§ 242.3115 — APPLICABILITY OF OTHER LAW.

Texas § 242.3115

• Jurisdiction: Texas
• Code HS: Health and Safety Code

Text

Sec. 242.3115. APPLICABILITY OF OTHER LAW. Chapter 53 , Occupations Code, does not apply to the issuance or renewal of a license under this subchapter.
Sec. 242.312. EXAMINATION. (a) The licensing examination shall be prepared or approved by the board and shall be administered by the board to qualified applicants at least twice each calendar year. The board shall have the written portion of the examination, if any, validated by a testing professional.
(b) Not later than the 30th day after the date on which a licensing examination is administered under this subchapter, the board shall notify each examinee of the results of the examination. If an examination is graded or reviewed by a national or state testing service, the board shall notify examinees of the results of the examination not later than two weeks after the date the board receives the results from the testing service. If the notice of the examination results will be delayed for more than 90 days after the examination date, the board shall notify the examinee of the reason for the delay before the 90th day.
(c) If requested in writing by a person who fails the licensing examination, the board shall furnish the person with an analysis of the person's performance on the examination.
(d) The board may establish by rule additional educational requirements to be met by an applicant who fails the examination three times.
Sec. 242.313. LICENSES; TEMPORARY LICENSE; INACTIVE STATUS. (a) A person who meets the requirements for licensing under this subchapter is entitled to receive a license. A nursing facility administrator's license is not transferable.
(b) A person licensed under this subchapter must notify the board of the license holder's correct mailing address.
(c) A license is valid for two years. The board by rule may adopt a system under which licenses expire on various dates during the two-year period. For the year in which a license expiration date is changed, license fees payable on the original expiration date shall be prorated on a monthly basis so that each license holder shall pay only that portion of the license fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable.
(d) The board by rule may provide for the issuance of a temporary license. Rules adopted under this section shall include a time limit for a licensee to practice under a temporary license.
(e) The board by rule may provide for a license holder to be placed on inactive status.
Sec. 242.314. PROVISIONAL LICENSE. (a) The board shall issue a provisional license to an applicant currently licensed in another jurisdiction who seeks a license in this state and who:
(1) has been licensed in good standing as a nursing facility administrator for at least two years in another jurisdiction, including a foreign country, that has licensing requirements that are substantially equivalent to the requirements of this subchapter;
(2) has passed a national or other examination recognized by the board relating to the practice of nursing facility administration; and
(3) is sponsored by a person licensed by the board under this subchapter with whom the provisional license holder will practice during the time the person holds a provisional license.
(b) The board may waive the requirement of Subsection (a)(3) for an applicant if the board determines that compliance with that subsection would be a hardship to the applicant.
(c) A provisional license is valid until the date the board approves or denies the provisional license holder's application for a license. The board shall issue a license under this subchapter to the provisional license holder if:
(1) the provisional license holder is eligible to be licensed under Section 242.311 ; or
(2) the provisional license holder passes the part of the examination under Section 242.312 that relates to the applicant's knowledge and understanding of the laws and rules relating to the practice of nursing facility administration in this state and:
(A) the board verifies that the provisional license holder meets the academic and experience requirements for a license under this subchapter; and
(B) the provisional license holder satisfies any other license requirements under this subchapter.
(d) The board must approve or deny a provisional license holder's application for a license not later than the 180th day after the date the provisional license is issued. The board may extend the 180-day period if the results of an examination have not been received by the board before the end of that period.
(e) The board may establish a fee for provisional licenses in an amount reasonable and necessary to cover the cost of issuing the license.
Sec. 242.315. LICENSE RENEWAL. (a) A person who is otherwise eligible to renew a license may renew an unexpired license by paying the required renewal fee to the board before the expiration date of the license. A person whose license has expired may not engage in activities that require a license until the license has been renewed.
(b) A person whose license has been expired for 90 days or less may renew the license by paying to the board a renewal fee that is equal to 1-1/2 times the normally required fee.
(c) A person whose license has been expired for more than 90 days but less than one year may renew the license by paying to the board a renewal fee that is equal to two times the normally required renewal fee.
(d) A person whose license has been expired for one year or more may not renew the license. The person may obtain a new license by complying with the requirements and procedures, including the examination requirements, for obtaining an original license.
(e) A person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding the date of application may obtain a new license without reexamination. The person must pay to the board a fee that is equal to two times the normally required renewal fee for the license.
(f) Not later than the 31st day before the date a person's license is scheduled to expire, the board shall send written notice of the impending expiration to the person at the person's last known address according to the records of the board.
Sec. 242.316. MANDATORY CONTINUING EDUCATION. (a) The board by rule shall establish a minimum number of hours of continuing education required to renew a license under this subchapter. The board may assess the continuing education needs of license holders and may require license holders to attend continuing education courses specified by the board.
(b) The board shall identify the key factors for the competent performance by a license holder of the license holder's professional duties. The board shall adopt a procedure to assess a license holder's participation in continuing education programs.
Sec. 242.317. COMPLAINT RECEIPT, INVESTIGATION, AND DISPOSITION. (a) The board shall keep an information file about each complaint filed with the board regarding a person licensed under this subchapter. The board's information file shall be kept current and contain a record for each complaint of:
(1) all persons contacted in relation to the complaint;
(2) a summary of findings made at each step of the complaint process;
(3) an explanation of the legal basis and reason for a complaint that is dismissed; and
(4) other relevant information.
(b) If a written complaint is filed with the board that the board has authority to resolve, the board, at least as frequently as quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation.
(c) The board by rule shall adopt a form to standardize information concerning complaints made to the board. The board by rule shall prescribe information to be provided to a person when the person files a complaint with the board.
(d) The board shall provide reasonable assistance to a person who wishes to file a complaint with the board.
(e) The board shall adopt rules concerning the investigation of complaints filed with the board. The rules adopted under this subsection shall:
(1) distinguish between categories of complaints;
(2) ensure that complaints are not dismissed without appropriate consideration;
(3) require that the board be advised at least quarterly of complaints that have been dismissed and require that a letter be sent to each person who has filed a complaint that is dismissed explaining the action taken on the complaint;
(4) ensure that the person who filed the complaint has an opportunity to explain the allegations made in the complaint; and
(5) prescribe guidelines concerning the categories of complaints that may require the use of a private investigator and the procedures for the board to obtain the services of a private investigator.
(f) The board shall dispose of all complaints in a timely manner. The board by rule shall establish a schedule for initiating a complaint investigation that is under the control of the board not later than the 30th day after the date the complaint is received by the board. The schedule shall be kept in the information file for the complaint, and all parties shall be notified of the projected time requirements for pursuing the complaint. A change in the schedule must be noted in the complaint information file and all parties to the complaint must be notified not later than the seventh day after the date the change is made.
(g) The department shall notify the board at least quarterly of complaints that have extended beyond the time prescribed by the board for resolving complaints so that the department may take any necessary corrective actions on the processing of complaints.
Sec. 242.318. SANCTIONS. (a) The board may revoke, suspend, or refuse to renew a nursing facility administrator's license, assess an administrative penalty, issue a written reprimand, require participation in continuing education, or place an administrator on probation, after due notice and the opportunity for a hearing, on proof of any of the following grounds:
(1) the license holder has wilfully or repeatedly violated a provision of this subchapter or a rule adopted under this subchapter;
(2) the license holder has wilfully or repeatedly acted in a manner inconsistent with the health and safety of the residents of a facility of which the license holder is an administrator;
(3) the license holder obtained or attempted to obtain a license through misrepresentation or deceit or by making a material misstatement of fact on a license application;
(4) the license holder's use of alcohol or drugs creates a hazard to the residents of a facility;
(5) a judgment of a court of competent jurisdiction finds that the license holder is mentally incapacitated;
(6) the license holder has been convicted in a court of competent jurisdiction of a misdemeanor or felony involving moral turpitude;
(7) the license holder has been convicted in a court of competent jurisdiction of an offense listed in Section 250.006 ; or
(8) the license holder has been negligent or incompetent in the license holder's duties as a nursing facility administrator.
(b) If a license sanction is probated, the board may require the license holder to:
(1) report regularly to the board on matters that are the basis of the probation;
(2) limit practice to the areas prescribed by the department; or
(3) continue or review continuing professional education until the license holder attains a degree of skill satisfactory to the department in those areas that are the basis of the probation.
(c) A license holder is entitled to a hearing in accordance with rules promulgated by the board before a sanction is imposed under this section.
(d) The board by rule shall adopt a broad schedule of sanctions for violations under this subchapter. The board shall use the schedule for any sanction imposed in accordance with the rules.
(e) The department shall by rule establish criteria to determine whether deficiencies from a facility's survey warrant action against an administrator. The criteria shall include a determination of whether the survey indicates substandard quality of care and whether a deficiency is related to an act or failure to act by the administrator. If a deficiency on which a disciplinary action against an administrator is initiated or completed is not substantiated, the disciplinary action shall be reversed.
Sec. 242.319. WRITTEN REPRIMAND AND CONTINUING EDUCATION AS SANCTIONS. In addition to the other disciplinary actions authorized under this subchapter, the board may issue a written reprimand to a license holder who violates this subchapter or require that a license holder who violates this subchapter participate in continuing education programs. The board shall specify the continuing education programs that may be attended and the number of hours that must be completed by a license holder to fulfill the requirements of this section.
Sec. 242.320. ADMINISTRATIVE PENALTY AS SANCTION. (a) The department may impose an administrative penalty against a person licensed or regulated under this subchapter who violates this subchapter or a rule adopted by the board under this subchapter.
(b) The penalty for a violation may be in an amount not to exceed $1,000. Each day a violation occurs or continues is a separate violation for purposes of imposing a penalty.
(c) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of any prohibited acts, and the hazard or potential hazard created to the health, safety, or economic welfare of the public;
(2) the economic harm to property or the environment caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter future violations;
(5) efforts to correct the violations; and
(6) any other matter that justice may require.
Sec. 242.321. NOTICE AND HEARING. (a) If the department determines that a violation has occurred, the department shall give written notice of the determination to the person alleged to have committed the violation. The notice may be given by certified mail. The notice must include a brief summary of the alleged violation and a statement of the amount of the recommended penalty and must inform the person that the person has a right to a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.
(b) Within 20 days after the date the person receives the notice, the person in writing may accept the determination and the penalty recommended by the department or may make a written request for a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.
(c) If the person accepts the determination and the penalty recommended by the department, or if the person fails to timely respond to the notice, the department shall impose the recommended penalty.
(d) If the person requests a hearing, the department shall set a hearing and give notice of the hearing to the person. The hearing shall be held in accordance with the rules on contested case hearings adopted by the executive commissioner.
(e) The notice of the hearing decision given to the person under Chapter 2001 , Government Code, must include a statement of the right of the person to judicial review of the decision.
(f) Within 30 days after the date the department's decision is final as provided by Section 2001.144 , Government Code, the person shall:
(1) pay the amount of the penalty;
(2) pay the amount of the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty; or
(3) without paying the amount of the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.
(g) Within the 30-day period, a person who acts under Subsection (f)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the amount of the penalty to the court for placement in an escrow account; or
(B) giving to the court a supersedeas bond that is approved by the court for the amount of the penalty and that is effective until all judicial review of the department's decision is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the amount of the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the department by certified mail.
(h) If the department receives a copy of an affidavit under Subsection (g)(2), the department may file with the court, within five days after the date the copy is received, a contest to the affidavit. The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the amount of the penalty and to give a supersedeas bond.
(i) If the person does not pay the amount of the penalty and the enforcement of the penalty is not stayed, the department may refer the matter to the attorney general for collection of the amount of the penalty.
(j) Judicial review of the decision of the department:
(1) is instituted by filing a petition as provided by Section 2001.176 , Government Code; and
(2) is under the substantial evidence rule.
(k) If the court sustains the occurrence of the violation, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced amount of the penalty. If the court does not sustain the occurrence of the violation, the court shall order that no penalty is owed.
(l) When the judgment of the court becomes final, the court shall proceed under this subsection. If the person paid the amount of the penalty and if that amount is reduced or is not upheld by the court, the court shall order that the appropriate amount plus accrued interest be remitted to the person. The rate of the interest is the rate charged on loans to depository institutions by the New York Federal Reserve Bank, and the interest shall be paid for the period beginning on the date the penalty was paid and ending on the date the penalty is remitted. If the person gave a supersedeas bond and if the amount of the penalty is not upheld by the court, the court shall order the release of the bond. If the person gave a supersedeas bond and if the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the amount.
(m) A penalty collected under this section shall be remitted to the comptroller for deposit in the general revenue fund.
(n) All proceedings under this section are subject to Chapter 2001 , Government Code.
Sec. 242.322. INFORMAL PROCEEDINGS. (a) The department by rule shall adopt procedures governing:
(1) informal disposition of a contested case under Section 2001.056 , Government Code; and
(2) informal proceedings held in compliance with Section 2001.054 , Government Code.
(b) Rules adopted under this section must provide the complainant and the license holder an opportunity to be heard.

Legislative History

Added by Acts 2023, 88th Leg., R.S., Ch. 1136 (S.B. 681 ), Sec. 2, eff. September 1, 2023. Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01. Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01. Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01. Amended by Acts 1999, 76th Leg., ch. 1505, Sec. 1.22, eff. Sept. 1, 1999. Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01. Amended by Acts 1999, 76th Leg., ch. 1505, Sec. 1.23, eff. Sept. 1, 1999. Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01. Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01. Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01. Amended by: Acts 2009, 81st Leg., R.S., Ch. 763 (S.B. 806 ), Sec. 4, eff. June 19, 2009. Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01. Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01. Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01. Amended by: Acts 2009, 81st Leg., R.S., Ch. 763 (S.B. 806 ), Sec. 5, eff. June 19, 2009. Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.