BG C.S.H.B. 1787 75(R)    BILL ANALYSIS


PUBLIC HEALTH
C.S.H.B. 1787
By: Coleman
4-2-97
Committee Report (Substituted)


BACKGROUND 

Texas entered the Intermediate Care Facility for the Mentally Retarded
(ICF/MR)Medicaid program in 1974 to improve staff ratios in state schools
and draw in federal revenue. Originally, the ICF/MR program was affiliated
with the nursing home program as a large facility-based long term service
for persons with mental retardation. State statutes governing the ICF/MR
program were incorporated under Chapter 242, which also governs personal
care facilities, maternity homes, and nursing homes. 

Over the years, national trends and philosophy regarding services to
persons with mental retardation have changed significantly. The ICF/MR
program has moved away from large, congregate settings to small, home-like
settings of six beds or less; and no longer shares common characteristics
with the nursing home program. Emphasis is placed on training individuals
to attain maximum independence, to facilitate greater community
involvement, and greater quality of life. Currently, there are 773
community-based ICF/MR homes serving, 4,624 individuals located in
neighborhoods across the state. In contrast, services to residents in
nursing facilities have changed little over the years, with the major
focus being the provision of medical care and treatment in large,
congregate settings.  

Although Chapter 242 governed nursing facilities, ICFs/MR, maternity
homes, and personal care facilities, differences recognized in services
provided by the latter two programs led to legislative actions which moved
personal care facilities and maternity homes into their own sections.
ICF/MR services have similarly changed and thus also require their own
chapter. 

PURPOSE

CSHB 1787 moves the Intermediate Care Facility for the Mentally Retarded
(ICF/MR) program to its own Chapter of the Health and Safety Code to
support current best practices in the field of mental retardation. 

RULEMAKING AUTHORITY

It is the committee's opinion that this bill expressly grants rulemaking
authority in SECTION 1 (Subtitle B, Title 4, Health and Safety Code,
Chapter 252). Rulemaking authority is granted to the Texas Department of
Human Services (TDHS) and any designee of TDHS in Sec. 252.007(a) and to
TDHS in Secs. 252.008, 252.033(e), 252,065(b), and 252.151. Rulemaking
authority granted to TDHS is referenced in Sec. 252.122(a). Rulemaking
authority is granted to the Texas Board of Human Services (board) in Secs.
252.034(a), 252.037, 252.038(b), 252.061(b), 252.066, 252.129(b),
252.153(c), and 252.182(b). Rulemaking authority granted to the board or
designated agency is referenced in Sec. 252.126. Rulemaking authority
granted to the board is referenced in Secs. 252.040(a), 252.134(d), Sec.
252.185.      

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Subtitle B, Title 4, Health and Safety Code, by adding
Chapter 252, entitled "Intermediate Care Facilities for the Mentally
Retarded," as follows: 

SUBCHAPTER A.  GENERAL PROVISIONS

 Sec. 252.001.  Purpose. Establishes that the purpose of this chapter is
to promote public health, safety and welfare through standards for
intermediate care facilities for the mentally retarded as specified.  

Sec. 252.002. Definitions. Provides definitions of certain terms, as
specified. 

Sec. 252.003. Exemptions. Establishes that this chapter does not apply to
specified establishments, except as otherwise provided. 

Sec. 252.004 Allocated Federal Money. Allows TDHS to accept and use
federally allocated money for administrative expenses.  

Sec. 252.005. Language Requirements Prohibited.  Prohibits a facility from
prohibiting a resident or employee from communicating in their native
language as specified.  

Sec. 252.006.  Rights of Residents.  Requires each facility to implement
and enforce Chapter 102, Human Resources Code.  

Sec. 252.007.  Paperwork Reduction Rules. Requires TDHS and its designees
to adopt rules to reduce paperwork amounts as specified. Requires TDHS,
its designees and each facility to work together to review rules and
propose changes in paperwork requirements.  

Sec. 252.008.  Requires TDHS to adopt rules related to the administration
and implementation of this chapter. 

Sec. 252.009. Consultation and Coordination.  Requires TDHS to use state
and local agencies in carrying out functions as specified. Allows TDHS to
cooperate with local health officials and delegate power to make
inspections and recommendations as specified. Allows TDHS  to coordinate
personnel and facilities with a local agency as specified and advise the
municipality or county as specified. 

Sec. 252.010.  Change of Administrators; Fee.  Requires a facility that
hires a new administrator or other person as specified to notify TDHS in
writing as specified and pay a $20.00 administrative fee.  

Sec. 252.011.  Prohibition of Renumeration. Prohibits a facility from
receiving renumeration from a person or agency that furnishes services or
materials for a fee. 

SUBCHAPTER B.  LICENSING, FEES, AND INSPECTIONS.

Sec. 252.031.  License Required.  Prohibits establishing, conducting, or
maintaining a facility in this state without a licensed issued under this
chapter. 

Sec. 252.032.  License Application.  Establishes that license applications
are to be made to TDHS as specified and must contain information that TDHS
requires.  Allows TDHS to require affirmative evidence of ability to
comply with rules and standards. 

Sec. 252.033.  Issuance and Renewal of License. (a) requires TDHS, after
an application is received, to issue a license if inspection and
investigation finds that requirements are met. 

Subsection (b) allows TDHS to issue a license only for the premises,
persons, or governmental units named and for the maximum number of beds
specified. 

Subsection (c) prohibits transference or assignment of a license.

Subsection (d) establishes license renewability on the second anniversary
of issuance or renewal after an inspection; approved renewal report; and
fee payment.  
 
Subsection (e) establishes that the renewal report must be filed in
accordance with rules as specified. 

Subsection (f) prohibits TDHS from issuing a license for new beds or
expansion of an existing facility unless the addition is included in the
HHSC approved plan as specified. 

Subsection (g) establishes that a fee imposed under this chapter is an
allowable cost for Medicaid reimbursement. Requires an increase in fee to
be reflected in prospective rates. 

Sec. 252.034.  License Fees.  (a) allows the Texas Board of Human Services
(board) by rule, to adopt a fee, not to exceed $150 plus $5 for each unit
of capacity or bed space, for a license.  

Subsection (b) stipulates that the fee must be paid with each application
as specified. 

Subsection (c) exempts state operated facilities from the fee payment
requirement. 

Subsection (d) allows the board to adopt an additional fee for increased
bed space approval. 

Subsection (e) requires all collected license fees to be deposited in the
state treasury to the credit of TDHS. Allows for appropriation to TDHS as
specified. 
  
Sec. 252.035.  Denial, Suspension, or Revocation of License. (a) allows
TDHS to deny, suspend, or revoke a license as specified, after providing
notice and opportunity for a hearing. 

Subsection (b) establishes that the applicant's status is preserved until
final deposition, except as specified in public interest court orders.  

Sec. 252.036.  Minimum Standards. Allows the board to adopt, publish, and
enforce minimum standards relating to factors as specified.  

Sec. 252.037.  Reasonable Time to Comply.  Requires the board, by rule, to
give an operating facility reasonable time to comply with an adopted rule
or standard. 

Sec. 252.038.  Fire Safety Requirements (a) requires a facility to comply
with requirements established under this section. 

Subsection (b) requires the board to adopt, by rule, applicable fire
safety standards as specified. 

Subsection (c) establishes that a facility legally licensed on September
1. 1997 must comply with standards as specified. 

Subsection (d) provides that licensed facilities are not prevented from
conforming voluntarily to a fire safety standard compatible with, equal
to, or more stringent than those adopted by the board.  

Subsection (e) allows a municipality to enact additional fire safety
standards applicable to new construction as specified, notwithstanding any
other provision of this section. 

Sec. 252.039.  Posting.  Requires each facility to display in a public
area as specified the issued license; a sign, as specified, regarding
complaint procedure; a notice, as specified, stating that inspection and
related reports are available to the public to see and providing  TDHS's
toll free telephone number that may be used to obtain information on the
facility; and a summary of the most recent inspection report.  

Sec. 252.040.  Inspections.  (a) allows TDHS or its designee to make any
inspection, survey, or investigation it considers necessary and to enter
the premise of a facility, at reasonable times, in accordance with board
rules. 

Subsection (b) entitles TDH to have access to facility books, records, and
other documents as specified.  

Subsection (c) establishes that a license holder or applicant is
considered to have consented to entry and inspection by TDHS as specified.

Subsection (d) requires that TDHS establish procedures to preserve
evidence, as specified, that is reasonably believed to threaten the health
and safety of a resident. Allows procedures to include photography or
photocopying as specified.   

Subsection (e) requires TDHS to respect the privacy of residents to the
greatest extent possible and not make public their identity when
photographing residents. 

Subsection (g) requires TDHS to establish forms, as specified, to
summarize each inspection and complaint investigation report.  

Subsection (h) requires TDHS to establish proper procedures to ensure that
copies of forms and reports are made available to consumers and service
recipients as specified.    

Sec. 252.041.  Unannounced Inspections.  (a) requires TDHS to conduct at
least two unannounced inspections of each facility each licensing period. 

Subsection (b) requires TDHS to randomly select facilities, as specified,
for unannounced cursory inspections, as specified, to be conducted between
5 p.m. and 8 a.m. in order to ensure continuous compliance.  

Subsection (c) allows TDHS to require additional inspections. 

Subsection (d) allows TDHS to invite, as appropriate, at least one person
as a citizen advocate, as specified, to participate in inspections.   

Sec. 252.042.  Disclosure of Unannounced Inspections; Criminal Penalty.
(a) establishes that a person who intentionally, knowingly, or recklessly
discloses facts to an unauthorized person about an unannounced inspection
before it occurs commits an offense.  

Subsection (b) provides that "unauthorized person" in this section does
not include TDH, the office of the attorney general, an agency or
organizational representative when a concurrent Medicaid survey is made,
or any other person or entity authorized by law to make inspections or
accompany an inspector. 
  
Subsection (c) establishes that an offense made under this section is a
Class B misdemeanor. 

Subsection (d) establishes that a person convicted under this section is
not eligible for state employment.  

Sec. 252.043.  Licensing Surveys. Requires TDHS to provide a team to
conduct surveys to validate licensing findings in order to assure that
teams throughout the state survey in a fair and consistent manner.
Establishes that a facility cited by the validation team must correct
deficiencies, but is not subject to punitive action for those
deficiencies. 

 SUBCHAPTER C. GENERAL ENFORCEMENT

Sec. 252.061.  Emergency Suspension, or Closing Order. (a) requires TDHS
to suspend a facility's license or order immediate closing of part of the
facility if the facility is found to be operating in violation of
prescribed standards and the violation creates an immediate threat to the
health and safety of a resident. 

Subsection (b) requires the board, by rule, to provide for the placement
of residents during suspension or closing as specified. 

Subsection (c) provides that an order suspending or closing a part of a
facility is immediately effective when written notice is received or a
later date as specified in the order. 

Subsection (d) provides that an order suspending a license or ordering an
immediate closing is valid for 10 days after the effective date.    

Sec. 252.062.  Injunction. (a) allows TDH to petition a district court for
a temporary restraining order as specified.  

Subsection (b) allows a district court, upon petition of TDHS, to order
injunctions as specified.  

Subsection (c) requires the attorney general , upon request of TDHS, to
bring a suit as specified.  

Subsection (d) establishes that a suit for injunctive relief must be
brought in the county in which the alleged violation occurred.  

Sec. 252.063.  License Requirements: Criminal Penalty.  Establishes that a
person commits an offense if the person violates Sec. 252.031. Provides
that an offense is punishable by a fine of not more than $1,000 for the
first offense and not more than $500 for each subsequent offense. Provides
that each day of a continuing violation after conviction is a separate
offense.   

Sec. 252.064.  Civil Penalty. (a) establishes that a person who violates
this chapter is liable for a civil penalty of not less than $100 or more
than $10,000 for each violation if TDHS determines that the health and
safety of a resident is threatened.  

Subsection (b) establishes that each day of a continuing violation
constitutes separate grounds for recovery. 

Subsection (c) requires the attorney general, on request of TDHS to bring
a suit to collect a civil penalty. Requires that any collected money be
remitted to the comptroller for deposit to the general revenue fund. 

Sec. 252.065.  Administrative Penalty. (a) allows TDHS to assess an
administrative penalty against a facility in violation as specified.  

Subsection (b) requires TDHS, by rule, to establish gradations and amounts
of penalties. 

Subsection (c) requires TDHS to consider specified factors in determining
the amount of a penalty.  

Subsection (d) prohibits the penalty from exceeding $5,000 for each
violation, as specified.  

Subsection (e) prohibits TDHS from assessing a penalty under both this
Subchapter  and Section 32.021, Human Resources Code, for a violation
arising out of the same act or failure to act. 

Sec. 252.066.  Rules Regarding Administrative Penalty.  (a) requires the
board to adopt rules governing the assessment of administrative penalties,
including procedures for giving notice of a violation to a facility,
payment and refund of a penalty, and hearings and appeals. 
 
Subsection (b) requires rules adopted under this section to include
specific and objective criteria that describe the scope and severity of a
violation as specified. Establishes that a penalty must be appropriate to
the violation and may only be imposed when a violation presents an
immediate and serious threat as specified.  

Subsection (c) provides that the rules must establish a system to ensure
standard and consistent application of penalties across different areas of
the state. 

Subsection (d) allows TDHS to prescribed a per diem penalty as specified.

Subsection (e) defines "immediate and serious threat" for purposes of this
section as specified.   

SUBCHAPTER D.  TRUSTEES

Sec.  252.091.  Findings and Purpose. (a) provides the legislative finding
that under some circumstances, closing a facility for a violation may have
an adverse effect as specified.  

Subsection (b) provides that the purpose of this chapter is to provide for
appointment of a trustee to assume operations as specified and a fund to
assist a court-ordered trustee meet basic resident needs. 

Sec. 252.092.  Appointment by Agreement (a) allows a person holding a
controlling interest in a facility to request TDHS to assume the operation
of the facility through the appointment of a trustee.  

Subsection (b) allows TDH to enter into an agreement, as specified, if
TDHS considers the appointment desirable.   

Subsection (c) stipulates that an agreement specify the terms and
conditions of the trustee's appointment and authority and preserve the
legal rights of the residents. 

Subsection (d) establishes that the agreement terminates when specified by
the parties or when either party notifies the other in writing. 

Sec. 252.093.  Involuntary Appointment. (a) allows TDHS to request the
attorney general to bring an action on behalf of the state for the
appointment of a trustee if specified conditions exist. 

Subsection (b) allows a trustee appointed under Subsection (a) (5) only to
ensure relocation of the residents as specified. 

Subsection (c) requires a court to appoint a trustee to take charge of a
facility after a hearing in which it is found that involuntary appointment
is necessary. 

Subsection (d) requires the court to appoint as trustee an individual
whose background includes mental retardation service administration, if
possible.  

Subsection (e) stipulates that an action under this section must be
brought in Travis County.    

Sec. 252.094.  Fee; Released Funds. Establishes that an appointed trustee
is entitled to a  reasonable fee as determined by the court and allows the
trustee to petition the court to order the release to the trustee of any
payment owed the trustee for care and services provided to the residents
if the payment has been withheld, including payments as specified. 

Sec. 252.095.  Emergency Assistance Fee.  (a) allows TDHS to collect an
annual fee to be used to make emergency assistance money available, in
addition to collected licensing and renewals as specified.   

Subsection (b) requires fees collected under this section to be in the
amount prescribed by Section 242.097(b) and deposited to the credit of the
nursing and convalescent home trust fund as specified.  

Subsection (c) allows TDH to disburse money to a trustee for a licensed
facility to alleviate an immediate threat to the health or safety of the
residents as specified.  

Subsection (d) allows a court to order TDHS to disburse emergency
assistance money as specified.   

Sec. 252.096. Reimbursement.  (a) requires a facility receiving emergency
assistance money to reimburse TDHS for amounts received plus interest.  

Subsection (b) establishes interest accrual and rates as specified.

Subsection (c) provides that reimbursement responsibility is with the
facility owner when the trustee is appointed. 

Subsection (d) establishes delinquent reimbursements as specified and
allows TDMHMR to determine that the facility is Medicaid ineligible.  

Subsection (e) requires TDHS to deposit reimbursements and interest to the
credit of the nursing and convalescent home trust fund.  

Subsection (f) requires the attorney general to institute an action to
collect money due at the request of TDHS. Establishes that an action under
this section must be brought in Travis County.  

Sec. 252.097.  Notification of Closing; Criminal Penalty. (a) requires a
facility that is closing temporarily or permanently to notify the
residents and make reasonable efforts to notify in writing each resident's
nearest relative or support person as specified.  

Subsection (b) requires the facility to give notification orally or in
writing, immediately upon receiving notice of a TDHS closure order as
specified. 

Subsection (c) requires the facility to give notice not later than one
week after a decision is made to close voluntarily. 


Sec.  252.098. Criminal Penalty for Failure to Notify.  Establishes that a
Class A misdemeanor is committed if the facility knowingly fails to comply
with Section 252.097. 

SUBCHAPTER E.  REPORTS OF ABUSE AND NEGLECT

Sec. 252.121. Definition. Defines "designated agency" as used in this
subchapter. 

Sec. 252.122.  Reporting of Abuse and Neglect. (a) requires a person who
has cause to believe that the physical or mental health or welfare of a
resident has been or may be adversely affected as specified to report the
abuse or neglect to TDHS, to a designated agency, or to both as specified
in TDHS rules.  

 Subsection (b) requires each facility to require, as specified, each
employee to sign a statement that the employee realizes failure to report
abuse or neglect may make them criminally liable. 

Subsection (c) requires a person to make an oral report immediately upon
learning of abuse or neglect. Requires the person to make a written report
to the same agency not later than five days after the oral report is made.

Sec. 252.123. Contents of Report. Establishes that a report of abuse or
neglect is nonaccusatory and reflects the reporting person's belief as
specified. Provides that the report must contain certain information, as
specified.  

Sec. 252.124. Anonymous Reports of Abuse or Neglect. Requires an anonymous
report, as specified, to be received and acted on in the same manner as an
acknowledged report. Requires a receiving law enforcement agency to refer
the report to TDHS or the designated agency. 

Sec. 252.125. Investigation and Report of Receiving Agency. (a) requires
TDHS or the designated agency to make a thorough investigation as
specified.  

Subsection (b) establishes that the investigation's primary purpose is
resident protection. 

Subsection (c) requires TDHS or designated agency to determine
circumstance and information as specified, in the investigation. 

Subsection (d) allows for an investigative visit to the resident's
facility and an interview with the resident, if considered appropriate. 

Subsection (e) requires a probate or county court to order the person
responsible for the resident's care or the person in charge of a place
where the resident is located to allow admission for the investigation and
any interview as specified. 

Subsection (f) requires TDHS to file a petition for temporary care and
protection if it is determined that immediate removal is necessary as
specified. 

Subsection (g) requires TDHS or the designated agency to make and submit a
complete written report and recommendations to the district attorney and
appropriate law enforcement agency and if necessary and requested to TDHS.

Sec. 252.126. Confidentiality. Establishes that a report, record, or
working paper used or developed in an investigation is confidential.
Allows disclosure only as specified. 

Sec. 252.127.  Immunity. Provides that a person reporting an abusive or
negligent act is immune from civil or criminal liability as specified.
Establishes that such immunity extends to participation in resultant
judicial proceedings. 


Sec. 252.128.  Privileged Communications. Except for attorney-client,
prohibits the exclusion of evidence on the grounds of privileged
communication, in a proceeding regarding abuse or neglect as specified.  

Sec. 252.129.  Central Registry. (a) requires TDHS to maintain a central
registry of reported cases of resident abuse or neglect as specified.
Requires TDHS to include the registry in the registry maintained under
Section 242.130.  

Subsection (b) allows the board to adopt rules necessary to carry out this
section.  

Subsection (c) requires the rules to provide for the cooperation with
hospitals and  clinics in the exchange of reports as specified.  

Sec. 252.130.  Failure to Report; Criminal Penalty. Establishes that a
person commits a Class A misdemeanor if the person has cause to believe
that a resident's physical or mental health or welfare has been or may be
adversely affected as specified and fails to report as specified.  

Sec. 252.131. Bad Faith, Malicious, or Reckless Reporting; Criminal
Penalty. Provides that a person commits a Class A misdemeanor if the
person reports under this subchapter in bad faith, maliciously or
recklessly. Establishes that the criminal penalty provided is in addition
to any civil penalties for which the person may be liable.  

Sec. 252.132. Suit for Retaliation. (a) prohibits a facility from
suspending, terminating, disciplining or otherwise discriminate against an
employee for making a report, as specified, about the abuse or neglect of
a resident. 

Subsection (b) establishes that a facility in violation of Subsection (a)
is liable to the person who as discriminated against. Allows the person
discriminated against to sue for injunctive relief, damages, or both. 

Subsection (c) delineates amounts that may be recovered by a plaintiff
prevailing in such a suit. 

Subsection (d) establishes that the petitioner must bring suit  or notify
the Texas Workforce Commission as specified, not later than 90 days after
suspension or termination. Provides that a petitioner who notifies the
Texas Workforce Commission as specified, must bring suit not later than 90
days after notice was delivered to the commission. Requires the commission
to notify the facility as specified, upon receipt of notice.  

Subsection (f) establishes that the petitioner has the burden of proof,
except as specified.  

Subsection (g) allows a suit to be brought in the district court of the
county in which the plaintiff resides, was employed by the defendant, or
where the defendant conducts business.  

Subsection (h) requires each facility to require each employee to sign a
statement, as specified, about understanding their rights under this
section. Provides that the statement must be part of the statement
required under Section 252.122(b). Stipulates that if a facility does not
require an employee to read and sign the statement, the periods prescribed
by subsection (e) do not apply, and the petitioner must bring suit not
later than the date as specified. 

Sec. 252.133. Suit for Retaliation Against Resident. (a) prohibits a
facility from retaliating or discriminating against a resident if the
resident, the resident's guardian, or any other person reports abuse or
neglect in accordance with this subchapter.  

Subsection (b) establishes that a resident against whom a facility
retaliates or discriminates as specified is entitled to sue for relief and
damages as specified.  

Subsection (c) provides that a resident seeking relief under this section
must report the alleged violation not later than 180 days after it
occurred or was discovered as specified.  

Subsection (d) allows such a suit to be brought in the district court of
the county in which the facility is located or in a district court of
Travis County.  
 
Sec. 252.134. Reports Relating to Resident Deaths; Statistical
Information.  (a) requires a licensed facility to submit a report to TDHS
concerning the death of a facility resident, and a former resident that
occurs within 24 hours of transferring from the facility.   

Subsection (b) establishes that the report must be submitted not later
than 10 working days after the last day of each month in which a facility
resident dies. Provides that the report must be made on a form prescribed
by the department, and must contain the name and social security number of
the deceased.  

Subsection (c) requires TDHS to correlate reports under this section with
death certificate information to develop data as specified.  

Subsection (d) provides that a record under this section is confidential
and not subject to provisions of Chapter 552, Government Code, unless
specified by board rule.  

Subsection (e)  requires TDHS to develop statistical information on
official causes of death as specified. Establishes that information
developed under this subsection is not confidential.  

Subsection (f) requires a licensed facility to make historical statistics
on all required information available on the request of an applicant or an
applicant's representative. 

SUBCHAPTER F. MEDICAL CARE

Sec. 252.151. Administration of Medication. Requires TDHS to adopt rules
relating to the administration of medication in intermediate care
facilities.  

Sec. 252.152.  Required Medical Examination. Requires TDHS to require each
resident to be given at least one medical examination annually. Requires
TDHS to specify details of the examination.  

Sec. 252.153.  Emergency Medication Kit.  Entitles a licensed institution
to maintain a supply of controlled substances, to be labeled in accordance
with all applicable food and drug laws as specified in an emergency
medication kit. Requires the board to adopt rules governing the amount,
type, and procedure for controlled substance use. Provides that the
storage of the controlled substances in the kit is under supervision of
the consultant pharmacist and requires the administration of the
controlled substances to comply with all applicable laws. 

SUBCHAPTER G. RESPITE CARE

Sec. 252.181. Definitions. Provides definitions for "plan of care" and
"respite care." 

Sec. 252.182. Respite Care.  Allows a licensed facility to provide respite
care as specified. Allows the board to adopt rules for the regulation of
respite care by a licensed facility. 

Sec. 252.183. Plan of Care. (a) establishes that the facility and the
person arranging the care must agree on the plan of care and that the plan
must be filed at the facility before the person is admitted. 

Subsection (b) establishes that the plan of care must be signed as
specified.  

Subsection (c) prohibits a facility from keeping an agreed plan of care
for more than six months. Requires the facility to review and update the
plan after each admission. Allows the facility to admit the person as
frequently as is needed and as accommodations are available during the
period.  

Sec. 252.184. Notification. Requires a facility that offers respite care
to so notify TDHS in writing. 
 
Sec. 252.185. Inspections. Requires TDHS to inspect a facility's records
of respite care services, physical accommodations as specified, and plan
of care records to ensure compliance with licensing standards and adopted
rules as specified.  

Sec. 252.186.  Suspension. Allows TDHS to require a facility to cease
providing respite care if it is determined that required standards are not
met as specified. Allows TDHS to suspend the license of a facility that
continues to provide respite care after receiving a written order to cease
from TDHS.  

SECTION 2.  Amends Section 242.002(6), Health and Safety Code, to conform
to the new Chapter 252 by omitting references to  ICF/MR facilities as
"institutions" regulated under Chapter 242. 

SECTION 3.  Amends Section 242.003, Health and Safety Code, to add "a
facility licensed under Chapter 252 or exempt from licensure under Section
252.003" to the list of facilities exempt from regulation under Chapter
242. 

SECTION 4.  Establishes that the general effective date for the bill is to
be September 1, 1997, except for  Section 2 which will take effect on
January 1, 1998. 

SECTION 5.  Provides a transition process for facilities currently
licensed under Chapter 242 which must become licensed under new Chapter
252 by January 1, 1998. Specifies that facilities licensed under Chapter
242 on the September 1, 1997 effective date of the act may continue to
operate under that license until January 1, 1998 or until that license
expires prior to January 1, 1998, and further provides that a facility
licensed under new Chapter 252 is not subject to Chapter 48, Human
Resources Code. 

SECTION 6.  Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

CSHB 1787 amends the definition of the word "facility" in the proposed
Section 252.002(4) of HB 1787 to specify that the new Chapter 252 applies
only to IFC/MR and HCS program residential facilities, and not to other
programs such as adult day facilities, as requested by the Texas
Department of Mental Health/Mental Retardation. 

CSHB 1787 inserts the words "or providing" in proposed Section 252.005 of
HB 1787 to specify that a facility employee may communicate in the
person's native language for the purpose of providing care, training, or
treatment and conform the language of the section to the language of the
analogous Section 242.011 of Chapter 242. 

CSHB 1787 inserts the phrase "After receiving the application," in
subsection (a) of the proposed Section 252.033 of HB 1787, to clarify the
procedure governing issuance of a license under new Chapter 252 and
conform the language of the section to the language of the analogous
Section 242.033 of Chapter 242. 

CSHB 1787 revises the language of subsection (f) of the proposed Section
252.033 of HB 1787 to clarify that the department is authorized to refuse
to issue a license only to applicants for new beds or the expansion of an
existing facility which are not included in the state's plan for long-term
care facilities for persons with mental retardation under Section 533.062,
Health and Safety Code. 

CSHB 1787 adds the language "and may be appropriated to the department to
administer and enforce this chapter" to subsection (e) of the proposed
Section 252.034 of HB 1787 to authorize the appropriation of funds derived
from license fees to carry out the responsibilities imposed upon the
department by Chapter 252 and conform the language of the section to the
language of the analogous Section 242.033 of Chapter 242. 

CSHB 1787 revises the language regarding administrative penalties of
proposed Sections 252.065 and 252.066 of HB 1787 to retain the basic
structure of the due process safeguards and the department's general
rulemaking authority governing administrative penalties and procedures,
while  conforming the language to that of  a settlement agreement secured
in recent litigation between certain private providers of ICF/MR services
and the department. 

CSHB 1787 revises subsection (b) of proposed Section 252.094 of HB 1787 to
delete redundant language referring to the withholding of certain payments
of funds to a trustee appointed to assume the operations of a facilities
where such funds where "withheld by the department at the recommendation
of the department." 

CSHB 1787 substitutes the words "Texas Department of Mental Health and
Mental Retardation" for the word "department" (which refers to the Texas
Department of Human Services) in subsection (d) of proposed Section
252.096 because TDMH/MR, not TDHS, is the agency responsible for
determining whether an ICF/MR facility is ineligible for a Medicaid
provider contract. 

CSHB 1787 adds a sentence in subsection (a) of proposed Section 252.129 of
HB 1787 to specify that a central registry of reported cases of abuse or
neglect of a resident of an ICF/MR facility regulated under Chapter 252
shall be included in the central registry of reported cases of abuse or
neglect of a resident of a nursing facility regulated under Chapter 242,
to avoid the unnecessary duplication and costs of maintaining separate
registries. 

CSHB 1787 adds new subsection (e) and (f), and an appropriate change in
the section heading,  to proposed Section 252.134 of HB 1787 to authorize
the department to develop statistical information relating to incidents of
death among residents of ICF/MR facilities and to make such information
public and available to applicants for ICF/MR services, and conform the
language of the section to the language of analogous Section 242.134. 

CSHB 1787 revises the language of proposed Section 252.152 (Application of
Other Law) and adds a new proposed Section 252.153 to HB 1787 to set forth
in proposed Chapter 252 all of those provisions of Chapter 242 which
currently apply to residents of ICF/MR facilities (other than those
provisions relating to the administration of medication, which will be
governed by rules adopted by the department under proposed Section
252.151), including the requirements of an annual medical examination of
residents and the presence in each facility of an emergency medication
kit.  

CSHB 1787 amends  section 3 of the HB 1787, which amends subdivision (8)
of Section 242.003, Health and Safety Code, regarding exemptions from the
nursing facility regulation under Chapter 242, to correct two erroneous
citations to other sections of the Code, and clarify the exemption of
facilities licensed under Chapter 251 (end stage renal disease facilities)
or proposed Chapter 252 (ICF/MR facilities).