By: Nelson S.B. No. 806
(In the Senate - Filed February 11, 2009; March 4, 2009, read
first time and referred to Committee on Health and Human Services;
March 23, 2009, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 9, Nays 0; March 23, 2009,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 806 By: Huffman
A BILL TO BE ENTITLED
AN ACT
relating to the imposition of a disciplinary action on a licensed
nursing facility administrator; providing a penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 242.002, Health and Safety Code, is
amended by amending Subdivision (4) and adding Subdivision (5-a) to
read as follows:
(4) "Department" means the [Texas] Department of Aging
and Disability [Human] Services.
(5-a) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
SECTION 2. Subsections (a), (c), (d), and (e), Section
242.313, Health and Safety Code, as added by Section 1.01, Chapter
1280 (S.B. 84), Acts of the 75th Legislature, Regular Session,
1997, are amended to read as follows:
(a) The department 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; [or]
(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.
(c) A license holder is entitled to a hearing in accordance
with rules adopted [promulgated] by the executive commissioner
[board] before a sanction is imposed under this section.
(d) The executive commissioner [board] by rule shall adopt a
broad schedule of sanctions for violations under this subchapter.
The department shall use the schedule for any sanction imposed [as
the result of a hearing conducted] in accordance with the rules.
(e) The executive commissioner [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 related to an act or failure
to act by the administrator, 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.
SECTION 3. Subsections (c) and (d), Section 242.316, Health
and Safety Code, as added by Section 1.01, Chapter 1280 (S.B. 84),
Acts of the 75th Legislature, Regular Session, 1997, are amended to
read as follows:
(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 [or fails to respond
timely to the notice], the department shall set a hearing and give
notice of the hearing to the person. The hearing shall be held in
accordance with the [department's] rules on contested case hearings
adopted by the executive commissioner.
SECTION 4. Subsections (a) and (d), Section 242.318, Health
and Safety Code, as added by Section 2.01, Chapter 1280 (S.B. 84),
Acts of the 75th Legislature, Regular Session, 1997, are amended to
read as follows:
(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; [or]
(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.
(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 [as the result of a
hearing conducted] in accordance with the rules.
SECTION 5. Subsections (c) and (d), Section 242.321, Health
and Safety Code, as added by Section 2.01, Chapter 1280 (S.B. 84),
Acts of the 75th Legislature, Regular Session, 1997, are amended to
read as follows:
(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 [or fails to respond
timely to the notice], the department shall set a hearing and give
notice of the hearing to the person. The hearing shall be held in
accordance with the [department's] rules on contested case hearings
adopted by the executive commissioner.
SECTION 6. The change in law made by this Act applies only
to a disciplinary action imposed on or after the effective date of
this Act. A disciplinary action imposed before that date is
governed by the law in effect at the time the action was initiated,
and the former law is continued in effect for that purpose.
SECTION 7. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2009.
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