By:  Moncrief                                          S.B. No. 674
                                 A BILL TO BE ENTITLED
                                        AN ACT
    1-1  relating to the regulation of health professions, including the
    1-2  profession of nursing facility administration, and to the abolition
    1-3  of the Texas Board of Licensure for Nursing Home Administrators;
    1-4  providing penalties.
    1-5        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-6                ARTICLE 1.  HEALTH PROFESSIONS COUNCIL
    1-7        SECTION 1.01.  Title 71, Revised Statutes, is amended by
    1-8  adding Article 4512p to read as follows:
    1-9        Art. 4512p.  HEALTH PROFESSIONS COUNCIL
   1-10        Sec. 1.  HEALTH PROFESSIONS COUNCIL.  (a)  The Health
   1-11  Professions Council shall administer the functions provided by this
   1-12  article and provide a means for the boards represented on the
   1-13  council to coordinate the boards' administrative and regulatory
   1-14  efforts.
   1-15        (b)  The council consists of one representative appointed by
   1-16  each of the following:
   1-17              (1)  the Texas Board of Chiropractic Examiners;
   1-18              (2)  the State Board of Dental Examiners;
   1-19              (3)  the Texas Optometry Board;
   1-20              (4)  the State Board of Pharmacy;
   1-21              (5)  the Texas State Board of Podiatry Examiners;
   1-22              (6)  the State Board of Veterinary Medical Examiners;
   1-23              (7)  the Texas State Board of Medical Examiners;
   1-24              (8)  the Board of Nurse Examiners;
    2-1              (9)  the Texas State Board of Examiners of
    2-2  Psychologists;
    2-3              (10)  the Board of Vocational Nurse Examiners;
    2-4              (11)  the entity that regulates the practice of
    2-5  physical therapy;
    2-6              (12)  the entity that regulates the practice of
    2-7  occupational therapy;
    2-8              (13)  the health licensing division of the Department
    2-9  of Public Health; and
   2-10              (14)  the governor's office.
   2-11        (c)  The council shall elect from the council's members a
   2-12  presiding officer and assistant presiding officer to conduct the
   2-13  business of the council.
   2-14        (d)  A member of the council is not entitled to compensation
   2-15  or a per diem for the member's service on the council.
   2-16        (e)  The council may employ staff or designate staff for the
   2-17  council from the employees of the boards listed by Subsection (b)
   2-18  of this section as necessary for the council to carry out the
   2-19  council's responsibilities.
   2-20        (f)  The council shall adopt an annual budget that is funded
   2-21  by a prorated assessment paid by the boards listed by Subsection
   2-22  (b) of this section.
   2-23        Sec. 2.  TOLL-FREE TELEPHONE COMPLAINT SYSTEM.  (a)  The
   2-24  council shall establish and operate a toll-free telephone complaint
   2-25  system to provide assistance and referral services for persons
   2-26  making a complaint relating to a health profession regulated by the
   2-27  state.
    3-1        (b)  After the establishment of a toll-free telephone
    3-2  complaint system under this section, an agency of the state that
    3-3  regulates a health profession shall be required to list the
    3-4  toll-free telephone number of the system with the agency's regular
    3-5  telephone number.
    3-6        Sec. 3.  TRAINING AND GUIDELINES FOR MEMBERS OF STATE BOARDS
    3-7  AND COMMISSIONS.  (a)  The council shall establish a training
    3-8  program for the members of the boards and commissions in the state
    3-9  that regulate health professions.
   3-10        (b)  Before a member of a board may assume the member's
   3-11  duties and before the member may be confirmed by the Senate, the
   3-12  member must complete at least one course of the training program
   3-13  established under this section.
   3-14        (c)  A training program established under this section shall
   3-15  provide information to a participant regarding:
   3-16              (1)  the enabling legislation that created the board or
   3-17  commission to which the member is appointed;
   3-18              (2)  the programs operated by that state agency;
   3-19              (3)  the role and functions of that state agency;
   3-20              (4)  the rules of that state agency with an emphasis on
   3-21  the rules that relate to disciplinary and investigatory authority;
   3-22              (5)  the current budget for that state agency;
   3-23              (6)  the results of the most recent formal audit of
   3-24  that state agency;
   3-25              (7)  the requirements of the:
   3-26                    (A)  open meetings law, Chapter 271, Acts of the
   3-27  60th Legislature, Regular Session, 1967 (Article 6252-17, Vernon's
    4-1  Texas Civil Statutes), and its subsequent amendments;
    4-2                    (B)  open records law, Chapter 424, Acts of the
    4-3  63rd Legislature, Regular Session, 1973 (Article 6252-17a, Vernon's
    4-4  Texas Civil Statutes), and its subsequent amendments; and
    4-5                    (C)  Administrative Procedure and Texas Register
    4-6  Act (Article 6252-13a, Vernon's Texas Civil Statutes) and its
    4-7  subsequent amendments;
    4-8              (8)  the requirements of the conflict of interest laws
    4-9  and other laws relating to public officials; and
   4-10              (9)  any applicable ethics policies adopted by that
   4-11  state agency or the Texas Ethics Commission.
   4-12        Sec. 4.  UNLAWFUL FALSE, MISLEADING, OR DECEPTIVE
   4-13  ADVERTISING.  (a)  Advertising that is false, misleading, or
   4-14  deceptive or that is not readily subject to verification is
   4-15  declared unlawful and is subject to action by the appropriate
   4-16  health licensing agency as a ground for revocation or denial of a
   4-17  license and subject to action by the consumer protection division
   4-18  of the office of the attorney general under Sections 17.47, 17.58,
   4-19  17.60, and 17.61, Business & Commerce Code.
   4-20        (b)  False, misleading, or deceptive advertising or
   4-21  advertising that is not readily subject to verification includes
   4-22  advertising that:
   4-23              (1)  makes a material misrepresentation of fact or
   4-24  omits a fact necessary to make the statement as a whole not
   4-25  materially misleading;
   4-26              (2)  makes a representation likely to create an
   4-27  unjustified expectation about the results of a health care service
    5-1  or procedure;
    5-2              (3)  compares a health care professional's services
    5-3  with another health care professional's services unless the
    5-4  comparison can be factually substantiated;
    5-5              (4)  contains a testimonial;
    5-6              (5)  causes confusion or misunderstanding as to the
    5-7  credentials, education, or licensure of a health care professional;
    5-8              (6)  advertises or represents that health care
    5-9  insurance deductibles or copayments may be waived or are not
   5-10  applicable to health care services to be provided if the
   5-11  deductibles or copayments are required;
   5-12              (7)  advertises or represents that the benefits of a
   5-13  health benefit plan will be accepted as full payment when
   5-14  deductibles or copayments are required;
   5-15              (8)  makes a representation that is designed to take
   5-16  advantage of the fears or emotions of a particularly susceptible
   5-17  type of patient; or
   5-18              (9)  advertises or represents in the use of a
   5-19  professional name a title or professional identification that is
   5-20  expressly or commonly reserved to or used by another profession or
   5-21  professional.
   5-22        (c)  A violation of this section does not create a private
   5-23  cause of action, including an action for breach of warranty or for
   5-24  an implied contract or warranty for good and workmanlike service.
   5-25        Sec. 5.  BILLING INFORMATION REQUIRED; PROHIBITED PRACTICES.
   5-26  (a)  On the written request of a patient, a health care
   5-27  professional shall provide, in plain language, a written
    6-1  explanation of the charges for professional services previously
    6-2  made on a bill or statement for the patient.
    6-3        (b)  A health care professional may not persistently or
    6-4  flagrantly overcharge or overtreat a patient.
    6-5        (c)  A violation of this section is subject to action by the
    6-6  appropriate health licensing agency as a ground for revocation or
    6-7  denial of a license.
    6-8        Sec. 6.  CIVIL PENALTY.  (a)  A person who is in violation of
    6-9  this article is liable to the state for a civil penalty not to
   6-10  exceed $1,000 for each violation.  Each day of violation
   6-11  constitutes a separate violation.  The attorney general may
   6-12  institute an action under this section.
   6-13        (b)  A civil action filed by the attorney general under this
   6-14  section shall be filed in a district court in Travis County or in
   6-15  the county in which the violation occurred.
   6-16        (c)  The attorney general may recover reasonable expenses
   6-17  incurred in obtaining a civil penalty under this section, including
   6-18  court costs, reasonable attorney fees, reasonable investigative
   6-19  costs, witness fees, and deposition expenses.
   6-20        (d)  A civil penalty recovered under this section shall be
   6-21  deposited in the state treasury to the credit of the general
   6-22  revenue fund.
   6-23        Sec. 7.  INJUNCTIVE ACTION.  (a)  The attorney general or the
   6-24  appropriate health licensing board may bring an injunctive action
   6-25  to stop a violation or threatened violation of this article.
   6-26        (b)  The attorney general or health licensing agency may
   6-27  recover reasonable expenses incurred in obtaining injunctive relief
    7-1  under this section, including court costs, reasonable attorney
    7-2  fees, reasonable investigative costs, witness fees, and deposition
    7-3  expenses.
    7-4        Sec. 8.  REPORTS AND STUDIES.  (a)  The council shall prepare
    7-5  an annual report to be sent to the governor, the lieutenant
    7-6  governor, and the speaker of the house of representatives not later
    7-7  than February 1 of each year.
    7-8        (b)  A report under this section shall include:
    7-9              (1)  a  statistical  compilation  of  enforcement
   7-10  actions  taken  by  a board  listed  by  Section  1(b)  of  this
   7-11  article;
   7-12              (2)  recommendations for statutory changes to improve
   7-13  the regulation of the health care professions; and
   7-14              (3)  other relevant information and recommendations
   7-15  determined necessary by the council.
   7-16        (c)  The council shall determine and adopt additional
   7-17  relevant information to be included in the reports.
   7-18        (d)  The council shall:
   7-19              (1)  adopt a memorandum of understanding with the
   7-20  General Services Commission to develop and implement a plan to
   7-21  collocate the staffs of the boards listed by Section 1(b) of this
   7-22  article, except that the memorandum shall provide for a study of
   7-23  the feasibility of relocating the health licensing division of the
   7-24  Department of Public Health with the collocated staffs;
   7-25              (2)  develop a plan to centralize the administrative
   7-26  functions of the boards listed by Section 1(b) of this article;
   7-27              (3)  develop a plan to coordinate budget preparation
    8-1  with concentration on increased funding for enforcement efforts;
    8-2              (4)  develop and implement, in coordination with the
    8-3  staffs of the Legislative Budget Board, the governor's office of
    8-4  budget and planning, and the licensing division of the Department
    8-5  of Public Health, information necessary to prepare statistical
    8-6  comparisons of licensing functions and unit costs of all boards
    8-7  represented on the council;
    8-8              (5)  develop and implement a plan to centralize the
    8-9  receipt and referral of complaints for member agencies using the
   8-10  toll-free complaint number established under Section 2 of this
   8-11  article;
   8-12              (6)  study the feasibility of centralizing the
   8-13  investigation of complaints; and
   8-14              (7)  study the effects of establishing a prohibition to
   8-15  prevent individuals who are not licensed physicians from
   8-16  intervening in medical practice decisions.
   8-17        (e)  To carry out its duties under Subsection (d) of this
   8-18  section, the council shall appoint working groups consisting of the
   8-19  executive director of the member boards who shall report to the
   8-20  council.
   8-21        (f)  The results of the council's studies under Subsection
   8-22  (d) of this section shall be reported to the governor, the
   8-23  lieutenant governor, and the speaker of the house of
   8-24  representatives not later than January 1, 1995.
   8-25        Sec. 9.  REMEDIES NOT EXCLUSIVE.  The provisions of this
   8-26  article are in addition to any other remedy provided by any other
   8-27  statute, rule, or common law.
    9-1              ARTICLE 2.  NURSING FACILITY ADMINISTRATION
    9-2        SECTION 2.01.  Title 71, Revised Statutes, is amended by
    9-3  adding Article 4512q to read as follows:
    9-4        Art. 4512q.  NURSING FACILITY ADMINISTRATION
    9-5        Sec. 1.  SHORT TITLE.  This article may be cited as the Texas
    9-6  Nursing Facility Administrators Licensure Act.
    9-7        Sec. 2.  DEFINITIONS.  In this article:
    9-8              (1)  "Board" means the Texas Board of Nursing Facility
    9-9  Administrators.
   9-10              (2)  "Department" means the Texas Department of Health.
   9-11              (3)  "Nursing facility" means an institution or
   9-12  facility that is licensed as a nursing home, nursing facility,
   9-13  skilled nursing facility, or custodial care home by the department
   9-14  under Chapter 242, Health and Safety Code.
   9-15              (4)  "Nursing facility administrator" or
   9-16  "administrator" means a person who engages in the practice of
   9-17  nursing facility administration without regard to whether the
   9-18  person has an ownership interest in the facility or whether the
   9-19  functions and duties are shared with any other person.
   9-20              (5)  "Practice of nursing facility administration"
   9-21  means the performance of the acts of administering, managing,
   9-22  supervising, or being in general administrative charge of a nursing
   9-23  facility.
   9-24        Sec. 3.  CREATION OF THE BOARD.  (a)  The Texas Board of
   9-25  Nursing Facility Administrators is created within the department.
   9-26        (b)  The board is composed of nine members appointed by the
   9-27  governor.  Three members must be members of the public, and six
   10-1  members must be nursing facility administrators licensed under this
   10-2  article.  Appointments to the board shall be made without regard to
   10-3  the race, color, disability, sex, religion, or national origin of
   10-4  the person appointed.
   10-5        (c)  Members of the board serve staggered six-year terms,
   10-6  with the terms of three members expiring on February 1 of each
   10-7  odd-numbered year.  A person appointed to fill a vacancy on the
   10-8  board shall serve for the unexpired portion of the term for which
   10-9  the person is appointed.
  10-10        (d)  The board shall include the state long-term care
  10-11  ombudsman of the Texas Department on Aging and the Commissioner of
  10-12  Human Services, or the commissioner's designee, as nonvoting, ex
  10-13  officio members.  These ex officio members shall serve at no
  10-14  expense to the department or the board.
  10-15        Sec. 4.  MEMBERSHIP REQUIREMENTS.  (a)  A member of the board
  10-16  who is an administrator must:
  10-17              (1)  be a resident of this state and a citizen of the
  10-18  United States;
  10-19              (2)  be licensed under this article and currently
  10-20  serving as a nursing facility administrator or have direct
  10-21  supervisory responsibility on a daily basis over an administrator
  10-22  who works in a nursing facility; and
  10-23              (3)  hold a degree from an accredited four-year college
  10-24  or university.
  10-25        (b)  An administrator who does not have a degree as required
  10-26  by Subsection (a)(3) of this section may be qualified to serve as a
  10-27  member of the board if the administrator has two years of practical
   11-1  experience as an administrator for every year less than four that
   11-2  the administrator has completed at a four-year college or
   11-3  university.
   11-4        (c)  At least one administrator member of the board must be
   11-5  associated with and a representative of a nonproprietary nursing
   11-6  facility, and at least one administrator member of the board must
   11-7  have an ownership interest in a nursing facility.
   11-8        (d)  A member or employee of the board may not:
   11-9              (1)  be an officer, employee, or paid consultant of a
  11-10  trade association in the nursing facility industry; or
  11-11              (2)  be related within the second degree by affinity or
  11-12  within the third degree by consanguinity to an officer, employee,
  11-13  or paid consultant of a trade association in the nursing facility
  11-14  industry.
  11-15        (e)  A member of the board who represents the general public
  11-16  may not have a financial interest, other than as a consumer, in a
  11-17  nursing facility as an officer, director, partner, owner, employee,
  11-18  attorney, or paid consultant or be related within the second degree
  11-19  by affinity or within the third degree by consanguinity to a person
  11-20  who has a financial interest, other than as a consumer, in a
  11-21  nursing facility as an officer, director, partner, owner, employee,
  11-22  attorney, or paid consultant.
  11-23        (f)  A person who is required to register as a lobbyist under
  11-24  Chapter 305, Government Code, because of the person's activities
  11-25  for compensation on behalf of a profession related to the operation
  11-26  of the board may not serve on the board.
  11-27        Sec. 5.  GROUNDS FOR REMOVAL.  It is a ground for removal
   12-1  from the board if a member:
   12-2              (1)  does not have at the time of appointment the
   12-3  qualifications required by Section 4 of this article for
   12-4  appointment to the board;
   12-5              (2)  does not maintain during service on the board the
   12-6  qualifications required by Section 4 of this article for
   12-7  appointment to the board;
   12-8              (3)  violates a prohibition established by Section 4 of
   12-9  this article;
  12-10              (4)  cannot discharge the member's duties for a
  12-11  substantial part of the term for which the member is appointed
  12-12  because of illness or disability; or
  12-13              (5)  is absent from more than half of the regularly
  12-14  scheduled board meetings that the member is eligible to attend
  12-15  during a calendar year, unless the absence is excused by a majority
  12-16  vote of the board.
  12-17        Sec. 6.  BOARD OFFICERS; MEETINGS; QUORUM; EXPENSES.
  12-18  (a)  The board shall elect from its members a presiding officer and
  12-19  assistant presiding officer who serve according to rules adopted by
  12-20  the board.
  12-21        (b)  The board shall hold at least two regular meetings each
  12-22  year as provided by rules adopted by the board.
  12-23        (c)  A majority of the members constitutes a quorum.
  12-24        (d)  Each member of the board is entitled to compensation for
  12-25  transportation expenses as provided by the General Appropriations
  12-26  Act.
  12-27        Sec. 7.  APPLICATION OF OPEN MEETINGS AND ADMINISTRATIVE
   13-1  PROCEDURE ACTS.  The board is subject to the open meetings law,
   13-2  Chapter 271, Acts of the 60th Legislature, Regular Session, 1967
   13-3  (Article 6252-17, Vernon's Texas Civil Statutes), and its
   13-4  subsequent amendments, and the Administrative Procedure and Texas
   13-5  Register Act (Article 6252-13a, Vernon's Texas Civil Statutes) and
   13-6  its subsequent amendments.
   13-7        Sec. 8.  POWERS AND DUTIES OF BOARD.  (a)  The board may
   13-8  adopt rules consistent with this article.
   13-9        (b)  The board shall:
  13-10              (1)  adopt and publish a code of ethics;
  13-11              (2)  establish the qualifications of applicants for
  13-12  licenses and the renewal of licenses;
  13-13              (3)  spend funds necessary for the proper
  13-14  administration of the board's assigned duties;
  13-15              (4)  establish reasonable and necessary fees for the
  13-16  administration and implementation of this article; and
  13-17              (5)  establish a minimum number of hours of continuing
  13-18  education required to renew a license and periodically assess the
  13-19  continuing education needs of license holders to determine whether
  13-20  specific course content should be required.
  13-21        Sec. 9.  ADMINISTRATIVE FUNCTIONS; EXECUTIVE SECRETARY.
  13-22  (a)  The department shall provide the personnel and necessary
  13-23  facilities required to administer this article.  If necessary to
  13-24  the administration of this article, the department may secure and
  13-25  provide for compensation for services that the department considers
  13-26  necessary and may employ and compensate within available
  13-27  appropriations professional consultants, technical assistants, and
   14-1  employees on a full-time or part-time basis.
   14-2        (b)  The commissioner of health shall designate an employee
   14-3  to serve as executive secretary of the board.  The executive
   14-4  secretary must be an employee of the department.  The executive
   14-5  secretary is the administrator of the licensing activities under
   14-6  this article.  The executive secretary shall carry out other
   14-7  functions as may be required by the board or the department to
   14-8  administer this article.
   14-9        Sec. 10.  PUBLIC INTEREST INFORMATION.  (a)  The board shall
  14-10  prepare information of public interest describing the functions of
  14-11  the board and the department under this article and the procedures
  14-12  by which complaints are filed with and resolved by the board.  The
  14-13  board shall make the information available to the public and
  14-14  appropriate state agencies.
  14-15        (b)  The board by rule shall establish methods by which
  14-16  consumers and service recipients are notified of the name, mailing
  14-17  address, and telephone number of the board for the purpose of
  14-18  directing complaints to the board.
  14-19        Sec. 11.  FEES; FUNDS; ANNUAL REPORT.  (a)  The board by rule
  14-20  shall set reasonable and necessary fees in amounts necessary to
  14-21  cover the cost of administering this article.  The board by rule
  14-22  may set different licensing fees for different categories of
  14-23  licenses.
  14-24        (b)  The board shall receive and account for funds received
  14-25  under this article.  The funds shall be deposited in the state
  14-26  treasury to the credit of the general revenue fund in an account
  14-27  known as the licensed nursing facility administrator's account to
   15-1  be used only for the administration of this article.
   15-2        (c)  The board shall file annually with the governor and the
   15-3  presiding officer of each house of the legislature a complete and
   15-4  detailed written report accounting for all funds received and
   15-5  disbursed by the board or the department for the administration of
   15-6  this article during the preceding fiscal year.  The annual report
   15-7  must be in the form and reported in the time provided by the
   15-8  General Appropriations Act.
   15-9        (d)  The board may receive and disburse funds received from
  15-10  any federal source for the furtherance of the board's functions
  15-11  under this article.
  15-12        Sec. 12.  PRACTICING WITHOUT A LICENSE.  A person may not act
  15-13  as a nursing facility administrator or represent to others that the
  15-14  person is a nursing facility administrator unless the person is
  15-15  licensed under this article.
  15-16        Sec. 13.  LICENSE APPLICATION; QUALIFICATIONS.  (a)  An
  15-17  applicant for a nursing facility administrator's license must
  15-18  submit a sworn application that is accompanied by the application
  15-19  fee.
  15-20        (b)  The board shall prescribe the form of the application
  15-21  and may by rule establish dates by which applications and fees must
  15-22  be received.  The rules under this section may not be inconsistent
  15-23  with the rules of the department related to the application dates
  15-24  of other licenses administered by the department.
  15-25        (c)  An applicant for a nursing facility administrator's
  15-26  license must take a licensing examination under this article.  To
  15-27  qualify for the licensing examination, the applicant must have
   16-1  satisfactorily completed a course of instruction and training
   16-2  prescribed by the board that is conducted by or in cooperation with
   16-3  an accredited postsecondary educational institution and that is
   16-4  designed and administered to provide sufficient knowledge of:
   16-5              (1)  the needs served by nursing facilities;
   16-6              (2)  the laws governing the operation of nursing
   16-7  facilities and the protection of the interests of facility
   16-8  residents; and
   16-9              (3)  the elements of nursing facility administration.
  16-10        (d)  An applicant who has not completed the course of
  16-11  instruction and training described by Subsection (c) of this
  16-12  section must present evidence satisfactory to the board of having
  16-13  completed sufficient education, training, and experience in the
  16-14  fields described by Subsection (c) of this section to enable the
  16-15  applicant to engage in the practice of nursing facility
  16-16  administration.
  16-17        Sec. 14.  EXAMINATION.  (a)  The licensing examination shall
  16-18  be prepared or approved by the board and administered by the board
  16-19  to qualified applicants at least twice each calendar year.  The
  16-20  board shall have the written portion of the examination, if any,
  16-21  validated by a testing professional.
  16-22        (b)  Not later than the 30th day after the date on which a
  16-23  licensing examination is administered under this article, the board
  16-24  shall notify each examinee of the results of the examination.  If
  16-25  an examination is graded or reviewed by a national or state testing
  16-26  service, the board shall notify examinees of the results of the
  16-27  examination not later than two weeks after the date the board
   17-1  receives the results from the testing service.  If the notice of
   17-2  the examination results will be delayed for more than 90 days after
   17-3  the examination date, the board shall notify the examinee of the
   17-4  reason for the delay before the 90th day.
   17-5        (c)  If requested in writing by a person who fails the
   17-6  licensing examination, the board shall furnish the person with an
   17-7  analysis of the person's performance on the examination.
   17-8        (d)  The board may establish by rule additional educational
   17-9  requirements to be met by an applicant who fails the examination
  17-10  three times.
  17-11        Sec. 15.  LICENSES; TEMPORARY LICENSE; INACTIVE STATUS;
  17-12  PROVISIONAL LICENSE.  (a)  A person who meets the requirements for
  17-13  licensing under this article is entitled to receive a license.  A
  17-14  nursing facility administrator's license is not transferable.
  17-15        (b)  A person licensed under this article must notify the
  17-16  board of the license holder's correct mailing address.
  17-17        (c)  A license is valid for two years.  The board by rule may
  17-18  adopt a system under which licenses expire on various dates during
  17-19  the two-year period.  For the year in which a license expiration
  17-20  date is changed, license fees payable on the original expiration
  17-21  date shall be prorated on a monthly basis so that each license
  17-22  holder shall pay only that portion of the license fee that is
  17-23  allocable to the number of months during which the license is
  17-24  valid.  On renewal of the license on the new expiration date, the
  17-25  total license renewal fee is payable.
  17-26        (d)  The board by rule may provide for the issuance of a
  17-27  temporary license.  Rules adopted under this section shall include
   18-1  a time limit for a licensee to practice under a temporary license.
   18-2        (e)  The board by rule may provide for a license holder to be
   18-3  placed on inactive status.
   18-4        Sec. 16.  PROVISIONAL LICENSE.  (a)  On application, the
   18-5  board shall grant a provisional license under this article.  An
   18-6  applicant for a provisional license under this section must:
   18-7              (1)  be licensed in good standing as a nursing facility
   18-8  administrator in another state, the District of Columbia, or a
   18-9  territory of the United States that has licensing requirements that
  18-10  are substantially equivalent to the requirements of this article;
  18-11              (2)  have passed a national or other examination
  18-12  recognized by the board relating to the practice of nursing
  18-13  facility administration; and
  18-14              (3)  be sponsored by a person licensed under this
  18-15  article with whom the provisional license holder may practice under
  18-16  this section.
  18-17        (b)  An applicant for a provisional license may be excused
  18-18  from the requirement of Subsection (a)(3) of this section if the
  18-19  board determines that compliance with that subsection constitutes a
  18-20  hardship to the applicant.
  18-21        (c)  A provisional license is valid until the date the board
  18-22  approves or denies the provisional license holder's application for
  18-23  a license.  The board shall issue a license under this article to
  18-24  the holder of a provisional license under this section if:
  18-25              (1)  the provisional license holder passes the
  18-26  examination required by Section 14 of this article;
  18-27              (2)  the board verifies that the provisional license
   19-1  holder has the academic and experience requirements for a license
   19-2  under this article; and
   19-3              (3)  the provisional license holder satisfies any other
   19-4  license requirements under this article.
   19-5        (d)  The board shall complete the processing of a provisional
   19-6  license holder's application for a license not later than the 180th
   19-7  day after the date the provisional license is issued.  The board
   19-8  may extend this time in order to receive the results of a national
   19-9  examination or other examination administered or graded by an
  19-10  outside organization recognized by the board.
  19-11        Sec. 17.  LICENSE RENEWAL.  (a)  A person may renew an
  19-12  unexpired license by paying to the board before the expiration of
  19-13  the license the required renewal fee.
  19-14        (b)  If a person's license has been expired for 90 days or
  19-15  less, the person may renew the license by paying to the board the
  19-16  required renewal fee and a fee that is one-half of the examination
  19-17  fee for the license.
  19-18        (c)  If a person's license has been expired for longer than
  19-19  90 days but less than one year, the person may renew the license by
  19-20  paying to the board all unpaid renewal fees and a fee that is equal
  19-21  to the examination fee for the license.
  19-22        (d)  If a person's license has been expired for one year or
  19-23  longer, the person may not renew the license.  The person may
  19-24  obtain a new license by complying with the requirements and
  19-25  procedures for obtaining an original license.  However, the board
  19-26  may renew without reexamination an expired license of a person who
  19-27  was licensed in this state, moved to another state, and is
   20-1  currently licensed and has been in practice in the other state for
   20-2  the two years preceding application.  The person must pay to the
   20-3  board a fee that is equal to the examination fee for the license.
   20-4        (e)  At least 30 days before the expiration of a person's
   20-5  license, the board shall send written notice of the impending
   20-6  license expiration to the person at the license holder's last known
   20-7  address according to the records of the board.
   20-8        Sec. 18.  MANDATORY CONTINUING EDUCATION.  (a)  The board by
   20-9  rule shall establish a minimum number of hours of continuing
  20-10  education required to renew a license under this article.  The
  20-11  board may assess the continuing education needs of license holders
  20-12  and may require license holders to attend continuing education
  20-13  courses specified by the board.
  20-14        (b)  The board shall identify the key factors for the
  20-15  competent performance by a license holder of the license holder's
  20-16  professional duties.  The board shall adopt a procedure to assess a
  20-17  license holder's participation in continuing education programs.
  20-18        Sec. 19.  COMPLAINT RECEIPT, INVESTIGATION, AND DISPOSITION.
  20-19  (a)  The board shall keep an information file about each complaint
  20-20  filed with the board.  The board's information file shall be kept
  20-21  current and contain a record for each complaint of:
  20-22              (1)  all persons contacted in relation to the
  20-23  complaint;
  20-24              (2)  a summary of findings made at each step of the
  20-25  complaint process;
  20-26              (3)  an explanation of the legal basis and reason for a
  20-27  complaint that is dismissed; and
   21-1              (4)  other relevant information.
   21-2        (b)  If a written complaint is filed with the board that the
   21-3  board has authority to resolve, the board, at least as frequently
   21-4  as quarterly and until final disposition of the complaint, shall
   21-5  notify the parties to the complaint of the status of the complaint
   21-6  unless the notice would jeopardize an undercover investigation.
   21-7        (c)  The board by rule shall adopt a form to standardize
   21-8  information concerning complaints made to the board.  The board by
   21-9  rule shall prescribe information to be provided to a person when
  21-10  the person files a complaint with the board.
  21-11        (d)  The board shall provide reasonable assistance to a
  21-12  person who wishes to file a complaint with the board.
  21-13        (e)  The board shall adopt rules concerning the investigation
  21-14  of a complaint filed with the board.  The rules adopted under this
  21-15  subsection shall:
  21-16              (1)  distinguish between categories of complaints;
  21-17              (2)  ensure that complaints are not dismissed without
  21-18  appropriate consideration;
  21-19              (3)  require that the board be advised of a complaint
  21-20  that is dismissed and that a letter be sent to the person who filed
  21-21  the complaint explaining the action taken on the dismissed
  21-22  complaint;
  21-23              (4)  ensure that the person who filed the complaint has
  21-24  an opportunity to explain the allegations made in the complaint;
  21-25  and
  21-26              (5)  prescribe guidelines concerning the categories of
  21-27  complaints that require the use of a private investigator and the
   22-1  procedures for the board to obtain the services of a private
   22-2  investigator.
   22-3        (f)  The board shall dispose of all complaints in a timely
   22-4  manner.  The board by rule shall establish a schedule for
   22-5  conducting each phase of a complaint that is under the control of
   22-6  the board not later than the 30th day after the date the complaint
   22-7  is received by the board.  The schedule shall be kept in the
   22-8  information file for the complaint, and all parties shall be
   22-9  notified of the projected time requirements for pursuing the
  22-10  complaint.  A change in the schedule must be noted in the complaint
  22-11  information file and all parties to the complaint must be notified
  22-12  not later than the seventh day after the date the change is made.
  22-13        (g)  The executive secretary shall notify the board of a
  22-14  complaint that extends beyond the time prescribed by the board for
  22-15  resolving the complaint so that the board may take necessary action
  22-16  on the complaint.
  22-17        Sec. 20.  SANCTIONS.  (a)  The board may revoke, suspend, or
  22-18  refuse to renew a nursing facility administrator's license, assess
  22-19  an administrative penalty, issue a written reprimand, require
  22-20  participation in continuing education, or place an administrator on
  22-21  probation after due notice and hearing on proof of any of the
  22-22  following grounds:
  22-23              (1)  the license holder has wilfully or repeatedly
  22-24  violated a provision of this article or a rule adopted under this
  22-25  article;
  22-26              (2)  the license holder has wilfully or repeatedly
  22-27  acted in a manner inconsistent with the health and safety of the
   23-1  patients of a facility of which the license holder is an
   23-2  administrator;
   23-3              (3)  the license holder obtained or attempted to obtain
   23-4  a license through misrepresentation or deceit or by making a
   23-5  material misstatement of fact on a license application;
   23-6              (4)  the intemperate use of alcohol or drugs by the
   23-7  license holder in the board's opinion creates a hazard to the
   23-8  patients of a facility;
   23-9              (5)  a judgment of a court of competent jurisdiction
  23-10  finds that the license holder is mentally incapacitated;
  23-11              (6)  the license holder has been convicted in a court
  23-12  of competent jurisdiction of a misdemeanor or felony involving
  23-13  moral turpitude; or
  23-14              (7)  the license holder has been negligent or
  23-15  incompetent in the license holder's duties as a nursing facility
  23-16  administrator.
  23-17        (b)  If a license suspension is probated, the board may
  23-18  require the license holder to:
  23-19              (1)  report regularly to the board on matters that are
  23-20  the basis of the probation;
  23-21              (2)  limit practice to the areas prescribed by the
  23-22  board; or
  23-23              (3)  continue or review continuing professional
  23-24  education until the license holder attains a degree of skill
  23-25  satisfactory to the board in those areas that are the basis of the
  23-26  probation.
  23-27        (c)  A license holder is entitled to a hearing before the
   24-1  hearings examiner designated by the board before a sanction is
   24-2  imposed under this section.
   24-3        (d)  The board by rule shall adopt a broad schedule of
   24-4  sanctions for violations under this article.  The designated
   24-5  hearings examiner shall use the schedule for any sanction imposed
   24-6  as the result of a hearing conducted by the designated hearings
   24-7  examiner.
   24-8        Sec. 21.  WRITTEN REPRIMAND AND CONTINUING EDUCATION AS
   24-9  SANCTIONS.  In addition to the other disciplinary actions
  24-10  authorized under this article, the board may issue a written
  24-11  reprimand to a license holder who violates this article or require
  24-12  that a license holder who violates this article participate in
  24-13  continuing education programs.  The board shall specify the
  24-14  continuing education programs that may be attended and the number
  24-15  of hours that must be completed by a license holder to fulfill the
  24-16  requirements of this section.
  24-17        Sec. 22.  ADMINISTRATIVE PENALTY.  (a)  The board may impose
  24-18  an administrative penalty against a person licensed or regulated
  24-19  under this article who violates this article or a rule or order
  24-20  adopted by the board under this article.
  24-21        (b)  The penalty for a violation may be in an amount not to
  24-22  exceed $1,000.  Each day a violation continues or occurs is a
  24-23  separate violation for purposes of imposing a penalty.
  24-24        (c)  The amount of the penalty shall be based on:
  24-25              (1)  the seriousness of the violation, including the
  24-26  nature, circumstances, extent, and gravity of any prohibited acts,
  24-27  and the hazard or potential hazard created to the health, safety,
   25-1  or economic welfare of the public;
   25-2              (2)  the economic harm to property or the environment
   25-3  caused by the violation;
   25-4              (3)  the history of previous violations;
   25-5              (4)  the amount necessary to deter future violations;
   25-6              (5)  efforts to correct the violation; and
   25-7              (6)  any other matter that justice may require.
   25-8        (d)  If the executive secretary determines that a violation
   25-9  has occurred, the executive secretary may issue to the board a
  25-10  report that states the facts on which the determination is based
  25-11  and the executive secretary's recommendation on the imposition of a
  25-12  penalty, including a recommendation on the amount of the penalty.
  25-13        (e)  Within 14 days after the date the report is issued, the
  25-14  executive secretary shall give written notice of the report to the
  25-15  person.  The notice may be given by certified mail.  The notice
  25-16  must include a brief summary of the alleged violation and a
  25-17  statement of the amount of the recommended penalty and must inform
  25-18  the person that the person has a right to a hearing on the
  25-19  occurrence of the violation, the amount of the penalty, or both the
  25-20  occurrence of the violation and the amount of the penalty.
  25-21        (f)  Within 20 days after the date the person receives the
  25-22  notice, the person in writing may accept the determination and
  25-23  recommended penalty of the executive secretary or may make a
  25-24  written request for a hearing on the occurrence of the violation,
  25-25  the amount of the penalty, or both the occurrence of the violation
  25-26  and the amount of the penalty.
  25-27        (g)  If the person accepts the determination and recommended
   26-1  penalty of the executive secretary, the board by order shall
   26-2  approve the determination and impose the recommended penalty.
   26-3        (h)  If the person requests a hearing or fails to respond
   26-4  timely to the notice, the board shall set a hearing and give notice
   26-5  of the hearing to the person.  The hearing shall be held by a
   26-6  hearings examiner designated by the board.  The hearings examiner
   26-7  shall make findings of fact and conclusions of law and promptly
   26-8  issue to the board a proposal for a decision about the occurrence
   26-9  of the violation and the amount of a proposed penalty.  Based on
  26-10  the findings of fact, conclusions of law, and proposal for a
  26-11  decision, the board by order may find that a violation has occurred
  26-12  and impose a penalty or may find that no violation occurred.
  26-13        (i)  The notice of the board's order given to the person
  26-14  under the Administrative Procedure and Texas Register Act (Article
  26-15  6252-13a, Vernon's Texas Civil Statutes) and its subsequent
  26-16  amendments must include a statement of the right of the person to
  26-17  judicial review of the order.
  26-18        (j)  Within 30 days after the date the board's order is final
  26-19  as provided by Section 16(c), Administrative Procedure and Texas
  26-20  Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), and
  26-21  its subsequent amendments, the person shall:
  26-22              (1)  pay the amount of the penalty;
  26-23              (2)  pay the amount of the penalty and file a petition
  26-24  for judicial review contesting the occurrence of the violation, the
  26-25  amount of the penalty, or both the occurrence of the violation and
  26-26  the amount of the penalty; or
  26-27              (3)  without paying the amount of the penalty, file a
   27-1  petition for judicial review contesting the occurrence of the
   27-2  violation, the amount of the penalty, or both the occurrence of the
   27-3  violation and the amount of the penalty.
   27-4        (k)  Within the 30-day period, a person who acts under
   27-5  Subsection (j)(3) of this section may:
   27-6              (1)  stay enforcement of the penalty by:
   27-7                    (A)  paying the amount of the penalty to the
   27-8  court for placement in an escrow account; or
   27-9                    (B)  giving to the court a supersedeas bond that
  27-10  is approved by the court for the amount of the penalty and that is
  27-11  effective until all judicial review of the board's order is final;
  27-12  or
  27-13              (2)  request the court to stay enforcement of the
  27-14  penalty by:
  27-15                    (A)  filing with the court a sworn affidavit of
  27-16  the person stating that the person is financially unable to pay the
  27-17  amount of the penalty and is financially unable to give the
  27-18  supersedeas bond; and
  27-19                    (B)  giving a copy of the affidavit to the board
  27-20  by certified mail.
  27-21        (l)  If the board receives a copy of an affidavit under
  27-22  Subsection (k)(2) of this section, the board may file with the
  27-23  court, within five days after the date the copy is received, a
  27-24  contest to the affidavit.  The court shall hold a hearing on the
  27-25  facts alleged in the affidavit as soon as practicable and shall
  27-26  stay the enforcement of the penalty on finding that the alleged
  27-27  facts are true.  The person who files an affidavit has the burden
   28-1  of proving that the person is financially unable to pay the amount
   28-2  of the penalty and to give a supersedeas bond.
   28-3        (m)  If the person does not pay the amount of the penalty and
   28-4  the enforcement of the penalty is not stayed, the board may refer
   28-5  the matter to the attorney general for collection of the amount of
   28-6  the penalty.
   28-7        (n)  Judicial review of the order of the board:
   28-8              (1)  is instituted by filing a petition as provided by
   28-9  Section 19, Administrative Procedure and Texas Register Act
  28-10  (Article 6252-13a, Vernon's Texas Civil Statutes), and its
  28-11  subsequent amendments; and
  28-12              (2)  is under the substantial evidence rule.
  28-13        (o)  If the court sustains the occurrence of the violation,
  28-14  the court may uphold or reduce the amount of the penalty and order
  28-15  the person to pay the full or reduced amount of the penalty.  If
  28-16  the court does not sustain the occurrence of the violation, the
  28-17  court shall order that no penalty is owed.
  28-18        (p)  When the judgment of the court becomes final, the court
  28-19  shall proceed under this subsection.  If the person paid the amount
  28-20  of the penalty and if that amount is reduced or is not upheld by
  28-21  the court, the court shall order that the appropriate amount plus
  28-22  accrued interest be remitted to the person.  The rate of the
  28-23  interest is the rate charged on loans to depository institutions by
  28-24  the New York Federal Reserve Bank, and the interest shall be paid
  28-25  for the period beginning on the date the penalty was paid and
  28-26  ending on the date the penalty is remitted.  If the person gave a
  28-27  supersedeas bond and if the amount of the penalty is not upheld by
   29-1  the court, the court shall order the release of the bond.  If the
   29-2  person gave a supersedeas bond and if the amount of the penalty is
   29-3  reduced, the court shall order the release of the bond after the
   29-4  person pays the amount.
   29-5        (q)  A penalty collected under this section shall be remitted
   29-6  to the comptroller for deposit in the general revenue fund.
   29-7        (r)  All proceedings under this section are subject to the
   29-8  Administrative Procedure and Texas Register Act (Article 6252-13a,
   29-9  Vernon's Texas Civil Statutes) and its subsequent amendments.
  29-10        Sec. 23.  INFORMAL PROCEEDINGS.  (a)  The board by rule shall
  29-11  adopt procedures governing:
  29-12              (1)  informal disposition of a contested case under
  29-13  Section 13(e), Administrative Procedure and Texas Register Act
  29-14  (Article 6252-13a, Vernon's Texas Civil Statutes), and its
  29-15  subsequent amendments; and
  29-16              (2)  informal proceedings held in compliance with
  29-17  Section 18(c), Administrative Procedure and Texas Register Act
  29-18  (Article 6252-13a, Vernon's Texas Civil Statutes), and its
  29-19  subsequent amendments.
  29-20        (b)  Rules adopted under this section must provide the
  29-21  complainant and the license holder an opportunity to be heard and
  29-22  must require the presence of a legal representative to advise the
  29-23  board or the board's employees.
  29-24        Sec. 24.  MONITORING OF LICENSE HOLDER.  The board by rule
  29-25  shall develop a system for monitoring a license holder's compliance
  29-26  with the requirements of this article.  Rules adopted under this
  29-27  section shall include procedures for monitoring a license holder
   30-1  who is ordered by the board to perform certain acts to ascertain
   30-2  that the license holder performs the required acts and to identify
   30-3  and monitor license holders who represent a risk to the public.
   30-4        Sec. 25.  CIVIL PENALTY.  A person who violates this article
   30-5  is liable to the state for a civil penalty of $1,000 for each day
   30-6  of violation.  At the request of the board, the attorney general
   30-7  shall bring an action to recover a civil penalty established by
   30-8  this section.
   30-9        Sec. 26.  ASSISTANCE OF ATTORNEY GENERAL.  The attorney
  30-10  general shall provide legal assistance as necessary in enforcing
  30-11  the provisions of this article.  This requirement does not relieve
  30-12  a local prosecuting officer of any of the prosecuting officer's
  30-13  duties under the law.
  30-14        Sec. 27.  OFFENSE.  (a)  A person commits an offense if the
  30-15  person knowingly or intentionally violates Section 12 of this
  30-16  article.
  30-17        (b)  An offense under this section is a Class B misdemeanor.
  30-18        Sec. 28.  SUNSET PROVISION.  The Texas Board of Nursing
  30-19  Facility Administrators is subject to Chapter 325, Government Code
  30-20  (Texas Sunset Act).  Unless continued in existence as provided by
  30-21  that chapter, the board is abolished and this article expires
  30-22  September 1, 2005.
  30-23           ARTICLE 3.  EFFECTIVE DATE; TRANSITION; EMERGENCY
  30-24        SECTION 3.01.  This Act takes effect September 1, 1993.
  30-25        SECTION 3.02.  (a)  The Texas Board of Licensure for Nursing
  30-26  Home Administrators is abolished on the effective date of this Act.
  30-27  As soon as possible after the effective date of this Act, the
   31-1  governor shall appoint the initial members of the Texas Board of
   31-2  Nursing Facility Administrators.  In making the initial
   31-3  appointments, the governor shall designate members to serve terms
   31-4  as follows:
   31-5              (1)  two licensed nursing facility administrator
   31-6  members and one public member serve terms expiring February 1,
   31-7  1995;
   31-8              (2)  two licensed nursing facility administrator
   31-9  members and one public member serve terms expiring February 1,
  31-10  1997; and
  31-11              (3)  two licensed nursing facility administrator
  31-12  members and one public member serve terms expiring February 1,
  31-13  1999.
  31-14        (b)  On the effective date of this Act, the Texas Board of
  31-15  Nursing Facility Administrators assumes the functions of the Texas
  31-16  Board of Licensure for Nursing Home Administrators.  The
  31-17  obligations, right, contracts, and records of the Texas Board of
  31-18  Licensure for Nursing Home Administrators are transferred to the
  31-19  Texas Board of Nursing Facility Administrators.  The equipment and
  31-20  other property and personnel of and unspent money appropriated to
  31-21  or for the Texas Board of Licensure for Nursing Home Administrators
  31-22  are transferred to the Texas Board of Health.  The rules of the
  31-23  abolished board are continued in effect as rules of the Texas Board
  31-24  of Health or the Texas Board of Nursing Facility Administrators, as
  31-25  appropriate, until superseded by rule of the Texas Board of Health
  31-26  or the Texas Board of Nursing Facility Administrators, as
  31-27  appropriate.  A license in effect that was issued by the abolished
   32-1  board is continued in effect as a license of the Texas Board of
   32-2  Nursing Facility Administrators.  A complaint, investigation, or
   32-3  other proceeding pending before the abolished board is transferred
   32-4  without change in status to the Texas Board of Nursing Facility
   32-5  Administrators.  Any reference in law to the Texas Board of
   32-6  Licensure for Nursing Home Administrators means the Texas Board of
   32-7  Nursing Facility Administrators.
   32-8        SECTION 3.03.  The changes in law made by this Act relating
   32-9  to a penalty that may be imposed apply only to a violation that
  32-10  occurs on or after the effective date of this Act.  A violation
  32-11  occurs on or after the effective date of this Act only if each
  32-12  element of the violation occurs on or after that date.  A violation
  32-13  that occurs before the effective date of this Act is governed by
  32-14  the law in effect on the date the violation occurred, and the
  32-15  former law is continued in effect for that purpose.
  32-16        SECTION 3.04.  The importance of this legislation and the
  32-17  crowded condition of the calendars in both houses create an
  32-18  emergency and an imperative public necessity that the
  32-19  constitutional rule requiring bills to be read on three several
  32-20  days in each house be suspended, and this rule is hereby suspended.