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.