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.