By Maxey H.B. No. 755
75R3285 DLF-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to certain administrative penalties assessed against
1-3 nursing homes and similar institutions.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subchapter B, Chapter 242, Health and Safety
1-6 Code, is amended by adding Section 242.0375 to read as follows:
1-7 Sec. 242.0375. ADEQUATE STAFF. An institution shall
1-8 maintain an adequate number of staff as necessary to comply with
1-9 this chapter and any rules, standards, or orders adopted under this
1-10 chapter.
1-11 SECTION 2. Section 242.066, Health and Safety Code, is
1-12 amended to read as follows:
1-13 Sec. 242.066. ADMINISTRATIVE PENALTY. (a) The department
1-14 may assess an administrative [a civil] penalty against a person who
1-15 violates this chapter or a rule, standard, or order adopted or
1-16 license issued under this chapter.
1-17 (b) The penalty may not exceed $10,000 a day for each
1-18 violation.
1-19 (c) Each day of a continuing violation constitutes a
1-20 separate violation.
1-21 (d) In a case in which the department finds that a violation
1-22 of Section 242.0375 is a contributing factor in the violation of
1-23 another provision of this chapter or a rule, standard, or order
1-24 adopted or license issued under this chapter, the violation of
2-1 Section 242.0375 constitutes a separate violation subject to a
2-2 separate penalty under this subchapter, and a penalty may be
2-3 assessed without regard to whether a penalty is assessed for the
2-4 violation of the other provision, or the rule, standard, order, or
2-5 license.
2-6 (e) The board shall establish gradations of penalties in
2-7 accordance with the relative seriousness of the violation.
2-8 (f) [(e)] In determining the amount of a penalty, the
2-9 department shall consider any matter that justice may require,
2-10 including:
2-11 (1) the gradations of penalties established under
2-12 Subsection (e) [(d)];
2-13 (2) the seriousness of the violation, including the
2-14 nature, circumstances, extent, and gravity of the prohibited act
2-15 and the hazard or potential hazard created by the act to the health
2-16 or safety of the public;
2-17 (3) the history of previous violations;
2-18 (4) deterrence of future violations; and
2-19 (5) efforts to correct the violation.
2-20 SECTION 3. Section 242.068(d), Health and Safety Code, is
2-21 amended to read as follows:
2-22 (d) Based on the findings of fact and recommendations of the
2-23 hearing examiner, the commissioner by order may find:
2-24 (1) a violation has occurred and assess an
2-25 administrative [a civil] penalty; or
2-26 (2) a violation has not occurred.
2-27 SECTION 4. Section 242.069(a), Health and Safety Code, is
3-1 amended to read as follows:
3-2 (a) The commissioner shall give notice of the decision taken
3-3 under Section 242.068(d) to the person charged. If the
3-4 commissioner finds that a violation has occurred and has assessed
3-5 an administrative [a civil] penalty, the commissioner shall give
3-6 written notice to the person charged of the findings, the amount of
3-7 the penalty, and the person's right to judicial review of the
3-8 order.
3-9 SECTION 5. Section 32.021, Human Resources Code, is amended
3-10 by adding Subsection (l) to read as follows:
3-11 (l) A long-term care provider shall maintain an adequate
3-12 number of staff as necessary to comply with the applicable
3-13 standards for participation in the state Medicaid program. In a
3-14 case in which the department finds that a violation of this
3-15 subsection is a contributing factor in the violation of an
3-16 applicable standard for participation in the state Medicaid
3-17 program, the violation of this subsection constitutes a separate
3-18 violation subject to a separate monetary penalty under this
3-19 section, and a penalty may be assessed without regard to whether a
3-20 penalty is assessed for violation of the standard.
3-21 SECTION 6. (a) The Texas Department of Human Services shall
3-22 contract with an institution of higher education, as that term is
3-23 defined by Section 61.003, Education Code, to conduct a study
3-24 relating to adequate staff for institutions licensed under Chapter
3-25 242, Health and Safety Code, and appropriate penalties for failure
3-26 to maintain adequate staff. In conducting the study, the
3-27 institution of higher education shall form a work group to obtain
4-1 the input of advocates for institution residents, consumer
4-2 representatives, and representatives of institutions.
4-3 (b) Not later than January 1, 1998, the work group shall
4-4 prepare a report to the Texas Department of Human Services that
4-5 includes recommendations relating to:
4-6 (1) the feasibility of adopting rules mandating the
4-7 appropriate number of staff to be maintained by an institution
4-8 licensed under Chapter 242, Health and Safety Code;
4-9 (2) proposed rules to be adopted, if the work group
4-10 finds that adopting rules is feasible;
4-11 (3) administrative penalties or alternative
4-12 appropriate remedies for violations of any proposed rules; and
4-13 (4) the effectiveness of the imposition of
4-14 administrative penalties under Chapter 242, Health and Safety Code,
4-15 or Chapter 32, Human Resources Code, in requiring the appropriate
4-16 number of staff at institutions.
4-17 SECTION 7. This Act takes effect on September 1, 1997, and
4-18 applies only to conduct that occurs on or after that date. Conduct
4-19 that occurred before the effective date of this Act is governed by
4-20 the law as it existed immediately before the effective date of this
4-21 Act, and that law is continued in effect for this purpose.
4-22 SECTION 8. The importance of this legislation and the
4-23 crowded condition of the calendars in both houses create an
4-24 emergency and an imperative public necessity that the
4-25 constitutional rule requiring bills to be read on three several
4-26 days in each house be suspended, and this rule is hereby suspended.