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.