By Hirschi                                            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; providing
    1-4  for the accountability of persons who violate such established
    1-5  standards; and providing for the facilitation of the flow of
    1-6  information and opinion on the quality of nursing and convalescent
    1-7  homes to enable Texans to make informed choices in the selection of
    1-8  nursing and convalescent homes.
    1-9        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-10        SECTION 1.  Section 242.001, Health and Safety Code, is
   1-11  amended to read as follows:
   1-12        The purposes <purpose> of this chapter are: <is>
   1-13              (1)  to promote the public health, safety, and welfare
   1-14  by providing for the development, establishment, and enforcement of
   1-15  standards for the treatment of residents of institutions and the
   1-16  establishment, construction, maintenance, and operation of
   1-17  institutions that, in the light of advancing knowledge, will
   1-18  promote safe and adequate treatment of residents;
   1-19              (2)  to hold accountable those persons actually
   1-20  responsible for violations of standards for the care and treatment
   1-21  of residents of institutions and for violations of standards for
   1-22  the operation and administration of such institutions; and
   1-23              (3)  to facilitate the free publication of information
    2-1  and opinion regarding the quality of nursing facilities in Texas,
    2-2  so that Texas residents will be better able to choose facilities
    2-3  that meet their needs.
    2-4        SECTION 2.  Section 242.002, Health and Safety Code, is
    2-5  amended to read as follows:
    2-6        In this chapter:
    2-7              (1)  "Board" means the Texas Board of Human Services
    2-8  <Health>.
    2-9              (2)  "Department" means the Texas Department of Human
   2-10  Services <Health>.
   2-11              (3)  "Elderly person" means an individual who is 65
   2-12  years of age or older.
   2-13              (4)  "Governmental unit" means the state or a political
   2-14  subdivision of the state, including a county or municipality.
   2-15              (5)  "Hospital" has the meaning assigned by Chapter 241
   2-16  (Texas Hospital Licensing Law).
   2-17              (6)  "Institution" means:
   2-18                    (A)  an establishment that:
   2-19                          (i)  furnishes, in one or more facilities,
   2-20  food and shelter to four or more persons who are unrelated to the
   2-21  proprietor of the establishment; and
   2-22                          (ii)  provides minor treatment under the
   2-23  direction and supervision of a physician licensed by the Texas
   2-24  State Board of Medical Examiners, or other services that meet some
   2-25  need beyond the basic provision of food, shelter, and laundry; or
    3-1                    (B)  a foster care type residential facility that
    3-2  provides room and board to fewer than five persons who:
    3-3                          (i)  are not related within the second
    3-4  degree of consanguinity or affinity, as determined under Article
    3-5  5996h, Revised Statutes, to the proprietor; and
    3-6                          (ii)  because of their physical or mental
    3-7  limitation, or both, require a level of care and services suitable
    3-8  to their needs that contributes to their health, comfort, and
    3-9  welfare.
   3-10              (7)  "Person" means an individual, firm, partnership,
   3-11  corporation, association, joint stock company, or other entity, and
   3-12  includes a legal successor, alter ego, affiliate, manager,
   3-13  controlling individual, or any other person or entity who exercises
   3-14  actual managerial, policy-making, or financial control over any of
   3-15  those entities.
   3-16              (8)  "Resident" means an individual, including a
   3-17  patient, who resides in an institution.
   3-18              (9)  "Facility" means institution.
   3-19              (10)  "Home" means institution.
   3-20              (11)  "Affiliate" means:
   3-21                    (A)  with respect to a partnership, each partner
   3-22  of the partnership;
   3-23                    (B)  with respect to a corporation, each:
   3-24                          (i)  officer;
   3-25                          (ii)  director;
    4-1                          (iii)  stockholder who owns, holds, or has
    4-2  the power to vote at least ten percent of any class of securities
    4-3  issued by the corporation, regardless of whether the power is of
    4-4  record or beneficial; and
    4-5                          (iv)  controlling individual;
    4-6                    (C)  with respect to an individual:
    4-7                          (i)  an individual in the individual's
    4-8  immediate family;
    4-9                          (ii)  each partnership and each partner in
   4-10  the partnership in which the individual or any affiliate of the
   4-11  individual is a partner; and
   4-12                          (iv)  each corporation in which the
   4-13  individual or an affiliate of the individual is:  an officer; a
   4-14  director; a stockholder who owns, holds, or has the power to vote
   4-15  at least ten percent of an interest, regardless of whether the
   4-16  power is of record or beneficial; or a controlling individual;
   4-17                    (D)  with respect to a limited partnership:
   4-18                          (i)  each general partner; and
   4-19                          (ii)  each limited partner who is a
   4-20  controlling individual.
   4-21              (12)  "Controlling individual" means any individual who
   4-22  has the ability, acting alone or in concert with others, to
   4-23  significantly influence, direct, or cause the direction of the
   4-24  management or policies of any person.  "Controlling individual"
   4-25  includes any management company hired to operate a facility and all
    5-1  controlling individuals of the management company.
    5-2              (13)  "Immediate family" of an individual means each
    5-3  parent, child, spouse, brother, sister, first cousin, aunt, uncle,
    5-4  and grandparent of the individual, regardless of whether the
    5-5  relationship arises by birth, marriage, or adoption.
    5-6        SECTION 3.  Section 242.014, Health and Safety Code is
    5-7  amended to read as follows:
    5-8        (a)  Neither an <An> institution nor any affiliate, employee,
    5-9  manager, owner, or other controlling individual of the institution
   5-10  may <not> receive monetary or other remuneration from a person or
   5-11  agency that furnishes services or materials to the institution or
   5-12  its occupants for a fee.
   5-13        (b)  The department may revoke the license of an institution
   5-14  that violates Subsection (a).
   5-15        (c)  The department may immediately cancel any contracts it
   5-16  has with any entity if the department has reasonable cause to
   5-17  believe that the entity has violated Subsection (a).  The
   5-18  cancellation is effective upon exhaustion of administrative
   5-19  appeals, but payment under such contracts may be suspended
   5-20  immediately if the department has reasonable cause to believe that
   5-21  any threat to the health or safety of any resident or patient
   5-22  results from such violation.   Payments resume retroactively if the
   5-23  institution prevails in an administrative appeal.
   5-24        SECTION 4.  Section 242.032, Health and Safety Code, is
   5-25  amended by adding Subsection (c) to read as follows:
    6-1        (c)  The department may deny any application for a license if
    6-2  the applicant or any owner, affiliate, employee, or controlling
    6-3  individual of the applicant has violated standards promulgated
    6-4  pursuant to this chapter, or if by any act or omission by a
    6-5  controlling individual or employee of the applicant has:
    6-6              (1)  violated any provisions of this chapter or any
    6-7  rules adopted under this chapter;
    6-8              (2)  permitted, aided, or abetted the commission of any
    6-9  illegal act in the facility;
   6-10              (3)  obtained, or attempted to obtain, a license by
   6-11  fraudulent means or misrepresentation;
   6-12              (4)  detrimentally affected the welfare of a patient or
   6-13  resident of a facility licensed under this chapter;
   6-14              (5)  failed to pay any audit exception or monetary
   6-15  penalty owed to the department or to a current or former resident
   6-16  of the institution, or
   6-17              (6)  failed to reimburse the department for
   6-18  disbursements from the Nursing and Convalescent Home Trust Fund, as
   6-19  required by Section 242.098, Health and Safety Code.
   6-20        SECTION 5.  Section 242.033, Health and Safety Code, is
   6-21  amended by amending Subsection (a) and adding Subsection (f) to
   6-22  read as follows:
   6-23        (a)  After receiving an application for a license, the
   6-24  department may <shall> issue the license if, there is no finding,
   6-25  under Subsection (c) of Section 242.032, that the applicant; a
    7-1  controlling individual related to the applicant within the third
    7-2  degree by affinity or consanguinity; or any owner, affiliate, or
    7-3  employee of the applicant, has violated the provisions of this
    7-4  chapter or any rules promulgated under this chapter, or has failed
    7-5  to pay money owed to the department or to the institution's
    7-6  residents.  The department is not required to issue a license if
    7-7  the applicant or any owner, controlling individual, or affiliate of
    7-8  the applicant has been the owner, controlling individual, or
    7-9  affiliate of any facility which has, within two years of the
   7-10  application, been the subject of any injunction, administrative
   7-11  penalty, or judicially assessed penalty related to the violation of
   7-12  standards adopted under this chapter <after inspection and
   7-13  investigation, it finds that the applicant and facilities meet the
   7-14  requirements established under this chapter>.
   7-15        (f)  The department may issue a conditional license that is
   7-16  subject to conditions imposed by the department.  Failure to comply
   7-17  with the conditions specified in the conditional license shall
   7-18  result in the suspension or revocation of the conditional license.
   7-19        SECTION 6.  Section 242.036, Health and Safety Code, is
   7-20  amended by amending Subsection (b) and adding Subsection (f) to
   7-21  read as follows:
   7-22        (b)  An institution may <that has a superior grade shall>
   7-23  prominently display the grade for public view.
   7-24        (f)  Any person who purports to grade institutions in Texas
   7-25  or to assess their relative quality, using any criteria, shall not
    8-1  be subject to any suit or liability on account of published grading
    8-2  or comparative information without a showing, with clear and
    8-3  convincing proof, that such person acted with malice.
    8-4        SECTION 7.  Section 242.037, Health and Safety Code, is
    8-5  amended by amending Subdivisions (7) and (8) and by adding
    8-6  Subdivision (9) to read as follows:
    8-7              (7)  equipment essential to the residents' health and
    8-8  welfare; <and>
    8-9              (8)  the use and administration of medication in
   8-10  conformity with applicable law and rules; and
   8-11              (9)  standards for licensure for all applicants.
   8-12        SECTION 8.  Subsections (a) and (c), Section 242.062, Health
   8-13  and Safety Code, are amended to read as follows:
   8-14        (a)  The department shall, without notice or a hearing,
   8-15  suspend an institution's license or order an immediate closing of
   8-16  part of the institution if:
   8-17              (1)  the department finds the institution is operating
   8-18  in violation of the standards prescribed by this chapter; and
   8-19              (2)  the violation creates an immediate threat to the
   8-20  health and safety of a resident.
   8-21        (c)  An order suspending a license or closing a part of an
   8-22  institution under this section is immediately effective on the date
   8-23  on which the license holder, a manager or controlling person of the
   8-24  license holder, the administrator of the facility, or a person
   8-25  acting as the administrator, or any person is in charge of the
    9-1  facility receives actual <written> notice or a later date specified
    9-2  in the order.
    9-3        SECTION 9.  Subsections (a) and (d), Section 242.063, Health
    9-4  and Safety Code, is amended to read as follows:
    9-5        (a)  The department or the attorney general may petition a
    9-6  district court for a temporary restraining order or an injunction
    9-7  to prevent <restrain> a person from continuing or causing a
    9-8  violation of the standards imposed <prescribed> by this chapter or
    9-9  by any other law if the department finds that the violation:
   9-10              (1)  creates a <an immediate> threat to the health and
   9-11  safety of the institution's residents; or
   9-12              (2)  degrades resident quality of life without good
   9-13  cause.
   9-14        (d)  A suit for a temporary restraining order or other
   9-15  injunctive relief may <must> be brought in Travis County or in the
   9-16  county in which the alleged violation occurs.
   9-17        SECTION 10.  Section 242.065, Health and Safety Code, is
   9-18  amended to read as follows:
   9-19        (a)  A person who violates this chapter or, who directly or
   9-20  indirectly causes the violation of any, <a> rule adopted under this
   9-21  chapter is liable for a civil penalty of not less than $100 or more
   9-22  than $25,000 <$10,000> for each act of violation if <the department
   9-23  determines> the violation threatens the health and safety of a
   9-24  resident or degrades resident quality of life without good cause.
   9-25        (c)  The attorney general may bring a suit for civil
   10-1  penalties in Travis County or in the county in which the alleged
   10-2  violation occurred.  Any party may request a jury trial.
   10-3        (d)  To satisfy a judgment under this section, the department
   10-4  may offset, from any contract payment owed to any person found to
   10-5  be liable, the adjudged amount.
   10-6        (e)  In determining the amount of the penalty, the finder of
   10-7  fact shall consider any matter that justice requires, including:
   10-8              (1)  the seriousness of the violation, including the
   10-9  nature, circumstances, extent, and gravity of the prohibited act,
  10-10  and the hazard or potential hazard created by the act to the health
  10-11  or safety of a resident;
  10-12              (2)  a history of violations by the person, or any
  10-13  affiliates, employees, or controlling individuals of the person;
  10-14              (3)  the amount necessary to deter future violations;
  10-15              (4)  efforts to correct the violation;
  10-16              (5)  misrepresentations to the department or to the
  10-17  public regarding:
  10-18                    (A)  the quality of services rendered or to be
  10-19  rendered to residents;
  10-20                    (B)  the compliance history of the facility or
  10-21  any facilities owned or controlled by its owners or controlling
  10-22  individuals; or
  10-23                    (C)  the identity of owners or controlling
  10-24  individuals of the facility;
  10-25              (6)  the extent to which the conduct offends the
   11-1  public's sense of justice and propriety;
   11-2              (7)  culpability of the wrongdoer(s); and
   11-3              (8)  any other matter which should, as a matter of
   11-4  justice or equity, be considered.
   11-5        (f)  Any person who is found liable for penalties under this
   11-6  section shall be liable to the attorney general for costs,
   11-7  expenses, and fees, including attorneys' fees, reasonably incurred
   11-8  by the state in investigating and litigating actions brought under
   11-9  this chapter.
  11-10        SECTION 11.  Subsection (e), Section 242.068, Health and
  11-11  Safety Code, is amended to read as follows:
  11-12        (e)  Proceedings under this section are subject to the
  11-13  Administrative Procedure Act (Chapter 2001, Government Code)
  11-14  <Administrative Procedure and Texas Register Act (Article 6252-13a,
  11-15  Vernon's Texas Civil Statutes)>.
  11-16        SECTION 12.  Subsection (b), Section 242.091, Health and
  11-17  Safety Code, is amended to read as follows:
  11-18        (b)  The purpose of this subchapter is to provide for:
  11-19              (1)  the appointment of a trustee to assume the
  11-20  operations of the home in a manner that emphasizes resident care
  11-21  and reduces resident trauma; <and>
  11-22              (2)  a fund to assist a court-appointed trustee in
  11-23  meeting the basic needs of the residents; and
  11-24              (3)  court appointment of a monitor, where a trustee is
  11-25  not necessary but the risk to resident health and safety warrants
   12-1  the on-site presence of a person charged with the duty to report to
   12-2  the department or the court regarding the facility's compliance
   12-3  with standards and license conditions, and the facility's efforts
   12-4  to correct violations.
   12-5        SECTION 13.  Section 242.092, Health and Safety Code, is
   12-6  amended to read as follows:
   12-7        Sec. 242.092.  DEFINITIONS <DEFINITION>.  In this
   12-8  subchapter:<,>
   12-9              (1)  "Home" <"home"> means a nursing or convalescent
  12-10  home.
  12-11              (2)  "Trustee" means a temporary manager with authority
  12-12  to manage and control a facility and all assets related to or
  12-13  derived from operation of the facility, with the powers, rights,
  12-14  and duties of a receiver except as otherwise provided by court
  12-15  order or department rule.
  12-16              (3)  "Monitor" means a person appointed by a court to
  12-17  report to the department or the court regarding the facility's
  12-18  compliance with standards and license conditions and the facility's
  12-19  efforts to correct violations.  A monitor shall have no legal or
  12-20  equitable interest whatsoever in the facility being monitored, or
  12-21  in any facility owned or operated by the owner or operator of the
  12-22  monitored facility.  The facility shall pay a reasonable fee to the
  12-23  monitor.  If after written request, the facility fails to pay the
  12-24  fee, the facility shall also be liable for attorney's fees
  12-25  reasonably incurred by the monitor in obtaining payment.
   13-1        SECTION 14.  Section 242.094, Health and Safety Code, is
   13-2  amended by amending Subsection (c) and by adding Subsections (d)
   13-3  through (k) to read as follows:
   13-4        (c)  After a hearing, which may be held on an emergency basis
   13-5  as necessary to alleviate a threat to the health and safety of the
   13-6  residents in a home, the <a> court shall appoint a trustee to take
   13-7  charge of a home if the court finds that involuntary appointment of
   13-8  a trustee is necessary.
   13-9        (d)  If the facility closes during the trustee's appointment,
  13-10  any money held by the department which, after appropriate audits
  13-11  and offsets, is found to be owed for services rendered to residents
  13-12  shall be paid to the trustee for the fees and expenses reasonably
  13-13  incurred by the trustee in performing the trustee's duties.  If
  13-14  such funds are inadequate to reimburse the department; the Nursing
  13-15  and Convalescent Home Trust Fund; the residents or their estates;
  13-16  and the trustee for reasonable trusteeship fees and expenses, the
  13-17  owner(s) of the right to obtain Medicaid contracts for the Medicaid
  13-18  certified beds in the facility shall forfeit all such rights to the
  13-19  department.
  13-20        (f)  If the facility:
  13-21              (1)  does not close during the trustee's appointment,
  13-22  the facility's owners and controlling individuals are liable to the
  13-23  trustee for fees and expenses reasonably incurred by the trustee.
  13-24  The trustee shall be paid no later than thirty days after the
  13-25  trustee's discharge by the court, or at another time ordered by the
   14-1  court.
   14-2              (2)  fails to pay the trustee an agreed fee plus agreed
   14-3  expenses, or if a facility fails to pay an amount found by a court
   14-4  to be reasonable, the facility is liable to the trustee for
   14-5  attorney's fees reasonably incurred in obtaining payment.
   14-6        (g)  The trustee shall not be liable for refusing to honor
   14-7  any obligation made by the facility if the trustee finds that
   14-8  honoring the obligation would unreasonably deplete the resources
   14-9  available to the trustee for providing care to the residents.
  14-10        (h)  Upon motion by the department, the trustee, or the
  14-11  facility, the court shall determine a fair monthly rental for the
  14-12  facility, taking into account all relevant factors, including the
  14-13  condition of the facility and any reduction in market value
  14-14  resulting from its compliance history.  This rental fee shall be
  14-15  paid by the trustee to a controlling individual of the facility,
  14-16  for each month the trusteeship remains in effect.  Notwithstanding
  14-17  any other law to the contrary, no payment made to a controlling
  14-18  individual by the department during a period of involuntary
  14-19  trusteeship under this subchapter shall include any allowance for
  14-20  profit or be based solely on any formula which includes an
  14-21  allowance for profit.
  14-22        (i)  The trustee shall have the authority to collect, or
  14-23  direct the collection, of all incoming payments, from all sources,
  14-24  and apply them to costs incurred in the performance of the
  14-25  trustee's duties.
   15-1        (j)  The trustee will be liable for any act or omission only
   15-2  in his or her official capacity, except for gross negligence or
   15-3  malicious conduct.
   15-4        (k)  No bond is required of any trustee, unless the facility
   15-5  pays all expenses necessary for procuring such a bond.  No bond may
   15-6  impair any duties or powers of the trustee.
   15-7        SECTION 15.  Section 242.095, Health and Safety Code, is
   15-8  amended by amending Subsections (a) and (b) and adding Subsection
   15-9  (d) to read as follows:
  15-10        (a)  A trustee appointed under this subchapter is entitled to
  15-11  a reasonable fee as determined by the court.  The fee, including
  15-12  expenses reasonably incurred by the trustee, is owed jointly and
  15-13  severally by the facility, its owners, managers, and controlling
  15-14  individuals.
  15-15        (b)  The trustee may petition the court to order the release
  15-16  to the trustee of any payment owed <the trustee> for care and
  15-17  services provided to the residents if the payment has been
  15-18  withheld. <,including>  This includes a payment, or part of a
  15-19  payment, withheld by the Texas Department of Human Services to the
  15-20  extent necessary for the trustee to provide further care and
  15-21  services to the residents, or to pay the trustee for reasonable
  15-22  fees and expenses after the needs of residents have been met <at
  15-23  the recommendation of the department>.
  15-24        (d)  The trustee or the department may petition the court to
  15-25  order the turnover to the trustee of tangible or intangible assets
   16-1  related to or derived from operation of the facility, to the extent
   16-2  such assets are:
   16-3              (1)  subject to the facility's control, or the control
   16-4  of an owner, manager, or controlling individual of the facility;
   16-5              (2)  beyond the trustee's control; and
   16-6              (3)  needed to provide care and services to residents
   16-7  or to pay the trustee's reasonable fees and expenses.
   16-8        SECTION 16.  Subsection (e), Section 242.096, Health and
   16-9  Safety Code, is amended to read as follows:
  16-10        (e)  Any unencumbered amount in the nursing and convalescent
  16-11  home trust fund in excess of $200,000 <$100,000> at the end of each
  16-12  fiscal year shall be transferred to the <credit of the general
  16-13  revenue fund and may be appropriated to the> department for its use
  16-14  in administering and enforcing this chapter.
  16-15        SECTION 17.  Section 242.097, Health and Safety Code, is
  16-16  amended to read as follows:
  16-17        (a)  In addition to the license fee provided by Section
  16-18  242.034, the department shall adopt an annual fee to be charged and
  16-19  collected if the amount of the nursing and convalescent home trust
  16-20  fund is less than $200,000 <$100,000>.  The fee shall be deposited
  16-21  to the credit of the nursing and convalescent home trust fund
  16-22  created by this subchapter.
  16-23        (b)  The department shall set the fee for each nursing and
  16-24  convalescent home at $1 for each licensed unit of capacity or bed
  16-25  space in that home or in an amount necessary to provide $200,000
   17-1  <$100,000> in the fund.  Any facility that has been found to
   17-2  violate a standard relating to nursing care may be charged a higher
   17-3  fee, as set by the department.
   17-4        SECTION 18.  Subsection (a), Section 242.098, Health and
   17-5  Safety Code, is amended to read as follows:
   17-6        (a)  A home that receives emergency assistance funds under
   17-7  this subchapter shall reimburse the department for the amounts
   17-8  received, including interest.  The department may deduct such
   17-9  amounts from any payment owed to the facility or to the owner of
  17-10  the facility.  Any person who is required to reimburse the
  17-11  department and who does not reimburse the department is ineligible
  17-12  to apply for or hold a license under this chapter, and any person
  17-13  or entity owned, controlled, or employed by such a person is
  17-14  ineligible to apply for or hold a license under this chapter.
  17-15        SECTION 19.  Subsection (b), Section 242.156, Health and
  17-16  Safety Code, is amended to read as follows:
  17-17        (b)  Except as provided by Section 242.157, the procedure by
  17-18  which the department takes a disciplinary action and the procedure
  17-19  by which a disciplinary action is appealed are governed by the
  17-20  department's rules for a formal hearing and by the Administrative
  17-21  Procedure Act (Chapter 2001, Government Code) <Administrative
  17-22  Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
  17-23  Civil Statutes)>.
  17-24        SECTION 20.  Subsection (e), Section 242.157, Health and
  17-25  Safety Code, is amended to read as follows:
   18-1        (e)  The hearing and an appeal from a disciplinary action
   18-2  related to the hearing are governed by the department's rules for a
   18-3  formal hearing and the Administrative Procedure Act (Chapter 2001,
   18-4  Government Code) <Administrative Procedure and Texas Register Act
   18-5  (Article 6252-13a, Vernon's Texas Civil Statutes)>.
   18-6        SECTION 21.  SEVERABILITY.  If any section, sentence, clause,
   18-7  or part of this Act shall, for any reason, be held invalid, such
   18-8  invalidity shall not affect the remaining portions of the Act, and
   18-9  it is hereby declared to be the intention of this legislature to
  18-10  have passed each section, sentence, clause, or part irrespective of
  18-11  the fact that any other section, sentence, clause, or part may be
  18-12  declared invalid.
  18-13        SECTION 22.  EFFECTIVE DATE.  This Act takes effect September
  18-14  1, 1995.
  18-15        SECTION 23.  EMERGENCY.  The importance of this legislation
  18-16  and the crowded condition of the calendars in both houses create an
  18-17  emergency and an imperative public necessity that the
  18-18  constitutional rule requiring bills to be read on three several
  18-19  days in each house be suspended, and this rule is hereby suspended.