1-1 By: Moncrief, West S.B. No. 84
1-2 (In the Senate - Filed November 12, 1996; January 14, 1997,
1-3 read first time and referred to Committee on Health and Human
1-4 Services; April 14, 1997, reported adversely, with favorable
1-5 Committee Substitute; April 17, 1997, recommitted to Committee on
1-6 Health and Human Services; April 21, 1997, reported adversely, with
1-7 favorable Committee Substitute by the following vote: Yeas 8, Nays
1-8 2; April 21, 1997, sent to printer.)
1-9 COMMITTEE SUBSTITUTE FOR S.B. No. 84 By: Moncrief
1-10 A BILL TO BE ENTITLED
1-11 AN ACT
1-12 relating to the licensure and regulation of nursing facility
1-13 administrators; providing penalties.
1-14 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-15 ARTICLE 1
1-16 SECTION 1.01. Chapter 242, Health and Safety Code, is
1-17 amended by adding Subchapter I to read as follows:
1-18 SUBCHAPTER I. NURSING FACILITY ADMINISTRATION
1-19 Sec. 242.301. DEFINITIONS. In this subchapter:
1-20 (1) "Nursing facility" means an institution or
1-21 facility that is licensed as a nursing home, nursing facility, or
1-22 skilled nursing facility by the department under this chapter.
1-23 (2) "Nursing facility administrator" or
1-24 "administrator" means a person who engages in the practice of
1-25 nursing facility administration, without regard to whether the
1-26 person has an ownership interest in the facility or whether the
1-27 functions and duties are shared with any other person.
1-28 (3) "Practice of nursing facility administration"
1-29 means the performance of the acts of administering, managing,
1-30 supervising, or being in general administrative charge of a nursing
1-31 facility.
1-32 Sec. 242.302. POWERS AND DUTIES OF DEPARTMENT. (a) The
1-33 board may adopt rules consistent with this subchapter.
1-34 (b) The department shall:
1-35 (1) adopt and publish a code of ethics for nursing
1-36 facility administrators;
1-37 (2) establish the qualifications of applicants for
1-38 licenses and the renewal of licenses issued under this subchapter;
1-39 (3) spend funds necessary for the proper
1-40 administration of the department's assigned duties under this
1-41 subchapter;
1-42 (4) establish reasonable and necessary fees for the
1-43 administration and implementation of this subchapter; and
1-44 (5) establish a minimum number of hours of continuing
1-45 education required to renew a license issued under this subchapter
1-46 and periodically assess the continuing education needs of license
1-47 holders to determine whether specific course content should be
1-48 required.
1-49 (c) The department is the licensing agency for the healing
1-50 arts, as provided by 42 U.S.C. Section 1396g.
1-51 Sec. 242.303. NURSING FACILITY ADMINISTRATORS ADVISORY
1-52 COMMITTEE. (a) The Nursing Facility Administrators Advisory
1-53 Committee is appointed by the governor.
1-54 (b) Members of the committee serve for staggered terms of
1-55 six years, with the terms of three members expiring on February 1
1-56 of each odd-numbered year.
1-57 (c) The committee shall consist of:
1-58 (1) three licensed nursing facility administrators, at
1-59 least one of whom shall represent a not-for-profit nursing
1-60 facility;
1-61 (2) one physician with experience in geriatrics who is
1-62 not employed by a nursing facility;
1-63 (3) one registered nurse with experience in geriatrics
1-64 who is not employed by a nursing facility;
2-1 (4) one social worker with experience in geriatrics
2-2 who is not employed by a nursing facility; and
2-3 (5) three public members with experience working with
2-4 the chronically ill and infirm as provided by 42 U.S.C. Section
2-5 1396g.
2-6 (d) The committee shall advise the board on the licensing of
2-7 nursing facility administrators, including the content of
2-8 applications for licensure and of the examination administered to
2-9 license applicants under Section 242.306. The committee shall
2-10 review and recommend rules and minimum standards of conduct for the
2-11 practice of nursing facility administration. The committee shall
2-12 review all complaints against administrators and make
2-13 recommendations to the department regarding disciplinary actions.
2-14 Failure of the committee to review complaints and make
2-15 recommendations in a timely manner shall not prevent the department
2-16 from taking disciplinary action.
2-17 (e) Appointments to the committee shall be made without
2-18 regard to the race, color, disability, sex, religion, or national
2-19 origin of the person appointed.
2-20 (f) A member of the committee receives no compensation but
2-21 is entitled to reimbursement for actual and necessary expenses
2-22 incurred in performing the member's duties under this section.
2-23 (g) The department shall pay the expenses of the committee
2-24 and shall supply necessary personnel and supplies.
2-25 (h) A vacancy in a position on the committee shall be filled
2-26 in the same manner in which the position was originally filled and
2-27 shall be filled by a person who meets the qualifications of the
2-28 vacated position.
2-29 Sec. 242.304. FEES; FUNDS. (a) The board by rule shall set
2-30 reasonable and necessary fees in amounts necessary to cover the
2-31 cost of administering this subchapter. The board by rule may set
2-32 different licensing fees for different categories of licenses.
2-33 (b) The department shall receive and account for funds
2-34 received under this subchapter. The funds shall be deposited in
2-35 the state treasury to the credit of the general revenue fund.
2-36 (c) The department may receive and disburse funds received
2-37 from any federal source for the furtherance of the department's
2-38 functions under this subchapter.
2-39 Sec. 242.305. PRACTICING WITHOUT A LICENSE. A person may
2-40 not act as a nursing facility administrator or represent to others
2-41 that the person is a nursing facility administrator unless the
2-42 person is licensed under this subchapter.
2-43 Sec. 242.306. LICENSE APPLICATION; QUALIFICATIONS. (a) An
2-44 applicant for a nursing facility administrator's license must
2-45 submit a sworn application that is accompanied by the application
2-46 fee.
2-47 (b) The board shall prescribe the form of the application
2-48 and may by rule establish dates by which applications and fees must
2-49 be received.
2-50 (c) An applicant for a nursing facility administrator's
2-51 license must take a licensing examination under this subchapter.
2-52 To qualify for the licensing examination, the applicant must have
2-53 satisfactorily completed a course of instruction and training
2-54 prescribed by the board that is conducted by or in cooperation with
2-55 an accredited postsecondary educational institution and that is
2-56 designed and administered to provide sufficient knowledge of:
2-57 (1) the needs served by nursing facilities;
2-58 (2) the laws governing the operation of nursing
2-59 facilities and the protection of the interests of facility
2-60 residents; and
2-61 (3) the elements of nursing facility administration.
2-62 (d) An applicant who has not completed the course of
2-63 instruction and training described by Subsection (c) must present
2-64 evidence satisfactory to the department of having completed
2-65 sufficient education, training, and experience in the fields
2-66 described by Subsection (c) to enable the applicant to engage in
2-67 the practice of nursing facility administration.
2-68 Sec. 242.307. EXAMINATION. (a) The licensing examination
2-69 shall be prepared or approved by the department and shall be
3-1 administered by the department to qualified applicants at least
3-2 twice each calendar year. The department shall have the written
3-3 portion of the examination, if any, validated by a testing
3-4 professional.
3-5 (b) Not later than the 30th day after the date on which a
3-6 licensing examination is administered under this subchapter, the
3-7 department shall notify each examinee of the results of the
3-8 examination. If an examination is graded or reviewed by a national
3-9 or state testing service, the department shall notify examinees of
3-10 the results of the examination not later than two weeks after the
3-11 date the department receives the results from the testing service.
3-12 If the notice of the examination results will be delayed for more
3-13 than 90 days after the examination date, the department shall
3-14 notify the examinee of the reason for the delay before the 90th
3-15 day.
3-16 (c) If requested in writing by a person who fails the
3-17 licensing examination, the department shall furnish the person with
3-18 an analysis of the person's performance on the examination.
3-19 (d) The board may establish by rule additional educational
3-20 requirements to be met by an applicant who fails the examination
3-21 three times.
3-22 Sec. 242.308. LICENSES; TEMPORARY LICENSE; INACTIVE STATUS.
3-23 (a) A person who meets the requirements for licensing under this
3-24 subchapter is entitled to receive a license. A nursing facility
3-25 administrator's license is not transferable.
3-26 (b) A person licensed under this subchapter must notify the
3-27 department of the license holder's correct mailing address.
3-28 (c) A license is valid for two years. The board by rule may
3-29 adopt a system under which licenses expire on various dates during
3-30 the two-year period. For the year in which a license expiration
3-31 date is changed, license fees payable on the original expiration
3-32 date shall be prorated on a monthly basis so that each license
3-33 holder shall pay only that portion of the license fee that is
3-34 allocable to the number of months during which the license is
3-35 valid. On renewal of the license on the new expiration date, the
3-36 total license renewal fee is payable.
3-37 (d) The board by rule may provide for the issuance of a
3-38 temporary license. Rules adopted under this section shall include
3-39 a time limit for a licensee to practice under a temporary license.
3-40 (e) The board by rule may provide for a license holder to be
3-41 placed on inactive status.
3-42 Sec. 242.309. PROVISIONAL LICENSE. (a) On application, the
3-43 department shall grant a provisional license under this subchapter.
3-44 An applicant for a provisional license under this section must:
3-45 (1) be licensed in good standing as a nursing facility
3-46 administrator in another state, the District of Columbia, or a
3-47 territory of the United States that has licensing requirements that
3-48 are substantially equivalent to the requirements of this
3-49 subchapter;
3-50 (2) have passed a national or other examination
3-51 recognized by the board relating to the practice of nursing
3-52 facility administration; and
3-53 (3) be sponsored by a person licensed under this
3-54 subchapter with whom the provisional license holder may practice
3-55 under this section.
3-56 (b) An applicant for a provisional license may be excused
3-57 from the requirement of Subsection (a)(3) if the department
3-58 determines that compliance with that subsection constitutes a
3-59 hardship to the applicant.
3-60 (c) A provisional license is valid until the date the
3-61 department approves or denies the provisional license holder's
3-62 application for a license. The department shall issue a license
3-63 under this subchapter to the holder of a provisional license under
3-64 this section if:
3-65 (1) the provisional license holder passes the
3-66 examination required by Section 242.306(c);
3-67 (2) the department verifies that the provisional
3-68 license holder has the academic and experience requirements for a
3-69 license under this subchapter; and
4-1 (3) the provisional license holder satisfies all other
4-2 license requirements under this subchapter.
4-3 (d) The department shall complete the processing of a
4-4 provisional license holder's application for a license not later
4-5 than the 180th day after the date the provisional license is
4-6 issued. The department may extend this time in order to receive
4-7 the results of a national examination or other examination
4-8 administered or graded by an outside organization recognized by the
4-9 department.
4-10 Sec. 242.310. LICENSE RENEWAL. (a) A person may renew an
4-11 unexpired license by paying to the department before the expiration
4-12 of the license the required renewal fee.
4-13 (b) If a person's license has been expired for 90 days or
4-14 less, the person may renew the license by paying to the department
4-15 the required renewal fee and a fee that is one-half of the
4-16 examination fee for the license.
4-17 (c) If a person's license has been expired for longer than
4-18 90 days but less than one year, the person may renew the license by
4-19 paying to the department all unpaid renewal fees and a fee that is
4-20 equal to the examination fee for the license.
4-21 (d) If a person's license has been expired for one year or
4-22 longer, the person may not renew the license. The person may
4-23 obtain a new license by complying with the requirements and
4-24 procedures for obtaining an original license. However, the
4-25 department may renew without reexamination an expired license of a
4-26 person who was licensed in this state, moved to another state, and
4-27 is currently licensed and has been in practice in the other state
4-28 for the two years preceding application. Such person must pay to
4-29 the department a fee that is equal to the examination fee for the
4-30 license.
4-31 (e) At least 30 days before the expiration of a person's
4-32 license, the department shall send written notice of the impending
4-33 license expiration to the person at the license holder's last known
4-34 address according to the records of the department.
4-35 Sec. 242.311. MANDATORY CONTINUING EDUCATION. (a) The
4-36 board by rule shall establish a minimum number of hours of
4-37 continuing education required to renew a license under this
4-38 subchapter. The department may assess the continuing education
4-39 needs of license holders and may require license holders to attend
4-40 continuing education courses specified by the board.
4-41 (b) The board shall identify the key factors for the
4-42 competent performance by a license holder of the license holder's
4-43 professional duties. The department shall adopt a procedure to
4-44 assess a license holder's participation in continuing education
4-45 programs.
4-46 Sec. 242.312. COMPLAINT RECEIPT, INVESTIGATION, AND
4-47 DISPOSITION. (a) The department shall keep an information file
4-48 concerning each complaint filed with the department regarding a
4-49 person licensed under this subchapter. The department's
4-50 information file shall be kept current and shall contain a record
4-51 for each complaint of:
4-52 (1) all persons contacted in relation to the
4-53 complaint;
4-54 (2) a summary of findings made at each step of the
4-55 complaint process;
4-56 (3) an explanation of the legal basis and reason for a
4-57 complaint that is dismissed; and
4-58 (4) other relevant information.
4-59 (b) If a written complaint is filed with the department that
4-60 the department has authority to resolve, the department, at least
4-61 quarterly and until final disposition of the complaint, shall
4-62 notify the parties to the complaint of the status of the complaint
4-63 unless the notice would jeopardize an undercover investigation.
4-64 (c) The board by rule shall adopt a form to standardize
4-65 information concerning complaints made to the department. The
4-66 board by rule shall prescribe information to be provided to a
4-67 person when the person files a complaint with the department.
4-68 (d) The department shall provide reasonable assistance to a
4-69 person who wishes to file a complaint with the department.
5-1 (e) The board shall adopt rules concerning the investigation
5-2 of complaints filed with the department. The rules adopted under
5-3 this subsection shall:
5-4 (1) distinguish between categories of complaints;
5-5 (2) ensure that complaints are not dismissed without
5-6 appropriate consideration;
5-7 (3) require that the board be advised at least
5-8 quarterly of complaints that have been dismissed and require that a
5-9 letter be sent to each person who has filed a complaint that is
5-10 dismissed explaining the action taken on the complaint;
5-11 (4) ensure that the person who filed the complaint has
5-12 an opportunity to explain the allegations made in the complaint;
5-13 and
5-14 (5) prescribe guidelines concerning the categories of
5-15 complaints that may require the use of a private investigator and
5-16 the procedures to be followed by the department in obtaining the
5-17 services of a private investigator.
5-18 (f) The department shall dispose of all complaints in a
5-19 timely manner. The board by rule shall establish a schedule for
5-20 initiating a complaint investigation that is under the control of
5-21 the department not later than the 30th day after the date the
5-22 complaint is received by the department. The schedule shall be
5-23 kept in the information file for the complaint, and all parties
5-24 shall be notified of the projected time requirements for pursuing
5-25 the complaint. A change in the schedule must be noted in the
5-26 complaint information file and all parties to the complaint must be
5-27 notified not later than the seventh day after the date the change
5-28 is made.
5-29 (g) The commissioner shall notify the board at least
5-30 quarterly of complaints that have extended beyond the time
5-31 prescribed by the board for resolving complaints so that the
5-32 department may take any necessary corrective actions on the
5-33 processing of complaints.
5-34 Sec. 242.313. SANCTIONS. (a) The department may revoke,
5-35 suspend, or refuse to renew a nursing facility administrator's
5-36 license, assess an administrative penalty, issue a written
5-37 reprimand, require participation in continuing education, or place
5-38 an administrator on probation, after due notice and hearing, on
5-39 proof of any of the following grounds:
5-40 (1) the license holder has wilfully or repeatedly
5-41 violated a provision of this subchapter or a rule adopted under
5-42 this subchapter;
5-43 (2) the license holder has wilfully or repeatedly
5-44 acted in a manner inconsistent with the health and safety of the
5-45 residents of a facility of which the license holder is an
5-46 administrator;
5-47 (3) the license holder obtained or attempted to obtain
5-48 a license through misrepresentation or deceit or by making a
5-49 material misstatement of fact on a license application;
5-50 (4) the license holder's use of alcohol or drugs
5-51 creates a hazard to the residents of a facility;
5-52 (5) a judgment of a court of competent jurisdiction
5-53 finds that the license holder is mentally incapacitated;
5-54 (6) the license holder has been convicted in a court
5-55 of competent jurisdiction of a misdemeanor or felony involving
5-56 moral turpitude; or
5-57 (7) the license holder has been negligent or
5-58 incompetent in the license holder's duties as a nursing facility
5-59 administrator.
5-60 (b) If a license sanction is probated, the department may
5-61 require the license holder to:
5-62 (1) report regularly to the department on matters that
5-63 are the basis of the probation;
5-64 (2) limit practice to the areas prescribed by the
5-65 department; or
5-66 (3) continue or review continuing professional
5-67 education until the license holder attains a degree of skill
5-68 satisfactory to the department in those areas that are the basis of
5-69 the probation.
6-1 (c) A license holder is entitled to a hearing in accordance
6-2 with rules promulgated by the board before a sanction is imposed
6-3 under this section.
6-4 (d) The board by rule shall adopt a broad schedule of
6-5 sanctions for violations under this subchapter. The department
6-6 shall use the schedule for any sanction imposed as the result of a
6-7 hearing conducted in accordance with the rules.
6-8 (e) The department shall by rule establish criteria to
6-9 determine whether deficiencies from a facility's survey warrant
6-10 action against an administrator. The criteria shall include a
6-11 determination of whether the survey indicates substandard quality
6-12 of care and whether a deficiency is related to an act or failure to
6-13 act by the administrator. If a deficiency on which a disciplinary
6-14 action against an administrator is initiated or completed is not
6-15 substantiated, the disciplinary action shall be reversed.
6-16 Sec. 242.314. WRITTEN REPRIMAND AND CONTINUING EDUCATION AS
6-17 SANCTIONS. In addition to the other disciplinary actions
6-18 authorized under this subchapter, the department may issue a
6-19 written reprimand to a license holder who violates this subchapter
6-20 or may require that a license holder who violates this subchapter
6-21 participate in continuing education programs. The department shall
6-22 specify the continuing education programs that may be attended and
6-23 the number of hours that must be completed by a license holder to
6-24 fulfill the requirements of this section.
6-25 Sec. 242.315. ADMINISTRATIVE PENALTY AS SANCTION. (a) The
6-26 department may impose an administrative penalty against a person
6-27 licensed or regulated under this subchapter who violates this
6-28 subchapter or a rule adopted by the board under this subchapter.
6-29 (b) The penalty for a violation may be in an amount not to
6-30 exceed $1,000. Each day a violation occurs or continues is a
6-31 separate violation for purposes of imposing a penalty.
6-32 (c) The amount of the penalty shall be based on:
6-33 (1) the seriousness of the violation, including the
6-34 nature, circumstances, extent, and gravity of any prohibited acts,
6-35 and the hazard or potential hazard created to the health, safety,
6-36 or economic welfare of the public;
6-37 (2) the economic harm to property or the environment
6-38 caused by the violation;
6-39 (3) the history of previous violations;
6-40 (4) the amount necessary to deter future violations;
6-41 (5) efforts to correct the violations; and
6-42 (6) any other matter that justice may require.
6-43 Sec. 242.316. NOTICE AND HEARING. (a) If the department
6-44 determines that a violation has occurred, the department shall give
6-45 written notice of the determination to the person alleged to have
6-46 committed the violation. The notice may be given by certified
6-47 mail. The notice must include a brief summary of the alleged
6-48 violation and a statement of the amount of the recommended penalty
6-49 and must inform the person that the person has a right to a hearing
6-50 on the occurrence of the violation, the amount of the penalty, or
6-51 both the occurrence of the violation and the amount of the penalty.
6-52 (b) Within 20 days after the date the person receives the
6-53 notice, the person in writing may accept the determination and the
6-54 penalty recommended by the department or may make a written request
6-55 for a hearing on the occurrence of the violation, the amount of the
6-56 penalty, or both the occurrence of the violation and the amount of
6-57 the penalty.
6-58 (c) If the person accepts the determination and the penalty
6-59 recommended by the department, the department shall impose the
6-60 recommended penalty.
6-61 (d) If the person requests a hearing or fails to respond
6-62 timely to the notice, the department shall set a hearing and give
6-63 notice of the hearing to the person. The hearing shall be held in
6-64 accordance with the department's rules on contested case hearings.
6-65 (e) The notice of the hearing decision given to the person
6-66 under Chapter 2001, Government Code, must include a statement of
6-67 the right of the person to judicial review of the decision.
6-68 (f) Within 30 days after the date the department's decision
6-69 is final as provided by Section 2001.144, Government Code, the
7-1 person shall:
7-2 (1) pay the amount of the penalty;
7-3 (2) pay the amount of the penalty and file a petition
7-4 for judicial review contesting the occurrence of the violation, the
7-5 amount of the penalty, or both the occurrence of the violation and
7-6 the amount of the penalty; or
7-7 (3) without paying the amount of the penalty, file a
7-8 petition for judicial review contesting the occurrence of the
7-9 violation, the amount of the penalty, or both the occurrence of the
7-10 violation and the amount of the penalty.
7-11 (g) Within the 30-day period, a person who acts under
7-12 Subsection (f)(3) may:
7-13 (1) stay enforcement of the penalty by:
7-14 (A) paying the amount of the penalty to the
7-15 court for placement in an escrow account; or
7-16 (B) giving to the court a supersedeas bond that
7-17 is approved by the court for the amount of the penalty and that is
7-18 effective until all judicial review of the department's decision is
7-19 final; or
7-20 (2) request the court to stay enforcement of the
7-21 penalty by:
7-22 (A) filing with the court a sworn affidavit of
7-23 the person stating that the person is financially unable to pay the
7-24 amount of the penalty and is financially unable to give the
7-25 supersedeas bond; and
7-26 (B) sending a copy of the affidavit to the
7-27 department by certified mail.
7-28 (h) If the department receives a copy of an affidavit under
7-29 Subsection (g)(2), the department may file with the court, within
7-30 five days after the date the copy is received, a contest to the
7-31 affidavit. The court shall hold a hearing on the facts alleged in
7-32 the affidavit as soon as practicable and shall stay the enforcement
7-33 of the penalty on finding that the alleged facts are true. The
7-34 person who files an affidavit has the burden of proving that the
7-35 person is financially unable to pay the amount of the penalty and
7-36 to give a supersedeas bond.
7-37 (i) If the person does not pay the amount of the penalty and
7-38 the enforcement of the penalty is not stayed, the department may
7-39 refer the matter to the attorney general for collection of the
7-40 amount of the penalty.
7-41 (j) Judicial review of the decision of the department:
7-42 (1) is instituted by filing a petition as provided by
7-43 Section 2001.176, Government Code; and
7-44 (2) is under the substantial evidence rule.
7-45 (k) If the court sustains the occurrence of the violation,
7-46 the court may uphold or reduce the amount of the penalty and order
7-47 the person to pay the full or reduced amount of the penalty. If
7-48 the court does not sustain the occurrence of the violation, the
7-49 court shall order that no penalty is owed.
7-50 (l) When the judgment of the court becomes final, the court
7-51 shall proceed under this subsection. If the person paid the amount
7-52 of the penalty and if that amount is reduced or is not upheld by
7-53 the court, the court shall order that the appropriate amount plus
7-54 accrued interest be remitted to the person. The rate of the
7-55 interest is the rate charged on loans to depository institutions by
7-56 the New York Federal Reserve Bank, and the interest shall be paid
7-57 for the period beginning on the date the penalty was paid and
7-58 ending on the date the penalty is remitted. If the person gave a
7-59 supersedeas bond and if the amount of the penalty is not upheld by
7-60 the court, the court shall order the release of the bond. If the
7-61 person gave a supersedeas bond and if the amount of the penalty is
7-62 reduced, the court shall order the release of the bond after the
7-63 person pays the amount.
7-64 (m) A penalty collected under this section shall be remitted
7-65 to the comptroller for deposit in the general revenue fund.
7-66 (n) All proceedings under this section are subject to
7-67 Chapter 2001, Government Code.
7-68 Sec. 242.317. INFORMAL PROCEEDINGS. (a) The department by
7-69 rule shall adopt procedures governing:
8-1 (1) informal disposition of a contested case under
8-2 Section 2001.056, Government Code; and
8-3 (2) informal proceedings held in compliance with
8-4 Section 2001.054, Government Code.
8-5 (b) Rules adopted under this section must provide the
8-6 complainant and the license holder an opportunity to be heard.
8-7 Sec. 242.318. MONITORING OF LICENSE HOLDER. The department
8-8 by rule shall develop a system for monitoring a license holder's
8-9 compliance with the requirements of this subchapter. Rules adopted
8-10 under this section shall include procedures for monitoring a
8-11 license holder who is required by the department to perform certain
8-12 acts to ascertain that the license holder performs the required
8-13 acts and to identify and monitor license holders who represent a
8-14 risk to the public.
8-15 Sec. 242.319. CIVIL PENALTY. A person who violates this
8-16 subchapter is liable to the state for a civil penalty of $1,000 for
8-17 each day of violation. At the request of the department, the
8-18 attorney general shall bring an action to recover a civil penalty
8-19 established by this section.
8-20 Sec. 242.320. ASSISTANCE OF ATTORNEY GENERAL. The attorney
8-21 general shall provide legal assistance as necessary in enforcing
8-22 the provisions of this subchapter. This requirement does not
8-23 relieve a local prosecuting officer of any of the prosecuting
8-24 officer's duties under the law.
8-25 Sec. 242.321. OFFENSE. (a) A person commits an offense if
8-26 the person knowingly or intentionally violates Section 242.305.
8-27 (b) An offense under this section is a Class B misdemeanor.
8-28 Sec. 242.322. PROTECTION FOR REFUSAL TO ENGAGE IN CERTAIN
8-29 CONDUCT. (a) A person may not suspend, terminate, or otherwise
8-30 discipline or discriminate against a licensed nursing facility
8-31 administrator who refuses to engage in an act or omission relating
8-32 to the administrator's job duties or responsibilities that would
8-33 constitute a violation of this subchapter or of a rule adopted
8-34 under this subchapter, if the administrator notifies the person at
8-35 the time of the refusal that the reason for refusing is that the
8-36 act or omission constitutes a violation of this subchapter or of a
8-37 rule adopted under this subchapter.
8-38 (b) An act by a person under Subsection (a) does not
8-39 constitute a violation of this section if:
8-40 (1) the act or omission the administrator refused to
8-41 commit was not conduct that constitutes a violation of this
8-42 subchapter or of a rule adopted under this subchapter; or
8-43 (2) the act or omission the administrator refused to
8-44 commit was conduct that constitutes a violation of this subchapter
8-45 or of a rule adopted under this subchapter, and the person rescinds
8-46 any disciplinary or discriminatory action taken against the
8-47 administrator, compensates the administrator for lost wages, and
8-48 restores any lost benefits to the administrator.
8-49 (c) A violation of this section is an unlawful employment
8-50 practice, and a civil action may be brought by a licensed nursing
8-51 facility administrator against a person for the violation. The
8-52 relief available in a civil action shall be the same as the relief
8-53 available to complainants in a civil action for violations of
8-54 Chapter 21, Labor Code. In no event may any action be brought
8-55 pursuant to this section more than two years after the date of the
8-56 administrator's refusal to engage in an act or omission that would
8-57 constitute a violation of this subchapter or of a rule adopted
8-58 under this subchapter.
8-59 (d) In this section, "person" includes an individual,
8-60 organization, corporation, agency, facility, or other entity.
8-61 SECTION 1.02. Section 232.002, Family Code, is amended to
8-62 conform to Section 85, Chapter 751, Acts of the 74th Legislature,
8-63 1995, and further amended to read as follows:
8-64 Sec. 232.002. Licensing Authorities Subject to Chapter. The
8-65 following state agencies are licensing authorities subject to this
8-66 chapter [subchapter]:
8-67 (1) Department of Agriculture;
8-68 (2) Texas Commission on Alcohol and Drug Abuse;
8-69 (3) Texas Alcoholic Beverage Commission;
9-1 (4) Texas Appraiser Licensing and Certification Board;
9-2 (5) Texas Board of Architectural Examiners;
9-3 (6) State Board of Barber Examiners;
9-4 (7) Texas Board of Chiropractic Examiners;
9-5 (8) Comptroller of Public Accounts;
9-6 (9) Texas Cosmetology Commission;
9-7 (10) Court Reporters Certification Board;
9-8 (11) State Board of Dental Examiners[, if the 74th
9-9 Legislature, at its regular session, enacts legislation that
9-10 becomes law authorizing a state agency to regulate the practice of
9-11 dentistry];
9-12 (12) Texas State Board of Examiners of Dietitians;
9-13 (13) Texas Funeral Service Commission;
9-14 (14) Texas Department of Health;
9-15 (15) Texas Department of Human Services;
9-16 (16) Texas Board of Professional Land Surveying;
9-17 (17) [(16)] Texas Department of Licensing and
9-18 Regulation;
9-19 (18) [(17)] Texas State Board of Examiners of Marriage
9-20 and Family Therapists;
9-21 (19) [(18)] Texas State Board of Medical Examiners;
9-22 (20) [(19)] Midwifery Board;
9-23 (21) [(20)] Texas Natural Resource Conservation
9-24 Commission;
9-25 (22) [(21)] Board of Nurse Examiners;
9-26 [(22) Texas Board of Nursing Facility Administrators;]
9-27 (23) Texas Board of Occupational Therapy Examiners;
9-28 (24) Texas Optometry Board;
9-29 (25) Parks and Wildlife Department;
9-30 (26) Texas State Board of Examiners of Perfusionists;
9-31 (27) Texas State Board of Pharmacy;
9-32 (28) Texas Board of Physical Therapy Examiners;
9-33 (29) Texas State Board of Plumbing Examiners;
9-34 (30) Texas State Board of Podiatry Examiners;
9-35 (31) Polygraph Examiners Board;
9-36 (32) Texas Board of Private Investigators and Private
9-37 Security Agencies;
9-38 (33) Texas State Board of Examiners of Professional
9-39 Counselors;
9-40 (34) State Board of Registration for Professional
9-41 Engineers;
9-42 (35) Department of Protective and Regulatory Services;
9-43 (36) Texas State Board of Examiners of Psychologists;
9-44 (37) Texas State Board of Public Accountancy;
9-45 (38) Department of Public Safety of the State of
9-46 Texas;
9-47 (39) Public Utility Commission of Texas;
9-48 (40) Railroad Commission of Texas;
9-49 (41) Texas Real Estate Commission;
9-50 (42) State Bar of Texas;
9-51 (43) Texas State Board of Social Worker Examiners;
9-52 (44) State Board of Examiners for Speech-Language
9-53 Pathology and Audiology;
9-54 (45) Texas Structural Pest Control Board;
9-55 (46) Board of Tax Professional Examiners;
9-56 (47) Secretary of State;
9-57 (48) Supreme Court of Texas;
9-58 (49) Texas Transportation Commission;
9-59 (50) State Board of Veterinary Medical Examiners;
9-60 (51) Board of Vocational Nurse Examiners;
9-61 (52) Texas Ethics Commission;
9-62 (53) Advisory Board of Athletic Trainers;
9-63 (54) State Committee of Examiners in the Fitting and
9-64 Dispensing of Hearing Instruments;
9-65 (55) Texas Board of Licensure for Professional Medical
9-66 Physicists; and
9-67 (56) Texas Department of Insurance.
9-68 SECTION 1.03. This article takes effect September 1, 1997.
9-69 SECTION 1.04. (a) The Texas Board of Nursing Facility
10-1 Administrators is abolished on the effective date of this article.
10-2 (b) On the effective date of this article, the Texas
10-3 Department of Human Services assumes the functions of the Texas
10-4 Board of Nursing Facility Administrators. The obligations, rights,
10-5 contracts, and records of the Texas Board of Nursing Facility
10-6 Administrators are transferred to the Texas Department of Human
10-7 Services.
10-8 (c) All rules of the Texas Board of Nursing Facility
10-9 Administrators in place on the effective date of this article shall
10-10 continue in effect as rules of the Texas Department of Human
10-11 Services, provided that the Nursing Facility Administrators
10-12 Advisory Committee shall review the rules by March 1, 1998, and any
10-13 rules not readopted by the Texas Department of Human Services
10-14 before that date shall be abolished.
10-15 (d) All property and unexpended funds of the Texas Board of
10-16 Nursing Facility Administrators on the effective date of this
10-17 article are transferred to the Texas Department of Human Services.
10-18 All property, employees, and unexpended funds of the Texas
10-19 Department of Health used for purposes relating to the licensure
10-20 and regulation of nursing facility administrators are transferred
10-21 on the effective date of this article to the Texas Department of
10-22 Human Services.
10-23 (e) A license in effect that was issued by the abolished
10-24 board is continued in effect as a license of the Texas Department
10-25 of Human Services.
10-26 (f) A complaint, investigation, or other proceeding pending
10-27 before the abolished board is transferred without change in status
10-28 to the Texas Department of Human Services.
10-29 (g) Any reference in law to the Texas Board of Nursing
10-30 Facility Administrators means the Texas Department of Human
10-31 Services.
10-32 SECTION 1.05. In making the initial appointments to the
10-33 Nursing Facility Administrators Advisory Committee, as provided by
10-34 Section 242.303, Health and Safety Code, as added by this article,
10-35 the governor shall designate three members for a term expiring on
10-36 February 1, 1999, three members for a term expiring on February 1,
10-37 2001, and three members for a term expiring on February 1, 2003.
10-38 SECTION 1.06. If the federal government issues a ruling that
10-39 the system established under this article for licensure of nursing
10-40 facility administrators does not comply with federal regulations,
10-41 this article expires and Article 2 of this Act takes effect.
10-42 ARTICLE 2
10-43 SECTION 2.01. Chapter 242, Health and Safety Code, is
10-44 amended by adding Subchapter I to read as follows:
10-45 SUBCHAPTER I. NURSING FACILITY ADMINISTRATION
10-46 Sec. 242.301. DEFINITIONS. In this subchapter:
10-47 (1) "Board" means the Texas Board of Nursing Facility
10-48 Administrators.
10-49 (2) "Nursing facility" means an institution or
10-50 facility that is licensed as a nursing home, nursing facility, or
10-51 skilled nursing facility by the department under this chapter.
10-52 (3) "Nursing facility administrator" or
10-53 "administrator" means a person who engages in the practice of
10-54 nursing facility administration, without regard to whether the
10-55 person has an ownership interest in the facility or whether the
10-56 functions and duties are shared with any other person.
10-57 (4) "Practice of nursing facility administration"
10-58 means the performance of the acts of administering, managing,
10-59 supervising, or being in general administrative charge of a nursing
10-60 facility.
10-61 Sec. 242.302. TEXAS BOARD OF NURSING FACILITY
10-62 ADMINISTRATORS. (a) The Texas Board of Nursing Facility
10-63 Administrators is within the department.
10-64 (b) The board is composed of nine members appointed by the
10-65 governor as follows:
10-66 (1) three licensed nursing facility administrators, at
10-67 least one of whom shall represent a not-for-profit nursing
10-68 facility;
10-69 (2) one physician with experience in geriatrics who is
11-1 not employed by a nursing facility;
11-2 (3) one registered nurse with experience in geriatrics
11-3 who is not employed by a nursing facility;
11-4 (4) one social worker with experience in geriatrics
11-5 who is not employed by a nursing facility; and
11-6 (5) three public members with experience working with
11-7 the chronically ill and infirm as provided by 42 U.S.C. Section
11-8 1396g.
11-9 (c) Members of the board serve staggered six-year terms,
11-10 with the terms of three members expiring on February 1 of each
11-11 odd-numbered year. A person appointed to fill a vacancy on the
11-12 board shall serve for the unexpired portion of the term for which
11-13 the person is appointed.
11-14 (d) Appointments to the board shall be made without regard
11-15 to the race, color, disability, sex, religion, or national origin
11-16 of the person appointed.
11-17 Sec. 242.303. MEMBERSHIP REQUIREMENTS. (a) A member of the
11-18 board who is an administrator must:
11-19 (1) be a resident of this state and a citizen of the
11-20 United States;
11-21 (2) be licensed under this subchapter and currently
11-22 serving as a nursing facility administrator or have direct
11-23 supervisory responsibility on a daily basis over an administrator
11-24 who works in a nursing facility; and
11-25 (3) hold a degree from an accredited four-year college
11-26 or university.
11-27 (b) An administrator who does not have a degree as required
11-28 by Subsection (a)(3) may be qualified to serve as a member of the
11-29 board if the administrator has two years of practical experience as
11-30 an administrator for every year less than four that the
11-31 administrator has completed at a four-year college or university.
11-32 (c) A member or employee of the board may not:
11-33 (1) be an officer, employee, or paid consultant of a
11-34 trade association in the nursing facility industry; or
11-35 (2) be related within the second degree by affinity or
11-36 within the third degree by consanguinity to an officer, employee,
11-37 or paid consultant of a trade association in the nursing facility
11-38 industry.
11-39 (d) A member of the board who represents the general public
11-40 may not have a financial interest, other than as a consumer, in a
11-41 nursing facility as an officer, director, partner, owner,
11-42 employee, attorney, or paid consultant or be related within the
11-43 second degree by affinity or within the third degree by
11-44 consanguinity to a person who has a financial interest, other than
11-45 as a consumer, in a nursing facility as an officer, director,
11-46 partner, owner, employee, attorney, or paid consultant.
11-47 (e) A person who is required to register as a lobbyist under
11-48 Chapter 305, Government Code, because of the person's activities
11-49 for compensation on behalf of a profession related to the operation
11-50 of the board may not serve on the board.
11-51 Sec. 242.304. GROUNDS FOR REMOVAL. It is a ground for
11-52 removal from the board if a member:
11-53 (1) does not have at the time of appointment the
11-54 qualifications required by Section 242.303 for appointment to the
11-55 board;
11-56 (2) does not maintain during service on the board the
11-57 qualifications required by Section 242.303 for appointment to the
11-58 board;
11-59 (3) violates a prohibition established by Section
11-60 242.303;
11-61 (4) cannot discharge the member's duties for a
11-62 substantial part of the term for which the member is appointed
11-63 because of illness or disability; or
11-64 (5) is absent from more than half of the regularly
11-65 scheduled board meetings that the member is eligible to attend
11-66 during a calendar year, unless the absence is excused by a majority
11-67 vote of the board.
11-68 Sec. 242.305. BOARD OFFICERS; MEETINGS; QUORUM; EXPENSES.
11-69 (a) The board shall elect from its members a presiding officer and
12-1 assistant presiding officer who serve according to rules adopted by
12-2 the board.
12-3 (b) The board shall hold at least two regular meetings each
12-4 year as provided by rules adopted by the board.
12-5 (c) A majority of the members constitutes a quorum.
12-6 (d) Each member of the board is entitled to compensation for
12-7 transportation expenses as provided by the General Appropriations
12-8 Act.
12-9 Sec. 242.306. APPLICATION OF OPEN MEETINGS AND
12-10 ADMINISTRATIVE PROCEDURE ACT. The board is subject to Chapters 551
12-11 and 2001, Government Code.
12-12 Sec. 242.307. POWERS AND DUTIES OF THE BOARD. (a) The
12-13 board may adopt rules consistent with this subchapter.
12-14 (b) The board shall:
12-15 (1) adopt and publish a code of ethics for nursing
12-16 facility administrators;
12-17 (2) establish the qualifications of applicants for
12-18 licenses and the renewal of licenses issued under this subchapter;
12-19 (3) spend funds necessary for the proper
12-20 administration of the department's assigned duties under this
12-21 subchapter;
12-22 (4) establish reasonable and necessary fees for the
12-23 administration and implementation of this subchapter; and
12-24 (5) establish a minimum number of hours of continuing
12-25 education required to renew a license issued under this subchapter
12-26 and periodically assess the continuing education needs of license
12-27 holders to determine whether specific course content should be
12-28 required.
12-29 (c) The board is the licensing authority for the healing
12-30 arts, as provided by 42 U.S.C. Section 1396g, and shall meet the
12-31 requirements of a state licensing agency for nursing facility
12-32 practitioners, as provided by 42 C.F.R. Part 431, Subpart N.
12-33 Sec. 242.308. ADMINISTRATIVE FUNCTIONS. The department
12-34 shall serve as the administrator of the licensing activities under
12-35 this subchapter and shall provide staff as necessary for the
12-36 licensing and regulation of nursing facility administrators under
12-37 this subchapter. If necessary to the administration of this
12-38 subchapter, the department may secure and provide for compensation
12-39 for services that the department considers necessary and may employ
12-40 and compensate within available appropriations professional
12-41 consultants, technical assistants, and employees on a full-time or
12-42 part-time basis.
12-43 Sec. 242.309. FEES; FUNDS. (a) The board by rule shall set
12-44 reasonable and necessary fees in amounts necessary to cover the
12-45 cost of administering this subchapter. The board by rule may set
12-46 different licensing fees for different categories of licenses.
12-47 (b) The department shall receive and account for funds
12-48 received under this subchapter. The funds shall be deposited in
12-49 the state treasury to the credit of the general revenue fund.
12-50 (c) The department may receive and disburse funds received
12-51 from any federal source for the furtherance of the department's
12-52 functions under this subchapter.
12-53 Sec. 242.310. PRACTICING WITHOUT A LICENSE. A person may
12-54 not act as a nursing facility administrator or represent to others
12-55 that the person is a nursing facility administrator unless the
12-56 person is licensed under this subchapter.
12-57 Sec. 242.311. LICENSE APPLICATION; QUALIFICATIONS. (a) An
12-58 applicant for a nursing facility administrator's license must
12-59 submit a sworn application that is accompanied by the application
12-60 fee.
12-61 (b) The board shall prescribe the form of the application
12-62 and may by rule establish dates by which applications and fees must
12-63 be received.
12-64 (c) An applicant for a nursing facility administrator's
12-65 license must take a licensing examination under this subchapter.
12-66 To qualify for the licensing examination, the applicant must have
12-67 satisfactorily completed a course of instruction and training
12-68 prescribed by the board that is conducted by or in cooperation with
12-69 an accredited postsecondary educational institution and that is
13-1 designed and administered to provide sufficient knowledge of:
13-2 (1) the needs served by nursing facilities;
13-3 (2) the laws governing the operation of nursing
13-4 facilities and the protection of the interests of facility
13-5 residents; and
13-6 (3) the elements of nursing facility administration.
13-7 (d) An applicant who has not completed the course of
13-8 instruction and training described by Subsection (c) must present
13-9 evidence satisfactory to the board of having completed sufficient
13-10 education, training, and experience in the fields described by
13-11 Subsection (c) to enable the applicant to engage in the practice of
13-12 nursing facility administration.
13-13 Sec. 242.312. EXAMINATION. (a) The licensing examination
13-14 shall be prepared or approved by the board and shall be
13-15 administered by the board to qualified applicants at least twice
13-16 each calendar year. The board shall have the written portion of
13-17 the examination, if any, validated by a testing professional.
13-18 (b) Not later than the 30th day after the date on which a
13-19 licensing examination is administered under this subchapter, the
13-20 board shall notify each examinee of the results of the examination.
13-21 If an examination is graded or reviewed by a national or state
13-22 testing service, the board shall notify examinees of the results of
13-23 the examination not later than two weeks after the date the board
13-24 receives the results from the testing service. If the notice of
13-25 the examination results will be delayed for more than 90 days after
13-26 the examination date, the board shall notify the examinee of the
13-27 reason for the delay before the 90th day.
13-28 (c) If requested in writing by a person who fails the
13-29 licensing examination, the board shall furnish the person with an
13-30 analysis of the person's performance on the examination.
13-31 (d) The board may establish by rule additional educational
13-32 requirements to be met by an applicant who fails the examination
13-33 three times.
13-34 Sec. 242.313. LICENSES; TEMPORARY LICENSE; INACTIVE STATUS.
13-35 (a) A person who meets the requirements for licensing under this
13-36 subchapter is entitled to receive a license. A nursing facility
13-37 administrator's license is not transferable.
13-38 (b) A person licensed under this subchapter must notify the
13-39 board of the license holder's correct mailing address.
13-40 (c) A license is valid for two years. The board by rule may
13-41 adopt a system under which licenses expire on various dates during
13-42 the two-year period. For the year in which a license expiration
13-43 date is changed, license fees payable on the original expiration
13-44 date shall be prorated on a monthly basis so that each license
13-45 holder shall pay only that portion of the license fee that is
13-46 allocable to the number of months during which the license is
13-47 valid. On renewal of the license on the new expiration date, the
13-48 total license renewal fee is payable.
13-49 (d) The board by rule may provide for the issuance of a
13-50 temporary license. Rules adopted under this section shall include
13-51 a time limit for a licensee to practice under a temporary license.
13-52 (e) The board by rule may provide for a license holder to be
13-53 placed on inactive status.
13-54 Sec. 242.314. PROVISIONAL LICENSE. (a) On application, the
13-55 board shall grant a provisional license under this subchapter. An
13-56 applicant for a provisional license under this section must:
13-57 (1) be licensed in good standing as a nursing facility
13-58 administrator in another state, the District of Columbia, or a
13-59 territory of the United States that has licensing requirements that
13-60 are substantially equivalent to the requirements of this
13-61 subchapter;
13-62 (2) have passed a national or other examination
13-63 recognized by the board relating to the practice of nursing
13-64 facility administration; and
13-65 (3) be sponsored by a person licensed under this
13-66 subchapter with whom the provisional license holder may practice
13-67 under this section.
13-68 (b) An applicant for a provisional license may be excused
13-69 from the requirement of Subsection (a)(3) if the board determines
14-1 that compliance with that subsection constitutes a hardship to the
14-2 applicant.
14-3 (c) A provisional license is valid until the date the board
14-4 approves or denies the provisional license holder's application for
14-5 a license. The board shall issue a license under this subchapter
14-6 to the holder of a provisional license under this section if:
14-7 (1) the provisional license holder passes the
14-8 examination required by Section 242.311(c);
14-9 (2) the board verifies that the provisional license
14-10 holder has the academic and experience requirements for a license
14-11 under this subchapter; and
14-12 (3) the provisional license holder satisfies any other
14-13 license requirements under this subchapter.
14-14 (d) The board shall complete the processing of a provisional
14-15 license holder's application for a license not later than the 180th
14-16 day after the date the provisional license is issued. The board
14-17 may extend this time in order to receive the results of a national
14-18 examination or other examination administered or graded by an
14-19 outside organization recognized by the board.
14-20 Sec. 242.315. LICENSE RENEWAL. (a) A person may renew an
14-21 unexpired license by paying to the board before the expiration of
14-22 the license the required renewal fee.
14-23 (b) If a person's license has been expired for 90 days or
14-24 less, the person may renew the license by paying to the board the
14-25 required renewal fee and a fee that is one-half of the examination
14-26 fee for the license.
14-27 (c) If a person's license has been expired for longer than
14-28 90 days but less than one year, the person may renew the license by
14-29 paying to the board all unpaid renewal fees and a fee that is equal
14-30 to the examination fee for the license.
14-31 (d) If a person's license has been expired for one year or
14-32 longer, the person may not renew the license. The person may
14-33 obtain a new license by complying with the requirements and
14-34 procedures for obtaining an original license. However, the board
14-35 may renew without reexamination an expired license of a person who
14-36 was licensed in this state, moved to another state, and is
14-37 currently licensed and has been in practice in the other state for
14-38 the two years preceding application. The person must pay to the
14-39 board a fee that is equal to the examination fee for the license.
14-40 (e) At least 30 days before the expiration of a person's
14-41 license, the board shall send written notice of the impending
14-42 license expiration to the person at the license holder's last known
14-43 address according to the records of the board.
14-44 Sec. 242.316. MANDATORY CONTINUING EDUCATION. (a) The
14-45 board by rule shall establish a minimum number of hours of
14-46 continuing education required to renew a license under this
14-47 subchapter. The board may assess the continuing education needs of
14-48 license holders and may require license holders to attend
14-49 continuing education courses specified by the board.
14-50 (b) The board shall identify the key factors for the
14-51 competent performance by a license holder of the license holder's
14-52 professional duties. The board shall adopt a procedure to assess a
14-53 license holder's participation in continuing education programs.
14-54 Sec. 242.317. COMPLAINT RECEIPT, INVESTIGATION, AND
14-55 DISPOSITION. (a) The board shall keep an information file about
14-56 each complaint filed with the board regarding a person licensed
14-57 under this subchapter. The board's information file shall be kept
14-58 current and contain a record for each complaint of:
14-59 (1) all persons contacted in relation to the
14-60 complaint;
14-61 (2) a summary of findings made at each step of the
14-62 complaint process;
14-63 (3) an explanation of the legal basis and reason for a
14-64 complaint that is dismissed; and
14-65 (4) other relevant information.
14-66 (b) If a written complaint is filed with the board that the
14-67 board has authority to resolve, the board, at least as frequently
14-68 as quarterly and until final disposition of the complaint, shall
14-69 notify the parties to the complaint of the status of the complaint
15-1 unless the notice would jeopardize an undercover investigation.
15-2 (c) The board by rule shall adopt a form to standardize
15-3 information concerning complaints made to the board. The board by
15-4 rule shall prescribe information to be provided to a person when
15-5 the person files a complaint with the board.
15-6 (d) The board shall provide reasonable assistance to a
15-7 person who wishes to file a complaint with the board.
15-8 (e) The board shall adopt rules concerning the investigation
15-9 of complaints filed with the board. The rules adopted under this
15-10 subsection shall:
15-11 (1) distinguish between categories of complaints;
15-12 (2) ensure that complaints are not dismissed without
15-13 appropriate consideration;
15-14 (3) require that the board be advised at least
15-15 quarterly of complaints that have been dismissed and require that a
15-16 letter be sent to each person who has filed a complaint that is
15-17 dismissed explaining the action taken on the complaint;
15-18 (4) ensure that the person who filed the complaint has
15-19 an opportunity to explain the allegations made in the complaint;
15-20 and
15-21 (5) prescribe guidelines concerning the categories of
15-22 complaints that may require the use of a private investigator and
15-23 the procedures for the board to obtain the services of a private
15-24 investigator.
15-25 (f) The board shall dispose of all complaints in a timely
15-26 manner. The board by rule shall establish a schedule for
15-27 initiating a complaint investigation that is under the control of
15-28 the board not later than the 30th day after the date the complaint
15-29 is received by the board. The schedule shall be kept in the
15-30 information file for the complaint, and all parties shall be
15-31 notified of the projected time requirements for pursuing the
15-32 complaint. A change in the schedule must be noted in the complaint
15-33 information file and all parties to the complaint must be notified
15-34 not later than the seventh day after the date the change is made.
15-35 (g) The department shall notify the board at least quarterly
15-36 of complaints that have extended beyond the time prescribed by the
15-37 board for resolving complaints so that the department may take any
15-38 necessary corrective actions on the processing of complaints.
15-39 Sec. 242.318. SANCTIONS. (a) The board may revoke,
15-40 suspend, or refuse to renew a nursing facility administrator's
15-41 license, assess an administrative penalty, issue a written
15-42 reprimand, require participation in continuing education, or place
15-43 an administrator on probation, after due notice and hearing, on
15-44 proof of any of the following grounds:
15-45 (1) the license holder has wilfully or repeatedly
15-46 violated a provision of this subchapter or a rule adopted under
15-47 this subchapter;
15-48 (2) the license holder has wilfully or repeatedly
15-49 acted in a manner inconsistent with the health and safety of the
15-50 residents of a facility of which the license holder is an
15-51 administrator;
15-52 (3) the license holder obtained or attempted to obtain
15-53 a license through misrepresentation or deceit or by making a
15-54 material misstatement of fact on a license application;
15-55 (4) the license holder's use of alcohol or drugs
15-56 creates a hazard to the residents of a facility;
15-57 (5) a judgment of a court of competent jurisdiction
15-58 finds that the license holder is mentally incapacitated;
15-59 (6) the license holder has been convicted in a court
15-60 of competent jurisdiction of a misdemeanor or felony involving
15-61 moral turpitude; or
15-62 (7) the license holder has been negligent or
15-63 incompetent in the license holder's duties as a nursing facility
15-64 administrator.
15-65 (b) If a license sanction is probated, the board may require
15-66 the license holder to:
15-67 (1) report regularly to the board on matters that are
15-68 the basis of the probation;
15-69 (2) limit practice to the areas prescribed by the
16-1 department; or
16-2 (3) continue or review continuing professional
16-3 education until the license holder attains a degree of skill
16-4 satisfactory to the department in those areas that are the basis of
16-5 the probation.
16-6 (c) A license holder is entitled to a hearing in accordance
16-7 with rules promulgated by the board before a sanction is imposed
16-8 under this section.
16-9 (d) The board by rule shall adopt a broad schedule of
16-10 sanctions for violations under this subchapter. The board shall
16-11 use the schedule for any sanction imposed as the result of a
16-12 hearing conducted in accordance with the rules.
16-13 (e) The department shall by rule establish criteria to
16-14 determine whether deficiencies from a facility's survey warrant
16-15 action against an administrator. The criteria shall include a
16-16 determination of whether the survey indicates substandard quality
16-17 of care and whether a deficiency is related to an act or failure to
16-18 act by the administrator. If a deficiency on which a disciplinary
16-19 action against an administrator is initiated or completed is not
16-20 substantiated, the disciplinary action shall be reversed.
16-21 Sec. 242.319. WRITTEN REPRIMAND AND CONTINUING EDUCATION AS
16-22 SANCTIONS. In addition to the other disciplinary actions
16-23 authorized under this subchapter, the board may issue a written
16-24 reprimand to a license holder who violates this subchapter or
16-25 require that a license holder who violates this subchapter
16-26 participate in continuing education programs. The board shall
16-27 specify the continuing education programs that may be attended and
16-28 the number of hours that must be completed by a license holder to
16-29 fulfill the requirements of this section.
16-30 Sec. 242.320. ADMINISTRATIVE PENALTY AS SANCTION. (a) The
16-31 department may impose an administrative penalty against a person
16-32 licensed or regulated under this subchapter who violates this
16-33 subchapter or a rule adopted by the board under this subchapter.
16-34 (b) The penalty for a violation may be in an amount not to
16-35 exceed $1,000. Each day a violation occurs or continues is a
16-36 separate violation for purposes of imposing a penalty.
16-37 (c) The amount of the penalty shall be based on:
16-38 (1) the seriousness of the violation, including the
16-39 nature, circumstances, extent, and gravity of any prohibited acts,
16-40 and the hazard or potential hazard created to the health, safety,
16-41 or economic welfare of the public;
16-42 (2) the economic harm to property or the environment
16-43 caused by the violation;
16-44 (3) the history of previous violations;
16-45 (4) the amount necessary to deter future violations;
16-46 (5) efforts to correct the violations; and
16-47 (6) any other matter that justice may require.
16-48 Sec. 242.321. NOTICE AND HEARING. (a) If the department
16-49 determines that a violation has occurred, the department shall give
16-50 written notice of the determination to the person alleged to have
16-51 committed the violation. The notice may be given by certified
16-52 mail. The notice must include a brief summary of the alleged
16-53 violation and a statement of the amount of the recommended penalty
16-54 and must inform the person that the person has a right to a hearing
16-55 on the occurrence of the violation, the amount of the penalty, or
16-56 both the occurrence of the violation and the amount of the penalty.
16-57 (b) Within 20 days after the date the person receives the
16-58 notice, the person in writing may accept the determination and the
16-59 penalty recommended by the department or may make a written request
16-60 for a hearing on the occurrence of the violation, the amount of the
16-61 penalty, or both the occurrence of the violation and the amount of
16-62 the penalty.
16-63 (c) If the person accepts the determination and the penalty
16-64 recommended by the department, the department shall impose the
16-65 recommended penalty.
16-66 (d) If the person requests a hearing or fails to respond
16-67 timely to the notice, the department shall set a hearing and give
16-68 notice of the hearing to the person. The hearing shall be held in
16-69 accordance with the department's rules on contested case hearings.
17-1 (e) The notice of the hearing decision given to the person
17-2 under Chapter 2001, Government Code, must include a statement of
17-3 the right of the person to judicial review of the decision.
17-4 (f) Within 30 days after the date the department's decision
17-5 is final as provided by Section 2001.144, Government Code, the
17-6 person shall:
17-7 (1) pay the amount of the penalty;
17-8 (2) pay the amount of the penalty and file a petition
17-9 for judicial review contesting the occurrence of the violation, the
17-10 amount of the penalty, or both the occurrence of the violation and
17-11 the amount of the penalty; or
17-12 (3) without paying the amount of the penalty, file a
17-13 petition for judicial review contesting the occurrence of the
17-14 violation, the amount of the penalty, or both the occurrence of the
17-15 violation and the amount of the penalty.
17-16 (g) Within the 30-day period, a person who acts under
17-17 Subsection (f)(3) may:
17-18 (1) stay enforcement of the penalty by:
17-19 (A) paying the amount of the penalty to the
17-20 court for placement in an escrow account; or
17-21 (B) giving to the court a supersedeas bond that
17-22 is approved by the court for the amount of the penalty and that is
17-23 effective until all judicial review of the department's decision is
17-24 final; or
17-25 (2) request the court to stay enforcement of the
17-26 penalty by:
17-27 (A) filing with the court a sworn affidavit of
17-28 the person stating that the person is financially unable to pay the
17-29 amount of the penalty and is financially unable to give the
17-30 supersedeas bond; and
17-31 (B) giving a copy of the affidavit to the
17-32 department by certified mail.
17-33 (h) If the department receives a copy of an affidavit under
17-34 Subsection (g)(2), the department may file with the court, within
17-35 five days after the date the copy is received, a contest to the
17-36 affidavit. The court shall hold a hearing on the facts alleged in
17-37 the affidavit as soon as practicable and shall stay the enforcement
17-38 of the penalty on finding that the alleged facts are true. The
17-39 person who files an affidavit has the burden of proving that the
17-40 person is financially unable to pay the amount of the penalty and
17-41 to give a supersedeas bond.
17-42 (i) If the person does not pay the amount of the penalty and
17-43 the enforcement of the penalty is not stayed, the department may
17-44 refer the matter to the attorney general for collection of the
17-45 amount of the penalty.
17-46 (j) Judicial review of the decision of the department:
17-47 (1) is instituted by filing a petition as provided by
17-48 Section 2001.176, Government Code; and
17-49 (2) is under the substantial evidence rule.
17-50 (k) If the court sustains the occurrence of the violation,
17-51 the court may uphold or reduce the amount of the penalty and order
17-52 the person to pay the full or reduced amount of the penalty. If
17-53 the court does not sustain the occurrence of the violation, the
17-54 court shall order that no penalty is owed.
17-55 (l) When the judgment of the court becomes final, the court
17-56 shall proceed under this subsection. If the person paid the amount
17-57 of the penalty and if that amount is reduced or is not upheld by
17-58 the court, the court shall order that the appropriate amount plus
17-59 accrued interest be remitted to the person. The rate of the
17-60 interest is the rate charged on loans to depository institutions by
17-61 the New York Federal Reserve Bank, and the interest shall be paid
17-62 for the period beginning on the date the penalty was paid and
17-63 ending on the date the penalty is remitted. If the person gave a
17-64 supersedeas bond and if the amount of the penalty is not upheld by
17-65 the court, the court shall order the release of the bond. If the
17-66 person gave a supersedeas bond and if the amount of the penalty is
17-67 reduced, the court shall order the release of the bond after the
17-68 person pays the amount.
17-69 (m) A penalty collected under this section shall be remitted
18-1 to the comptroller for deposit in the general revenue fund.
18-2 (n) All proceedings under this section are subject to
18-3 Chapter 2001, Government Code.
18-4 Sec. 242.322. INFORMAL PROCEEDINGS. (a) The department by
18-5 rule shall adopt procedures governing:
18-6 (1) informal disposition of a contested case under
18-7 Section 2001.056, Government Code; and
18-8 (2) informal proceedings held in compliance with
18-9 Section 2001.054, Government Code.
18-10 (b) Rules adopted under this section must provide the
18-11 complainant and the license holder an opportunity to be heard.
18-12 Sec. 242.323. MONITORING OF LICENSE HOLDER. The board by
18-13 rule shall develop a system for monitoring a license holder's
18-14 compliance with the requirements of this subchapter. Rules adopted
18-15 under this section shall include procedures for monitoring a
18-16 license holder who is required by the board to perform certain acts
18-17 to ascertain that the license holder performs the required acts and
18-18 to identify and monitor license holders who represent a risk to the
18-19 public.
18-20 Sec. 242.324. CIVIL PENALTY. A person who violates this
18-21 subchapter is liable to the state for a civil penalty of $1,000 for
18-22 each day of violation. At the request of the department, the
18-23 attorney general shall bring an action to recover a civil penalty
18-24 established by this section.
18-25 Sec. 242.325. ASSISTANCE OF ATTORNEY GENERAL. The attorney
18-26 general shall provide legal assistance as necessary in enforcing
18-27 the provisions of this subchapter. This requirement does not
18-28 relieve a local prosecuting officer of any of the prosecuting
18-29 officer's duties under the law.
18-30 Sec. 242.326. OFFENSE. (a) A person commits an offense if
18-31 the person knowingly or intentionally violates Section 242.310.
18-32 (b) An offense under this section is a Class B misdemeanor.
18-33 Sec. 242.327. PROTECTION FOR REFUSAL TO ENGAGE IN CERTAIN
18-34 CONDUCT. (a) A person may not suspend, terminate, or otherwise
18-35 discipline or discriminate against a licensed nursing facility
18-36 administrator who refuses to engage in an act or omission relating
18-37 to the administrator's job duties or responsibilities that would
18-38 constitute a violation of this subchapter or of a rule adopted
18-39 under this subchapter, if the administrator notifies the person at
18-40 the time of the refusal that the reason for refusing is that the
18-41 act or omission constitutes a violation of this subchapter or of a
18-42 rule adopted under this subchapter.
18-43 (b) An act by a person under Subsection (a) does not
18-44 constitute a violation of this section if:
18-45 (1) the act or omission the administrator refused to
18-46 commit was not conduct that constitutes a violation of this
18-47 subchapter or of a rule adopted under this subchapter; or
18-48 (2) the act or omission the administrator refused to
18-49 commit was conduct that constitutes a violation of this subchapter
18-50 or of a rule adopted under this subchapter, and the person rescinds
18-51 any disciplinary or discriminatory action taken against the
18-52 administrator, compensates the administrator for lost wages, and
18-53 restores any lost benefits to the administrator.
18-54 (c) A violation of this section is an unlawful employment
18-55 practice, and a civil action may be brought by a licensed nursing
18-56 facility administrator against a person for the violation. The
18-57 relief available in a civil action shall be the same as the relief
18-58 available to complainants in a civil action for violations of
18-59 Chapter 21, Labor Code. In no event may any action be brought
18-60 pursuant to this section more than two years after the date of the
18-61 administrator's refusal to engage in an act or omission that would
18-62 constitute a violation of this subchapter or of a rule adopted
18-63 under this subchapter.
18-64 (d) In this section, "person" includes an individual,
18-65 organization, corporation, agency, facility, or other entity.
18-66 SECTION 2.02. This article takes effect only if Article 1 of
18-67 this Act expires, on the date that article expires, as provided by
18-68 Section 1.06 of this Act.
18-69 SECTION 2.03. In making the initial appointments of members
19-1 of the Texas Nursing Facility Administrators Board, as provided by
19-2 Section 242.302, Health and Safety Code, as added by this article,
19-3 the governor shall designate the terms of members so that three
19-4 members' terms expire February 1 of each odd-numbered year, the
19-5 members serve six-year staggered terms, and no member initially
19-6 appointed serves more than two years.
19-7 SECTION 2.04. (a) Any rule of the Texas Department of Human
19-8 Services adopted under Subchapter I, Chapter 242, Health and Safety
19-9 Code, as added by Article 1 of this Act, or as provided by
19-10 Subsection (b), Section 1.04 of this Act, in place on the effective
19-11 date of this article shall continue in effect as a rule of the
19-12 Texas Nursing Facility Administrators Board.
19-13 (b) On the effective date of this article, the obligations,
19-14 rights, contracts, and records of the Texas Department of Human
19-15 Services transferred to that agency under Article 1 of this Act, or
19-16 entered into or incurred by the Texas Department of Human Services
19-17 under Subchapter I, Chapter 242, Health and Safety Code, as added
19-18 by Article 1 of this Act, before the expiration of that article,
19-19 are transferred to the Texas Board of Nursing Facility
19-20 Administrators as necessary under the provisions of Subchapter I,
19-21 Chapter 242, Health and Safety Code, as added by this article.
19-22 (c) A license in effect that was issued by the Texas
19-23 Department of Human Services under Subchapter I, Chapter 242,
19-24 Health and Safety Code, as added by Article 1 of this Act, is
19-25 continued in effect as a license of the Texas Board of Nursing
19-26 Facility Administrators.
19-27 (d) A complaint, investigation, or other proceeding relating
19-28 to the licensure and regulation of nursing facility administrators
19-29 pending before the Texas Department of Human Services under
19-30 Subchapter I, Chapter 242, Health and Safety Code, as added by
19-31 Article 1 of this Act, is transferred without change in status to
19-32 the Texas Board of Nursing Facility Administrators as necessary
19-33 under the provisions of Subchapter I, Chapter 242, Health and
19-34 Safety Code, as added by this article.
19-35 ARTICLE 3
19-36 SECTION 3.01. Article 4512q, Revised Statutes, is repealed.
19-37 SECTION 3.02. The importance of this legislation and the
19-38 crowded condition of the calendars in both houses create an
19-39 emergency and an imperative public necessity that the
19-40 constitutional rule requiring bills to be read on three several
19-41 days in each house be suspended, and this rule is hereby suspended.
19-42 * * * * *