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.