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 -------------------------------------------------------------------