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.