home by the department
9-25 under Chapter 242, Health and Safety Code.
9-26 (4) "Nursing facility administrator" or
9-27 "administrator" means a person who engages in the practice of
10-1 nursing facility administration without regard to whether the
10-2 person has an ownership interest in the facility or whether the
10-3 functions and duties are shared with any other person.
10-4 (5) "Practice of nursing facility administration"
10-5 means the performance of the acts of administering, managing,
10-6 supervising, or being in general administrative charge of a nursing
10-7 facility.
10-8 Sec. 3. BOARD. (a) The Texas Board of Nursing Facility
10-9 Administrators is an agency within the department.
10-10 (b) The board is composed of nine members appointed by the
10-11 governor. Three members must be members of the public, and six
10-12 members must be nursing facility administrators licensed under this
10-13 article. Appointments to the board shall be made without regard to
10-14 the race, color, disability, sex, religion, or national origin of
10-15 the person appointed.
10-16 (c) Members of the board serve staggered six-year terms,
10-17 with the terms of three members expiring on February 1 of each
10-18 odd-numbered year. A person appointed to fill a vacancy on the
10-19 board shall serve for the unexpired portion of the term for which
10-20 the person is appointed.
10-21 Sec. 4. MEMBERSHIP REQUIREMENTS. (a) A member of the board
10-22 who is an administrator must:
10-23 (1) be a resident of this state and a citizen of the
10-24 United States;
10-25 (2) be licensed under this article and currently
10-26 serving as a nursing facility administrator or have direct
10-27 supervisory responsibility on a daily basis over an administrator
11-1 who works in a nursing facility; and
11-2 (3) hold a degree from an accredited four-year college
11-3 or university.
11-4 (b) An administrator who does not have a degree as required
11-5 by Subsection (b)(3) of this section may be qualified to serve as a
11-6 member of the board if the administrator has two years of practical
11-7 experience as an administrator for every year fewer than four that
11-8 the administrator has completed at a four-year college or
11-9 university.
11-10 (c) At least one administrator member of the board must be
11-11 associated with and a representative of a nonproprietary nursing
11-12 facility, and at least one administrator member of the board must
11-13 have an ownership interest in a nursing facility.
11-14 (d) A member or employee of the board may not:
11-15 (1) be an officer, employee, or paid consultant of a
11-16 trade association in the nursing facility industry; or
11-17 (2) be related within the second degree by affinity or
11-18 within the third degree by consanguinity to an officer, employee,
11-19 or paid consultant of a trade association in the nursing facility
11-20 industry.
11-21 (e) A member of the board who represents the general public
11-22 may not have a financial interest, other than as a consumer, in a
11-23 nursing facility as an officer, director, partner, owner, employee,
11-24 attorney, or paid consultant or be related within the second degree
11-25 by affinity or within the third degree by consanguinity to a person
11-26 who has a financial interest, other than as a consumer, in a
11-27 nursing facility as an officer, director, partner, owner, employee,
12-1 attorney, or paid consultant.
12-2 (f) A person who is required to register as a lobbyist under
12-3 Chapter 305, Government Code, because of the person's activities
12-4 for compensation on behalf of a profession related to the operation
12-5 of the board may not serve on the board.
12-6 Sec. 5. GROUNDS FOR REMOVAL. It is a ground for removal
12-7 from the board if a member:
12-8 (1) does not have at the time of appointment the
12-9 qualifications required by Section 4 of this article for
12-10 appointment to the board;
12-11 (2) does not maintain during service on the board the
12-12 qualifications required by Section 4 of this article for
12-13 appointment to the board;
12-14 (3) violates a prohibition established by Section 4 of
12-15 this article;
12-16 (4) cannot discharge the member's duties for a
12-17 substantial part of the term for which the member is appointed
12-18 because of illness or disability; or
12-19 (5) is absent from more than half of the regularly
12-20 scheduled board meetings that the member is eligible to attend
12-21 during a calendar year, unless the absence is excused by a majority
12-22 vote of the board.
12-23 Sec. 6. BOARD OFFICERS; MEETINGS; QUORUM; EXPENSES. (a)
12-24 The board shall elect from its members a presiding officer and
12-25 assistant presiding officer who serve according to rules adopted by
12-26 the board.
12-27 (b) The board shall hold at least two regular meetings each
13-1 year as provided by rules adopted by the board.
13-2 (c) A majority of the members constitutes a quorum.
13-3 (d) Each member of the board is entitled to compensation for
13-4 transportation expenses as provided by the General Appropriations
13-5 Act.
13-6 Sec. 7. APPLICATION OF OPEN MEETINGS AND ADMINISTRATIVE
13-7 PROCEDURE ACTS. The board is subject to the open meetings law,
13-8 Chapter 271, Acts of the 60th Legislature, Regular Session, 1967
13-9 (Article 6252-17, Vernon's Texas Civil Statutes), and its
13-10 subsequent amendments, and the Administrative Procedure and Texas
13-11 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes) and
13-12 its subsequent amendments.
13-13 Sec. 8. POWERS AND DUTIES OF BOARD. (a) The board may
13-14 adopt rules consistent with this article.
13-15 (b) The board shall:
13-16 (1) adopt and publish a code of ethics;
13-17 (2) establish the qualifications of applicants for
13-18 licenses and the renewal of licenses;
13-19 (3) spend funds necessary for the proper
13-20 administration of the board's assigned duties;
13-21 (4) establish reasonable and necessary fees for the
13-22 administration and implementation of this article; and
13-23 (5) establish a minimum number of hours of continuing
13-24 education required to renew a license and periodically assess the
13-25 continuing education needs of license holders to determine whether
13-26 specific course content should be required.
13-27 Sec. 9. ADMINISTRATIVE FUNCTIONS; EXECUTIVE SECRETARY. (a)
14-1 The department shall provide the personnel and necessary facilities
14-2 required to administer this article. If necessary to the
14-3 administration of this article, the department may secure and
14-4 provide for compensation for services that the department considers
14-5 necessary and may employ and compensate within available
14-6 appropriations professional consultants, technical assistants, and
14-7 employees on a full-time or part-time basis.
14-8 (b) The commissioner of health shall designate an employee
14-9 to serve as executive secretary of the board. The executive
14-10 secretary must be an employee of the department. The executive
14-11 secretary is the administrator of the licensing activities under
14-12 this article. The executive secretary shall carry out other
14-13 functions as may be required by the board or the department to
14-14 administer this article.
14-15 Sec. 10. PUBLIC INTEREST INFORMATION. (a) The board shall
14-16 prepare information of public interest describing the functions of
14-17 the board and the department under this article and the procedures
14-18 by which complaints are filed with and resolved by the board. The
14-19 board shall make the information available to the public and
14-20 appropriate state agencies.
14-21 (b) The board by rule shall establish methods by which
14-22 consumers and service recipients are notified of the name, mailing
14-23 address, and telephone number of the board for the purpose of
14-24 directing complaints to the board.
14-25 Sec. 11. FEES; FUNDS; ANNUAL REPORT. (a) The board by rule
14-26 shall set reasonable and necessary fees in amounts necessary to
14-27 cover the cost of administering this article. The board by rule
15-1 may set different licensing fees for different categories of
15-2 licenses.
15-3 (b) The department shall receive and account for funds
15-4 received under this article. The funds shall be deposited in the
15-5 state treasury to the credit of the general revenue fund in an
15-6 account known as the licensed nursing facility administrator's
15-7 account to be used only for the administration of this article.
15-8 (c) The department shall file annually with the governor and
15-9 the presiding officer of each house of the legislature a complete
15-10 and detailed written report accounting for all funds received and
15-11 disbursed by the board or the department for the administration of
15-12 this article during the preceding fiscal year. The annual report
15-13 must be in the form and reported in the time provided by the
15-14 General Appropriations Act.
15-15 (d) The board may receive and disburse funds received from
15-16 any federal source for the furtherance of the board's functions
15-17 under this article.
15-18 Sec. 12. PRACTICING WITHOUT A LICENSE. A person may not act
15-19 as a nursing facility administrator or represent to others that the
15-20 person is a nursing facility administrator unless the person is
15-21 licensed under this article.
15-22 Sec. 13. LICENSE APPLICATION; QUALIFICATIONS. (a) An
15-23 applicant for a nursing facility administrator's license must
15-24 submit a sworn application that is accompanied by the application
15-25 fee.
15-26 (b) The board shall prescribe the form of the application
15-27 and may by rule establish dates by which applications and fees must
16-1 be received. The rules under this section may not be inconsistent
16-2 with the rules of the department related to the application dates
16-3 of other licenses administered by the department.
16-4 (c) An applicant for a nursing facility administrator's
16-5 license must take a licensing examination under this article. To
16-6 qualify for the licensing examination, the applicant must have
16-7 satisfactorily completed a course of instruction and training
16-8 prescribed by the board that is conducted by or in cooperation with
16-9 an accredited postsecondary educational institution and that is
16-10 designed and administered to provide sufficient knowledge of:
16-11 (1) the needs served by nursing facilities;
16-12 (2) the laws governing the operation of nursing
16-13 facilities and the protection of the interests of facility
16-14 residents; and
16-15 (3) the elements of nursing facility administration.
16-16 (d) An applicant who has not completed the course of
16-17 instruction and training described by Subsection (c) of this
16-18 section must present evidence satisfactory to the board of having
16-19 completed sufficient education, training, and experience in the
16-20 fields described by Subsection (c) of this section to enable the
16-21 applicant to engage in the practice of nursing facility
16-22 administration.
16-23 Sec. 14. EXAMINATION. (a) The licensing examination shall
16-24 be prepared or approved by the board and administered by the board
16-25 to qualified applicants at least twice each calendar year. The
16-26 board shall have the written portion of the examination, if any,
16-27 validated by a testing professional.
17-1 (b) Not later than the 30th day after the date on which a
17-2 licensing examination is administered under this article, the board
17-3 shall notify each examinee of the results of the examination. If
17-4 an examination is graded or reviewed by a national or state testing
17-5 service, the board shall notify examinees of the results of the
17-6 examination not later than two weeks after the date the board
17-7 receives the results from the testing service. If the notice of
17-8 the examination results will be delayed for more than 90 days after
17-9 the examination date, the board shall notify the examinee of the
17-10 reason for the delay before the 90th day.
17-11 (c) If requested in writing by a person who fails the
17-12 licensing examination, the board shall furnish the person with an
17-13 analysis of the person's performance on the examination.
17-14 (d) The board may establish by rule additional educational
17-15 requirements to be met by an applicant who fails the examination
17-16 three times.
17-17 Sec. 15. LICENSES; TEMPORARY LICENSE; INACTIVE STATUS;
17-18 PROVISIONAL LICENSE. (a) A person who meets the requirements for
17-19 licensing under this article is entitled to receive a license. A
17-20 nursing facility administrator's license is not transferable.
17-21 (b) A person licensed under this article must notify the
17-22 board of the license holder's correct mailing address.
17-23 (c) A license is valid for two years. The board by rule may
17-24 adopt a system under which licenses expire on various dates during
17-25 the two-year period. For the year in which a license expiration
17-26 date is changed, license fees payable on the original expiration
17-27 date shall be prorated on a monthly basis so that each license
18-1 holder shall pay only that portion of the license fee that is
18-2 allocable to the number of months during which the license is
18-3 valid. On renewal of the license on the new expiration date, the
18-4 total license renewal fee is payable.
18-5 (d) The board by rule may provide for the issuance of a
18-6 temporary license. Rules adopted under this section shall include
18-7 a time limit for a licensee to practice under a temporary license.
18-8 (e) The board by rule may provide for a license holder to be
18-9 placed on inactive status.
18-10 Sec. 16. PROVISIONAL LICENSE. (a) On application, the
18-11 board shall grant a provisional license under this article. An
18-12 applicant for a provisional license under this section must:
18-13 (1) be licensed in good standing as a nursing facility
18-14 administrator in another state, the District of Columbia, or a
18-15 territory of the United States that has licensing requirements that
18-16 are substantially equivalent to the requirements of this article;
18-17 (2) have passed a national or other examination
18-18 recognized by the board relating to the practice of nursing
18-19 facility administration; and
18-20 (3) be sponsored by a person licensed under this
18-21 article with whom the provisional license holder may practice under
18-22 this section.
18-23 (b) An applicant for a provisional license may be excused
18-24 from the requirement of Subsection (a)(3) of this section if the
18-25 board determines that compliance with that subsection constitutes a
18-26 hardship to the applicant.
18-27 (c) A provisional license is valid until the date the board
19-1 approves or denies the provisional license holder's application for
19-2 a license. The board shall issue a license under this article to
19-3 the holder of a provisional license under this section if:
19-4 (1) the provisional license holder passes the
19-5 examination required by Section 14 of this article;
19-6 (2) the board verifies that the provisional license
19-7 holder has the academic and experience requirements for a license
19-8 under this article; and
19-9 (3) the provisional license holder satisfies any other
19-10 license requirements under this article.
19-11 (d) The board shall complete the processing of a provisional
19-12 license holder's application for a license not later than the 180th
19-13 day after the date the provisional license is issued. The board
19-14 may extend this time in order to receive the results of a national
19-15 examination or other examination administered or graded by an
19-16 outside organization recognized by the board.
19-17 Sec. 17. LICENSE RENEWAL. (a) A person may renew an
19-18 unexpired license by paying to the board before the expiration of
19-19 the license the required renewal fee.
19-20 (b) If a person's license has been expired for 90 days or
19-21 less, the person may renew the license by paying to the board the
19-22 required renewal fee and a fee that is one-half of the examination
19-23 fee for the license.
19-24 (c) If a person's license has been expired for longer than
19-25 90 days but less than one year, the person may renew the license by
19-26 paying to the board all unpaid renewal fees and a fee that is equal
19-27 to the examination fee for the license.
20-1 (d) If a person's license has been expired for one year or
20-2 longer, the person may not renew the license. The person may
20-3 obtain a new license by complying with the requirements and
20-4 procedures for obtaining an original license. However, the board
20-5 may renew without reexamination an expired license of a person who
20-6 was licensed in this state, moved to another state, and is
20-7 currently licensed and has been in practice in the other state for
20-8 the two years preceding application. The person must pay to the
20-9 board a fee that is equal to the examination fee for the license.
20-10 (e) At least 30 days before the expiration of a person's
20-11 license, the board shall send written notice of the impending
20-12 license expiration to the person at the license holder's last known
20-13 address according to the records of the board.
20-14 Sec. 18. MANDATORY CONTINUING EDUCATION. (a) The board by
20-15 rule shall establish a minimum number of hours of continuing
20-16 education required to renew a license under this article. The
20-17 board may assess the continuing education needs of license holders
20-18 and may require license holders to attend continuing education
20-19 courses specified by the board.
20-20 (b) The board shall identify the key factors for the
20-21 competent performance by a license holder of the license holder's
20-22 professional duties. The board shall adopt a procedure to assess a
20-23 license holder's participation in continuing education programs.
20-24 Sec. 19. COMPLAINT RECEIPT, INVESTIGATION, AND DISPOSITION.
20-25 (a) The board shall keep an information file about each complaint
20-26 filed with the board. The board's information file shall be kept
20-27 current and contain a record for each complaint of:
21-1 (1) all persons contacted in relation to the
21-2 complaint;
21-3 (2) a summary of findings made at each step of the
21-4 complaint process;
21-5 (3) an explanation of the legal basis and reason for
21-6 a complaint that is dismissed; and
21-7 (4) other relevant information.
21-8 (b) If a written complaint is filed with the board that the
21-9 board has authority to resolve, the board, at least as frequently
21-10 as quarterly and until final disposition of the complaint, shall
21-11 notify the parties to the complaint of the status of the complaint
21-12 unless the notice would jeopardize an undercover investigation.
21-13 (c) The board by rule shall adopt a form to standardize
21-14 information concerning complaints made to the board. The board by
21-15 rule shall prescribe information to be provided to a person when
21-16 the person files a complaint with the board.
21-17 (d) The board shall provide reasonable assistance to a
21-18 person who wishes to file a complaint with the board.
21-19 (e) The board shall adopt rules concerning the investigation
21-20 of a complaint filed with the board. The rules adopted under this
21-21 subsection shall:
21-22 (1) distinguish between categories of complaints;
21-23 (2) ensure that complaints are not dismissed without
21-24 appropriate consideration;
21-25 (3) require that the board be advised of a complaint
21-26 that is dismissed and that a letter be sent to the person who filed
21-27 the complaint explaining the action taken on the dismissed
22-1 complaint;
22-2 (4) ensure that the person who filed the complaint has
22-3 an opportunity to explain the allegations made in the complaint;
22-4 and
22-5 (5) prescribe guidelines concerning the categories of
22-6 complaints that require the use of a private investigator and the
22-7 procedures for the board to obtain the services of a private
22-8 investigator.
22-9 (f) The board shall dispose of all complaints in a timely
22-10 manner. The board by rule shall establish a schedule for
22-11 conducting each phase of a complaint that is under the control of
22-12 the board not later than the 30th day after the date the complaint
22-13 is received by the board. The schedule shall be kept in the
22-14 information file for the complaint and all parties shall be
22-15 notified of the projected time requirements for pursuing the
22-16 complaint. A change in the schedule must be noted in the complaint
22-17 information file and all parties to the complaint must be notified
22-18 not later than the seventh day after the date the change is made.
22-19 (g) The executive secretary shall notify the board of a
22-20 complaint that extends beyond the time prescribed by the board for
22-21 resolving the complaint so that the board may take necessary action
22-22 on the complaint.
22-23 Sec. 20. SANCTIONS. (a) The board may revoke, suspend, or
22-24 refuse to renew a nursing facility administrator's license, assess
22-25 an administrative penalty, issue a written reprimand, require
22-26 participation in continuing education, or place an administrator on
22-27 probation after due notice and hearing on proof of any of the
23-1 following grounds:
23-2 (1) the license holder has wilfully or repeatedly
23-3 violated a provision of this article or a rule adopted under this
23-4 article;
23-5 (2) the license holder has wilfully or repeatedly
23-6 acted in a manner inconsistent with the health and safety of the
23-7 patients of a facility of which the license holder is an
23-8 administrator;
23-9 (3) the license holder obtained or attempted to obtain
23-10 a license through misrepresentation or deceit or by making a
23-11 material misstatement of fact on a license application;
23-12 (4) the intemperate use of alcohol or drugs by the
23-13 license holder in the board's opinion creates a hazard to the
23-14 patients of a facility;
23-15 (5) a judgment of a court of competent jurisdiction
23-16 finds that the license holder is mentally incapacitated;
23-17 (6) the license holder has been convicted in a court
23-18 of competent jurisdiction of a misdemeanor or felony involving
23-19 moral turpitude; or
23-20 (7) the license holder has been negligent or
23-21 incompetent in the license holder's duties as a nursing facility
23-22 administrator.
23-23 (b) If a license suspension is probated, the board may
23-24 require the license holder to:
23-25 (1) report regularly to the board on matters that are
23-26 the basis of the probation;
23-27 (2) limit practice to the areas prescribed by the
24-1 board; or
24-2 (3) continue or review continuing professional
24-3 education until the license holder attains a degree of skill
24-4 satisfactory to the board in those areas that are the basis of the
24-5 probation.
24-6 (c) A license holder is entitled to a hearing before a
24-7 hearing examiner designated by the board before a sanction is
24-8 imposed under this section.
24-9 (d) The board by rule shall adopt a broad schedule of
24-10 sanctions for violations under this article. The designated
24-11 hearing officer shall use the schedule for any sanction imposed as
24-12 the result of a hearing conducted by that office.
24-13 Sec. 21. WRITTEN REPRIMAND AND CONTINUING EDUCATION AS
24-14 SANCTIONS. In addition to the other disciplinary actions
24-15 authorized under this article, the board may issue a written
24-16 reprimand to a license holder who violates this article or require
24-17 that a license holder who violates this article participate in
24-18 continuing education programs. The board shall specify the
24-19 continuing education programs that may be attended and the number
24-20 of hours that must be completed by a license holder to fulfill the
24-21 requirements of this section.
24-22 Sec. 22. ADMINISTRATIVE PENALTY. (a) The board may impose
24-23 an administrative penalty against a person licensed or regulated
24-24 under this article who violates this article or a rule or order
24-25 adopted by the board under this article.
24-26 (b) The penalty for a violation may be in an amount not to
24-27 exceed $1,000. Each day a violation continues or occurs is a
25-1 separate violation for purposes of imposing a penalty.
25-2 (c) The amount of the penalty shall be based on:
25-3 (1) the seriousness of the violation, including the
25-4 nature, circumstances, extent, and gravity of any prohibited acts,
25-5 and the hazard or potential hazard created to the health, safety,
25-6 or economic welfare of the public;
25-7 (2) the economic harm to property or the environment
25-8 caused by the violation;
25-9 (3) the history of previous violations;
25-10 (4) the amount necessary to deter future violations;
25-11 (5) efforts to correct the violation; and
25-12 (6) any other matter that justice may require.
25-13 (d) If the executive secretary determines that a violation
25-14 has occurred, the executive secretary may issue to the board a
25-15 report that states the facts on which the determination is based
25-16 and the executive secretary's recommendation on the imposition of a
25-17 penalty, including a recommendation on the amount of the penalty.
25-18 (e) Within 14 days after the date the report is issued, the
25-19 executive secretary shall give written notice of the report to the
25-20 person. The notice may be given by certified mail. The notice
25-21 must include a brief summary of the alleged violation and a
25-22 statement of the amount of the recommended penalty and must inform
25-23 the person that the person has a right to a hearing on the
25-24 occurrence of the violation, the amount of the penalty, or both the
25-25 occurrence of the violation and the amount of the penalty.
25-26 (f) Within 20 days after the date the person receives the
25-27 notice, the person in writing may accept the determination and
26-1 recommended penalty of the executive secretary or may make a
26-2 written request for a hearing on the occurrence of the violation,
26-3 the amount of the penalty, or both the occurrence of the violation
26-4 and the amount of the penalty.
26-5 (g) If the person accepts the determination and recommended
26-6 penalty of the executive secretary, the board by order shall
26-7 approve the determination and impose the recommended penalty.
26-8 (h) If the person requests a hearing or fails to respond
26-9 timely to the notice, the board shall set a hearing and give notice
26-10 of the hearing to the person. The hearing shall be held by a
26-11 hearing examiner designated by the board. The hearing examiner
26-12 shall make findings of fact and conclusions of law and promptly
26-13 issue to the board a proposal for a decision about the occurrence
26-14 of the violation and the amount of a proposed penalty. Based on
26-15 the findings of fact, conclusions of law, and proposal for a
26-16 decision, the board by order may find that a violation has occurred
26-17 and impose a penalty or may find that no violation occurred.
26-18 (i) The notice of the board's order given to the person
26-19 under the Administrative Procedure and Texas Register Act (Article
26-20 6252-13a, Vernon's Texas Civil Statutes), and its subsequent
26-21 amendments, must include a statement of the right of the person to
26-22 judicial review of the order.
26-23 (j) Within 30 days after the date the board's order is final
26-24 as provided by Section 16(c), Administrative Procedure and Texas
26-25 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), and
26-26 its subsequent amendments, the person shall:
26-27 (1) pay the amount of the penalty;
27-1 (2) pay the amount of the penalty and file a petition
27-2 for judicial review contesting the occurrence of the violation, the
27-3 amount of the penalty, or both the occurrence of the violation and
27-4 the amount of the penalty; or
27-5 (3) without paying the amount of the penalty, file a
27-6 petition for judicial review contesting the occurrence of the
27-7 violation, the amount of the penalty, or both the occurrence of the
27-8 violation and the amount of the penalty.
27-9 (k) Within the 30-day period, a person who acts under
27-10 Subsection (j)(3) of this section may:
27-11 (1) stay enforcement of the penalty by:
27-12 (A) paying the amount of the penalty to the
27-13 court for placement in an escrow account; or
27-14 (B) giving to the court a supersedeas bond that
27-15 is approved by the court for the amount of the penalty and that is
27-16 effective until all judicial review of the board's order is final;
27-17 or
27-18 (2) request the court to stay enforcement of the
27-19 penalty by:
27-20 (A) filing with the court a sworn affidavit of
27-21 the person stating that the person is financially unable to pay the
27-22 amount of the penalty and is financially unable to give the
27-23 supersedeas bond; and
27-24 (B) giving a copy of the affidavit to the board
27-25 by certified mail.
27-26 (l) If the board receives a copy of an affidavit under
27-27 Subsection (k)(2) of this section, the board may file with the
28-1 court, within five days after the date the copy is received, a
28-2 contest to the affidavit. The court shall hold a hearing on the
28-3 facts alleged in the affidavit as soon as practicable and shall
28-4 stay the enforcement of the penalty on finding that the alleged
28-5 facts are true. The person who files an affidavit has the burden
28-6 of proving that the person is financially unable to pay the amount
28-7 of the penalty and to give a supersedeas bond.
28-8 (m) If the person does not pay the amount of the penalty and
28-9 the enforcement of the penalty is not stayed, the board may refer
28-10 the matter to the attorney general for collection of the amount of
28-11 the penalty.
28-12 (n) Judicial review of the order of the board:
28-13 (1) is instituted by filing a petition as provided by
28-14 Section 19, Administrative Procedure and Texas Register Act
28-15 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
28-16 subsequent amendments; and
28-17 (2) is under the substantial evidence rule.
28-18 (o) If the court sustains the occurrence of the violation,
28-19 the court may uphold or reduce the amount of the penalty and order
28-20 the person to pay the full or reduced amount of the penalty. If
28-21 the court does not sustain the occurrence of the violation, the
28-22 court shall order that no penalty is owed.
28-23 (p) When the judgment of the court becomes final, the court
28-24 shall proceed under this subsection. If the person paid the amount
28-25 of the penalty and if that amount is reduced or is not upheld by
28-26 the court, the court shall order that the appropriate amount plus
28-27 accrued interest be remitted to the person. The rate of the
29-1 interest is the rate charged on loans to depository institutions by
29-2 the New York Federal Reserve Bank, and the interest shall be paid
29-3 for the period beginning on the date the penalty was paid and
29-4 ending on the date the penalty is remitted. If the person gave a
29-5 supersedeas bond and if the amount of the penalty is not upheld by
29-6 the court, the court shall order the release of the bond. If the
29-7 person gave a supersedeas bond and if the amount of the penalty is
29-8 reduced, the court shall order the release of the bond after the
29-9 person pays the amount.
29-10 (q) A penalty collected under this section shall be remitted
29-11 to the comptroller for deposit in the general revenue fund.
29-12 (r) All proceedings under this section are subject to the
29-13 Administrative Procedure and Texas Register Act (Article 6252-13a,
29-14 Vernon's Texas Civil Statutes) and its subsequent amendments.
29-15 Sec. 23. INFORMAL PROCEEDINGS. (a) The board by rule shall
29-16 adopt procedures governing:
29-17 (1) informal disposition of a contested case under
29-18 Section 13(e), Administrative Procedure and Texas Register Act
29-19 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
29-20 subsequent amendments; and
29-21 (2) informal proceedings held in compliance with
29-22 Section 18(c), Administrative Procedure and Texas Register Act
29-23 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
29-24 subsequent amendments.
29-25 (b) Rules adopted under this section must provide the
29-26 complainant and the license holder an opportunity to be heard and
29-27 must require the presence of a representative of the office of the
30-1 attorney general to advise the board or the employees assisting the
30-2 board.
30-3 Sec. 24. MONITORING OF LICENSE HOLDER. The board by rule
30-4 shall develop a system for monitoring a license holder's compliance
30-5 with the requirements of this article. Rules adopted under this
30-6 section shall include procedures for monitoring a license holder
30-7 who is ordered by the board to perform certain acts to ascertain
30-8 that the license holder performs the required acts and to identify
30-9 and monitor license holders who represent a risk to the public.
30-10 Sec. 25. CIVIL PENALTY. A person who violates this article
30-11 is liable to the state for a civil penalty of $1,000 for each day
30-12 of violation. At the request of the board, the attorney general
30-13 shall bring an action to recover a civil penalty established by
30-14 this section.
30-15 Sec. 26. ASSISTANCE OF ATTORNEY GENERAL. The attorney
30-16 general shall provide legal assistance as necessary in enforcing
30-17 the provisions of this article. This requirement does not relieve
30-18 a local prosecuting officer of any of the prosecuting officer's
30-19 duties under the law.
30-20 Sec. 27. OFFENSE. (a) A person commits an offense if the
30-21 person knowingly or intentionally violates Section 12 of this
30-22 article.
30-23 (b) An offense under this section is a Class B misdemeanor.
30-24 Sec. 28. SUNSET PROVISION. The Texas Board of Nursing
30-25 Facility Administrators is subject to Chapter 325, Government Code
30-26 (Texas Sunset Act). Unless continued in existence as provided by
30-27 that chapter, the board is abolished and this article expires
31-1 September 1, 2005.
31-2 ARTICLE 3. EFFECTIVE DATE; TRANSITION; EMERGENCY
31-3 SECTION 3.01. This Act takes effect September 1, 1993.
31-4 SECTION 3.02. (a) The Texas Board of Licensure for Nursing
31-5 Home Administrators is abolished on the effective date of this Act.
31-6 As soon as possible after the effective date of this Act, the
31-7 governor shall appoint the initial members of the Texas Board of
31-8 Nursing Facility Administrators. In making the initial
31-9 appointments, the governor shall designate members to serve terms
31-10 as follows:
31-11 (1) two licensed nursing facility administrator
31-12 members and one public member serve terms expiring February 1,
31-13 1995;
31-14 (2) two licensed nursing facility administrator
31-15 members and one public member serve terms expiring February 1,
31-16 1997; and
31-17 (3) two licensed nursing facility administrator
31-18 members and one public member serve terms expiring February 1,
31-19 1999.
31-20 (b) On the effective date of this Act, the Texas Board of
31-21 Nursing Facility Administrators assumes the functions of the Texas
31-22 Board of Licensure for Nursing Home Administrators. The
31-23 obligations, rights, contracts, records and other property, and
31-24 personnel of and unspent money appropriated to or for the Texas
31-25 Board of Licensure for Nursing Home Administrators are transferred
31-26 to the Texas Board of Nursing Facility Administrators. The rules
31-27 of the abolished board are continued in effect as rules of the
32-1 Texas Board of Health or the Texas Board of Nursing Facility
32-2 Administrators, as appropriate, until superseded by rule of the
32-3 Texas Board of Health or the Texas Board of Nursing Facility
32-4 Administrators, as appropriate. A license in effect that was
32-5 issued by the abolished board is continued in effect as a license
32-6 of the Texas Department of Health. A complaint, investigation, or
32-7 other proceeding pending before the abolished board is transferred
32-8 without change in status to the Texas Department of Health. Any
32-9 reference in law to the Texas Board of Licensure for Nursing Home
32-10 Administrators means the Texas Board of Health, the Texas
32-11 Department of Health, or the Texas Board of Nursing Facility
32-12 Administrators, as appropriate.
32-13 SECTION 3.03. The changes in law made by this Act relating
32-14 to a penalty that may be imposed apply only to a violation that
32-15 occurs on or after the effective date of this Act. A violation
32-16 occurs on or after the effective date of this Act only if each
32-17 element of the violation occurs on or after that date. A violation
32-18 that occurs before the effective date of this Act is governed by
32-19 the law in effect on the date the violation occurred, and the
32-20 former law is continued in effect for that purpose.
32-21 SECTION 3.04. The importance of this legislation and the
32-22 crowded condition of the calendars in both houses create an
32-23 emergency and an imperative public necessity that the
32-24 constitutional rule requiring bills to be read on three several
32-25 days in each house be suspended, and this rule is hereby suspended.