74R8334 DLF-D
By Coleman, Maxey H.B. No. 3118
Substitute the following for H.B. No. 3118:
By Maxey C.S.H.B. No. 3118
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to intermediate care facilities for the mentally retarded;
1-3 imposing civil and criminal penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle B, Title 4, Health and Safety Code, is
1-6 amended by adding Chapter 251 to read as follows:
1-7 CHAPTER 251. INTERMEDIATE CARE FACILITIES FOR THE MENTALLY
1-8 RETARDED
1-9 SUBCHAPTER A. GENERAL PROVISIONS
1-10 Sec. 251.001. PURPOSE. The purpose of this chapter is to
1-11 promote the public health, safety, and welfare by providing for the
1-12 development, establishment, and enforcement of standards for the
1-13 provision of services to individuals residing in intermediate care
1-14 facilities for the mentally retarded and the establishment,
1-15 construction, maintenance, and operation of facilities providing
1-16 this service that, in light of advancing knowledge, will promote
1-17 quality in the delivery of services and treatment of residents.
1-18 Sec. 251.002. DEFINITIONS. In this chapter:
1-19 (1) "Board" means the Texas Board of Human Services.
1-20 (2) "Department" means the Texas Department of Human
1-21 Services.
1-22 (3) "Designee" means another state agency or entity
1-23 with which the department contracts to perform specific, identified
2-1 duties related to the fulfillment of responsibilities prescribed by
2-2 this chapter.
2-3 (4) "Facility" means a home or other establishment
2-4 that provides, on a regular basis, intermediate care services
2-5 described by 42 CFR Sections 440.150(c) and (d) for residents.
2-6 (5) "Governmental unit" means the state or a political
2-7 subdivision of the state, including a county or municipality.
2-8 (6) "Person" means an individual, firm, partnership,
2-9 corporation, association, or joint stock company, and includes a
2-10 legal successor of those entities.
2-11 (7) "Resident" means an individual, including a
2-12 client, with mental retardation or a related condition who is
2-13 eligible for and receiving active treatment for purposes of 42 CFR
2-14 Section 483.440.
2-15 Sec. 251.003. EXEMPTIONS. Except as otherwise provided by
2-16 this chapter, this chapter does not apply to an establishment that:
2-17 (1) provides training, habilitation, rehabilitation,
2-18 or education to individuals with mental retardation or a related
2-19 condition;
2-20 (2) is operated under the jurisdiction of a state or
2-21 federal agency, including the department, the Texas Rehabilitation
2-22 Commission, the Texas Department of Mental Health and Mental
2-23 Retardation, the Texas Commission for the Blind, the Texas
2-24 Commission on Alcohol and Drug Abuse, the institutional division of
2-25 the Texas Department of Criminal Justice, or the Veterans
3-1 Administration; and
3-2 (3) is certified through inspection or evaluation as
3-3 meeting the standards established by the state or federal agency.
3-4 Sec. 251.004. FEDERAL FUNDS. The department may accept and
3-5 use any funds allocated by the federal government to the department
3-6 for administrative expenses.
3-7 Sec. 251.005. LANGUAGE REQUIREMENTS PROHIBITED. A facility
3-8 may not prohibit a resident or employee from communicating in the
3-9 person's native language with another resident or employee for the
3-10 purpose of acquiring care, training, or treatment.
3-11 Sec. 251.006. RIGHTS OF RESIDENTS. Each facility shall
3-12 implement and enforce Chapter 102, Human Resources Code.
3-13 Sec. 251.007. PAPERWORK REDUCTION RULES. (a) The
3-14 department and any designee of the department shall:
3-15 (1) adopt rules to reduce the amount of paperwork a
3-16 facility must complete and retain; and
3-17 (2) attempt to reduce the amount of paperwork to the
3-18 minimum amount required by state and federal law unless the
3-19 reduction would jeopardize resident safety.
3-20 (b) The department, any designee of the department, and
3-21 facilities shall work together to review rules and propose changes
3-22 in paperwork requirements so that additional time is available for
3-23 direct resident care.
3-24 Sec. 251.008. RULES. The department shall adopt rules
3-25 related to the administration and implementation of this chapter,
4-1 including rules necessary to implement:
4-2 (1) Sections 251.031-251.033, including requirements
4-3 for related fees and denial, suspension, or revocation of a
4-4 license; and
4-5 (2) Sections 251.038-251.041.
4-6 Sec. 251.009. CONSULTATION AND COORDINATION. (a) Whenever
4-7 possible, the department shall:
4-8 (1) use the services of and consult with state and
4-9 local agencies in carrying out the department's functions under
4-10 this chapter; and
4-11 (2) use the facilities of the department or a designee
4-12 of the department, particularly in establishing and maintaining
4-13 standards relating to the humane treatment of residents.
4-14 (b) The department may cooperate with local public health
4-15 officials of a county or municipality in carrying out this chapter
4-16 and may delegate to those officials the power to make inspections
4-17 and recommendations to the department under this chapter.
4-18 (c) The department may coordinate its personnel and
4-19 facilities with a local agency of a municipality and may provide
4-20 advice to the municipality or county if the municipality or county
4-21 decides to supplement the state program with additional rules
4-22 required to meet local conditions.
4-23 Sec. 251.010. CHANGE OF ADMINISTRATORS. A facility that
4-24 hires a new administrator or other person designated as the chief
4-25 management officer for the facility shall:
5-1 (1) notify the department of the change not later than
5-2 the 30th day after the date on which the change becomes effective;
5-3 and
5-4 (2) pay a $20 administrative fee to the department.
5-5 (Sections 251.011-251.030 reserved for expansion
5-6 SUBCHAPTER B. LICENSING, FEES, AND INSPECTIONS
5-7 Sec. 251.031. LICENSE REQUIRED. A person or governmental
5-8 unit, acting severally or jointly with any other person or
5-9 governmental unit, may not establish, conduct, or maintain a
5-10 facility in this state without a license issued under this chapter.
5-11 Sec. 251.032. LICENSE APPLICATION. (a) An application for
5-12 a license is made to the department on a form provided by the
5-13 department and must be accompanied by the license fee.
5-14 (b) The application must contain information that the
5-15 department requires, which may include affirmative evidence of
5-16 ability to comply with the standards and rules adopted under this
5-17 chapter.
5-18 Sec. 251.033. ISSUANCE AND RENEWAL OF LICENSE. (a) After
5-19 receiving an application for a license, the department shall issue
5-20 the license if, after inspection and investigation, it finds that
5-21 the applicant and facility meet the requirements established under
5-22 this chapter.
5-23 (b) The department may issue a license only for:
5-24 (1) the premises and persons or governmental unit
5-25 named in the application; and
6-1 (2) the maximum number of beds specified in the
6-2 application.
6-3 (c) A license may not be transferred or assigned.
6-4 (d) A license is renewable on the second anniversary of
6-5 issuance or renewal of the license, after:
6-6 (1) an inspection;
6-7 (2) filing and approval of a renewal report; and
6-8 (3) payment of the renewal fee.
6-9 (e) The renewal report required under Subsection (d)(2) must
6-10 be filed in accordance with rules adopted by the department that
6-11 specify the form of the report and the date it must be submitted.
6-12 (f) The department may not issue a license under this
6-13 chapter unless the beds provided under the license are approved
6-14 under the state's plan on long-term care facilities for persons
6-15 with mental retardation, as described by Section 533.062.
6-16 Sec. 251.034. MINIMUM STANDARDS. The board may adopt,
6-17 publish, and enforce minimum standards relating to:
6-18 (1) the construction or remodeling of a facility,
6-19 including plumbing, heating, lighting, ventilation, and other
6-20 housing conditions, to ensure the residents' health, safety,
6-21 comfort, and protection from fire hazard;
6-22 (2) sanitary and related conditions in a facility and
6-23 its surroundings, including water supply, sewage disposal, food
6-24 handling, and general hygiene in order to ensure the residents'
6-25 health, safety, and comfort;
7-1 (3) equipment essential to the residents' health and
7-2 welfare;
7-3 (4) the reporting and investigation of injuries,
7-4 accidents, and unusual accidents and the establishment of other
7-5 policies and procedures necessary to ensure resident safety;
7-6 (5) behavior management, including use of seclusion
7-7 and physical restraints;
7-8 (6) policies and procedures for the control of
7-9 communicable diseases in employees and residents;
7-10 (7) the use and administration of medication in
7-11 conformity with applicable law and rules for pharmacy services;
7-12 (8) specialized nutrition support such as delivery of
7-13 enteral feedings and parenteral nutrients;
7-14 (9) requirements for in-service education of each
7-15 employee who has any contact with residents;
7-16 (10) the regulation of the number and qualification of
7-17 all personnel, including management and professional support
7-18 personnel, responsible for any part of the care given to residents;
7-19 and
7-20 (11) the quality of life of residents.
7-21 Sec. 251.035. REASONABLE TIME TO COMPLY. The board by rule
7-22 shall give a facility that is in operation when a rule or standard
7-23 is adopted under this chapter a reasonable time to comply with the
7-24 rule or standard.
7-25 Sec. 251.036. FIRE SAFETY REQUIREMENTS. (a) A facility
8-1 shall comply with fire safety requirements established under this
8-2 section.
8-3 (b) The board, by rule, shall adopt the fire safety
8-4 standards applicable to the facility. The fire safety standards
8-5 must be the same as the fire safety standards established by an
8-6 edition of the Life Safety Code of the National Fire Protection
8-7 Association. The edition selected by the board must be the same as
8-8 that designated by any federal law or regulation applicable to a
8-9 facility or a portion of a facility. If required by federal law or
8-10 regulation, the edition selected may be different for facilities or
8-11 portions of facilities operated or approved for construction at
8-12 different times.
8-13 (c) The board may not require more stringent fire safety
8-14 standards than those required by federal law and regulation.
8-15 (d) A facility that is licensed under applicable law on
8-16 September 1, 1995, must comply with the fire safety standards,
8-17 including fire safety standards imposed by municipal ordinance,
8-18 applicable to the facility on that date.
8-19 (e) The rules adopted under this section do not prevent a
8-20 facility licensed under this chapter from voluntarily conforming to
8-21 fire safety standards that are compatible with, equal to, or more
8-22 stringent than those adopted by the board.
8-23 (f) Notwithstanding any other provision of this section, a
8-24 municipality may enact additional and more stringent fire safety
8-25 standards applicable to new construction begun on or after
9-1 September 1, 1995.
9-2 Sec. 251.037. POSTING. Each facility shall prominently and
9-3 conspicuously post for display in a public area of the facility
9-4 that is readily available to residents, employees, and visitors:
9-5 (1) the license issued under this chapter;
9-6 (2) a sign prescribed by the department that specifies
9-7 complaint procedures established under this chapter or rules
9-8 adopted under this chapter and that specifies how complaints may be
9-9 registered with the department;
9-10 (3) a notice in a form prescribed by the department
9-11 stating that inspection and related reports are available at the
9-12 facility for public inspection and providing the department's
9-13 toll-free telephone number that may be used to obtain information
9-14 concerning the facility; and
9-15 (4) a concise summary of the most recent inspection
9-16 report relating to the facility.
9-17 Sec. 251.038. INSPECTIONS. (a) The department or the
9-18 department's designee may make any inspection, survey, or
9-19 investigation that it considers necessary and may enter the
9-20 premises of a facility at reasonable times to make an inspection,
9-21 survey, or investigation in accordance with board rules.
9-22 (b) The department is entitled to access to books, records,
9-23 and other documents maintained by or on behalf of a facility to the
9-24 extent necessary to enforce this chapter and the rules adopted
9-25 under this chapter.
10-1 (c) A license holder or an applicant for a license is
10-2 considered to have consented to entry and inspection of the
10-3 facility by a representative of the department in accordance with
10-4 this chapter.
10-5 (d) The department shall establish procedures to preserve
10-6 all relevant evidence of conditions the department finds during an
10-7 inspection, survey, or investigation that the department reasonably
10-8 believes threaten the health and safety of a resident. The
10-9 procedures may include photography or photocopying of relevant
10-10 documents, such as a license holder's notes, a physician's orders,
10-11 and pharmacy records, for use in any legal proceeding.
10-12 (e) When photographing a resident, the department:
10-13 (1) shall respect the privacy of the resident to the
10-14 greatest extent possible; and
10-15 (2) may not make public the identity of the resident.
10-16 (f) A facility, an officer or employee of a facility, and a
10-17 resident's attending physician are not civilly liable for
10-18 surrendering confidential or private material under this section,
10-19 including physician's orders, pharmacy records, notes and memoranda
10-20 of a state office, and resident files.
10-21 (g) The department shall establish in clear and concise
10-22 language a form to summarize each inspection report and complaint
10-23 investigation report.
10-24 (h) The department shall establish proper procedures to
10-25 ensure that copies of all forms and reports under this section are
11-1 made available to consumers, service recipients, and the relatives
11-2 of service recipients as the department considers proper.
11-3 Sec. 251.039. UNANNOUNCED INSPECTIONS. (a) Each licensing
11-4 period, the department shall conduct at least two unannounced
11-5 inspections of each facility.
11-6 (b) In order to ensure continuous compliance, the department
11-7 shall randomly select a sufficient percentage of facilities for
11-8 unannounced inspections to be conducted between 5 p.m. and 8 a.m.
11-9 Those inspections must be cursory to avoid to the greatest extent
11-10 feasible any disruption of the residents.
11-11 (c) The department may require additional inspections.
11-12 (d) As deemed appropriate and necessary by the department,
11-13 the department may invite at least one person as a citizen advocate
11-14 to participate in inspections. The invited advocate must be an
11-15 individual who has an interest in or who is employed by or
11-16 affiliated with an organization or entity that represents,
11-17 advocates for, or serves individuals with mental retardation or a
11-18 related condition.
11-19 Sec. 251.040. DISCLOSURE OF UNANNOUNCED INSPECTIONS;
11-20 CRIMINAL PENALTY. (a) Except as expressly provided by this
11-21 chapter, a person commits an offense if the person intentionally,
11-22 knowingly, or recklessly discloses to an unauthorized person the
11-23 date, time, or any other fact about an unannounced inspection of a
11-24 facility before the inspection occurs.
11-25 (b) In this section, "unauthorized person" does not include:
12-1 (1) the department;
12-2 (2) the office of the attorney general;
12-3 (3) a representative of an agency or organization when
12-4 a Medicaid survey is made concurrently with a licensing inspection;
12-5 or
12-6 (4) any other person or entity authorized by law to
12-7 make an inspection or to accompany an inspector.
12-8 (c) An offense under this section is a Class B misdemeanor.
12-9 (d) A person convicted under this section is not eligible
12-10 for state employment.
12-11 Sec. 251.041. LICENSING SURVEYS. The department shall
12-12 provide a team to conduct surveys to validate findings of licensing
12-13 surveys. The purpose of a validation survey is to assure that
12-14 survey teams throughout the state survey in a fair and consistent
12-15 manner. A facility subjected to a validation survey must correct
12-16 deficiencies cited by the validation team but is not subject to
12-17 punitive action for those deficiencies.
12-18 (Sections 251.042-251.060 reserved for expansion
12-19 SUBCHAPTER C. GENERAL ENFORCEMENT
12-20 Sec. 251.061. EMERGENCY SUSPENSION OR CLOSING ORDER. (a)
12-21 The department shall suspend a facility's license or order an
12-22 immediate closing of part of the facility if:
12-23 (1) the department finds the facility is operating in
12-24 violation of the standards prescribed by this chapter; and
12-25 (2) the violation creates an immediate threat to the
13-1 health and safety of a resident.
13-2 (b) The board by rule shall provide for the placement of
13-3 residents during the facility's suspension or closing to ensure
13-4 their health and safety.
13-5 (c) An order suspending a license or closing a part of a
13-6 facility under this section is immediately effective on the date on
13-7 which the license holder receives written notice or a later date
13-8 specified in the order.
13-9 (d) An order suspending a license or ordering an immediate
13-10 closing of a part of a facility is valid for 10 days after the
13-11 effective date of the order.
13-12 Sec. 251.062. INJUNCTION. (a) The department may petition a
13-13 district court for a temporary restraining order to restrain a
13-14 person from continuing a violation of the standards prescribed by
13-15 this chapter if the department finds that the violation creates an
13-16 immediate threat to the health and safety of the facility's
13-17 residents.
13-18 (b) A district court, on petition of the department, may by
13-19 injunction:
13-20 (1) prohibit a person from continuing a violation of
13-21 the standards or licensing requirements prescribed by this chapter;
13-22 (2) restrain or prevent the establishment, conduct,
13-23 management, or operation of a facility without a license issued
13-24 under this chapter; or
13-25 (3) grant the injunctive relief warranted by the facts
14-1 on a finding by the court that a person is violating the standards
14-2 or licensing requirements prescribed by this chapter.
14-3 (c) The attorney general, on request by the department,
14-4 shall institute and conduct in the name of the state a suit
14-5 authorized by this section.
14-6 (d) A suit for a temporary restraining order or other
14-7 injunctive relief must be brought in the county in which the
14-8 alleged violation occurs.
14-9 Sec. 251.063. LICENSE REQUIREMENTS; CRIMINAL PENALTY. (a)
14-10 A person commits an offense if the person violates Section 251.031.
14-11 (b) An offense under this section is punishable by a fine of
14-12 not more than $1,000 for the first offense and not more than $500
14-13 for each subsequent offense.
14-14 (c) Each day of a continuing violation after conviction is a
14-15 separate offense.
14-16 Sec. 251.064. CIVIL PENALTY. (a) A person who violates this
14-17 chapter or a rule adopted under this chapter is liable for a civil
14-18 penalty of not less than $100 or more than $10,000 for each
14-19 violation if the department determines the violation threatens the
14-20 health and safety of a resident.
14-21 (b) Each day of a continuing violation constitutes a
14-22 separate ground for recovery.
14-23 Sec. 251.065. ADMINISTRATIVE PENALTY. (a) The department
14-24 may assess an administrative penalty against a facility that
14-25 violates this chapter or a rule adopted under this chapter as
15-1 specified by this section.
15-2 (b) The department shall establish gradations of penalties
15-3 and amounts of penalties in accordance with the relative
15-4 seriousness of the violations.
15-5 (c) In determining the amount of a penalty, the department
15-6 shall consider any matter justice may require, including:
15-7 (1) the gradations of penalties established under
15-8 Subsection (b);
15-9 (2) the seriousness of the violation, including the
15-10 nature, circumstances, extent, and gravity of the prohibited act
15-11 and the hazard or potential hazard created by the act to the health
15-12 and safety of the public;
15-13 (3) the history of previous violations;
15-14 (4) the amount necessary to deter future violations;
15-15 (5) efforts made to correct the violation; and
15-16 (6) efforts by the department through other sanction
15-17 processes to ensure facility compliance with this chapter, the
15-18 rules adopted under this chapter, and any other applicable
15-19 regulations.
15-20 (d) The penalty may not exceed $5,000 for each violation.
15-21 Each day of a continuing violation constitutes a separate
15-22 violation.
15-23 (e) The department shall establish rules governing the
15-24 assessment of administrative penalties, including rules
15-25 establishing the manner in which a facility is notified of the
16-1 violation, establishing an appeal and hearing process, and
16-2 governing payment and refund of the penalty.
16-3 (Sections 251.066-251.090 reserved for expansion
16-4 SUBCHAPTER D. TRUSTEES FOR FACILITIES
16-5 Sec. 251.091. FINDINGS AND PURPOSE. (a) The legislature
16-6 finds that the closing of an intermediate care facility for
16-7 violations of laws and rules may:
16-8 (1) in certain circumstances, have an adverse effect
16-9 on both the facility's residents and their families; and
16-10 (2) in some cases, result in a lack of readily
16-11 available funds to meet the basic needs of the residents for food,
16-12 shelter, medication, and personal services.
16-13 (b) The purpose of this subchapter is to provide for:
16-14 (1) the appointment of a trustee to assume the
16-15 operations of the facility in a manner that emphasizes resident
16-16 care and reduces resident trauma; and
16-17 (2) a fund to assist a court-appointed trustee in
16-18 meeting the basic needs of the residents.
16-19 Sec. 251.092. APPOINTMENT BY AGREEMENT. (a) A person
16-20 holding a controlling interest in a facility may, at any time,
16-21 request the department to assume the operation of the facility
16-22 through the appointment of a trustee under this subchapter.
16-23 (b) After receiving the request, the department may enter
16-24 into an agreement providing for the appointment of a trustee to
16-25 take charge of the facility under conditions considered appropriate
17-1 by both parties if the department considers the appointment
17-2 desirable.
17-3 (c) An agreement under this section must:
17-4 (1) specify all terms and conditions of the trustee's
17-5 appointment and authority; and
17-6 (2) preserve all rights of the residents as granted by
17-7 law.
17-8 (d) The agreement terminates at the time specified by the
17-9 parties or when either party notifies the other in writing that the
17-10 party wishes to terminate the appointment agreement.
17-11 Sec. 251.093. INVOLUNTARY APPOINTMENT. (a) The department
17-12 may request the attorney general to bring an action in the name and
17-13 on behalf of the state for the appointment of a trustee to operate
17-14 a facility if:
17-15 (1) the facility is operating without a license;
17-16 (2) the department has suspended or revoked the
17-17 facility's license;
17-18 (3) license suspension or revocation procedures
17-19 against the facility are pending and the department determines that
17-20 an imminent threat to the health and safety of the residents
17-21 exists;
17-22 (4) the department determines that an emergency exists
17-23 that presents an immediate threat to the health and safety of the
17-24 residents; or
17-25 (5) the facility is closing and arrangements for
18-1 relocation of the residents to other licensed facilities have not
18-2 been made before closure.
18-3 (b) A trustee appointed under Subsection (a)(5) may only
18-4 ensure an orderly and safe relocation of the facility's residents
18-5 as quickly as possible.
18-6 (c) After a hearing, a court shall appoint a trustee to take
18-7 charge of a facility if the court finds that involuntary
18-8 appointment of a trustee is necessary.
18-9 (d) If possible, the court shall appoint as trustee an
18-10 individual whose background includes mental retardation service
18-11 administration.
18-12 (e) Venue for an action brought under this section is in
18-13 Travis County.
18-14 Sec. 251.094. FEE; RELEASE OF FUNDS. (a) A trustee
18-15 appointed under this subchapter is entitled to a reasonable fee as
18-16 determined by the court.
18-17 (b) The trustee may petition the court to order the release
18-18 to the trustee of any payment owed the trustee for care and
18-19 services provided to the residents if the payment has been
18-20 withheld, including a payment withheld by the department.
18-21 (c) Withheld payments may include payments withheld by a
18-22 governmental agency or other entity during the appointment of the
18-23 trustee, such as payments:
18-24 (1) for Medicaid or insurance;
18-25 (2) by a third party; or
19-1 (3) for medical expenses borne by the residents.
19-2 Sec. 251.095. EMERGENCY ASSISTANCE FUNDS; ADDITIONAL
19-3 LICENSING FEE. (a) In addition to the licensing and renewal fee
19-4 collected under Subchapter B, the department may collect an annual
19-5 fee to be used to make emergency assistance funds available to a
19-6 facility licensed under this chapter.
19-7 (b) The fee collected under this section shall be in the
19-8 amount prescribed by Section 242.097(b) and shall be deposited to
19-9 the credit of the nursing and convalescent home trust fund
19-10 established under Section 242.096.
19-11 (c) The department may disburse funds from the nursing and
19-12 convalescent home trust fund to a facility licensed under this
19-13 chapter for the purposes and in the manner a disbursement may be
19-14 made under Section 242.096.
19-15 (d) A court may order the department to disburse emergency
19-16 assistance funds to a facility licensed under this chapter in
19-17 accordance with Section 242.096(c).
19-18 Sec. 251.096. REIMBURSEMENT. (a) A facility that receives
19-19 emergency assistance funds under this subchapter shall reimburse
19-20 the department for the amounts received, including interest.
19-21 (b) Interest on unreimbursed amounts begins to accrue on the
19-22 date on which the funds are disbursed to the facility. The rate of
19-23 interest is the rate determined under Article 1.05, Title 79,
19-24 Revised Statutes (Article 5069-1.05, Vernon's Texas Civil
19-25 Statutes), to be applicable to judgments rendered during the month
20-1 in which the money is disbursed to the facility.
20-2 (c) The owner of the facility when the trustee is appointed
20-3 is responsible for the reimbursement.
20-4 (d) The amount that remains unreimbursed on the first
20-5 anniversary of the date on which the funds are received is
20-6 delinquent and the department may determine that the facility is
20-7 ineligible for a Medicaid provider contract.
20-8 (e) The department shall deposit the reimbursement and
20-9 interest received under this section to the credit of the nursing
20-10 and convalescent home trust fund.
20-11 (f) The attorney general shall institute an action to
20-12 collect the funds due under this section at the request of the
20-13 department. Venue for an action brought under this section is in
20-14 Travis County.
20-15 Sec. 251.097. NOTIFICATION OF CLOSING. (a) A facility that
20-16 is closing temporarily or permanently, voluntarily or
20-17 involuntarily, shall notify the residents of the closing and make
20-18 reasonable efforts to notify in writing each resident's nearest
20-19 relative or the person responsible for the resident's support
20-20 within a reasonable time before the closing.
20-21 (b) If the closing of a facility is ordered by the
20-22 department or is in any other way involuntary, the facility shall
20-23 make the notification, orally or in writing, immediately on
20-24 receiving notice of the closing.
20-25 (c) If the closing of a facility is voluntary, the facility
21-1 shall make the notification not later than one week after the date
21-2 on which the decision to close is made.
21-3 (Sections 251.098-251.120 reserved for expansion
21-4 SUBCHAPTER E. REPORTS OF ABUSE AND NEGLECT
21-5 Sec. 251.121. DEFINITION. In this subchapter, "designated
21-6 agency" means an agency designated by a court to be responsible for
21-7 the protection of a resident who is the subject of a report of
21-8 abuse or neglect.
21-9 Sec. 251.122. REPORTING OF ABUSE AND NEGLECT. (a) A
21-10 person, including an owner or employee of a facility, who has cause
21-11 to believe that the physical or mental health or welfare of a
21-12 resident has been or may be adversely affected by abuse or neglect
21-13 caused by another person shall report the abuse or neglect to the
21-14 department, to a designated agency, or to both the department and
21-15 the designated agency, as specified in rules adopted by the
21-16 department.
21-17 (b) Each facility shall require each employee of the
21-18 facility, as a condition of employment with the facility, to sign a
21-19 statement that the employee realizes that the employee may be
21-20 criminally liable for failure to report abuse or neglect.
21-21 (c) A person shall make an oral report immediately on
21-22 learning of abuse or neglect and shall make a written report to the
21-23 same agency not later than the fifth day after the oral report is
21-24 made.
21-25 Sec. 251.123. CONTENTS OF REPORT. (a) A report of abuse or
22-1 neglect is nonaccusatory and reflects the reporting person's belief
22-2 that a resident has been or will be abused or neglected or has died
22-3 of abuse or neglect.
22-4 (b) The report must contain:
22-5 (1) the name and address of the resident;
22-6 (2) the name and address of the person responsible for
22-7 the care of the resident, if available; and
22-8 (3) other relevant information.
22-9 Sec. 251.124. ANONYMOUS REPORTS OF ABUSE OR NEGLECT. (a)
22-10 An anonymous report of abuse or neglect, although not encouraged,
22-11 shall be received and acted on in the same manner as an
22-12 acknowledged report.
22-13 (b) A local or state law enforcement agency that receives a
22-14 report of abuse or neglect shall refer the report to the department
22-15 or the designated agency.
22-16 Sec. 251.125. INVESTIGATION AND REPORT OF RECEIVING AGENCY.
22-17 (a) The department or the designated agency shall make a thorough
22-18 investigation promptly after receiving either the oral or written
22-19 report.
22-20 (b) The primary purpose of the investigation is the
22-21 protection of the resident.
22-22 (c) In the investigation, the department or the designated
22-23 agency shall determine:
22-24 (1) the nature, extent, and cause of the abuse or
22-25 neglect;
23-1 (2) the identity of the person responsible for the
23-2 abuse or neglect;
23-3 (3) the names and conditions of the other residents;
23-4 (4) an evaluation of the persons responsible for the
23-5 care of the residents;
23-6 (5) the adequacy of the facility environment; and
23-7 (6) any other information required by the department.
23-8 (d) The investigation may include a visit to the resident's
23-9 facility and an interview with the resident, if considered
23-10 appropriate by the department.
23-11 (e) If the department attempts to carry out an on-site
23-12 investigation and it is shown that admission to the facility or any
23-13 place where a resident is located cannot be obtained, a probate or
23-14 county court shall order the person responsible for the care of the
23-15 resident or the person in charge of a place where the resident is
23-16 located to allow admission for the investigation and any interview
23-17 with the resident.
23-18 (f) Before the completion of the investigation, the
23-19 department shall file a petition for temporary care and protection
23-20 of the resident if the department determines that immediate removal
23-21 is necessary to protect the resident from further abuse or neglect.
23-22 (g) The department or the designated agency shall make a
23-23 complete written report of the investigation and submit the report
23-24 and its recommendations to the district attorney and the
23-25 appropriate law enforcement agency and, if necessary, to the
24-1 department on the department's request.
24-2 Sec. 251.126. CONFIDENTIALITY. A report, record, or working
24-3 paper used or developed in an investigation made under this
24-4 subchapter is confidential and may be disclosed only for purposes
24-5 consistent with the rules adopted by the board or the designated
24-6 agency.
24-7 Sec. 251.127. IMMUNITY. (a) A person who reports an act of
24-8 abuse or neglect as provided by this subchapter is immune from
24-9 civil or criminal liability that, in the absence of the immunity,
24-10 might result from making the report.
24-11 (b) The immunity provided by this section extends to
24-12 participation in any judicial proceeding that results from the
24-13 report.
24-14 (c) This section does not apply to a person who reports in
24-15 violation of Section 251.131.
24-16 Sec. 251.128. PRIVILEGED COMMUNICATIONS. In a proceeding
24-17 regarding the abuse or neglect of a resident or the cause of any
24-18 abuse or neglect, evidence may not be excluded on the ground of
24-19 privileged communication except in the case of a communication
24-20 between an attorney and client.
24-21 Sec. 251.129. CENTRAL REGISTRY. (a) The department shall
24-22 maintain in the city of Austin a central registry of reported cases
24-23 of resident abuse or neglect.
24-24 (b) The board may adopt rules necessary to carry out this
24-25 section.
25-1 (c) The rules shall provide for cooperation with hospitals
25-2 and clinics in the exchange of reports of resident abuse or
25-3 neglect.
25-4 Sec. 251.130. FAILURE TO REPORT; CRIMINAL PENALTY. (a) A
25-5 person commits an offense if the person has cause to believe that a
25-6 resident's physical or mental health or welfare has been or may be
25-7 further adversely affected by abuse or neglect and knowingly fails
25-8 to report in accordance with Section 251.122.
25-9 (b) An offense under this section is a Class A misdemeanor.
25-10 Sec. 251.131. BAD FAITH, MALICIOUS, OR RECKLESS REPORTING;
25-11 CRIMINAL PENALTY. (a) A person commits an offense if the person
25-12 reports under this subchapter in bad faith, maliciously, or
25-13 recklessly.
25-14 (b) An offense under this section is a Class A misdemeanor.
25-15 (c) The criminal penalty provided by this section is in
25-16 addition to any civil penalties for which the person may be liable.
25-17 Sec. 251.132. SUIT FOR RETALIATION. (a) A person has a
25-18 cause of action against a facility, or the owner or an employee of
25-19 a facility, that suspends or terminates the employment of the
25-20 person or otherwise disciplines or discriminates against the person
25-21 for reporting the abuse or neglect of a resident to the person's
25-22 supervisors, the department, or a law enforcement agency.
25-23 (b) The petitioner may recover:
25-24 (1) the greater of $1,000 or actual damages, including
25-25 damages for mental anguish even if an injury other than mental
26-1 anguish is not shown and damages for lost wages if the petitioner's
26-2 employment was suspended or terminated;
26-3 (2) exemplary damages;
26-4 (3) court costs; and
26-5 (4) reasonable attorney's fees.
26-6 (c) In addition to the amounts that may be recovered under
26-7 Subsection (b), a person whose employment is suspended or
26-8 terminated is entitled to reinstatement in the person's former
26-9 position.
26-10 (d) The petitioner, not later than the 90th day after the
26-11 date on which the person's employment is suspended or terminated,
26-12 must bring suit or notify the Texas Employment Commission of the
26-13 petitioner's intent to sue under this section. A petitioner who
26-14 notifies the Texas Employment Commission under this subsection must
26-15 bring suit not later than the 90th day after the date of the
26-16 delivery of the notice to the commission. On receipt of the
26-17 notice, the commission shall notify the facility of the
26-18 petitioner's intent to bring suit under this section.
26-19 (e) The petitioner has the burden of proof, except that
26-20 there is a rebuttable presumption that the person's employment was
26-21 suspended or terminated for reporting abuse or neglect if the
26-22 person is suspended or terminated within 60 days after the date on
26-23 which the person reported in good faith.
26-24 (f) A suit under this section may be brought in the district
26-25 court of the county in which:
27-1 (1) the plaintiff resides;
27-2 (2) the plaintiff was employed by the defendant; or
27-3 (3) the defendant conducts business.
27-4 (g) Each facility shall require each employee of the
27-5 facility, as a condition of employment with the facility, to sign a
27-6 statement that the employee understands the employee's rights under
27-7 this section. The statement must be part of the statement required
27-8 under Section 251.122(b). If a facility does not require an
27-9 employee to read and sign the statement, the periods prescribed by
27-10 Subsection (d) do not apply, and the petitioner must bring suit not
27-11 later than the second anniversary of the date on which the person's
27-12 employment is suspended or terminated.
27-13 Sec. 251.133. REPORTS RELATING TO RESIDENT DEATHS. (a) A
27-14 facility licensed under this chapter shall submit a report to the
27-15 department concerning deaths of residents of the facility. The
27-16 report must be submitted not later than the 10th working day after
27-17 the last day of each month in which a resident of the facility
27-18 dies. The facility must also report a death of a resident
27-19 occurring within 24 hours after the resident is transferred from
27-20 the facility to a hospital.
27-21 (b) The facility must make the report on a form prescribed
27-22 by the department. The report must contain the name and social
27-23 security number of the deceased.
27-24 (c) The department shall correlate reports under this
27-25 section with death certificate information to develop data relating
28-1 to the:
28-2 (1) name and age of the deceased;
28-3 (2) official cause of death listed on the death
28-4 certificate;
28-5 (3) date, time, and place of death; and
28-6 (4) name and address of the facility in which the
28-7 deceased resided.
28-8 (d) Unless specified by board rule, a record under this
28-9 section is confidential and not subject to the provisions of
28-10 Chapter 552, Government Code.
28-11 (Sections 251.134-251.150 reserved for expansion
28-12 SUBCHAPTER F. MEDICATION
28-13 Sec. 251.151. ADMINISTRATION OF MEDICATION. The department
28-14 shall adopt rules relating to the administration of medication in
28-15 intermediate care facilities.
28-16 (Sections 251.152-251.180 reserved for expansion
28-17 SUBCHAPTER G. RESPITE CARE
28-18 Sec. 251.181. DEFINITIONS. In this subchapter:
28-19 (1) "Plan of care" means a written description of the
28-20 care, training, and treatment needed by a person during respite
28-21 care.
28-22 (2) "Respite care" means the provision by a facility
28-23 to a person, for not more than two weeks for each stay in the
28-24 facility, of:
28-25 (A) room and board; and
29-1 (B) care at the level ordinarily provided for
29-2 residents.
29-3 Sec. 251.182. RESPITE CARE. (a) A facility licensed under
29-4 this chapter may provide respite care for an individual who has a
29-5 diagnosis of mental retardation or a related condition without
29-6 regard to whether the individual is eligible to receive
29-7 intermediate care services under federal law.
29-8 (b) The board may adopt rules for the regulation of respite
29-9 care provided by a facility licensed under this chapter.
29-10 Sec. 251.183. PLAN OF CARE. (a) The facility and the
29-11 person arranging the care must agree on the plan of care and the
29-12 plan must be filed at the facility before the facility admits the
29-13 person for the care.
29-14 (b) The plan of care must be signed by:
29-15 (1) a licensed physician if the person for whom the
29-16 care is arranged needs medical care or treatment; or
29-17 (2) the person arranging for the respite care if
29-18 medical care or treatment is not needed.
29-19 (c) The facility may keep an agreed plan of care for a
29-20 person for not longer than six months from the date on which it is
29-21 received. During that period, the facility may admit the person as
29-22 frequently as is needed and as accommodations are available.
29-23 Sec. 251.184. NOTIFICATION. A facility that offers respite
29-24 care shall notify the department in writing that it offers respite
29-25 care.
30-1 Sec. 251.185. INSPECTIONS. The department, at the time of
30-2 an ordinary licensing inspection or at other times determined
30-3 necessary by the department, shall inspect a facility's records of
30-4 respite care services, physical accommodations available for
30-5 respite care, and the plan of care records to ensure that the
30-6 respite care services comply with the licensing standards of this
30-7 chapter and with any rules the board may adopt to regulate respite
30-8 care services.
30-9 Sec. 251.186. SUSPENSION. (a) The department may require a
30-10 facility to cease providing respite care if the department
30-11 determines that the respite care does not meet the standards
30-12 required by this chapter and that the facility cannot comply with
30-13 those standards in the respite care it provides.
30-14 (b) The department may suspend the license of a facility
30-15 that continues to provide respite care after receiving a written
30-16 order from the department to cease.
30-17 SECTION 2. Section 242.002(6), Health and Safety Code, is
30-18 amended to read as follows:
30-19 (6) "Institution" means<:>
30-20 <(A)> an establishment that:
30-21 (A) <(i)> furnishes, in one or more facilities,
30-22 food and shelter to four or more persons who are unrelated to the
30-23 proprietor of the establishment; and
30-24 (B) <(ii)> provides minor treatment under the
30-25 direction and supervision of a physician licensed by the Texas
31-1 State Board of Medical Examiners, or other services that meet some
31-2 need beyond the basic provision of food, shelter, and laundry<; or>
31-3 <(B) a foster care type residential facility
31-4 that provides room and board to fewer than five persons who:>
31-5 <(i) are not related within the second
31-6 degree of consanguinity or affinity, as determined under Article
31-7 5996h, Revised Statutes, to the proprietor; and>
31-8 <(ii) because of their physical or mental
31-9 limitation, or both, require a level of care and services suitable
31-10 to their needs that contributes to their health, comfort, and
31-11 welfare>.
31-12 SECTION 3. Section 242.003, Health and Safety Code, is
31-13 amended to read as follows:
31-14 Sec. 242.003. EXEMPTIONS. <(a)> Except as otherwise
31-15 provided, this chapter does not apply to:
31-16 (1) a hotel or other similar place that furnishes only
31-17 food, lodging, or both, to its guests;
31-18 (2) a hospital;
31-19 (3) an establishment conducted by or for the adherents
31-20 of a well-recognized church or religious denomination for the
31-21 purpose of providing facilities for the care or treatment of the
31-22 sick who depend exclusively on prayer or spiritual means for
31-23 healing, without the use of any drug or material remedy, if the
31-24 establishment complies with safety, sanitary, and quarantine laws
31-25 and rules;
32-1 (4) an establishment that furnishes, in addition to
32-2 food, shelter, and laundry, only baths and massages;
32-3 (5) an institution operated by a person licensed by
32-4 the Texas Board of Chiropractic Examiners;
32-5 (6) a facility that:
32-6 (A) primarily engages in training, habilitation,
32-7 rehabilitation, or education of clients or residents;
32-8 (B) is operated under the jurisdiction of a
32-9 state or federal agency, including the Texas Rehabilitation
32-10 Commission, Texas Department of Mental Health and Mental
32-11 Retardation, Texas Department of Human Services, Texas Commission
32-12 for the Blind, Texas Commission on Alcohol and Drug Abuse,
32-13 institutional division of the Texas Department of Criminal Justice,
32-14 and the Veteran's Administration; and
32-15 (C) is certified through inspection or
32-16 evaluation as meeting the standards established by the state or
32-17 federal agency; <and>
32-18 (7) a foster care type residential facility that
32-19 serves fewer than five persons and operates under rules adopted by
32-20 the Texas Department of Human Services; and
32-21 (8) a facility licensed under Chapter 251 or exempt
32-22 from licensure under Section 251.003.
32-23 <(b) An institution described by Section 242.002(6)(C) is
32-24 subject to licensing under this chapter only if written application
32-25 is made for participation in the intermediate care program under
33-1 federal law.>
33-2 SECTION 4. (a) Except as provided by Subsection (b) of this
33-3 section, this Act takes effect September 1, 1995.
33-4 (b) Section 2 of this Act takes effect January 1, 1996.
33-5 SECTION 5. (a) Notwithstanding Sections 251.031 and
33-6 251.063, Health and Safety Code, as added by this Act:
33-7 (1) a facility is not required to be licensed under
33-8 Chapter 251, Health and Safety Code, as added by this Act, before
33-9 January 1, 1996; and
33-10 (2) a facility that is required to be licensed under
33-11 that chapter and that is, on the effective date of this Act,
33-12 licensed under Chapter 242, Health and Safety Code, may continue to
33-13 operate under the license issued under Chapter 242 until the later
33-14 of:
33-15 (A) December 31, 1995; or
33-16 (B) the date on which the license is subject to
33-17 renewal.
33-18 (b) A license issued under Chapter 242, Health and Safety
33-19 Code, to an institution that is required to be licensed as a
33-20 facility under Chapter 251, Health and Safety Code, as added by
33-21 this Act, may not be renewed after December 1, 1995.
33-22 SECTION 6. The importance of this legislation and the
33-23 crowded condition of the calendars in both houses create an
33-24 emergency and an imperative public necessity that the
33-25 constitutional rule requiring bills to be read on three several
34-1 days in each house be suspended, and this rule is hereby suspended.