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                                 * * * * *