CWAWFORD c. IMAZCT~N
AUSTIN, %-EXAR 78711
AT-rORNEY csEN&RAL
September 29, 1970
Honorable Preston Smith Opinion No. M- 699
Governor of Texas
Capitol Station Re: Several questions relative
Austin, Texas 78711 to licensing of nursing
home administrators under
Senate Bill 388, Acts
1969, 61st Legislature,
chapter 411, page 1356
(codified by Vernon as
Article 44428). and a
Dear Governor Smith: related question.
Your letter of August 17, 1970, states the following
facts:
"Our office has received correspondence from
nursing home administrators who assert that they
have been in the nursing home business for many
years (several for over twenty years). These ad-
ministrators assert that they should be qualified
for a license by their training and experience
under the provisions of Section 6(l) and Section
9(2) of the Act."
Your letter then asks six questions, however, by
your subsequent letter of September 10, 1970, you withdrew
your request for answer to questions 3, 4 and 5. We therefore
direct our attention to questions 1, 2 and 6 stated as follows:
"1) Does Section 6(l) and Section 9(2) of
Senate Bill 388, 61st Legislature, regular session,
1969, give the Board the authority to establish an
educational training requirement exclusive of a con-
sideration of the applicant's experience in the field
of institutional administration, or is the phrase in
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Honorable Preston Smith, page 2 (M-6999
Section 6(l), 'by training or experience in the
field of institutional admixstration', and the
phrase in Section g(2), "or has presented evi-
dence satisfactory to the?;oard of sufficient
education, training, or experience...'intended
to require the Board to establish standards which
consider the experience of an applicant in conjunc-
tion with the amount of his formal education training,
thus requiring a lesser degree of formal training of
an administrator with several years experience in the
field of nursing home administration?
"2) Does Section 6( 19 and Section 9(2) of
Senate Bill 388, 61st Legislature, regular session,
1969, provide that nursing home administrators can
qualify for a license without taking the examination
and meeting the additional educational requirements
if they can prove by documented evidence that a) they
are of good moral character, b) they have sufficient
training or experience, and c) they have been in the
past and presently are qualified to serve as nursing
home administrators, i.e. is Section 6(l) and
Section 9(2) intended to be a "grandfather clause'?
"69 Does this Board have the authority to
retain and employ private counsel to initiate suit
against violators of this Act when Section 15 of the
Act specifically provides that the Attorney General
will render such legal assistance as may be neces-
sary to enforce and make effective the Act?"'
Inasmuch as questions 1 and 2 each require several
separate answers, we will break them down for convenience. The
first part of question 1 asks whether the Board can establish
a licensing requirement in addition to a consideration of an
applicant's experience as set out in Section 6(l) and Section
9(2) of the Act. We answer "no"'to this part of question No. 1.
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Honorable Preston Smith, page 3 (M-699)
Section 6(l) reads as follows:
"(1) develop, impose, and enforce standards
which must be met by individuals in or,der to re-
ceive a license as a nursing home administrator,
which standards shall be designed to insure that
nursing home administrators will be individuals
who are of good character and are otherwise suitable,
and who, by training or experience in the field of
institutional administration, are qualified to serve
as nursing home administrators:" (Emphasis added.)
Section 9 prescribes all the necessary qualifications
of an applicant for nursing home administrator license. Section
9(2) reads as follows:
"Section 9(2) ... he,has satisfactorily com-
pleted a course of instruction and training pre-
scribed by the board, which course of instruction
shall be designed aa to content and so administered
as to present sufficient knowledge of the proper
needs to be served by nursing homes; laws gwern-
ing the operation of nursing homes and the pro-
tection of the interests of patients therein; and
the elements of good nursing home administration:
z has presented evidence satisfactory to the board
of sufficient education, training, z experience in
the foregoing fields to enable him to administer,
supervise and manage a nursing home." (Emphasis added.)
Both section 6(l) and 9(2) of the Act are stated in
the disjunctive by use of the word "or" allowing the applicant
the benefit of the use of prior expexence to fulfill this por-
tion of his qualification, subject to such experience being
satisfactory to the board which has exclusive jurisdiction to
determine each applicant's "... qualification, skill and fitness
...W under Section 5 of the Act.
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Honorable Preston Smith, page 4 (M-699)
By the above holding, we answer the last part of
question 1, "yes". We believe that it was the intention of the
Legislature, by the disjunctive language in Section 6(l) and
9(2), to require the Board to consider the experience of an ap-
plicant along with his formal training wherein it is stated in
part in Section 9(2) as follows:
II
.. . or has presented evidence satisfactory
to the board of sufficient education, traininq,
or exverience..." (Emphasis added.)
The first part of ycur second question asks whether
Section 6(l) and 9(2) allow an applicant for licensure to sub-
stitute good moral character, training or experience, or quali-
fication to presently serve as nursing home administrator, for
the examination. We answer this portion of your second question
"no" . Section 9 of the Act lists the requirements for the is-
suance of a license: and while there are some alternatives or
choices in Section 9, there is no alternative requirement for
the examination and it must be taken by all parties who wish
to be licensed as a nursing home administrator. This require-
ment is set out in Section 9(3) as follows:
"3) he has passed an examination administered
by the board designed to test for competence in the
subject matters referred to in subsection (2) hereof:"
We deem it necessary to observe, however, that the
statute does not prescribe the extent of detail of this exam-
ination. This was a matter left within the sound discretion
of the Board, which may use any reasonable means as it may de-
termine necessary to satisfy itself that the applicant possesses
sufficient education, training, or experience. The Board may
make reasonable classifications among applicants, based upon
the number of years of experience and training, and they may
administer a more extensive or different kind of test for ap-
plicants without any substantial experience, education, or
training than to those possessing a number of years of such
experience, training, or education. However, we cannot conclude
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Honorable Preston Smith; page 5 (M-6991
that the Board has the authority to waive the examination for
a certain class of applicants with substantial experience,
training, or education. The statute expressly directs that,
“No license shall be issued to a person ... unless . ..(3) he
has passed an examination administered by the board and de-
signed to test for competence . ..I' There are no exceptions to
this requirement and no authority given to waive an examination.
The next part of your second question asks whether an
applicant can qualify for a license under the Act by substituting,
with documented evidence, 'proof.of good moral character, suf-
ficient training or experience.and the fact that the applicant
in the past and present are qual'ified 'to serve as nursing home
administrator, for educational requirements. We answer this
part of your question "yes". An applicant must (1) have grad-
uated from an approved high school or secondarv school or have
a certified equivalency certificate (Sectiong(4 ): (29 passed
an examination on the subject matter of Section g(2): and (3)
have completed the course of training and instruction pre-
scribed by ths board 'I...z has presented evidence satisfactory
to the board of sufficient education, training, or experience
in the foregoing fields to enable him to administer, supervise,
and manage a nursing home" Section 9(2) of the Act.
Further, we do not believe that Sections 6(l) and
9(2) were intended to be grandfather clauses in the true sense
of that term. While these sections do allow those previously
employed as nursing home administrators a substitution of ex-
perience for course work, applicants are not automatically
granted a license based on prior experience or training and are
required, as all applicants to pass an examination (Section LJ(!?)
and have the basic education required pursuant to Section g(4).
You are accordingly advised that under the facts sub-
mitted, individuals possessing the qualifications described in
your letter would be entitled to receive a license assuming that
such individuals also comp'ly'with the provisions of subdivisions
(l), (39 and (4) of Section 9. We recognize,that subdivision (5)
of this Section requires an applicant to comply with all other
qualifications and requirementsas may have been established by
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Honorable Preston Smith, page 6 (M-699)
rule or regulation of the Board. In this instance, it is our
opinion that the Board may not establish a rule or regulation
contrary to the express provisions of subdivision (2) of
Section 9.
Our opinion is not to be construed as in any manner
infringing upon the discretion to be exercised by the Board
under the statutory enactment. It is the Board's exclusive
authority to make the determination in each case whether an
applicant has furnished satisfactory evidence that he possesses
the experience as a nursing home administrator as specified in
subdivision (2) of Section 9, and such determination will not
be overturned except in those instances where the Board's find-
ing is not supported by substantial evidence.
In answer to your 6th question it is noted that
Section 15 of the Act provides:
"Sec. 15. The Attorney General is directed
to render such legal assistance as may be neces-
sary in enforcing and making effective the pro-
visions of this Act, provided that this require-
ment shall not relieve the local prosecuting of-
ficers of any of their duties under the law as
such."
In view of the foregoing, it is wr opinion that the
Attorney General, district attorneys and county attorneys are
the only legal representatives of the Board authorized to in-
stitute suits against violators of this Act.
SUMMARY
Under Article 4442d, Section 6(l) and 9(2)
the Texas Board of Licensure for Nursing Home
Administrators is not authorized to establish an
educational training requirement in addition to a
consideration of applicant's experience and who is
found by the Board to possess sufficient experience
in the field of nursing home administration.
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Honorable Preston Sinith, page 7 :' (M-699)
Section 6(l) and 9(2) of Article 4442d re-
quire the Board to establish standards which con-
sider an applicant's experience and training in the
field of nursing home administration.
All applicants must pass an examination ad-
ministered by the board before a nursing home ad-
ministrator's license may be issued.
An applicant may submit evidence, satisfactory
to the board, of education, training or experience
in the fields set out in Section 9(2) of Article
44426 as a substitute for the course of instruction
and training prescribed by the board.
Section 6(l) and 9(2) of Article 4442d are
not grandfather clauses in the true sense of the
term.
Section 15 of Article 4442d provides the
only authority for the board's legal representa-
tion, that being by the Attorney General and "local
prosecuting officers".
Ve
lzg&QzC
. TIN
General of Texas
Prepared by Melvin E. Corley
Assistant Attorney General
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Honorable Preston Smith, page 8 (M-699)
APPROVED,
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
James Quick
Harriet Burke
Charles Parrett
Wayne R. Rodgers
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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