                            QBfficeof tiy JTMmep @heral
                                         %tate of Okxae
DAN MORALES                                 April 26.1993
 Al-rORNEY
        GENERAL


      Honorable James E. “Pete”Lsney                Opiion No. DM-219
      SW=
      Texas House of Rep-                           Re: Authority of the Board of Licensure
      P.O. Box 2910                                 for Nursing Home Administrstors to charge
      Austin, Texss 787682910                       and “collect a SlO.00 fee for each
                                                        . .
                                                    &umstretor-psrdcipsnt in ell educstion
                                                    tames    approved by the -1           for
                                                    wntinuing education units” (RQ-492)

      DearMr. speaker:

              You ask the folhnvingquestions:
                         Under current governing statutes, does the Board of
                Liwnsure for Nursing Home Administmtors (TBLNHA) have
                euthority to cokct a SlO fee for eech sdministrstor-paticipsnt in sll
                education coursesapprovedbytheTBLNHAforcontir&g
                education units (CBUs) when:



                          -amenthefeeisinadditiontothefeechargedbyTBLNHA
                           to the course provider for spprovsl of the course for
                           CEUs;


                          -whenthecourseptwidaistheentitytobeessessedend
                           responsii~efor payment of the fee, snd
                          -when TBLNHA will deny credit to the sdministrstor-
                           ps$ipsnt for the course completed if the SlO fee is not


      Uttdatheci rwmstanws you descrii, TBLNHA imposes the SlO fee on the ‘wurse
      provida,” which then passes along the charge to the “participant.”

             Section 10 of the board’s ensbhng statute, article 44424 V.T.C.S., describes
      &      fees which the board is euthorized to sssess, including sn initial licensing fee of not
      more then S150.00, sn exsminstion fee of not more thsn S150.00, a biennisl licensing fee




                                              p. 1149
 Honorable James E. “Pete”Laney - Page 2           (DM-219)




 of not more than Sl50.00, and a penalty of SSO.00for renewal of a license which has been
 expired for more than 30 days. In addition, subsection 6(7) directs the board to
           conduct or cause to be conducted, one or more courses of instruction
           andtrainhgsuiBcienttomeetthere+irementsofthisAct,make
           provisions for the wnduct of au& wursesandtheirdbuityto
           residents of this State, and establish and cdlccr reasomble fees to be
           @twited inta the genemljmd for inandion or tining courses
           conducfed~theboardin~                   &ennined by the baa& to be
           ~~cirnttowvrr~ho~~es,~unleapitfindsthattl&rr
           areasu&kntnumbexof            wurseswnductedbyotherswithinthis
           StatetomeettheneedsoftheState.           Inlieutherwftheboardmay
           approve wurses wnducted within and without the State as sutlicient
           tomeettheeducationandtrsiningrequkments           of this Act.
V.T.C.S. art. 4442d 5 6(7) (emphasis added). As the italicized language d-es,
the board is anpowered to “collect reasonable fees”for wntiwing education co-    but
On& for those “instruction wurseswnductedbytheboard.”           whenthewursesare
“conducted by om” the statutory language wnks no authority on the boardto impose
fees of any kind w-.

         Youindicate~theboardbdimsthat~~~tosPseYltheproporedSlO
 Ckrgeforwnthingeducationwurseswnductedbyoutside                     sourwderiveshm
 section 8 of article 4442d. Section 8 is a general rule-making provision. It empowers the
 board”tomakenrlesud~o~aotiaconsistentwithlawru~benecessaryor
 proper for the performance ofitsduties.” Aiongliwofopinionshmthisoffiwhaaheld,
howmr,thatastatelicarsiag~mrywtprescn’beMyfwwhichisnotspocifically
authorized by statute. In Attorney Owed OpinionH-669 (1975). for example, this office
declaredthattheBoardofl)entrrl~anrsnotanpoweredtoimposcf#sondental
~~inthelbsmceofspecificItannoryauthorizatontodoso.                             Likewise,in
Attorney General Opiion H-443 (1974). the attorney genesal stated that the Structural
Pest Control Board was not pemhted to assess an additional charge for administering its
licensing exdnatio~~ Fii,         in Attorney General Opiion H-897 (1976), this office
assated that the Depmmnt of Labor and Standards was without authority to conduct
“shop surveys’ of boila manthhuera and charge a fw for doing so. See aho Attomey
General Opinion V-1426 (1952). Each of these. prior opinions relies on the court’s
decision in Nueces Counry v. Currington, 162 S.W.2d 687 (Tar. 1942). which de&red
that
          unless a fw is provided by law for an official tice required to be
          performed snd the amount thereof tied by law, none can lawtidly be
          charged therrfor.
Id. at 688; see alsa AkG&    v. City of Rock&ale,246 S.W. 654 (Tex. 1922).



                                       p.   1150
Honorable James E. “Pete”Laney - Page 3          (DM-2 19)




        In the situation you pose, a number of permissiblefees are specified by statute, but
there is no statutory authorization for the board to impose a $10.00 charge in connection
with wntinuing education courses which are conducted, not by the board itself, but by
outside sources. It is our opinion, therefore, that the Board of Licensure for Nursing
Home Administratorsmay not assess and wllect the fees in question.

                                  SUMMARY

               The Board of Liccnsure for Nursing Home Administrators is not
          authorixed to impose and wllect a SlO.00 fee from administrators or
          participants in courses conducted by outside sources and approved
          by the board as wntinuii education units.




                                                     DAN      MORALES
                                                     Attorney Gwerd of Texas

WILL PRYOR
First Assistant Attorney Germal

MARYKELLER
Deputy Attorney GcneralforLitigation

RENEAHICKS
state solicitor

MADELEINE B. JOHNSON
Chair, Opiion Committee

Pmpared by Rick Gilpin
Assistant Attomeyoend




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