Untitled Texas Attorney General Opinion ( 1971 )

Hon. James P. Baker, Chairman Opinion No. M-068
Texas Board of Licensure for
Nursing Home Administrators .Re: Authority of Texas Board
6225 U.S. Highway 290 East of Licensure for Nursing
P. o:Box'4246 Home Administrators, pur-
Austin, Texas 78751 suant to Article 4442d,
Vernon's Civil Statutes,
to fix a licensing fee
,of $50 per annum for
"adminlstrators-in-
Dear Mr. Baker: training." -
Your recent letter requesting the opinion of this office
concerning the referenced matter states, in part, as follows;
~"The Texas Board of Licensure for Nursing'
Home Administrators was created by the 61st Leg-
islature to comply with section 1908 of the Social
Security Act. . . which required, as a condition
to receiving federal funds, that nursing homes be
staffed with an administrator licensed by the ap-
propriate 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 licensed by
the Board, many of the homes in Texas were faced
with the possibility of closing, as it was im-
possible formany nursing home managers to meet
the strict.licensing requirements by the deadline.
llToavoid the closing of many nursing homes
throughout the state, the Board devised a licensing
program whereby,those nursing .homemanagers who?could
not obtain licenses by July 1, 1970, could receive
on-the-job training in their nursing homes by ex-
perienced, licensed administrators who are designated
'preceptors' by,the Bsard. Although valuable train-
ing and experience ~1s received through preceptors, it
is the administrator-in-training who actually runs
the nursing home on a daily basis.
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Hon. James P. Baker, page 2 (M-868)
'Pursuant to section lO(3) of the Texas act,~
the Board has fixed a license fee of $100 for ad-
ministrators. Since the license is valid for two
years, the annual cost to an administrator is $50.
The Board also has issued administrator-in-training
certificates to those persons who are undergoing
training through preceptors in order to obtain
licenses, and a fee of $50 per year is being assessed
the administrators-in-training by the Board.
"The Board respectfully requests the opinion of
the Attorney General on the question of whether it
has the authority to fix a certifying or licensing
fee of $50 per year for administrators-in-training."
The followln# portions of Article 4442d, Vernon's Civil
Statutes ("the Article ), which is the Texas Nursing Home Adminl-
strators Licensure Act, are relevant to the issue posed by your
request:
"Sec. 8. The Board shall have 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 qualified persons as nursing
home administrators, and shall establish quallfica-
tion criteria for such nursing home administrators.
No license shall be issued to a person as a nursing
home administrator unless:
“(2) he has satisfactorily completed a course
of instruction and training prescribed by the board
. . .
as passed an examination administered
by thE(?iarie
. h. .
'Sec. 10. (1) The Board shall license nursing
home administrators in accordance with rules and
regulations issued, and from time to time revised
by it . , .
II
. . .
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Hon. James P. Baker, page 3 (M-868)
"(3) Each person licensed as a nursing home
administrator shall pay a license fee to be fixed
by the board which shall not exceed $100.00 (for
a two-year period). (Emphasis adde,d.)
Section 8 of the Article does authorize your Board to
adopt "rules and regulations not inconsistent with law as may be
necessary or proper for the performance of its duties. . .' If
such rules and regulations are consistent with, related to, and
in implementation of 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 inconsistent with,
the statutory provisions; nor may your Board impose any additional
burdens, conditions, or restrictions in that regard which would
result in giving them a higher or lower mandate than that of the
statute. Kelly-v. Industrial Accident Board, 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
administrative agency cannot create a new license requirement or
compel that to be done which lies without the scope of the statute.
It is a well-established rule of law that fee statutes
are to be strictly construed, and that where a statute contains
no authorization for the imposition of a fee, none may be collected.
Nueces County v. Carrington, 139 Tex. 297, 162 S.W.2d 687 (1942);
Attorney General's Opinion No. 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 Legislature has
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 is made 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 such persons.
Accordingly, in consonance with the foregoing authorities,
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."
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.
Hon. James P. Baker, page 4 (M-868)
SUMMARY
The Texas Board of Llcensure for Nursing Home
Administrators pursuant to Article 4442d(lO), Ver-
non's Civil Statutes, has no authority to fix a
licensing fee of $50 per annum to,,bepaid by nursing
home "administrators-in-trafiing.
General of Texas
Prepared by Austin C. Bray, Jr.
Assistant Attorney 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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