By Hochberg H.B. No. 299
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to violations of rules or statutes applicable to personal
1-3 care facilities.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 247.002, Health and Safety Code, is
1-6 amended to read as follows:
1-7 Sec. 247.002. DEFINITIONS. In this chapter:
1-8 (1) "Board" means the Texas Board of Human Services
1-9 <Health>.
1-10 (2) "Department" means the Texas Department of Human
1-11 Services <Health>.
1-12 (3) "Commissioner" means the commissioner of human
1-13 services.
1-14 (4) "Personal care facility" means an establishment,
1-15 including a board and care home, that<:>
1-16 <(A) furnishes>, in one or more facilities,
1-17 furnishes food and shelter and provides personal care services to:
1-18 (A) four or more persons who are unrelated to
1-19 the proprietor of the establishment; or <and>
1-20 (B) one or more persons who are unrelated to the
1-21 proprietor of the establishment if the proprietor receives
1-22 reimbursement from the state Medicaid program for the care of one
1-23 or more of those persons <provides personal care services>.
1-24 (5) <(4)> "Personal care services" means:
2-1 (A) assistance with meals, dressing, movement,
2-2 bathing, or other personal needs or maintenance;
2-3 (B) the administration of medication by a person
2-4 licensed to administer medication or the assistance with or
2-5 supervision of medication; or
2-6 (C) general supervision or oversight of the
2-7 physical and mental well-being of a person who needs assistance to
2-8 maintain a private and independent residence in a personal care
2-9 facility or who needs assistance to manage the person's personal
2-10 life, regardless of whether a guardian has been appointed for the
2-11 person.
2-12 (6) <(5)> "Qualified religious society" means a
2-13 church, synagogue, or other organization or association that is
2-14 organized primarily for religious purposes and that:
2-15 (A) has been in existence in this state for at
2-16 least 35 years; and
2-17 (B) does not distribute any of its income to its
2-18 members, officers, or governing body other than as reasonable
2-19 compensation for services or reimbursement of expenses.
2-20 SECTION 2. Section 247.027, Health and Safety Code, is
2-21 amended to read as follows:
2-22 Sec. 247.027. Inspections. (a) In addition to the
2-23 inspection required under Section 247.023(a), the department may
2-24 inspect a personal care facility at reasonable times as necessary
2-25 to assure compliance with this chapter.
2-26 (b) The department shall develop an inspection checklist
2-27 based on the minimum standards that describes the matters subject
3-1 to inspection. The department shall use the inspection checklist
3-2 in conducting inspections under this section and under Section
3-3 247.023(a). The department shall mail the inspection checklist to
3-4 a facility on request and, if the inspection checklist is modified,
3-5 the department shall provide a copy of the modified inspection
3-6 checklist to each facility.
3-7 SECTION 3. Subchapter B, Chapter 247, Health and Safety
3-8 Code, is amended by adding Section 247.0275 to read as follows:
3-9 Sec. 247.0275. INSPECTION EXIT CONFERENCE; INFORMAL REVIEW.
3-10 (a) After any inspection under Section 247.023(a) or 247.027
3-11 performed by the department or another entity under contract with
3-12 the department, the inspector shall conduct an exit conference to:
3-13 (1) advise the personal care facility of the findings
3-14 resulting from the inspection;
3-15 (2) permit the facility to discuss the validity of any
3-16 deficiency or provide an appropriate explanation or information to
3-17 the department; and
3-18 (3) permit the facility to correct any deficiencies
3-19 that can be corrected immediately.
3-20 (b) At the exit conference, the inspector shall provide a
3-21 copy of the inspection checklist and list each violation discovered
3-22 during the inspection, with specific reference to the standard
3-23 violated.
3-24 (c) An inspector may not add violations to a report after
3-25 the exit conference.
3-26 (d) If, after the initial exit conference, the personal care
3-27 facility had been requested or required to take action within a
4-1 specified period and a subsequent exit conference is conducted
4-2 under Subsection (c), the period begins on the date of the
4-3 subsequent exit conference.
4-4 (e) At the request of a personal care facility that does not
4-5 agree with an inspector's findings, the regional director with
4-6 supervisory authority over the inspector who conducted the
4-7 inspection shall conduct an informal review with respect to the
4-8 findings. The informal review may be conducted by another person
4-9 who has supervisory authority over the inspector and who is
4-10 designated by the regional director to conduct the review.
4-11 (f) At the request of the personal care facility, an
4-12 informal review under Subsection (e) may be conducted in person at
4-13 an office of the department. The department may not unreasonably
4-14 deny a request made under this subsection.
4-15 (g) The right to an exit conference and informal review
4-16 granted by this section is in addition to the rights granted by
4-17 Section 247.041(b).
4-18 SECTION 4. Subchapter C, Chapter 247, Health and Safety
4-19 Code, is amended by adding Sections 247.0451-247.0453 to read as
4-20 follows:
4-21 Sec. 247.0451. ADMINISTRATIVE PENALTY. (a) The department,
4-22 after notice and an opportunity for hearing, may assess an
4-23 administrative penalty against a person for a violation of Section
4-24 247.021 or, when the department determines there is a substantial
4-25 threat to the health and safety of a resident of a personal care
4-26 facility, for a violation of a provision of this chapter or rule
4-27 adopted under this chapter which relates to:
5-1 (1) abuse, neglect, or exploitation of a resident;
5-2 (2) control and supervision of medication;
5-3 (3) food storage and preparation;
5-4 (4) dietary or nutritional standards and requirements;
5-5 (5) sanitation, cleanliness, and infection control; or
5-6 (6) facility construction, security, and fire safety.
5-7 (b) The department shall utilize the Advisory Committee on
5-8 Personal Care Facilities under Section 247.051 to develop a
5-9 schedule of maximum penalties to be applied to separate categories
5-10 of violations of this chapter or of rules adopted under this
5-11 chapter. In establishing the maximum penalty for a category of
5-12 violation, the committee shall consider the seriousness of the
5-13 violation and the amount necessary to deter future violations. The
5-14 board by rule shall adopt a schedule of maximum penalties after
5-15 considering the recommendations of the advisory committee. A
5-16 penalty established under this subsection may not exceed $1,000.
5-17 (c) An administrative penalty assessed against a person for
5-18 a violation may not exceed the amount specified for that category
5-19 of violation in the schedule adopted by the board. In determining
5-20 the amount of the penalty assessed under this section, the
5-21 department shall consider:
5-22 (1) the history of previous violations;
5-23 (2) efforts made to correct the violation;
5-24 (3) whether the facility made a good faith effort to
5-25 abide by the inspection checklist developed by the department under
5-26 Section 247.027; and
5-27 (4) any other matters that justice may require.
6-1 (d) All proceedings for the assessment of an administrative
6-2 penalty under this chapter are subject to Chapter 2001, Government
6-3 Code.
6-4 Sec. 247.0452. PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL
6-5 REVIEW; REFUND. (a) Not later than the 30th day after the date on
6-6 which the decision requiring payment of an administrative penalty
6-7 under this chapter is final as provided by Chapter 2001, Government
6-8 Code, the person shall:
6-9 (1) pay the penalty;
6-10 (2) pay the penalty and file a petition for judicial
6-11 review contesting the occurrence of the violation, the amount of
6-12 the penalty, or both the occurrence of the violation and the amount
6-13 of the penalty; or
6-14 (3) without paying the penalty, file a petition for
6-15 judicial review contesting the occurrence of the violation, the
6-16 amount of the penalty, or both the occurrence of the violation and
6-17 the amount of the penalty.
6-18 (b) Within the 30-day period, a person who acts under
6-19 Subsection (a)(3) may:
6-20 (1) stay enforcement of the penalty by:
6-21 (A) paying the penalty to the court for
6-22 placement in an escrow account; or
6-23 (B) giving to the court a supersedeas bond that
6-24 is approved by the court for the amount of the penalty and that is
6-25 effective until all judicial review of the order is final; or
6-26 (2) request the court to stay enforcement of the
6-27 penalty by:
7-1 (A) filing with the court a sworn affidavit of
7-2 the person stating that the person is financially unable to pay the
7-3 amount of the penalty and is financially unable to give the
7-4 supersedeas bond; and
7-5 (B) giving a copy of the affidavit to the
7-6 department by certified mail.
7-7 (c) If the department receives a copy of an affidavit under
7-8 Subsection (b)(2), the department may file with the court, within
7-9 five days after the date the copy is received, a contest to the
7-10 affidavit. The court shall hold a hearing on the facts alleged in
7-11 the affidavit as soon as practicable and shall stay the enforcement
7-12 of the penalty on finding that the alleged facts are true. The
7-13 person who files an affidavit has the burden of proving that the
7-14 person is financially unable to pay the penalty and to give a
7-15 supersedeas bond.
7-16 (d) If the person does not pay the penalty and the
7-17 enforcement of the penalty is not stayed, the department may refer
7-18 the matter to the attorney general for collection of the penalty.
7-19 (e) Judicial review of the order:
7-20 (1) is instituted by filing a petition as provided by
7-21 Subchapter G, Chapter 2001, Government Code; and
7-22 (2) is under the substantial evidence rule.
7-23 (f) If the court sustains the occurrence of the violation,
7-24 the court may uphold or reduce the amount of the penalty and order
7-25 the person to pay the full or reduced amount of the penalty. If
7-26 the court does not sustain the occurrence of the violation, the
7-27 court shall order that no penalty is owed.
8-1 (g) When the judgment of the court becomes final, the court
8-2 shall proceed under this subsection. If the person paid the amount
8-3 of the penalty under Subsection (a)(2) and if that amount is
8-4 reduced or is not upheld by the court, the court shall order that
8-5 the department pay the appropriate amount plus accrued interest to
8-6 the person. The rate of the interest is the rate charged on loans
8-7 to depository institutions by the New York Federal Reserve Bank,
8-8 and the interest shall be paid for the period beginning on the date
8-9 the penalty was paid and ending on the date the penalty is
8-10 remitted. If the person paid the penalty under Subsection
8-11 (b)(1)(A), or gave a supersedeas bond and if the amount of the
8-12 penalty is not upheld by the court, the court shall order the
8-13 release of the escrow account or bond. If the person paid the
8-14 penalty under Subsection (b)(1)(A) and the amount of the penalty is
8-15 reduced, the court shall order that the amount of the penalty be
8-16 paid to the department from the escrow account and that the
8-17 remainder of the account be released. If the person gave a
8-18 supersedeas bond and if the amount of the penalty is reduced, the
8-19 court shall order the release of the bond after the person pays the
8-20 amount.
8-21 Sec. 247.0453. PENALTY DEPOSITED IN STATE TREASURY. A civil
8-22 or administrative penalty collected under this chapter shall be
8-23 deposited in the state treasury to the credit of the general
8-24 revenue fund.
8-25 SECTION 5. (a) This Act takes effect September 1, 1995.
8-26 (b) An administrative penalty assessed under Sections
8-27 247.0451 and 247.0452, Health and Safety Code, as added by this
9-1 Act, may be assessed only for a violation of Chapter 247, Health
9-2 and Safety Code, or a rule adopted under that chapter that occurs
9-3 on or after March 1, 1996.
9-4 (c) The Texas Board of Human Services shall adopt the
9-5 schedule of maximum penalties required by Section 247.0451(b),
9-6 Health and Safety Code, as added by this Act, not later than
9-7 February 29, 1996.
9-8 (d) A person who is required to obtain a license under
9-9 Chapter 247, Health and Safety Code, as amended by this Act, but
9-10 who was not required to obtain a license under that chapter as it
9-11 existed immediately before the effective date of this Act, is not
9-12 required to obtain a license under that chapter until January 1,
9-13 1996.
9-14 SECTION 6. The importance of this legislation and the
9-15 crowded condition of the calendars in both houses create an
9-16 emergency and an imperative public necessity that the
9-17 constitutional rule requiring bills to be read on three several
9-18 days in each house be suspended, and this rule is hereby suspended.