SRC-JFA S.B. 1248 75(R) BILL ANALYSIS
Senate Research Center S.B. 1248
By: Madla
Health & Human Services
3-31-97
As Filed
DIGEST
Currently, the Intermediate Care Facilities and Mental Retardation Program
is codified in Chapter 242 of the Health and Safety Code, relating to the
regulation of nursing home programs in the state. Over the years, national
trends and changes in philosophy regarding services to people with mental
retardation have significantly changed. In contrast, the trends in
services to individuals residing in nursing facilities have changed little
over the years. This bill would set forth Chapter 252, Health and Safety
Code, pertaining to the direct regulation and governance of intermediate
care facilities for the mentally retarded by the Texas Department of Human
Services and Texas Board of Human Services.
PURPOSE
As proposed, S.B. 1248 sets forth Chapter 252, Health and Safety Code,
containing the regulations and guidelines for intermediate care facilities
for the mentally retarded.
RULEMAKING AUTHORITY
Rulemaking authority is granted to the Texas Board of Human Services
(board) in SECTION 1 (Sections 252.034, 252.036, 252.037, 252.038(b),
252.061(b), 252.065(g) and (h), 252.066, 252.129(b), 252.134(d), and
252.182(b), Health and Safety Code); to the Texas Department of Human
Services (department) in SECTION 1 (Sections 252.008, 252.033(e),
252.040(d), and 252.151, Health and Safety Code), to the board or a
designated agency in SECTION 1 (Section 252.126, Health and Safety Code),
and to the department and designee of the department in SECTION 1 (Section
252.007(a), Health and Safety Code) of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Title 4B, Health and Safety Code, by adding Chapter 252,
as follows:
CHAPTER 252. INTERMEDIATE CARE FACILITIES FOR THE MENTALLY
RETARDED
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 252.001. PURPOSE. Provides that the purpose of this chapter is to
promote the public health, safety, and welfare by providing for the
development, establishment, and enforcement of standards for the provision
of services to individuals residing in intermediate care facilities for
the mentally retarded and the establishment, construction, maintenance,
and operation of facilities providing this service that will promote
quality in the delivery of services and treatment of residents.
Sec. 252.002. DEFINITIONS. Defines "board," "department," "designee,"
"facility," "governmental unit," "person," and "resident."
Sec. 252.003. EXEMPTIONS. Sets forth the establishments that, except as
otherwise provided by this chapter, do not apply to this chapter.
Sec. 252.004. ALLOCATED FEDERAL MONEY. Authorizes the Department of
Human Services (department) to accept and use any money allocated by the
federal government to the department for administrative expenses.
Sec. 252.005. LANGUAGE REQUIREMENTS PROHIBITED. Prohibits a facility
from prohibiting a resident or employee from communicating in the person's
native language with another resident or employee for the purpose of
acquiring care, training, or treatment.
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 the department and any
designee of the department to adopt rules to reduce the amount of
paperwork a facility must complete and retain; and attempt to reduce the
amount of paperwork to the minimum amount required by state and federal
law unless the reduction would jeopardize resident safety. Requires the
department, any designee of the department, and each facility to work
together to review rules and propose changes in paperwork requirements so
that additional time is available for direct residential care.
Sec. 252.008. RULES GENERALLY. Requires the department to adopt rules
related to the administration and implementation of this chapter.
Sec. 252.009. CONTINUATION AND COORDINATION. Requires the department to
use the services of and consult with state and local agencies in carrying
out the department's functions; and use the facilities of the department
or a designee of the department. Authorizes the department to cooperate
with local public health officials of a municipality or county and to
delegate to those officials the power to make inspections and
recommendations to the department. Authorizes the department to
coordinate its personnel and facilities with a local agency of a
municipality or county and to provide advice to the municipality or county
if the municipality or county decides to supplement the state program with
additional rules required to meet local conditions.
Sec. 252.010. CHANGE OF ADMINISTRATORS; FEE. Sets forth the actions
which a facility that hires a new administrator or other person designated
as the chief management officer for the facility is required to do upon
such a hiring.
Sec. 252.011. PROHIBITION OF RENUMERATION. Prohibits a facility from
receiving monetary or other renumeration from a person or agency that
furnishes services or materials to the facility or residents for a fee.
Authorizes the department to revoke the license of a facility that
violates this section.
SUBCHAPTER B. LICENSING, FEES, AND INSPECTIONS
Sec. 252.031. LICENSE REQUIRED. Prohibits a person or governmental unit
from establishing, conducting, or maintaining a facility in this state
without a license.
Sec. 252.032. LICENSE APPLICATION. Provides that an application for a
license is made to the department on a form provided by the department and
must be accompanied by the license fee adopted under Section 252.034.
Requires the application to contain information that the department
requires. Authorizes the department to require affirmative evidence of
ability to comply with the standards and rules adopted under this chapter.
Sec. 252.033. ISSUANCE AND RENEWAL OF LICENSE. Requires the department
to issue a license if it finds that the applicant and facility meet the
requirements established under this chapter. Authorizes the department to
issue a license only for the premises and persons or governmental unit
named in the application; and the maximum number of beds specified in the
application. Prohibits a license from being transferred or assigned.
Provides that a license is renewable on the second anniversary of issuance
or renewal of the license after certain conditions are met. Requires the
renewal report to be filed in accordance with certain rules adopted by the
department. Prohibits the department from issuing a license under this
chapter unless the beds provided under the license are approved under the
state's plan on long-term care facilities for persons with mental
retardation. Provides that a license or renewal fee imposed under this
chapter is an allowable cost for reimbursement under the state Medicaid
program. Requires an increase in the amount of a fee to be reflected in
reimbursement rates prospectively.
Sec. 252.034. LICENSE FEES. Authorizes the Board of Human Services
(board), by rule, to adopt a fee for a license issued under this chapter.
Sets forth the maximum amount of the fee. Requires the license fee to be
paid with each application for an initial license or for a renewal or
change of ownership of a license. Provides that a facility operated by
the state is not required to pay a license fee. Authorize the board to
adopt an additional fee for the approval of an increase in bed space.
Requires all license fees collected under this section to be deposited in
the state treasury to the credit of the department.
Sec. 252.035. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE. Authorizes
the department to deny, suspend, or revoke a license if the department
finds that the applicant or license holder has substantially failed to
comply with the requirements established under this chapter. Provides
that the status of an applicant for a license or a license holder is
preserved until final disposition of the contested matters, except as the
court may order in the public interest for the welfare and safety of the
residents.
Sec. 252.036. MINIMUM STANDARDS. Authorizes the board to adopt, publish,
and enforce certain minimum standards relating to the facility and the
facility's residents.
Sec. 252.037. REASONABLE TIME TO COMPLY. Requires the board, by rule, to
give a facility that is in operation when a rule or standard is adopted
under this chapter a reasonable time to comply with the rule or standard.
Sec. 252.038. FIRE SAFETY REQUIREMENTS. Requires a facility to comply
with the fire requirements established under this section. Requires the
board, by rule, to adopt the fire safety standards applicable to the
facility. Requires the standards to be the same as the fire safety
standards established by an edition of the Life Safety Code of the
National Fire Protection Association. Authorizes the edition selected, if
required by federal law or regulation, to be different for facilities or
portions of facilities operated or approved for construction at different
times. Requires a facility that is licensed under applicable law on
September 1, 1997, to comply with the fire safety standards applicable to
the facility on that date. Provides that the rules adopted under this
section do not prevent a facility licensed under this chapter from
voluntarily conforming to fire safety standards that are compatible with,
equal to, or more stringent that those adopted by the board. Authorizes a
municipality to enact additional and more stringent fire safety standards
applicable to new construction begun on or after September 1, 1997.
Sec. 252.039. POSTING. Requires each facility to prominently and
conspicuously post for display in a public area of the facility that is
readily available to residents, employers, and visitors certain items
relating to the operation and regulation of the facility.
Sec. 252.040. INSPECTIONS. Authorizes the department or its designee to
make any inspection, survey, or investigation that it considers necessary
and to enter the premises of a facility at reasonable times to make an
inspection, survey, or investigation. Provides that the department is
entitled to access certain documents maintained by or on behalf of a
facility to the extent necessary to enforce this chapter and the rules
adopted under this chapter. Provides that a license holder or an applicant
for a license is considered to have consented to entry and inspection of
the facility by a representative of the department. Requires the
department to establish procedures to preserve all relevant evidence of
conditions that the department finds during an inspection, survey, or
investigation that the department reasonably believes threaten a resident.
Authorizes the procedures to include photography or photocopying of
relevant documents. Requires the department to respect the privacy of the
resident to the greatest extent possible; and prohibits making the
identity of the resident known to the public. Provides that a facility,
an officer or employee of a facility, and a resident's attending physician
are not civilly liable for surrendering confidential or private material
under this section. Requires the department to establish a form to
summarize each inspection report and complaint investigation report.
Requires the department to establish proper procedures to ensure that
copies of all forms and reports under this section are made available to
consumers, service recipients, and the relatives of service recipients as
the department considers proper.
Sec. 252.041. UNANNOUNCED INSPECTIONS. Requires the department to
conduct at least two unannounced inspections of each facility during each
licensing period. Requires the department to randomly select a sufficient
percentage of facilities for unannounced inspections to be conducted
between 5 p.m. and 8 a.m. in order to ensure compliance. Requires the
inspections to be cursory. Authorizes the department to require
additional inspections. Authorize the department to invite at least one
person as a citizen advocate to participate in inspections. Requires the
advocate to be an individual who has an interest in or who is employed by
or affiliated with an organization or entity that represents, advocates
for, or serves individuals with mental retardation or a related condition.
Sec. 252.042. DISCLOSURE OF UNANNOUNCED INSPECTIONS; CRIMINAL PENALTY.
Provides that a person commits a Class B misdemeanor if the person
intentionally, knowingly, or recklessly discloses to an unauthorized
person facts about an unannounced inspection of a facility before the
inspection occurs. Sets forth persons who are not included within the
definition of "unauthorized person." Provides that a person convicted
under this section is not eligible for state employment.
Sec. 252.043. LICENSING SURVEYS. Requires the department to provide a
team to conduct surveys to validate findings of licensing surveys.
Provides that the purpose of such a survey is to assure that survey teams
survey in a fair and consistent manner. Requires a facility subjected to
a validation survey to correct deficiencies cited by the validation team
but is not subject to punitive action for those deficiencies.
SUBCHAPTER C. GENERAL ENFORCEMENT
Sec. 252.061. EMERGENCY SUSPENSION OR CLOSING ORDER. Requires the
department to suspend a facility's license or order an immediate closing
of part of the facility if certain conditions are found by the department.
Requires the board, by rule, to provide for the placement of residents
during the facility's suspension or closing to ensure their health and
safety. Provides that an order suspending a license or closing a part of
a facility under this section is immediately effective on the date on
which the license holder receives written notice or a later date specified
in the court order. Provides that an order suspending a license or
ordering an immediate closing of a part of a facility is valid for 10 days
after the effective date of the order.
Sec. 252.062. INJUNCTION. Authorizes the department to petition a
district court for a temporary restraining order to restrain a person from
continuing a violation of the standards if the department finds that the
violation creates an immediate threat to the health and safety of the
facility's residents. Authorizes the district court, by injunction, to
prohibit a person from continuing a violation of the standards or
licensing requirements prescribed by this chapter; to restrain or prevent
the establishment, conduct, management, or operation of a facility without
a license issued under this chapter; or to grant the injunctive relief
warranted by the facts on a finding by the court that a person is
violating the standards or licensing requirements prescribed by this
chapter. Authorizes the attorney general, on request by the department,
to bring and conduct on behalf of the state a suit authorized by this
section. Requires a suit for a temporary restraining order or other
injunctive relief to be brought in the county in which the alleged
violation occurs.
Sec. 252.063. LICENSE REQUIREMENTS; CRIMINAL PENALTY. Provides that a
person commits an offense if the person violates Section 252.031.
Provides that an offense under this section 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. Provides that a person who violates this
chapter or a rule adopted under this chapter is liable for a civil penalty
of not less than $100 or more than $10,000 for each violation if the
department determines the violation threatens the health and safety of a
resident. Provides that each day of a continuing violation constitutes a
separate ground for recovery. Requires the attorney general, on request
of the department, to bring and conduct a suit to collect a civil penalty.
Requires the amount collected to be remitted to the comptroller for
deposit to the credit of the general revenue fund.
Sec. 252.065. ADMINISTRATIVE PENALTY. (a) Authorizes the board to
impose an administrative penalty against a person licensed under this
chapter or a rule or order adopted under this chapter.
(b) Authorizes the penalty for a violation to be in an amount not to
exceed $5,000. Provides that each day a violation continues or occurs is a
separate violation for purposes of imposing a penalty.
(c) Requires the amount of the penalty to be based on certain conditions.
(d) Authorize the executive director, upon determining that a violation
has occurred, to issue a report to the board that states the facts on
which the determination is based and the director's recommendation on the
imposition of a penalty
(e) Requires the executive director, within 14 days after the date the
report is issued, to give written notice of the report to the person.
Authorize the notice to be given by certified mail. Sets forth the
required contents of the penalty.
(f) Authorizes a person, within 20 days after the date the person
receives the notice, to accept the determination and recommended penalty
or to make a written request for hearing on the occurrence of the
violation, the amount of the penalty, or both.
(g) Requires the board, by order, to approve the determination and impose
the recommended penalty upon the person accepting the determination and
recommended penalty of the executive director.
(h) Sets forth the guidelines for a hearing if the person requests a
hearing or fails to respond timely to the notice.
(i) Sets forth the required contents of the notice of the board's order
given to the person under Chapter 2001, Government Code.
(j) Sets forth the options from which a person is required to choose,
within 30 days after the date the board's order becomes final.
(k) Sets forth the options from which a person is authorized to choose,
within the 30-day period in order to stay enforcement of the penalty.
(l) Authorizes the executive director, upon receipt of a copy of a
certain affidavit, to file with the court, within five days after the date
the copy is received, a contest to the affidavit. Requires the court to
hold a hearing on the facts alleged in the affidavit as soon as
practicable and to stay the enforcement of the penalty on finding that the
alleged facts are true. Provides that the person who files an affidavit
has the burden of proving that the person is financially unable to pay the
amount of the penalty and to give a supersedeas bond.
(m) Authorizes the executive director to refer the matter to the attorney
general for collection of the amount of the penalty if the person does not
pay the amount of the penalty and the enforcement of the penalty is not
stayed.
(n) Provides that judicial review of the order of the board is
instituted by filing a petition as provided by Chapter 2001G, Government
Code; and is under the substantial evidence rule.
(o) Authorizes the court to uphold or reduce the amount of the penalty
and order the person to pay that amount if the court sustains the
occurrence of the violation. Requires the court to order that no penalty
is owed if the court does not sustain the occurrence of the violation.
(p) Sets forth the required guidelines under which the court is to
proceed when the judgment of the court becomes final.
(q) Requires a penalty collected under this section to be remitted to the
comptroller for deposit in the general revenue fund.
(r) Provides that all proceedings to impose a penalty under this section
are subject to Chapter 2001, Government Code.
Sec. 252.066. RULES REGARDING ADMINISTRATIVE PENALTY. Requires the board
to adopt rules governing the assessment of administrative penalties under
this chapter, including rules providing for giving notice of a violation
to a facility; and governing payment and refund of the penalty. Requires
rules adopted under this section to include specific and objective
criteria for determining the scope and severity of a violation and
specific penalty ranges that correspond to violations. Sets forth
required guidelines for the penalties. Requires the rules to establish a
system to ensure standard and consistent application of penalties.
Authorizes the department to prescribe a penalty for each day of a
continuing violation. Provides that if a facility notifies the department
that a violation has been corrected, the notification is prima facie
evidence that the violation has been corrected. Prohibits the department
from assessing a penalty for a continuing violation after the date on
which the department receives notification that the violation has been
corrected unless the department finds that the violation in fact continued
after that date. Defines "immediate and serious threat," for purposes of
this section.
SUBCHAPTER D. TRUSTEES FOR FACILITIES
Sec. 252.091. FINDINGS AND PURPOSE. Provides that the legislature finds
that closing a facility for a violation of a law or rule may have an
adverse effect on the facility's residents and their families; and result
in a lack of readily available financial resources to meet the basic needs
of the residents for food, shelter, medication, and personal services.
Provides that the purpose of this subchapter is to provide for the
appointment of a trustee to assume the operations of the facility in a
manner that emphasizes resident care and reduces resident trauma; and a
fund to assist a court-appointed trustee in meeting the basic needs of the
residents.
Sec. 252.092. APPOINTMENT BY AGREEMENT. Authorizes a person who holds a
controlling interest in a facility to request the department to assume the
operation of the facility through the appointment of a trustee under this
subchapter. Authorizes the department to enter into an agreement
providing for the appointment of a trustee to take charge of the facility
under conditions both parties consider appropriate if the department
considers the appointment desirable. Sets forth the required conditions
of an agreement. Sets forth the termination date of the agreement.
Sec. 252.093. INVOLUNTARY APPOINTMENT. Authorizes the department to
request the attorney general to bring an action on behalf of the state for
the appointment of a trustee to operate a facility under certain
circumstances. Authorizes an appointed trustee to only assure an orderly
and safe relocation of the facility's residents as quickly as possible.
Requires a court to appoint a trustee to take charge of a facility if the
court finds that involuntary appointment of a trustee is necessary.
Requires the court, if possible, to appoint as trustee an individual whose
background includes mental retardation service administration. Provides
that an action under this section must be brought in Travis County.
Sec. 252.094. FEE; RELEASE OF MONEY. Provides that a trustee appointed
under this subchapter is entitled to a reasonable fee as determined by the
court. Authorizes 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.
Sec. 252.095. EMERGENCY ASSISTANCE FEE. Authorizes the department to
collect an annual fee to be used to make emergency assistance money
available to a facility licensed under this chapter. Requires the fee
collected under this section to be in the amount prescribed by Section
242.097(b) and to be deposited to the credit of the nursing and
convalescent home trust fund established under Section 242.096.
Authorizes the department to disburse money to a trustee for a facility
licensed under this chapter to alleviate an immediate threat to the health
or safety of the facility's residents. Authorizes payments to include
payments described by Section 242.096(b). Authorizes a court to order the
department to disburse emergency assistance money to a trustee for a
facility licensed under this chapter if the court makes the findings
provided by Section 242.096(c).
Sec. 252.096. REIMBURSEMENT. Requires a facility that receives emergency
assistance money under this subchapter to reimburse the department for the
amount received. Provides that the interest on unreimbursed amounts
begins to accrue on the date on which the money is disbursed to the
facility. Sets forth the rate of interest. Provides that the owner of
the facility when the trustee is appointed is responsible for the
reimbursement. Provides that the amount that remains unreimbursed on the
first anniversary of the date on which the money is received is delinquent
and the department may determine that the facility is ineligible for a
Medicaid provider contract. Requires the department to deposit the
reimbursement and interest received under this section to the credit of
the nursing and convalescent home trust fund. Requires the attorney
general to institute an action to collect money due under this section at
the request of the department. Requires an action to be brought in Travis
County.
Sec. 252.097. NOTIFICATION OF CLOSURE; CRIMINAL PENALTY. Requires a
facility that is closing to notify the residents of the closing and make
reasonable efforts to notify in writing each resident's nearest relative
or the person responsible for the resident's support within a reasonable
time before the facility closes. Requires the facility to make the
notification immediately on receiving a notice of the closing, if the
department orders a facility to close or the facility's closure is in any
other way involuntary. Requires the facility, if the closure is
voluntary, to make the notification by one week after the date on which
the decision to close is made.
Sec. 252.098. CRIMINAL PENALTY FOR FAILURE TO NOTIFY. Provides that a
facility commits a Class A misdemeanor 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."
Sec. 252.122. REPORTING OF ABUSE AND NEGLECT. 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 by abuse or neglect caused
by another person to report the abuse or neglect to the department, to a
designated agency, or to both. Requires each facility to require each
employee of the facility to sign a statement that the employee realizes
that the employee may be criminally liable for failure to report abuse or
neglect. Requires a person to make an oral report immediately on learning
of abuse or neglect and to make a written report to the same agency by the
fifth day after the oral report is made.
Sec. 252.123. CONTENTS OF REPORT. Provides that a report of abuse or
neglect is nonaccusatory and reflects the reporting person's belief that a
resident has been or will be abused or neglected or has died of abuse or
neglect. Sets forth the required contents of the report.
Sec. 252.124. ANONYMOUS REPORTS OF ABUSE OR NEGLECT. Requires an
anonymous report of abuse or neglect to be received and acted on in the
same manner as an acknowledged report. Requires a local or state law
enforcement agency that receives a report of abuse or neglect to refer the
report to the department or the designated agency.
Sec. 252.125. INVESTIGATION AND REPORT OF RECEIVING AGENCY. Requires the
department or the designated agency to make a thorough investigation
promptly after receiving a report. Provides that the primary purpose of
the investigation is the protection of the resident. Sets forth the facts
and information the department or the designated agency is required to
determine in the investigation. Authorizes the investigation to include a
visit to the resident's facility and an interview with the resident.
Requires a probate or county court under certain circumstances to order
the person responsible for the care of a resident or the person in charge
of a place where the resident is located to allow for the investigation
and any interview with the resident. Requires the department to file a
petition for temporary care and protection of the resident if the
department determines that immediate removal is necessary to protect the
resident from further abuse or neglect. Requires the department or the
designated agency to make a complete written report of the investigation
and submit the report and its recommendations to the district attorney and
the appropriate law enforcement agency and to the department on the
department's request.
Sec. 252.126. CONFIDENTIALITY. Provides that a report, record, or
working paper used or developed in an investigation made under this
subchapter is confidential and may be disclosed only for purposes
consistent with the rules adopted by the board or the designated agency.
Sec. 252.127. IMMUNITY. Provides that a person who reports an act of
abuse or neglect as provided by this subchapter is immune from civil or
criminal liability that, in the absence of immunity, might result from
making the report. Provides that the immunity provided by this section
extends to participation in any judicial proceeding that results from the
report.
Sec. 252.128. PRIVILEGED COMMUNICATIONS. Prohibits evidence in a
proceeding regarding the abuse or neglect of a resident or the cause of
any abuse or neglect from being excluded on the ground of privileged
communication except in the case of a communication between an attorney
and client.
Sec. 252.129. CENTRAL REGISTRY. Requires the department to maintain in
the city of Austin a central registry of reported cases of resident abuse
or neglect. Authorizes the board to adopt rules necessary to carry out
this section. Requires the rules to provide for cooperation with
hospitals and clinics in the exchange of reports of resident abuse or
neglect.
Sec. 252.130. FAILURE TO REPORT; CRIMINAL PENALTY. Provides 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
further adversely affected by abuse or neglect and knowingly fails to
report in accordance with Section 252.122.
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. Provides that the criminal penalty provided by this section
is in addition to any civil penalties for which the person may be liable.
Sec. 252.132. SUIT FOR RETALIATION. Prohibits a facility from suspending
or terminating the employment of, or from disciplining or otherwise
discriminating against, an employee for reporting to the employee's
supervisor, an administrator of the facility, a state regulatory agency,
or a law enforcement agency the abuse or neglect of a resident. Provides
that a facility that violates this section is liable to the person against
whom the facility discriminated. Authorizes a person against whom a
facility discriminates in violation of this section to sue for injunctive
relief, damages, or both. Sets forth the damages a plaintiff who prevails
in a suit is authorized to recover. Provides that a person whose
employment is suspended or terminated is entitled to reinstatement in the
person's former position. Requires the petitioner to bring suit or notify
the Texas Workforce Commission (commission) of the petitioner's intent to
sue by a certain date. Requires a petitioner who notifies the commission
to bring suit by a certain date after delivery of the notice to the
commission. Requires the commission, upon receipt of notice, to notify
the facility of the petitioner's intent to bring suit under this section.
Provides that the petitioner has the burden of proof, except that there is
a rebuttable presumption that the person's employment was suspended or
terminated for reporting abuse or neglect if the person is suspended or
terminated within 60 days after the date on which the person reported in
good faith. Sets forth the venue options for a suit in district court
under this section. Requires each facility to require each employee of
the facility to sign a statement that the employee understands the
employee's rights under this section. Requires the statement to be part
of the statement required under Section 252.122(b). Requires the
petitioner to bring suit by the second anniversary of the date on which
the person's employment is suspended or terminated if a facility does not
require an employee to read and sign the statement.
Sec. 252.133. SUIT FOR RETALIATION AGAINST RESIDENT. 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. Provides that a resident
against whom a facility retaliates or discriminates is entitled to sue for
certain relief, damages, court costs, and attorney's fees. Requires a
resident who seeks relief under this section to report the alleged
violation by the 180th day after the date on which the alleged violation
of this section occurred or was discovered by the resident through
reasonable diligence. Authorizes 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. Requires a facility
licensed under this chapter to submit a report to the department
concerning the death of a resident of the facility and a former resident
that occurs 24 hours or less after the former resident is transferred from
the facility to the hospital. Requires the report to be submitted by the
10th working day after the last day of each month in which a resident of
the facility dies. Requires the facility to make the report on a form
prescribed by the department. Requires the report to contain the name and
social security number of the deceased. Requires the department to
correlate reports under this section with death certificate information to
develop data relating to certain information. Provides that unless
specified by board rule, a record under this section is confidential and
not subject to the provisions of Chapter 552, Government Code.
SUBCHAPTER F. MEDICAL CARE
Sec. 252.151. ADMINISTRATION OF MEDICATION. Requires the department to
adopt rules relating to the administration of medication in intermediate
care facilities.
Sec. 252.152. APPLICATION OF OTHER LAW. Provides that except as provided
by Subsection (c), Chapter 242F applies to a facility. Defines "resident"
and "institution." Provides that Section 242.160 does not apply to a
facility.
SUBCHAPTER G. RESPITE CARE
Sec. 252.181. DEFINITIONS. Defines "plan of care" and "respite care."
Sec. 252.182. RESPITE CARE. Authorizes a facility licensed under this
chapter to provide respite care for an individual who has a diagnosis of
mental retardation or a related condition without regard to whether the
individual is eligible to receive intermediate care services under federal
law. Authorizes the board to adopt rules for the regulation of respite
care provided by a facility licensed under this chapter.
Sec. 252.183. PLAN OF CARE. Requires the facility and the person
arranging the care to agree on the plan of care and requires the plan to
be filed at the facility before the facility admits the person for the
care. Sets forth who must sign the plan of care. Authorizes the facility
to keep an agreed plan of care for a person for no longer than six months
from the date on which it is received. Requires the facility to review
and update the plan of care after each admission. Authorizes a facility
to admit the person as frequently as is needed and as accommodations are
available during that period.
Sec. 252.184. NOTIFICATION. Requires a facility that offers respite care
to notify the department in writing that it offers respite care.
Sec. 252.185. INSPECTIONS. Requires the department to inspect a
facility's records of respite care services, physical accommodations
available for respite care, and the plan of care records to ensure that
the respite care services comply with the licensing standards of this
chapter and with any rules the board may adopt to regulate respite care
services.
Sec. 252.186. SUSPENSION. Authorizes the department to require a
facility to cease providing respite care if the department determines that
the respite care does not meet the standards required by this chapter and
that the facility cannot comply with those standards in the respite care
it provides. Authorizes the department to suspend the license of a
facility that continues to provide respite care after receiving a written
order from the department to cease.
SECTION 2. Amends Section 242.002(6), Health and Safety Code, to redefine
"institution."
SECTION 3. Amends Section 242.003, Health and Safety Code, to provide that
except as otherwise provided, this chapter does not apply to, among
others, a facility licensed under Chapter 251 or exempt from licensure
under Section 251.003. Deletes a provision providing that an institution
described by Section 242.002(6)(c) is subject to licensing under this
chapter under certain conditions.
SECTION 4. (a) Effective date: September 1, 1997.
(b) Provides that changes made to Section 242.002(6), Health and Safety
Code, by this Act, take effect January 1, 1998.
SECTION 5. (a) Provides that notwithstanding Sections 252.031 and
252.063, Health and Safety Code, as added by this Act, a facility is not
required to be licensed under Chapter 252, Health and Safety Code, as
added by this Act, before January 1, 1998; and a facility that is required
to be licensed under that chapter and that is, on the effective date of
this Act, licensed under Chapter 242, Health and Safety Code, may continue
to operate under the license issued under Chapter 242 until the later of
December 31, 1997, or the date on which the license is subject to renewal.
(b) Prohibits a license issued under Chapter 242, Health and Safety Code,
to an institution that is required to be licensed as a facility under
Chapter 252, Health and Safety Code, as added by this Act, from being
renewed after December 1, 1997.
(c) Provides that a facility licensed under Chapter 252, Health and
Safety Code, as added by this Act, is not subject to Chapter 48, Human
Resources Code.
SECTION 6. Emergency clause.