1-1 By: Moncrief S.B. No. 674
1-2 (In the Senate - Filed March 8, 1993; March 9, 1993, read
1-3 first time and referred to Committee on Health and Human Services;
1-4 May 3, 1993, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 6, Nays 0; May 3, 1993,
1-6 sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Zaffirini x
1-10 Ellis x
1-11 Madla x
1-12 Moncrief x
1-13 Nelson x
1-14 Patterson x
1-15 Shelley x
1-16 Truan x
1-17 Wentworth x
1-18 COMMITTEE SUBSTITUTE FOR S.B. No. 674 By: Moncrief
1-19 A BILL TO BE ENTITLED
1-20 AN ACT
1-21 relating to the regulation of health professions, including the
1-22 profession of nursing facility administration, and to the abolition
1-23 of the Texas Board of Licensure for Nursing Home Administrators;
1-24 providing penalties.
1-25 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-26 ARTICLE 1. HEALTH PROFESSIONS COUNCIL
1-27 SECTION 1.01. Title 71, Revised Statutes, is amended by
1-28 adding Article 4512p to read as follows:
1-29 Art. 4512p. HEALTH PROFESSIONS COUNCIL
1-30 Sec. 1. HEALTH PROFESSIONS COUNCIL. (a) The Health
1-31 Professions Council shall administer the functions provided by this
1-32 article and provide a means for the boards represented on the
1-33 council to coordinate the boards' administrative and regulatory
1-34 efforts.
1-35 (b) The council consists of the executive director or the
1-36 equivalent official or the designee of the executive director or
1-37 the equivalent official of:
1-38 (1) the Texas Board of Chiropractic Examiners;
1-39 (2) the State Board of Dental Examiners;
1-40 (3) the Texas Optometry Board;
1-41 (4) the State Board of Pharmacy;
1-42 (5) the Texas State Board of Podiatry Examiners;
1-43 (6) the State Board of Veterinary Medical Examiners;
1-44 (7) the Texas State Board of Medical Examiners;
1-45 (8) the Board of Nurse Examiners;
1-46 (9) the Texas State Board of Examiners of
1-47 Psychologists;
1-48 (10) the Board of Vocational Nurse Examiners;
1-49 (11) the entity that regulates the practice of
1-50 physical therapy; and
1-51 (12) the entity that regulates the practice of
1-52 occupational therapy.
1-53 (c) The council shall elect from the council's members a
1-54 presiding officer and assistant presiding officer to conduct the
1-55 business of the council.
1-56 (d) A member of the council is not entitled to compensation
1-57 or a per diem for the member's service on the council.
1-58 (e) The council may employ staff or designate staff for the
1-59 council from the employees of the boards listed by Subsection (b)
1-60 of this section as necessary for the council to carry out the
1-61 council's responsibilities.
1-62 (f) The council shall adopt an annual budget that is funded
1-63 by a prorated assessment paid by the boards listed by Subsection
1-64 (b) of this section.
1-65 Sec. 2. TOLL-FREE TELEPHONE COMPLAINT SYSTEM. (a) The
1-66 council shall establish and operate a toll-free telephone complaint
1-67 system to provide assistance and referral services for persons
1-68 making a complaint relating to a health profession regulated by the
2-1 state.
2-2 (b) After the establishment of a toll-free telephone
2-3 complaint system under this section, an agency of the state that
2-4 regulates a health profession shall be required to list the
2-5 toll-free telephone number of the system with the agency's regular
2-6 telephone number.
2-7 Sec. 3. TRAINING AND GUIDELINES FOR MEMBERS OF STATE BOARDS
2-8 AND COMMISSIONS. (a) The council shall establish a training
2-9 program for the members of the boards and commissions in the state
2-10 that regulate health professions.
2-11 (b) Before a member of a board or commission that regulates
2-12 a health profession may assume the member's duties, the member must
2-13 complete at least one course of the training program established
2-14 under this section, and before the member may be confirmed by the
2-15 senate, the member must pass an examination given in conjunction
2-16 with the attorney general on subjects described by Subsections
2-17 (c)(7), (8), and (9) of this section.
2-18 (c) A training program established under this section shall
2-19 provide information to a participant regarding:
2-20 (1) the enabling legislation that created the board or
2-21 commission to which the member is appointed;
2-22 (2) the programs operated by that state agency;
2-23 (3) the role and functions of that state agency;
2-24 (4) the rules of that state agency with an emphasis on
2-25 the rules that relate to disciplinary and investigatory authority;
2-26 (5) the current budget for that state agency;
2-27 (6) the results of the most recent formal audit of
2-28 that state agency;
2-29 (7) the requirements of the:
2-30 (A) open meetings law, Chapter 271, Acts of the
2-31 60th Legislature, Regular Session, 1967 (Article 6252-17, Vernon's
2-32 Texas Civil Statutes), and its subsequent amendments;
2-33 (B) open records law, Chapter 424, Acts of the
2-34 63rd Legislature, Regular Session, 1973 (Article 6252-17a, Vernon's
2-35 Texas Civil Statutes), and its subsequent amendments; and
2-36 (C) Administrative Procedure and Texas Register
2-37 Act (Article 6252-13a, Vernon's Texas Civil Statutes) and its
2-38 subsequent amendments;
2-39 (8) the requirements of the conflict of interest laws
2-40 and other laws relating to public officials; and
2-41 (9) any applicable ethics policies adopted by that
2-42 state agency or the Texas Ethics Commission.
2-43 Sec. 4. UNLAWFUL FALSE, MISLEADING, OR DECEPTIVE
2-44 ADVERTISING. (a) Advertising that is false, misleading, or
2-45 deceptive or that is not readily subject to verification is
2-46 declared unlawful and is subject to action by the appropriate
2-47 health licensing agency as a ground for revocation or denial of a
2-48 license and subject to action by the consumer protection division
2-49 of the office of the attorney general under Sections 17.47, 17.58,
2-50 17.60, and 17.61, Business & Commerce Code.
2-51 (b) False, misleading, or deceptive advertising or
2-52 advertising that is not readily subject to verification includes
2-53 advertising that:
2-54 (1) makes a material misrepresentation of fact or
2-55 omits a fact necessary to make the statement as a whole not
2-56 materially misleading;
2-57 (2) makes a representation likely to create an
2-58 unjustified expectation about the results of a health care service
2-59 or procedure;
2-60 (3) compares a health care professional's services
2-61 with another health care professional's services unless the
2-62 comparison can be factually substantiated;
2-63 (4) contains a testimonial;
2-64 (5) causes confusion or misunderstanding as to the
2-65 credentials, education, or licensure of a health care professional;
2-66 (6) advertises or represents that health care
2-67 insurance deductibles or copayments may be waived or are not
2-68 applicable to health care services to be provided if the
2-69 deductibles or copayments are required;
2-70 (7) advertises or represents that the benefits of a
3-1 health benefit plan will be accepted as full payment when
3-2 deductibles or copayments are required;
3-3 (8) makes a representation that is designed to take
3-4 advantage of the fears or emotions of a particularly susceptible
3-5 type of patient; or
3-6 (9) advertises or represents in the use of a
3-7 professional name a title or professional identification that is
3-8 expressly or commonly reserved to or used by another profession or
3-9 professional.
3-10 (c) A violation of this section does not create a private
3-11 cause of action, including an action for breach of warranty or for
3-12 an implied contract or warranty for good and workmanlike service.
3-13 Sec. 5. BILLING INFORMATION REQUIRED; PROHIBITED PRACTICES.
3-14 (a) On the written request of a patient, a health care
3-15 professional shall provide, in plain language, a written
3-16 explanation of the charges for professional services previously
3-17 made on a bill or statement for the patient.
3-18 (b) A health care professional may not persistently or
3-19 flagrantly overcharge or overtreat a patient.
3-20 (c) A violation of this section is subject to action by the
3-21 appropriate health licensing agency as a ground for revocation or
3-22 denial of a license.
3-23 Sec. 6. CIVIL PENALTY. (a) A person who is in violation of
3-24 this article is liable to the state for a civil penalty not to
3-25 exceed $1,000 for each violation. Each day of violation
3-26 constitutes a separate violation. The attorney general may
3-27 institute an action under this section.
3-28 (b) A civil action filed by the attorney general under this
3-29 section shall be filed in a district court in Travis County or in
3-30 the county in which the violation occurred.
3-31 (c) The attorney general may recover reasonable expenses
3-32 incurred in obtaining a civil penalty under this section, including
3-33 court costs, reasonable attorney fees, reasonable investigative
3-34 costs, witness fees, and deposition expenses.
3-35 (d) A civil penalty recovered under this section shall be
3-36 deposited in the state treasury to the credit of the general
3-37 revenue fund.
3-38 Sec. 7. INJUNCTIVE ACTION. (a) The attorney general or the
3-39 appropriate health licensing board may bring an injunctive action
3-40 to stop a violation or threatened violation of this article.
3-41 (b) The attorney general or health licensing agency may
3-42 recover reasonable expenses incurred in obtaining injunctive relief
3-43 under this section, including court costs, reasonable attorney
3-44 fees, reasonable investigative costs, witness fees, and deposition
3-45 expenses.
3-46 Sec. 8. REPORTS AND STUDIES. (a) The council shall prepare
3-47 an annual report to be sent to the governor, the lieutenant
3-48 governor, and the speaker of the house of representatives not later
3-49 than February 1 of each year.
3-50 (b) A report under this section shall include:
3-51 (1) a statistical compilation of enforcement
3-52 actions taken by a board listed by Section 1(b) of this
3-53 article;
3-54 (2) recommendations for statutory changes to improve
3-55 the regulation of the health care professions; and
3-56 (3) other relevant information and recommendations
3-57 determined necessary by the council.
3-58 (c) The council shall determine and adopt additional
3-59 relevant information to be included in the reports.
3-60 (d) The council shall:
3-61 (1) develop, in cooperation with the General Services
3-62 Commission, a plan to collocate the staffs of the boards listed by
3-63 Section 1(b) of this article;
3-64 (2) develop a plan to centralize the administrative
3-65 functions of the boards listed by Section 1(b) of this article;
3-66 (3) develop a plan to coordinate budget preparation
3-67 with concentration on increased funding for enforcement efforts;
3-68 (4) study the feasibility of centralizing the receipt
3-69 and investigation of complaints; and
3-70 (5) study the effects of establishing a prohibition to
4-1 prevent individuals who are not licensed physicians from
4-2 intervening in medical practice decisions.
4-3 (e) The results of the council's studies under Subsection
4-4 (d) of this section shall be reported to the governor, the
4-5 lieutenant governor, and the speaker of the house of
4-6 representatives not later than January 1, 1995.
4-7 Sec. 9. REMEDIES NOT EXCLUSIVE. The provisions of this
4-8 article are in addition to any other remedy provided by any other
4-9 statute, rule, or common law.
4-10 SECTION 1.02. The Healing Art Identification Act (Article
4-11 4590e, Vernon's Texas Civil Statutes) is repealed.
4-12 ARTICLE 2. NURSING FACILITY ADMINISTRATION
4-13 SECTION 2.01. Title 71, Revised Statutes, is amended by
4-14 adding Article 4512q to read as follows:
4-15 Art. 4512q. NURSING FACILITY ADMINISTRATION
4-16 Sec. 1. SHORT TITLE. This article may be cited as the Texas
4-17 Nursing Facility Administrators Licensure Act.
4-18 Sec. 2. DEFINITIONS. In this article:
4-19 (1) "Board" means the Texas Board of Nursing Facility
4-20 Administrators.
4-21 (2) "Commissioner" means the commissioner of health.
4-22 (3) "Department" means the Texas Department of Health.
4-23 (4) "Nursing facility" means an institution or
4-24 facility that is licensed as a nursing home, nursing facility,
4-25 skilled nursing facility, or custodial care home by the department
4-26 under Chapter 242, Health and Safety Code.
4-27 (5) "Nursing facility administrator" or
4-28 "administrator" means a person who engages in the practice of
4-29 nursing facility administration without regard to whether the
4-30 person has an ownership interest in the facility or whether the
4-31 functions and duties are shared with any other person.
4-32 (6) "Practice of nursing facility administration"
4-33 means the performance of the acts of administering, managing,
4-34 supervising, or being in general administrative charge of a nursing
4-35 facility.
4-36 Sec. 3. CREATION OF THE BOARD. (a) The Texas Board of
4-37 Nursing Facility Administrators is created within the department.
4-38 (b) The board is composed of nine members appointed by the
4-39 governor. Three members must be members of the public, and six
4-40 members must be nursing facility administrators licensed under this
4-41 article. Appointments to the board shall be made without regard to
4-42 the race, color, disability, sex, religion, or national origin of
4-43 the person appointed.
4-44 (c) Members of the board serve staggered six-year terms,
4-45 with the terms of three members expiring on February 1 of each
4-46 odd-numbered year. A person appointed to fill a vacancy on the
4-47 board shall serve for the unexpired portion of the term for which
4-48 the person is appointed.
4-49 Sec. 4. MEMBERSHIP REQUIREMENTS. (a) A member of the board
4-50 who is an administrator must:
4-51 (1) be a resident of this state and a citizen of the
4-52 United States;
4-53 (2) be licensed under this article and currently
4-54 serving as a nursing facility administrator or have direct
4-55 supervisory responsibility on a daily basis over an administrator
4-56 who works in a nursing facility; and
4-57 (3) hold a degree from an accredited four-year college
4-58 or university.
4-59 (b) An administrator who does not have a degree as required
4-60 by Subsection (a)(3) of this section may be qualified to serve as a
4-61 member of the board if the administrator has two years of practical
4-62 experience as an administrator for every year less than four that
4-63 the administrator has completed at a four-year college or
4-64 university.
4-65 (c) At least one administrator member of the board must be
4-66 associated with and a representative of a nonproprietary nursing
4-67 facility, and at least one administrator member of the board must
4-68 have an ownership interest in a nursing facility.
4-69 (d) A member or employee of the board may not:
4-70 (1) be an officer, employee, or paid consultant of a
5-1 trade association in the nursing facility industry; or
5-2 (2) be related within the second degree by affinity or
5-3 within the third degree by consanguinity to an officer, employee,
5-4 or paid consultant of a trade association in the nursing facility
5-5 industry.
5-6 (e) A member of the board who represents the general public
5-7 may not have a financial interest, other than as a consumer, in a
5-8 nursing facility as an officer, director, partner, owner, employee,
5-9 attorney, or paid consultant or be related within the second degree
5-10 by affinity or within the third degree by consanguinity to a person
5-11 who has a financial interest, other than as a consumer, in a
5-12 nursing facility as an officer, director, partner, owner, employee,
5-13 attorney, or paid consultant.
5-14 (f) A person who is required to register as a lobbyist under
5-15 Chapter 305, Government Code, because of the person's activities
5-16 for compensation on behalf of a profession related to the operation
5-17 of the board may not serve on the board.
5-18 Sec. 5. GROUNDS FOR REMOVAL. It is a ground for removal
5-19 from the board if a member:
5-20 (1) does not have at the time of appointment the
5-21 qualifications required by Section 4 of this article for
5-22 appointment to the board;
5-23 (2) does not maintain during service on the board the
5-24 qualifications required by Section 4 of this article for
5-25 appointment to the board;
5-26 (3) violates a prohibition established by Section 4 of
5-27 this article;
5-28 (4) cannot discharge the member's duties for a
5-29 substantial part of the term for which the member is appointed
5-30 because of illness or disability; or
5-31 (5) is absent from more than half of the regularly
5-32 scheduled board meetings that the member is eligible to attend
5-33 during a calendar year, unless the absence is excused by a majority
5-34 vote of the board.
5-35 Sec. 6. BOARD OFFICERS; MEETINGS; QUORUM; EXPENSES.
5-36 (a) The board shall elect from its members a presiding officer and
5-37 assistant presiding officer who serve according to rules adopted by
5-38 the board.
5-39 (b) The board shall hold at least two regular meetings each
5-40 year as provided by rules adopted by the board.
5-41 (c) A majority of the members constitutes a quorum.
5-42 (d) Each member of the board is entitled to compensation for
5-43 transportation expenses as provided by the General Appropriations
5-44 Act.
5-45 Sec. 7. APPLICATION OF OPEN MEETINGS AND ADMINISTRATIVE
5-46 PROCEDURE ACTS. The board is subject to the open meetings law,
5-47 Chapter 271, Acts of the 60th Legislature, Regular Session, 1967
5-48 (Article 6252-17, Vernon's Texas Civil Statutes), and its
5-49 subsequent amendments, and the Administrative Procedure and Texas
5-50 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes) and
5-51 its subsequent amendments.
5-52 Sec. 8. POWERS AND DUTIES OF BOARD. (a) The board may
5-53 adopt rules consistent with this article.
5-54 (b) The board shall:
5-55 (1) adopt and publish a code of ethics;
5-56 (2) establish the qualifications of applicants for
5-57 licenses and the renewal of licenses;
5-58 (3) spend funds necessary for the proper
5-59 administration of the board's assigned duties;
5-60 (4) establish reasonable and necessary fees for the
5-61 administration and implementation of this article; and
5-62 (5) establish a minimum number of hours of continuing
5-63 education required to renew a license and periodically assess the
5-64 continuing education needs of license holders to determine whether
5-65 specific course content should be required.
5-66 Sec. 9. ADMINISTRATIVE FUNCTIONS; EXECUTIVE SECRETARY.
5-67 (a) The department shall provide the personnel and necessary
5-68 facilities required to administer this article. If necessary to
5-69 the administration of this article, the department may secure and
5-70 provide for compensation for services that the department considers
6-1 necessary and may employ and compensate within available
6-2 appropriations professional consultants, technical assistants, and
6-3 employees on a full-time or part-time basis.
6-4 (b) The commissioner shall designate an employee to serve as
6-5 executive secretary of the board. The executive secretary must be
6-6 an employee of the department. The executive secretary is the
6-7 administrator of the licensing activities under this article. The
6-8 executive secretary shall carry out other functions as may be
6-9 required by the board or the department to administer this article.
6-10 Sec. 10. PUBLIC INTEREST INFORMATION. (a) The board shall
6-11 prepare information of public interest describing the functions of
6-12 the board and the department under this article and the procedures
6-13 by which complaints are filed with and resolved by the board and
6-14 department. The department shall make the information available to
6-15 the public and appropriate state agencies.
6-16 (b) The board by rule shall establish methods by which
6-17 consumers and service recipients are notified of the name, mailing
6-18 address, and telephone number of the department for the purpose of
6-19 directing complaints to the department.
6-20 Sec. 11. FEES; FUNDS; ANNUAL REPORT. (a) The board by rule
6-21 shall set reasonable and necessary fees in amounts necessary to
6-22 cover the cost of administering this article. The board by rule
6-23 may set different licensing fees for different categories of
6-24 licenses.
6-25 (b) The department shall receive and account for funds
6-26 received under this article. The funds shall be deposited in the
6-27 state treasury to the credit of the general revenue fund in an
6-28 account known as the licensed nursing facility administrator's
6-29 account to be used only for the administration of this article.
6-30 (c) The department shall file annually with the governor and
6-31 the presiding officer of each house of the legislature a complete
6-32 and detailed written report accounting for all funds received and
6-33 disbursed by the board or the department for the administration of
6-34 this article during the preceding fiscal year. The annual report
6-35 must be in the form and reported in the time provided by the
6-36 General Appropriations Act.
6-37 (d) The board may receive and disburse funds received from
6-38 any federal source for the furtherance of the board's functions
6-39 under this article.
6-40 Sec. 12. PRACTICING WITHOUT A LICENSE. A person may not act
6-41 as a nursing facility administrator or represent to others that the
6-42 person is a nursing facility administrator unless the person is
6-43 licensed under this article.
6-44 Sec. 13. LICENSE APPLICATION; QUALIFICATIONS. (a) An
6-45 applicant for a nursing facility administrator's license must
6-46 submit a sworn application that is accompanied by the application
6-47 fee.
6-48 (b) The board shall prescribe the form of the application
6-49 and may by rule establish dates by which applications and fees must
6-50 be received. The rules under this section may not be inconsistent
6-51 with the rules of the department related to the application dates
6-52 of other licenses administered by the department.
6-53 (c) An applicant for a nursing facility administrator's
6-54 license must take a licensing examination under this article. To
6-55 qualify for the licensing examination, the applicant must have
6-56 satisfactorily completed a course of instruction and training
6-57 prescribed by the board that is conducted by or in cooperation with
6-58 an accredited postsecondary educational institution and that is
6-59 designed and administered to provide sufficient knowledge of:
6-60 (1) the needs served by nursing facilities;
6-61 (2) the laws governing the operation of nursing
6-62 facilities and the protection of the interests of facility
6-63 residents; and
6-64 (3) the elements of nursing facility administration.
6-65 (d) An applicant who has not completed the course of
6-66 instruction and training described by Subsection (c) of this
6-67 section must present evidence satisfactory to the board of having
6-68 completed sufficient education, training, and experience in the
6-69 fields described by Subsection (c) of this section to enable the
6-70 applicant to engage in the practice of nursing facility
7-1 administration.
7-2 Sec. 14. EXAMINATION. (a) The licensing examination shall
7-3 be prepared or approved by the board and administered by the
7-4 department to qualified applicants at least twice each calendar
7-5 year. The department shall have the written portion of the
7-6 examination, if any, validated by a testing professional.
7-7 (b) Not later than the 30th day after the date on which a
7-8 licensing examination is administered under this article, the
7-9 department shall notify each examinee of the results of the
7-10 examination. If an examination is graded or reviewed by a national
7-11 or state testing service, the department shall notify examinees of
7-12 the results of the examination not later than two weeks after the
7-13 date the department receives the results from the testing service.
7-14 If the notice of the examination results will be delayed for more
7-15 than 90 days after the examination date, the department shall
7-16 notify the examinee of the reason for the delay before the 90th
7-17 day.
7-18 (c) If requested in writing by a person who fails the
7-19 licensing examination, the department shall furnish the person with
7-20 an analysis of the person's performance on the examination.
7-21 (d) The board may establish by rule additional educational
7-22 requirements to be met by an applicant who fails the examination
7-23 three times.
7-24 Sec. 15. LICENSES; TEMPORARY LICENSE; INACTIVE STATUS;
7-25 PROVISIONAL LICENSE. (a) A person who meets the requirements for
7-26 licensing under this article is entitled to receive a license. A
7-27 nursing facility administrator's license is not transferable.
7-28 (b) A person licensed under this article must notify the
7-29 department of the license holder's correct mailing address.
7-30 (c) A license is valid for two years. The board by rule may
7-31 adopt a system under which licenses expire on various dates during
7-32 the two-year period. For the year in which a license expiration
7-33 date is changed, license fees payable on the original expiration
7-34 date shall be prorated on a monthly basis so that each license
7-35 holder shall pay only that portion of the license fee that is
7-36 allocable to the number of months during which the license is
7-37 valid. On renewal of the license on the new expiration date, the
7-38 total license renewal fee is payable.
7-39 (d) The board by rule may provide for the issuance of a
7-40 temporary license. Rules adopted under this section shall include
7-41 a time limit for a licensee to practice under a temporary license.
7-42 (e) The board by rule may provide for a license holder to be
7-43 placed on inactive status.
7-44 Sec. 16. PROVISIONAL LICENSE. (a) On application, the
7-45 department shall grant a provisional license under this article.
7-46 An applicant for a provisional license under this section must:
7-47 (1) be licensed in good standing as a nursing facility
7-48 administrator in another state, the District of Columbia, or a
7-49 territory of the United States that has licensing requirements that
7-50 are substantially equivalent to the requirements of this article;
7-51 (2) have passed a national or other examination
7-52 recognized by the board relating to the practice of nursing
7-53 facility administration; and
7-54 (3) be sponsored by a person licensed under this
7-55 article with whom the provisional license holder may practice under
7-56 this section.
7-57 (b) An applicant for a provisional license may be excused
7-58 from the requirement of Subsection (a)(3) of this section if the
7-59 department determines that compliance with that subsection
7-60 constitutes a hardship to the applicant.
7-61 (c) A provisional license is valid until the date the
7-62 department approves or denies the provisional license holder's
7-63 application for a license. The department shall issue a license
7-64 under this article to the holder of a provisional license under
7-65 this section if:
7-66 (1) the provisional license holder passes the
7-67 examination required by Section 14 of this article;
7-68 (2) the department verifies that the provisional
7-69 license holder has the academic and experience requirements for a
7-70 license under this article; and
8-1 (3) the provisional license holder satisfies any other
8-2 license requirements under this article.
8-3 (d) The department shall complete the processing of a
8-4 provisional license holder's application for a license not later
8-5 than the 180th day after the date the provisional license is
8-6 issued. The department may extend this time in order to receive
8-7 the results of a national examination or other examination
8-8 administered or graded by an outside organization recognized by the
8-9 board.
8-10 Sec. 17. LICENSE RENEWAL. (a) A person may renew an
8-11 unexpired license by paying to the department before the expiration
8-12 of the license the required renewal fee.
8-13 (b) If a person's license has been expired for 90 days or
8-14 less, the person may renew the license by paying to the department
8-15 the required renewal fee and a fee that is one-half of the
8-16 examination fee for the license.
8-17 (c) If a person's license has been expired for longer than
8-18 90 days but less than one year, the person may renew the license by
8-19 paying to the department all unpaid renewal fees and a fee that is
8-20 equal to the examination fee for the license.
8-21 (d) If a person's license has been expired for one year or
8-22 longer, the person may not renew the license. The person may
8-23 obtain a new license by submitting to reexamination and complying
8-24 with the requirements and procedures for obtaining an original
8-25 license. However, the department may renew without reexamination
8-26 an expired license of a person who was licensed in this state,
8-27 moved to another state, and is currently licensed and has been in
8-28 practice in the other state for the two years preceding
8-29 application. The person must pay to the department a fee that is
8-30 equal to the examination fee for the license.
8-31 (e) At least 30 days before the expiration of a person's
8-32 license, the department shall send written notice of the impending
8-33 license expiration to the person at the license holder's last known
8-34 address according to the records of the department.
8-35 Sec. 18. MANDATORY CONTINUING EDUCATION. (a) The board by
8-36 rule shall establish a minimum number of hours of continuing
8-37 education required to renew a license under this article. The
8-38 board may assess the continuing education needs of license holders
8-39 and may require license holders to attend continuing education
8-40 courses specified by the department.
8-41 (b) The board shall identify the key factors for the
8-42 competent performance by a license holder of the license holder's
8-43 professional duties. The board shall adopt a procedure to assess a
8-44 license holder's participation in continuing education programs.
8-45 Sec. 19. COMPLAINT RECEIPT, INVESTIGATION, AND DISPOSITION.
8-46 (a) The board shall keep an information file about each complaint
8-47 filed with the department. The board's information file shall be
8-48 kept current and contain a record for each complaint of:
8-49 (1) all persons contacted in relation to the
8-50 complaint;
8-51 (2) a summary of findings made at each step of the
8-52 complaint process;
8-53 (3) an explanation of the legal basis and reason for a
8-54 complaint that is dismissed; and
8-55 (4) other relevant information.
8-56 (b) If a written complaint is filed with the board that the
8-57 board has authority to resolve, the department, at least as
8-58 frequently as quarterly and until final disposition of the
8-59 complaint, shall notify the parties to the complaint of the status
8-60 of the complaint unless the notice would jeopardize an undercover
8-61 investigation.
8-62 (c) The board by rule shall adopt a form to standardize
8-63 information concerning complaints made to the department. The
8-64 board by rule shall prescribe information to be provided to a
8-65 person when the person files a complaint with the department.
8-66 (d) The department shall provide reasonable assistance to a
8-67 person who wishes to file a complaint with the department.
8-68 (e) The board shall adopt rules concerning the investigation
8-69 of a complaint filed with the department. The rules adopted under
8-70 this subsection shall:
9-1 (1) distinguish between categories of complaints;
9-2 (2) ensure that complaints are not dismissed without
9-3 appropriate consideration;
9-4 (3) require that the board be advised of a complaint
9-5 that is dismissed and that a letter be sent to the person who filed
9-6 the complaint explaining the action taken on the dismissed
9-7 complaint;
9-8 (4) ensure that the person who filed the complaint has
9-9 an opportunity to explain the allegations made in the complaint;
9-10 and
9-11 (5) prescribe guidelines concerning the categories of
9-12 complaints that require the use of a private investigator and the
9-13 procedures for the department to obtain the services of a private
9-14 investigator.
9-15 (f) The board shall dispose of all complaints in a timely
9-16 manner. The board by rule shall establish a schedule for
9-17 conducting each phase of a complaint that is under the control of
9-18 the board not later than the 30th day after the date the complaint
9-19 is received by the board. The schedule shall be kept in the
9-20 information file for the complaint, and all parties shall be
9-21 notified of the projected time requirements for pursuing the
9-22 complaint. A change in the schedule must be noted in the complaint
9-23 information file and all parties to the complaint must be notified
9-24 not later than the seventh day after the date the change is made.
9-25 (g) The executive secretary shall notify the board of a
9-26 complaint that extends beyond the time prescribed by the board for
9-27 resolving the complaint so that the board may take necessary action
9-28 on the complaint.
9-29 Sec. 20. SANCTIONS. (a) The board may revoke, suspend, or
9-30 refuse to renew a nursing facility administrator's license, assess
9-31 an administrative penalty, issue a written reprimand, require
9-32 participation in continuing education, or place an administrator on
9-33 probation after due notice and hearing on proof of any of the
9-34 following grounds:
9-35 (1) the license holder has wilfully or repeatedly
9-36 violated a provision of this article or a rule adopted under this
9-37 article;
9-38 (2) the license holder has wilfully or repeatedly
9-39 acted in a manner inconsistent with the health and safety of the
9-40 patients of a facility of which the license holder is an
9-41 administrator;
9-42 (3) the license holder obtained or attempted to obtain
9-43 a license through misrepresentation or deceit or by making a
9-44 material misstatement of fact on a license application;
9-45 (4) the intemperate use of alcohol or drugs by the
9-46 license holder in the department's opinion creates a hazard to the
9-47 patients of a facility;
9-48 (5) a judgment of a court of competent jurisdiction
9-49 finds that the license holder is mentally incapacitated;
9-50 (6) the license holder has been convicted in a court
9-51 of competent jurisdiction of a misdemeanor or felony involving
9-52 moral turpitude; or
9-53 (7) the license holder has been negligent or
9-54 incompetent in the license holder's duties as a nursing facility
9-55 administrator.
9-56 (b) If a license suspension is probated, the board may
9-57 require the license holder to:
9-58 (1) report regularly to the department on matters that
9-59 are the basis of the probation;
9-60 (2) limit practice to the areas prescribed by the
9-61 board; or
9-62 (3) continue or review continuing professional
9-63 education until the license holder attains a degree of skill
9-64 satisfactory to the board in those areas that are the basis of the
9-65 probation.
9-66 (c) A license holder is entitled to a hearing before the
9-67 hearings examiner designated by the board before a sanction is
9-68 imposed under this section.
9-69 (d) The board by rule shall adopt a broad schedule of
9-70 sanctions for violations under this article. The designated
10-1 hearings examiner shall use the schedule for any sanction imposed
10-2 as the result of a hearing conducted by the designated hearings
10-3 examiner.
10-4 Sec. 21. WRITTEN REPRIMAND AND CONTINUING EDUCATION AS
10-5 SANCTIONS. In addition to the other disciplinary actions
10-6 authorized under this article, the board may issue a written
10-7 reprimand to a license holder who violates this article or require
10-8 that a license holder who violates this article participate in
10-9 continuing education programs. The department shall specify the
10-10 continuing education programs that may be attended and the number
10-11 of hours that must be completed by a license holder to fulfill the
10-12 requirements of this section.
10-13 Sec. 22. ADMINISTRATIVE PENALTY. (a) The board may impose
10-14 an administrative penalty against a person licensed or regulated
10-15 under this article who violates this article or a rule or order
10-16 adopted by the board under this article.
10-17 (b) The penalty for a violation may be in an amount not to
10-18 exceed $1,000. Each day a violation continues or occurs is a
10-19 separate violation for purposes of imposing a penalty.
10-20 (c) The amount of the penalty shall be based on:
10-21 (1) the seriousness of the violation, including the
10-22 nature, circumstances, extent, and gravity of any prohibited acts,
10-23 and the hazard or potential hazard created to the health, safety,
10-24 or economic welfare of the public;
10-25 (2) the economic harm to property or the environment
10-26 caused by the violation;
10-27 (3) the history of previous violations;
10-28 (4) the amount necessary to deter future violations;
10-29 (5) efforts to correct the violation; and
10-30 (6) any other matter that justice may require.
10-31 (d) If the hearings examiner determines that a violation has
10-32 occurred, the hearings examiner may issue to the board a report
10-33 that states the facts on which the determination is based and the
10-34 hearings examiner's recommendation on the imposition of a penalty,
10-35 including a recommendation on the amount of the penalty.
10-36 (e) Within 14 days after the date the report is issued, the
10-37 hearings examiner shall give written notice of the report to the
10-38 person. The notice may be given by certified mail. The notice
10-39 must include a brief summary of the alleged violation and a
10-40 statement of the amount of the recommended penalty and must inform
10-41 the person that the person has a right to a hearing on the
10-42 occurrence of the violation, the amount of the penalty, or both the
10-43 occurrence of the violation and the amount of the penalty.
10-44 (f) Within 20 days after the date the person receives the
10-45 notice, the person in writing may accept the determination and
10-46 recommended penalty of the hearings examiner or may make a written
10-47 request for a hearing on the occurrence of the violation, the
10-48 amount of the penalty, or both the occurrence of the violation and
10-49 the amount of the penalty.
10-50 (g) If the person accepts the determination and recommended
10-51 penalty of the hearings examiner, the board by order shall approve
10-52 the determination and impose the recommended penalty.
10-53 (h) If the person requests a hearing or fails to respond
10-54 timely to the notice, the board shall set a hearing and give notice
10-55 of the hearing to the person. The hearing shall be held by a
10-56 hearings examiner designated by the board. The hearings examiner
10-57 shall make findings of fact and conclusions of law and promptly
10-58 issue to the board a proposal for a decision about the occurrence
10-59 of the violation and the amount of a proposed penalty. Based on
10-60 the findings of fact, conclusions of law, and proposal for a
10-61 decision, the board by order may find that a violation has occurred
10-62 and impose a penalty or may find that no violation occurred.
10-63 (i) The notice of the board's order given to the person
10-64 under the Administrative Procedure and Texas Register Act (Article
10-65 6252-13a, Vernon's Texas Civil Statutes) and its subsequent
10-66 amendments must include a statement of the right of the person to
10-67 judicial review of the order.
10-68 (j) Within 30 days after the date the board's order is final
10-69 as provided by Section 16(c), Administrative Procedure and Texas
10-70 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), and
11-1 its subsequent amendments, the person shall:
11-2 (1) pay the amount of the penalty;
11-3 (2) pay the amount of the penalty and file a petition
11-4 for judicial review contesting the occurrence of the violation, the
11-5 amount of the penalty, or both the occurrence of the violation and
11-6 the amount of the penalty; or
11-7 (3) without paying the amount of the penalty, file a
11-8 petition for judicial review contesting the occurrence of the
11-9 violation, the amount of the penalty, or both the occurrence of the
11-10 violation and the amount of the penalty.
11-11 (k) Within the 30-day period, a person who acts under
11-12 Subsection (j)(3) of this section may:
11-13 (1) stay enforcement of the penalty by:
11-14 (A) paying the amount of the penalty to the
11-15 court for placement in an escrow account; or
11-16 (B) giving to the court a supersedeas bond that
11-17 is approved by the court for the amount of the penalty and that is
11-18 effective until all judicial review of the board's order is final;
11-19 or
11-20 (2) request the court to stay enforcement of the
11-21 penalty by:
11-22 (A) filing with the court a sworn affidavit of
11-23 the person stating that the person is financially unable to pay the
11-24 amount of the penalty and is financially unable to give the
11-25 supersedeas bond; and
11-26 (B) giving a copy of the affidavit to the board
11-27 by certified mail.
11-28 (l) If the board receives a copy of an affidavit under
11-29 Subsection (k)(2) of this section, the board may file with the
11-30 court, within five days after the date the copy is received, a
11-31 contest to the affidavit. The court shall hold a hearing on the
11-32 facts alleged in the affidavit as soon as practicable and shall
11-33 stay the enforcement of the penalty on finding that the alleged
11-34 facts are true. The person who files an affidavit has the burden
11-35 of proving that the person is financially unable to pay the amount
11-36 of the penalty and to give a supersedeas bond.
11-37 (m) If the person does not pay the amount of the penalty and
11-38 the enforcement of the penalty is not stayed, the board may refer
11-39 the matter to the attorney general for collection of the amount of
11-40 the penalty.
11-41 (n) Judicial review of the order of the board:
11-42 (1) is instituted by filing a petition as provided by
11-43 Section 19, Administrative Procedure and Texas Register Act
11-44 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
11-45 subsequent amendments; and
11-46 (2) is under the substantial evidence rule.
11-47 (o) If the court sustains the occurrence of the violation,
11-48 the court may uphold or reduce the amount of the penalty and order
11-49 the person to pay the full or reduced amount of the penalty. If
11-50 the court does not sustain the occurrence of the violation, the
11-51 court shall order that no penalty is owed.
11-52 (p) When the judgment of the court becomes final, the court
11-53 shall proceed under this subsection. If the person paid the amount
11-54 of the penalty and if that amount is reduced or is not upheld by
11-55 the court, the court shall order that the appropriate amount plus
11-56 accrued interest be remitted to the person. The rate of the
11-57 interest is the rate charged on loans to depository institutions by
11-58 the New York Federal Reserve Bank, and the interest shall be paid
11-59 for the period beginning on the date the penalty was paid and
11-60 ending on the date the penalty is remitted. If the person gave a
11-61 supersedeas bond and if the amount of the penalty is not upheld by
11-62 the court, the court shall order the release of the bond. If the
11-63 person gave a supersedeas bond and if the amount of the penalty is
11-64 reduced, the court shall order the release of the bond after the
11-65 person pays the amount.
11-66 (q) A penalty collected under this section shall be remitted
11-67 to the comptroller for deposit in the general revenue fund.
11-68 (r) All proceedings under this section are subject to the
11-69 Administrative Procedure and Texas Register Act (Article 6252-13a,
11-70 Vernon's Texas Civil Statutes) and its subsequent amendments.
12-1 Sec. 23. INFORMAL PROCEEDINGS. (a) The board by rule shall
12-2 adopt procedures governing:
12-3 (1) informal disposition of a contested case under
12-4 Section 13(e), Administrative Procedure and Texas Register Act
12-5 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
12-6 subsequent amendments; and
12-7 (2) informal proceedings held in compliance with
12-8 Section 18(c), Administrative Procedure and Texas Register Act
12-9 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
12-10 subsequent amendments.
12-11 (b) Rules adopted under this section must provide the
12-12 complainant and the license holder an opportunity to be heard and
12-13 must require the presence of a representative of the office of the
12-14 attorney general to advise the department or the department's
12-15 employees.
12-16 Sec. 24. MONITORING OF LICENSE HOLDER. The board by rule
12-17 shall develop a system for monitoring a license holder's compliance
12-18 with the requirements of this article. Rules adopted under this
12-19 section shall include procedures for monitoring a license holder
12-20 who is ordered by the board to perform certain acts to ascertain
12-21 that the license holder performs the required acts and to identify
12-22 and monitor license holders who represent a risk to the public.
12-23 Sec. 25. CIVIL PENALTY. A person who violates this article
12-24 is liable to the state for a civil penalty of $1,000 for each day
12-25 of violation. At the request of the board, the attorney general
12-26 shall bring an action to recover a civil penalty established by
12-27 this section.
12-28 Sec. 26. ASSISTANCE OF ATTORNEY GENERAL. The attorney
12-29 general shall provide legal assistance as necessary in enforcing
12-30 the provisions of this article. This requirement does not relieve
12-31 a local prosecuting officer of any of the prosecuting officer's
12-32 duties under the law.
12-33 Sec. 27. OFFENSE. (a) A person commits an offense if the
12-34 person knowingly or intentionally violates Section 12 of this
12-35 article.
12-36 (b) An offense under this section is a Class B misdemeanor.
12-37 Sec. 28. SUNSET PROVISION. The Texas Board of Nursing
12-38 Facility Administrators is subject to Chapter 325, Government Code
12-39 (Texas Sunset Act). Unless continued in existence as provided by
12-40 that chapter, the board is abolished and this article expires
12-41 September 1, 2005.
12-42 ARTICLE 3. EFFECTIVE DATE; TRANSITION; EMERGENCY
12-43 SECTION 3.01. This Act takes effect September 1, 1993.
12-44 SECTION 3.02. (a) The Texas Board of Licensure for Nursing
12-45 Home Administrators is abolished on the effective date of this Act.
12-46 As soon as possible after the effective date of this Act, the
12-47 governor shall appoint the initial members of the Texas Board of
12-48 Nursing Facility Administrators. In making the initial
12-49 appointments, the governor shall designate members to serve terms
12-50 as follows:
12-51 (1) two licensed nursing facility administrator
12-52 members and one public member serve terms expiring February 1,
12-53 1995;
12-54 (2) two licensed nursing facility administrator
12-55 members and one public member serve terms expiring February 1,
12-56 1997; and
12-57 (3) two licensed nursing facility administrator
12-58 members and one public member serve terms expiring February 1,
12-59 1999.
12-60 (b) On the effective date of this Act, the Texas Board of
12-61 Nursing Facility Administrators assumes the functions of the Texas
12-62 Board of Licensure for Nursing Home Administrators. The
12-63 obligations, right, contracts, and records of the Texas Board of
12-64 Licensure for Nursing Home Administrators are transferred to the
12-65 Texas Board of Nursing Facility Administrators. The equipment and
12-66 other property and personnel of and unspent money appropriated to
12-67 or for the Texas Board of Licensure for Nursing Home Administrators
12-68 are transferred to the Texas Board of Health. The rules of the
12-69 abolished board are continued in effect as rules of the Texas Board
12-70 of Health or the Texas Board of Nursing Facility Administrators, as
13-1 appropriate, until superseded by rule of the Texas Board of Health
13-2 or the Texas Board of Nursing Facility Administrators, as
13-3 appropriate. A license in effect that was issued by the abolished
13-4 board is continued in effect as a license of the Texas Department
13-5 of Health. A complaint, investigation, or other proceeding pending
13-6 before the abolished board is transferred without change in status
13-7 to the Texas Department of Health. Any reference in law to the
13-8 Texas Board of Licensure for Nursing Home Administrators means the
13-9 Texas Board of Health, the Texas Department of Health, or the Texas
13-10 Board of Nursing Facility Administrators, as appropriate.
13-11 SECTION 3.03. The changes in law made by this Act relating
13-12 to a penalty that may be imposed apply only to a violation that
13-13 occurs on or after the effective date of this Act. A violation
13-14 occurs on or after the effective date of this Act only if each
13-15 element of the violation occurs on or after that date. A violation
13-16 that occurs before the effective date of this Act is governed by
13-17 the law in effect on the date the violation occurred, and the
13-18 former law is continued in effect for that purpose.
13-19 SECTION 3.04. The importance of this legislation and the
13-20 crowded condition of the calendars in both houses create an
13-21 emergency and an imperative public necessity that the
13-22 constitutional rule requiring bills to be read on three several
13-23 days in each house be suspended, and this rule is hereby suspended.
13-24 * * * * *
13-25 Austin,
13-26 Texas
13-27 May 3, 1993
13-28 Hon. Bob Bullock
13-29 President of the Senate
13-30 Sir:
13-31 We, your Committee on Health and Human Services to which was
13-32 referred S.B. No. 674, have had the same under consideration, and I
13-33 am instructed to report it back to the Senate with the
13-34 recommendation that it do not pass, but that the Committee
13-35 Substitute adopted in lieu thereof do pass and be printed.
13-36 Zaffirini,
13-37 Chair
13-38 * * * * *
13-39 WITNESSES
13-40 FOR AGAINST ON
13-41 ___________________________________________________________________
13-42 Name: Lisa McGiffert x
13-43 Representing: Consumers Union
13-44 City: Austin
13-45 -------------------------------------------------------------------
13-46 Name: Gerald Guthrie x
13-47 Representing: Tx Dept of Health
13-48 City: Austin
13-49 -------------------------------------------------------------------
13-50 Name: Ronald L. Allen x
13-51 Representing: Sunset Commission
13-52 City: Austin
13-53 -------------------------------------------------------------------
13-54 Name: Sara Speights x
13-55 Representing: Tx Health Care Assn
13-56 City: Austin
13-57 -------------------------------------------------------------------
13-58 Name: Marie B. Wilson x
13-59 Representing: United People for Better
13-60 City: Austin
13-61 -------------------------------------------------------------------
13-62 Name: Janet Monteros x
13-63 Representing: Attorney General's Office
13-64 City: Austin
13-65 -------------------------------------------------------------------
13-66 Name: Gay Nell Harper x
13-67 Representing: Self
13-68 City: Corpus Christi
13-69 -------------------------------------------------------------------
13-70 Name: Des Taylor x
14-1 Representing: Tx Chiropractic Asso
14-2 City: Austin
14-3 -------------------------------------------------------------------
14-4 Name: Katherine Bates x
14-5 Representing: United People/Better Nursing
14-6 City: Arlington
14-7 -------------------------------------------------------------------
14-8 Name: John Willis x
14-9 Representing: Tx Dept of Aging
14-10 City: Austin
14-11 -------------------------------------------------------------------
14-12 Name: David Latimer x
14-13 Representing: Tx Asso of Homes for Aging
14-14 City: Austin
14-15 -------------------------------------------------------------------