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.

51-22                         COMMITTEE AMENDMENT NO. 1

51-23          Amend S.B. 84 as follows:

51-24          (1)  Strike SECTION 1.05 of Article 1 of the bill and

51-25    substitute the following:

 52-1          SECTION 1.05.  Not later than October 1, 1997, the governor

 52-2    shall appoint the initial members of the Nursing Facility

 52-3    Administrators Advisory Committee in accordance with Section

 52-4    242.303, Health and Safety Code, as added by this article.  The

 52-5    governor shall designate three members for a term expiring on

 52-6    February 1, 1999, three members for a term expiring on February 1,

 52-7    2001, and three members for a term expiring on February 1, 2003.

 52-8          Strike SECTION 2.03 of Article 2 of the bill and substitute

 52-9    the following:

52-10          SECTION 2.03.  Not later than one month after the effective

52-11    date of this article, the governor shall appoint the initial

52-12    members of the Texas Board of Nursing Facility Administrators in

52-13    accordance with Section 242.302, Health and Safety Code, as added

52-14    by this article.  the governor shall designate the terms of the

52-15    initial members so that three members' terms expire February 1 of

52-16    each odd-numbered year and so that succeeding members serve

52-17    six-year staggered terms.

52-18                                                             Hilderbran