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.