By Coleman, Maxey H.B. No. 3118 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the amendment of Subtitle B, Title 4, Health and Safety 1-3 Code, by adding Chapter 251 to read as follows: 1-4 Chapter 251. Intermediate Care Facilities for the Mentally 1-5 Retarded (ICF/MR) 1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-7 SECTION 1. Sections 251.001 through 251.051, Health and 1-8 Safety Code are created to read as follows: 1-9 Section 251.001. Purpose. The purpose of this chapter is to 1-10 promote the public health, safety, and welfare by providing for the 1-11 development, establishment, and enforcement of standards for the 1-12 provision of services to individuals residing in Intermediate Care 1-13 Facilities for the Mentally Retarded (ICF/MR) and the 1-14 establishment, construction, maintenance, and operation of 1-15 facilities providing this service that, in light of advancing 1-16 knowledge, will promote quality in the delivery of services and 1-17 treatment of residents. 1-18 Section 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 which the department may contract with to perform specific, 2-1 identified duties related to the fulfillment of responsibilities in 2-2 this chapter. 2-3 (4) "Government unit" means the state or a political 2-4 subdivision of the state, including a county or municipality. 2-5 (5) "Facility" or "Home" means: 2-6 (A) and establishment that: 2-7 (i) furnishes, in one or more facilities, 2-8 food and shelter to four or more persons, who are unrelated to the 2-9 proprietor of the establishment; and who have a diagnosis of mental 2-10 retardation or a related condition. 2-11 (6) "ICF/MR" means Intermediate Care Facility for the 2-12 Mentally Retarded. 2-13 (7) "Person" means an individual, firm, partnership, 2-14 corporation, association, or joint stock company, and includes a 2-15 legal successor of those entities. 2-16 (8) "Resident" means an individual, including a 2-17 client, who resides in an ICF/MR. 2-18 Section 251.003. Directory of Licensed and Certified 2-19 Facilities. (a) The department and/or its designee shall prepare 2-20 and publish, at least, annually a directory of all licensed and 2-21 certified facilities. 2-22 (b) The directory must contain: 2-23 (1) the name and address of the facility; 2-24 (2) the name of the proprietor or sponsoring 2-25 organization; and 3-1 (3) other pertinent data that the department considers 3-2 useful and beneficial to those persons interested in facilities 3-3 operated in accordance with this chapter. 3-4 (c) The department shall make copies of the directory 3-5 available to the public. 3-6 Section 251.004. Federal Funds. The department may accept 3-7 and use any funds allocated by the federal government to the 3-8 department for administrative expenses. 3-9 Section 251.005. Language Requirements Prohibited. A 3-10 facility may not prohibit a resident or employee from communicating 3-11 in the person's native language with another resident or employee 3-12 for the purpose of acquiring care, training and/or treatment. 3-13 Section 251.006. Rights of Residents. (a) Each facility 3-14 shall implement and enforce Chapter 102, Human Resource Code. 3-15 Section 251.007. Paperwork Reduction Rules 3-16 (a) The department and its designee shall: 3-17 (1) adopt rules to reduce the amount of paperwork a 3-18 facility must complete and retain; and 3-19 (2) attempt to reduce the amount of paperwork to the 3-20 minimum amount required by state and federal law unless the 3-21 reduction would jeopardize resident safety. 3-22 (b) The department, its designee and providers shall work 3-23 together to review rules and propose changes in paperwork 3-24 requirements so that additional time is available for direct 3-25 resident care. 4-1 Section 251.008. Rules. (a) The department shall adopt 4-2 rules related to the administration and implementation of this 4-3 chapter. 4-4 Section 251.009. License Required. A person or governmental 4-5 unit, acting severally or jointly with any other person or 4-6 governmental unit, may not establish, conduct, or maintain a 4-7 facility in this state without a license issued under this chapter. 4-8 The board shall adopt rules necessary to implement sections 4-9 251.009-251.011 of this subchapter including requirements for 4-10 related fees and denial, suspension, or revocation of a license. 4-11 Section 251.010. License Application. (a) An application 4-12 for a license is made to the Department of Human Services on a form 4-13 provided by the department and must be accompanied by the license 4-14 fee. 4-15 (b) The application must contain information that the 4-16 department requires, which may include affirmative evidence of 4-17 ability to comply with the standards and rules adopted under this 4-18 chapter. 4-19 Section 251.011. Issuance and Renewal of License. (a) 4-20 After receiving an application for a license, the department shall 4-21 issue the license if, after inspection and investigation, it finds 4-22 that the applicant and facility meet the requirements established 4-23 under this chapter. 4-24 (b) The department may issues a license only for: 4-25 (1) the premises and persons or governmental unit 5-1 named in the application; and 5-2 (2) the maximum number of beds specified in the 5-3 application. 5-4 (c) A license may not be transferred or assigned. 5-5 (d) A license is renewable annually after: 5-6 (1) an inspection; and 5-7 (2) payment of the annual license fee. 5-8 Section 251.012. Minimum Standards. The board may adopt, 5-9 publish, and enforce minimum standards relating to: 5-10 (1) the construction or remodeling of a facility, 5-11 including plumbing, heating, lighting, ventilation, and other 5-12 housing conditions, to ensure the residents' health, safety, 5-13 comfort, and protection from fire hazard; 5-14 (2) sanitary and related conditions in a facility and 5-15 its surroundings, including water supply, sewage disposal, food 5-16 handling, and general hygiene in order to ensure the residents' 5-17 health, safety, and comfort; 5-18 (3) pre-certification training for new providers of 5-19 services; 5-20 (4) the reporting and investigation of injuries, 5-21 accidents, and unusual accidents to include the establishment of 5-22 other policies and procedures necessary to ensure resident safety; 5-23 (5) behavior management, specifically seclusion and 5-24 use of physical retraints; 5-25 (6) policies and procedures for the control of 6-1 communicable diseases in employees and residents; 6-2 (7) the use and administration of medication in 6-3 conformity with applicable law and rules to include pharmacy 6-4 services; and. 6-5 (8) specialized nutrition support such as delivery of 6-6 enteral feedings and parental nutrients. 6-7 Section 251.013. Reasonable Time to Comply. The board by 6-8 rule shall give a facility that is in operation when a rule or 6-9 standard is adopted under this chapter a reasonable time to comply 6-10 with the rule or standard. 6-11 Section 251.014. Fire Safety Requirements. (a) An 6-12 institution licensed under this chapter shall comply with the 1985 6-13 edition of the Code for Safety to Life from Fire in Buildings and 6-14 Structures, known as the Life Safety Code (Pamphlet No. 101) of the 6-15 National Fire Protection Association. The department shall 6-16 determine which occupancy chapter of that code is applicable to the 6-17 facility. 6-18 Section 251.015. Posting. Each facility shall prominently 6-19 and conspicuously post for display in a public area of the facility 6-20 that is readily available to residents, employees, and visitors. 6-21 (1) the license issued under this chapter 6-22 (2) a sign prescribed by the department that specifies 6-23 complaint procedures established under this chapter or rules 6-24 adopted under this chapter and that specifies how complaints may be 6-25 registered with the department; 7-1 (3) a notice in a form prescribed by the department 7-2 stating that inspection and related reports are available at the 7-3 facility for public inspection and providing the department's 7-4 toll-free telephone number that may be used to obtain information 7-5 concerning the facility; and 7-6 (4) a concise summary of the most recent inspection 7-7 report relating to the facility. 7-8 Section 251.016. Inspections. (a) The Department of Human 7-9 Services or the department's representative may make any 7-10 inspection, survey, or investigation that it considers necessary 7-11 and may enter the premises of a facility at reasonable times to 7-12 make an inspection, survey, or investigation in accordance with 7-13 board rules. 7-14 (b) The department is entitled to access to books, records, 7-15 and other documents maintained by or on behalf of a facility to the 7-16 extent necessary to enforce this chapter and the rules adopted 7-17 under this chapter. 7-18 (c) A license holder, or an applicant for a license is 7-19 considered to have consented to entry and inspection of the 7-20 facility by a representative of the department in accordance with 7-21 this chapter. 7-22 (d) The department shall establish procedures to preserve 7-23 all relevant evidence of conditions found during an inspection, 7-24 survey, or investigation that the department reasonably believes 7-25 threaten the health and safety of a resident, including photography 8-1 of relevant documents, such as a license holder's notes, a 8-2 physician's orders, and pharmacy records, for use in any legal 8-3 proceeding. 8-4 (e) When photographing a resident, the department: 8-5 (1) shall respect the privacy of the resident to the 8-6 greatest extent possible; and 8-7 (2) may not make public the identity of the resident. 8-8 (f) A facility, an officer or employee of a facility, and a 8-9 resident's attending physician are not civilly liable for 8-10 surrendering confidential or private material under this section, 8-11 including physician's orders, pharmacy records, notes and memoranda 8-12 of a state office, and resident files. 8-13 (g) The department shall establish in clear and concise 8-14 language a form to summarize each inspection report and complaint 8-15 investigation report. 8-16 (h) The department shall establish proper procedures to 8-17 ensure that copies of all forms and reports under this section are 8-18 made available to consumers, service recipients, and the relatives 8-19 of service recipients as the department considers proper. 8-20 (i) The department shall adopt rules to implement the 8-21 provisions of this section and sections 251.017-251.019 of this 8-22 subchapter. 8-23 Section 251.017. Unannounced Inspections. (a) Each year, 8-24 the department shall conduct at least two unannounced inspections 8-25 of each facility. 9-1 (b) In order to ensure continuous compliance, the department 9-2 shall minally select a sufficient percentage of facilities for 9-3 unannounced inspections to be conducted between 5 p.m. and 8 a.m. 9-4 Those inspections must be cursory to avoid to the greatest extent 9-5 feasible any disruption of the residents. 9-6 (c) The department may require additional inspections. 9-7 (d) As deemed appropriate and necessary by the department, 9-8 the department may invite at least one person as a citizen advocate 9-9 to participate in inspections. The invited advocate must be an 9-10 individual who has an interest in or who is employed by or 9-11 affiliated with an organization or entity which represents, 9-12 advocates for, or serves individuals. with mental retardation. 9-13 Section 251.018. Disclosure of Unannounced Inspections; 9-14 Criminal Penalty. (a) Except as expressly provided by this 9-15 chapter, a person commits an offense if the person intentionally, 9-16 knowingly, or recklessly discloses to an unauthorized person the 9-17 date, time, or any other fact about an unannounced inspection of a 9-18 facility before the inspection occurs. 9-19 (b) In this section, "unauthorized person" does not include: 9-20 (1) the department; 9-21 (2) the office of the attorney general; 9-22 (3) a representative of an agency or organization when 9-23 a Medicaid survey is made concurrently with a licensing inspection; 9-24 or 9-25 (4) any other person or entity authorized by law to 10-1 make an inspection or to accompany an inspector. 10-2 (c) An offense under this section is a Class B misdemeanor. 10-3 (d) A person convicted under this section is not eligible 10-4 for state employment. 10-5 Section 251.019. Licensing and Certification Surveys. The 10-6 department shall provide a team to conduct surveys to validate 10-7 findings of licensing and certification surveys. The purpose of 10-8 validation surveys is to assure that survey teams throughout the 10-9 state survey in a fair and consistent manner. A facility subjected 10-10 to a validation survey must correct deficiencies cited by the 10-11 validation team but is not subject to punitive action for those 10-12 deficiencies. 10-13 Section 251.020. Emergency Suspension or Closing Order. (a) 10-14 The department shall suspend a facility's license or order an 10-15 immediate closing of part of the facility if: 10-16 (1) the department finds the facility is operating in 10-17 violation of the standards prescribed by this chapter; and 10-18 (2) the violation creates an immediate threat to the 10-19 health and safety of a resident. 10-20 (b) The board by rule shall provide for the placement of 10-21 residents during the institution's suspension or closing to ensure 10-22 their health and safety. 10-23 (c) An order suspending a license or closing a part of an 10-24 institution under this section is immediately effective on the date 10-25 on which the license holder receives written notice or a later date 11-1 specified in the order. 11-2 (d) an order suspending a license or ordering an immediate 11-3 closing of a part of an institution is valid for 10 days after the 11-4 effective date of the order. 11-5 Section 251.021. Injunction. (a) The department may 11-6 petition a district court for a temporary restraining order to 11-7 restrain a person from continuing a violation of the standards 11-8 prescribed by this chapter if the department finds that the 11-9 violation creates an immediate threat to the health and safety of 11-10 the facility's residents. 11-11 (b) A district court, on petition of the department, may by 11-12 injunction: 11-13 (1) prohibit a person from continuing a violation of 11-14 the standards or licensing requirements prescribed by this chapter; 11-15 (2) restrain or prevent the establishment, conduct, 11-16 management, or operation of an institution without a license issued 11-17 under this chapter; or 11-18 (3) grant the injunctive relief warranted by the facts 11-19 on a finding by the court that a person is violating the standards 11-20 or licensing requirements prescribed by this chapter. 11-21 (c) The attorney general, on request by the department, 11-22 shall institute and conduct in the name of the state a suit 11-23 authorized by this section of Subchapter D. 11-24 (d) A suit for temporary restraining order or other 11-25 injunctive relief must be brought in the county in which the 12-1 alleged violation occurs. 12-2 Section 251.022. License Requirements; Criminal Penalty. 12-3 (a) A person commits an offense if the person violates Section 12-4 251.009 12-5 (b) An offense under this section is punishable by a fine of 12-6 not more than $1,000 for the first offense and not more than $500 12-7 for each subsequent offense. 12-8 (c) Each day of a continuing violation after conviction is a 12-9 separate offense. 12-10 Section 251.023. Civil Penalty. (a) A person who violates 12-11 this chapter or a rule adopted under this chapter is liable for a 12-12 civil penalty if the department determines the violation threatens 12-13 the health and safety of a resident. 12-14 (b) Each day of a continuing violation constitutes a 12-15 separate ground for recovery. 12-16 Section 251.024. Administrative Penalty. (a) The 12-17 department may assess an administrative penalty against a facility 12-18 as specified in this section. 12-19 (b) The department shall establish gradations of penalties 12-20 and amount of the penalty in accordance with the relative 12-21 seriousness of the violation. 12-22 (c) Penalties shall be recommended for violations of 12-23 licensing standards as specified under Section 251.012 of this 12-24 Chapter governing the health and safety of the residents which have 12-25 a direct or immediate adverse effect on a resident(s) or which 13-1 presents even more serious harm or danger. 13-2 (d) Penalties shall be limited to violations of life safety 13-3 code issues, abuse and neglect issues, medical care and treatment, 13-4 and physical plant issues which pose an immediate and serious 13-5 threat to one or more residents. 13-6 (e) The department shall establish rules governing 13-7 administrative penalties to include the report and notice of such, 13-8 appeal processes and hearings, and payment and refund. 13-9 Section 251.025. Findings and Purpose. (a) The legislature 13-10 finds that the closing of an ICF/MR for violations of laws and 13-11 rules may: 13-12 (1) in certain circumstances, have an adverse effect 13-13 on both the home's residents and their families; and 13-14 (2) in some case, result in a lack of readily 13-15 available funds to meet the basic needs of the residents for food, 13-16 shelter, medication, and personal services. 13-17 (b) The purpose of this subchapter is to provide for: 13-18 (1) the appointment of a trustee to assume the 13-19 operations of the home in a manner that emphasizes resident care 13-20 and reduces resident trauma; and 13-21 (2) a fund to assist a court-appointed trustee in 13-22 meeting the basic needs of the residents. 13-23 Section 251.026. Appointment by Agreement. (a) A person 13-24 holding a controlling interest in a home may, at any time, request 13-25 the department to assume the operation of the home through the 14-1 appointment of a trustee under this subchapter. 14-2 (b) After receiving the request, the department may enter 14-3 into an agreement providing for the appointment of a trustee to 14-4 take charge of the home under conditions considered appropriate by 14-5 both parties if the department considers the appointment desirable. 14-6 (c) An agreement under this section must: 14-7 (1) specify all terms and conditions of the trustee's 14-8 appointment and authority; and 14-9 (2) Preserve all rights of the residents as granted by 14-10 law. 14-11 (d) The agreement terminates at the time specified by the 14-12 parties or when either party notifies the other in writing that the 14-13 party wishes to terminate the appointment agreement. 14-14 Section 251.027. Involuntary Appointment. (a) The 14-15 department may request the attorney general to bring an action in 14-16 the name and on behalf of the state for the appointment of a 14-17 trustee to operate a home if: 14-18 (1) the home is operating without a license; 14-19 (2) the department has suspended or revoked the home's 14-20 license; 14-21 (3) license suspension or revocation procedures 14-22 against the home are pending and the department determines that an 14-23 imminent threat to the health and safety of the residents exists; 14-24 (4) the department determines that an emergency exists 14-25 that presents an immediate threat to the health and safety of the 15-1 residents; or 15-2 (5) the home is closing and arrangements for 15-3 relocation of the residents to other licensed institutions have not 15-4 been made before closure. 15-5 (b) A trustee appointed under Subsection (a)(5) may only 15-6 ensure an orderly and safe relocation of the home's residents as 15-7 quickly as possible. 15-8 (c) After a hearing, a court shall appoint a trustee to take 15-9 charge of a home if the court finds that involuntary appointment of 15-10 a trustee is necessary. 15-11 (d) If possible, the court shall appoint as trustee an 15-12 individual whose background includes mental retardation service 15-13 administration. 15-14 Section 251.028. Fee; Released Funds. (a) A trustee 15-15 appointed under this subchapter is entitled to a reasonable fee as 15-16 determined by the court. 15-17 (b) The trustee may petition the court to order the release 15-18 to the trustee of any payment owed the trustee for care and 15-19 services provided to the residents if the payment has been 15-20 withheld, including a payment withheld by the department. 15-21 (c) Withheld payments may include payments withheld by 15-22 governmental agency or other entity during the appointment of the 15-23 trustee, such as payments: 15-24 (1) for Medicaid, or insurance; 15-25 (2) by another third party; or 16-1 (3) for medical expenses borne by the resident. 16-2 Section 251.029. ICF/MR Trust Fund and Emergency Assistance 16-3 Funds. (a) The ICF/MR trust fund is with the state treasurer and 16-4 shall be made available to the department for expenditures without 16-5 legislative appropriation to make emergency assistance funds 16-6 available to a home. 16-7 (b) A trustee of a home may use the emergency assistance 16-8 funds only to alleviate an immediate threat to the health or safety 16-9 of the residents. The use may include payments for: 16-10 (1) food; 16-11 (2) medication; 16-12 (3) sanitation services; 16-13 (4) minor repairs; 16-14 (5) supplies necessary for personal hygiene; or 16-15 (6) services necessary for the personal care, health, 16-16 and safety of the residents. 16-17 (c) A court may order the department to disburse emergency 16-18 assistance funds to a home if the court finds that: 16-19 (1) the home has adequate funds accessible to the 16-20 trustee for the operation of the home; 16-21 (2) there exists an emergency that presents an 16-22 immediate treat to the health and safety of the residents; and 16-23 (3) it is in the best interests of the health and 16-24 safety of the residents that funds are immediately available. 16-25 (d) The department shall disburse money from the ICF/MR 17-1 trust funds as ordered by the court in accordance with board rules. 17-2 (e) Any unencumbered amount in the ICF/MR trust fund in 17-3 excess of $100,000 at the end of each fiscal year shall be 17-4 transferred to the credit of the general revenue fund and may be 17-5 appropriated to the department for its use in administering and 17-6 enforcing this chapter. 17-7 Section 251.030. Reimbursement. (a) A home that receives 17-8 emergency assistance funds under this subchapter shall reimburse 17-9 the department for the amounts received, including interest. 17-10 (b) Interest on unreimbursed amounts begins to accrue on the 17-11 date on which the funds were disbursed to the home. The rate of 17-12 interest is the rate determined under, Section 2, Article 1.05, 17-13 Title 79, Revised Statutes (Article 5069-1.05, Vernon's Texas Civil 17-14 Statutes), to be applicable to judgments rendered during the month 17-15 in which the money was disbursed to the home. 17-16 (c) The owner of the home when the trustee was appointed is 17-17 responsible for the reimbursement. 17-18 (d) The amount that remains unreimbursed on the expiration 17-19 of one year after the date on which the funds were received is 17-20 delinquent and the Texas Department of Human Services may determine 17-21 that the home is ineligible for a Medicaid provider contract. 17-22 (e) The department shall deposit the reimbursement and 17-23 interest received under this section to the credit of the ICF/MR 17-24 trust fund. 17-25 (f) The attorney general shall institute an action to 18-1 collect the funds due under this section at the request of the 18-2 department. Venue for an action brought under this section is in 18-3 Travis County. 18-4 Section 251.031. Notification of Closing. (a) A home that 18-5 is closing temporarily or permanently, or voluntarily or 18-6 involuntarily, shall notify the residents of the closing and make 18-7 reasonable efforts to notify in writing each resident's nearest 18-8 relative or the person responsible for the resident's support 18-9 within a reasonable time before the closing. 18-10 (b) If the closing of a home is ordered by the department or 18-11 is in any other way involuntary, the home shall make the 18-12 notification, orally or in writing, immediately on receiving notice 18-13 of the closing. 18-14 (c) If the closing if a home is voluntary, the home shall 18-15 make the notification not later than one week after the date on 18-16 which the decision to close is made. 18-17 Section 251.032. Definition. In this subchapter, 18-18 "designated agency" means an agency designated by a court to be 18-19 responsible for the protection of a resident who is the subject of 18-20 a report of abuse or neglect. 18-21 Section 251.033. Reporting Of Abuse and Neglect. (a) A 18-22 person, including an owner or employee of an institution, who has 18-23 cause to believe that the physical or mental health or welfare of a 18-24 resident has been or may be adversely affected by abuse or neglect 18-25 caused by another person shall report the abuse or neglect in 19-1 accordance with this subchapter. 19-2 (b) Each facility shall require each employee of the 19-3 institution, as a condition or employment with the institution, to 19-4 sign a statement that the employee realizes that the employee may 19-5 be criminally liable for failure to report those abuses. 19-6 (c) A person shall make an oral report immediately on 19-7 learning of the abuse or neglect and shall make a written report to 19-8 the same agency not later than the fifth day after the oral report 19-9 is made. 19-10 Section 251.034. Contents of Report. (a) A report of 19-11 abuse or neglect is nonaccusatory and reflects the reporting 19-12 person's belief that a resident has been or will be abused or 19-13 neglected or has died of abuse or neglect. 19-14 (b) The report must contain: 19-15 (1) the name and address of the resident; 19-16 (2) the name and address of the person responsible for 19-17 the care of the resident, if available; and 19-18 (3) other relevant information. 19-19 Section 251.035. Anonymous Reports of Abuse or Neglect. 19-20 (a) An anonymous report of abuse or neglect, although not 19-21 encouraged, shall be received and acted on in the same manner as an 19-22 acknowledged report. 19-23 (b) A local or state law enforcement agency that receives a 19-24 report of abuse or neglect shall refer the report to the department 19-25 or the designated agency. 20-1 Section 251.036. Investigation and Report of Receiving 20-2 Agency. (a) The department or the designated agency shall make a 20-3 thorough investigation promptly after receiving either the oral or 20-4 written report. 20-5 (b) The primary purpose of the investigation is the 20-6 protection of the resident. 20-7 (c) In the investigation, the department or the designated 20-8 agency shall determine: 20-9 (1) the nature, extent, and cause of the abuse or 20-10 neglect; 20-11 (2) the identity of the person responsible for the 20-12 abuse or neglect; 20-13 (3) the names and conditions of the other residents; 20-14 (4) an evaluation of the persons responsible for the 20-15 care of the residents; 20-16 (5) the adequacy of the facility environment; and 20-17 (6) any other information required by the department. 20-18 (d) The investigation shall include a visit to the 20-19 resident's facility and an interview with the resident. 20-20 (e) If it is shown that admission to the facility, or any 20-21 place where the resident is located, cannot be obtained, a probate 20-22 or county court shall order the person responsible for the care of 20-23 the resident or the person in charge of a place where the resident 20-24 is located to allow entrance for the interview and investigation. 20-25 (f) Before the completion of the investigation the 21-1 department shall file a petition for temporary care and protection 21-2 of the resident if the department determines that immediate removal 21-3 is necessary to protect the resident from further abuse or neglect. 21-4 (g) The department or the designated agency shall make a 21-5 complete written report of the investigation and submit the report 21-6 and its recommendations to the district attorney and the 21-7 appropriate law enforcement agency and to the Texas Department of 21-8 Human Services on its request. 21-9 Section 251.037. Confidentiality. A report, record, or 21-10 working paper used or developed in an investigation made under this 21-11 subchapter is confidential and may be disclosed only for purposes 21-12 consistent with the rules adopted by the board or the designated 21-13 agency. 21-14 Section 251.038. Immunity. (a) A person who reports as 21-15 provided by this subchapter is immune from civil or criminal 21-16 liability that, in the absence of the immunity, might result from 21-17 making the report. 21-18 (b) The immunity provided by this section extends to 21-19 participation in any judicial proceeding that results from the 21-20 report. 21-21 (c) This section does not apply to a person who reports in 21-22 bad faith or with malice. 21-23 Section 251.039. Privileged Communications. In a proceeding 21-24 regarding the abuse or neglect of a resident or the cause of any 21-25 abuse or neglect, evidence may not be excluded on the ground of 22-1 privileged communication except in the case of a communication 22-2 between an attorney and client. 22-3 Section 251.040. Central Registry. (a) The department 22-4 shall maintain in the city of Austin a central registry of reported 22-5 cases of resident abuse or neglect. 22-6 (b) The board may adopt rules necessary to carry out this 22-7 section. 22-8 (c) The rules shall provide for cooperation with hospitals 22-9 and clinics in the exchange of reports of resident abuse or 22-10 neglect. 22-11 Section 251.041. Failure to Report; Criminal Penalty. (a) 22-12 A person commits an offense if the person has cause to believe that 22-13 a resident's physical or mental health or welfare has been or may 22-14 be further adversely affected by abuse or neglect and knowingly 22-15 fails to report in accordance with Section 251.033. 22-16 (b) An offense under this section is a Class A misdemeanor. 22-17 Section 251.042. Bad Faith, Malicious, or Reckless 22-18 Reporting; Criminal Penalty. (a) A person who commits an offense 22-19 if the person reports under this subchapter in bad faith, 22-20 maliciously, or recklessly. 22-21 (b) An offense under this section is a Class A misdemeanor. 22-22 (c) The criminal penalty provided by this section is in 22-23 addition to any civil penalties for which the person may be liable. 22-24 Section 251.043. Suit for Retaliation. (a) A person has a 22-25 cause of action against a facility, or the owner or employee of the 23-1 facility, that suspends or terminates the employment of the person 23-2 or otherwise disciplines or discriminates against the person for 23-3 reporting the abuse or neglect of a resident to the person's 23-4 supervisors, the department, or a law enforcement agency. 23-5 (b) The petitioner may recover: 23-6 (1) the greater of $1,000 or actual damages, including 23-7 damages for mental anguish even if an injury other than mental 23-8 anguish is not shown and damages for lost wages if the petitioner's 23-9 employment was suspended or terminated; 23-10 (2) exemplary damages; 23-11 (3) court costs; and 23-12 (4) reasonable attorney's fee. 23-13 (c) In addition to the amounts that may be recovered under 23-14 Subsection (b), a person whose employment is suspended or 23-15 terminated is entitled to reinstatement in the person's former 23-16 position. 23-17 (d) The petitioner, not later than the 90th day after the 23-18 date on which the person's employment is suspended or terminated, 23-19 must bring suit or notify the Texas Employment Commission of the 23-20 petitioner's intent to sue under this section. A petitioner who 23-21 notifies the Texas Employment Commission under this subsection must 23-22 bring suit not later than the 90th day after the date of the 23-23 delivery of the notice to the commission. On receipt of the 23-24 notice, the commission shall notify the institution of the 23-25 petitioner's intent to bring suit under this section. 24-1 (e) The petitioner has the burden of proof, except that 24-2 there is a rebuttable presumption that the person's employment was 24-3 suspended or terminated for reporting abuse of neglect if the 24-4 person is suspended or terminated within 60 days after the date on 24-5 which the person reported in good faith. 24-6 (f) A suit under this section may be brought in the district 24-7 court of the county in which: 24-8 (1) the plaintiff resides; 24-9 (2) the plaintiff was employed by the defendant; or 24-10 (3) the defendant conducts business. 24-11 (g) Each facility shall require each employee of the 24-12 facility, as a condition of employment with the facility, to sign a 24-13 statement that the employee understands the employee's rights under 24-14 this section. The statement must be part of the statement required 24-15 under Section 251.033. If a facility does not require an employee 24-16 to read and sign the statement, the periods under Subsection (d) do 24-17 not apply, and the petitioner must bring suit not later than the 24-18 second anniversary of the date on which the person's employment is 24-19 suspended or terminated. 24-20 Section 251.044. Reports Relating to Resident Deaths. (a) 24-21 A facility licensed under this chapter shall submit a report to the 24-22 department concerning deaths of residents of the facility. The 24-23 report must be submitted with 10 working days after the last day of 24-24 each month in which a resident occurring within 24 hours after the 24-25 resident is transferred from the facility to a hospital. 25-1 (b) The facility must make the report on a form prescribed 25-2 by the department. The report must contain the name and social 25-3 security number of the deceased. 25-4 (c) The department shall correlate reports under this 25-5 section with death certificate information to develop data relating 25-6 to the: 25-7 (1) name an age of the deceased; 25-8 (2) official cause of death listed on the death 25-9 certificate; 25-10 (3) date, time, and place of death; and 25-11 (4) name and address of the facility in which the 25-12 deceased resided. 25-13 (d) Unless specified by board rule, a record under this 25-14 section is confidential and not subject to the provisions of the 25-15 open records law, Chapter 424, Acts of the 63rd Legislature, 25-16 Regular Session, 1973 (Article 6252-17a, Vernon's Texas Civil 25-17 Statutes). 25-18 Section 251.045. Administration of Medication. The 25-19 department shall adopt rules related to the administration of 25-20 medication in ICF/MR facilities. 25-21 Section 251.046. Definitions. In this subchapter: 25-22 (1) "Resident" means a person who has a diagnosis of 25-23 mental retardation or a related condition. 25-24 (2) "Plan of care" means a written description of the 25-25 care, training, and treatment needed by a person during respite 26-1 care. 26-2 (3) "Respite care" means the provision by a facility 26-3 to a person, for not more than two weeks for each stay in the 26-4 institution, of: 26-5 (a) room and board; and 26-6 (b) care at the level ordinarily provided for 26-7 permanent residents. 26-8 Section 251.047. Respite Care. (a) A facility licensed 26-9 under this chapter may provide respite care for an individual who 26-10 has a diagnosis of mental retardation or a related condition. 26-11 (b) The board may adopt rules for the regulation of respite 26-12 care provided by a facility licensed under this chapter. 26-13 Section 251.048. Plan of Care. (a) The facility and the 26-14 person arranging the care must agree on the plan of care and the 26-15 plan must be filed at the facility before the facility admits the 26-16 person for the care. 26-17 (b) The plan of care must be signed by: 26-18 (1) a licensed physician if the person for whom the 26-19 care is arranged needs medical care or treatment; or 26-20 (2) the person arranging for the respite care if 26-21 medical care or treatment is not needed. 26-22 (c) The facility may keep an agreed plan of care for a 26-23 person for not longer than six months from the date on which it is 26-24 received. During that period, the facility may admit the person as 26-25 frequently as is needed and as accommodations are available. 27-1 Section 251.049. Notification. A facility that offers 27-2 respite care shall notify the department in writing that it offers 27-3 respite care. 27-4 Section 251.050. Inspections. The department, at the time 27-5 of an ordinary licensing inspection or at other times determined 27-6 necessary by the department, shall inspect a facility's records of 27-7 respite care services, physical accommodations available for 27-8 respite care, and the plan of care records to ensure that the 27-9 respite care services comply with the licensing standards of this 27-10 chapter and with any rules the board may adopt to regulate respite 27-11 care services. 27-12 Section 251.051. Suspension. (a) The department may 27-13 require a facility to cease providing respite care if the 27-14 department determines that the respite care does not meet the 27-15 standards required by this chapter and that the facility cannot 27-16 comply with those standards in the respite care it provides. 27-17 (b) The department may suspend the license of a facility 27-18 that continues to provide respite care after receiving a written 27-19 order from the department to cease. 27-20 SECTION 2. This act repeals the application of Sections 27-21 242.001 through 242.186 of the Health and Safety Code to 27-22 institutions which meet the criteria of an ICF/MR. 27-23 SECTION 3. The importance of this legislation and the 27-24 crowded condition of the calendars in both houses create an 27-25 emergency and an imperative public necessity that the 28-1 constitutional rule requiring bills to be read on three several 28-2 days in each house be suspended, and this rule is hereby suspended, 28-3 and that this act take effect and be in force from and after its 28-4 passage, and it is so enacted.