74R11806 E
By Hirschi H.B. No. 2809
Substitute the following for H.B. No. 2809:
By Coleman C.S.H.B. No. 2809
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the enforcement of standards established for the
1-3 treatment of persons in nursing and convalescent homes and
1-4 providing for the accountability of persons who violate such
1-5 standards.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Section 242.033(a), Health and Safety Code, is
1-8 amended to read as follows:
1-9 (a) After receiving an application for a license, the
1-10 department shall issue the license if, after inspection and
1-11 investigation, it finds that the applicant and the applicant's
1-12 affiliates and facilities meet, and in the previous two years have
1-13 met, the requirements established under this chapter.
1-14 SECTION 2. Section 242.037, Health and Safety Code, is
1-15 amended to read as follows:
1-16 Sec. 242.037. MINIMUM STANDARDS. The board may adopt,
1-17 publish, and enforce minimum standards relating to:
1-18 (1) the construction of an institution, including
1-19 plumbing, heating, lighting, ventilation, and other housing
1-20 conditions, to ensure the residents' health, safety, comfort, and
1-21 protection from fire hazard;
1-22 (2) the regulation of the number and qualification of
1-23 all personnel, including management and nursing personnel,
2-1 responsible for any part of the care given to the residents;
2-2 (3) requirements for in-service education of all
2-3 employees who have any contact with the residents;
2-4 (4) training on the care of persons with Alzheimer's
2-5 disease and related disorders for employees who work with those
2-6 persons;
2-7 (5) sanitary and related conditions in an institution
2-8 and its surroundings, including water supply, sewage disposal, food
2-9 handling, and general hygiene in order to ensure the residents'
2-10 health, safety, and comfort;
2-11 (6) the dietary needs of each resident according to
2-12 good nutritional practice or the recommendations of the physician
2-13 attending the resident;
2-14 (7) equipment essential to the residents' health and
2-15 welfare; <and>
2-16 (8) the use and administration of medication in
2-17 conformity with applicable law and rules; and
2-18 (9) licensure for all applicants.
2-19 SECTION 3. Sections 242.063(a) and (d), Health and Safety
2-20 Code, are amended to read as follows:
2-21 (a) The department may petition a district court for a
2-22 temporary restraining order or an injunction to prevent <restrain>
2-23 a person from continuing or causing a violation of the standards
2-24 imposed <prescribed> by this chapter or by any other law if the
2-25 department finds that the violation:
3-1 (1) creates an immediate threat to the health and
3-2 safety of the institution's residents; or
3-3 (2) degrades resident quality of life without good
3-4 cause.
3-5 (d) A suit for a temporary restraining order or other
3-6 injunctive relief may <must> be brought in Travis County or in the
3-7 county in which the alleged violation occurs.
3-8 SECTION 4. Section 242.065, Health and Safety Code, is
3-9 amended to read as follows:
3-10 Sec. 242.065. CIVIL PENALTY. (a) A person who violates
3-11 this chapter or who causes the violation of any <a> rule adopted
3-12 under this chapter is liable for a civil penalty of not less than
3-13 $100 or more than $10,000 for each act of violation if the
3-14 department determines the violation threatens the health and safety
3-15 of a resident or degrades resident quality of life without good
3-16 cause.
3-17 (b) Each day of a continuing violation constitutes a
3-18 separate ground for recovery.
3-19 (c) The attorney general may bring a suit for civil
3-20 penalties in Travis County or in the county in which the alleged
3-21 violation occurred. Any party may request a jury trial.
3-22 (d) To satisfy a judgment under this section, the department
3-23 may offset, from any final contract payment owed to any person
3-24 found to be liable, the adjudged amount.
3-25 (e) In determining the amount of the penalty, the finder of
4-1 fact shall consider any matter that justice requires, including:
4-2 (1) the seriousness of the violation, including the
4-3 nature, circumstances, extent, and gravity of the prohibited act,
4-4 and the hazard or potential hazard created by the act to the health
4-5 or safety of a resident;
4-6 (2) a history of violations by the person or any
4-7 affiliates, employees, or controlling individuals of the person;
4-8 (3) the amount necessary to deter future violations;
4-9 (4) efforts to correct the violation;
4-10 (5) misrepresentations to the department or to the
4-11 public regarding:
4-12 (A) the quality of services rendered or to be
4-13 rendered to residents;
4-14 (B) the compliance history of the facility or
4-15 any facilities owned or controlled by its owners or controlling
4-16 individuals; or
4-17 (C) the identity of owners or controlling
4-18 individuals of the facility;
4-19 (6) the extent to which the conduct offends the
4-20 public's sense of justice and propriety;
4-21 (7) culpability of the wrongdoer(s); and
4-22 (8) any other matter that should, as a matter of
4-23 justice or equity, be considered.
4-24 (f) Any person who is found liable for penalties under this
4-25 section shall be liable to the attorney general for costs,
5-1 expenses, and fees, including attorney's fees, reasonably incurred
5-2 by the state in investigating and litigating actions brought under
5-3 this chapter.
5-4 SECTION 5. If any section, sentence, clause, or part of this
5-5 Act shall, for any reason, be held invalid, such invalidity shall
5-6 not affect the remaining portions of the Act, and it is hereby
5-7 declared to be the intention of this legislature to have passed
5-8 each section, sentence, clause, or part irrespective of the fact
5-9 that any other section, sentence, clause, or part may be declared
5-10 invalid.
5-11 SECTION 6. This Act takes effect September 1, 1995.
5-12 SECTION 7. The importance of this legislation and the
5-13 crowded condition of the calendars in both houses create an
5-14 emergency and an imperative public necessity that the
5-15 constitutional rule requiring bills to be read on three several
5-16 days in each house be suspended, and this rule is hereby suspended.