JKC S.B. 84 75(R)BILL ANALYSIS
HUMAN SERVICES
S.B. 84
By: Moncrief (Junell)
5-14-97
Committee Report (Amended)
BACKGROUND
Currently, the Texas Board of Nursing Facility Administrators (TBNFA) is
responsible for the licensure and regulation of the nursing facility
administrator profession. TBNFA was reconstructed following a 1993 review
of the agency by the Sunset Commission and there is a dispute as to
whether TBNFA has adequately performed its function. Article I of this
bill abolishes TBNFA and transfers the authority, duties, obligations, and
responsibilities to the Texas Department of Human Services (department).
Article 2 of this bill would reestablish the TBNFA under the department,
but Article 2 only goes into effect if Article 1 expires.
SRC-HRD D.B. 6
PURPOSE
As proposed, S.B. 84 abolishes the Texas Board of Nursing Facility
Administrators and transfers all authority, duties, obligations, and
responsibility to Texas Department of Human Services.
RULEMAKING AUTHORITY
Rulemaking authority is granted to the Texas Board of Health under SECTION
1.01 (Sections 242.302(a) and (b), 242.304(a), 242.306(b), 242.307(d),
242.308(c)-(e), 242.311(a), 242.312(c), (e), and (f), 242.313(d) and (e),
Health and Safety Code), to the Department of Human Services under
SECTIONS 1.01 and 2.01(Sections 242.317(a), 316.318, and 242.322(a),
Chapter 242I, Health and Safety Code), and to the Texas Board of Nursing
Facility Administrators under SECTION 2.01 (Sections 242.305(a) and (b),
242.307(a), 242.309(a), 242.311(b), 242.312(d), 242.313(c)-(e),
242.316(a), 242.317(c), (e), and (f), 242.318(d) and (e), and 242.323,
Chapter 242I, Health and Safety Code) of this bill.
SECTION BY SECTION ANALYSIS
C.L.C. S.B. 84 75(R)
ARTICLE I
SECTION 1.01. Amends Chapter 242, Health and Safety Code, to include
Subchapter I, as follows:
SUBCHAPTER I. NURSING FACILITY ADMINISTRATION
Sec. 242.301. DEFINITIONS. Defines "nursing facility," "nursing facility
administrator," and "practice of nursing facility administration."
Sec. 242.302. POWERS AND DUTIES OF DEPARTMENT. Requires the Texas Board
of Health (board) to adopt rules consistent with this subchapter.
Sec. 242.303. NURSING FACILITY ADMINISTRATORS ADVISORY COMMITTEE.
Provides that the Nursing Facility Administrators Advisory Committee
(committee) is appointed by the governor. Sets forth provisions regarding
membership and terms. Requires the committee to advise the board on the
licensing of nursing facility administrators, including the content of
applications under Section 242.306. Requires the committee to review all
complaints against administrators and make recommendations to the
department regarding disciplinary actions. Provides that failure of the
committee to review complaints and make recommendations in a timely
manner shall not prevent the department from taking disciplinary action.
Requires the committee to review and recommend rules and minimum standards
of conduct for the practice of nursing facility administration. Sets
forth provisions regarding appointments, compensation, expenses, and
vacancies.
Sec. 242.304. FEES; FUNDS. Requires the board, by rule, to set reasonable
and necessary fees to cover the cost of administering this subchapter.
Requires the Texas Department of Human Services (department) to receive
and account for funds received under this subchapter. Sets forth the
provisions regarding receiving, depositing, and disbursal of funds.
Sec. 242.305. PRACTICING WITHOUT A LICENSE. Prohibits any person from
acting as a nursing facility administrator or representing to others that
the person is a nursing facility administrator unless the person is
licensed under this subchapter.
Sec. 242.306. LICENSE APPLICATION; QUALIFICATIONS. Sets forth the
conditions for submitting an application. Requires the board to prescribe
the form of the application and may, by rule, establish dates by which
applications and fees must be received. Sets forth the educational,
training, and experience prerequisites for taking the licensing
examination. Requires an applicant who has not completed the course of
instruction and training to present evidence of having completed
sufficient education to enable the applicant to engage in nursing facility
administration, prior to taking the examination.
Sec. 242.307. EXAMINATION. Sets forth requirements for licensing
examinations including authorizing the board, by rule, to establish
additional educational requirements to be met by an applicant who fails
the examination three times.
Sec. 244.308. LICENSES; TEMPORARY LICENSE; INACTIVE STATUS. Sets forth
the requirements for a license and temporary license under this
subchapter. Authorizes the board, by rule, to provide for the issuance of
a temporary license. Requires rules adopted under this section to include
time limit for practicing under a temporary license. Authorizes the
board, by rule, to provide for inactive status.
Sec. 242.309. PROVISIONAL LICENSE. Requires the department to grant a
provisional license upon application. Sets forth the qualifications for
an applicant for provisional license. Requires the department to process
the application within a specified time.
Sec. 242.310. LICENSE RENEWAL. Sets forth the procedures and
requirements for renewing a license.
Sec. 242.311. MANDATORY CONTINUING EDUCATION. Requires the board, by
rule, to establish a minimum number of hours of continuing education
required to renew a license under this subchapter. Authorizes the
department to assess the continuing education needs of license holders and
to require license holders to attend continuing education courses
specified by the board. Requires the board to identify the key factors
for the competent performance of a license holder's duties. Requires the
department to adopt a procedure to assess a license holder's participation
in continuing education programs.
Sec. 242.312. COMPLAINT RECEIPT, INVESTIGATION, AND DISPOSITION. Sets
forth the requirements for the department regarding complaints and the
investigation of complaints. Requires the board, by rule, to establish
certain guidelines concerning investigation of complaints filed with the
department.
Sec. 242.313. SANCTIONS. Establishes the conditions under which the
board is authorized to revoke, suspend, or refuse to renew a nursing
facility administrator's license, assess an administrative penalty, issue
a written reprimand, require participation in continuing education, or
place an administrator on probation. Requires the board, by rule, to
adopt a broad schedule of sanctions for violations under this subchapter.
Requires the board, by rule, to establish criteria to regarding
deficiencies and sets forth provisions regarding the criteria. Requires
the disciplinary action to be reversed if a deficiency on which a
disciplinary action against an administrator is initiated or completed is
not substantiated.
Sec. 242.314. WRITTEN REPRIMAND AND CONTINUING EDUCATION AS SANCTIONS.
Authorizes the department to issue a written reprimand to a license holder
who violates this subchapter or require the violator to participate in
continuing education programs. Requires the department to specify which
continuing education programs may be attended and the number of hours that
must be completed.
Sec. 242.315. ADMINISTRATIVE PENALTY AS SANCTIONS. Sets forth the
requirements for an administrative penalty against a person licensed or
regulated under this subchapter, who violated this subchapter or a rule
adopted by the board.
Sec. 242.316. NOTICE AND HEARING. Requires the department to notify
the person who allegedly committed the violation, if the department
determines a violation has occurred. Sets forth the requirements for
notification of the violation. Sets forth the procedures by which a
person can, upon notification, request a hearing or accept the penalty.
Requires the department to notify the person and hold a hearing, if the
person does not respond to the notice regarding the violation. Sets forth
the requirements for notification of the hearing.
Sec. 242.317. INFORMAL PROCEEDINGS. Requires the department, by rule, to
adopt procedures governing informal proceedings. Requires rules adopted
under this section to provide the complainant and license holder an
opportunity to be heard.
Sec. 242.318. MONITORING OF LICENSE HOLDER. Requires the department,
by rule, to develop a system for monitoring a license holder's compliance
with the requirements of this subchapter. Requires rules adopted under
this section to include procedures for monitoring a license holder who is
ordered by the board to perform certain acts to ascertain that the license
holder performs the required acts and to identify and monitor license
holders who represent a risk to the public.
Sec. 242.319. CIVIL PENALTY. Requires a person who violates this
subchapter to be liable to the state for a civil penalty of $1,000 for
each day of the violation. Requires the attorney general to bring an
action to recover a civil penalty, at the request of the department.
Sec. 242.320. ASSISTANCE OF ATTORNEY GENERAL. Requires the attorney
general to provide legal assistance as necessary in enforcing the
provisions of the subchapter. Provides that this requirement does not
relieve a local prosecuting officer of any of the prosecuting officer's
duties under the law.
Sec. 242.321. OFFENSE. Provides that a person commits a Class B
misdemeanor if the person knowingly or intentionally violated Section
242.304.
Sec. 242.322. PROTECTION FOR REFUSAL TO ENGAGE IN CERTAIN CONDUCT.
Prohibits a person from suspending, terminating, or otherwise disciplining
or discriminating against a licensed nursing facility administrator who
refuses to engage in an act or omission relating to the administrator's
job duties or responsibilities that would constitute a violation of this
subchapter or of a rule adopted under this subchapter, if the
administrator notifies the person at the time of the refusal that the
reason for refusing is that the act or omission constitutes a violation of
this subchapter or of a rule adopted under this subchapter. Provides that
an act by a person under Subsection (a) does not constitute a violation of
this section under certain conditions. Provides that a violation of this
section is an unlawful practice and authorizes a civil action to be
brought by a licensed nursing facility administrator against a person for
its violation. Sets forth additional provisions regarding a civil action.
Defines "person."
SECTION 1.02. Amends Section 232.002, Family Code, to conform to Section
85, Chapter 751, Acts of the 74th Legislature, 1995, and further amended
to make conforming and nonsubstantive changes.
SECTION 1.03. Effective date for Article 1: September 1, 1997.
SECTION 1.04. Abolishes the Texas Board of Nursing Facility Administrators
(TBNFA). Provides that the department assumes functions of TBNFA on the
effective date of this article. Provides that the obligations, rights,
contracts, and records of the TBNFA are transferred to the department.
Requires all rules of TBNFA in place on the effective date of this article
to continue in effect as rules of the department, provided that the
committee shall review the rules by March 1, 1998, and any rules not
readopted by the department before that date shall be abolished. Sets
forth provision regarding the transference of property, employees,
unexpended funds, licenses, complaints, investigations, and other
proceedings.
SECTION 1.05. Sets forth provisions regarding initial appointments to the
committee.
SECTION 1.06. Provides that if the federal government issues a ruling that
the system established under this article for licensure of nursing
facility administrators does not comply with federal regulations, this
article expires and Article 2 of this Act takes effect.
ARTICLE 2
SECTION 2.01. Amends Chapter 242, Health and Safety Code, by adding
Subchapter I, as follows:
SUBCHAPTER I. NURSING FACILITY ADMINISTRATION
Sec. 242.301. DEFINITIONS. Defines "board," "nursing facility," "nursing
facility administrator," or "administrator," and "practice of nursing
facility administration."
Sec. 242.302. TEXAS BOARD OF NURSING FACILITY ADMINISTRATORS. Provides
that TBNFA is within the department. Sets forth provisions regarding the
composition of TBNFA. Provides that appointments to TBNFA shall be made
without regard to the race, color, disability, sex, religion, or national
origin of the person appointed.
Sec. 242.303. MEMBERSHIP REQUIREMENTS. Sets forth requirements for a
member of TBNFA who is an administrator. Sets forth prohibitions for a
member or employee of TBNFA.
Sec. 242.304. GROUNDS FOR REMOVAL. Sets forth the grounds for removal
from TBNFA.
Sec. 242.305. BOARD OFFICERS; MEETINGS; QUORUM; EXPENSES. Sets forth
requirements for TBNFA regarding the election of a presiding officer and
an assistant presiding officer. Requires TBNFA to hold at least two
regular meetings each year as provided by rules adopted by TBNFA.
Provides that a majority of the members constitutes a quorum. Provides
that each member of TBNFA is entitled to compensation for transportation
expenses as provided by the General Appropriations Act.
Sec. 242.306. APPLICATION OF OPEN MEETINGS AND ADMINISTRATIVE PROCEDURES
ACT. Provides that TBNFA is subject to Chapters 551 and 2001, Government
Code.
Sec. 242.307. POWERS AND DUTIES OF THE BOARD. Authorizes TBNFA to adopt
rules that are consistent with this subchapter regarding ethics,
qualifications for applicants for licenses and license renewal, the
spending of funds, the establishment of reasonable and necessary fees, the
establishment of a minimum numbers of hours of continuing education for
license renewal, and the assessment of the continuing needs of license
holders. Provides that TBNFA is the licensing authority for the healing
arts and requires TBNFA to meet certain requirements.
Sec. 242.308. ADMINISTRATIVE FUNCTIONS. Requires the department to serve
as the administrator of the licensing activities under this subchapter and
to provide staff as necessary for the licensing and regulation of nursing
facility administrators under this subchapter. Authorizes the department,
under certain conditions, to secure and provide for compensation for
certain services, and to employ certain persons.
Sec. 242.309. FEES; FUNDS. Requires TBNFA, by rule, to set reasonable
and necessary fees in amounts necessary to cover the cost of administering
this subchapter. Authorizes TBNFA, by rule, to set different licensing
fees for different categories of licenses. Sets forth provisions
regarding the receiving, accounting, and depositing of funds received
under this subchapter. Authorizes the department to receive and disburse
funds received from any federal source for the furtherance of the
department's functions under this subchapter.
Sec. 242.310. PRACTICING WITHOUT A LICENSE. Prohibits a person from
acting as a nursing facility administrators or from representing to others
that the person is a nursing facility administrator unless the person is
licensed under this subchapter.
Sec. 242.311. LICENSE APPLICATION; QUALIFICATIONS. Requires an applicant
for a nursing facility administrator's license to submit a sworn
application that is accompanied by the application fee. Authorizes the
board to prescribe the form of the application and, by rule, to establish
dates by which applications and fees must be received. Sets forth
requirements for an applicant for a nursing facility administrator's
license.
Sec. 242.312. EXAMINATION. Set forth requirements for TBNFA regarding
the licensing examination. Authorizes TBNFA to establish, by rule,
additional educational requirements to be met by an applicant who fails
the examination three times.
Sec. 242.313. LICENSES; TEMPORARY LICENSE; INACTIVE STATUS. Provides
that a person who meets the requirements for licensing under this
subchapter is entitled to receive a license. Provides that a nursing
facility administrator's license is not transferable. Requires a person
licensed under this subchapter to notify TBNFA of the license holder's
correct mailing address. Sets forth additional provisions regarding a
license and authorizes TBNFA, by rule, to adopt a system under which
licenses expire on various dates during the two-year period. Sets forth
provisions regarding temporary licenses and inactive status.
Sec. 242.314. PROVISIONAL LICENSE. Requires TBNFA, on application, to
grant a provisional license under this subchapter. Sets forth
requirements for an applicant for a provisional license under this
section. Authorizes an applicant for a provisional license to be excused
from certain requirements if TBNFA makes certain determinations. Sets
forth additional provisions regarding a provisional license.
Sec. 242.315. LICENSE RENEWAL. Authorizes a person to renew an unexpired
license by paying to TBNFA before the expiration of the license the
required renewal fee. Sets forth provisions applicable if a person's
license has expired. Requires TBNFA, at least 30 days before the
expiration of a person's license, to send written notice of the impending
expiration to the person.
Sec. 242.316. MANDATORY CONTINUING EDUCATION. Authorizes TBNFA, by rule,
to establish a minimum number of hours of continuing education required to
renew a license under this subchapter. Authorizes TBNFA to assess the
continuing education needs of license holders and to require license
holders to attend certain continuing education courses.
Sec. 242.317. COMPLAINT RECEIPT, INVESTIGATION, AND DISPOSITION.
Requires TBNFA to keep an information file about each complaint filed with
TBNFA regarding a person licensed under this subchapter. Sets forth
requirements regarding the keeping of an information file. Sets forth
provisions regarding the filing of a written complaint with TBNFA.
Authorizes TBNFA, by rule, to adopt a form to standardize information
concerning complaints made to TBNFA. Sets forth additional provisions
regarding complaints and the investigation of complaints.
Sec. 242.318. SANCTIONS. Authorizes TBNFA to revoke, suspend, or refuse
to renew a nursing facility administrator's license, assess an
administrative penalty, issue a written reprimand, require participation
in continuing education, or place an administrator on probation, after due
notice and hearing, and on proof of certain grounds. Authorizes TBNFA, if
a license sanction is probated, to require the license holder to take
certain actions. Provides that a license holder is entitled to a hearing
in accordance with rules promulgated by TBNFA before a sanction is imposed
under this section. Requires TBNFA, by rule, to adopt a broad schedule of
sanctions for violations under this chapter and to use the schedule for
any sanction imposed as the result of a hearing conducted in accordance
with the rules. Requires the board, by rule, to establish criteria to
regarding deficiencies and sets forth provisions regarding the criteria.
Requires the disciplinary action to be reversed if a deficiency on which a
disciplinary action against an administrator is initiated or completed is
not substantiated.
Sec. 242.319. WRITTEN REPRIMAND AND CONTINUING EDUCATION AS SANCTIONS.
Authorizes TBNFA, in addition to the other disciplinary actions authorized
under this subchapter, to issue a written reprimand under this subchapter
to a license holder who violates this subchapter or require a license
holder who violates this subchapter to participate in continuing education
programs. Requires TBNFA to specify the continuing education programs
that may be attended and the number of hours that must be completed.
Sec. 242.320. ADMINISTRATIVE PENALTY AS SANCTION. Authorizes the
department to imposed an administrative penalty against a person licensed
or regulated under this subchapter who violates this subchapter or a rule
adopted by TBNFA under this subchapter. Sets forth provisions regarding
the amount of the penalty and the basis of the penalty.
Sec. 242.321. NOTICE AND HEARING. Sets forth provisions regarding notice
and hearing that are applicable if the department determines that a
violation has occurred.
Sec. 242.322. INFORMAL PROCEEDINGS. Requires the department, by rule, to
adopt procedures governing certain informal dispositions and informal
proceedings.
Sec. 242.323. MONITORING OF LICENSE HOLDER. Requires TBNFA, by rule, to
develop a system for monitoring a license holder's compliance with the
requirements of this subchapter. Requires rules adopted under this
section to include procedures for monitoring a license holder who is
required by TBNFA to perform certain acts to ascertain that the license
holder performs the required acts and to identify and monitor license
holders who represent a risk to the public.
Sec. 242.324. CIVIL PENALTY. Provides that a person who violates this
subchapter is liable to the state for a civil penalty of $1,000 for each
day of violation. Requires the attorney general, at the request of the
department, to bring an action to recover a civil penalty established by
this section.
Sec. 242.325. ASSISTANCE OF ATTORNEY GENERAL. Requires the attorney
general to provide legal assistance as necessary in enforcing the
provisions of this subchapter. Provides that this requirement does not
relieve a local prosecuting officer of any of the prosecuting officer's
duties under the law.
Sec. 242.326. OFFENSE. Provides that a person commits a Class B
misdemeanor if the person knowingly or intentionally violates Section
242.310.
Sec. 242.327. PROTECTION FOR REFUSAL TO ENGAGE IN CERTAIN CONDUCT.
Prohibits a person from suspending, terminating, or otherwise disciplining
or discriminating against a licensed nursing facility administrator who
refuses to engage in an act or omission relating to the administrator's
job duties or responsibilities that would constitute a violation of this
subchapter or of a rule adopted under this subchapter, if the
administrator notifies the person at the time of the refusal that the
reason for refusing is that the act or omission constitutes a violation of
this subchapter or of a rule adopted under this subchapter. Provides that
an act by a person under Subsection (a) does not constitute a violation of
this section under certain conditions. Provides that a violation of this
section is an unlawful practice and authorizes a civil action to be
brought by a licensed nursing facility administrator against a person for
its violation. Sets forth additional provisions regarding a civil action.
Defines "person."
SECTION 2.02. Provides that this article takes effect only if Article 1 of
this Act expires, on the date that article expires, as provided by SECTION
1.06 of this Act.
SECTION 2.03. Sets forth requirements regarding the making of initial
appointments to the TBNFA.
SECTION 2.04. Provides that any rules of the department adopted under
Chapter 242I, Health and Safety Code, as added by Article 1 of this Act,
or as provided by Section 1.04(b) of this Act, in place on the effective
date of this article shall continue in effect as a rule of TBNFA.
Provides that the obligations, rights, contracts, and records of the
department transferred to that agency by the department under Chapter
242I, Health and Safety Code, as added by Article 1 of this Act, before
the expiration of that article, are transferred to TBNFA as necessary
under the provisions of Chapter 242I, Health and Safety Code, as added by
this article. Provides that a license in effect that was issued by the
department under Chapter 242I, Health and Safety Code, as added by Article
1 of this Act, is continued in effect as a license of TBNFA. Provides
that a complaint, investigation, or other proceeding relating to the
licensure and regulation of nursing facility administrators pending before
the department under Chapter 242I, Health and Safety Code, as added by
Article 1 of this Act, is transferred without change in status to TBNFA as
necessary under the provisions of Chapter 242I, Health and Safety Code, as
added by this article.
ARTICLE 3
SECTION 3.01. Repealer: Article 4512q, V.T.C.S. ( Texas Nursing Facility
Administrators Licensure Act).
SECTION 3.02. Emergency clause.
EXPLANATION OF AMENDMENTS
Amendment 1:
(1)Strikes SECTION 1.05, Article 1, and substitutes language requiring the
governor to make the initial appointments to the Nursing Facility
Administrators Advisory Committee by October 1, 1997.
(2)Strikes SECTION 2.03, Article 2, and substitutes language requiring the
governor to make the initial appointments to the Texas Board of Nursing
Facility Administrators no later than one month following the effective
date of the bill. In the same section, the amendment clarifies that the
governor must designate the term of the initial members so that three
member's terms expire February 1 of each odd-numbered year and so that
succeeding members serve six-year staggered terms. This sentence deletes
the provision prohibiting initial members from serving for more than two
years.