By Smithee H.B. No. 1276
75R1772 DLF-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of nursing homes and similar facilities
1-3 and nursing facility administrators.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 ARTICLE 1. REGULATION OF NURSING HOMES AND SIMILAR FACILITIES
1-6 SECTION 1.01. Section 222.0255(b), Health and Safety Code,
1-7 is amended to read as follows:
1-8 (b) The standards must comply with federal regulations. The
1-9 department may adopt and enforce minimum standards that are more
1-10 stringent than the standards imposed by federal regulations. If the
1-11 federal regulations at the time of adoption are less stringent than
1-12 the state standards, the department shall keep and comply with the
1-13 state standards.
1-14 SECTION 1.02. Section 242.037(b), Health and Safety Code, as
1-15 added by Chapter 1049, Acts of the 74th Legislature, Regular
1-16 Session, 1995, is redesignated as Subsection (c) and amended to
1-17 read as follows:
1-18 (c) An [(b) Notwithstanding Section 222.0255(b), an]
1-19 institution that is certified as being in compliance with each
1-20 standard of participation in the state Medicaid program that
1-21 relates to the same subject matter as a minimum standard
1-22 established under Subsection (a) is not required to satisfy the
1-23 minimum standard established under that subsection unless the
1-24 minimum standard established under Subsection (a) is more stringent
2-1 than the standard for participation in the state Medicaid program.
2-2 SECTION 1.03. Subchapter A, Chapter 242, Health and Safety
2-3 Code, is amended by adding Section 242.015 to read as follows:
2-4 Sec. 242.015. TOLL-FREE NUMBER. (a) The department shall
2-5 maintain a toll-free telephone number to facilitate distribution of
2-6 information to be made available under Subsection (b).
2-7 (b) The department, through the toll-free telephone number,
2-8 shall provide to the public:
2-9 (1) the number of complaints made against a particular
2-10 institution during the 18-month period preceding the date of the
2-11 inquiry;
2-12 (2) the subject matter of each complaint described by
2-13 Subdivision (1); and
2-14 (3) the disposition of each complaint described by
2-15 Subdivision (1).
2-16 SECTION 1.04. Section 242.033(a), Health and Safety Code, is
2-17 amended to read as follows:
2-18 (a) After receiving an application for a license, the
2-19 department may [shall] issue the license if, after inspection and
2-20 investigation, it finds that the applicant and facilities meet the
2-21 requirements established under this chapter. The department may
2-22 decline to issue the license if it finds that the involvement of
2-23 any person listed in Section 242.0335(a) in the operation of the
2-24 institution would pose a risk to the health, safety, or welfare of
2-25 the residents.
2-26 SECTION 1.05. Section 242.042, Health and Safety Code, is
2-27 amended to read as follows:
3-1 Sec. 242.042. POSTING. (a) Each institution shall
3-2 prominently and conspicuously post for display in a public area of
3-3 the institution that is readily available to residents, employees,
3-4 and visitors:
3-5 (1) the license issued under this chapter;
3-6 (2) a sign prescribed by the department that specifies
3-7 complaint procedures established under this chapter or rules
3-8 adopted under this chapter and that specifies how complaints may be
3-9 registered with the department;
3-10 (3) a notice in a form prescribed by the department
3-11 stating that inspection and related reports are available at the
3-12 institution for public inspection and providing the department's
3-13 toll-free telephone number that may be used to obtain information
3-14 concerning the institution; [and]
3-15 (4) a concise summary of the most recent inspection
3-16 report relating to the institution; and
3-17 (5) if applicable, a statement that the institution
3-18 has received notice of a violation under Section 242.071 and the
3-19 substance of the alleged violation.
3-20 (b) A statement posted under Subsection (a)(5) must remain
3-21 posted until the department notifies the institution under Section
3-22 242.071(b) that the violation has been corrected.
3-23 SECTION 1.06. Subchapter B, Chapter 242, Health and Safety
3-24 Code, is amended by adding Section 242.0335 to read as follows:
3-25 Sec. 242.0335. EVALUATION OF BACKGROUND AND QUALIFICATIONS.
3-26 (a) The department shall evaluate the background and
3-27 qualifications of:
4-1 (1) the applicant; and
4-2 (2) a partner, officer, director, managing employee,
4-3 or owner of the applicant.
4-4 (b) In making the evaluation required by Subsection (a), the
4-5 department may consider:
4-6 (1) arrests and criminal convictions of any person
4-7 described by Subsection (a) that occurred during the 10-year period
4-8 preceding the date of the application; and
4-9 (2) professional licensing complaints against any
4-10 person described by Subsection (a) made in any state during the
4-11 10-year period preceding the date of the application.
4-12 (c) The department may require the applicant to file any
4-13 information necessary to make the evaluation described by
4-14 Subsections (a) and (b).
4-15 SECTION 1.07. Subchapter C, Chapter 242, Health and Safety
4-16 Code, is amended by adding Section 242.071 to read as follows:
4-17 Sec. 242.071. NOTICE OF VIOLATION. (a) At any time the
4-18 department finds that a violation of this chapter or a rule or
4-19 order adopted or a license issued under this chapter has occurred,
4-20 the department shall notify the affected institution, specifying
4-21 the form and content of the statement that must be posted in
4-22 compliance with Section 242.042(a)(5).
4-23 (b) The department shall notify the institution as soon as
4-24 practicable after the department finds that the violation for which
4-25 notice is posted has been corrected.
4-26 SECTION 1.08. Section 32.021(h), Human Resources Code, is
4-27 repealed.
5-1 SECTION 1.09. The Texas Department of Human Services shall
5-2 establish the toll-free telephone number required by Section
5-3 242.015, Health and Safety Code, as added by this Act, not later
5-4 than January 1, 1998.
5-5 SECTION 1.10. Section 242.033, Health and Safety Code, as
5-6 amended by this Act, and Section 242.0335, Health and Safety Code,
5-7 as added by this Act, apply only to a license issued to an
5-8 institution under Chapter 242, Health and Safety Code, on or after
5-9 January 1, 1998.
5-10 SECTION 1.11. An institution is not required to post notice
5-11 of a violation under Section 242.042(a)(5), Health and Safety Code,
5-12 as added by this Act, unless the institution receives notice in
5-13 accordance with Section 242.071, Health and Safety Code, as added
5-14 by this Act, on or after the effective date of this Act.
5-15 ARTICLE 2. REGULATION OF NURSING FACILITY ADMINISTRATORS
5-16 SECTION 2.01. Section 2, Texas Nursing Facility
5-17 Administrators Licensure Act (Article 4512q, Revised Statutes), is
5-18 amended to read as follows:
5-19 Sec. 2. DEFINITIONS. In this article:
5-20 (1) "Board" means the Texas Board of Human Services
5-21 [Nursing Facility Administrators].
5-22 (2) "Commissioner" means the commissioner of human
5-23 services.
5-24 (3) "Department" means the Texas Department of Human
5-25 Services [Health].
5-26 (4) [(3)] "Nursing facility" means an institution or
5-27 facility that is licensed as a nursing home, nursing facility,
6-1 skilled nursing facility, or custodial care home by the department
6-2 under Chapter 242, Health and Safety Code.
6-3 (5) [(4)] "Nursing facility administrator" or
6-4 "administrator" means a person who engages in the practice of
6-5 nursing facility administration without regard to whether the
6-6 person has an ownership interest in the facility or whether the
6-7 functions and duties are shared with any other person.
6-8 (6) [(5)] "Practice of nursing facility
6-9 administration" means the performance of the acts of administering,
6-10 managing, supervising, or being in general administrative charge of
6-11 a nursing facility.
6-12 SECTION 2.02. Section 3, Texas Nursing Facility
6-13 Administrators Licensure Act (Article 4512q, Revised Statutes), is
6-14 amended to read as follows:
6-15 Sec. 3. ADMINISTRATION OF ARTICLE. This article is
6-16 administered by the department under the direction of the board.
6-17 [CREATION OF THE BOARD. (a) The Texas Board of Nursing Facility
6-18 Administrators is created within the department.]
6-19 [(b) The board is composed of nine members appointed by the
6-20 governor. Three members must be members of the public, and six
6-21 members must be nursing facility administrators licensed under this
6-22 article. Appointments to the board shall be made without regard to
6-23 the race, color, disability, sex, religion, or national origin of
6-24 the person appointed.]
6-25 [(c) Members of the board serve staggered six-year terms,
6-26 with the terms of three members expiring on February 1 of each
6-27 odd-numbered year. A person appointed to fill a vacancy on the
7-1 board shall serve for the unexpired portion of the term for which
7-2 the person is appointed.]
7-3 [(d) The board shall include the state long-term care
7-4 ombudsman of the Texas Department on Aging and the Commissioner of
7-5 Human Services, or the commissioner's designee, as nonvoting, ex
7-6 officio members. These ex officio members shall serve at no
7-7 expense to the department or the board.]
7-8 SECTION 2.03. Section 9, Texas Nursing Facility
7-9 Administrators Licensure Act (Article 4512q, Revised Statutes), is
7-10 amended to read as follows:
7-11 Sec. 9. ADMINISTRATIVE FUNCTIONS[; EXECUTIVE SECRETARY].
7-12 [(a)] The department shall provide the personnel and necessary
7-13 facilities required to administer this article. If necessary to
7-14 the administration of this article, the department may secure and
7-15 provide for compensation for services that the department considers
7-16 necessary and may employ and compensate within available
7-17 appropriations professional consultants, technical assistants, and
7-18 employees on a full-time or part-time basis.
7-19 [(b) The commissioner of health shall designate an employee
7-20 to serve as executive secretary of the board. The executive
7-21 secretary must be an employee of the department. The executive
7-22 secretary is the administrator of the licensing activities under
7-23 this article. The executive secretary shall carry out other
7-24 functions as may be required by the board or the department to
7-25 administer this article.]
7-26 SECTION 2.04. Section 10(a), Texas Nursing Facility
7-27 Administrators Licensure Act (Article 4512q, Revised Statutes), is
8-1 amended to read as follows:
8-2 (a) The department [board] shall prepare information of
8-3 public interest describing the functions of the board and the
8-4 department under this article and the procedures by which
8-5 complaints are filed with and resolved by the department [board].
8-6 The department [board] shall make the information available to the
8-7 public and appropriate state agencies.
8-8 SECTION 2.05. Section 11(d), Texas Nursing Facility
8-9 Administrators Licensure Act (Article 4512q, Revised Statutes), is
8-10 amended to read as follows:
8-11 (d) The board may receive and disburse funds received from
8-12 any federal source for the furtherance of the department's
8-13 [board's] functions under this article.
8-14 SECTION 2.06. Sections 14(a), (b), and (c), Texas Nursing
8-15 Facility Administrators Licensure Act (Article 4512q, Revised
8-16 Statutes), are amended to read as follows:
8-17 (a) The licensing examination shall be prepared or approved
8-18 by the board and administered by the department [board] to
8-19 qualified applicants at least twice each calendar year. The board
8-20 shall have the written portion of the examination, if any,
8-21 validated by a testing professional.
8-22 (b) Not later than the 30th day after the date on which a
8-23 licensing examination is administered under this article, the
8-24 department [board] shall notify each examinee of the results of the
8-25 examination. If an examination is graded or reviewed by a national
8-26 or state testing service, the department [board] shall notify
8-27 examinees of the results of the examination not later than two
9-1 weeks after the date the department [board] receives the results
9-2 from the testing service. If the notice of the examination results
9-3 will be delayed for more than 90 days after the examination date,
9-4 the department [board] shall notify the examinee of the reason for
9-5 the delay before the 90th day.
9-6 (c) If requested in writing by a person who fails the
9-7 licensing examination, the department [board] shall furnish the
9-8 person with an analysis of the person's performance on the
9-9 examination.
9-10 SECTION 2.07. Section 15(b), Texas Nursing Facility
9-11 Administrators Licensure Act (Article 4512q, Revised Statutes), is
9-12 amended to read as follows:
9-13 (b) A person licensed under this article must notify the
9-14 department [board] of the license holder's correct mailing address.
9-15 SECTION 2.08. Sections 16(a), (c), and (d), Texas Nursing
9-16 Facility Administrators Licensure Act (Article 4512q, Revised
9-17 Statutes), are amended to read as follows:
9-18 (a) On application, the department [board] shall grant a
9-19 provisional license under this article. An applicant for a
9-20 provisional license under this section must:
9-21 (1) be licensed in good standing as a nursing facility
9-22 administrator in another state, the District of Columbia, or a
9-23 territory of the United States that has licensing requirements that
9-24 are substantially equivalent to the requirements of this article;
9-25 (2) have passed a national or other examination
9-26 recognized by the board relating to the practice of nursing
9-27 facility administration; and
10-1 (3) be sponsored by a person licensed under this
10-2 article with whom the provisional license holder may practice under
10-3 this section.
10-4 (c) A provisional license is valid until the date the
10-5 department [board] approves or denies the provisional license
10-6 holder's application for a license. The department [board] shall
10-7 issue a license under this article to the holder of a provisional
10-8 license under this section if:
10-9 (1) the provisional license holder passes the
10-10 examination required by Section 14 of this article;
10-11 (2) the department [board] verifies that the
10-12 provisional license holder has the academic and experience
10-13 requirements for a license under this article; and
10-14 (3) the provisional license holder satisfies any other
10-15 license requirements under this article.
10-16 (d) The department [board] shall complete the processing of
10-17 a provisional license holder's application for a license not later
10-18 than the 180th day after the date the provisional license is
10-19 issued. The department [board] may extend this time in order to
10-20 receive the results of a national examination or other examination
10-21 administered or graded by an outside organization recognized by the
10-22 board.
10-23 SECTION 2.09. Sections 17 and 19, Texas Nursing Facility
10-24 Administrators Licensure Act (Article 4512q, Revised Statutes), are
10-25 amended to read as follows:
10-26 Sec. 17. LICENSE RENEWAL. (a) A person may renew an
10-27 unexpired license by paying to the department [board] before the
11-1 expiration of the license the required renewal fee.
11-2 (b) If a person's license has been expired for 90 days or
11-3 less, the person may renew the license by paying to the department
11-4 [board] the required renewal fee and a fee that is one-half of the
11-5 examination fee for the license.
11-6 (c) If a person's license has been expired for longer than
11-7 90 days but less than one year, the person may renew the license by
11-8 paying to the department [board] all unpaid renewal fees and a fee
11-9 that is equal to the examination fee for the license.
11-10 (d) If a person's license has been expired for one year or
11-11 longer, the person may not renew the license. The person may
11-12 obtain a new license by complying with the requirements and
11-13 procedures for obtaining an original license. However, the
11-14 department [board] may renew without reexamination an expired
11-15 license of a person who was licensed in this state, moved to
11-16 another state, and is currently licensed and has been in practice
11-17 in the other state for the two years preceding application. The
11-18 person must pay to the department [board] a fee that is equal to
11-19 the examination fee for the license.
11-20 (e) At least 30 days before the expiration of a person's
11-21 license, the department [board] shall send written notice of the
11-22 impending license expiration to the person at the license holder's
11-23 last known address according to the records of the department
11-24 [board].
11-25 Sec. 19. COMPLAINT RECEIPT, INVESTIGATION, AND DISPOSITION.
11-26 (a) The department [board] shall keep an information file about
11-27 each complaint filed with the department [board]. The [board's]
12-1 information file shall be kept current and contain a record for
12-2 each complaint of:
12-3 (1) all persons contacted in relation to the
12-4 complaint;
12-5 (2) a summary of findings made at each step of the
12-6 complaint process;
12-7 (3) an explanation of the legal basis and reason for a
12-8 complaint that is dismissed; and
12-9 (4) other relevant information.
12-10 (b) If a written complaint is filed with the department
12-11 [board] that the department [board] has authority to resolve, the
12-12 department [board], at least as frequently as quarterly and until
12-13 final disposition of the complaint, shall notify the parties to the
12-14 complaint of the status of the complaint unless the notice would
12-15 jeopardize an undercover investigation.
12-16 (c) The board by rule shall adopt a form to standardize
12-17 information concerning complaints made to the department [board].
12-18 The board by rule shall prescribe information to be provided to a
12-19 person when the person files a complaint with the department
12-20 [board].
12-21 (d) The department [board] shall provide reasonable
12-22 assistance to a person who wishes to file a complaint with the
12-23 department [board].
12-24 (e) The board shall adopt rules concerning the investigation
12-25 of a complaint filed with the department [board]. The rules
12-26 adopted under this subsection shall:
12-27 (1) distinguish between categories of complaints;
13-1 (2) ensure that complaints are not dismissed without
13-2 appropriate consideration;
13-3 (3) require that the board be advised of a complaint
13-4 that is dismissed and that a letter be sent to the person who filed
13-5 the complaint explaining the action taken on the dismissed
13-6 complaint;
13-7 (4) ensure that the person who filed the complaint has
13-8 an opportunity to explain the allegations made in the complaint;
13-9 and
13-10 (5) prescribe guidelines concerning the categories of
13-11 complaints that require the use of a private investigator and the
13-12 procedures for the department [board] to obtain the services of a
13-13 private investigator.
13-14 (f) The department [board] shall dispose of all complaints
13-15 in a timely manner. The board by rule shall establish a schedule
13-16 for conducting each phase of a complaint that is under the control
13-17 of the department [board] not later than the 30th day after the
13-18 date the complaint is received by the department [board]. The
13-19 schedule shall be kept in the information file for the complaint,
13-20 and all parties shall be notified of the projected time
13-21 requirements for pursuing the complaint. A change in the schedule
13-22 must be noted in the complaint information file and all parties to
13-23 the complaint must be notified not later than the seventh day after
13-24 the date the change is made.
13-25 (g) The commissioner [executive secretary] shall notify the
13-26 board of a complaint that extends beyond the time prescribed by the
13-27 board for resolving the complaint so that the board may take
14-1 necessary action on the complaint.
14-2 SECTION 2.10. Sections 20(a), (b), and (c), Texas Nursing
14-3 Facility Administrators Licensure Act (Article 4512q, Revised
14-4 Statutes), are amended to read as follows:
14-5 (a) The department [board] may revoke, suspend, or refuse to
14-6 renew a nursing facility administrator's license, assess an
14-7 administrative penalty under Section 22 of this article, issue a
14-8 written reprimand, require participation in continuing education,
14-9 or place an administrator on probation after due notice and hearing
14-10 on proof of any of the following grounds:
14-11 (1) the license holder has wilfully or repeatedly
14-12 violated a provision of this article or a rule adopted under this
14-13 article;
14-14 (2) the license holder has wilfully or repeatedly
14-15 acted in a manner inconsistent with the health and safety of the
14-16 patients of a facility of which the license holder is an
14-17 administrator;
14-18 (3) the license holder obtained or attempted to obtain
14-19 a license through misrepresentation or deceit or by making a
14-20 material misstatement of fact on a license application;
14-21 (4) the intemperate use of alcohol or drugs by the
14-22 license holder in the board's opinion creates a hazard to the
14-23 patients of a facility;
14-24 (5) a judgment of a court of competent jurisdiction
14-25 finds that the license holder is mentally incapacitated;
14-26 (6) the license holder has been convicted in a court
14-27 of competent jurisdiction of a misdemeanor or felony involving
15-1 moral turpitude; or
15-2 (7) the license holder has been negligent or
15-3 incompetent in the license holder's duties as a nursing facility
15-4 administrator.
15-5 (b) If a license suspension is probated, the board may
15-6 require the license holder to:
15-7 (1) report regularly to the department [board] on
15-8 matters that are the basis of the probation;
15-9 (2) limit practice to the areas prescribed by the
15-10 board; or
15-11 (3) continue or review continuing professional
15-12 education until the license holder attains a degree of skill
15-13 satisfactory to the board in those areas that are the basis of the
15-14 probation.
15-15 (c) A license holder is entitled to a hearing before the
15-16 hearings examiner designated by the department [board] before a
15-17 sanction is imposed under this section.
15-18 SECTION 2.11. Sections 22(a), (d)-(n), and (r), Texas
15-19 Nursing Facility Administrators Licensure Act (Article 4512q,
15-20 Revised Statutes), are amended to read as follows:
15-21 (a) The department [board] may impose an administrative
15-22 penalty against a person licensed or regulated under this article
15-23 who violates this article or a rule or order adopted by the board
15-24 under this article.
15-25 (d) The department may issue a preliminary report stating
15-26 the facts on which it concludes that a violation of this article or
15-27 a rule or order adopted by the board under this article has
16-1 occurred if it has examined the possible violation and facts
16-2 surrounding the possible violation and concluded that a violation
16-3 has occurred. The report may recommend a penalty under this
16-4 section and [If the executive secretary determines that a violation
16-5 has occurred, the executive secretary may issue to the board a
16-6 report that states the facts on which the determination is based
16-7 and the executive secretary's recommendation on the imposition of a
16-8 penalty, including a recommendation on] the amount of the penalty.
16-9 (e) Within 14 days after the date the report is issued, the
16-10 department [executive secretary] shall give written notice of the
16-11 report to the person. The notice may be given by certified mail.
16-12 The notice must include a brief summary of the alleged violation
16-13 and a statement of the amount of the recommended penalty and must
16-14 inform the person that the person has a right to a hearing on the
16-15 occurrence of the violation, the amount of the penalty, or both the
16-16 occurrence of the violation and the amount of the penalty.
16-17 (f) Within 20 days after the date the person receives the
16-18 notice, the person in writing may accept the determination and
16-19 recommended penalty of the department [executive secretary] or may
16-20 make a written request for a hearing on the occurrence of the
16-21 violation, the amount of the penalty, or both the occurrence of the
16-22 violation and the amount of the penalty.
16-23 (g) If the person accepts the determination and recommended
16-24 penalty of the department [executive secretary], the commissioner
16-25 or the commissioner's designee shall assess the administrative
16-26 penalty recommended by the department or order a hearing to be held
16-27 on the findings and recommendations in the department's report. If
17-1 the commissioner or the commissioner's designee assesses the
17-2 recommended penalty, the department shall give written notice to
17-3 the person charged and the person shall pay the [board by order
17-4 shall approve the determination and impose the recommended]
17-5 penalty.
17-6 (h) If the commissioner or the commissioner's designee
17-7 orders a hearing or the person requests a hearing or fails to
17-8 respond timely to the notice, the commissioner [board] shall set a
17-9 hearing and give notice of the hearing to the person. The hearing
17-10 shall be held by a hearings examiner designated by the commissioner
17-11 or the commissioner's designee [board]. The hearings examiner
17-12 shall make findings of fact and conclusions of law and promptly
17-13 issue to the commissioner or the commissioner's designee [board] a
17-14 proposal for a decision about the occurrence of the violation and
17-15 the amount of a proposed penalty. Based on the findings of fact,
17-16 conclusions of law, and proposal for a decision, the commissioner
17-17 [board] by order may find that a violation has occurred and impose
17-18 a penalty or may find that no violation occurred.
17-19 (i) The notice of the commissioner's [board's] order given
17-20 to the person under Chapter 2001, Government Code, [the
17-21 Administrative Procedure and Texas Register Act (Article 6252-13a,
17-22 Vernon's Texas Civil Statutes) and its subsequent amendments] must
17-23 include a statement of the right of the person to judicial review
17-24 of the order.
17-25 (j) Within 30 days after the date the commissioner's
17-26 [board's] order is final as provided by Section 2001.144,
17-27 Government Code [Section 16(c), Administrative Procedure and Texas
18-1 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), and
18-2 its subsequent amendments], the person shall:
18-3 (1) pay the amount of the penalty;
18-4 (2) pay the amount of the penalty and file a petition
18-5 for judicial review contesting the occurrence of the violation, the
18-6 amount of the penalty, or both the occurrence of the violation and
18-7 the amount of the penalty; or
18-8 (3) without paying the amount of the penalty, file a
18-9 petition for judicial review contesting the occurrence of the
18-10 violation, the amount of the penalty, or both the occurrence of the
18-11 violation and the amount of the penalty.
18-12 (k) Within the 30-day period, a person who acts under
18-13 Subsection (j)(3) of this section may:
18-14 (1) stay enforcement of the penalty by:
18-15 (A) paying the amount of the penalty to the
18-16 court for placement in an escrow account; or
18-17 (B) giving to the court a supersedeas bond that
18-18 is approved by the court for the amount of the penalty and that is
18-19 effective until all judicial review of the commissioner's [board's]
18-20 order is final; or
18-21 (2) request the court to stay enforcement of the
18-22 penalty by:
18-23 (A) filing with the court a sworn affidavit of
18-24 the person stating that the person is financially unable to pay the
18-25 amount of the penalty and is financially unable to give the
18-26 supersedeas bond; and
18-27 (B) giving a copy of the affidavit to the
19-1 department [board] by certified mail.
19-2 (l) If the department [board] receives a copy of an
19-3 affidavit under Subsection (k)(2) of this section, the department
19-4 [board] may file with the court, within five days after the date
19-5 the copy is received, a contest to the affidavit. The court shall
19-6 hold a hearing on the facts alleged in the affidavit as soon as
19-7 practicable and shall stay the enforcement of the penalty on
19-8 finding that the alleged facts are true. The person who files an
19-9 affidavit has the burden of proving that the person is financially
19-10 unable to pay the amount of the penalty and to give a supersedeas
19-11 bond.
19-12 (m) If the person does not pay the amount of the penalty and
19-13 the enforcement of the penalty is not stayed, the commissioner
19-14 [board] may refer the matter to the attorney general for collection
19-15 of the amount of the penalty.
19-16 (n) Judicial review of the order of the commissioner
19-17 [board]:
19-18 (1) is instituted by filing a petition as provided by
19-19 Section 2001.176, Government Code [Section 19, Administrative
19-20 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
19-21 Civil Statutes), and its subsequent amendments]; and
19-22 (2) is under the substantial evidence rule.
19-23 (r) All proceedings under this section are subject to
19-24 Chapter 2001, Government Code [the Administrative Procedure and
19-25 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
19-26 Statutes) and its subsequent amendments].
19-27 SECTION 2.12. Sections 23, 24, and 25, Texas Nursing
20-1 Facility Administrators Licensure Act (Article 4512q, Revised
20-2 Statutes), are amended to read as follows:
20-3 Sec. 23. INFORMAL PROCEEDINGS. (a) The board by rule shall
20-4 adopt procedures governing:
20-5 (1) informal disposition of a contested case under
20-6 Section 2001.056, Government Code [Section 13(e), Administrative
20-7 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
20-8 Civil Statutes), and its subsequent amendments]; and
20-9 (2) informal proceedings held in compliance with
20-10 Section 2001.054(c), Government Code [Section 18(c), Administrative
20-11 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
20-12 Civil Statutes), and its subsequent amendments].
20-13 (b) Rules adopted under this section must provide the
20-14 complainant and the license holder an opportunity to be heard and
20-15 must require the presence of a legal representative to advise the
20-16 board or the department's [board's] employees.
20-17 Sec. 24. MONITORING OF LICENSE HOLDER. The board by rule
20-18 shall develop a system for monitoring a license holder's compliance
20-19 with the requirements of this article. Rules adopted under this
20-20 section shall include procedures for monitoring a license holder
20-21 who, in accordance with this article, is ordered [by the board] to
20-22 perform certain acts to ascertain that the license holder performs
20-23 the required acts and to identify and monitor license holders who
20-24 represent a risk to the public.
20-25 Sec. 25. CIVIL PENALTY. A person who violates this article
20-26 is liable to the state for a civil penalty of $1,000 for each day
20-27 of violation. At the request of the department [board], the
21-1 attorney general shall bring an action to recover a civil penalty
21-2 established by this section.
21-3 SECTION 2.13. Section 232.002, Family Code, is amended to
21-4 read as follows:
21-5 Sec. 232.002. LICENSING AUTHORITIES SUBJECT TO CHAPTER. The
21-6 following state agencies are licensing authorities subject to this
21-7 chapter [subchapter]:
21-8 (1) Department of Agriculture;
21-9 (2) Texas Commission on Alcohol and Drug Abuse;
21-10 (3) Texas Alcoholic Beverage Commission;
21-11 (4) Texas Appraiser Licensing and Certification Board;
21-12 (5) Texas Board of Architectural Examiners;
21-13 (6) State Board of Barber Examiners;
21-14 (7) Texas Board of Chiropractic Examiners;
21-15 (8) Comptroller of Public Accounts;
21-16 (9) Texas Cosmetology Commission;
21-17 (10) Court Reporters Certification Board;
21-18 (11) State Board of Dental Examiners[, if the 74th
21-19 Legislature, at its regular session, enacts legislation that
21-20 becomes law authorizing a state agency to regulate the practice of
21-21 dentistry];
21-22 (12) Texas State Board of Examiners of Dietitians;
21-23 (13) Texas Funeral Service Commission;
21-24 (14) Texas Department of Health;
21-25 (15) Texas Board of Professional Land Surveying;
21-26 (16) Texas Department of Licensing and Regulation;
21-27 (17) Texas State Board of Examiners of Marriage and
22-1 Family Therapists;
22-2 (18) Texas State Board of Medical Examiners;
22-3 (19) Midwifery Board;
22-4 (20) Texas Natural Resource Conservation Commission;
22-5 (21) Board of Nurse Examiners;
22-6 (22) Texas Department of Human Services, with respect
22-7 to the licensing of nursing facility administrators [Texas Board of
22-8 Nursing Facility Administrators];
22-9 (23) Texas Board of Occupational Therapy Examiners;
22-10 (24) Texas Optometry Board;
22-11 (25) Parks and Wildlife Department;
22-12 (26) Texas State Board of Examiners of Perfusionists;
22-13 (27) Texas State Board of Pharmacy;
22-14 (28) Texas Board of Physical Therapy Examiners;
22-15 (29) Texas State Board of Plumbing Examiners;
22-16 (30) Texas State Board of Podiatric Medical [Podiatry]
22-17 Examiners;
22-18 (31) Polygraph Examiners Board;
22-19 (32) Texas Board of Private Investigators and Private
22-20 Security Agencies;
22-21 (33) Texas State Board of Examiners of Professional
22-22 Counselors;
22-23 (34) State Board of Registration for Professional
22-24 Engineers;
22-25 (35) Department of Protective and Regulatory Services;
22-26 (36) Texas State Board of Examiners of Psychologists;
22-27 (37) Texas State Board of Public Accountancy;
23-1 (38) Department of Public Safety of the State of
23-2 Texas;
23-3 (39) Public Utility Commission of Texas;
23-4 (40) Railroad Commission of Texas;
23-5 (41) Texas Real Estate Commission;
23-6 (42) State Bar of Texas;
23-7 (43) Texas State Board of Social Worker Examiners;
23-8 (44) State Board of Examiners for Speech-Language
23-9 Pathology and Audiology;
23-10 (45) Texas Structural Pest Control Board;
23-11 (46) Board of Tax Professional Examiners;
23-12 (47) Secretary of State;
23-13 (48) Supreme Court of Texas;
23-14 (49) Texas Transportation Commission;
23-15 (50) State Board of Veterinary Medical Examiners;
23-16 (51) Board of Vocational Nurse Examiners;
23-17 (52) Texas Ethics Commission;
23-18 (53) Advisory Board of Athletic Trainers;
23-19 (54) State Committee of Examiners in the Fitting and
23-20 Dispensing of Hearing Instruments;
23-21 (55) Texas Board of Licensure for Professional Medical
23-22 Physicists; and
23-23 (56) Texas Department of Insurance.
23-24 SECTION 2.14. Sections 4, 5, 6, 7, and 28, Texas Nursing
23-25 Facility Administrators Licensure Act (Article 4512q, Revised
23-26 Statutes), are repealed.
23-27 SECTION 2.15. (a) The Texas Board of Nursing Facility
24-1 Administrators is abolished and the Texas Department of Human
24-2 Services shall assume the board's duties, in accordance with the
24-3 changes in law made by this Act, effective January 1, 1998.
24-4 (b) Not later than December 31, 1997, the Texas Board of
24-5 Nursing Facility Administrators shall transfer to the Texas
24-6 Department of Human Services all documents and other property in
24-7 the possession of the Texas Board of Nursing Facility
24-8 Administrators.
24-9 (c) On January 1, 1998, all unspent appropriations made to
24-10 the Texas Board of Nursing Facility Administrators for the
24-11 activities of that agency are transferred to the Texas Department
24-12 of Human Services.
24-13 ARTICLE 3. EFFECTIVE DATE; EMERGENCY
24-14 SECTION 3.01. This Act takes effect September 1, 1997.
24-15 SECTION 3.02. The importance of this legislation and the
24-16 crowded condition of the calendars in both houses create an
24-17 emergency and an imperative public necessity that the
24-18 constitutional rule requiring bills to be read on three several
24-19 days in each house be suspended, and this rule is hereby suspended.