By: Moncrief S.B. No. 674
73R4150 JMM-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the creation of the Health Professions Council, the
1-3 continuation and functions of the Midwifery Board and the
1-4 regulation of the practice of midwifery, the continuation and
1-5 functions of the Texas State Board of Examiners of Dietitians and
1-6 the regulation of dietetics, and the abolition of the Texas Board
1-7 of Licensure for Nursing Home Administrators and the transfer of
1-8 the regulation of nursing home administrators to the Texas
1-9 Department of Health; providing penalties.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 ARTICLE 1. HEALTH PROFESSIONS COUNCIL
1-12 SECTION 1.01. Title 71, Revised Statutes, is amended by
1-13 adding Chapter 6O and Article 4512p to read as follows:
1-14 CHAPTER 6O. HEALTH PROFESSIONS COUNCIL
1-15 Art. 4512p. HEALTH PROFESSIONS COUNCIL
1-16 Sec. 1. HEALTH PROFESSIONS COUNCIL. The Health Professions
1-17 Council is created to conduct the studies described by Section 2 of
1-18 this article and to administer the other functions provided by this
1-19 article.
1-20 Sec. 2. COUNCIL STUDIES. The council shall perform the
1-21 following studies about the feasibility and merits of:
1-22 (1) centralizing the investigatory functions of the
1-23 state agencies that regulate health professions;
1-24 (2) centralizing complaint processing for state
2-1 agencies that regulate health professions; and
2-2 (3) prohibiting a person who is not a physician from
2-3 intervening in medical practice decisions made by an attending
2-4 physician.
2-5 Sec. 3. TOLL-FREE TELEPHONE COMPLAINT SYSTEM. (a) The
2-6 council shall establish and operate a toll-free telephone complaint
2-7 system to provide assistance and referral services for persons
2-8 making a complaint relating to a health profession regulated by the
2-9 state.
2-10 (b) After the establishment of a toll-free telephone
2-11 complaint system under this section, an agency of the state that
2-12 regulates a health profession shall be required to list the
2-13 toll-free telephone number of the system with the agency's regular
2-14 telephone number.
2-15 Sec. 4. TRAINING AND GUIDELINES FOR MEMBERS OF STATE BOARDS
2-16 AND COMMISSIONS. (a) The council shall establish a training
2-17 program for the members of the boards and commissions in the state
2-18 that regulate health professions.
2-19 (b) Before a member of a board or commission that regulates
2-20 a health profession takes office, the member must attend at least
2-21 one session of the training program established under this section.
2-22 (c) A training program established under this section shall
2-23 provide information to a participant regarding:
2-24 (1) the enabling legislation that created the board or
2-25 commission to which the member is appointed;
2-26 (2) the programs operated by that state agency;
2-27 (3) the role and functions of that state agency;
3-1 (4) the rules of that state agency with an emphasis on
3-2 the rules that relate to disciplinary and investigatory authority;
3-3 (5) the current budget for that state agency;
3-4 (6) the results of the most recent formal audit of
3-5 that state agency;
3-6 (7) the requirements of the open meetings law, Chapter
3-7 271, Acts of the 60th Legislature, Regular Session, 1967 (Article
3-8 6252-17, Vernon's Texas Civil Statutes), and its subsequent
3-9 amendments and the open records law, Chapter 424, Acts of the 63rd
3-10 Legislature, Regular Session, 1973 (Article 6252-17a, Vernon's
3-11 Texas Civil Statutes), and its subsequent amendments;
3-12 (8) the requirements of the conflict of interest laws
3-13 and other laws relating to public officials; and
3-14 (9) any applicable ethics policies adopted by that
3-15 state agency or the Texas Ethics Commission.
3-16 ARTICLE 2. MIDWIFERY BOARD
3-17 SECTION 2.01. Section 3, Texas Midwifery Act (Article 4512i,
3-18 Vernon's Texas Civil Statutes), is amended by amending Subsection
3-19 (b) and adding Subsections (c) and (d) to read as follows:
3-20 (b) The midwifery board is composed of the following nine
3-21 members:
3-22 (1) three <six> midwives with at least three years of
3-23 experience in the practice of midwifery, any <not more than three>
3-24 of whom may be licensed health care professionals;
3-25 (2) one certified nurse-midwife;
3-26 (3) a person licensed to practice medicine who is
3-27 certified by a national professional organization of physicians
4-1 that certifies obstetricians and gynecologists;
4-2 (4) one person licensed to practice medicine who is
4-3 certified by a national professional organization of physicians
4-4 that certifies family practitioners or pediatricians; and
4-5 (5) three persons who are not practicing or trained in
4-6 a health care profession and who represent the public interest, one
4-7 of whom must be a parent with at least one child born with the
4-8 assistance of a midwife.
4-9 (c) A person is not eligible for appointment as a public
4-10 member of the midwifery board if the person or the person's spouse:
4-11 (1) is registered, certified, or licensed by an
4-12 occupational regulatory agency in the field of midwifery;
4-13 (2) is employed by or participates in the management
4-14 of a business entity or other organization regulated by the
4-15 midwifery board or receiving funds from the midwifery board;
4-16 (3) owns or controls, directly or indirectly, more
4-17 than 10 percent interest in a business entity or other organization
4-18 regulated by the midwifery board or receiving funds from the
4-19 midwifery board; or
4-20 (4) uses or receives a substantial amount of tangible
4-21 goods, services, or funds from the midwifery board, other than
4-22 compensation or reimbursement authorized by law for midwifery board
4-23 membership, attendance, or expenses.
4-24 (d) Appointments to the midwifery board shall be made
4-25 without regard to the race, color, disability, sex, religion, age,
4-26 or national origin of the appointees.
4-27 SECTION 2.02. Section 3A, Texas Midwifery Act (Article
5-1 4512i, Vernon's Texas Civil Statutes), is amended to read as
5-2 follows:
5-3 Sec. 3A. Sunset provision. The midwifery board is subject
5-4 to Chapter 325, Government Code (Texas Sunset Act). Unless
5-5 continued in existence as provided by that chapter, the midwifery
5-6 board is abolished and this Act expires September 1, 2005 <1993>.
5-7 SECTION 2.03. The Texas Midwifery Act (Article 4512i,
5-8 Vernon's Texas Civil Statutes) is amended by adding Section 3B to
5-9 read as follows:
5-10 Sec. 3B. CONFLICT OF INTEREST RESTRICTIONS. (a) An
5-11 officer, employee, or paid consultant of a Texas trade association
5-12 in the field of midwifery may not be a member or employee of the
5-13 midwifery board who is exempt from the state's position
5-14 classification plan or is compensated at or above the amount
5-15 prescribed by the General Appropriations Act for step 1, salary
5-16 group 17, of the position classification salary schedule.
5-17 (b) A person who is the spouse of an officer, manager, or
5-18 paid consultant of a Texas trade association in the field of
5-19 midwifery may not be a midwifery board member and may not be an
5-20 employee of the midwifery board who is exempt from the state's
5-21 position classification plan or is compensated at or above the
5-22 amount prescribed by the General Appropriations Act for step 1,
5-23 salary group 17, of the position classification salary schedule.
5-24 (c) For the purposes of this section, a Texas trade
5-25 association is a nonprofit, cooperative, and voluntarily joined
5-26 association of business or professional competitors in this state
5-27 designed to assist its members and its industry or profession in
6-1 dealing with mutual business or professional problems and in
6-2 promoting their common interest.
6-3 SECTION 2.04. The Texas Midwifery Act (Article 4512i,
6-4 Vernon's Texas Civil Statutes) is amended by adding Section 3C to
6-5 read as follows:
6-6 Sec. 3C. EFFECT OF LOBBYING ACTIVITY. A person may not
6-7 serve as a member of the midwifery board or act as the general
6-8 counsel to the midwifery board if the person is required to
6-9 register as a lobbyist under Chapter 305, Government Code, and its
6-10 subsequent amendments, because of the person's activities for
6-11 compensation on behalf of a profession related to the operation of
6-12 the midwifery board.
6-13 SECTION 2.05. The Texas Midwifery Act (Article 4512i,
6-14 Vernon's Texas Civil Statutes) is amended by adding Section 3D to
6-15 read as follows:
6-16 Sec. 3D. GROUNDS FOR REMOVAL FROM BOARD. (a) It is a
6-17 ground for removal from the midwifery board if a member:
6-18 (1) does not have at the time of appointment the
6-19 qualifications required by Section 3 of this Act;
6-20 (2) does not maintain during service on the midwifery
6-21 board the qualifications required by Section 3 of this Act;
6-22 (3) violates a prohibition established by Section
6-23 3(c), 3B, or 3C of this Act;
6-24 (4) cannot discharge the member's term for a
6-25 substantial part of the term for which the member is appointed
6-26 because of illness or disability; or
6-27 (5) is absent from more than half of the regularly
7-1 scheduled midwifery board meetings that the member is eligible to
7-2 attend during a calendar year unless the absence is excused by
7-3 majority vote of the midwifery board.
7-4 (b) The validity of an action of the midwifery board is not
7-5 affected by the fact that it is taken when a ground for removal of
7-6 a midwifery board member exists.
7-7 (c) If the program coordinator has knowledge that a
7-8 potential ground for removal exists, the program coordinator shall
7-9 notify the presiding officer of the midwifery board of the ground.
7-10 The presiding officer shall then notify the governor that a
7-11 potential ground for removal exists.
7-12 SECTION 2.06. Section 8A, Texas Midwifery Act (Article
7-13 4512i, Vernon's Texas Civil Statutes), is amended by adding
7-14 Subsection (d) to read as follows:
7-15 (d) Subject to the approval of the Texas Board of Health,
7-16 the midwifery board by rule shall establish reasonable and
7-17 necessary fees so that the fees, in the aggregate, produce
7-18 sufficient revenue to cover the costs of administering this Act.
7-19 The fee amounts set by the midwifery board may be adjusted so that
7-20 the total fees collected are sufficient to cover the cost of
7-21 administering this Act. The midwifery board may not set a fee for
7-22 an amount less than the amount of that fee on September 1, 1993.
7-23 SECTION 2.07. The Texas Midwifery Act (Article 4512i,
7-24 Vernon's Texas Civil Statutes) is amended by adding Section 8C to
7-25 read as follows:
7-26 Sec. 8C. ANNUAL FINANCIAL REPORT. The midwifery board shall
7-27 file annually with the governor and the presiding officer of each
8-1 house of the legislature a complete and detailed written report
8-2 accounting for all funds received and disbursed by the midwifery
8-3 board during the preceding fiscal year. The annual report must be
8-4 in the form and reported in the time provided by the General
8-5 Appropriations Act.
8-6 SECTION 2.08. The Texas Midwifery Act (Article 4512i,
8-7 Vernon's Texas Civil Statutes) is amended by adding Section 8D to
8-8 read as follows:
8-9 Sec. 8D. PERSONNEL POLICIES. (a) The program coordinator
8-10 or the coordinator's designee shall develop an intra-agency career
8-11 ladder program. The program shall require intra-agency posting of
8-12 all nonentry level positions concurrently with any public posting.
8-13 (b) The program coordinator or the coordinator's designee
8-14 shall develop a system of annual performance evaluations based on
8-15 measurable job tasks. All merit pay for midwifery board employees
8-16 must be based on the system established under this subsection.
8-17 SECTION 2.09. The Texas Midwifery Act (Article 4512i,
8-18 Vernon's Texas Civil Statutes) is amended by adding Section 8E to
8-19 read as follows:
8-20 Sec. 8E. PUBLIC INTEREST INFORMATION. (a) The midwifery
8-21 board shall prepare information of public interest describing the
8-22 functions of the midwifery board and the midwifery board's
8-23 procedures by which complaints are filed with and resolved by the
8-24 midwifery board. The midwifery board shall make the information
8-25 available to the public and appropriate state agencies.
8-26 (b) The midwifery board by rule shall establish methods by
8-27 which consumers and service recipients are notified of the name,
9-1 mailing address, and telephone number of the midwifery board for
9-2 the purpose of directing complaints to the midwifery board. The
9-3 midwifery board may provide for that notification:
9-4 (1) on each registration form, application, or written
9-5 contract for services of an individual or entity regulated by the
9-6 midwifery board;
9-7 (2) on a sign prominently displayed in the place of
9-8 business of each individual or entity regulated by the midwifery
9-9 board; or
9-10 (3) in a bill for service provided by an individual or
9-11 entity regulated by the midwifery board.
9-12 (c) The midwifery board shall list along with its regular
9-13 telephone number the toll-free telephone number that may be called
9-14 to present a complaint about a health professional if the toll-free
9-15 number is established under other state law.
9-16 SECTION 2.10. The Texas Midwifery Act (Article 4512i,
9-17 Vernon's Texas Civil Statutes) is amended by adding Section 8F to
9-18 read as follows:
9-19 Sec. 8F. EQUAL EMPLOYMENT OPPORTUNITY POLICIES. (a) The
9-20 program coordinator or the coordinator's designee shall prepare and
9-21 maintain a written policy statement to assure implementation of a
9-22 program of equal employment opportunity under which all personnel
9-23 transactions are made without regard to race, color, disability,
9-24 sex, religion, age, or national origin. The policy statement must
9-25 include:
9-26 (1) personnel policies, including policies relating to
9-27 recruitment, evaluation, selection, application, training, and
10-1 promotion of personnel that are in compliance with the Commission
10-2 on Human Rights Act (Article 5221k, Vernon's Texas Civil Statutes)
10-3 and its subsequent amendments;
10-4 (2) a comprehensive analysis of the midwifery board
10-5 workforce that meets federal and state guidelines;
10-6 (3) procedures by which a determination can be made of
10-7 significant underuse in the midwifery board workforce of all
10-8 persons for whom federal or state guidelines encourage a more
10-9 equitable balance; and
10-10 (4) reasonable methods to appropriately address those
10-11 areas of underuse.
10-12 (b) A policy statement prepared under Subsection (a) of this
10-13 section must cover an annual period, be updated annually, be
10-14 reviewed by the Commission on Human Rights for compliance with
10-15 Subsection (a)(1) of this section, and be filed with the governor's
10-16 office.
10-17 (c) The governor's office shall deliver a biennial report to
10-18 the legislature based on the information received under Subsection
10-19 (b) of this section. The report may be made separately or as part
10-20 of other biennial reports to the legislature.
10-21 SECTION 2.11. The Texas Midwifery Act (Article 4512i,
10-22 Vernon's Texas Civil Statutes) is amended by adding Section 8G to
10-23 read as follows:
10-24 Sec. 8G. TRAINING; STANDARDS OF CONDUCT INFORMATION. (a)
10-25 Each midwifery board member shall comply with the member training
10-26 requirements established by any other state agency that is given
10-27 authority to establish the requirements for the midwifery board.
11-1 (b) The midwifery board shall provide to its members and
11-2 employees, as often as necessary, information regarding their
11-3 qualifications for office or employment under this Act and their
11-4 responsibilities under applicable laws relating to standards of
11-5 conduct for state officers or employees.
11-6 SECTION 2.12. The Texas Midwifery Act (Article 4512i,
11-7 Vernon's Texas Civil Statutes) is amended by adding Section 8H to
11-8 read as follows:
11-9 Sec. 8H. PUBLIC PARTICIPATION IN MIDWIFERY BOARD HEARINGS.
11-10 The midwifery board shall develop and implement policies that
11-11 provide the public with a reasonable opportunity to appear before
11-12 the midwifery board and to speak on any issue under the
11-13 jurisdiction of the midwifery board.
11-14 SECTION 2.13. The Texas Midwifery Act (Article 4512i,
11-15 Vernon's Texas Civil Statutes) is amended by adding Section 8I to
11-16 read as follows:
11-17 Sec. 8I. DIVISION OF RESPONSIBILITY. The midwifery board
11-18 shall develop and implement policies that clearly define the
11-19 respective responsibilities of the midwifery board and the staff of
11-20 the midwifery board.
11-21 SECTION 2.14. The Texas Midwifery Act (Article 4512i,
11-22 Vernon's Texas Civil Statutes) is amended by adding Section 8J to
11-23 read as follows:
11-24 Sec. 8J. PROGRAM ACCESSIBILITY. The midwifery board shall
11-25 prepare and maintain a written plan that describes how a person who
11-26 does not speak English can be provided reasonable access to the
11-27 midwifery board's programs. The midwifery board shall also comply
12-1 with federal and state laws for program and facility accessibility.
12-2 SECTION 2.15. Section 10, Texas Midwifery Act (Article
12-3 4512i, Vernon's Texas Civil Statutes), is amended by amending
12-4 Subsection (c) and adding Subsection (i) to read as follows:
12-5 (c) On renewal of the documentation, the person must provide
12-6 the program coordinator with evidence, acceptable under the rules
12-7 of the board, of completion of mandatory continuing education as
12-8 prescribed by the midwifery board. The midwifery board by rule
12-9 shall establish a minimum number of hours of continuing education
12-10 required to renew a documentation under this Act. The midwifery
12-11 board may assess the continuing education needs of documented
12-12 midwives and may require documented midwives to attend continuing
12-13 education courses specified by the midwifery board. The midwifery
12-14 board by rule shall develop a process to evaluate and approve
12-15 continuing education courses.
12-16 (i) The midwifery board shall identify the key factors for
12-17 the competent performance by a documented midwife of the documented
12-18 midwife's professional duties. The midwifery board shall adopt a
12-19 procedure to assess a documented midwife's participation in
12-20 continuing education programs.
12-21 SECTION 2.16. Section 11, Texas Midwifery Act (Article
12-22 4512i, Vernon's Texas Civil Statutes), is amended by adding
12-23 Subsection (e) to read as follows:
12-24 (e) The midwifery board shall have the written portion of
12-25 the examination, if any, validated by an independent testing
12-26 professional.
12-27 SECTION 2.17. Sections 13(b), (d), and (e), Texas Midwifery
13-1 Act (Article 4512i, Vernon's Texas Civil Statutes), are amended to
13-2 read as follows:
13-3 (b) Each person who practices midwifery must apply to the
13-4 department annually to be documented as a midwife. The application
13-5 must be accompanied by a nonrefundable <$50> application fee in an
13-6 amount set by the midwifery board. The application must include
13-7 the information required by board rule.
13-8 (d) The initial documentation issued to a midwife may be
13-9 issued at any time during the year. The initial documentation must
13-10 be issued before the midwife begins to practice midwifery within
13-11 the state. The term of the initial practice under the
13-12 documentation begins on the date that the requirements are met and
13-13 extends through December 31 of the initial year. The midwifery
13-14 board by rule may adopt a system under which documentations expire
13-15 on various dates during the year. For the year in which the
13-16 documentation expiration date is changed, documentation fees
13-17 payable on the original expiration date shall be prorated on a
13-18 monthly basis so that each documented midwife shall pay only that
13-19 portion of the documentation fee that is allocable to the number of
13-20 months during which the documentation is valid. On renewal of the
13-21 documentation on the new expiration date, the total documentation
13-22 renewal fee is payable <After the initial year of documentation,
13-23 the term of the documentation begins on January 1 and ends on
13-24 December 31 of each year. A renewal application must be completed
13-25 during December of the year preceding the year for which the
13-26 renewal is requested>.
13-27 (e) The department may accept an application for renewal
14-1 that is filed after the close of the documentation period during a
14-2 grace period not to exceed 60 days after the end of the
14-3 documentation period. The department may charge a late filing fee
14-4 in an amount set by the midwifery board <not to exceed $25>. The
14-5 late filing fee must be paid in addition to the application fee.
14-6 The board shall adopt rules to establish the duration of the grace
14-7 period and the amount of the late filing fee.
14-8 SECTION 2.18. The Texas Midwifery Act (Article 4512i,
14-9 Vernon's Texas Civil Statutes) is amended by adding Section 18C to
14-10 read as follows:
14-11 Sec. 18C. COMPLAINT PROCEDURE IN GENERAL. (a) The
14-12 midwifery board shall keep an information file about each complaint
14-13 filed with the midwifery board. The midwifery board's information
14-14 file shall be kept current and contain a record for each complaint
14-15 of:
14-16 (1) all persons contacted in relation to the
14-17 complaint;
14-18 (2) a summary of findings made at each step of the
14-19 complaint process;
14-20 (3) an explanation of the legal basis and reason for a
14-21 complaint that is dismissed; and
14-22 (4) other relevant information.
14-23 (b) If a written complaint is filed with the midwifery board
14-24 that the midwifery board has authority to resolve, the midwifery
14-25 board, at least as frequently as quarterly and until final
14-26 disposition of the complaint, shall notify the parties to the
14-27 complaint of the status of the complaint unless the notice would
15-1 jeopardize an undercover investigation.
15-2 (c) The midwifery board by rule shall adopt a form to
15-3 standardize information concerning complaints made to the midwifery
15-4 board. The midwifery board by rule shall prescribe information to
15-5 be provided to a person when the person files a complaint with the
15-6 midwifery board.
15-7 (d) The midwifery board shall provide reasonable assistance
15-8 to a person who wishes to file a complaint with the midwifery
15-9 board.
15-10 SECTION 2.19. The Texas Midwifery Act (Article 4512i,
15-11 Vernon's Texas Civil Statutes) is amended by adding Section 18D to
15-12 read as follows:
15-13 Sec. 18D. COMPLAINT INVESTIGATION AND DISPOSITION. (a) The
15-14 midwifery board shall adopt rules concerning the investigation of a
15-15 complaint filed with the midwifery board. The rules adopted under
15-16 this subsection shall:
15-17 (1) distinguish between categories of complaints;
15-18 (2) ensure that complaints are not dismissed without
15-19 appropriate consideration;
15-20 (3) require that the midwifery board be advised of a
15-21 complaint that is dismissed and that a letter be sent to the person
15-22 who filed the complaint explaining the action taken on the
15-23 dismissed complaint;
15-24 (4) ensure that the person who filed the complaint has
15-25 an opportunity to explain the allegations made in the complaint;
15-26 and
15-27 (5) prescribe guidelines concerning the categories of
16-1 complaints that require the use of a private investigator and the
16-2 procedures for the midwifery board to obtain the services of a
16-3 private investigator.
16-4 (b) The midwifery board shall dispose of all complaints in a
16-5 timely manner. The midwifery board shall establish a schedule for
16-6 conducting each phase of a complaint that is under the control of
16-7 the midwifery board not later than the 30th day after the date the
16-8 complaint is received by the midwifery board. The schedule shall
16-9 be kept in the information file for the complaint and all parties
16-10 shall be notified of the projected time requirements for pursuing
16-11 the complaint. A change in the schedule must be noted in the
16-12 complaint information file and all parties to the complaint must be
16-13 notified not later than the seventh day after the date the change
16-14 is made.
16-15 (c) The program coordinator shall notify the midwifery board
16-16 of a complaint that extends beyond the time prescribed by the
16-17 midwifery board for resolving the complaint so that the midwifery
16-18 board may take necessary action on the complaint.
16-19 SECTION 2.20. The Texas Midwifery Act (Article 4512i,
16-20 Vernon's Texas Civil Statutes) is amended by adding Section 18E to
16-21 read as follows:
16-22 Sec. 18E. INFORMAL PROCEEDINGS. (a) The midwifery board by
16-23 rule shall adopt procedures governing:
16-24 (1) informal disposition of a contested case under
16-25 Section 13(e), Administrative Procedure and Texas Register Act
16-26 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
16-27 subsequent amendments; and
17-1 (2) informal proceedings held in compliance with
17-2 Section 18(c), Administrative Procedure and Texas Register Act
17-3 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
17-4 subsequent amendments.
17-5 (b) Rules adopted under this section must provide the
17-6 complainant and the documented midwife an opportunity to be heard
17-7 and must require the presence of a representative of the office of
17-8 the attorney general to advise the midwifery board or midwifery
17-9 board's employees.
17-10 SECTION 2.21. The Texas Midwifery Act (Article 4512i,
17-11 Vernon's Texas Civil Statutes) is amended by adding Section 18F to
17-12 read as follows:
17-13 Sec. 18F. MONITORING OF DOCUMENTED MIDWIVES. The midwifery
17-14 board by rule shall develop a system for monitoring documented
17-15 midwives' compliance with the requirements of this Act. Rules
17-16 adopted under this section shall include procedures for monitoring
17-17 a documented midwife who is ordered by the midwifery board to
17-18 perform certain acts to ascertain that the documented midwife
17-19 performs the required acts and to identify and monitor documented
17-20 midwives who represent a risk to the public.
17-21 ARTICLE 3. TEXAS STATE BOARD OF EXAMINERS OF
17-22 DIETITIANS AND NUTRITIONISTS
17-23 SECTION 3.01. Section 1, Licensed Dietitian Act (Article
17-24 4512h, Vernon's Texas Civil Statutes), is amended to read as
17-25 follows:
17-26 Sec. 1. Short Title. This Act may be cited as the Licensed
17-27 Dietitian and Nutritionist Act.
18-1 SECTION 3.02. Sections 2(4), (7), and (8), Licensed
18-2 Dietitian Act (Article 4512h, Vernon's Texas Civil Statutes), are
18-3 amended to read as follows:
18-4 (4) "Board" means the Texas State Board of Examiners
18-5 of Dietitians and Nutritionists.
18-6 (7) "Licensed dietitian and nutritionist" means a
18-7 person licensed under this Act.
18-8 (8) "Provisional licensed dietitian and nutritionist"
18-9 means a person provisionally licensed under this Act.
18-10 SECTION 3.03. Section 3, Licensed Dietitian Act (Article
18-11 4512h, Vernon's Texas Civil Statutes), is amended by amending
18-12 Subsections (a), (b), and (d)-(h) and adding Subsections (i) and
18-13 (j) to read as follows:
18-14 (a) The Texas State Board of Examiners of Dietitians and
18-15 Nutritionists is created.
18-16 (b) The board is composed of nine members. Three members
18-17 must be members of the general public. Six members must be
18-18 dietitians and nutritionists licensed under this Act.
18-19 (d) The professional discipline of dietetics includes five
18-20 primary areas of expertise: clinical, educational, management,
18-21 consultation, and community. In making the six professional
18-22 appointments to the board, the governor shall consider and attempt
18-23 to accomplish a continuing balance of representation among these
18-24 areas of expertise. Following the fourth anniversary date of the
18-25 effective date of this Act, a licensee eligible for appointment as
18-26 a professional board member must have been a licensed dietitian and
18-27 nutritionist under this Act for at least three years before his
19-1 appointment to the board.
19-2 (e) A person is not eligible for appointment as a public
19-3 member of the board if the person or <and> the person's spouse:
19-4 (1) is registered, certified, or <are not> licensed by
19-5 an occupational regulatory agency in the field of dietetics <health
19-6 care>;
19-7 (2) is <are not> employed by or participates <and do
19-8 not participate> in the management of a <an agency or> business
19-9 entity or other organization regulated by the board or receiving
19-10 funds from the board <that provides health-care services or that
19-11 sells, manufactures, or distributes health-care supplies or
19-12 equipment>; <and>
19-13 (3) owns or controls, directly or indirectly, <do not
19-14 own, control, or have a direct or indirect interest in> more than a
19-15 10 percent interest in <of> a business entity or other organization
19-16 regulated by the board or receiving funds from the board; or <that
19-17 provides health-care services or that sells, manufactures, or
19-18 distributes health-care supplies or equipment.>
19-19 (4) uses or receives a substantial amount of tangible
19-20 goods, services, or funds from the board, other than compensation
19-21 or reimbursement authorized by law for board membership,
19-22 attendance, or expenses.
19-23 (f) Appointments <It is the intent of the legislature that
19-24 the membership of the board reflect the historical and cultural
19-25 diversity of the inhabitants of this state; therefore,
19-26 appointments> to the board shall <should> be made without regard to
19-27 the <discrimination based on> race, color, disability <creed>, sex,
20-1 religion, age, or national origin<, or geographical distribution>
20-2 of the appointees.
20-3 (g) An officer, employee, or paid consultant of a Texas
20-4 trade association in the field of dietetics may not be a member or
20-5 employee of the board who is exempt from the state's position
20-6 classification plan or is compensated at or above the amount
20-7 prescribed by the General Appropriations Act for step 1, salary
20-8 group 17, of the position classification salary schedule <A member
20-9 or employee of the board may not be an officer, employee, or paid
20-10 consultant of a trade association in the field of health care>.
20-11 (h) A person who is the spouse of an officer, manager, or
20-12 paid consultant of a Texas trade association in the field of
20-13 dietetics may not be a board member and may not be an employee of
20-14 the board who is exempt from the state's position classification
20-15 plan or is compensated at or above the amount prescribed by the
20-16 General Appropriations Act for step 1, salary group 17, of the
20-17 position classification salary schedule.
20-18 (i) For the purposes of this section, a Texas trade
20-19 association is a nonprofit, cooperative, and voluntarily joined
20-20 association of business or professional competitors in this state
20-21 designed to assist its members and its industry or profession in
20-22 dealing with mutual business or professional problems and in
20-23 promoting their common interest.
20-24 (j) <(h)> A person may not serve as a member of the board or
20-25 act as general counsel to the board if the person <who> is required
20-26 to register as a lobbyist under Chapter 305, Government Code,
20-27 because of the person's activities for compensation on behalf of a
21-1 profession related to the operation of <in a health-related area
21-2 may not serve as a member of the board or act as the general
21-3 counsel to> the board.
21-4 SECTION 3.04. Section 4, Licensed Dietitian Act (Article
21-5 4512h, Vernon's Texas Civil Statutes), is amended to read as
21-6 follows:
21-7 Sec. 4. Grounds for Removal. (a) It is a ground for
21-8 removal from the board if a member:
21-9 (1) does not have at the time of appointment the
21-10 qualifications required for appointment to the board;
21-11 (2) does not maintain during service on the board the
21-12 qualifications required for appointment to the board; <or>
21-13 (3) violates a prohibition established by this Act;
21-14 (4) cannot discharge the member's term for a
21-15 substantial part of the term for which the member is appointed
21-16 because of illness or disability; or
21-17 (5) is absent from more than half of the regularly
21-18 scheduled board meetings that the member is eligible to attend
21-19 during a calendar year unless the absence is excused by majority
21-20 vote of the board.
21-21 (b) The validity of an action of the board is not affected
21-22 by the fact that is is taken when <If> a ground for removal of a
21-23 member of <from> the board exists<, the board's actions taken
21-24 during the existence of the ground for removal are valid>.
21-25 (c) If the executive secretary has knowledge that a
21-26 potential ground for removal exists, the executive secretary shall
21-27 notify the chairman of the board of the ground. The chairman shall
22-1 then notify the governor that a potential ground for removal
22-2 exists.
22-3 SECTION 3.05. The Licensed Dietitian Act (Article 4512h,
22-4 Vernon's Texas Civil Statutes) is amended by adding Section 7A to
22-5 read as follows:
22-6 Sec. 7A. PERSONNEL POLICIES. (a) The executive secretary
22-7 or the secretary's designee shall develop an intra-agency career
22-8 ladder program. The program shall require intra-agency posting of
22-9 all nonentry level positions concurrently with any public posting.
22-10 (b) The executive secretary or the secretary's designee
22-11 shall develop a system of annual performance evaluations based on
22-12 measurable job tasks. All merit pay for board employees must be
22-13 based on the system established under this subsection.
22-14 SECTION 3.06. The Licensed Dietitian Act (Article 4512h,
22-15 Vernon's Texas Civil Statutes) is amended by adding Section 7B to
22-16 read as follows:
22-17 Sec. 7B. PUBLIC INTEREST INFORMATION. (a) The board shall
22-18 prepare information of public interest describing the functions of
22-19 the board and the board's procedures by which complaints are filed
22-20 with and resolved by the board. The board shall make the
22-21 information available to the public and appropriate state agencies.
22-22 (b) The board by rule shall establish methods by which
22-23 consumers and service recipients are notified of the name, mailing
22-24 address, and telephone number of the board for the purpose of
22-25 directing complaints to the board. The board may provide for that
22-26 notification:
22-27 (1) on each registration form, application, or written
23-1 contract for services of an individual or entity regulated by the
23-2 board;
23-3 (2) on a sign prominently displayed in the place of
23-4 business of each individual or entity regulated by the board; or
23-5 (3) in a bill for service provided by an individual or
23-6 entity regulated by the board.
23-7 (c) The board shall list along with its regular telephone
23-8 number the toll-free telephone number that may be called to present
23-9 a complaint about a health professional if the toll-free number is
23-10 established under other state law.
23-11 SECTION 3.07. The Licensed Dietitian Act (Article 4512h,
23-12 Vernon's Texas Civil Statutes) is amended by adding Section 7C to
23-13 read as follows:
23-14 Sec. 7C. EQUAL EMPLOYMENT OPPORTUNITY POLICIES. (a) The
23-15 executive secretary or the secretary's designee shall prepare and
23-16 maintain a written policy statement to assure implementation of a
23-17 program of equal employment opportunity under which all personnel
23-18 transactions are made without regard to race, color, disability,
23-19 sex, religion, age, or national origin. The policy statement must
23-20 include:
23-21 (1) personnel policies, including policies relating to
23-22 recruitment, evaluation, selection, application, training, and
23-23 promotion of personnel that are in compliance with the Commission
23-24 on Human Rights Act (Article 5221k, Vernon's Texas Civil Statutes)
23-25 and its subsequent amendments;
23-26 (2) a comprehensive analysis of the board workforce
23-27 that meets federal and state guidelines;
24-1 (3) procedures by which a determination can be made of
24-2 significant underuse in the board workforce of all persons for whom
24-3 federal or state guidelines encourage a more equitable balance; and
24-4 (4) reasonable methods to appropriately address those
24-5 areas of underuse.
24-6 (b) A policy statement prepared under Subsection (a) of this
24-7 section must cover an annual period, be updated annually, be
24-8 reviewed by the Commission on Human Rights for compliance with
24-9 Subsection (a)(1) of this section, and be filed with the governor's
24-10 office.
24-11 (c) The governor's office shall deliver a biennial report to
24-12 the legislature based on the information received under Subsection
24-13 (b) of this section. The report may be made separately or as part
24-14 of other biennial reports to the legislature.
24-15 SECTION 3.08. The Licensed Dietitian Act (Article 4512h,
24-16 Vernon's Texas Civil Statutes) is amended by adding Section 7D to
24-17 read as follows:
24-18 Sec. 7D. TRAINING; STANDARDS OF CONDUCT INFORMATION. (a)
24-19 Each board member shall comply with the board member training
24-20 requirements established by any other state agency that is given
24-21 authority to establish the requirements for the board.
24-22 (b) The board shall provide to its members and employees, as
24-23 often as necessary, information regarding their qualifications for
24-24 office or employment under this Act and their responsibilities
24-25 under applicable laws relating to standards of conduct for state
24-26 officers or employees.
24-27 SECTION 3.09. The Licensed Dietitian Act (Article 4512h,
25-1 Vernon's Texas Civil Statutes) is amended by adding Section 7E to
25-2 read as follows:
25-3 Sec. 7E. PUBLIC PARTICIPATION IN BOARD HEARINGS. The board
25-4 shall develop and implement policies that provide the public with a
25-5 reasonable opportunity to appear before the board and to speak on
25-6 any issue under the jurisdiction of the board.
25-7 SECTION 3.10. The Licensed Dietitian Act (Article 4512h,
25-8 Vernon's Texas Civil Statutes) is amended by adding Section 7F to
25-9 read as follows:
25-10 Sec. 7F. DIVISION OF RESPONSIBILITIES. The board shall
25-11 develop and implement policies that clearly define the respective
25-12 responsibilities of the board and the staff of the board.
25-13 SECTION 3.11. The Licensed Dietitian Act (Article 4512h,
25-14 Vernon's Texas Civil Statutes) is amended by adding Section 7G to
25-15 read as follows:
25-16 Sec. 7G. PROGRAM ACCESSIBILITY. The board shall prepare and
25-17 maintain a written plan that describes how a person who does not
25-18 speak English can be provided reasonable access to the board's
25-19 programs. The board shall also comply with federal and state laws
25-20 for program and facility accessibility.
25-21 SECTION 3.12. Sections 8(a), (b), and (c), Licensed
25-22 Dietitian Act (Article 4512h, Vernon's Texas Civil Statutes), are
25-23 amended to read as follows:
25-24 (a) After consultation with the commissioner or the
25-25 department, the board by rule shall set reasonable and necessary
25-26 <the> fees <imposed by this Act> in amounts that are adequate to
25-27 collect sufficient revenue to meet the expenses necessary to
26-1 administer this Act <without accumulating an unnecessary surplus in
26-2 the Licensed Dietitian Act fund created by this section>. The fee
26-3 amounts set by the board may be adjusted so that the total fees
26-4 collected are sufficient to cover the cost of administering this
26-5 Act. The board may not set a fee for an amount less than the
26-6 amount of that fee on September 1, 1993.
26-7 (b) The department shall receive and account for funds
26-8 derived under this Act. The funds shall be deposited in the State
26-9 Treasury to the credit of a special fund to be known as the
26-10 Licensed Dietitian and Nutritionist Act fund to be used only for
26-11 the administration of this Act.
26-12 (c) The <Not later than January 1 each year, the> department
26-13 shall file annually with <make a written report to> the governor<,
26-14 lieutenant governor,> and presiding officer of each <speaker of
26-15 the> house of the legislature a complete and detailed written
26-16 report <representatives> accounting for all funds received and
26-17 disbursed by the board or the department for the administration of
26-18 this Act during the preceding fiscal year. The annual report must
26-19 be in the form and reported in the time provided by the General
26-20 Appropriations Act.
26-21 SECTION 3.13. Section 9(a), Licensed Dietitian Act (Article
26-22 4512h, Vernon's Texas Civil Statutes), is amended to read as
26-23 follows:
26-24 (a) An applicant for a dietitian and nutritionist license
26-25 must submit a sworn application, accompanied by the application
26-26 fee.
26-27 SECTION 3.14. Section 10(a), Licensed Dietitian Act (Article
27-1 4512h, Vernon's Texas Civil Statutes), is amended to read as
27-2 follows:
27-3 (a) To qualify for a license under this Act, an applicant
27-4 must pass a competency examination. Examinations shall be prepared
27-5 or approved by the board and administered to qualified applicants
27-6 at least twice each calendar year. The board shall have the
27-7 written portion of the examination, if any, validated by an
27-8 independent testing professional.
27-9 SECTION 3.15. Section 11(a), Licensed Dietitian Act (Article
27-10 4512h, Vernon's Texas Civil Statutes), is amended to read as
27-11 follows:
27-12 (a) A person who meets the licensing qualifications under
27-13 this Act is entitled to receive a license certificate as a licensed
27-14 dietitian and nutritionist.
27-15 SECTION 3.16. Section 12, Licensed Dietitian Act (Article
27-16 4512h, Vernon's Texas Civil Statutes), is amended to read as
27-17 follows:
27-18 Sec. 12. License Expiration; Renewal. (a) A license is
27-19 valid for one year from the date it is issued and may be renewed
27-20 annually.
27-21 (b) The board <of health> by rule may adopt a system under
27-22 which licenses expire on various dates during the year. For the
27-23 year in which the license expiration date is changed, license fees
27-24 payable on the original expiration date shall be prorated on a
27-25 monthly basis so that each licensee shall pay only that portion of
27-26 the license fee that is allocable to the number of months during
27-27 which the license is valid. On renewal of the license on the new
28-1 expiration date, the total license renewal fee is payable.
28-2 (c) A person may renew an unexpired license by paying to the
28-3 board before the expiration date of the license the required
28-4 renewal fee <to the department before the expiration date of the
28-5 license>.
28-6 (d) If a person's license has been expired for <not more
28-7 than> 90 days or less, the person may renew the license by paying
28-8 to the board <department> the required renewal fee and a <penalty>
28-9 fee that is one-half of the examination <renewal> fee for the
28-10 license.
28-11 (e) If a person's license has been expired for longer <more>
28-12 than 90 days but less than one year <two years>, the person may
28-13 renew the license by paying to the board <department> all unpaid
28-14 renewal fees and a <penalty> fee that is equal to the examination
28-15 <renewal> fee for the license.
28-16 (f) If a person's license has been expired one year <two
28-17 years> or longer <more>, the person may not renew the license. The
28-18 person may obtain a new license by submitting to reexamination and
28-19 complying with the current requirements and procedures for
28-20 obtaining an original <a> license. However, the board may renew
28-21 without reexamination an expired license of a person who was
28-22 licensed in this state, moved to another state, and is currently
28-23 licensed and has been in practice in the other state for the two
28-24 years preceding application. The person must pay to the board a
28-25 fee that is equal to the examination fee for the license.
28-26 (g) At <The department shall notify each licensee in writing
28-27 of the license expiration date at> least 30 days before the
29-1 expiration of a person's license, the board shall send written
29-2 notice of the impending license expiration to the person at the
29-3 licensee's last known address according to the records of the board
29-4 <that date and shall obtain from the licensee a signed receipt
29-5 confirming receipt of notification>.
29-6 SECTION 3.17. The Licensed Dietitian Act (Article 4512h,
29-7 Vernon's Texas Civil Statutes) is amended by adding Section 12A to
29-8 read as follows:
29-9 Sec. 12A. CONTINUING EDUCATION. (a) The board by rule
29-10 shall establish a minimum number of hours of continuing education
29-11 required to renew a license under this Act. The board may assess
29-12 the continuing education needs of licensees and may require
29-13 licensees to attend continuing education courses specified by the
29-14 board.
29-15 (b) The board shall identify the key factors for the
29-16 competent performance by a licensee of the licensee's professional
29-17 duties. The board shall adopt a procedure to assess a licensee's
29-18 participation in continuing education programs.
29-19 SECTION 3.18. Section 13, Licensed Dietitian Act (Article
29-20 4512h, Vernon's Texas Civil Statutes), is amended to read as
29-21 follows:
29-22 Sec. 13. TEMPORARY <PROVISIONAL> LICENSE; INACTIVE STATUS.
29-23 (a) The board by rule may provide for the issuance of a temporary
29-24 license.
29-25 (b) The board by rule may provide for a person who holds a
29-26 license under this Act to be placed on inactive status. Rules
29-27 adopted under this section shall include a time limit for a
30-1 licensee to remain on inactive status. <A license to use the title
30-2 of provisional licensed dietitian may be issued by the board on the
30-3 filing of an application, payment of an application fee, and the
30-4 submission of evidence of the successful completion of the
30-5 educational requirement under Section 9 of this Act. The initial
30-6 application shall be signed by the supervising licensed dietitian.>
30-7 (c) <(b)> A temporarily <provisional> licensed dietitian and
30-8 nutritionist shall be under the supervision and direction of a
30-9 licensed dietitian and nutritionist.
30-10 (d) <(c)> A person qualified for a temporary <provisional>
30-11 license under this Act is entitled to receive a license certificate
30-12 as a temporarily <provisional> licensed dietitian and nutritionist.
30-13 A temporarily <provisional> licensed dietitian and nutritionist
30-14 must comply with Subsections (b) and (c) of Section 11 of this Act.
30-15 (e) <(d)> A temporary <provisional> license is valid for one
30-16 year from the date it is issued and may be renewed annually by the
30-17 same procedures established for renewal under Section 12 of this
30-18 Act if the application for renewal is signed by the supervising
30-19 licensed dietitian and nutritionist.
30-20 SECTION 3.19. Section 14, Licensed Dietitian Act (Article
30-21 4512h, Vernon's Texas Civil Statutes), is amended to read as
30-22 follows:
30-23 Sec. 14. PROVISIONAL LICENSE <RECIPROCITY>. (a) On receipt
30-24 of an application and application fee, the board may grant a
30-25 provisional license to <shall waive the examination requirement
30-26 for> an applicant who<, at the time of application>:
30-27 (1) is licensed in good standing as a dietitian and
31-1 nutritionist in another state, the District of Columbia, or a
31-2 territory of the United States that has licensing requirements that
31-3 are substantially equivalent to the requirements of this Act;
31-4 <registered by the Commission on Dietitic Registration as a
31-5 registered dietitian; or>
31-6 (2) has passed a national or other examination
31-7 recognized by the board relating to dietetics; and
31-8 (3) is sponsored by a person licensed by the board
31-9 under this Act with whom the provisional licensee may practice
31-10 under this section <holds a valid license or certificate as a
31-11 licensed or registered dietitian issued by another state with which
31-12 this state has a reciprocity agreement>.
31-13 (b) An applicant for a provisional license may be excused
31-14 from the requirement of Subsection (a)(3) of this section if the
31-15 board determines that compliance with that subsection constitutes a
31-16 hardship to the applicant.
31-17 (c) A provisional license is valid until the date the board
31-18 approves or denies the provisional licensee's application for a
31-19 license. The board shall issue a license under this Act to the
31-20 holder of a provisional license under this section if:
31-21 (1) the provisional licensee passes the examination
31-22 required by Section 10 of this Act;
31-23 (2) the board verifies that the provisional licensee
31-24 has the academic and experience requirements for a license under
31-25 this Act; and
31-26 (3) the provisional licensee satisfies any other
31-27 license requirements under this Act.
32-1 (d) The board must complete the processing of a provisional
32-2 licensee's application for a license not later than the 180th day
32-3 after the date the provisional license is issued.
32-4 SECTION 3.20. Section 15(a), Licensed Dietitian Act (Article
32-5 4512h, Vernon's Texas Civil Statutes), is amended to read as
32-6 follows:
32-7 (a) A person may not use the title or represent or imply
32-8 that he has the title of "licensed dietitian," "provisional
32-9 licensed dietitian," "licensed dietitian and nutritionist," or
32-10 "provisional licensed dietitian and nutritionist" <"licensed
32-11 dietitian" or "provisional licensed dietitian"> or use the letters
32-12 "LD," "PLD," "LDN," or "PLDN" <"LD" or "PLD"> and may not use any
32-13 facsimile of those titles in any manner to indicate or imply that
32-14 the person is a licensed dietitian, <or> provisional licensed
32-15 dietitian, licensed dietitian and nutritionist, or provisional
32-16 licensed dietitian and nutritionist, unless the person holds an
32-17 appropriate license issued under this Act.
32-18 SECTION 3.21. Section 16, Licensed Dietitian Act (Article
32-19 4512h, Vernon's Texas Civil Statutes), is amended to read as
32-20 follows:
32-21 Sec. 16. Complaint File and Status. (a) The board
32-22 <department> shall keep an information file about each complaint
32-23 filed with the board <related to a licensee>.
32-24 (b) If a written complaint is filed with the board that the
32-25 board or department has authority to resolve <relating to a
32-26 licensee>, the board <department>, at least as frequently as
32-27 quarterly and until final disposition of the complaint, shall
33-1 notify the parties to the complaint of the status of the complaint
33-2 unless the notice would jeopardize an undercover investigation
33-3 <until final disposition of the complaint>.
33-4 SECTION 3.22. The Licensed Dietitian Act (Article 4512h,
33-5 Vernon's Texas Civil Statutes) is amended by adding Section 16A to
33-6 read as follows:
33-7 Sec. 16A. COMPLAINT PROCEDURE IN GENERAL. (a) The board's
33-8 information file shall be kept current and contain a record for
33-9 each complaint of:
33-10 (1) all persons contacted in relation to the
33-11 complaint;
33-12 (2) a summary of findings made at each step of the
33-13 complaint process;
33-14 (3) an explanation of the legal basis and reason for a
33-15 complaint that is dismissed; and
33-16 (4) other relevant information.
33-17 (b) The board by rule shall adopt a form to standardize
33-18 information concerning complaints made to the board. The board by
33-19 rule shall prescribe information to be provided to a person when
33-20 the person files a complaint with the board.
33-21 (c) The board shall provide reasonable assistance to a
33-22 person who wishes to file a complaint with the board.
33-23 SECTION 3.23. The Licensed Dietitian Act (Article 4512h,
33-24 Vernon's Texas Civil Statutes) is amended by adding Section 16B to
33-25 read as follows:
33-26 Sec. 16B. COMPLAINT INVESTIGATION AND DISPOSITION. (a) The
33-27 board shall adopt rules concerning the investigation of a complaint
34-1 filed with the board. The rules adopted under this subsection
34-2 shall:
34-3 (1) distinguish between categories of complaints;
34-4 (2) ensure that complaints are not dismissed without
34-5 appropriate consideration;
34-6 (3) require that the board be advised of a complaint
34-7 that is dismissed and that a letter be sent to the person who filed
34-8 the complaint explaining the action taken on the dismissed
34-9 complaint;
34-10 (4) ensure that the person who filed the complaint has
34-11 an opportunity to explain the allegations made in the complaint;
34-12 and
34-13 (5) prescribe guidelines concerning the categories of
34-14 complaints that require the use of a private investigator and the
34-15 procedures for the board to obtain the services of a private
34-16 investigator.
34-17 (b) The board shall dispose of all complaints in a timely
34-18 manner. The board shall establish a schedule for conducting each
34-19 phase of a complaint that is under the control of the board not
34-20 later than the 30th day after the date the complaint is received by
34-21 the board. The schedule shall be kept in the information file for
34-22 the complaint and all parties shall be notified of the projected
34-23 time requirements for pursuing the complaint. A change in the
34-24 schedule must be noted in the complaint information file and all
34-25 parties to the complaint must be notified not later than the
34-26 seventh day after the date the change is made.
34-27 (c) The executive secretary of the board shall notify the
35-1 board of a complaint that extends beyond the time prescribed by the
35-2 board for resolving the complaint so that the board may take
35-3 necessary action on the complaint.
35-4 SECTION 3.24. The Licensed Dietitian Act (Article 4512h,
35-5 Vernon's Texas Civil Statutes) is amended by adding Section 16C to
35-6 read as follows:
35-7 Sec. 16C. INFORMAL PROCEEDINGS. (a) The board by rule
35-8 shall adopt procedures governing:
35-9 (1) informal disposition of a contested case under
35-10 Section 13(e), Administrative Procedure and Texas Register Act
35-11 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
35-12 subsequent amendments; and
35-13 (2) informal proceedings held in compliance with
35-14 Section 18(c), Administrative Procedure and Texas Register Act
35-15 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
35-16 subsequent amendments.
35-17 (b) Rules adopted under this section must provide the
35-18 complainant and the licensee an opportunity to be heard and must
35-19 require the presence of a representative of the office of the
35-20 attorney general to advise the board or board's employees.
35-21 SECTION 3.25. The Licensed Dietitian Act (Article 4512h,
35-22 Vernon's Texas Civil Statutes) is amended by adding Section 16D to
35-23 read as follows:
35-24 Sec. 16D. MONITORING OF LICENSEE. The board by rule shall
35-25 develop a system for monitoring licensee's compliance with the
35-26 requirements of this Act. Rules adopted under this section shall
35-27 include procedures for monitoring a licensee who is ordered by the
36-1 board to perform certain acts to ascertain that the licensee
36-2 performs the required acts and to identify and monitor licensees
36-3 who represent a risk to the public.
36-4 SECTION 3.26. Section 17, Licensed Dietitian Act (Article
36-5 4512h, Vernon's Texas Civil Statutes), is amended by amending
36-6 Subsection (a) and adding Subsections (e) and (f) to read as
36-7 follows:
36-8 (a) The board shall revoke or suspend a license, place on
36-9 probation a person whose <probate a> license has been suspended
36-10 <suspension>, or reprimand a licensee for <on proof of>:
36-11 (1) any violation of this Act; or
36-12 (2) any violation of a rule or code of ethics adopted
36-13 by the board.
36-14 (e) If a license suspension is probated, the board may
36-15 require the licensee to:
36-16 (1) report regularly to the board on matters that are
36-17 the basis of the probation;
36-18 (2) limit practice to the areas prescribed by the
36-19 board; or
36-20 (3) continue or review continuing professional
36-21 education until the licensee attains a degree of skill satisfactory
36-22 to the board in those areas that are the basis of the probation.
36-23 (f) The schedule of sanctions adopted by the board by rule
36-24 shall be used by the State Office of Administrative Hearings for
36-25 any sanction imposed as the result of a hearing conducted by that
36-26 office.
36-27 SECTION 3.27. Section 18, Licensed Dietitian Act (Article
37-1 4512h, Vernon's Texas Civil Statutes), is amended to read as
37-2 follows:
37-3 Sec. 18. DUTIES OF BOARD <OF HEALTH>. For the purpose of
37-4 implementing this Act, the board <of health>:
37-5 (1) shall request and receive any necessary assistance
37-6 of state educational institutions or other state agencies;
37-7 (2) shall prepare information of consumer interest
37-8 describing the regulatory functions of the board, the procedures by
37-9 which consumer complaints are filed and resolved, and the
37-10 profession of dietetics;
37-11 (3) shall prepare a registry of licensed dietitians
37-12 and nutritionists and provisional licensed dietitians and
37-13 nutritionists and make this information available to the general
37-14 public, licensees, and appropriate state agencies; and
37-15 (4) may request the attorney general or the
37-16 appropriate county or district attorney to institute a suit to
37-17 enjoin a violation of this Act in addition to any other action,
37-18 proceeding, or remedy authorized by law.
37-19 SECTION 3.28. Section 19, Licensed Dietitian Act (Article
37-20 4512h, Vernon's Texas Civil Statutes), is amended to read as
37-21 follows:
37-22 Sec. 19. Sunset provision. The Texas State Board of
37-23 Examiners of Dietitians and Nutritionists is subject to Chapter
37-24 325, Government Code (Texas Sunset Act). Unless continued in
37-25 existence as provided by that chapter, the board is abolished
37-26 September 1, 2005 <1993>.
37-27 ARTICLE 4. NURSING HOME ADMINISTRATION
38-1 SECTION 4.01. Section 2, Texas Nursing Home Administrators
38-2 Licensure Act (Article 4442d, Vernon's Texas Civil Statutes), is
38-3 amended to read as follows:
38-4 Sec. 2. Definitions. For the purposes of this Act and as
38-5 used herein:
38-6 (1) "Board" <"board"> means the Texas Board of
38-7 Health. <"Texas Board of Licensure for Nursing Home
38-8 Administrators";>
38-9 (2) "Nursing home administrator" <"nursing home
38-10 administrator"> means the person who administers, manages,
38-11 supervises, or is in general administrative charge of a nursing
38-12 home, irrespective of whether or not such individual has an
38-13 ownership interest in such home, and whether or not his functions
38-14 and duties are shared with one or more other persons.<;>
38-15 (3) "Nursing home" <"nursing home"> means any
38-16 institution or facility now or hereafter licensed as a "nursing
38-17 home" or "custodial care home" by the Texas State Department of
38-18 Public Health under the provisions of Chapter 242, Health and
38-19 Safety Code.<;>
38-20 (4) "Practice of nursing home administration"
38-21 <"practice of nursing home administration"> means the performance
38-22 of acts by any person which amounts to the administration,
38-23 management, supervision, and general administrative charge of a
38-24 nursing home, whether or not such functions and duties are shared
38-25 with one or more individuals.
38-26 (5) "Department" means the Texas Department of Health.
38-27 (6) "Committee" means the Advisory Committee for
39-1 Nursing Home Administrators.
39-2 SECTION 4.02. Section 3, Texas Nursing Home Administrators
39-3 Licensure Act (Article 4442d, Vernon's Texas Civil Statutes), is
39-4 amended to read as follows:
39-5 Sec. 3. ADVISORY COMMITTEE; ADMINISTRATION OF ACT <CREATION
39-6 AND COMPOSITION OF BOARD>. (1) There is hereby created within the
39-7 department the Advisory Committee <Texas Board of Licensure> for
39-8 Nursing Home Administrators which shall consist of nine (9)
39-9 members. Six <The Commissioner of Human Services, or his
39-10 designee, the Commissioner of Health, or his designee, and the
39-11 Executive Director of the Texas Department on Aging, or his
39-12 designee, shall be ex officio nonvoting members of the board. Such
39-13 designees shall be chosen from those representatives of the
39-14 respective departments who are actively assigned to and are engaged
39-15 in work in the nursing home field. One member shall be a physician
39-16 duly licensed by the State of Texas; one member shall be an
39-17 educator connected with a university program in public health or
39-18 medical or nursing home care administration within the State of
39-19 Texas or a psychiatrist whose field includes geriatric or
39-20 institutional psychiatry, or a psychologist whose field includes
39-21 clinical psychology or educational psychology. Four (4)> members
39-22 shall be <duly> licensed nursing home administrators of the State
39-23 of Texas and three<; however, at least one of these four shall
39-24 represent a nonproprietary nursing home. Three (3)> members must
39-25 be representatives of the general public who are not licensed under
39-26 this Act.
39-27 (2) Appointments to the committee <board> shall be made by
40-1 the board <Governor with the advice and consent of the senate>.
40-2 Appointments <to the board> shall be made without regard to the
40-3 race, color, disability <creed>, sex, religion, age, or national
40-4 origin of the appointees.
40-5 (3) At least one nursing home administrator member of the
40-6 committee <board> shall be connected with, and representative of, a
40-7 non-proprietary home <and one administrator member may, in addition
40-8 to being a qualified nursing home administrator, be also a duly
40-9 licensed professional registered nurse licensed by the Board of
40-10 Nurse Examiners of the State of Texas>.
40-11 (4) Members <Appointed members> of the committee <board>
40-12 serve staggered terms of six (6) years with the terms of three (3)
40-13 members expiring on January 31 of each odd-number year. Vacancies
40-14 on the committee <board> shall be filled by appointment for the
40-15 unexpired portion of the term.
40-16 (5) All <appointive> members of the committee <board> who
40-17 are nursing home administrators shall hold degrees from an
40-18 accredited four year college or university and shall have special
40-19 interest, background, and experience in the field of care for the
40-20 aged. They shall be residents of the State of Texas and citizens
40-21 of the United States and shall be of good character.
40-22 In lieu of the degree requirement above specified an
40-23 appointee who is a nursing home administrator representative may
40-24 nevertheless qualify by submitting to the board <Governor>
40-25 satisfactory evidence of two (2) years of practical experience as a
40-26 nursing home administrator for each year, whether one or more, of
40-27 four (4) years of college and such appointee shall receive credit
41-1 toward the person's <his> qualifications for each full year of
41-2 credits earned by the person <him> in an accredited college or
41-3 university.
41-4 (6) Appointive members may be removed by the board
41-5 <Governor> for just cause after notice and hearing.
41-6 (7) No person shall be eligible for appointment as a nursing
41-7 home administrator representative unless the person <he> is the
41-8 holder of a nursing home administrator's license under the
41-9 provisions of this Act and is currently serving as a nursing home
41-10 administrator.
41-11 (8) <No person shall be eligible for service on this board
41-12 as a nursing home administrator representative unless he is the
41-13 holder of a nursing home administrator's license under the
41-14 provisions of this Act and is currently serving as a nursing home
41-15 administrator.>
41-16 <(9)> All money collected under this Act shall be deposited
41-17 in the state treasury in a designated separate account in the name
41-18 of the department <board> and shall be subject to appropriation by
41-19 the legislature only for use by the department <board>.
41-20 (10) The Advisory Committee <Texas Board of Licensure> for
41-21 Nursing Home Administrators is subject to Chapter 325, Government
41-22 Code (Texas Sunset Act). Unless continued in existence as provided
41-23 by that chapter, the committee <board> is abolished and this Act
41-24 expires September 1, 2005 <1993>.
41-25 (11) The committee <board> is subject to the open meetings
41-26 law, Chapter 271, Acts of the 60th Legislature, Regular Session,
41-27 1967, as amended (Article 6252-17, Vernon's Texas Civil Statutes),
42-1 and the Administrative Procedure and Texas Register Act, as amended
42-2 (Article 6252-13a, Vernon's Texas Civil Statutes).
42-3 SECTION 4.03. Section 6, Texas Nursing Home Administrators
42-4 Licensure Act (Article 4442d, Vernon's Texas Civil Statutes), is
42-5 amended to read as follows:
42-6 Sec. 6. FUNCTIONS AND DUTIES OF THE BOARD AND DEPARTMENT.
42-7 (a) It shall be the function and duty of the board and department,
42-8 as appropriate, to:
42-9 (1) develop, impose, and enforce standards which must
42-10 be met by individuals in order to receive a license as a nursing
42-11 home administrator and standards which must be met by licensees,
42-12 which standards shall be designed to insure that nursing home
42-13 administrators will be individuals who are of good character and
42-14 are otherwise suitable, and who, by training or experience in the
42-15 fields of gerontology and institutional administration, are
42-16 qualified to serve as nursing home administrators and
42-17 satisfactorily perform the duties of nursing home administrators;
42-18 (2) develop and apply appropriate techniques,
42-19 including examinations and investigations, for determining whether
42-20 an individual meets such standards;
42-21 (3) issue licenses to individuals determined, after
42-22 application of such techniques, to meet such standards, and revoke
42-23 or suspend licenses previously issued by the board in any case
42-24 where the individual holding any such license is determined
42-25 substantially to have failed to conform to the requirements of such
42-26 standards;
42-27 (4) establish and carry out procedures designed to
43-1 insure that individuals licensed as nursing home administrators
43-2 will, during any period that they serve as such, comply with the
43-3 requirements of such standards;
43-4 (5) receive, investigate, and take appropriate action
43-5 with respect to, any charge or complaint filed with the board to
43-6 the effect that any individual licensed as a nursing home
43-7 administrator has failed to comply with the requirements of such
43-8 standards;
43-9 (6) conduct a continuing study and investigation of
43-10 nursing homes and administrators of nursing homes within the State
43-11 with a view to the improvement of the standards imposed for the
43-12 licensing of such administrators and of procedures and methods for
43-13 the enforcement of such standards with respect to administrators of
43-14 nursing homes who have been licensed as such;
43-15 (7) conduct or cause to be conducted, one or more
43-16 courses of instruction and training sufficient to meet the
43-17 requirements of this Act, make provisions for the conduct of such
43-18 courses and their accessibility to residents of this State, and
43-19 establish and collect reasonable fees to be deposited into the
43-20 general fund for instruction or training courses conducted by the
43-21 board in amounts determined by the board to be sufficient to cover
43-22 the costs of the courses, unless it finds that there are a
43-23 sufficient number of courses conducted by others within this State
43-24 to meet the needs of the State. In lieu thereof the board may
43-25 approve courses conducted within and without the State as
43-26 sufficient to meet the education and training requirements of this
43-27 Act; and
44-1 (8) on the written request of a person<, provide to
44-2 each individual> who fails an examination administered by the
44-3 department, the department shall furnish the person with <board> an
44-4 analysis of the person's <individual's> performance on the
44-5 examination.
44-6 (b) The department shall have the written portion of the
44-7 examination, if any, validated by an independent testing
44-8 professional.
44-9 (c) Not later than the 30th day after the date on which a
44-10 licensing examination is administered under this Act, the
44-11 department shall notify each examinee of the results of the
44-12 examination. However, if an examination is graded or reviewed by a
44-13 national testing service, the department shall notify examinees of
44-14 the results of the examination not later than the 14th day after
44-15 the date on which the department receives the results from the
44-16 testing service. If the notice of examination results graded or
44-17 reviewed by a national testing service will be delayed for longer
44-18 than 90 days after the examination date, the department shall
44-19 notify the examinee of the reason for the delay before the 90th
44-20 day.
44-21 SECTION 4.04. Section 10, Texas Nursing Home Administrators
44-22 Licensure Act (Article 4442d, Vernon's Texas Civil Statutes), is
44-23 amended to read as follows:
44-24 Sec. 10. Licenses and Fees. (1) The department <Board>
44-25 shall license nursing home administrators in accordance with rules
44-26 and regulations issued, and from time to time revised by it. A
44-27 nursing home administrator's license shall not be transferable and
45-1 shall be valid for the period issued until surrendered for
45-2 cancellation or suspended or revoked for violation of this Act or
45-3 rules and regulations issued pursuant hereto.
45-4 (2) <Every holder of a nursing home administrator's license
45-5 shall renew it biennially, by making application to the board. The
45-6 license remains valid and is subject to renewal for 30 days after
45-7 the expiration date of the license. The board shall notify each
45-8 person licensed under this Act of the expiration date of the
45-9 person's license and the amount of the fee that is required for its
45-10 renewal. The notice shall be mailed at least 30 days before the
45-11 expiration date of the license. A person renews an unexpired
45-12 license or a license that has been expired for 30 days or less by
45-13 paying to the board the renewal fee. A person renews a license
45-14 that has been expired for more than 30 days but less than one year
45-15 by paying to the board the renewal fee plus $50. A person may not
45-16 renew a license that has been expired for one year or more, but the
45-17 person may obtain a new license by applying for the license in the
45-18 manner that a person applies for an original license.> Renewals of
45-19 licenses shall be granted as a matter of course, unless the
45-20 department <board> finds, after due notice and hearing, that the
45-21 applicant has acted or failed to act in such a manner or under
45-22 circumstances, as would constitute grounds for suspension or
45-23 revocation of a license.
45-24 (3) Each person licensed as a nursing home administrator
45-25 shall pay an initial license fee to be fixed by the board <which
45-26 shall not exceed $150>. Renewal licenses shall be issued
45-27 biennially at a fee to be set by the board <which shall not exceed
46-1 $150 for the biennium>. Reasonable fees shall be set by the board
46-2 for the issuance of copies of public records in its office as well
46-3 as for certificates or transcripts and duplicates of lost
46-4 instruments. Each applicant for examination and license shall
46-5 accompany the application with an examination fee set by the board
46-6 <not to exceed $150> which shall not be refundable, for
46-7 investigation, processing, and testing purposes. Upon the
46-8 certification by any department, division, board or agency of the
46-9 State of Texas of the necessity therefor, all examination fees and
46-10 license fees provided for herein shall be waived for any employee
46-11 of such state entity so long as such person remains an employee of
46-12 the State of Texas and does not serve as a nursing home
46-13 administrator of a nursing home operated other than by such state
46-14 entity. The board shall set the fees in amounts that are
46-15 reasonable and necessary to produce sufficient money for
46-16 administering this Act. The fee amounts set by the board may be
46-17 adjusted so that the total fees collected are sufficient to cover
46-18 the cost of administering this Act. The board may not set a fee
46-19 for an amount less than the amount of that fee on September 1,
46-20 1993.
46-21 (4) The department <board> may issue a nursing home
46-22 administrator's license <for the regular fee> to any person who
46-23 holds a current license as a nursing home administrator from
46-24 another jurisdiction as provided by Section 10D of this Act<,
46-25 provided that the board finds that the standards for licensure in
46-26 such other jurisdiction are at least the substantial equivalent of
46-27 those prevailing in this State; and that the applicant is otherwise
47-1 qualified; and that the other state gives similar recognition and
47-2 endorsement to nursing home administrators licenses of the State of
47-3 Texas>.
47-4 (5) The department <board> shall have authority to receive
47-5 and disburse funds received pursuant to Section 1908(e)(1) of the
47-6 Social Security Act or from any other Federal source of funds or
47-7 grants for the furtherance of board duties and responsibilities
47-8 hereunder.
47-9 SECTION 4.05. The Texas Nursing Home Administrators
47-10 Licensure Act (Article 4442d, Vernon's Texas Civil Statutes) is
47-11 amended by adding Section 10B to read as follows:
47-12 Sec. 10B. TEMPORARY LICENSE; INACTIVE STATUS. (a) The
47-13 board by rule may provide for the issuance of a temporary license.
47-14 (b) The board by rule may provide for a person who holds a
47-15 license under this Act to be placed on inactive status. Rules
47-16 adopted under this section shall include a time limit for a
47-17 licensee to remain on inactive status.
47-18 SECTION 4.06. The Texas Nursing Home Administrators
47-19 Licensure Act (Article 4442d, Vernon's Texas Civil Statutes) is
47-20 amended by adding Section 10C to read as follows:
47-21 Sec. 10C. MANDATORY CONTINUING EDUCATION. (a) The board by
47-22 rule shall establish a minimum number of hours of continuing
47-23 education required to renew a license under this Act. The
47-24 department may assess the continuing education needs of licensees
47-25 and may require licensees to attend continuing education courses
47-26 specified by the department.
47-27 (b) The department shall identify the key factors for the
48-1 competent performance by a licensee of the licensee's professional
48-2 duties. The board shall adopt a procedure to assess a licensee's
48-3 participation in continuing education programs.
48-4 SECTION 4.07. The Texas Nursing Home Administrators
48-5 Licensure Act (Article 4442d, Vernon's Texas Civil Statutes) is
48-6 amended by adding Section 10D to read as follows:
48-7 Sec. 10D. PROVISIONAL LICENSE. (a) On application, the
48-8 board shall grant a provisional license under this Act. An
48-9 applicant for a provisional license under this section must:
48-10 (1) be licensed in good standing as a nursing home
48-11 administrator in another state, the District of Columbia, or a
48-12 territory of the United States that has licensing requirements that
48-13 are substantially equivalent to the requirements of this Act;
48-14 (2) have passed a national or other examination
48-15 recognized by the board relating to the practice of nursing home
48-16 administration; and
48-17 (3) be sponsored by a person licensed under this Act
48-18 with whom the provisional licensee may practice under this section.
48-19 (b) An applicant for a provisional license may be excused
48-20 from the requirement of Subsection (a)(3) of this section if the
48-21 board determines that compliance with that subsection constitutes a
48-22 hardship to the applicant.
48-23 (c) A provisional license is valid until the date the board
48-24 approves or denies the provisional licensee's application for a
48-25 license. The board shall issue a license under this Act to the
48-26 holder of a provisional license under this section if:
48-27 (1) the provisional licensee passes the examination
49-1 required by Section 6 of this Act;
49-2 (2) the board verifies that the provisional licensee
49-3 has the academic and experience requirements for a license under
49-4 this Act; and
49-5 (3) the provisional licensee satisfies any other
49-6 license requirements under this Act.
49-7 (d) The board must complete the processing of a provisional
49-8 licensee's application for a license not later than the 180th day
49-9 after the date the provisional license is issued.
49-10 SECTION 4.08. The Texas Nursing Home Administrators
49-11 Licensure Act (Article 4442d, Vernon's Texas Civil Statutes) is
49-12 amended by adding Section 10E to read as follows:
49-13 Sec. 10E. LICENSE RENEWAL. (a) A person may renew an
49-14 unexpired license by paying to the board before the expiration of
49-15 the license the required renewal fee.
49-16 (b) If a person's license has been expired for 90 days or
49-17 less, the person may renew the license by paying to the board the
49-18 required renewal fee and a fee that is one-half of the examination
49-19 fee for the license.
49-20 (c) If a person's license has been expired for longer than
49-21 90 days but less than one year, the person may renew the license by
49-22 paying to the board all unpaid renewal fees and a fee that is equal
49-23 to the examination fee for the license.
49-24 (d) If a person's license has been expired for one year or
49-25 longer, the person may not renew the license. The person may
49-26 obtain a new license by submitting to reexamination and complying
49-27 with the requirements and procedures for obtaining an original
50-1 license. However, the board may renew without reexamination an
50-2 expired license of a person who was licensed in this state, moved
50-3 to another state, and is currently licensed and has been in
50-4 practice in the other state for the two years preceding
50-5 application. The person must pay to the board a fee that is equal
50-6 to the examination fee for the license.
50-7 (e) At least 30 days before the expiration of a person's
50-8 license, the board shall send written notice of the impending
50-9 license expiration to the person at the licensee's last known
50-10 address according to the records of the board.
50-11 SECTION 4.09. Sections 11(1), (2), and (5)-(11), Texas
50-12 Nursing Home Administrators Licensure Act (Article 4442d, Vernon's
50-13 Texas Civil Statutes), are amended to read as follows:
50-14 (1) The department <board> shall be authorized to revoke,
50-15 suspend, or refuse to renew<,> a nursing home administrator's
50-16 license, assess an administrative penalty, issue a written
50-17 reprimand, require participation in continuing education, or place
50-18 a licensed nursing home administrator on probation after due notice
50-19 and hearing upon the following grounds or any of them:
50-20 (a) upon proof that such licensee has wilfully or
50-21 repeatedly violated any of the provisions of this Act or the rules
50-22 adopted in accordance therewith;
50-23 (b) upon proof that such licensee has wilfully or
50-24 repeatedly acted in a manner inconsistent with the health and
50-25 safety of the patients of the home of which he is administrator;
50-26 (c) upon proof that the licensee obtained or attempted
50-27 to obtain a license through misrepresentation or deceit, or by
51-1 making a material misstatement of fact in a license application;
51-2 (d) upon proof of the intemperate use of alcohol or
51-3 drugs which in the opinion of the board creates a hazard to
51-4 patients;
51-5 (e) upon proof of a judgment of a court of competent
51-6 jurisdiction finding the licensee insane;
51-7 (f) upon proof that such licensee has been convicted
51-8 in a court of competent jurisdiction of a misdemeanor or a felony
51-9 involving moral turpitude; and
51-10 (g) upon proof that the licensee has been negligent or
51-11 incompetent in his duties as a nursing home administrator.
51-12 (2) The department <board> shall have jurisdiction to hear
51-13 all disciplinary charges brought under the provisions of this Act
51-14 against persons licensed as nursing home administrators and upon
51-15 such hearings shall determine such charges upon their merits.
51-16 Proceedings under this Act shall be begun by filing with the
51-17 department <board> written charges under oath. Such charges may be
51-18 preferred by any person and after notice in writing of not less
51-19 than fifteen (15) full days, stating the place and date of the
51-20 hearing, accompanied by a copy of the complaint or charges, the
51-21 board, or a hearing examiner designated by the board <majority
51-22 thereof>, shall hold a hearing on said charges, cause a written
51-23 record to be made of the evidence given at the hearing, accord the
51-24 person charged a right to present evidence, be represented by an
51-25 attorney, and to cross-examine the witnesses. In this connection
51-26 the board shall be authorized to issue subpoenas for witnesses at
51-27 the hearing, either at the request of the person cited or on behalf
52-1 of the board or its representative; to compel the attendance of
52-2 witnesses, and administer oaths to witnesses. Disobedience of a
52-3 subpoena duly issued by the board or by its executive director
52-4 under its direction, shall constitute a contempt of the board which
52-5 shall be enforceable by any district court sitting in the county in
52-6 which the hearing is being held upon petition of the board and the
52-7 presentation to the court of evidence of wilful disobedience and if
52-8 the district judge is of the opinion and finds that the subpoena
52-9 was wilfully disobeyed, such judge shall be authorized to punish a
52-10 subpoenaed witness in like manner and to the extent provided in
52-11 like cases in civil actions in the district courts of Texas.
52-12 (5) The schedule of sanctions adopted by the board by rule
52-13 shall be used by the department for any sanction imposed as the
52-14 result of a hearing conducted under this Act. <If a written
52-15 complaint is filed with the board or the Texas Board of Health
52-16 relating to a licensee under this Act, the board, at least as
52-17 frequently as quarterly, shall notify the complainant of the status
52-18 of the complaint until the complaint is finally resolved.>
52-19 <(6) The board must within 31 days from the date of filing
52-20 of the complaint determine whether a hearing shall be held on such
52-21 complaint or whether such complaint shall be dismissed and shall
52-22 notify both the person who filed the complaint and the person
52-23 against whom the complaint has been filed of the board's decision.>
52-24 <(7) If the board determines that a hearing should be held
52-25 on a complaint, the board shall designate a hearing officer to
52-26 conduct the hearing on the complaint. The hearing shall be held
52-27 within 61 days from the date that the written complaint was filed
53-1 unless such time is extended in writing by the board.>
53-2 <(8) The hearing officer shall keep a complete record of the
53-3 hearing and shall transmit the record to the board when completed.>
53-4 <(9) The hearing officer shall forward to the board the
53-5 complete record of the hearing not later than 30 days from the date
53-6 of the hearing along with the hearing officer's recommendations
53-7 concerning what disciplinary action, if any, should be taken by the
53-8 board with respect to the complaint.>
53-9 <(10) The board shall take action on such complaint by
53-10 written order not later than the 120th day following the filing of
53-11 the complaint, unless the date for hearing was delayed pursuant to
53-12 Subsection (7) of this section, in which case the deadline for the
53-13 order is extended accordingly. Copies of the order and the record
53-14 of the hearing shall be filed together in the office of the board,
53-15 indexed, and made available for public inspection.>
53-16 <(11) The board shall maintain an information file on each
53-17 complaint it receives.>
53-18 SECTION 4.10. The Texas Nursing Home Administrators
53-19 Licensure Act (Article 4442d, Vernon's Texas Civil Statutes) is
53-20 amended by adding Section 11B to read as follows:
53-21 Sec. 11B. ADMINISTRATIVE PENALTIES. (a) The department may
53-22 assess an administrative penalty against a person holding a license
53-23 under this Act who violates a provision of this Act or a rule
53-24 adopted by the board under this Act as provided by this section.
53-25 (b) The penalty for each violation may be in an amount not
53-26 to exceed $2,500. Each day a violation continues or occurs may be
53-27 considered a separate violation for purposes of penalty assessment.
54-1 (c) In determining the amount of the penalty, the
54-2 commissioner shall consider:
54-3 (1) the seriousness of the violation, including the
54-4 nature, circumstances, extent, and gravity of the prohibited acts
54-5 and the hazard or potential hazard posed to the health or safety of
54-6 the public;
54-7 (2) the economic damage to property or the environment
54-8 caused by the violation;
54-9 (3) the history of previous violations;
54-10 (4) the amount necessary to deter future violations;
54-11 (5) efforts to correct the violation; and
54-12 (6) any other matter that justice may require.
54-13 (d) If, after investigation of a possible violation and the
54-14 facts surrounding that possible violation, the commissioner
54-15 determines that a violation has occurred, the commissioner may
54-16 issue a violation report stating the facts on which the conclusion
54-17 that a violation occurred is based, recommending that an
54-18 administrative penalty under this section be imposed on the person
54-19 charged and recommending the amount of that proposed penalty. The
54-20 commissioner shall base the recommended amount of the proposed
54-21 penalty on the seriousness of the violation determined by
54-22 consideration of the factors set forth in Subsection (c) of this
54-23 section.
54-24 (e) Not later than the 14th day after the date on which the
54-25 report is issued, the commissioner shall give written notice of the
54-26 report to the person charged. The notice shall include a brief
54-27 summary of the charges, a statement of the amount of the penalty
55-1 recommended, and a statement of the right of the person charged to
55-2 a hearing on the occurrence of the violation or the amount of the
55-3 penalty, or both the occurrence of the violation and the amount of
55-4 the penalty.
55-5 (f) Not later than the 20th day after the date on which
55-6 notice is received, the person charged may accept the determination
55-7 of the commissioner made under Subsection (d) of this section,
55-8 including the recommended penalty, or make a written request for a
55-9 hearing on the determination.
55-10 (g) If the person charged with the violation accepts the
55-11 determination of the commissioner, the board shall issue an order
55-12 approving the determination and ordering the payment of the
55-13 recommended penalty.
55-14 (h) If the person charged requests a hearing or fails to
55-15 timely respond to the notice, the commissioner shall set a hearing
55-16 and give notice of the hearing. The hearing shall be held by a
55-17 hearing examiner designated by the department. The hearing
55-18 examiner shall make findings of fact and conclusions of law and
55-19 promptly issue to the department a proposal for decision as to the
55-20 occurrence of the violation, including a recommendation as to the
55-21 amount of the proposed penalty if a penalty is warranted. Based on
55-22 the findings of fact, conclusions of law, and recommendations of
55-23 the hearing examiner, the board by order may find a violation has
55-24 occurred and may assess a penalty or may find that no violation has
55-25 occurred. All proceedings under this subsection are subject to the
55-26 Administrative Procedure and Texas Register Act (Article 6252-13a,
55-27 Vernon's Texas Civil Statutes) and its subsequent amendments.
56-1 (i) The commissioner shall give notice of the board's order
56-2 to the person charged. The notice shall include:
56-3 (1) the findings of fact and conclusions of law
56-4 separately stated;
56-5 (2) the amount of the penalty ordered, if any;
56-6 (3) a statement of the right of the person charged to
56-7 judicial review of the board's order, if any; and
56-8 (4) other information required by law.
56-9 (j) Within the 30-day period immediately following the day
56-10 on which the order becomes final as provided by Section 16(c),
56-11 Administrative Procedure and Texas Register Act (Article 6252-13a,
56-12 Vernon's Texas Civil Statutes), and its subsequent amendments, the
56-13 person charged with the penalty shall:
56-14 (1) pay the penalty in full; or
56-15 (2) if the person files a petition for judicial review
56-16 contesting either the amount of the penalty or the fact of the
56-17 violation or contesting both the fact of the violation and the
56-18 amount of the penalty:
56-19 (A) forward the amount to the commissioner for
56-20 placement in an escrow account; or
56-21 (B) in lieu of payment into escrow, post with
56-22 the commissioner a supersedeas bond in a form approved by the
56-23 commissioner for the amount of the penalty, the bond to be
56-24 effective until all judicial review of the order or decision is
56-25 final.
56-26 (k) If a person charged is financially unable to either
56-27 forward the amount of the penalty for placement in an escrow
57-1 account or post a supersedeas bond for the amount of the penalty,
57-2 the person may satisfy the requirements of Subsection (j)(2) of
57-3 this section by filing with the commissioner an affidavit sworn by
57-4 the person charged, stating that the person is financially unable
57-5 to either forward the amount of the penalty or post a bond.
57-6 (l) Failure to forward the money to or to post the bond or
57-7 file the affidavit with the commissioner within the time provided
57-8 by Subsection (j) of this section results in a waiver of all legal
57-9 rights to judicial review. Also, if the person charged fails to
57-10 pay the penalty in full as provided under Subsection (j)(1) of this
57-11 section or forward the money, post the bond, or file the affidavit
57-12 as provided by Subsection (j) or (k) of this section, the
57-13 commissioner may forward the matter to the attorney general for
57-14 enforcement.
57-15 (m) Judicial review of the order or decision of the
57-16 commission assessing the penalty shall be under the substantial
57-17 evidence rule and shall be instituted by filing a petition with a
57-18 district court in Travis County, as provided by Section 19,
57-19 Administrative Procedure and Texas Register Act (Article 6252-13a,
57-20 Vernon's Texas Civil Statutes), and its subsequent amendments.
57-21 (n) If the penalty is reduced or not assessed by the court,
57-22 the commissioner shall remit to the person charged the appropriate
57-23 amount plus accrued interest if the penalty has been paid or shall
57-24 execute a release of the bond if a supersedeas bond has been
57-25 posted. The accrued interest on amounts remitted by the
57-26 commissioner under this subsection shall be paid at a rate equal to
57-27 the rate charged on loans to depository institutions by the New
58-1 York Federal Reserve Bank and shall be paid for the period
58-2 beginning on the date the penalty is paid to the commissioner under
58-3 Subsection (j) of this section and ending on the date the penalty
58-4 is remitted.
58-5 (o) A penalty collected under this section for a violation
58-6 by a person licensed or permitted under this code shall be
58-7 deposited in the state general revenue fund.
58-8 SECTION 4.11. The Texas Nursing Home Administrators
58-9 Licensure Act (Article 4442d, Vernon's Texas Civil Statutes) is
58-10 amended by adding Section 11C to read as follows:
58-11 Sec. 11C. CIVIL PENALTY. A person who violates this Act is
58-12 liable to the state for a civil penalty of $1,000 for each day of
58-13 violation. At the request of the department, the attorney general
58-14 shall bring an action to recover a civil penalty established by
58-15 this section.
58-16 SECTION 4.12. The Texas Nursing Home Administrators
58-17 Licensure Act (Article 4442d, Vernon's Texas Civil Statutes) is
58-18 amended by adding Section 11D to read as follows:
58-19 Sec. 11D. WRITTEN REPRIMAND AND CONTINUING EDUCATION AS
58-20 SANCTIONS. In addition to the other disciplinary actions
58-21 authorized under this Act, the department may issue a written
58-22 reprimand to a licensee who violates this Act or require that a
58-23 licensee who violates this Act participate in continuing education
58-24 programs. The department shall specify the continuing education
58-25 programs that may be attended and the number of hours that must be
58-26 completed by an individual licensee to fulfill the requirements of
58-27 this section.
59-1 SECTION 4.13. The Texas Nursing Home Administrators
59-2 Licensure Act (Article 4442d, Vernon's Texas Civil Statutes) is
59-3 amended by adding Section 11E to read as follows:
59-4 Sec. 11E. TERMS OF PROBATION. If a license suspension is
59-5 probated, the department may require the licensee to:
59-6 (1) report regularly to the department on matters that
59-7 are the basis of the probation;
59-8 (2) limit practice to the areas prescribed by the
59-9 department; or
59-10 (3) continue or review continuing professional
59-11 education until the licensee attains a degree of skill satisfactory
59-12 to the department in those areas that are the basis of the
59-13 probation.
59-14 SECTION 4.14. The Texas Nursing Home Administrators
59-15 Licensure Act (Article 4442d, Vernon's Texas Civil Statutes) is
59-16 amended by adding Section 11F to read as follows:
59-17 Sec. 11F. COMPLAINT PROCEDURE IN GENERAL. (a) The
59-18 department shall keep an information file about each complaint
59-19 filed with the department. The department's information file shall
59-20 be kept current and contain a record for each complaint of:
59-21 (1) all persons contacted in relation to the
59-22 complaint;
59-23 (2) a summary of findings made at each step of the
59-24 complaint process;
59-25 (3) an explanation of the legal basis and reason for a
59-26 complaint that is dismissed; and
59-27 (4) other relevant information.
60-1 (b) If a written complaint is filed with the department that
60-2 the department has authority to resolve, the department, at least
60-3 as frequently as quarterly and until final disposition of the
60-4 complaint, shall notify the parties to the complaint of the status
60-5 of the complaint unless the notice would jeopardize an undercover
60-6 investigation.
60-7 (c) The board by rule shall adopt a form to standardize
60-8 information concerning complaints made to the department. The
60-9 board by rule shall prescribe information to be provided to a
60-10 person when the person files a complaint with the department.
60-11 (d) The department shall provide reasonable assistance to a
60-12 person who wishes to file a complaint with the department.
60-13 SECTION 4.15. The Texas Nursing Home Administrators
60-14 Licensure Act (Article 4442d, Vernon's Texas Civil Statutes) is
60-15 amended by adding Section 11G to read as follows:
60-16 Sec. 11G. COMPLAINT INVESTIGATION AND DISPOSITION. (a) The
60-17 board shall adopt rules concerning the investigation of a complaint
60-18 filed with the department. The rules adopted under this subsection
60-19 shall:
60-20 (1) distinguish between categories of complaints;
60-21 (2) ensure that complaints are not dismissed without
60-22 appropriate consideration;
60-23 (3) require that the department be advised of a
60-24 complaint that is dismissed and that a letter be sent to the person
60-25 who filed the complaint explaining the action taken on the
60-26 dismissed complaint;
60-27 (4) ensure that the person who filed the complaint has
61-1 an opportunity to explain the allegations made in the complaint;
61-2 and
61-3 (5) prescribe guidelines concerning the categories of
61-4 complaints that require the use of a private investigator and the
61-5 procedures for the department to obtain the services of a private
61-6 investigator.
61-7 (b) The department shall dispose of all complaints in a
61-8 timely manner. The department shall establish a schedule for
61-9 conducting each phase of a complaint that is under the control of
61-10 the department not later than the 30th day after the date the
61-11 complaint is received by the department. The schedule shall be
61-12 kept in the information file for the complaint and all parties
61-13 shall be notified of the projected time requirements for pursuing
61-14 the complaint. A change in the schedule must be noted in the
61-15 complaint information file and all parties to the complaint must be
61-16 notified not later than the seventh day after the date the change
61-17 is made.
61-18 (c) The commissioner shall notify the board of a complaint
61-19 that extends beyond the time prescribed by the board for resolving
61-20 the complaint so that the board may take necessary action on the
61-21 complaint.
61-22 SECTION 4.16. The Texas Nursing Home Administrators
61-23 Licensure Act (Article 4442d, Vernon's Texas Civil Statutes) is
61-24 amended by adding Section 11H to read as follows:
61-25 Sec. 11H. INFORMAL PROCEEDINGS. (a) The board by rule
61-26 shall adopt procedures governing:
61-27 (1) informal disposition of a contested case under
62-1 Section 13(e), Administrative Procedure and Texas Register Act
62-2 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
62-3 subsequent amendments; and
62-4 (2) informal proceedings held in compliance with
62-5 Section 18(c), Administrative Procedure and Texas Register Act
62-6 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
62-7 subsequent amendments.
62-8 (b) Rules adopted under this section must provide the
62-9 complainant and the licensee an opportunity to be heard and must
62-10 require the presence of a representative of the office of the
62-11 attorney general to advise the department or department's
62-12 employees.
62-13 SECTION 4.17. The Texas Nursing Home Administrators
62-14 Licensure Act (Article 4442d, Vernon's Texas Civil Statutes) is
62-15 amended by adding Section 11I to read as follows:
62-16 Sec. 11I. MONITORING OF LICENSEE. The board by rule shall
62-17 develop a system for monitoring licensee's compliance with the
62-18 requirements of this Act. Rules adopted under this section shall
62-19 include procedures for monitoring a licensee who is ordered by the
62-20 department to perform certain acts to ascertain that the licensee
62-21 performs the required acts and to identify and monitor licensees
62-22 who represent a risk to the public.
62-23 ARTICLE 5. EFFECTIVE DATE, TRANSITION, AND EMERGENCY
62-24 SECTION 5.01. This Act takes effect September 1, 1993.
62-25 SECTION 5.02. (a) A member of the Midwifery Board
62-26 immediately before the effective date of this Act continues to
62-27 serve as a member of the board on or after the effective date of
63-1 this Act for the remainder of the member's term. The Texas Board
63-2 of Health shall make appointments to the board on or after the
63-3 effective date of this Act as terms of members of the board expire
63-4 and vacancies occur on the board to accomplish, as soon as
63-5 possible, the membership plan for the board established by Section
63-6 3, Texas Midwifery Act (Article 4512i, Vernon's Texas Civil
63-7 Statutes), as amended by this Act.
63-8 (b) The Texas Board of Licensure for Nursing Home
63-9 Administrators is abolished on the effective date of this Act. As
63-10 soon as possible after the effective date of this Act, the Texas
63-11 Board of Health shall appoint the initial members of the Advisory
63-12 Committee for Nursing Home Administrators. In making the initial
63-13 appointments, the board shall designate members to serve terms as
63-14 follows:
63-15 (1) two licensed nursing home administrator members
63-16 and one public member serve terms expiring February 1, 1995;
63-17 (2) two licensed nursing home administrator members
63-18 and one public member serve terms expiring February 1, 1997; and
63-19 (3) two licensed nursing home administrator members
63-20 and one public member serve terms expiring February 1, 1999.
63-21 (c) On the effective date of this Act, the Texas Board of
63-22 Health assumes the functions of the Texas Board of Licensure for
63-23 Nursing Home Administrators. The obligations, rights, contracts,
63-24 records and other property, and personnel of, and unspent money
63-25 appropriated to or for the Texas Board of Licensure for Nursing
63-26 Home Administrators are transferred to the Texas Board of Health.
63-27 The rules of the abolished board are continued in effect as rules
64-1 of the Texas Board of Health until superseded by rule of the Texas
64-2 Board of Health. A license in effect that was issued by the
64-3 abolished board is continued in effect as a license of the Texas
64-4 Department of Health. A complaint, investigation, or other
64-5 proceeding pending before the abolished board is transferred
64-6 without change in status to the Texas Department of Health. Any
64-7 reference in law to the Texas Board of Licensure for Nursing Home
64-8 Administrators means the Texas Board of Health or the Texas
64-9 Department of Health, as appropriate.
64-10 SECTION 5.03. (a) The changes in law made by this Act
64-11 relating to a penalty that may be imposed apply only to a violation
64-12 that occurs on or after the effective date of this Act. A
64-13 violation occurs on or after the effective date of this Act only if
64-14 each element of the violation occurs on or after that date. A
64-15 violation that occurs before the effective date of this Act is
64-16 governed by the law in effect on the date the violation occurred,
64-17 and the former law is continued in effect for that purpose.
64-18 (b) The changes in law made by this Act to the
64-19 qualifications of members of the Midwifery Board or the Texas State
64-20 Board of Examiners of Dietitians do not affect the entitlement of a
64-21 member appointed before September 1, 1993, to continue to hold
64-22 office on the board for the term for which the member was
64-23 appointed. The changes in the qualifications apply only to a
64-24 member appointed on or after September 1, 1993.
64-25 SECTION 5.04. Section 4, Texas Nursing Home Administrators
64-26 Licensure Act (Article 4442d, Vernon's Texas Civil Statutes), is
64-27 repealed.
65-1 SECTION 5.05. The importance of this legislation and the
65-2 crowded condition of the calendars in both houses create an
65-3 emergency and an imperative public necessity that the
65-4 constitutional rule requiring bills to be read on three several
65-5 days in each house be suspended, and this rule is hereby suspended.