CWAWFORD c. IMAZCT~N AUSTIN, %-EXAR 78711

AT-rORNEY csEN&RAL September 29, 1970
Honorable Preston Smith Governor ofTexas Capitol Station Austin, Texas 78711

**Dear** Governor **Smith:** Opinion No. M- 699
Re: Several questions relative to licensing ofnursing home administrators under Senate Bill 388,Acts 1969, 61st Legislature, chapter 411, page 1356 (codifiedby Vernon as Article 44428). and a related question.
Your letter ofAugust 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 formany years **(several** for over twenty years). These administrators assert that they should be qualified for a licenseby their training and experience under the provisions of Section 6(l) and Section 9(2) of theAct." 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, 2and 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 consideration of the applicant's experience in **the** field of institutional administration, or is the phrase in

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Section 6(l), 'bytraining orexperience in the field of institutional admixstration', and the phrase inSection g(2), "orhas presented evidence satisfactory to the?;oard of sufficient education, training, or experience...'intended to require the Board to establish standards which consider the experience ofan applicant in conjunctionwith the amount ofhis 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 licensewithout taking the examination and meeting the additional educational requirements if they canprove by documented evidence that a) they are ofgood 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. isSection 6(l) and Section 9(2) intended tobe a "grandfather clause'? "69 Does this Board have the authority to retain and employ private counsel to initiate suit against violators of thisAct when Section 15 of the Act specifically provides that theAttorney General will render such legal assistance asmay be necessary to enforce andmake effective theAct?"' Inasmuch as questions 1and 2each require several separate answers, we will break them down for convenience. The first part ofquestion 1askswhether the Board can establish a licensing requirement inaddition to a consideration of an applicant's experience as set out inSection 6(l) and Section 9(2) of theAct. We answer "no"'to this part ofquestion No. 1.

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### HonorablePrestonSmith,page 3 **(M-699)**

Section 6(l) reads as follows: "(1)develop, impose, and enforce standards which must be met by individuals in or,derto receive a license as

### anursing 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, andwho, by training or experience **in** the field of institutional administration, are qualified to serve as nursing home administrators:" (Emphasis added.) Section 9prescribes all the necessary qualifications ofan 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 prescribed by theboard, which course of instruction shall be designed aa to content and so administered as to present sufficient knowledge of the proper needs tobe served by nursing homes; laws gwerning the operation ofnursing homes and the protection of the interests ofpatients therein; and the elements of good nursing **home** administration: z 

### haspresented 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 theAct are stated in the disjunctive by use of theword "or"allowing the applicant **the** benefit of the use ofprior expexence to fulfill this portion of **his** qualification, subject to such experience being satisfactory to theboard which has exclusive jurisdiction to determine each applicant's "... qualification, skill and fitness

...Wunder Section 5 of theAct.

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Honorable Preston Smith, page 4 (M-699)

By theabove holding, we answer the lastpart of question 1, "yes". We believe that itwas the intention of the Legislature, by the disjunctive language in Section 6(l) and 9(2), to require the Board to consider the experience ofan applicant along with his formal training wherein it is stated in part inSection 9(2) as follows:

II

...orhas presented evidence satisfactory to theboard of sufficient education, traininq, or exverience..." (Emphasis added.) The first part ofycur second question askswhether Section 6(l) and 9(2) allow an applicant for licensure to substitute good moral character, training or experience, or qualification topresently serve as nursing home administrator, for the examination. We answer this portion ofyour second question "no". Section 9 of theAct lists the requirements for the issuance ofa license: andwhile there are some alternatives or choices in Section 9, there isno alternative requirement for the examination and itmust be taken by all parties who wish tobe licensed as a nursing home administrator. This requirement is set out inSection 9(3) as follows:

"3) he has passed an examination administered by theboard 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 ofdetail of this examination. This was amatter leftwithin the sound discretion of the Board, which may use any reasonable means as itmay determine 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 ofyears of experience and training, and theymay administer amore extensive or different kind of test for applicants without any substantial experience, education, or training than to those possessing anumber ofyears 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 towaive the examination for a certain class ofapplicants 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 designed to test for competence ...I'There are no exceptions to this requirement and no authority given towaive an examination.

The next part ofyour second question asks whether an applicant can qualify for a license under theAct by substituting, with documented evidence, 'proof.ofgood moral character, sufficient training or experience.and the fact that the applicant in the past and present are qual'ified'toserve as nursing home administrator, for educational requirements. We answer this part ofyour question "yes". An applicant must (1)have graduated 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 prescribed by thsboard 'I...z has presented evidence satisfactory to theboard 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 theAct.

Further, we do notbelieve that Sections 6(l) and 9(2)were intended tobe grandfather clauses in the true sense of that term. While these sections do allow those previously employed as nursing home administrators a substitution of experience 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 submitted, individuals **possessing** the qualifications described in your letter would be entitled to receive a license assuming that such individuals also comp'ly'withtheprovisions of subdivisions (l), (39and (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 orregulation 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 isnot tobe construed as inany manner infringing upon the discretion tobe exercised by theBoard under the statutory enactment. It is the Board's exclusive authority tomake the determination in each casewhether 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 finding isnot supported by substantial evidence.

In answer toyour **6th** question it isnoted that Section 15 of **the** Act provides:

"Sec. 15. TheAttorney General isdirected to render such legal assistance as **may**be necessary inenforcing andmaking effective the provisions of thisAct, provided that this requirement shall not relieve the local prosecuting officers of any of their duties under the lawas such."
Inview of the foregoing, it iswr opinion that the Attorney General, district attorneys and county attorneys are the only legal representatives of the Board authorized to institute suits against violators of thisAct. SUMMARY Under Article 4442d, Section 6(l) and 9(2) the Texas Board ofLicensure forNursing Home Administrators isnot authorized to establish an educational training requirement inaddition to a consideration of applicant's experience andwho is found by the Board to possess sufficient experience inthe field of nursing home administration.

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Honorable Preston Sinith, page 7 :'(M-699)

Section 6(l) and 9(2) ofArticle 4442d require **the** Board to establish standards which consider an applicant'sexperience and training in the field ofnursing **home** administration. All applicants must pass an examination administered by theboard before a nursing home administrator's license may be issued.
An applicant may submit evidence, satisfactory to theboard, of education, training or experience in **the** fields set out inSection 9(2) ofArticle 44426 as a substitute for the course of instruction and training prescribed by the board. Section 6(l) and 9(2) ofArticle 4442d are not grandfather clauses in the true sense of the term.Section 15 ofArticle 4442d provides the only authority for theboard's legal representation, thatbeing by theAttorney General and "local prosecuting officers".
Ve 

# lzg&QzC

. TIN General ofTexas 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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