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

AT-rORNEY csEN&RAL 

September 29, 1970 

Honorable Preston Smith 

Governor of Texas 

Capitol Station 

Austin, Texas 78711 

Dear Governor Smith: 

Opinion No. M- 699 

Re: Several questions relative 

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 

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 administrators 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 consideration 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 evidence 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 conjunction 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 necessary 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 receive 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 completed a course of instruction and training prescribed 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 gwerning the operation of nursing homes and the protection 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 portion 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 applicant 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 substitute good moral character, training or experience, or qualification 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 issuance 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 requirement 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 examination. This was a matter left within the sound discretion 

of the Board, which may use any reasonable means as it may 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 of years of experience and training, and they may 

administer a more extensive or different kind of test for applicants 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 designed 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, sufficient 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 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 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 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'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 finding 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 necessary in enforcing and making effective the provisions of this Act, provided that this requirement shall not relieve the local prosecuting officers 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 institute 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 require the Board to establish standards which consider an applicant's experience and training in the 

field of nursing home administration. 

All applicants must pass an examination administered by the board before a nursing home administrator'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 representation, 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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