By: Moncrief, West S.B. No. 84
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the licensure and regulation of nursing facility
1-2 administrators; providing penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 ARTICLE 1
1-5 SECTION 1.01. Chapter 242, Health and Safety Code, is
1-6 amended by adding Subchapter I to read as follows:
1-7 SUBCHAPTER I. NURSING FACILITY ADMINISTRATION
1-8 Sec. 242.301. DEFINITIONS. In this subchapter:
1-9 (1) "Nursing facility" means an institution or
1-10 facility that is licensed as a nursing home, nursing facility, or
1-11 skilled nursing facility by the department under this chapter.
1-12 (2) "Nursing facility administrator" or
1-13 "administrator" means a person who engages in the practice of
1-14 nursing facility administration, without regard to whether the
1-15 person has an ownership interest in the facility or whether the
1-16 functions and duties are shared with any other person.
1-17 (3) "Practice of nursing facility administration"
1-18 means the performance of the acts of administering, managing,
1-19 supervising, or being in general administrative charge of a nursing
1-20 facility.
1-21 Sec. 242.302. POWERS AND DUTIES OF DEPARTMENT. (a) The
1-22 board may adopt rules consistent with this subchapter.
1-23 (b) The department shall:
2-1 (1) adopt and publish a code of ethics for nursing
2-2 facility administrators;
2-3 (2) establish the qualifications of applicants for
2-4 licenses and the renewal of licenses issued under this subchapter;
2-5 (3) spend funds necessary for the proper
2-6 administration of the department's assigned duties under this
2-7 subchapter;
2-8 (4) establish reasonable and necessary fees for the
2-9 administration and implementation of this subchapter; and
2-10 (5) establish a minimum number of hours of continuing
2-11 education required to renew a license issued under this subchapter
2-12 and periodically assess the continuing education needs of license
2-13 holders to determine whether specific course content should be
2-14 required.
2-15 (c) The department is the licensing agency for the healing
2-16 arts, as provided by 42 U.S.C. Section 1396g.
2-17 Sec. 242.303. NURSING FACILITY ADMINISTRATORS ADVISORY
2-18 COMMITTEE. (a) The Nursing Facility Administrators Advisory
2-19 Committee is appointed by the governor.
2-20 (b) Members of the committee serve for staggered terms of
2-21 six years, with the terms of three members expiring on February 1
2-22 of each odd-numbered year.
2-23 (c) The committee shall consist of:
2-24 (1) three licensed nursing facility administrators, at
2-25 least one of whom shall represent a not-for-profit nursing
3-1 facility;
3-2 (2) one physician with experience in geriatrics who is
3-3 not employed by a nursing facility;
3-4 (3) one registered nurse with experience in geriatrics
3-5 who is not employed by a nursing facility;
3-6 (4) one social worker with experience in geriatrics
3-7 who is not employed by a nursing facility; and
3-8 (5) three public members with experience working with
3-9 the chronically ill and infirm as provided by 42 U.S.C. Section
3-10 1396g.
3-11 (d) The committee shall advise the board on the licensing of
3-12 nursing facility administrators, including the content of
3-13 applications for licensure and of the examination administered to
3-14 license applicants under Section 242.306. The committee shall
3-15 review and recommend rules and minimum standards of conduct for the
3-16 practice of nursing facility administration. The committee shall
3-17 review all complaints against administrators and make
3-18 recommendations to the department regarding disciplinary actions.
3-19 Failure of the committee to review complaints and make
3-20 recommendations in a timely manner shall not prevent the department
3-21 from taking disciplinary action.
3-22 (e) Appointments to the committee shall be made without
3-23 regard to the race, color, disability, sex, religion, or national
3-24 origin of the person appointed.
3-25 (f) A member of the committee receives no compensation but
4-1 is entitled to reimbursement for actual and necessary expenses
4-2 incurred in performing the member's duties under this section.
4-3 (g) The department shall pay the expenses of the committee
4-4 and shall supply necessary personnel and supplies.
4-5 (h) A vacancy in a position on the committee shall be filled
4-6 in the same manner in which the position was originally filled and
4-7 shall be filled by a person who meets the qualifications of the
4-8 vacated position.
4-9 Sec. 242.304. FEES; FUNDS. (a) The board by rule shall set
4-10 reasonable and necessary fees in amounts necessary to cover the
4-11 cost of administering this subchapter. The board by rule may set
4-12 different licensing fees for different categories of licenses.
4-13 (b) The department shall receive and account for funds
4-14 received under this subchapter. The funds shall be deposited in
4-15 the state treasury to the credit of the general revenue fund.
4-16 (c) The department may receive and disburse funds received
4-17 from any federal source for the furtherance of the department's
4-18 functions under this subchapter.
4-19 Sec. 242.305. PRACTICING WITHOUT A LICENSE. A person may
4-20 not act as a nursing facility administrator or represent to others
4-21 that the person is a nursing facility administrator unless the
4-22 person is licensed under this subchapter.
4-23 Sec. 242.306. LICENSE APPLICATION; QUALIFICATIONS. (a) An
4-24 applicant for a nursing facility administrator's license must
4-25 submit a sworn application that is accompanied by the application
5-1 fee.
5-2 (b) The board shall prescribe the form of the application
5-3 and may by rule establish dates by which applications and fees must
5-4 be received.
5-5 (c) An applicant for a nursing facility administrator's
5-6 license must take a licensing examination under this subchapter.
5-7 To qualify for the licensing examination, the applicant must have
5-8 satisfactorily completed a course of instruction and training
5-9 prescribed by the board that is conducted by or in cooperation with
5-10 an accredited postsecondary educational institution and that is
5-11 designed and administered to provide sufficient knowledge of:
5-12 (1) the needs served by nursing facilities;
5-13 (2) the laws governing the operation of nursing
5-14 facilities and the protection of the interests of facility
5-15 residents; and
5-16 (3) the elements of nursing facility administration.
5-17 (d) An applicant who has not completed the course of
5-18 instruction and training described by Subsection (c) must present
5-19 evidence satisfactory to the department of having completed
5-20 sufficient education, training, and experience in the fields
5-21 described by Subsection (c) to enable the applicant to engage in
5-22 the practice of nursing facility administration.
5-23 Sec. 242.307. EXAMINATION. (a) The licensing examination
5-24 shall be prepared or approved by the department and shall be
5-25 administered by the department to qualified applicants at least
6-1 twice each calendar year. The department shall have the written
6-2 portion of the examination, if any, validated by a testing
6-3 professional.
6-4 (b) Not later than the 30th day after the date on which a
6-5 licensing examination is administered under this subchapter, the
6-6 department shall notify each examinee of the results of the
6-7 examination. If an examination is graded or reviewed by a national
6-8 or state testing service, the department shall notify examinees of
6-9 the results of the examination not later than two weeks after the
6-10 date the department receives the results from the testing service.
6-11 If the notice of the examination results will be delayed for more
6-12 than 90 days after the examination date, the department shall
6-13 notify the examinee of the reason for the delay before the 90th
6-14 day.
6-15 (c) If requested in writing by a person who fails the
6-16 licensing examination, the department shall furnish the person with
6-17 an analysis of the person's performance on the examination.
6-18 (d) The board may establish by rule additional educational
6-19 requirements to be met by an applicant who fails the examination
6-20 three times.
6-21 Sec. 242.308. LICENSES; TEMPORARY LICENSE; INACTIVE STATUS.
6-22 (a) A person who meets the requirements for licensing under this
6-23 subchapter is entitled to receive a license. A nursing facility
6-24 administrator's license is not transferable.
6-25 (b) A person licensed under this subchapter must notify the
7-1 department of the license holder's correct mailing address.
7-2 (c) A license is valid for two years. The board by rule may
7-3 adopt a system under which licenses expire on various dates during
7-4 the two-year period. For the year in which a license expiration
7-5 date is changed, license fees payable on the original expiration
7-6 date shall be prorated on a monthly basis so that each license
7-7 holder shall pay only that portion of the license fee that is
7-8 allocable to the number of months during which the license is
7-9 valid. On renewal of the license on the new expiration date, the
7-10 total license renewal fee is payable.
7-11 (d) The board by rule may provide for the issuance of a
7-12 temporary license. Rules adopted under this section shall include
7-13 a time limit for a licensee to practice under a temporary license.
7-14 (e) The board by rule may provide for a license holder to be
7-15 placed on inactive status.
7-16 Sec. 242.309. PROVISIONAL LICENSE. (a) On application, the
7-17 department shall grant a provisional license under this subchapter.
7-18 An applicant for a provisional license under this section must:
7-19 (1) be licensed in good standing as a nursing facility
7-20 administrator in another state, the District of Columbia, or a
7-21 territory of the United States that has licensing requirements that
7-22 are substantially equivalent to the requirements of this
7-23 subchapter;
7-24 (2) have passed a national or other examination
7-25 recognized by the board relating to the practice of nursing
8-1 facility administration; and
8-2 (3) be sponsored by a person licensed under this
8-3 subchapter with whom the provisional license holder may practice
8-4 under this section.
8-5 (b) An applicant for a provisional license may be excused
8-6 from the requirement of Subsection (a)(3) if the department
8-7 determines that compliance with that subsection constitutes a
8-8 hardship to the applicant.
8-9 (c) A provisional license is valid until the date the
8-10 department approves or denies the provisional license holder's
8-11 application for a license. The department shall issue a license
8-12 under this subchapter to the holder of a provisional license under
8-13 this section if:
8-14 (1) the provisional license holder passes the
8-15 examination required by Section 242.306(c);
8-16 (2) the department verifies that the provisional
8-17 license holder has the academic and experience requirements for a
8-18 license under this subchapter; and
8-19 (3) the provisional license holder satisfies all other
8-20 license requirements under this subchapter.
8-21 (d) The department shall complete the processing of a
8-22 provisional license holder's application for a license not later
8-23 than the 180th day after the date the provisional license is
8-24 issued. The department may extend this time in order to receive
8-25 the results of a national examination or other examination
9-1 administered or graded by an outside organization recognized by the
9-2 department.
9-3 Sec. 242.310. LICENSE RENEWAL. (a) A person may renew an
9-4 unexpired license by paying to the department before the expiration
9-5 of the license the required renewal fee.
9-6 (b) If a person's license has been expired for 90 days or
9-7 less, the person may renew the license by paying to the department
9-8 the required renewal fee and a fee that is one-half of the
9-9 examination fee for the license.
9-10 (c) If a person's license has been expired for longer than
9-11 90 days but less than one year, the person may renew the license by
9-12 paying to the department all unpaid renewal fees and a fee that is
9-13 equal to the examination fee for the license.
9-14 (d) If a person's license has been expired for one year or
9-15 longer, the person may not renew the license. The person may
9-16 obtain a new license by complying with the requirements and
9-17 procedures for obtaining an original license. However, the
9-18 department may renew without reexamination an expired license of a
9-19 person who was licensed in this state, moved to another state, and
9-20 is currently licensed and has been in practice in the other state
9-21 for the two years preceding application. Such person must pay to
9-22 the department a fee that is equal to the examination fee for the
9-23 license.
9-24 (e) At least 30 days before the expiration of a person's
9-25 license, the department shall send written notice of the impending
10-1 license expiration to the person at the license holder's last known
10-2 address according to the records of the department.
10-3 Sec. 242.311. MANDATORY CONTINUING EDUCATION. (a) The
10-4 board by rule shall establish a minimum number of hours of
10-5 continuing education required to renew a license under this
10-6 subchapter. The department may assess the continuing education
10-7 needs of license holders and may require license holders to attend
10-8 continuing education courses specified by the board.
10-9 (b) The board shall identify the key factors for the
10-10 competent performance by a license holder of the license holder's
10-11 professional duties. The department shall adopt a procedure to
10-12 assess a license holder's participation in continuing education
10-13 programs.
10-14 Sec. 242.312. COMPLAINT RECEIPT, INVESTIGATION, AND
10-15 DISPOSITION. (a) The department shall keep an information file
10-16 concerning each complaint filed with the department regarding a
10-17 person licensed under this subchapter. The department's
10-18 information file shall be kept current and shall contain a record
10-19 for each complaint of:
10-20 (1) all persons contacted in relation to the
10-21 complaint;
10-22 (2) a summary of findings made at each step of the
10-23 complaint process;
10-24 (3) an explanation of the legal basis and reason for a
10-25 complaint that is dismissed; and
11-1 (4) other relevant information.
11-2 (b) If a written complaint is filed with the department that
11-3 the department has authority to resolve, the department, at least
11-4 quarterly and until final disposition of the complaint, shall
11-5 notify the parties to the complaint of the status of the complaint
11-6 unless the notice would jeopardize an undercover investigation.
11-7 (c) The board by rule shall adopt a form to standardize
11-8 information concerning complaints made to the department. The
11-9 board by rule shall prescribe information to be provided to a
11-10 person when the person files a complaint with the department.
11-11 (d) The department shall provide reasonable assistance to a
11-12 person who wishes to file a complaint with the department.
11-13 (e) The board shall adopt rules concerning the investigation
11-14 of complaints filed with the department. The rules adopted under
11-15 this subsection shall:
11-16 (1) distinguish between categories of complaints;
11-17 (2) ensure that complaints are not dismissed without
11-18 appropriate consideration;
11-19 (3) require that the board be advised at least
11-20 quarterly of complaints that have been dismissed and require that a
11-21 letter be sent to each person who has filed a complaint that is
11-22 dismissed explaining the action taken on the complaint;
11-23 (4) ensure that the person who filed the complaint has
11-24 an opportunity to explain the allegations made in the complaint;
11-25 and
12-1 (5) prescribe guidelines concerning the categories of
12-2 complaints that may require the use of a private investigator and
12-3 the procedures to be followed by the department in obtaining the
12-4 services of a private investigator.
12-5 (f) The department shall dispose of all complaints in a
12-6 timely manner. The board by rule shall establish a schedule for
12-7 initiating a complaint investigation that is under the control of
12-8 the department not later than the 30th day after the date the
12-9 complaint is received by the department. The schedule shall be
12-10 kept in the information file for the complaint, and all parties
12-11 shall be notified of the projected time requirements for pursuing
12-12 the complaint. A change in the schedule must be noted in the
12-13 complaint information file and all parties to the complaint must be
12-14 notified not later than the seventh day after the date the change
12-15 is made.
12-16 (g) The commissioner shall notify the board at least
12-17 quarterly of complaints that have extended beyond the time
12-18 prescribed by the board for resolving complaints so that the
12-19 department may take any necessary corrective actions on the
12-20 processing of complaints.
12-21 Sec. 242.313. SANCTIONS. (a) The department may revoke,
12-22 suspend, or refuse to renew a nursing facility administrator's
12-23 license, assess an administrative penalty, issue a written
12-24 reprimand, require participation in continuing education, or place
12-25 an administrator on probation, after due notice and hearing, on
13-1 proof of any of the following grounds:
13-2 (1) the license holder has wilfully or repeatedly
13-3 violated a provision of this subchapter or a rule adopted under
13-4 this subchapter;
13-5 (2) the license holder has wilfully or repeatedly
13-6 acted in a manner inconsistent with the health and safety of the
13-7 residents of a facility of which the license holder is an
13-8 administrator;
13-9 (3) the license holder obtained or attempted to obtain
13-10 a license through misrepresentation or deceit or by making a
13-11 material misstatement of fact on a license application;
13-12 (4) the license holder's use of alcohol or drugs
13-13 creates a hazard to the residents of a facility;
13-14 (5) a judgment of a court of competent jurisdiction
13-15 finds that the license holder is mentally incapacitated;
13-16 (6) the license holder has been convicted in a court
13-17 of competent jurisdiction of a misdemeanor or felony involving
13-18 moral turpitude; or
13-19 (7) the license holder has been negligent or
13-20 incompetent in the license holder's duties as a nursing facility
13-21 administrator.
13-22 (b) If a license sanction is probated, the department may
13-23 require the license holder to:
13-24 (1) report regularly to the department on matters that
13-25 are the basis of the probation;
14-1 (2) limit practice to the areas prescribed by the
14-2 department; or
14-3 (3) continue or review continuing professional
14-4 education until the license holder attains a degree of skill
14-5 satisfactory to the department in those areas that are the basis of
14-6 the probation.
14-7 (c) A license holder is entitled to a hearing in accordance
14-8 with rules promulgated by the board before a sanction is imposed
14-9 under this section.
14-10 (d) The board by rule shall adopt a broad schedule of
14-11 sanctions for violations under this subchapter. The department
14-12 shall use the schedule for any sanction imposed as the result of a
14-13 hearing conducted in accordance with the rules.
14-14 (e) The department shall by rule establish criteria to
14-15 determine whether deficiencies from a facility's survey warrant
14-16 action against an administrator. The criteria shall include a
14-17 determination of whether the survey indicates substandard quality
14-18 of care related to an act or failure to act by the administrator,
14-19 and whether a deficiency is related to an act or failure to act by
14-20 the administrator. If a deficiency on which a disciplinary action
14-21 against an administrator is initiated or completed is not
14-22 substantiated, the disciplinary action shall be reversed.
14-23 Sec. 242.314. WRITTEN REPRIMAND AND CONTINUING EDUCATION AS
14-24 SANCTIONS. In addition to the other disciplinary actions
14-25 authorized under this subchapter, the department may issue a
15-1 written reprimand to a license holder who violates this subchapter
15-2 or may require that a license holder who violates this subchapter
15-3 participate in continuing education programs. The department shall
15-4 specify the continuing education programs that may be attended and
15-5 the number of hours that must be completed by a license holder to
15-6 fulfill the requirements of this section.
15-7 Sec. 242.315. ADMINISTRATIVE PENALTY AS SANCTION. (a) The
15-8 department may impose an administrative penalty against a person
15-9 licensed or regulated under this subchapter who violates this
15-10 subchapter or a rule adopted by the board under this subchapter.
15-11 (b) The penalty for a violation may be in an amount not to
15-12 exceed $1,000. Each day a violation occurs or continues is a
15-13 separate violation for purposes of imposing a penalty.
15-14 (c) The amount of the penalty shall be based on:
15-15 (1) the seriousness of the violation, including the
15-16 nature, circumstances, extent, and gravity of any prohibited acts,
15-17 and the hazard or potential hazard created to the health, safety,
15-18 or economic welfare of the public;
15-19 (2) the economic harm to property or the environment
15-20 caused by the violation;
15-21 (3) the history of previous violations;
15-22 (4) the amount necessary to deter future violations;
15-23 (5) efforts to correct the violations; and
15-24 (6) any other matter that justice may require.
15-25 Sec. 242.316. NOTICE AND HEARING. (a) If the department
16-1 determines that a violation has occurred, the department shall give
16-2 written notice of the determination to the person alleged to have
16-3 committed the violation. The notice may be given by certified
16-4 mail. The notice must include a brief summary of the alleged
16-5 violation and a statement of the amount of the recommended penalty
16-6 and must inform the person that the person has a right to a hearing
16-7 on the occurrence of the violation, the amount of the penalty, or
16-8 both the occurrence of the violation and the amount of the penalty.
16-9 (b) Within 20 days after the date the person receives the
16-10 notice, the person in writing may accept the determination and the
16-11 penalty recommended by the department or may make a written request
16-12 for a hearing on the occurrence of the violation, the amount of the
16-13 penalty, or both the occurrence of the violation and the amount of
16-14 the penalty.
16-15 (c) If the person accepts the determination and the penalty
16-16 recommended by the department, the department shall impose the
16-17 recommended penalty.
16-18 (d) If the person requests a hearing or fails to respond
16-19 timely to the notice, the department shall set a hearing and give
16-20 notice of the hearing to the person. The hearing shall be held in
16-21 accordance with the department's rules on contested case hearings.
16-22 (e) The notice of the hearing decision given to the person
16-23 under Chapter 2001, Government Code, must include a statement of
16-24 the right of the person to judicial review of the decision.
16-25 (f) Within 30 days after the date the department's decision
17-1 is final as provided by Section 2001.144, Government Code, the
17-2 person shall:
17-3 (1) pay the amount of the penalty;
17-4 (2) pay the amount of the penalty and file a petition
17-5 for judicial review contesting the occurrence of the violation, the
17-6 amount of the penalty, or both the occurrence of the violation and
17-7 the amount of the penalty; or
17-8 (3) without paying the amount of the penalty, file a
17-9 petition for judicial review contesting the occurrence of the
17-10 violation, the amount of the penalty, or both the occurrence of the
17-11 violation and the amount of the penalty.
17-12 (g) Within the 30-day period, a person who acts under
17-13 Subsection (f)(3) may:
17-14 (1) stay enforcement of the penalty by:
17-15 (A) paying the amount of the penalty to the
17-16 court for placement in an escrow account; or
17-17 (B) giving to the court a supersedeas bond that
17-18 is approved by the court for the amount of the penalty and that is
17-19 effective until all judicial review of the department's decision is
17-20 final; or
17-21 (2) request the court to stay enforcement of the
17-22 penalty by:
17-23 (A) filing with the court a sworn affidavit of
17-24 the person stating that the person is financially unable to pay the
17-25 amount of the penalty and is financially unable to give the
18-1 supersedeas bond; and
18-2 (B) sending a copy of the affidavit to the
18-3 department by certified mail.
18-4 (h) If the department receives a copy of an affidavit under
18-5 Subsection (g)(2), the department may file with the court, within
18-6 five days after the date the copy is received, a contest to the
18-7 affidavit. The court shall hold a hearing on the facts alleged in
18-8 the affidavit as soon as practicable and shall stay the enforcement
18-9 of the penalty on finding that the alleged facts are true. The
18-10 person who files an affidavit has the burden of proving that the
18-11 person is financially unable to pay the amount of the penalty and
18-12 to give a supersedeas bond.
18-13 (i) If the person does not pay the amount of the penalty and
18-14 the enforcement of the penalty is not stayed, the department may
18-15 refer the matter to the attorney general for collection of the
18-16 amount of the penalty.
18-17 (j) Judicial review of the decision of the department:
18-18 (1) is instituted by filing a petition as provided by
18-19 Section 2001.176, Government Code; and
18-20 (2) is under the substantial evidence rule.
18-21 (k) If the court sustains the occurrence of the violation,
18-22 the court may uphold or reduce the amount of the penalty and order
18-23 the person to pay the full or reduced amount of the penalty. If
18-24 the court does not sustain the occurrence of the violation, the
18-25 court shall order that no penalty is owed.
19-1 (l) When the judgment of the court becomes final, the court
19-2 shall proceed under this subsection. If the person paid the amount
19-3 of the penalty and if that amount is reduced or is not upheld by
19-4 the court, the court shall order that the appropriate amount plus
19-5 accrued interest be remitted to the person. The rate of the
19-6 interest is the rate charged on loans to depository institutions by
19-7 the New York Federal Reserve Bank, and the interest shall be paid
19-8 for the period beginning on the date the penalty was paid and
19-9 ending on the date the penalty is remitted. If the person gave a
19-10 supersedeas bond and if the amount of the penalty is not upheld by
19-11 the court, the court shall order the release of the bond. If the
19-12 person gave a supersedeas bond and if the amount of the penalty is
19-13 reduced, the court shall order the release of the bond after the
19-14 person pays the amount.
19-15 (m) A penalty collected under this section shall be remitted
19-16 to the comptroller for deposit in the general revenue fund.
19-17 (n) All proceedings under this section are subject to
19-18 Chapter 2001, Government Code.
19-19 Sec. 242.317. INFORMAL PROCEEDINGS. (a) The department by
19-20 rule shall adopt procedures governing:
19-21 (1) informal disposition of a contested case under
19-22 Section 2001.056, Government Code; and
19-23 (2) informal proceedings held in compliance with
19-24 Section 2001.054, Government Code.
19-25 (b) Rules adopted under this section must provide the
20-1 complainant and the license holder an opportunity to be heard.
20-2 Sec. 242.318. MONITORING OF LICENSE HOLDER. The department
20-3 by rule shall develop a system for monitoring a license holder's
20-4 compliance with the requirements of this subchapter. Rules adopted
20-5 under this section shall include procedures for monitoring a
20-6 license holder who is required by the department to perform certain
20-7 acts to ascertain that the license holder performs the required
20-8 acts and to identify and monitor license holders who represent a
20-9 risk to the public.
20-10 Sec. 242.319. CIVIL PENALTY. A person who violates this
20-11 subchapter is liable to the state for a civil penalty of $1,000 for
20-12 each day of violation. At the request of the department, the
20-13 attorney general shall bring an action to recover a civil penalty
20-14 established by this section.
20-15 Sec. 242.320. ASSISTANCE OF ATTORNEY GENERAL. The attorney
20-16 general shall provide legal assistance as necessary in enforcing
20-17 the provisions of this subchapter. This requirement does not
20-18 relieve a local prosecuting officer of any of the prosecuting
20-19 officer's duties under the law.
20-20 Sec. 242.321. OFFENSE. (a) A person commits an offense if
20-21 the person knowingly or intentionally violates Section 242.305.
20-22 (b) An offense under this section is a Class B misdemeanor.
20-23 Sec. 242.322. PROTECTION FOR REFUSAL TO ENGAGE IN CERTAIN
20-24 CONDUCT. (a) A person may not suspend, terminate, or otherwise
20-25 discipline or discriminate against a licensed nursing facility
21-1 administrator who refuses to engage in an act or omission relating
21-2 to the administrator's job duties or responsibilities that would
21-3 constitute a violation of this subchapter or of a rule adopted
21-4 under this subchapter, if the administrator notifies the person at
21-5 the time of the refusal that the reason for refusing is that the
21-6 act or omission constitutes a violation of this subchapter or of a
21-7 rule adopted under this subchapter.
21-8 (b) An act by a person under Subsection (a) does not
21-9 constitute a violation of this section if:
21-10 (1) the act or omission the administrator refused to
21-11 commit was not conduct that constitutes a violation of this
21-12 subchapter or of a rule adopted under this subchapter; or
21-13 (2) the act or omission the administrator refused to
21-14 commit was conduct that constitutes a violation of this subchapter
21-15 or of a rule adopted under this subchapter, and the person rescinds
21-16 any disciplinary or discriminatory action taken against the
21-17 administrator, compensates the administrator for lost wages, and
21-18 restores any lost benefits to the administrator.
21-19 (c) A violation of this section is an unlawful employment
21-20 practice, and a civil action may be brought by a licensed nursing
21-21 facility administrator against a person for the violation. The
21-22 relief available in a civil action shall be the same as the relief
21-23 available to complainants in a civil action for violations of
21-24 Chapter 21, Labor Code. In no event may any action be brought
21-25 pursuant to this section more than two years after the date of the
22-1 administrator's refusal to engage in an act or omission that would
22-2 constitute a violation of this subchapter or of a rule adopted
22-3 under this subchapter.
22-4 (d) In this section, "person" includes an individual,
22-5 organization, corporation, agency, facility, or other entity.
22-6 SECTION 1.02. Section 232.002, Family Code, is amended to
22-7 conform to Section 85, Chapter 751, Acts of the 74th Legislature,
22-8 1995, and further amended to read as follows:
22-9 Sec. 232.002. Licensing Authorities Subject to Chapter. The
22-10 following state agencies are licensing authorities subject to this
22-11 chapter [subchapter]:
22-12 (1) Department of Agriculture;
22-13 (2) Texas Commission on Alcohol and Drug Abuse;
22-14 (3) Texas Alcoholic Beverage Commission;
22-15 (4) Texas Appraiser Licensing and Certification Board;
22-16 (5) Texas Board of Architectural Examiners;
22-17 (6) State Board of Barber Examiners;
22-18 (7) Texas Board of Chiropractic Examiners;
22-19 (8) Comptroller of Public Accounts;
22-20 (9) Texas Cosmetology Commission;
22-21 (10) Court Reporters Certification Board;
22-22 (11) State Board of Dental Examiners[, if the 74th
22-23 Legislature, at its regular session, enacts legislation that
22-24 becomes law authorizing a state agency to regulate the practice of
22-25 dentistry];
23-1 (12) Texas State Board of Examiners of Dietitians;
23-2 (13) Texas Funeral Service Commission;
23-3 (14) Texas Department of Health;
23-4 (15) Texas Department of Human Services;
23-5 (16) Texas Board of Professional Land Surveying;
23-6 (17) [(16)] Texas Department of Licensing and
23-7 Regulation;
23-8 (18) [(17)] Texas State Board of Examiners of Marriage
23-9 and Family Therapists;
23-10 (19) [(18)] Texas State Board of Medical Examiners;
23-11 (20) [(19)] Midwifery Board;
23-12 (21) [(20)] Texas Natural Resource Conservation
23-13 Commission;
23-14 (22) [(21)] Board of Nurse Examiners;
23-15 [(22) Texas Board of Nursing Facility Administrators;]
23-16 (23) Texas Board of Occupational Therapy Examiners;
23-17 (24) Texas Optometry Board;
23-18 (25) Parks and Wildlife Department;
23-19 (26) Texas State Board of Examiners of Perfusionists;
23-20 (27) Texas State Board of Pharmacy;
23-21 (28) Texas Board of Physical Therapy Examiners;
23-22 (29) Texas State Board of Plumbing Examiners;
23-23 (30) Texas State Board of Podiatry Examiners;
23-24 (31) Polygraph Examiners Board;
23-25 (32) Texas Board of Private Investigators and Private
24-1 Security Agencies;
24-2 (33) Texas State Board of Examiners of Professional
24-3 Counselors;
24-4 (34) State Board of Registration for Professional
24-5 Engineers;
24-6 (35) Department of Protective and Regulatory Services;
24-7 (36) Texas State Board of Examiners of Psychologists;
24-8 (37) Texas State Board of Public Accountancy;
24-9 (38) Department of Public Safety of the State of
24-10 Texas;
24-11 (39) Public Utility Commission of Texas;
24-12 (40) Railroad Commission of Texas;
24-13 (41) Texas Real Estate Commission;
24-14 (42) State Bar of Texas;
24-15 (43) Texas State Board of Social Worker Examiners;
24-16 (44) State Board of Examiners for Speech-Language
24-17 Pathology and Audiology;
24-18 (45) Texas Structural Pest Control Board;
24-19 (46) Board of Tax Professional Examiners;
24-20 (47) Secretary of State;
24-21 (48) Supreme Court of Texas;
24-22 (49) Texas Transportation Commission;
24-23 (50) State Board of Veterinary Medical Examiners;
24-24 (51) Board of Vocational Nurse Examiners;
24-25 (52) Texas Ethics Commission;
25-1 (53) Advisory Board of Athletic Trainers;
25-2 (54) State Committee of Examiners in the Fitting and
25-3 Dispensing of Hearing Instruments;
25-4 (55) Texas Board of Licensure for Professional Medical
25-5 Physicists; and
25-6 (56) Texas Department of Insurance.
25-7 SECTION 1.03. This article takes effect September 1, 1997.
25-8 SECTION 1.04. (a) The Texas Board of Nursing Facility
25-9 Administrators is abolished on the effective date of this article.
25-10 (b) On the effective date of this article, the Texas
25-11 Department of Human Services assumes the functions of the Texas
25-12 Board of Nursing Facility Administrators. The obligations, rights,
25-13 contracts, and records of the Texas Board of Nursing Facility
25-14 Administrators are transferred to the Texas Department of Human
25-15 Services.
25-16 (c) All rules of the Texas Board of Nursing Facility
25-17 Administrators in place on the effective date of this article shall
25-18 continue in effect as rules of the Texas Department of Human
25-19 Services, provided that the Nursing Facility Administrators
25-20 Advisory Committee shall review the rules by March 1, 1998, and any
25-21 rules not readopted by the Texas Department of Human Services
25-22 before that date shall be abolished.
25-23 (d) All property and unexpended funds of the Texas Board of
25-24 Nursing Facility Administrators on the effective date of this
25-25 article are transferred to the Texas Department of Human Services.
26-1 All property, employees, and unexpended funds of the Texas
26-2 Department of Health used for purposes relating to the licensure
26-3 and regulation of nursing facility administrators are transferred
26-4 on the effective date of this article to the Texas Department of
26-5 Human Services.
26-6 (e) A license in effect that was issued by the abolished
26-7 board is continued in effect as a license of the Texas Department
26-8 of Human Services.
26-9 (f) A complaint, investigation, or other proceeding pending
26-10 before the abolished board is transferred without change in status
26-11 to the Texas Department of Human Services.
26-12 (g) Any reference in law to the Texas Board of Nursing
26-13 Facility Administrators means the Texas Department of Human
26-14 Services.
26-15 SECTION 1.05. In making the initial appointments to the
26-16 Nursing Facility Administrators Advisory Committee, as provided by
26-17 Section 242.303, Health and Safety Code, as added by this article,
26-18 the governor shall designate three members for a term expiring on
26-19 February 1, 1999, three members for a term expiring on February 1,
26-20 2001, and three members for a term expiring on February 1, 2003.
26-21 SECTION 1.06. If the federal government issues a ruling that
26-22 the system established under this article for licensure of nursing
26-23 facility administrators does not comply with federal regulations,
26-24 this article expires and Article 2 of this Act takes effect.
27-1 ARTICLE 2
27-2 SECTION 2.01. Chapter 242, Health and Safety Code, is
27-3 amended by adding Subchapter I to read as follows:
27-4 SUBCHAPTER I. NURSING FACILITY ADMINISTRATION
27-5 Sec. 242.301. DEFINITIONS. In this subchapter:
27-6 (1) "Board" means the Texas Board of Nursing Facility
27-7 Administrators.
27-8 (2) "Nursing facility" means an institution or
27-9 facility that is licensed as a nursing home, nursing facility, or
27-10 skilled nursing facility by the department under this chapter.
27-11 (3) "Nursing facility administrator" or
27-12 "administrator" means a person who engages in the practice of
27-13 nursing facility administration, without regard to whether the
27-14 person has an ownership interest in the facility or whether the
27-15 functions and duties are shared with any other person.
27-16 (4) "Practice of nursing facility administration"
27-17 means the performance of the acts of administering, managing,
27-18 supervising, or being in general administrative charge of a nursing
27-19 facility.
27-20 Sec. 242.302. TEXAS BOARD OF NURSING FACILITY
27-21 ADMINISTRATORS. (a) The Texas Board of Nursing Facility
27-22 Administrators is within the department.
27-23 (b) The board is composed of nine members appointed by the
27-24 governor as follows:
27-25 (1) three licensed nursing facility administrators, at
28-1 least one of whom shall represent a not-for-profit nursing
28-2 facility;
28-3 (2) one physician with experience in geriatrics who is
28-4 not employed by a nursing facility;
28-5 (3) one registered nurse with experience in geriatrics
28-6 who is not employed by a nursing facility;
28-7 (4) one social worker with experience in geriatrics
28-8 who is not employed by a nursing facility; and
28-9 (5) three public members with experience working with
28-10 the chronically ill and infirm as provided by 42 U.S.C. Section
28-11 1396g.
28-12 (c) Members of the board serve staggered six-year terms,
28-13 with the terms of three members expiring on February 1 of each
28-14 odd-numbered year. A person appointed to fill a vacancy on the
28-15 board shall serve for the unexpired portion of the term for which
28-16 the person is appointed.
28-17 (d) Appointments to the board shall be made without regard
28-18 to the race, color, disability, sex, religion, or national origin
28-19 of the person appointed.
28-20 Sec. 242.303. MEMBERSHIP REQUIREMENTS. (a) A member of the
28-21 board who is an administrator must:
28-22 (1) be a resident of this state and a citizen of the
28-23 United States;
28-24 (2) be licensed under this subchapter and currently
28-25 serving as a nursing facility administrator or have direct
29-1 supervisory responsibility on a daily basis over an administrator
29-2 who works in a nursing facility; and
29-3 (3) hold a degree from an accredited four-year college
29-4 or university.
29-5 (b) An administrator who does not have a degree as required
29-6 by Subsection (a)(3) may be qualified to serve as a member of the
29-7 board if the administrator has two years of practical experience as
29-8 an administrator for every year less than four that the
29-9 administrator has completed at a four-year college or university.
29-10 (c) A member or employee of the board may not:
29-11 (1) be an officer, employee, or paid consultant of a
29-12 trade association in the nursing facility industry; or
29-13 (2) be related within the second degree by affinity or
29-14 within the third degree by consanguinity to an officer, employee,
29-15 or paid consultant of a trade association in the nursing facility
29-16 industry.
29-17 (d) A member of the board who represents the general public
29-18 may not have a financial interest, other than as a consumer, in a
29-19 nursing facility as an officer, director, partner, owner,
29-20 employee, attorney, or paid consultant or be related within the
29-21 second degree by affinity or within the third degree by
29-22 consanguinity to a person who has a financial interest, other than
29-23 as a consumer, in a nursing facility as an officer, director,
29-24 partner, owner, employee, attorney, or paid consultant.
29-25 (e) A person who is required to register as a lobbyist under
30-1 Chapter 305, Government Code, because of the person's activities
30-2 for compensation on behalf of a profession related to the operation
30-3 of the board may not serve on the board.
30-4 Sec. 242.304. GROUNDS FOR REMOVAL. It is a ground for
30-5 removal from the board if a member:
30-6 (1) does not have at the time of appointment the
30-7 qualifications required by Section 242.303 for appointment to the
30-8 board;
30-9 (2) does not maintain during service on the board the
30-10 qualifications required by Section 242.303 for appointment to the
30-11 board;
30-12 (3) violates a prohibition established by Section
30-13 242.303;
30-14 (4) cannot discharge the member's duties for a
30-15 substantial part of the term for which the member is appointed
30-16 because of illness or disability; or
30-17 (5) is absent from more than half of the regularly
30-18 scheduled board meetings that the member is eligible to attend
30-19 during a calendar year, unless the absence is excused by a majority
30-20 vote of the board.
30-21 Sec. 242.305. BOARD OFFICERS; MEETINGS; QUORUM; EXPENSES.
30-22 (a) The board shall elect from its members a presiding officer and
30-23 assistant presiding officer who serve according to rules adopted by
30-24 the board.
30-25 (b) The board shall hold at least two regular meetings each
31-1 year as provided by rules adopted by the board.
31-2 (c) A majority of the members constitutes a quorum.
31-3 (d) Each member of the board is entitled to compensation for
31-4 transportation expenses as provided by the General Appropriations
31-5 Act.
31-6 Sec. 242.306. APPLICATION OF OPEN MEETINGS AND
31-7 ADMINISTRATIVE PROCEDURE ACT. The board is subject to Chapters 551
31-8 and 2001, Government Code.
31-9 Sec. 242.307. POWERS AND DUTIES OF THE BOARD. (a) The
31-10 board may adopt rules consistent with this subchapter.
31-11 (b) The board shall:
31-12 (1) adopt and publish a code of ethics for nursing
31-13 facility administrators;
31-14 (2) establish the qualifications of applicants for
31-15 licenses and the renewal of licenses issued under this subchapter;
31-16 (3) spend funds necessary for the proper
31-17 administration of the department's assigned duties under this
31-18 subchapter;
31-19 (4) establish reasonable and necessary fees for the
31-20 administration and implementation of this subchapter; and
31-21 (5) establish a minimum number of hours of continuing
31-22 education required to renew a license issued under this subchapter
31-23 and periodically assess the continuing education needs of license
31-24 holders to determine whether specific course content should be
31-25 required.
32-1 (c) The board is the licensing authority for the healing
32-2 arts, as provided by 42 U.S.C. Section 1396g, and shall meet the
32-3 requirements of a state licensing agency for nursing facility
32-4 practitioners, as provided by 42 C.F.R. Part 431, Subpart N.
32-5 Sec. 242.308. ADMINISTRATIVE FUNCTIONS. The department
32-6 shall serve as the administrator of the licensing activities under
32-7 this subchapter and shall provide staff as necessary for the
32-8 licensing and regulation of nursing facility administrators under
32-9 this subchapter. If necessary to the administration of this
32-10 subchapter, the department may secure and provide for compensation
32-11 for services that the department considers necessary and may employ
32-12 and compensate within available appropriations professional
32-13 consultants, technical assistants, and employees on a full-time or
32-14 part-time basis.
32-15 Sec. 242.309. FEES; FUNDS. (a) The board by rule shall set
32-16 reasonable and necessary fees in amounts necessary to cover the
32-17 cost of administering this subchapter. The board by rule may set
32-18 different licensing fees for different categories of licenses.
32-19 (b) The department shall receive and account for funds
32-20 received under this subchapter. The funds shall be deposited in
32-21 the state treasury to the credit of the general revenue fund.
32-22 (c) The department may receive and disburse funds received
32-23 from any federal source for the furtherance of the department's
32-24 functions under this subchapter.
32-25 Sec. 242.310. PRACTICING WITHOUT A LICENSE. A person may
33-1 not act as a nursing facility administrator or represent to others
33-2 that the person is a nursing facility administrator unless the
33-3 person is licensed under this subchapter.
33-4 Sec. 242.311. LICENSE APPLICATION; QUALIFICATIONS. (a) An
33-5 applicant for a nursing facility administrator's license must
33-6 submit a sworn application that is accompanied by the application
33-7 fee.
33-8 (b) The board shall prescribe the form of the application
33-9 and may by rule establish dates by which applications and fees must
33-10 be received.
33-11 (c) An applicant for a nursing facility administrator's
33-12 license must take a licensing examination under this subchapter.
33-13 To qualify for the licensing examination, the applicant must have
33-14 satisfactorily completed a course of instruction and training
33-15 prescribed by the board that is conducted by or in cooperation with
33-16 an accredited postsecondary educational institution and that is
33-17 designed and administered to provide sufficient knowledge of:
33-18 (1) the needs served by nursing facilities;
33-19 (2) the laws governing the operation of nursing
33-20 facilities and the protection of the interests of facility
33-21 residents; and
33-22 (3) the elements of nursing facility administration.
33-23 (d) An applicant who has not completed the course of
33-24 instruction and training described by Subsection (c) must present
33-25 evidence satisfactory to the board of having completed sufficient
34-1 education, training, and experience in the fields described by
34-2 Subsection (c) to enable the applicant to engage in the practice of
34-3 nursing facility administration.
34-4 Sec. 242.312. EXAMINATION. (a) The licensing examination
34-5 shall be prepared or approved by the board and shall be
34-6 administered by the board to qualified applicants at least twice
34-7 each calendar year. The board shall have the written portion of
34-8 the examination, if any, validated by a testing professional.
34-9 (b) Not later than the 30th day after the date on which a
34-10 licensing examination is administered under this subchapter, the
34-11 board shall notify each examinee of the results of the examination.
34-12 If an examination is graded or reviewed by a national or state
34-13 testing service, the board shall notify examinees of the results of
34-14 the examination not later than two weeks after the date the board
34-15 receives the results from the testing service. If the notice of
34-16 the examination results will be delayed for more than 90 days after
34-17 the examination date, the board shall notify the examinee of the
34-18 reason for the delay before the 90th day.
34-19 (c) If requested in writing by a person who fails the
34-20 licensing examination, the board shall furnish the person with an
34-21 analysis of the person's performance on the examination.
34-22 (d) The board may establish by rule additional educational
34-23 requirements to be met by an applicant who fails the examination
34-24 three times.
34-25 Sec. 242.313. LICENSES; TEMPORARY LICENSE; INACTIVE STATUS.
35-1 (a) A person who meets the requirements for licensing under this
35-2 subchapter is entitled to receive a license. A nursing facility
35-3 administrator's license is not transferable.
35-4 (b) A person licensed under this subchapter must notify the
35-5 board of the license holder's correct mailing address.
35-6 (c) A license is valid for two years. The board by rule may
35-7 adopt a system under which licenses expire on various dates during
35-8 the two-year period. For the year in which a license expiration
35-9 date is changed, license fees payable on the original expiration
35-10 date shall be prorated on a monthly basis so that each license
35-11 holder shall pay only that portion of the license fee that is
35-12 allocable to the number of months during which the license is
35-13 valid. On renewal of the license on the new expiration date, the
35-14 total license renewal fee is payable.
35-15 (d) The board by rule may provide for the issuance of a
35-16 temporary license. Rules adopted under this section shall include
35-17 a time limit for a licensee to practice under a temporary license.
35-18 (e) The board by rule may provide for a license holder to be
35-19 placed on inactive status.
35-20 Sec. 242.314. PROVISIONAL LICENSE. (a) On application, the
35-21 board shall grant a provisional license under this subchapter. An
35-22 applicant for a provisional license under this section must:
35-23 (1) be licensed in good standing as a nursing facility
35-24 administrator in another state, the District of Columbia, or a
35-25 territory of the United States that has licensing requirements that
36-1 are substantially equivalent to the requirements of this
36-2 subchapter;
36-3 (2) have passed a national or other examination
36-4 recognized by the board relating to the practice of nursing
36-5 facility administration; and
36-6 (3) be sponsored by a person licensed under this
36-7 subchapter with whom the provisional license holder may practice
36-8 under this section.
36-9 (b) An applicant for a provisional license may be excused
36-10 from the requirement of Subsection (a)(3) if the board determines
36-11 that compliance with that subsection constitutes a hardship to the
36-12 applicant.
36-13 (c) A provisional license is valid until the date the board
36-14 approves or denies the provisional license holder's application for
36-15 a license. The board shall issue a license under this subchapter
36-16 to the holder of a provisional license under this section if:
36-17 (1) the provisional license holder passes the
36-18 examination required by Section 242.311(c);
36-19 (2) the board verifies that the provisional license
36-20 holder has the academic and experience requirements for a license
36-21 under this subchapter; and
36-22 (3) the provisional license holder satisfies any other
36-23 license requirements under this subchapter.
36-24 (d) The board shall complete the processing of a provisional
36-25 license holder's application for a license not later than the 180th
37-1 day after the date the provisional license is issued. The board
37-2 may extend this time in order to receive the results of a national
37-3 examination or other examination administered or graded by an
37-4 outside organization recognized by the board.
37-5 Sec. 242.315. LICENSE RENEWAL. (a) A person may renew an
37-6 unexpired license by paying to the board before the expiration of
37-7 the license the required renewal fee.
37-8 (b) If a person's license has been expired for 90 days or
37-9 less, the person may renew the license by paying to the board the
37-10 required renewal fee and a fee that is one-half of the examination
37-11 fee for the license.
37-12 (c) If a person's license has been expired for longer than
37-13 90 days but less than one year, the person may renew the license by
37-14 paying to the board all unpaid renewal fees and a fee that is equal
37-15 to the examination fee for the license.
37-16 (d) If a person's license has been expired for one year or
37-17 longer, the person may not renew the license. The person may
37-18 obtain a new license by complying with the requirements and
37-19 procedures for obtaining an original license. However, the board
37-20 may renew without reexamination an expired license of a person who
37-21 was licensed in this state, moved to another state, and is
37-22 currently licensed and has been in practice in the other state for
37-23 the two years preceding application. The person must pay to the
37-24 board a fee that is equal to the examination fee for the license.
37-25 (e) At least 30 days before the expiration of a person's
38-1 license, the board shall send written notice of the impending
38-2 license expiration to the person at the license holder's last known
38-3 address according to the records of the board.
38-4 Sec. 242.316. MANDATORY CONTINUING EDUCATION. (a) The
38-5 board by rule shall establish a minimum number of hours of
38-6 continuing education required to renew a license under this
38-7 subchapter. The board may assess the continuing education needs of
38-8 license holders and may require license holders to attend
38-9 continuing education courses specified by the board.
38-10 (b) The board shall identify the key factors for the
38-11 competent performance by a license holder of the license holder's
38-12 professional duties. The board shall adopt a procedure to assess a
38-13 license holder's participation in continuing education programs.
38-14 Sec. 242.317. COMPLAINT RECEIPT, INVESTIGATION, AND
38-15 DISPOSITION. (a) The board shall keep an information file about
38-16 each complaint filed with the board regarding a person licensed
38-17 under this subchapter. The board's information file shall be kept
38-18 current and contain a record for each complaint of:
38-19 (1) all persons contacted in relation to the
38-20 complaint;
38-21 (2) a summary of findings made at each step of the
38-22 complaint process;
38-23 (3) an explanation of the legal basis and reason for a
38-24 complaint that is dismissed; and
38-25 (4) other relevant information.
39-1 (b) If a written complaint is filed with the board that the
39-2 board has authority to resolve, the board, at least as frequently
39-3 as quarterly and until final disposition of the complaint, shall
39-4 notify the parties to the complaint of the status of the complaint
39-5 unless the notice would jeopardize an undercover investigation.
39-6 (c) The board by rule shall adopt a form to standardize
39-7 information concerning complaints made to the board. The board by
39-8 rule shall prescribe information to be provided to a person when
39-9 the person files a complaint with the board.
39-10 (d) The board shall provide reasonable assistance to a
39-11 person who wishes to file a complaint with the board.
39-12 (e) The board shall adopt rules concerning the investigation
39-13 of complaints filed with the board. The rules adopted under this
39-14 subsection shall:
39-15 (1) distinguish between categories of complaints;
39-16 (2) ensure that complaints are not dismissed without
39-17 appropriate consideration;
39-18 (3) require that the board be advised at least
39-19 quarterly of complaints that have been dismissed and require that a
39-20 letter be sent to each person who has filed a complaint that is
39-21 dismissed explaining the action taken on the complaint;
39-22 (4) ensure that the person who filed the complaint has
39-23 an opportunity to explain the allegations made in the complaint;
39-24 and
39-25 (5) prescribe guidelines concerning the categories of
40-1 complaints that may require the use of a private investigator and
40-2 the procedures for the board to obtain the services of a private
40-3 investigator.
40-4 (f) The board shall dispose of all complaints in a timely
40-5 manner. The board by rule shall establish a schedule for
40-6 initiating a complaint investigation that is under the control of
40-7 the board not later than the 30th day after the date the complaint
40-8 is received by the board. The schedule shall be kept in the
40-9 information file for the complaint, and all parties shall be
40-10 notified of the projected time requirements for pursuing the
40-11 complaint. A change in the schedule must be noted in the complaint
40-12 information file and all parties to the complaint must be notified
40-13 not later than the seventh day after the date the change is made.
40-14 (g) The department shall notify the board at least quarterly
40-15 of complaints that have extended beyond the time prescribed by the
40-16 board for resolving complaints so that the department may take any
40-17 necessary corrective actions on the processing of complaints.
40-18 Sec. 242.318. SANCTIONS. (a) The board may revoke,
40-19 suspend, or refuse to renew a nursing facility administrator's
40-20 license, assess an administrative penalty, issue a written
40-21 reprimand, require participation in continuing education, or place
40-22 an administrator on probation, after due notice and hearing, on
40-23 proof of any of the following grounds:
40-24 (1) the license holder has wilfully or repeatedly
40-25 violated a provision of this subchapter or a rule adopted under
41-1 this subchapter;
41-2 (2) the license holder has wilfully or repeatedly
41-3 acted in a manner inconsistent with the health and safety of the
41-4 residents of a facility of which the license holder is an
41-5 administrator;
41-6 (3) the license holder obtained or attempted to obtain
41-7 a license through misrepresentation or deceit or by making a
41-8 material misstatement of fact on a license application;
41-9 (4) the license holder's use of alcohol or drugs
41-10 creates a hazard to the residents of a facility;
41-11 (5) a judgment of a court of competent jurisdiction
41-12 finds that the license holder is mentally incapacitated;
41-13 (6) the license holder has been convicted in a court
41-14 of competent jurisdiction of a misdemeanor or felony involving
41-15 moral turpitude; or
41-16 (7) the license holder has been negligent or
41-17 incompetent in the license holder's duties as a nursing facility
41-18 administrator.
41-19 (b) If a license sanction is probated, the board may require
41-20 the license holder to:
41-21 (1) report regularly to the board on matters that are
41-22 the basis of the probation;
41-23 (2) limit practice to the areas prescribed by the
41-24 department; or
41-25 (3) continue or review continuing professional
42-1 education until the license holder attains a degree of skill
42-2 satisfactory to the department in those areas that are the basis of
42-3 the probation.
42-4 (c) A license holder is entitled to a hearing in accordance
42-5 with rules promulgated by the board before a sanction is imposed
42-6 under this section.
42-7 (d) The board by rule shall adopt a broad schedule of
42-8 sanctions for violations under this subchapter. The board shall
42-9 use the schedule for any sanction imposed as the result of a
42-10 hearing conducted in accordance with the rules.
42-11 (e) The department shall by rule establish criteria to
42-12 determine whether deficiencies from a facility's survey warrant
42-13 action against an administrator. The criteria shall include a
42-14 determination of whether the survey indicates substandard quality
42-15 of care and whether a deficiency is related to an act or failure to
42-16 act by the administrator. If a deficiency on which a disciplinary
42-17 action against an administrator is initiated or completed is not
42-18 substantiated, the disciplinary action shall be reversed.
42-19 Sec. 242.319. WRITTEN REPRIMAND AND CONTINUING EDUCATION AS
42-20 SANCTIONS. In addition to the other disciplinary actions
42-21 authorized under this subchapter, the board may issue a written
42-22 reprimand to a license holder who violates this subchapter or
42-23 require that a license holder who violates this subchapter
42-24 participate in continuing education programs. The board shall
42-25 specify the continuing education programs that may be attended and
43-1 the number of hours that must be completed by a license holder to
43-2 fulfill the requirements of this section.
43-3 Sec. 242.320. ADMINISTRATIVE PENALTY AS SANCTION. (a) The
43-4 department may impose an administrative penalty against a person
43-5 licensed or regulated under this subchapter who violates this
43-6 subchapter or a rule adopted by the board under this subchapter.
43-7 (b) The penalty for a violation may be in an amount not to
43-8 exceed $1,000. Each day a violation occurs or continues is a
43-9 separate violation for purposes of imposing a penalty.
43-10 (c) The amount of the penalty shall be based on:
43-11 (1) the seriousness of the violation, including the
43-12 nature, circumstances, extent, and gravity of any prohibited acts,
43-13 and the hazard or potential hazard created to the health, safety,
43-14 or economic welfare of the public;
43-15 (2) the economic harm to property or the environment
43-16 caused by the violation;
43-17 (3) the history of previous violations;
43-18 (4) the amount necessary to deter future violations;
43-19 (5) efforts to correct the violations; and
43-20 (6) any other matter that justice may require.
43-21 Sec. 242.321. NOTICE AND HEARING. (a) If the department
43-22 determines that a violation has occurred, the department shall give
43-23 written notice of the determination to the person alleged to have
43-24 committed the violation. The notice may be given by certified
43-25 mail. The notice must include a brief summary of the alleged
44-1 violation and a statement of the amount of the recommended penalty
44-2 and must inform the person that the person has a right to a hearing
44-3 on the occurrence of the violation, the amount of the penalty, or
44-4 both the occurrence of the violation and the amount of the penalty.
44-5 (b) Within 20 days after the date the person receives the
44-6 notice, the person in writing may accept the determination and the
44-7 penalty recommended by the department or may make a written request
44-8 for a hearing on the occurrence of the violation, the amount of the
44-9 penalty, or both the occurrence of the violation and the amount of
44-10 the penalty.
44-11 (c) If the person accepts the determination and the penalty
44-12 recommended by the department, the department shall impose the
44-13 recommended penalty.
44-14 (d) If the person requests a hearing or fails to respond
44-15 timely to the notice, the department shall set a hearing and give
44-16 notice of the hearing to the person. The hearing shall be held in
44-17 accordance with the department's rules on contested case hearings.
44-18 (e) The notice of the hearing decision given to the person
44-19 under Chapter 2001, Government Code, must include a statement of
44-20 the right of the person to judicial review of the decision.
44-21 (f) Within 30 days after the date the department's decision
44-22 is final as provided by Section 2001.144, Government Code, the
44-23 person shall:
44-24 (1) pay the amount of the penalty;
44-25 (2) pay the amount of the penalty and file a petition
45-1 for judicial review contesting the occurrence of the violation, the
45-2 amount of the penalty, or both the occurrence of the violation and
45-3 the amount of the penalty; or
45-4 (3) without paying the amount of the penalty, file a
45-5 petition for judicial review contesting the occurrence of the
45-6 violation, the amount of the penalty, or both the occurrence of the
45-7 violation and the amount of the penalty.
45-8 (g) Within the 30-day period, a person who acts under
45-9 Subsection (f)(3) may:
45-10 (1) stay enforcement of the penalty by:
45-11 (A) paying the amount of the penalty to the
45-12 court for placement in an escrow account; or
45-13 (B) giving to the court a supersedeas bond that
45-14 is approved by the court for the amount of the penalty and that is
45-15 effective until all judicial review of the department's decision is
45-16 final; or
45-17 (2) request the court to stay enforcement of the
45-18 penalty by:
45-19 (A) filing with the court a sworn affidavit of
45-20 the person stating that the person is financially unable to pay the
45-21 amount of the penalty and is financially unable to give the
45-22 supersedeas bond; and
45-23 (B) giving a copy of the affidavit to the
45-24 department by certified mail.
45-25 (h) If the department receives a copy of an affidavit under
46-1 Subsection (g)(2), the department may file with the court, within
46-2 five days after the date the copy is received, a contest to the
46-3 affidavit. The court shall hold a hearing on the facts alleged in
46-4 the affidavit as soon as practicable and shall stay the enforcement
46-5 of the penalty on finding that the alleged facts are true. The
46-6 person who files an affidavit has the burden of proving that the
46-7 person is financially unable to pay the amount of the penalty and
46-8 to give a supersedeas bond.
46-9 (i) If the person does not pay the amount of the penalty and
46-10 the enforcement of the penalty is not stayed, the department may
46-11 refer the matter to the attorney general for collection of the
46-12 amount of the penalty.
46-13 (j) Judicial review of the decision of the department:
46-14 (1) is instituted by filing a petition as provided by
46-15 Section 2001.176, Government Code; and
46-16 (2) is under the substantial evidence rule.
46-17 (k) If the court sustains the occurrence of the violation,
46-18 the court may uphold or reduce the amount of the penalty and order
46-19 the person to pay the full or reduced amount of the penalty. If
46-20 the court does not sustain the occurrence of the violation, the
46-21 court shall order that no penalty is owed.
46-22 (l) When the judgment of the court becomes final, the court
46-23 shall proceed under this subsection. If the person paid the amount
46-24 of the penalty and if that amount is reduced or is not upheld by
46-25 the court, the court shall order that the appropriate amount plus
47-1 accrued interest be remitted to the person. The rate of the
47-2 interest is the rate charged on loans to depository institutions by
47-3 the New York Federal Reserve Bank, and the interest shall be paid
47-4 for the period beginning on the date the penalty was paid and
47-5 ending on the date the penalty is remitted. If the person gave a
47-6 supersedeas bond and if the amount of the penalty is not upheld by
47-7 the court, the court shall order the release of the bond. If the
47-8 person gave a supersedeas bond and if the amount of the penalty is
47-9 reduced, the court shall order the release of the bond after the
47-10 person pays the amount.
47-11 (m) A penalty collected under this section shall be remitted
47-12 to the comptroller for deposit in the general revenue fund.
47-13 (n) All proceedings under this section are subject to
47-14 Chapter 2001, Government Code.
47-15 Sec. 242.322. INFORMAL PROCEEDINGS. (a) The department by
47-16 rule shall adopt procedures governing:
47-17 (1) informal disposition of a contested case under
47-18 Section 2001.056, Government Code; and
47-19 (2) informal proceedings held in compliance with
47-20 Section 2001.054, Government Code.
47-21 (b) Rules adopted under this section must provide the
47-22 complainant and the license holder an opportunity to be heard.
47-23 Sec. 242.323. MONITORING OF LICENSE HOLDER. The board by
47-24 rule shall develop a system for monitoring a license holder's
47-25 compliance with the requirements of this subchapter. Rules adopted
48-1 under this section shall include procedures for monitoring a
48-2 license holder who is required by the board to perform certain acts
48-3 to ascertain that the license holder performs the required acts and
48-4 to identify and monitor license holders who represent a risk to the
48-5 public.
48-6 Sec. 242.324. CIVIL PENALTY. A person who violates this
48-7 subchapter is liable to the state for a civil penalty of $1,000 for
48-8 each day of violation. At the request of the department, the
48-9 attorney general shall bring an action to recover a civil penalty
48-10 established by this section.
48-11 Sec. 242.325. ASSISTANCE OF ATTORNEY GENERAL. The attorney
48-12 general shall provide legal assistance as necessary in enforcing
48-13 the provisions of this subchapter. This requirement does not
48-14 relieve a local prosecuting officer of any of the prosecuting
48-15 officer's duties under the law.
48-16 Sec. 242.326. OFFENSE. (a) A person commits an offense if
48-17 the person knowingly or intentionally violates Section 242.310.
48-18 (b) An offense under this section is a Class B misdemeanor.
48-19 Sec. 242.327. PROTECTION FOR REFUSAL TO ENGAGE IN CERTAIN
48-20 CONDUCT. (a) A person may not suspend, terminate, or otherwise
48-21 discipline or discriminate against a licensed nursing facility
48-22 administrator who refuses to engage in an act or omission relating
48-23 to the administrator's job duties or responsibilities that would
48-24 constitute a violation of this subchapter or of a rule adopted
48-25 under this subchapter, if the administrator notifies the person at
49-1 the time of the refusal that the reason for refusing is that the
49-2 act or omission constitutes a violation of this subchapter or of a
49-3 rule adopted under this subchapter.
49-4 (b) An act by a person under Subsection (a) does not
49-5 constitute a violation of this section if:
49-6 (1) the act or omission the administrator refused to
49-7 commit was not conduct that constitutes a violation of this
49-8 subchapter or of a rule adopted under this subchapter; or
49-9 (2) the act or omission the administrator refused to
49-10 commit was conduct that constitutes a violation of this subchapter
49-11 or of a rule adopted under this subchapter, and the person rescinds
49-12 any disciplinary or discriminatory action taken against the
49-13 administrator, compensates the administrator for lost wages, and
49-14 restores any lost benefits to the administrator.
49-15 (c) A violation of this section is an unlawful employment
49-16 practice, and a civil action may be brought by a licensed nursing
49-17 facility administrator against a person for the violation. The
49-18 relief available in a civil action shall be the same as the relief
49-19 available to complainants in a civil action for violations of
49-20 Chapter 21, Labor Code. In no event may any action be brought
49-21 pursuant to this section more than two years after the date of the
49-22 administrator's refusal to engage in an act or omission that would
49-23 constitute a violation of this subchapter or of a rule adopted
49-24 under this subchapter.
49-25 (d) In this section, "person" includes an individual,
50-1 organization, corporation, agency, facility, or other entity.
50-2 SECTION 2.02. This article takes effect only if Article 1 of
50-3 this Act expires, on the date that article expires, as provided by
50-4 Section 1.06 of this Act.
50-5 SECTION 2.03. In making the initial appointments of members
50-6 of the Texas Board of Nursing Facility Administrators, as provided
50-7 by Section 242.302, Health and Safety Code, as added by this
50-8 article, the governor shall designate the terms of members so that
50-9 three members' terms expire February 1 of each odd-numbered year,
50-10 the members serve six-year staggered terms, and no member initially
50-11 appointed serves more than two years.
50-12 SECTION 2.04. (a) Any rule of the Texas Department of Human
50-13 Services adopted under Subchapter I, Chapter 242, Health and Safety
50-14 Code, as added by Article 1 of this Act, or as provided by
50-15 Subsection (b), Section 1.04 of this Act, in place on the effective
50-16 date of this article shall continue in effect as a rule of the
50-17 Texas Board of Nursing Facility Administrators.
50-18 (b) On the effective date of this article, the obligations,
50-19 rights, contracts, and records of the Texas Department of Human
50-20 Services transferred to that agency under Article 1 of this Act, or
50-21 entered into or incurred by the Texas Department of Human Services
50-22 under Subchapter I, Chapter 242, Health and Safety Code, as added
50-23 by Article 1 of this Act, before the expiration of that article,
50-24 are transferred to the Texas Board of Nursing Facility
50-25 Administrators as necessary under the provisions of Subchapter I,
51-1 Chapter 242, Health and Safety Code, as added by this article.
51-2 (c) A license in effect that was issued by the Texas
51-3 Department of Human Services under Subchapter I, Chapter 242,
51-4 Health and Safety Code, as added by Article 1 of this Act, is
51-5 continued in effect as a license of the Texas Board of Nursing
51-6 Facility Administrators.
51-7 (d) A complaint, investigation, or other proceeding relating
51-8 to the licensure and regulation of nursing facility administrators
51-9 pending before the Texas Department of Human Services under
51-10 Subchapter I, Chapter 242, Health and Safety Code, as added by
51-11 Article 1 of this Act, is transferred without change in status to
51-12 the Texas Board of Nursing Facility Administrators as necessary
51-13 under the provisions of Subchapter I, Chapter 242, Health and
51-14 Safety Code, as added by this article.
51-15 ARTICLE 3
51-16 SECTION 3.01. Article 4512q, Revised Statutes, is repealed.
51-17 SECTION 3.02. The importance of this legislation and the
51-18 crowded condition of the calendars in both houses create an
51-19 emergency and an imperative public necessity that the
51-20 constitutional rule requiring bills to be read on three several
51-21 days in each house be suspended, and this rule is hereby suspended.