BILL ANALYSIS

Public Health Committee

By: Hirschi
04-25-95
Committee Report (Substituted)


BACKGROUND

Chapter 242 of the Health and Safety Code governs the operation of
convalescent and nursing homes and related institutions. The stated
purpose of the chapter is to promote the public health, safety, and
welfare by providing for the development, establishment, and
enforcement of standards for the treatment of residents of nursing
and convalescent homes and the establishment, construction,
maintenance, and operation of institutions that, in light of
advancing knowledge, will promote safe and adequate treatment of
residents (Section 242.001, Health and Safety Code). However,
Chapter 242 of the Health and Safety Code lacks strong enforcement
mechanisms. 

PURPOSE

H.B. 2809 would provide mechanisms for holding accountable persons
who violate standards for the treatment of residents of nursing and
convalescent homes.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly
grant any additional rulemaking authority to a state officer,
department, agency, or institution.

SECTION-BY-SECTION ANALYSIS

SECTION 1. Amends Section 242.033(a), Health and Safety Code, by
adding to the specified conditions under which the Department of
Human Services (Department) is allowed to issue a license.

SECTION 2. Amends Section 242.037(7) and (8), and adds Section
242.037(9), Health and Safety Code, to allow the Department to
adopt, publish and enforce minimum standards relating to licensure
for all applicants.

SECTION 3. Amends Section 242.063(a) and (d), Health and Safety
Code, to allow the Department or the attorney general to seek
injunctive relief to prevent a person from continuing or causing a
violation of standards imposed by this Chapter or by any other law
if the violation creates a threat to the health and safety of the
institution's residents or degrades resident quality of life
without good cause. Allows a suit to be brought in Travis County or
the county where the alleged violation occurs.

SECTION 4. Amends Section 242.065(a) and adds Sections 242.065(c) -
(f), Health and Safety Code, as follows:

     (a) Amended to establish that a person who causes the
     violation of this chapter or any rules adopted under this
     chapter is liable for a civil penalty, and increases the limit
     for civil penalties to not less than $100 and not more than
     $10,000. 

     (c) Allows the attorney general to file suit against the
     violators, and allows any party to request a jury trial. 

     (d) Allows for the Department to offset a judgment from any
     final contract payment due.

     (e) Requires the finder of fact to consider specified matters
     of justice when determining the amount of the penalty for the
     violation. 

     (f) States that any person found liable for penalties under
     this section shall be liable to the attorney general for
     related costs, expenses and fees.

SECTION 5. Establishes that if any sentence, section, clause or
part of this Act shall for any reason be held invalid, this shall
not affect the remaining portions of the Act, and states that it is
the intent of the legislature to pass each section, clause, part or
sentence, regardless if any other is declared invalid.

SECTION 6. Effective date: September 1, 1995.

SECTION 7. Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute is a significantly pared down version of the
original bill. The substitute deletes Sections 1-4, 6, 8, and 11-20
of the original bill. While the aim of the substitute still is to
provide mechanisms for holding persons accountable who violate
standards for the treatment of residents of nursing and
convalescent homes, it eliminates provisions in the original bill
which would expand the purposes of Chapter 242, Health and Safety
Code, to a greater degree. In particular, the substitute eliminates
provisions that would expand the chapter to facilitate the free
publication of information and opinion regarding the quality of
nursing facilities in Texas.

In addition to eliminating the sections outlined in the above
paragraph, the substitute amends Section 242.033, Health and Safety
Code, as does the original bill, but it deletes subdivision (f),
which would allow the Texas Department of Human Services to issue
conditional licenses.

Also, the substitute establishes the range of a civil penalty
(Section 4 of the substitute and Section 10 of the original) from
$100-$10,000, instead of $100-$25,000 as proposed in the original
bill.

SUMMARY OF COMMITTEE ACTION

H.B. 2809 was considered by the Public Health Committee in a public
hearing on April 25, 1995.
The committee considered a complete substitute for the bill. The
committee considered one amendment to the substitute. The amendment
was adopted without objection. The substitute was adopted as
amended without objection.

The following persons testified for the bill:
David O. Crowson, representing self.
Hilda T. Ramsay, representing self.
Lou O'Reilly, representing Kaufman Co. TANHR Unit and S.W. Dallas
Co. TANHR Unit.
David Latimer, representing Texas Association of Homes and Services
for the Aging.
Sara Speights, representing TX. Health Care Assn.

The following person testified against the bill:
Lindsay Thorpe, representing self and Chartwell Healthcare Group of
Companies.

The bill was reported favorably as substituted, with the
recommendation that it do pass and be printed, by a record vote of
6 Ayes, 0 Nays, 0 PNV, and 3 Absent.