§ 242.322 — PROTECTION FOR REFUSAL TO ENGAGE IN CERTAIN CONDUCT.

Texas § 242.322

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

Text

Sec. 242.322. PROTECTION FOR REFUSAL TO ENGAGE IN CERTAIN CONDUCT. (a) A person may not suspend, terminate, or otherwise discipline or discriminate against a licensed nursing facility administrator who refuses to engage in an act or omission relating to the administrator's job duties or responsibilities that would constitute a violation of this subchapter or of a rule adopted under this subchapter, if the administrator notifies the person at the time of the refusal that the reason for refusing is that the act or omission constitutes a violation of this subchapter or of a rule adopted under this subchapter.
(b) An act by a person under Subsection (a) does not constitute a violation of this section if:
(1) the act or omission the administrator refused to commit was not conduct that constitutes a violation of this subchapter or of a rule adopted under this subchapter; or
(2) the act or omission the administrator refused to commit was conduct that constitutes a violation of this subchapter or of a rule adopted under this subchapter, and the person rescinds any disciplinary or discriminatory action taken against the administrator, compensates the administrator for lost wages, and restores any lost benefits to the administrator.
(c) A violation of this section is an unlawful employment practice, and a civil action may be brought by a licensed nursing facility administrator against a person for the violation. The relief available in a civil action shall be the same as the relief available to complainants in a civil action for violations of Chapter 21 , Labor Code. In no event may any action be brought pursuant to this section more than two years after the date of the administrator's refusal to engage in an act or omission that would constitute a violation of this subchapter or of a rule adopted under this subchapter.
(d) In this section, "person" includes an individual, organization, corporation, agency, facility, or other entity.
Subchapter I, consisting of Secs. 242.301 to 242.327, was added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
For another Subchapter I, consisting of Secs. 242.301 to 242.322, added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, see Sec. 242.301 et seq. post.
Text of subchapter effective upon federal determination of failure to comply with federal regulations
SUBCHAPTER I. NURSING FACILITY ADMINISTRATION
Sec. 242.301. DEFINITIONS. In this subchapter:
(1) "Board" means the Texas Board of Nursing Facility Administrators.
(2) "Nursing facility" means an institution or facility that is licensed as a nursing home, nursing facility, or skilled nursing facility by the department under this chapter.
(3) "Nursing facility administrator" or "administrator" means a person who engages in the practice of nursing facility administration, without regard to whether the person has an ownership interest in the facility or whether the functions and duties are shared with any other person.
(4) "Practice of nursing facility administration" means the performance of the acts of administering, managing, supervising, or being in general administrative charge of a nursing facility.
Sec. 242.302. TEXAS BOARD OF NURSING FACILITY ADMINISTRATORS. (a) The Texas Board of Nursing Facility Administrators is within the department.
(b) The board is composed of nine members appointed by the governor as follows:
(1) three licensed nursing facility administrators, at least one of whom shall represent a not-for-profit nursing facility;
(2) one physician with experience in geriatrics who is not employed by a nursing facility;
(3) one registered nurse with experience in geriatrics who is not employed by a nursing facility;
(4) one social worker with experience in geriatrics who is not employed by a nursing facility; and
(5) three public members with experience working with the chronically ill and infirm as provided by 42 U.S.C. Section 1396g.
(c) Members of the board serve staggered six-year terms, with the terms of three members expiring on February 1 of each odd-numbered year. A person appointed to fill a vacancy on the board shall serve for the unexpired portion of the term for which the person is appointed.
(d) Appointments to the board shall be made without regard to the race, color, disability, sex, religion, or national origin of the person appointed.
Sec. 242.303. MEMBERSHIP REQUIREMENTS. (a) A member of the board who is an administrator must:
(1) be a resident of this state and a citizen of the United States;
(2) be licensed under this subchapter and currently serving as a nursing facility administrator or have direct supervisory responsibility on a daily basis over an administrator who works in a nursing facility; and
(3) hold a degree from an accredited four-year college or university.
(b) An administrator who does not have a degree as required by Subsection (a)(3) may be qualified to serve as a member of the board if the administrator has two years of practical experience as an administrator for every year less than four that the administrator has completed at a four-year college or university.
(c) A member or employee of the board may not:
(1) be an officer, employee, or paid consultant of a trade association in the nursing facility industry; or
(2) be related within the second degree by affinity or within the third degree by consanguinity to an officer, employee, or paid consultant of a trade association in the nursing facility industry.
(d) A member of the board who represents the general public may not have a financial interest, other than as a consumer, in a nursing facility as an officer, director, partner, owner, employee, attorney, or paid consultant or be related within the second degree by affinity or within the third degree by consanguinity to a person who has a financial interest, other than as a consumer, in a nursing facility as an officer, director, partner, owner, employee, attorney, or paid consultant.
(e) A person who is required to register as a lobbyist under Chapter 305 , Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the board may not serve on the board.
Sec. 242.304. GROUNDS FOR REMOVAL. It is a ground for removal from the board if a member:
(1) does not have at the time of appointment the qualifications required by Section 242.303 for appointment to the board;
(2) does not maintain during service on the board the qualifications required by Section 242.303 for appointment to the board;
(3) violates a prohibition established by Section 242.303 ;
(4) cannot discharge the member's duties for a substantial part of the term for which the member is appointed because of illness or disability; or
(5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year.
Sec. 242.305. BOARD OFFICERS; MEETINGS; QUORUM; EXPENSES. (a) The board shall elect from its members a presiding officer and assistant presiding officer who serve according to rules adopted by the board.
(b) The board shall hold at least two regular meetings each year as provided by rules adopted by the board.
(c) A majority of the members constitutes a quorum.
(d) Each member of the board is entitled to compensation for transportation expenses as provided by the General Appropriations Act.
Sec. 242.306. APPLICATION OF OPEN MEETINGS AND ADMINISTRATIVE PROCEDURE ACT. The board is subject to Chapters 551 and 2001 , Government Code.
Sec. 242.307. POWERS AND DUTIES OF THE BOARD. (a) The board may adopt rules consistent with this subchapter.
(b) The board shall:
(1) adopt and publish a code of ethics for nursing facility administrators;
(2) establish the qualifications of applicants for licenses and the renewal of licenses issued under this subchapter;
(3) spend funds necessary for the proper administration of the department's assigned duties under this subchapter;
(4) establish reasonable and necessary fees for the administration and implementation of this subchapter; and
(5) establish a minimum number of hours of continuing education required to renew a license issued under this subchapter and periodically assess the continuing education needs of license holders to determine whether specific course content should be required.
(c) The board is the licensing authority for the healing arts, as provided by 42 U.S.C. Section 1396g, and shall meet the requirements of a state licensing agency for nursing facility practitioners, as provided by 42 C.F.R. Part 431, Subpart N.
Sec. 242.308. ADMINISTRATIVE FUNCTIONS. The department shall serve as the administrator of the licensing activities under this subchapter and shall provide staff as necessary for the licensing and regulation of nursing facility administrators under this subchapter. If necessary to the administration of this subchapter, the department may secure and provide for compensation for services that the department considers necessary and may employ and compensate within available appropriations professional consultants, technical assistants, and employees on a full-time or part-time basis.
Sec. 242.309. FEES; FUNDS. (a) The board by rule shall set reasonable and necessary fees in amounts necessary to cover the cost of administering this subchapter. The board by rule may set different licensing fees for different categories of licenses.
(b) The department shall receive and account for funds received under this subchapter. The funds shall be deposited in the state treasury to the credit of the general revenue fund.
(c) The department may receive and disburse funds received from any federal source for the furtherance of the department's functions under this subchapter.
Sec. 242.310. PRACTICING WITHOUT A LICENSE. A person may not act as a nursing facility administrator or represent to others that the person is a nursing facility administrator unless the person is licensed under this subchapter.
Sec. 242.311. LICENSE APPLICATION; QUALIFICATIONS. (a) An applicant for a nursing facility administrator's license must submit a sworn application that is accompanied by the application fee.
(b) The board shall prescribe the form of the application and may by rule establish dates by which applications and fees must be received.
(c) An applicant for a nursing facility administrator's license must take a licensing examination under this subchapter. To qualify for the licensing examination, the applicant must have satisfactorily completed a course of instruction and training prescribed by the board that is conducted by or in cooperation with an accredited postsecondary educational institution and that is designed and administered to provide sufficient knowledge of:
(1) the needs served by nursing facilities;
(2) the laws governing the operation of nursing facilities and the protection of the interests of facility residents; and
(3) the elements of nursing facility administration.
(d) An applicant who has not completed the course of instruction and training described by Subsection (c) must present evidence satisfactory to the board of having completed sufficient education, training, and experience in the fields described by Subsection (c) to enable the applicant to engage in the practice of nursing facility administration.

Legislative History

Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1, 1997. 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. 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. 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. Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01. Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.