Hon. James P. Baker, Chairman Opinion No. M-068

Texas Board of Licensure for Nursing Home Administrators .Re: 6225 U.S. Highway 290 East Authority of Texas Board P. 

### o:Box'4246 of Licensure forNursing Austin, Texas 

### 78751 Home Administrators,pursuant to Article 4442d, Vernon's Civil Statutes, to fix a licensing fee ,of

### $50per annum for"adminlstrators-inDear Mr. Baker: training." -

Your recent letterrequesting the opinion of this office concerning the referenced matter states, in part, as follows;

~"TheTexas Board of Licensure for Nursing' Home Administratorswas createdby the 61st Legislature to comply with section 

### 1908of the Social Security Act.
. .which required, as a condition to receiving federal funds, that nursing homes be staffedwith an administrator licensed by the appropriate state agency or board of the state in which the home was.located..Because section 

### 7 of the Texas act, Tex. Rev. Civ. Stat. Ann. art. 4442d (1969),prohibited the operation of a nursing home after July 1, 1970,unless such home was under the supervision of an administrator. duly licensedby the Board, many of the homes in Texas were faced with the possibility of closing, as it was impossible formany nursing home managers to meet the strict.licensingrequirementsby the deadline. llTo avoid the closing of many nursing homes throughout the state, the Board devised a licensing program whereby,those nursing .homemanagers who?could not obtain licensesby July 1, 1970, could receive on-the-job training in their nursing homes by experienced, licensed administratorswho are designated 'preceptors'by,the Bsard. Although valuable training and experience~1sreceived through preceptors, it is the administrator-in-trainingwho actually runs the nursing home on a daily basis. -4217-Hon. James P. Baker, page 2 (M-868)

'Pursuantto section lO(3) of the Texas act,~ the Board has fixed a license fee of $100 for administrators. Since the license is valid for two years, the annual cost to an administrator is $50. The Board also has issuedadministrator-in-training certificates to those personswho are undergoing training through preceptors in order to obtain licenses,and a fee of $50 per year is being assessed the administrators-in-trainingby the Board.

the has fee

Statutes strators request: "TheBoard respectfully requests the opinion of

Attorney General on the question of whether it the authority to fix a certifying or licensing of $50 per year for administrators-in-training." The followln#portions of Article 4442d,Vernon's Civil ("theArticle ),which is the Texas Nursing Home AdminlLicensureAct, are relevant to the issue posed by your

"Sec. 8. The Board shallhave authority

. to make rules and regulations not inconsistent with law as may be necessary or proper for the performance of Its duties

. . . “Sec. 9. The Board shall have authority to issue licenses to qualifiedpersons as nursing home administrators,and shall establish quallfication criteria for such nursing home administrators. No license shallbe issued to a person as a nursing home administratorunless:

“(2) he has satisfactorilycompleteda course of instructionand trainingprescribedby the board

. . . by thE(?iariehas passed an examinationadministered

. . . 'Sec. 10. (1) The Board shall license nursing home administrators in accordancewith rules and regulations issued, and from time to time revised by it

. , . II

. . .

-4218-Hon. James P. Baker, page 3 (M-868)

"(3) Each person licensedas a nursinghome administrator shallpay a license fee to be fixed by the board which shall not exceed $100.00 (for a two-year period). (Emphasisadde,d.) Section 8 of the Article does authorizeyour Board to adopt "rulesand regulations not inconsistentwith law as may be necessary or proper for the performance of its duties.

. .' If such rules and regulationsare consistentwith, related to, and in implementationof anv of the orovisions of the Article. such rules-and regulations are valid.*Kee v. Baber, 157 Tex. 387,~303 S.W.2d 376 (1957);Texas State Board of Examiners in Optometry v. Carp, 412 S.W.2d 307 (Tex.Sup. lgb'().

However, the Article does not authorize the issuance of rules and regulations which are in excess of, or inconsistentwith, the statutoryprovisions;nor may your Board impose any additional burdens, conditions, or restrictions in that regard which would result in giving them a higher or lowermandate than that of the statute. Kelly-v. IndustrialAccidentBoard, 358 S.W.2d 874 (Tex. Clv.App. 1962, error ref.); Bailey v. Texas Indemnity Insurance Co., 14 S.W.2d,798 (Tex.Comm.App.1929)'Att G l's Opinion No. M-609-A (1970); 2 Am.Jur.2d 126, A~rnini%%%iv?~~~, Sec. 300, and also, Id; at pp. 129-30, Sec. 361, wherein it is stated that an administrativeagency cannot create a new license requirement or compel that to be done which lies without the scope of the statute.

It is a well-establishedrule of law that fee statutes are to be strictly construed,and that where a statute contains noauthorization for the imposition of a fee, nonemay be collected. Nueces County v. Carrington, 139 Tex. 297, 162 S.W.2d 687 (1942); Attorney General's OpinionNo. v-1236 (1951). Cf. McCalla v. City of Rockdale, 112 Tex. 209, 246, S,W. 654 (1922).
In Section lO(3) of Article 4442d, the Legislaturehas given your Board the power to fix a fee, not to exceed $50 per annum, which shall be paid by nursing home administrators. No mention ismade in such Section of fees to be paid by nursing home "administrators-in-training",nor Is the Board therein given any authority to fix fees to be paid by suchpersons.

Accordingly, in consonancewith the foregoingauthorities, this office is of the opinion that your Board has no authority to fix a licensing fee of $50 per annum to be paid by nursing home "administrators-in-training."

-4219-.

Hon. James P. Baker, 

### page4

SUMMARY (M-868)

The Texas Board of Llcensure for NursingHome Administratorspursuant to Article 4442d(lO),Vernon's Civil Statutes,has no authority to fix a licensing fee of $50 per annum to,,be paid by nursing home "administrators-in-trafiing.

General of Texas Preparedby Austin C. Bray, Jr. AssistantAttorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman William J. Craig Sally Phillips Llnward Shivers Harriet Burke
MEADE F. GRIFFIN Staff Legal Assistant
ALFRED WALKER Executive Assistant NOLA WHITE First Assistant

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