BILL ANALYSIS



HUMAN SERVICES
C.S.H.B. 413
By:  Naishtat
3-18-97
Committee Report (Substituted)


BACKGROUND

The regulation of nursing facilities is derived from a combination of
state and federal law.  State law governs the criteria used to determine
the competence, character, financial condition and level of compliance
with standards of care needed to obtain and retain a license to operate a
nursing facility.  Federal law governs the criteria used to be "certified"
or eligible to receive funds through federal programs such as Medicaid.
Nursing facilities must meet all state licensing requirements; otherwise,
they are not eligible to participate in the federally funded programs.  In
this regard, state law is the primary vehicle to assure meaningful
protection of current and future residents of nursing facilities. 

A combination of weaknesses in Texas law limit the effectiveness of
current regulation of nursing facilities, placing our most vulnerable
population of elderly and disabled at risk of abuse, neglect,
exploitation, and inadequate care.  Texas law provides inadequate measures
to assure that only persons with solid credentials may own, operate and
control licensed nursing facilities. Further, Texas law is vague and
ambiguous in its delegation of key regulatory authority, including license
revocation, application of remedies and rulemaking. 


PURPOSE

House Bill 413 is intended to establish effective state licensure
authority over nursing facilities in Texas.  To achieve this goal, the
bill (1) redefines those persons and entities who are subject to the law;
(2) provides the Texas Department of Human Services (the department)
authority to exercise discretion to issue and renew licenses for only
those facilities that meet the new, more stringent licensing requirements;
(3) establishes authority to require relevant background information from
those who own, operate and control nursing facilities as a prerequisite
for licensure; (4) establishes additional resident protections; (5)
establishes a variety of state enforcement measures; (6) clarifies
rulemaking authority granted to the Board of Human Services; (7) clarifies
the law relating to the use of regulatory reports in civil actions and the
use of arbitration proceedings; and (8) enhances the Attorney General's
enforcement capabilities. 


RULEMAKING AUTHORITY
 
House Bill 413 grants rulemaking authority to the Texas Board of Human
Services (Board).  Those sections of the bill that grant rulemaking
authority are intended to provide the board with broad authority to
implement each subsection of Chapter 242 of the Health and Safety Code.
The rules adopted by the board may be more but not less stringent than the
federal laws applicable to nursing facilities.  Further, the board's
authority to establish rules and standards is expanded to expressly
include quality of care standards and residents' rights. 

It is the opinion of the committee that rulemaking authority is expressly
granted to the Texas Board of Human Services in the following sections of
the bill: 
Section 1.06 (Section 242.032(e), Health and Safety Code);
Section 1.09 (Section 242.037(a) and (g), Health and Safety Code);
Section 1.22 (Section 242.1225, Health and Safety Code);
Section 1.23 (Section 242.126(d), Health and Safety Code);
 Section 1.30 (Section 242.501(a), Health and Safety Code); and
Section 1.33.


SECTION BY SECTION ANALYSIS

ARTICLE 1.  REGULATION OF NURSING HOMES AND SIMILAR FACILITIES

SECTION 1.01. Amends Health and Safety Code Section 242.001.  Replaces the
existing purpose statement of Chapter 242 of the Health and Safety Code
applicable to nursing facilities.  The revised section sets forth the
explicit legislative intent that the regulation of nursing facilities in
Texas shall be regulated in a manner that protects residents in four basis
ways: 
1.  providing the highest possible quality of care;
2.  strictly monitoring all factors relating to the health, safety,
welfare and dignity of each resident; 
3. imposing prompt and effective penalties for noncompliance with
licensing standards; and, 
4. providing the public with information concerning the operation of
institutions in this state. 
This section also establishes certain minimum standards for nursing
facilities and authorizes the department to establish rules relating to
licensure requirements which are more stringent than federal certification
regulations.  

SECTION 1.02.  Amends Section 242.002, Health and Safety Code, to define
the terms "Commissioner", "Controlling Person," and other terms used in
the chapter. 

SECTION 1.03.  Amends Section 242.0021 of the Health and Safety Code. This
section defines "controlling person" in order to assure that the licensing
requirements and remedies reach the person or entity in actual or legal
control of the facility. 

Section 1.04.  Amends Section 242.005, Health and Safety Code to require
not only DPS, but also the Office of the Attorney General, to submit an
annual performance report to the governor and legislature by October 1.
The form and content of the reports shall be prescribed jointly by the
Legislative Budget Board and the state auditor. 

SECTION 1.05.  Adds new Sections 242.015 and 242.016 to the Health and
Safety Code. New section 242.015 requires each facility to have a licensed
administrator who: 1) works at least 40 hours per week; and 2) is
responsible for management of the institution and the delivery of quality
care to all residents.  New section 242.016 provides that fees or
penalties collected by the Department of Human Services under this chapter
are to be used by the department to administer and enforce this chapter,
except as expressly provided by this chapter. 

SECTION 1.06.  Amends Section 242.032, Health and Safety Code.  Allows the
department to conduct investigations into the qualifications of all
applicants and existing license holders for the purpose of initial
licensing and renewal of existing licenses, including review of past
compliance or non-compliance with state and federal laws and financial
condition.  Such compliance information will be required of all owners and
other persons who control or manage the facility for at least the past 10
years relating to Texas and all other states.  Such information shall be
made available to the public.  This section places an affirmative burden
on the applicant or license holder to establish their ability to comply
with all state and federal requirements.  This section requires the
department to determine what constitutes a satisfactory compliance history
by rule.  Further, this section authorizes the department to require
historical financial information from the applicant or any person required
to submit background information to the department as part of a license
application or renewal. 

SECTION 1.07.  Amends Section 242.033(a), Health and Safety Code, to place
the issuance or renewal of a nursing home license at the discretion of
DHS, based upon the results of its evaluation of the applicant and those
who control the applicant. 

SECTION 1.08.  Amends Section 242.034, Health and Safety Code.  Authorizes
the Texas Board of Human Services to establish a background examination
fee to be paid by each applicant, including initial licenses, renewals,
change of ownership, and increase in bed space.  Further, this section
increases the license fees for institutions.  Any fee increases must be
reflected in reimbursement  rates. 

SECTION 1.09.  Amends Section 242.037, Health and Safety Code.  Grants the
department rulemaking authority to implement all of chapter 242 and
provides that the rules and standards adopted by the department may be
more stringent than the federal requirements for Medicaid certification,
and shall not be less stringent that current federal regulations.
Further, this section requires the department to coordinate the
development and implementation of licensing standards with the federal
rules to avoid unnecessary duplication and preserve the efforts made by
the department in early 1995 to streamline nursing facility regulations.
This section also requires the Board of Human Services to establish rules
setting forth a system for prioritizing investigation of and action on
complaints relating to institutions. 

SECTION 1.10.  Amends Section 242.042, Health and Safety Code.  This
section adds the requirement that facilities post the availability of
information from the department relating to the facility, including
quality of care, recent investigations, and litigation.  Further, the
section adds the requirement that a notice must be posted on all doors
when a facility is ordered to suspend admissions.  Finally this section
requires each institution to post on all doors that information is
available for public inspection in the institution relating to its
compliance history and current violations of residents rights.   

SECTION 1.11.  Amends Section 242.061, Health and Safety Code, by amending
subsection (a) and adding subsection (c).  Provides the department with
expanded authority to deny, suspend, or revoke a license to operate an
institution. 

SECTION 1.12.  Adds new section 242.0615  which allows the department to
exclude a person from eligibility for a license under this chapter if that
person has substantially failed to comply with this chapter.  The
exclusion may be for a period not less than two years and not more than
ten.  

SECTION 1.13 Amends Section 242.063 (a), (b) and (d), by expanding the
department's capability to seek temporary restraining orders and
injunctions against a person or persons that violate or threaten to
violate a standard imposed under this chapter or any other law affecting
residents; allowing a district court to provide injunctive relief to
prohibit a person or persons from violating or threatening to violate
standards or licensing requirements prescribed by this chapter; and, in
certain instances, allowing a suit for a temporary restraining order or
other injunctive relief to be brought in Travis County or in the county in
which the alleged violation occurs.   

SECTION 1.14 Amends Section 242.065 (a), Health and Safety Code by:
further defining who is liable for a civil penalty and increasing the
minimum and maximum penalty allowed for each act; by adding new subsection
(b) to define what should be considered when determining the amount of a
penalty to be awarded under this section; renaming previous subsection (b)
to (c) and expanding what constitutes a separate ground for recovery to
include each resident who suffers directly because of the violation; and
adding subsection (d) to define "affiliate". 

SECTION 1.15  Amends Section 242.066, Health and Safety Code, by amending
subsections (a) and (b) and adding subsections (f), (g), and (h), revising
the reasons for assessing administrative penalties assessed by the
department. Six reasons are provided for administrative penalties: 

 1)  violation of any department rule, order or standard;
 2)  making a false statement on an application or in an investigation;
 3)  refusing access to the department to inspect records or premises;
 4)  willful interference with department functions;
 5)  willful interference with department representatives; and
 6)  failing to pay a penalty within 10 days of the assessment.

The penalty for these types of offenses may not be less than $500 or more
than $15,000 per day for each violation.  This section permits the penalty
to be assessed against either the applicant, license holder or anyone who
owns or controls the institution. 

This section also establishes a separate level of fines for violations of
resident rights, failure to post  notice of suspension of admissions and
rules requiring the reporting of conduct or conditions resulting in the
exploitation of residents and accidental injury to or hospitalization of
residents.. These types of violations will be limited to $1000 a day for
each violation, unless the violation of a resident's right also violates a
standard of care.  In such cases, the $15,000 limit applies. 

SECTION 1.16.  Amends Subchapter C, Chapter 242, Health and Safety Code,
by adding new section 242.0665.  Allows a facility up to 30 days to
correct certain violations to avoid the assessment of administrative
penalties.  To avoid the penalty, the facility must maintain compliance
for at least one year.  Failure to maintain compliance results in an
increase in the amount of the fine, up to $30,000 a day per violation with
a minimum fine established as $500 per day per violation. Facilities,
however, that have violations that result in serious harm, constitute a
serious threat to the health or safety of a resident, or limit the
institution's capacity to provide care, are excluded from the avoidance of
penalties.    

SECTION 1.17.  Amends Section 242.068(d), Health and Safety Code, to
clarify the distinction between civil penalties and administrative
penalties. 

SECTION 1.18.  This section amends the existing Health and Safety Code
regarding enforcement. Section 242.067 is amended to incorporate
provisions implementing the right to correct violations. Section 242.069
is amended to satisfy constitutional requirements of administrative
penalty adjudication.  Notice must be given to the person charged and the
notice must include the findings, the amount of the penalty, the rate of
interest payable, the date on which interest begins to accrue, whether
payment is required, and the person's right to judicial review.  The
person charged is directed to pay the full amount or file a petition for
judicial review. 

The department, notwithstanding subsection (b), may permit the person to
pay the penalty in installments or to use the penalty to ameliorate the
violation to improve services affected by the violation.  Penalties not
collected within 30 days are subject to interest and in such situations
the department may refer matters to the Attorney General for collection.
Reduced or unassessed penalties will be remitted with interest to charged
persons.  Interest accrued on amounts collected after the 30 day period
will be paid at rate set by the New York Federal Reserve Bank for the
period beginning on the day the order is received by the person and ending
on the date on which the penalty is paid.  Section 242.070 states that a
penalty may not be assessed for the same act under both this chapter and
for violations of Chapter 32, Human Resources Code unless a facility
violates contractual obligations under Chapter 32 of the Human Resources
Code.  Not more than one penalty authorized by this chapter may be
assessed under this subsection. 

SECTION 1.19.  Amends Subchapter C, Chapter 242, Health and Safety Code,
by adding Section 242.071, Amelioration of Violation.  Authorizes the
Commissioner of the department to require a facility to use, under the
supervision of the department, all or part of the dollars fined to enhance
care in lieu of paying the fine to the state.  Section 242.072 is added to
define when the Attorney General and the Department may recover costs and
provides for how the costs shall be appropriated.  New section 242.073
provides authority to immediately suspend admissions to a facility,
coupled with the requirement that a notice of the suspension be posted on
all doors of the facility.  New section 242.074 is added to authorize the
Attorney General to conduct additional investigations and defines under
which circumstances those investigations may be conducted.  New section
242.075 authorizes a demand for a civil investigation and defines the
parameters of such, including disclosure and procedure involved with
documentary material, the delivery of a civil investigation demands, and
the role of the Attorney General.  New section 242.076 prohibits an
institution from using, in any action brought by the department or the
Attorney General, any evidence withheld from the department or the
Attorney General during an inspection or investigation under this chapter,
if the evidence was requested by the department or the attorney general
and is not privileged under the law of this state.   

SECTION 1.20  Amends Section 242.096(e), Health and Safety Code, by
stating that any moneys in the nursing and convalescent home trust fund in
excess of $500,000 at the end of the fiscal year shall be transferred to
the credit of the general revenue fund and may be appropriated only to DHS
for use in administering and enforcing this chapter.   

 SECTION 1.21 Amends Section 242.097, Health and Safety Code.  Subsection
(a) is amended to require the department to adopt, if the amount of the
nursing and convalescent home trust fund is less than $500,000, an annual
fee to be deposited in that fund.  Subsection (b) is amended to require
the department to set a fee of $1 per unit or bed space, or an amount
necessary to provide $500,000 in the trust fund. 

SECTION 1.22.  Amends Subchapter E, Chapter 242, Health and Safety Code,
by adding a  new Section 242.1225.  Directs the board to adopt rules
requiring the reporting of conduct or conditions that result in
exploitation of residents, accidental injury and hospitalization of
residents. 

SECTION 1.23.  Amends Section 242.126, Health and Safety Code, to provide
parameters and time lines for the initiation and completion of
investigations relating to abuse and neglect allegations.  The department
shall begin its investigation within twenty-four hours of the receipt of a
report which alleges any of the following three circumstances: 
1. the health or safety of a resident is in imminent danger;
2. a resident has recently died because of the reported conduct; or
3. a resident has been hospitalized because of reported conduct.

This section further provides a one working day response time for other
complaints of abuse or neglect that could place a resident in imminent
danger.  The department is required to adopt rules governing the conduct
of investigations to ensure that the complainant and resident receive
periodic information regarding the investigation.  If, during an
investigation, immediate removal of a resident is necessary to protect the
resident, the department must file a petition for temporary care and
protection of the resident.  Ultimately, the department or designated
agency must file a final written report with the district attorney and the
appropriate law enforcement agency, if necessary. 

SECTION 1.24.  Amends Section 242.127, Health and Safety Code, to require
the department to maintain the confidentiality of the names of persons
making complaints or reports of abuse and neglect. 

SECTION 1.25.  Amends Section 242.133 (a), Health and Safety Code, to
provide a private cause of action against an institution by a person
(employee) who is retaliated against for making any report of abuse or
neglect or for initiating or cooperating in investigations of the
institution.  Further, this cause of action is broadened to specifically
include retaliation for reporting any complaint to the person's
supervisor. 

SECTION 1.26.  Amends Section 242.1335 (a), Health and Safety Code, to
broaden the protection of residents from retaliation for making any type
of compliant report or grievance or reports made in accordance with this
subchapter. 

SECTION 1.27.  Redesignates Subchapter H, Chapter 242, Health and Safety
Code, to Subchapter J, relating to arbitration. 

SECTION 1.28.  Amends Section 242.253 (c), Health and Safety Code, to
require that the party that elects arbitration to pay the costs of the
arbitration.  Additionally, this section limits fees and expenses to be
paid to an arbitrator to a maximum of $500 per day. 

SECTION 1.29.  Amends Section 242.267, Health and Safety Code, to provide
the department and institutions equal standing to file applications to
vacate an arbitrator's order.  Amends Section 242.268, Health and Safety
Code, to prohibit the use of arbitration in cases involving suspension of
a license, suspension of admissions or closing orders. 

SECTION 1.30.  Amends Chapter 242, Health and Safety Code, by
redesignating Subchapter F to Subchapter N. 

Adds to Chapter 242, Health and Safety Code, a new Subchapter F, entitled
Medical, Nursing, and Dental Services Other Than Administration of
Medication, to provide the statutory authority for requiring institutions
to maintain the following types of services: 

 1. Physician Services. Section 242.151:  Each institution is to have a
state-licensed medical director responsible for residents' assessment and
a comprehensive plan of care.  Specifically stated is the right of each
resident to choose a personal attending physician. 

2.  Physician Services for Residents Younger Than 18 Years of Age, Sec.
242.152:  Each institution shall use pediatric consultative services in
accordance with the assessment and that a pediatrician or other physician
with expertise with children with complex medical needs shall participate
in all aspects of the child's care. 

3.  Director of Nursing Services, Section 242.153:  Each institution shall
have a director who is responsible for coordinating the residents'
comprehensive plan of care and ensuring the proper administration of
medication.  This person must be a registered nurse. 

4.  Nursing Services, Section 242.154:  Each institution shall maintain
sufficient staff to obtain and maintain the physical, mental, and
psychosocial functions of each resident at the highest practicable level. 

5.  Pediatric Nursing Services, Section 242.155:  Each institution must
ensure that nursing services are provided by staff with demonstrated
competence in care of children and must use consultative pediatric nursing
services. 

6.  Required Medical Examination, Section 242.156:  Requires a minimum of
one medical examination each year, the details of which should be
specified by the department, unless other requirements are made by federal
law. 

7.  Dental Examination, Section 242.157:  Requires the facility to ask the
residents or custodians if they desire a dental exam at their own expense. 

Adds a new Subchapter K to Chapter 242, Health and Safety Code, Subchapter
K, which  includes: 

1.  Quality of Life, Section 242.401:  Facilities must provide care in a
way that promotes maintenance or enhancement of the quality of life and to
meet unique needs of those under 18 years of age. 

2.  Quality of Care, Section 242.402:  The care must enable the resident
to attain and maintain the highest practicable level of physical,
emotional and social well-being. 

3.  Standards for Quality of Life and Quality of Care, Section 242.403:
The department shall adopt standards which, at a minimum, address: 
  (1) admissions
  (2) care for residents under 18 years of age
  (3) assessment and comprehensive plan of care
  (4) transfer and discharge
  (5) clinical records
  (6) infection control
  (7) rehabilitation services
  (8) food services
  (9) social services and activities
  (10) prevention of pressure sores
  (11) bladder/bowel retraining
  (12) tube feeding
  (13) relocation of residents
  (14) postmortem procedures
 (15) appropriate use of restraints

The department may also adopt additional standards to implement Sections
242.401 and 242.402. 

4.  Policies, Procedures and Practices for Quality of Care and Quality of
Life, Section 242.404:  This section requires institutions to comply with
the standards and to develop written operating policies  to implement
them.   The content of such policies and procedures will be the subject of
standards adopted by the department, and must be made available to the
public, including physicians, staff resident's next of kin, or anyone
making a request. 

Adds to Chapter 242, Health and Safety Code, Subchapter L, entitled Rights
of Residents, which includes: 

1.  Resident's Rights, Section 242.501: Instructs the department to adopt
a statement of resident rights.  At a minimum, the statement of rights
must contain provisions relating to the 21 specific rights listed in the
statute.  Such rights may only be restricted to protect the rights of
other residents, particularly matters of privacy and confidentiality.  The
department may adopt resident rights in addition to those required. 

2.  Rights Cumulative, Section 242.502:  Assures that the resident rights
are cumulative with all other rights established by this chapter or any
other law. 

3.  Duties of Institution, Section 242.503:  Requires institutions to
develop and implement policies to protect resident rights and determines
that these rights may not be violated. 

4.  Information About Resident's Rights and Violations, Section 242.504:
Establishes the duty on the institution to explain the resident's rights
to residents and next of kin, and to provide a written statement of
rights, any policies of the facility related to implementing the rights
and the duty to post written statements.  Further, as part of the proposed
enforcement of rights, any time the institution has been cited for
violation of resident rights by the department, the institution must
include a notice of the citation in the informational materials required
by 242.042(a)(8).  Also, the institution must include its written
statement of rights in this informational material. 

Adds to Chapter 242, Health and Safety Code, Subchapter M entitled
Complaint Inspections which includes: 

1.  Complaint Requesting Inspection, Section 242.551:  Any person may
request the department to conduct an inspection of an institution by
making a complaint when there is an alleged violation of law in the
institution.  All such complaints are encouraged to be in writing. 

2.  Disclosure of Substance of Complaint, Section 242.552:  The department
is prohibited from providing the institution with information about the
substance of the complaint until it makes an on-site inspection. 

3.  Confidentiality, Section 242.553:  The name of the person making the
complaint is confidential, unless the person requests their name to be
released. 

4.  Preliminary Review of Complaint: Inspection, Section 242.554:
Requires the department to inspect or otherwise respond within a
reasonable time unless they determine that the complaint is made to harass
the institution or has no reasonable basis or they find corrective action
by the institution.  The department shall notify the person making the
complaint of the proposed course of action. 


Adds to Chapter 242, Health and Safety Code, Subchapter N entitled
Administration of Medication which includes: 

1.  Medication Administration, Section 242.601:  Requires institutions to
set up procedures which comply with all department rules. 

2.  Pharmacist Services, Section 242.602:  Requires certain services to be
performed by licensed pharmacist, and establishes right of resident to
choose their pharmacy provider. 

3.  Storage and Disposal of Medications, 242.603:  Establishes standards
for storage and disposal. 

 4.  Reports of Medication Errors and Adverse Reactions, Section 242.604:
Establishes reporting requirements for errors and adverse reactions. 

5.  Medication Reference Sources, Section 242.605:  Requires facilities to
maintain proper reference books, including pediatric medications if they
have children in the institution. 

6. Sections 242.606 through 242.610:  Conforming amendments. 

7. Section 242.611.  Amended to allow the department greater flexibility
in the use of medication permit fees by removing the requirement that fees
received under this section may only be appropriated to the department to
defray costs incurred under this section. 

8. Section 242.612 through 242.615.  Conforming amendments.  Existing
requirements under Section 242.159 (regarding medical examinations) and
Section 242.160 (regarding dental examinations) are deleted. 


SECTION 1.31.  Amends section 222.0255 of the Health and Safety Code to
clarify that the licensing standards must be adopted by rule in accordance
with Chapter 242, including the provisions of 242.037 providing that the
rules and standards may be more stringent than the standards imposed by
federal law for certification for participation in the state Medicaid
program, but may not be less stringent than the Medicaid certification
standards and regulations imposed under the Omnibus Budget Reconciliation
Act of 1987 (OBRA), Pub. L. No. 100-203. 

SECTION 1.32.  This section repeals the existing "rights of residents"
provision (242.012).  The repeal is to take effect January 1, 1998. 

SECTION 1.33.  Requires the Board of Human Services to adopt rules
necessary to implement this law not later than January 1, 1998. 

SECTION 1.34.  Specifies that the additional license fee set forth in
section 1.21 applies only to fees due on or after the effective date on
this Act. 

SECTION 1.35  Applies the new law to conduct occurring on and after
January 1, 1998. 


ARTICLE 2.  GOVERNMENT FUNDING OF NURSING SERVICES

SECTION 2.01  Amends section 32.021, Human Resources Code, to eliminate
the sanctions advisory committee, to remove the restriction on state
rulemaking being tied to federal certification standards, and provide that
certification standards adopted by the department for participation in the
state Medicaid program must comply with the more stringent of state or
federal law.  This section also bolsters authority to impose appropriate
remedies. This section also clarifies the procedure for admissibility of
surveys, complaint investigations, incident investigations and other
documents in civil actions; and prohibits any reimbursement for penalties
paid.  Also, the "3-strikes" rule promulgated by the department is
codified. 


ARTICLE 3. EFFECTIVE DATE; EMERGENCY

SECTION 3.01  Effective date is September 1, 1997.

SECTION 3.02  Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

Section 1.01 is changed to provide that a violation of a minimum
acceptable level of care established under this chapter is prohibited by
law, to provide that all rules and standards adopted under this chapter
are designed to protect a class of persons that includes residents of
institutions.  
 
Section 1.02 is changed to delete the definition of the term "restraints"
and add new definitions of the terms "commissioner", "controlling person",
"facility", and "home", and to modify the definition of "person". 

Section 1.03 is changed to establish a definition of "controlling person"
rather than "control". 

Section 1.04 is changed to delete new section 242.015 entitled Documents
Public and to add amendments to section 242.005 requiring performance
reports.  Also, new section 242.016 entitled Licensed Administrator
contained in the original bill has been renumbered without other changes
and appears as 242.015 in section 1.05 of the Committee Substitute. 

Section 1.05 has been changed to include new section 242.015 and new
section 242.016 entitled Fees and Penalties.  The amendments to 242.032
contained in Section 1.05 in the original bill have been modified and
moved to Section 1.06 of the Committee Substitute. 

Section 1.06 has been changed to no longer amend 242.033.  This Section
provides new amendments to 242.032 entitled License or Renewal
Application.  The Committee Substitute contains amendments to 242.032 that
are not contained in the original bill, including the requirement that the
department determine by rule what constitutes a satisfactory compliance
history, and greater specificity regarding historical financial
information to be filed as part of a license application. 

Section 1.07 of the Committee Substitute contains the amendments to
242.034 contained in section 1.06 of the original bill. 

Section 1.08 of the Committee Substitute amends 242.034 to increase the
license fees for institutions and strikes language appearing as subsection
(g) of 242.034 as provided in Section 1.07 of the original bill. 

Section 1.09 establishes amendments to 242.037, most of which were
contained in Section 1.08 in the original bill.  Changes in the committee
substitute include specific rule-making authority relating to care and
treatment of residents and any other matter related to resident health,
safety, and welfare, quality of life, quality of care, residents' rights,
and licensure of institutions.  Further, the committee substitute
clarifies rule-making authority relating to geriatric care training, and
requires the Board to adopt rules establishing a system for prioritizing
investigation and action on complaints relating to institutions. 

Section 1.10 amends 242.042 as provided in Section 1.09 of the original
bill, with changes including the elimination of the requirement that a
notice of resident rights violations be posted on all doors, while adding
the requirement that all institutions maintain an up to date  one year
compliance history and post notice of the availability of that information
on all doors providing ingress to and egress from the institution. 

Section 1.11 amends 242.061 with changes to the provisions contained in
Section 1.10 of the original bill.  These changes include  the expansion
of the authority to deny, suspend or revoke a license based upon the
actions of any person required to submit background information as part of
the license application or renewal process.  Other changes include the
addition of the requirement that violations of law or rule be found to be
either repeated or substantial prior to license denial, suspension or
revocation in 242.061(a)(1) while the requirement of substantial failure
to comply was removed from 242.061(a)(3).  A new basis for license denial,
suspension or revocation was created on the basis of having been excluded
from holding a license as established under 242.0615. 

Section 1.12 amends subchapter C, chapter 242, by adding section 242.0615,
which allows DHS to exclude from license eligibility, under this chapter,
for a period of 2 to 10 years, a person that has substantially failed to
comply with this chapter.  This provision was not in the original bill.   

Section 1.13 Amends section 242.063 (a), (b) and (d), by expanding the
departments capability to seek a temporary restraining orders and
injunctions against a person or persons that violate or threaten to
violate a a standard imposed under this chapter or any other law affecting
residents; allowing a district court to provide injunctive relief to
prohibit a person or persons from violating  or threatening to violate
standards or licensing requirements prescribed by this chapter; and ; in
certain instances allowing a suit for a temporary restraining order or
other injunctive relief to be brought in Travis County or in the county in
which the alleged violation occurs.   


Section 1.14 Amends section 242.065 of the Health and Safety Code as
follows: 
1. to further define who is liable for a civil penalty and increases the
minimum and maximum penalty allowed for each act by: 
 a. providing a minimum civil penalty of $2,000 in comparison to the
removal of          minimum for a civil penalty in the introduced version,
and 
 b. providing a maximum civil penalty amount of $15,000 in comparison to
the $25,000      maximum amount in the introduced version; 
2.  by adding new subsection (b) which defines what should be considered
when determining the amount of a penalty to be awarded under this section;
3.  renames previous subsection (b) to (c) and expands what constitutes a
separate ground for recovery to include each resident who suffers directly
because of the violation;  
4.  and adds subsection (d) to define "affiliate".

Section 1.15 amends 242.066 relating to administrative penalties with
changes to the provisions of law contained in Section 1.12 of the original
bill.  These changes include the elimination of administrative penalties
against persons acting without a license due to lack of jurisdiction, the
reduction of maximum penalties from $25,000 a day per violation to $15,000
per day per violation, with the minimum penalty established at $500. 

Section 1.16 adds a new section 242.0665 with changes to the provisions of
law contained in Section 1.13 of the original bill.  These changes include
a reduction in the amount of time given an institution to correct certain
violations from 60 days to 30 days.  The fines for violations of this
section were reduced from a maximum of $75,000 per day per violation to
$30,000 per day per violation, with the minimum fines set at $500. 

Section 1.18  This section amends 242.067 with changes to the provisions
contained in Section 1.15 of the original bill.  These changes include
shifting the burden of developing a plan of correction on the institution
rather than the department, clarifying that an institution has 20 days
consent to the report of violation, request a hearing or submit a plan of
correction, deletes the default hearing in (g)(2)  Section 242.069 is
amended, with changes from the provisions in Section 1.15 of the original
bill that streamlines the collection of administrative penalties by
eliminating a process for staying the enforcement of a penalty.  Section
242.070 is amended with changes from the provisions deleted in Section
1.15 of the original bill.  These changes include 
language that prevents the department from pursuing two separate penalties
under this Chapter and Chapter 32 of the Human Resource Code for a
violation arising out of the same act or failure to act unless a facility
violates contractual obligations under Chapter 32 of the Human Resource
Code. 

Section 1.19 adds new section 242.072 relating to the recovery of costs by
the attorney general.  This Section also adds 242.073 with changes to the
provisions contained in Section 1.16 of the original bill.  These changes
includes the elimination of the requirement for notice and hearing prior
to the suspension of admissions while requiring the department to provide
the institution with an opportunity for a hearing within 14 days of the
effective date of the suspension.  This Section also adds new section
242.074, Health and Safety Code, authorizing the Attorney General to
conduct additional investigations and defining under which circumstances
those investigations may be conducted.  New section 242.075 authorizes a
demand for a civil investigation and defines the parameters of such,
including disclosure and procedure involved with documentary material, the
delivery of a civil investigation demands, and the role of the Attorney
General.  New section 242.076 prohibits an institution from using, in any
action brought by the department or the Attorney General, any evidence
withheld from the department or the Attorney General during an inspection
or investigation under this chapter if the evidence was requested by the
department or the attorney general and is not privileged under the law of
this state.   

Section 1.20 amends 242.096(e) Health and Safety Code, by raising the
threshold amount of the nursing and convalescent trust fund to $500,000.
Section 242.096 (e) is not addressed in the  introduced version. 

Section 1.21 amends section 242.097 (a) and (b), Health and Safety Code,
by increasing the nursing and convalescent home trust fund threshold to
$500,000.  Section 242.097 is not addressed in the introduced version.  

Section 1.22 adds new section 242.1225 with changes to the provisions
contained in Section 1.17 of the original bill.  These changes include the
requirement that the department establish rules to report require the
reporting of conditions in institutions causing exploitation or injury and
other conditions as required by the department. 

Section 1.23 amends section 242.126 with changes to the provisions
contained in Section 1.20 in the original bill.  These changes include
changing the two hour response time to 24 hours, elimination of the
initial status report, elimination of the 45 day period for the completion
of the written investigation report, requiring the department to adopt
rules governing the conduct of investigations. 

Section 1.24 amends 242.127 with changes to the provisions contained in
Section 1.21 of the original bill.  These changes provide that working
papers and related records used or developed in an investigation are
confidential in the same manner as under current law and regulation. 

Section 1.25 amends 242.133(a) with changes from the version provided in
Section 1.22 of the original bill.  These changes broaden the prohibition
against retaliation. 

Section 1.26 amends 242.1335(a) with changes from the version provided in
Section 1.23 of the original bill.  These changes broaden the prohibition
against retaliation. 

Section 1.28 amends 242.253(c) which was not amended in the original bill .

Section 1.29 amends 242.068 with changes from the provisions provided
under Section 1.25 of the original bill. These changes include additional
limitations on the use of arbitration. 

Section 1.30 provides new subchapters of the Health and Safety Code with
changes from the version provided under Section 1.26 of the original bill.
These changes include clarification of terminology in 242.151, removing
specific nurse to resident ratio replaced with a new standard applicable
to nursing and related services, changes to 242.156 to avoid conflict with
federal law, elimination of prescriptive language in 242.403 providing the
department with broader rule-making authority, changes to 242.501 relating
to the rights of residents to eliminate reference to Chapter 102 of the
Human Resources Code, changes to 242.504 to eliminate the posting of a
notice on all doors of the institution relating to violations of resident
rights while making such information available to the public at the
institution.  Other changes include the elimination of 242.555 contained
in the original bill , changes to 242.611 delete existing law relating to
fees appropriated back to the department to defray only the costs incurred
under this section. 

Section 1.31 amends section 222.0255, Health and Safety Code, with changes
to the provisions provided in Section 1.27 of the original bill.  These
changes include the elimination of separate rules for licensure and
certification. 
Section 2.01 is changed to remove the fair rental value reimbursement
system, and to reinstate arbitration of monetary penalties assessed under
the Human Resources Code.