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.