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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