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.