S.B. No. 674
                                        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)  study and report to the 74th Legislature those
   7-26  administrative functions performed by the boards listed in Section
   7-27  1(b) of this article that would be feasible for consolidation,
    8-1  provided that the boards listed in Section 1(b) of this article may
    8-2  adopt memoranda of understanding and contract with each other to
    8-3  share services and personnel at any time prior to submission of the
    8-4  report, subject to approval of the Legislative Budget Board;
    8-5              (3)  study and report to the 74th Legislature, in
    8-6  coordination with the Legislative Budget Board and the governor's
    8-7  office of budget and planning, a uniform budget plan and
    8-8  standardized budget performance objectives, provided the
    8-9  Legislative Budget Board may force compliance with this subdivision
   8-10  at an earlier date;
   8-11              (4)  develop and implement, in coordination with the
   8-12  staffs of the Legislative Budget Board, the governor's office of
   8-13  budget and planning, and the licensing division of the Department
   8-14  of Public Health, information necessary to prepare statistical
   8-15  comparisons of licensing functions and unit costs of all boards
   8-16  represented on the council;
   8-17              (5)  develop and implement a plan to centralize the
   8-18  receipt and referral of complaints for member agencies using the
   8-19  toll-free complaint number established under Section 2 of this
   8-20  article;
   8-21              (6)  study the feasibility of centralizing the
   8-22  investigation of complaints; and
   8-23              (7)  study and report to the 74th Legislature on the
   8-24  consequences to the quality of health care services by third-party
   8-25  review and approval of health care provider treatment decisions and
   8-26  claims submission by nonlicensed personnel and determine the
   8-27  feasibility of establishing a statutory requirement to limit the
    9-1  reviews and approvals to licensed professionals in their respective
    9-2  health care fields within their respective scopes of practice and
    9-3  the feasibility of enacting a statutory limitation or prohibition
    9-4  to prevent individuals who are not licensed health care providers
    9-5  from intervening in health care decisions.  The report shall also
    9-6  consider the necessity of requiring due process steps for appeals
    9-7  of claims and treatment denials for health care providers.
    9-8        (e)  To carry out its duties under Subsection (d) of this
    9-9  section, the council shall appoint working groups consisting of the
   9-10  executive director of the member boards who shall report to the
   9-11  council.
   9-12        (f)  The results of the council's studies under Subsection
   9-13  (d) of this section shall be reported to the governor, the
   9-14  lieutenant governor, and the speaker of the house of
   9-15  representatives not later than January 1, 1995.
   9-16        Sec. 9.  REMEDIES NOT EXCLUSIVE.  The provisions of this
   9-17  article are in addition to any other remedy provided by any other
   9-18  statute, rule, or common law.
   9-19              ARTICLE 2.  NURSING FACILITY ADMINISTRATION
   9-20        SECTION 2.01.  Title 71, Revised Statutes, is amended by
   9-21  adding Article 4512q to read as follows:
   9-22        Art. 4512q.  NURSING FACILITY ADMINISTRATION
   9-23        Sec. 1.  SHORT TITLE.  This article may be cited as the Texas
   9-24  Nursing Facility Administrators Licensure Act.
   9-25        Sec. 2.  DEFINITIONS.  In this article:
   9-26              (1)  "Board" means the Texas Board of Nursing Facility
   9-27  Administrators.
   10-1              (2)  "Department" means the Texas Department of Health.
   10-2              (3)  "Nursing facility" means an institution or
   10-3  facility that is licensed as a nursing home, nursing facility,
   10-4  skilled nursing facility, or custodial care home by the department
   10-5  under Chapter 242, Health and Safety Code.
   10-6              (4)  "Nursing facility administrator" or
   10-7  "administrator" means a person who engages in the practice of
   10-8  nursing facility administration without regard to whether the
   10-9  person has an ownership interest in the facility or whether the
  10-10  functions and duties are shared with any other person.
  10-11              (5)  "Practice of nursing facility administration"
  10-12  means the performance of the acts of administering, managing,
  10-13  supervising, or being in general administrative charge of a nursing
  10-14  facility.
  10-15        Sec. 3.  CREATION OF THE BOARD.  (a)  The Texas Board of
  10-16  Nursing Facility Administrators is created within the department.
  10-17        (b)  The board is composed of nine members appointed by the
  10-18  governor.  Three members must be members of the public, and six
  10-19  members must be nursing facility administrators licensed under this
  10-20  article.  Appointments to the board shall be made without regard to
  10-21  the race, color, disability, sex, religion, or national origin of
  10-22  the person appointed.
  10-23        (c)  Members of the board serve staggered six-year terms,
  10-24  with the terms of three members expiring on February 1 of each
  10-25  odd-numbered year.  A person appointed to fill a vacancy on the
  10-26  board shall serve for the unexpired portion of the term for which
  10-27  the person is appointed.
   11-1        (d)  The board shall include the state long-term care
   11-2  ombudsman of the Texas Department on Aging and the Commissioner of
   11-3  Human Services, or the commissioner's designee, as nonvoting, ex
   11-4  officio members.  These ex officio members shall serve at no
   11-5  expense to the department or the board.
   11-6        Sec. 4.  MEMBERSHIP REQUIREMENTS.  (a)  A member of the board
   11-7  who is an administrator must:
   11-8              (1)  be a resident of this state and a citizen of the
   11-9  United States;
  11-10              (2)  be licensed under this article and currently
  11-11  serving as a nursing facility administrator or have direct
  11-12  supervisory responsibility on a daily basis over an administrator
  11-13  who works in a nursing facility; and
  11-14              (3)  hold a degree from an accredited four-year college
  11-15  or university.
  11-16        (b)  An administrator who does not have a degree as required
  11-17  by Subsection (a)(3) of this section may be qualified to serve as a
  11-18  member of the board if the administrator has two years of practical
  11-19  experience as an administrator for every year less than four that
  11-20  the administrator has completed at a four-year college or
  11-21  university.
  11-22        (c)  At least one administrator member of the board must be
  11-23  associated with and a representative of a nonproprietary nursing
  11-24  facility, and at least one administrator member of the board must
  11-25  have an ownership interest in a nursing facility.
  11-26        (d)  A member or employee of the board may not:
  11-27              (1)  be an officer, employee, or paid consultant of a
   12-1  trade association in the nursing facility industry; or
   12-2              (2)  be related within the second degree by affinity or
   12-3  within the third degree by consanguinity to an officer, employee,
   12-4  or paid consultant of a trade association in the nursing facility
   12-5  industry.
   12-6        (e)  A member of the board who represents the general public
   12-7  may not have a financial interest, other than as a consumer, in a
   12-8  nursing facility as an officer, director, partner, owner, employee,
   12-9  attorney, or paid consultant or be related within the second degree
  12-10  by affinity or within the third degree by consanguinity to a person
  12-11  who has a financial interest, other than as a consumer, in a
  12-12  nursing facility as an officer, director, partner, owner, employee,
  12-13  attorney, or paid consultant.
  12-14        (f)  A person who is required to register as a lobbyist under
  12-15  Chapter 305, Government Code, because of the person's activities
  12-16  for compensation on behalf of a profession related to the operation
  12-17  of the board may not serve on the board.
  12-18        Sec. 5.  GROUNDS FOR REMOVAL.  It is a ground for removal
  12-19  from the board if a member:
  12-20              (1)  does not have at the time of appointment the
  12-21  qualifications required by Section 4 of this article for
  12-22  appointment to the board;
  12-23              (2)  does not maintain during service on the board the
  12-24  qualifications required by Section 4 of this article for
  12-25  appointment to the board;
  12-26              (3)  violates a prohibition established by Section 4 of
  12-27  this article;
   13-1              (4)  cannot discharge the member's duties for a
   13-2  substantial part of the term for which the member is appointed
   13-3  because of illness or disability; or
   13-4              (5)  is absent from more than half of the regularly
   13-5  scheduled board meetings that the member is eligible to attend
   13-6  during a calendar year, unless the absence is excused by a majority
   13-7  vote of the board.
   13-8        Sec. 6.  BOARD OFFICERS; MEETINGS; QUORUM; EXPENSES.
   13-9  (a)  The board shall elect from its members a presiding officer and
  13-10  assistant presiding officer who serve according to rules adopted by
  13-11  the board.
  13-12        (b)  The board shall hold at least two regular meetings each
  13-13  year as provided by rules adopted by the board.
  13-14        (c)  A majority of the members constitutes a quorum.
  13-15        (d)  Each member of the board is entitled to compensation for
  13-16  transportation expenses as provided by the General Appropriations
  13-17  Act.
  13-18        Sec. 7.  APPLICATION OF OPEN MEETINGS AND ADMINISTRATIVE
  13-19  PROCEDURE ACTS.  The board is subject to the open meetings law,
  13-20  Chapter 271, Acts of the 60th Legislature, Regular Session, 1967
  13-21  (Article 6252-17, Vernon's Texas Civil Statutes), and its
  13-22  subsequent amendments, and the Administrative Procedure and Texas
  13-23  Register Act (Article 6252-13a, Vernon's Texas Civil Statutes) and
  13-24  its subsequent amendments.
  13-25        Sec. 8.  POWERS AND DUTIES OF BOARD.  (a)  The board may
  13-26  adopt rules consistent with this article.
  13-27        (b)  The board shall:
   14-1              (1)  adopt and publish a code of ethics;
   14-2              (2)  establish the qualifications of applicants for
   14-3  licenses and the renewal of licenses;
   14-4              (3)  spend funds necessary for the proper
   14-5  administration of the board's assigned duties;
   14-6              (4)  establish reasonable and necessary fees for the
   14-7  administration and implementation of this article; and
   14-8              (5)  establish a minimum number of hours of continuing
   14-9  education required to renew a license and periodically assess the
  14-10  continuing education needs of license holders to determine whether
  14-11  specific course content should be required.
  14-12        Sec. 9.  ADMINISTRATIVE FUNCTIONS; EXECUTIVE SECRETARY.
  14-13  (a)  The department shall provide the personnel and necessary
  14-14  facilities required to administer this article.  If necessary to
  14-15  the administration of this article, the department may secure and
  14-16  provide for compensation for services that the department considers
  14-17  necessary and may employ and compensate within available
  14-18  appropriations professional consultants, technical assistants, and
  14-19  employees on a full-time or part-time basis.
  14-20        (b)  The commissioner of health shall designate an employee
  14-21  to serve as executive secretary of the board.  The executive
  14-22  secretary must be an employee of the department.  The executive
  14-23  secretary is the administrator of the licensing activities under
  14-24  this article.  The executive secretary shall carry out other
  14-25  functions as may be required by the board or the department to
  14-26  administer this article.
  14-27        Sec. 10.  PUBLIC INTEREST INFORMATION.  (a)  The board shall
   15-1  prepare information of public interest describing the functions of
   15-2  the board and the department under this article and the procedures
   15-3  by which complaints are filed with and resolved by the board.  The
   15-4  board shall make the information available to the public and
   15-5  appropriate state agencies.
   15-6        (b)  The board by rule shall establish methods by which
   15-7  consumers and service recipients are notified of the name, mailing
   15-8  address, and telephone number of the board for the purpose of
   15-9  directing complaints to the board.
  15-10        Sec. 11.  FEES; FUNDS; ANNUAL REPORT.  (a)  The board by rule
  15-11  shall set reasonable and necessary fees in amounts necessary to
  15-12  cover the cost of administering this article.  The board by rule
  15-13  may set different licensing fees for different categories of
  15-14  licenses.
  15-15        (b)  The board shall receive and account for funds received
  15-16  under this article.  The funds shall be deposited in the state
  15-17  treasury to the credit of the general revenue fund in an account
  15-18  known as the licensed nursing facility administrator's account to
  15-19  be used only for the administration of this article.
  15-20        (c)  The board shall file annually with the governor and the
  15-21  presiding officer of each house of the legislature a complete and
  15-22  detailed written report accounting for all funds received and
  15-23  disbursed by the board or the department for the administration of
  15-24  this article during the preceding fiscal year.  The annual report
  15-25  must be in the form and reported in the time provided by the
  15-26  General Appropriations Act.
  15-27        (d)  The board may receive and disburse funds received from
   16-1  any federal source for the furtherance of the board's functions
   16-2  under this article.
   16-3        Sec. 12.  PRACTICING WITHOUT A LICENSE.  A person may not act
   16-4  as a nursing facility administrator or represent to others that the
   16-5  person is a nursing facility administrator unless the person is
   16-6  licensed under this article.
   16-7        Sec. 13.  LICENSE APPLICATION; QUALIFICATIONS.  (a)  An
   16-8  applicant for a nursing facility administrator's license must
   16-9  submit a sworn application that is accompanied by the application
  16-10  fee.
  16-11        (b)  The board shall prescribe the form of the application
  16-12  and may by rule establish dates by which applications and fees must
  16-13  be received.  The rules under this section may not be inconsistent
  16-14  with the rules of the department related to the application dates
  16-15  of other licenses administered by the department.
  16-16        (c)  An applicant for a nursing facility administrator's
  16-17  license must take a licensing examination under this article.  To
  16-18  qualify for the licensing examination, the applicant must have
  16-19  satisfactorily completed a course of instruction and training
  16-20  prescribed by the board that is conducted by or in cooperation with
  16-21  an accredited postsecondary educational institution and that is
  16-22  designed and administered to provide sufficient knowledge of:
  16-23              (1)  the needs served by nursing facilities;
  16-24              (2)  the laws governing the operation of nursing
  16-25  facilities and the protection of the interests of facility
  16-26  residents; and
  16-27              (3)  the elements of nursing facility administration.
   17-1        (d)  An applicant who has not completed the course of
   17-2  instruction and training described by Subsection (c) of this
   17-3  section must present evidence satisfactory to the board of having
   17-4  completed sufficient education, training, and experience in the
   17-5  fields described by Subsection (c) of this section to enable the
   17-6  applicant to engage in the practice of nursing facility
   17-7  administration.
   17-8        Sec. 14.  EXAMINATION.  (a)  The licensing examination shall
   17-9  be prepared or approved by the board and administered by the board
  17-10  to qualified applicants at least twice each calendar year.  The
  17-11  board shall have the written portion of the examination, if any,
  17-12  validated by a testing professional.
  17-13        (b)  Not later than the 30th day after the date on which a
  17-14  licensing examination is administered under this article, the board
  17-15  shall notify each examinee of the results of the examination.  If
  17-16  an examination is graded or reviewed by a national or state testing
  17-17  service, the board shall notify examinees of the results of the
  17-18  examination not later than two weeks after the date the board
  17-19  receives the results from the testing service.  If the notice of
  17-20  the examination results will be delayed for more than 90 days after
  17-21  the examination date, the board shall notify the examinee of the
  17-22  reason for the delay before the 90th day.
  17-23        (c)  If requested in writing by a person who fails the
  17-24  licensing examination, the board shall furnish the person with an
  17-25  analysis of the person's performance on the examination.
  17-26        (d)  The board may establish by rule additional educational
  17-27  requirements to be met by an applicant who fails the examination
   18-1  three times.
   18-2        Sec. 15.  LICENSES; TEMPORARY LICENSE; INACTIVE STATUS;
   18-3  PROVISIONAL LICENSE.  (a)  A person who meets the requirements for
   18-4  licensing under this article is entitled to receive a license.  A
   18-5  nursing facility administrator's license is not transferable.
   18-6        (b)  A person licensed under this article must notify the
   18-7  board of the license holder's correct mailing address.
   18-8        (c)  A license is valid for two years.  The board by rule may
   18-9  adopt a system under which licenses expire on various dates during
  18-10  the two-year period.  For the year in which a license expiration
  18-11  date is changed, license fees payable on the original expiration
  18-12  date shall be prorated on a monthly basis so that each license
  18-13  holder shall pay only that portion of the license fee that is
  18-14  allocable to the number of months during which the license is
  18-15  valid.  On renewal of the license on the new expiration date, the
  18-16  total license renewal fee is payable.
  18-17        (d)  The board by rule may provide for the issuance of a
  18-18  temporary license.  Rules adopted under this section shall include
  18-19  a time limit for a licensee to practice under a temporary license.
  18-20        (e)  The board by rule may provide for a license holder to be
  18-21  placed on inactive status.
  18-22        Sec. 16.  PROVISIONAL LICENSE.  (a)  On application, the
  18-23  board shall grant a provisional license under this article.  An
  18-24  applicant for a provisional license under this section must:
  18-25              (1)  be licensed in good standing as a nursing facility
  18-26  administrator in another state, the District of Columbia, or a
  18-27  territory of the United States that has licensing requirements that
   19-1  are substantially equivalent to the requirements of this article;
   19-2              (2)  have passed a national or other examination
   19-3  recognized by the board relating to the practice of nursing
   19-4  facility administration; and
   19-5              (3)  be sponsored by a person licensed under this
   19-6  article with whom the provisional license holder may practice under
   19-7  this section.
   19-8        (b)  An applicant for a provisional license may be excused
   19-9  from the requirement of Subsection (a)(3) of this section if the
  19-10  board determines that compliance with that subsection constitutes a
  19-11  hardship to the applicant.
  19-12        (c)  A provisional license is valid until the date the board
  19-13  approves or denies the provisional license holder's application for
  19-14  a license.  The board shall issue a license under this article to
  19-15  the holder of a provisional license under this section if:
  19-16              (1)  the provisional license holder passes the
  19-17  examination required by Section 14 of this article;
  19-18              (2)  the board verifies that the provisional license
  19-19  holder has the academic and experience requirements for a license
  19-20  under this article; and
  19-21              (3)  the provisional license holder satisfies any other
  19-22  license requirements under this article.
  19-23        (d)  The board shall complete the processing of a provisional
  19-24  license holder's application for a license not later than the 180th
  19-25  day after the date the provisional license is issued.  The board
  19-26  may extend this time in order to receive the results of a national
  19-27  examination or other examination administered or graded by an
   20-1  outside organization recognized by the board.
   20-2        Sec. 17.  LICENSE RENEWAL.  (a)  A person may renew an
   20-3  unexpired license by paying to the board before the expiration of
   20-4  the license the required renewal fee.
   20-5        (b)  If a person's license has been expired for 90 days or
   20-6  less, the person may renew the license by paying to the board the
   20-7  required renewal fee and a fee that is one-half of the examination
   20-8  fee for the license.
   20-9        (c)  If a person's license has been expired for longer than
  20-10  90 days but less than one year, the person may renew the license by
  20-11  paying to the board all unpaid renewal fees and a fee that is equal
  20-12  to the examination fee for the license.
  20-13        (d)  If a person's license has been expired for one year or
  20-14  longer, the person may not renew the license.  The person may
  20-15  obtain a new license by complying with the requirements and
  20-16  procedures for obtaining an original license.  However, the board
  20-17  may renew without reexamination an expired license of a person who
  20-18  was licensed in this state, moved to another state, and is
  20-19  currently licensed and has been in practice in the other state for
  20-20  the two years preceding application.  The person must pay to the
  20-21  board a fee that is equal to the examination fee for the license.
  20-22        (e)  At least 30 days before the expiration of a person's
  20-23  license, the board shall send written notice of the impending
  20-24  license expiration to the person at the license holder's last known
  20-25  address according to the records of the board.
  20-26        Sec. 18.  MANDATORY CONTINUING EDUCATION.  (a)  The board by
  20-27  rule shall establish a minimum number of hours of continuing
   21-1  education required to renew a license under this article.  The
   21-2  board may assess the continuing education needs of license holders
   21-3  and may require license holders to attend continuing education
   21-4  courses specified by the board.
   21-5        (b)  The board shall identify the key factors for the
   21-6  competent performance by a license holder of the license holder's
   21-7  professional duties.  The board shall adopt a procedure to assess a
   21-8  license holder's participation in continuing education programs.
   21-9        Sec. 19.  COMPLAINT RECEIPT, INVESTIGATION, AND DISPOSITION.
  21-10  (a)  The board shall keep an information file about each complaint
  21-11  filed with the board.  The board's information file shall be kept
  21-12  current and contain a record for each complaint of:
  21-13              (1)  all persons contacted in relation to the
  21-14  complaint;
  21-15              (2)  a summary of findings made at each step of the
  21-16  complaint process;
  21-17              (3)  an explanation of the legal basis and reason for a
  21-18  complaint that is dismissed; and
  21-19              (4)  other relevant information.
  21-20        (b)  If a written complaint is filed with the board that the
  21-21  board has authority to resolve, the board, at least as frequently
  21-22  as quarterly and until final disposition of the complaint, shall
  21-23  notify the parties to the complaint of the status of the complaint
  21-24  unless the notice would jeopardize an undercover investigation.
  21-25        (c)  The board by rule shall adopt a form to standardize
  21-26  information concerning complaints made to the board.  The board by
  21-27  rule shall prescribe information to be provided to a person when
   22-1  the person files a complaint with the board.
   22-2        (d)  The board shall provide reasonable assistance to a
   22-3  person who wishes to file a complaint with the board.
   22-4        (e)  The board shall adopt rules concerning the investigation
   22-5  of a complaint filed with the board.  The rules adopted under this
   22-6  subsection shall:
   22-7              (1)  distinguish between categories of complaints;
   22-8              (2)  ensure that complaints are not dismissed without
   22-9  appropriate consideration;
  22-10              (3)  require that the board be advised of a complaint
  22-11  that is dismissed and that a letter be sent to the person who filed
  22-12  the complaint explaining the action taken on the dismissed
  22-13  complaint;
  22-14              (4)  ensure that the person who filed the complaint has
  22-15  an opportunity to explain the allegations made in the complaint;
  22-16  and
  22-17              (5)  prescribe guidelines concerning the categories of
  22-18  complaints that require the use of a private investigator and the
  22-19  procedures for the board to obtain the services of a private
  22-20  investigator.
  22-21        (f)  The board shall dispose of all complaints in a timely
  22-22  manner.  The board by rule shall establish a schedule for
  22-23  conducting each phase of a complaint that is under the control of
  22-24  the board not later than the 30th day after the date the complaint
  22-25  is received by the board.  The schedule shall be kept in the
  22-26  information file for the complaint, and all parties shall be
  22-27  notified of the projected time requirements for pursuing the
   23-1  complaint.  A change in the schedule must be noted in the complaint
   23-2  information file and all parties to the complaint must be notified
   23-3  not later than the seventh day after the date the change is made.
   23-4        (g)  The executive secretary shall notify the board of a
   23-5  complaint that extends beyond the time prescribed by the board for
   23-6  resolving the complaint so that the board may take necessary action
   23-7  on the complaint.
   23-8        Sec. 20.  SANCTIONS.  (a)  The board may revoke, suspend, or
   23-9  refuse to renew a nursing facility administrator's license, assess
  23-10  an administrative penalty, issue a written reprimand, require
  23-11  participation in continuing education, or place an administrator on
  23-12  probation after due notice and hearing on proof of any of the
  23-13  following grounds:
  23-14              (1)  the license holder has wilfully or repeatedly
  23-15  violated a provision of this article or a rule adopted under this
  23-16  article;
  23-17              (2)  the license holder has wilfully or repeatedly
  23-18  acted in a manner inconsistent with the health and safety of the
  23-19  patients of a facility of which the license holder is an
  23-20  administrator;
  23-21              (3)  the license holder obtained or attempted to obtain
  23-22  a license through misrepresentation or deceit or by making a
  23-23  material misstatement of fact on a license application;
  23-24              (4)  the intemperate use of alcohol or drugs by the
  23-25  license holder in the board's opinion creates a hazard to the
  23-26  patients of a facility;
  23-27              (5)  a judgment of a court of competent jurisdiction
   24-1  finds that the license holder is mentally incapacitated;
   24-2              (6)  the license holder has been convicted in a court
   24-3  of competent jurisdiction of a misdemeanor or felony involving
   24-4  moral turpitude; or
   24-5              (7)  the license holder has been negligent or
   24-6  incompetent in the license holder's duties as a nursing facility
   24-7  administrator.
   24-8        (b)  If a license suspension is probated, the board may
   24-9  require the license holder to:
  24-10              (1)  report regularly to the board on matters that are
  24-11  the basis of the probation;
  24-12              (2)  limit practice to the areas prescribed by the
  24-13  board; or
  24-14              (3)  continue or review continuing professional
  24-15  education until the license holder attains a degree of skill
  24-16  satisfactory to the board in those areas that are the basis of the
  24-17  probation.
  24-18        (c)  A license holder is entitled to a hearing before the
  24-19  hearings examiner designated by the board before a sanction is
  24-20  imposed under this section.
  24-21        (d)  The board by rule shall adopt a broad schedule of
  24-22  sanctions for violations under this article.  The designated
  24-23  hearings examiner shall use the schedule for any sanction imposed
  24-24  as the result of a hearing conducted by the designated hearings
  24-25  examiner.
  24-26        Sec. 21.  WRITTEN REPRIMAND AND CONTINUING EDUCATION AS
  24-27  SANCTIONS.  In addition to the other disciplinary actions
   25-1  authorized under this article, the board may issue a written
   25-2  reprimand to a license holder who violates this article or require
   25-3  that a license holder who violates this article participate in
   25-4  continuing education programs.  The board shall specify the
   25-5  continuing education programs that may be attended and the number
   25-6  of hours that must be completed by a license holder to fulfill the
   25-7  requirements of this section.
   25-8        Sec. 22.  ADMINISTRATIVE PENALTY.  (a)  The board may impose
   25-9  an administrative penalty against a person licensed or regulated
  25-10  under this article who violates this article or a rule or order
  25-11  adopted by the board under this article.
  25-12        (b)  The penalty for a violation may be in an amount not to
  25-13  exceed $1,000.  Each day a violation continues or occurs is a
  25-14  separate violation for purposes of imposing a penalty.
  25-15        (c)  The amount of the penalty shall be based on:
  25-16              (1)  the seriousness of the violation, including the
  25-17  nature, circumstances, extent, and gravity of any prohibited acts,
  25-18  and the hazard or potential hazard created to the health, safety,
  25-19  or economic welfare of the public;
  25-20              (2)  the economic harm to property or the environment
  25-21  caused by the violation;
  25-22              (3)  the history of previous violations;
  25-23              (4)  the amount necessary to deter future violations;
  25-24              (5)  efforts to correct the violation; and
  25-25              (6)  any other matter that justice may require.
  25-26        (d)  If the executive secretary determines that a violation
  25-27  has occurred, the executive secretary may issue to the board a
   26-1  report that states the facts on which the determination is based
   26-2  and the executive secretary's recommendation on the imposition of a
   26-3  penalty, including a recommendation on the amount of the penalty.
   26-4        (e)  Within 14 days after the date the report is issued, the
   26-5  executive secretary shall give written notice of the report to the
   26-6  person.  The notice may be given by certified mail.  The notice
   26-7  must include a brief summary of the alleged violation and a
   26-8  statement of the amount of the recommended penalty and must inform
   26-9  the person that the person has a right to a hearing on the
  26-10  occurrence of the violation, the amount of the penalty, or both the
  26-11  occurrence of the violation and the amount of the penalty.
  26-12        (f)  Within 20 days after the date the person receives the
  26-13  notice, the person in writing may accept the determination and
  26-14  recommended penalty of the executive secretary or may make a
  26-15  written request for a hearing on the occurrence of the violation,
  26-16  the amount of the penalty, or both the occurrence of the violation
  26-17  and the amount of the penalty.
  26-18        (g)  If the person accepts the determination and recommended
  26-19  penalty of the executive secretary, the board by order shall
  26-20  approve the determination and impose the recommended penalty.
  26-21        (h)  If the person requests a hearing or fails to respond
  26-22  timely to the notice, the board shall set a hearing and give notice
  26-23  of the hearing to the person.  The hearing shall be held by a
  26-24  hearings examiner designated by the board.  The hearings examiner
  26-25  shall make findings of fact and conclusions of law and promptly
  26-26  issue to the board a proposal for a decision about the occurrence
  26-27  of the violation and the amount of a proposed penalty.  Based on
   27-1  the findings of fact, conclusions of law, and proposal for a
   27-2  decision, the board by order may find that a violation has occurred
   27-3  and impose a penalty or may find that no violation occurred.
   27-4        (i)  The notice of the board's order given to the person
   27-5  under the Administrative Procedure and Texas Register Act (Article
   27-6  6252-13a, Vernon's Texas Civil Statutes) and its subsequent
   27-7  amendments must include a statement of the right of the person to
   27-8  judicial review of the order.
   27-9        (j)  Within 30 days after the date the board's order is final
  27-10  as provided by Section 16(c), Administrative Procedure and Texas
  27-11  Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), and
  27-12  its subsequent amendments, the person shall:
  27-13              (1)  pay the amount of the penalty;
  27-14              (2)  pay the amount of the penalty and file a petition
  27-15  for judicial review contesting the occurrence of the violation, the
  27-16  amount of the penalty, or both the occurrence of the violation and
  27-17  the amount of the penalty; or
  27-18              (3)  without paying the amount of the penalty, file a
  27-19  petition for judicial review contesting the occurrence of the
  27-20  violation, the amount of the penalty, or both the occurrence of the
  27-21  violation and the amount of the penalty.
  27-22        (k)  Within the 30-day period, a person who acts under
  27-23  Subsection (j)(3) of this section may:
  27-24              (1)  stay enforcement of the penalty by:
  27-25                    (A)  paying the amount of the penalty to the
  27-26  court for placement in an escrow account; or
  27-27                    (B)  giving to the court a supersedeas bond that
   28-1  is approved by the court for the amount of the penalty and that is
   28-2  effective until all judicial review of the board's order is final;
   28-3  or
   28-4              (2)  request the court to stay enforcement of the
   28-5  penalty by:
   28-6                    (A)  filing with the court a sworn affidavit of
   28-7  the person stating that the person is financially unable to pay the
   28-8  amount of the penalty and is financially unable to give the
   28-9  supersedeas bond; and
  28-10                    (B)  giving a copy of the affidavit to the board
  28-11  by certified mail.
  28-12        (l)  If the board receives a copy of an affidavit under
  28-13  Subsection (k)(2) of this section, the board may file with the
  28-14  court, within five days after the date the copy is received, a
  28-15  contest to the affidavit.  The court shall hold a hearing on the
  28-16  facts alleged in the affidavit as soon as practicable and shall
  28-17  stay the enforcement of the penalty on finding that the alleged
  28-18  facts are true.  The person who files an affidavit has the burden
  28-19  of proving that the person is financially unable to pay the amount
  28-20  of the penalty and to give a supersedeas bond.
  28-21        (m)  If the person does not pay the amount of the penalty and
  28-22  the enforcement of the penalty is not stayed, the board may refer
  28-23  the matter to the attorney general for collection of the amount of
  28-24  the penalty.
  28-25        (n)  Judicial review of the order of the board:
  28-26              (1)  is instituted by filing a petition as provided by
  28-27  Section 19, Administrative Procedure and Texas Register Act
   29-1  (Article 6252-13a, Vernon's Texas Civil Statutes), and its
   29-2  subsequent amendments; and
   29-3              (2)  is under the substantial evidence rule.
   29-4        (o)  If the court sustains the occurrence of the violation,
   29-5  the court may uphold or reduce the amount of the penalty and order
   29-6  the person to pay the full or reduced amount of the penalty.  If
   29-7  the court does not sustain the occurrence of the violation, the
   29-8  court shall order that no penalty is owed.
   29-9        (p)  When the judgment of the court becomes final, the court
  29-10  shall proceed under this subsection.  If the person paid the amount
  29-11  of the penalty and if that amount is reduced or is not upheld by
  29-12  the court, the court shall order that the appropriate amount plus
  29-13  accrued interest be remitted to the person.  The rate of the
  29-14  interest is the rate charged on loans to depository institutions by
  29-15  the New York Federal Reserve Bank, and the interest shall be paid
  29-16  for the period beginning on the date the penalty was paid and
  29-17  ending on the date the penalty is remitted.  If the person gave a
  29-18  supersedeas bond and if the amount of the penalty is not upheld by
  29-19  the court, the court shall order the release of the bond.  If the
  29-20  person gave a supersedeas bond and if the amount of the penalty is
  29-21  reduced, the court shall order the release of the bond after the
  29-22  person pays the amount.
  29-23        (q)  A penalty collected under this section shall be remitted
  29-24  to the comptroller for deposit in the general revenue fund.
  29-25        (r)  All proceedings under this section are subject to the
  29-26  Administrative Procedure and Texas Register Act (Article 6252-13a,
  29-27  Vernon's Texas Civil Statutes) and its subsequent amendments.
   30-1        Sec. 23.  INFORMAL PROCEEDINGS.  (a)  The board by rule shall
   30-2  adopt procedures governing:
   30-3              (1)  informal disposition of a contested case under
   30-4  Section 13(e), Administrative Procedure and Texas Register Act
   30-5  (Article 6252-13a, Vernon's Texas Civil Statutes), and its
   30-6  subsequent amendments; and
   30-7              (2)  informal proceedings held in compliance with
   30-8  Section 18(c), Administrative Procedure and Texas Register Act
   30-9  (Article 6252-13a, Vernon's Texas Civil Statutes), and its
  30-10  subsequent amendments.
  30-11        (b)  Rules adopted under this section must provide the
  30-12  complainant and the license holder an opportunity to be heard and
  30-13  must require the presence of a legal representative to advise the
  30-14  board or the board's employees.
  30-15        Sec. 24.  MONITORING OF LICENSE HOLDER.  The board by rule
  30-16  shall develop a system for monitoring a license holder's compliance
  30-17  with the requirements of this article.  Rules adopted under this
  30-18  section shall include procedures for monitoring a license holder
  30-19  who is ordered by the board to perform certain acts to ascertain
  30-20  that the license holder performs the required acts and to identify
  30-21  and monitor license holders who represent a risk to the public.
  30-22        Sec. 25.  CIVIL PENALTY.  A person who violates this article
  30-23  is liable to the state for a civil penalty of $1,000 for each day
  30-24  of violation.  At the request of the board, the attorney general
  30-25  shall bring an action to recover a civil penalty established by
  30-26  this section.
  30-27        Sec. 26.  ASSISTANCE OF ATTORNEY GENERAL.  The attorney
   31-1  general shall provide legal assistance as necessary in enforcing
   31-2  the provisions of this article.  This requirement does not relieve
   31-3  a local prosecuting officer of any of the prosecuting officer's
   31-4  duties under the law.
   31-5        Sec. 27.  OFFENSE.  (a)  A person commits an offense if the
   31-6  person knowingly or intentionally violates Section 12 of this
   31-7  article.
   31-8        (b)  An offense under this section is a Class B misdemeanor.
   31-9        Sec. 28.  SUNSET PROVISION.  The Texas Board of Nursing
  31-10  Facility Administrators is subject to Chapter 325, Government Code
  31-11  (Texas Sunset Act).  Unless continued in existence as provided by
  31-12  that chapter, the board is abolished and this article expires
  31-13  September 1, 2005.
  31-14           ARTICLE 3.  EFFECTIVE DATE; TRANSITION; EMERGENCY
  31-15        SECTION 3.01.  This Act takes effect September 1, 1993.
  31-16        SECTION 3.02.  (a)  The Texas Board of Licensure for Nursing
  31-17  Home Administrators is abolished on the effective date of this Act.
  31-18  As soon as possible after the effective date of this Act, the
  31-19  governor shall appoint the initial members of the Texas Board of
  31-20  Nursing Facility Administrators.  In making the initial
  31-21  appointments, the governor shall designate members to serve terms
  31-22  as follows:
  31-23              (1)  two licensed nursing facility administrator
  31-24  members and one public member serve terms expiring February 1,
  31-25  1995;
  31-26              (2)  two licensed nursing facility administrator
  31-27  members and one public member serve terms expiring February 1,
   32-1  1997; and
   32-2              (3)  two licensed nursing facility administrator
   32-3  members and one public member serve terms expiring February 1,
   32-4  1999.
   32-5        (b)  On the effective date of this Act, the Texas Board of
   32-6  Nursing Facility Administrators assumes the functions of the Texas
   32-7  Board of Licensure for Nursing Home Administrators.  The
   32-8  obligations, right, contracts, and records of the Texas Board of
   32-9  Licensure for Nursing Home Administrators are transferred to the
  32-10  Texas Board of Nursing Facility Administrators.  The equipment and
  32-11  other property and personnel of and unspent money appropriated to
  32-12  or for the Texas Board of Licensure for Nursing Home Administrators
  32-13  are transferred to the Texas Board of Health.  The rules of the
  32-14  abolished board are continued in effect as rules of the Texas Board
  32-15  of Health or the Texas Board of Nursing Facility Administrators, as
  32-16  appropriate, until superseded by rule of the Texas Board of Health
  32-17  or the Texas Board of Nursing Facility Administrators, as
  32-18  appropriate.  A license in effect that was issued by the abolished
  32-19  board is continued in effect as a license of the Texas Board of
  32-20  Nursing Facility Administrators.  A complaint, investigation, or
  32-21  other proceeding pending before the abolished board is transferred
  32-22  without change in status to the Texas Board of Nursing Facility
  32-23  Administrators.  Any reference in law to the Texas Board of
  32-24  Licensure for Nursing Home Administrators means the Texas Board of
  32-25  Nursing Facility Administrators.
  32-26        SECTION 3.03.  The changes in law made by this Act relating
  32-27  to a penalty that may be imposed apply only to a violation that
   33-1  occurs on or after the effective date of this Act.  A violation
   33-2  occurs on or after the effective date of this Act only if each
   33-3  element of the violation occurs on or after that date.  A violation
   33-4  that occurs before the effective date of this Act is governed by
   33-5  the law in effect on the date the violation occurred, and the
   33-6  former law is continued in effect for that purpose.
   33-7        SECTION 3.04.  The importance of this legislation and the
   33-8  crowded condition of the calendars in both houses create an
   33-9  emergency and an imperative public necessity that the
  33-10  constitutional rule requiring bills to be read on three several
  33-11  days in each house be suspended, and this rule is hereby suspended.