By Coleman H.B. No. 1787
75R4593 SKB-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to intermediate care facilities for the mentally retarded;
1-3 imposing civil and criminal penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle B, Title 4, Health and Safety Code, is
1-6 amended by adding Chapter 252 to read as follows:
1-7 CHAPTER 252. INTERMEDIATE CARE FACILITIES FOR THE MENTALLY
1-8 RETARDED
1-9 SUBCHAPTER A. GENERAL PROVISIONS
1-10 Sec. 252.001. PURPOSE. The purpose of this chapter is to
1-11 promote the public health, safety, and welfare by providing for the
1-12 development, establishment, and enforcement of standards for the
1-13 provision of services to individuals residing in intermediate care
1-14 facilities for the mentally retarded and the establishment,
1-15 construction, maintenance, and operation of facilities providing
1-16 this service that, in light of advancing knowledge, will promote
1-17 quality in the delivery of services and treatment of residents.
1-18 Sec. 252.002. DEFINITIONS. In this chapter:
1-19 (1) "Board" means the Texas Board of Human Services.
1-20 (2) "Department" means the Texas Department of Human
1-21 Services.
1-22 (3) "Designee" means a state agency or entity with
1-23 which the department contracts to perform specific, identified
1-24 duties related to the fulfillment of a responsibility prescribed by
2-1 this chapter.
2-2 (4) "Facility" means a home or other establishment
2-3 that provides, on a regular basis, intermediate care services to
2-4 four or more individuals who are unrelated to the owner in
2-5 accordance with 42 C.F.R. Section 435.1009.
2-6 (5) "Governmental unit" means the state or a political
2-7 subdivision of the state, including a county or municipality.
2-8 (6) "Person" means an individual, firm, partnership,
2-9 corporation, association, or joint stock company, and includes a
2-10 legal successor of those entities.
2-11 (7) "Resident" means an individual, including a
2-12 client, with mental retardation or a related condition who is
2-13 residing in a facility licensed under this chapter.
2-14 Sec. 252.003. EXEMPTIONS. Except as otherwise provided by
2-15 this chapter, this chapter does not apply to an establishment that:
2-16 (1) provides training, habilitation, rehabilitation,
2-17 or education to individuals with mental retardation or a related
2-18 condition;
2-19 (2) is operated under the jurisdiction of a state or
2-20 federal agency, including the department, the Texas Rehabilitation
2-21 Commission, the Texas Department of Mental Health and Mental
2-22 Retardation, the Texas Commission for the Blind, the Texas
2-23 Commission on Alcohol and Drug Abuse, the institutional division of
2-24 the Texas Department of Criminal Justice, or the Veterans
2-25 Administration; and
2-26 (3) is certified through inspection or evaluation as
2-27 meeting the standards established by the state or federal agency.
3-1 Sec. 252.004. ALLOCATED FEDERAL MONEY. The department may
3-2 accept and use any money allocated by the federal government to the
3-3 department for administrative expenses.
3-4 Sec. 252.005. LANGUAGE REQUIREMENTS PROHIBITED. A facility
3-5 may not prohibit a resident or employee from communicating in the
3-6 person's native language with another resident or employee for the
3-7 purpose of acquiring care, training, or treatment.
3-8 Sec. 252.006. RIGHTS OF RESIDENTS. Each facility shall
3-9 implement and enforce Chapter 102, Human Resources Code.
3-10 Sec. 252.007. PAPERWORK REDUCTION RULES. (a) The
3-11 department and any designee of the department shall:
3-12 (1) adopt rules to reduce the amount of paperwork a
3-13 facility must complete and retain; and
3-14 (2) attempt to reduce the amount of paperwork to the
3-15 minimum amount required by state and federal law unless the
3-16 reduction would jeopardize resident safety.
3-17 (b) The department, any designee of the department, and each
3-18 facility shall work together to review rules and propose changes in
3-19 paperwork requirements so that additional time is available for
3-20 direct resident care.
3-21 Sec. 252.008. RULES GENERALLY. The department shall adopt
3-22 rules related to the administration and implementation of this
3-23 chapter.
3-24 Sec. 252.009. CONSULTATION AND COORDINATION. (a) Whenever
3-25 possible, the department shall:
3-26 (1) use the services of and consult with state and
3-27 local agencies in carrying out the department's functions under
4-1 this chapter; and
4-2 (2) use the facilities of the department or a designee
4-3 of the department, particularly in establishing and maintaining
4-4 standards relating to the humane treatment of residents.
4-5 (b) The department may cooperate with local public health
4-6 officials of a municipality or county in carrying out this chapter
4-7 and may delegate to those officials the power to make inspections
4-8 and recommendations to the department under this chapter.
4-9 (c) The department may coordinate its personnel and
4-10 facilities with a local agency of a municipality or county and may
4-11 provide advice to the municipality or county if the municipality or
4-12 county decides to supplement the state program with additional
4-13 rules required to meet local conditions.
4-14 Sec. 252.010. CHANGE OF ADMINISTRATORS; FEE. A facility
4-15 that hires a new administrator or other person designated as the
4-16 chief management officer for the facility shall:
4-17 (1) notify the department in writing of the change not
4-18 later than the 30th day after the date on which the change becomes
4-19 effective; and
4-20 (2) pay a $20 administrative fee to the department.
4-21 Sec. 252.011. PROHIBITION OF REMUNERATION. (a) A facility
4-22 may not receive monetary or other remuneration from a person or
4-23 agency that furnishes services or materials to the facility or
4-24 residents for a fee.
4-25 (b) The department may revoke the license of a facility that
4-26 violates Subsection (a).
4-27 (Sections 252.012-252.030 reserved for expansion
5-1 SUBCHAPTER B. LICENSING, FEES, AND INSPECTIONS
5-2 Sec. 252.031. LICENSE REQUIRED. A person or governmental
5-3 unit, acting severally or jointly with any other person or
5-4 governmental unit, may not establish, conduct, or maintain a
5-5 facility in this state without a license issued under this chapter.
5-6 Sec. 252.032. LICENSE APPLICATION. (a) An application for
5-7 a license is made to the department on a form provided by the
5-8 department and must be accompanied by the license fee adopted under
5-9 Section 252.034.
5-10 (b) The application must contain information that the
5-11 department requires. The department may require affirmative
5-12 evidence of ability to comply with the standards and rules adopted
5-13 under this chapter.
5-14 Sec. 252.033. ISSUANCE AND RENEWAL OF LICENSE. (a) The
5-15 department shall issue a license if, after inspection and
5-16 investigation, it finds that the applicant and facility meet the
5-17 requirements established under this chapter.
5-18 (b) The department may issue a license only for:
5-19 (1) the premises and persons or governmental unit
5-20 named in the application; and
5-21 (2) the maximum number of beds specified in the
5-22 application.
5-23 (c) A license may not be transferred or assigned.
5-24 (d) A license is renewable on the second anniversary of
5-25 issuance or renewal of the license, after:
5-26 (1) an inspection;
5-27 (2) filing and approval of a renewal report; and
6-1 (3) payment of the renewal fee.
6-2 (e) The renewal report required under Subsection (d)(2) must
6-3 be filed in accordance with rules adopted by the department that
6-4 specify the form of the report, the date it must be submitted, and
6-5 the information it must contain.
6-6 (f) The department may not issue a license under this
6-7 chapter unless the beds provided under the license are approved
6-8 under the state's plan on long-term care facilities for persons
6-9 with mental retardation, as described by Section 533.062.
6-10 (g) A license or renewal fee imposed under this chapter is
6-11 an allowable cost for reimbursement under the state Medicaid
6-12 program. An increase in the amount of a fee shall be reflected in
6-13 reimbursement rates prospectively.
6-14 Sec. 252.034. LICENSE FEES. (a) The board, by rule, may
6-15 adopt a fee for a license issued under this chapter. The fee may
6-16 not exceed $150 plus $5 for each unit of capacity or bed space for
6-17 which the license is sought.
6-18 (b) The license fee must be paid with each application for
6-19 an initial license or for a renewal or change of ownership of a
6-20 license.
6-21 (c) A facility operated by the state is not required to pay
6-22 a license fee.
6-23 (d) The board may adopt an additional fee for the approval
6-24 of an increase in bed space.
6-25 (e) All license fees collected under this section shall be
6-26 deposited in the state treasury to the credit of the department.
6-27 Sec. 252.035. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE.
7-1 (a) The department, after providing notice and opportunity for a
7-2 hearing to the applicant or license holder, may deny, suspend, or
7-3 revoke a license if the department finds that the applicant or
7-4 license holder has substantially failed to comply with the
7-5 requirements established under this chapter.
7-6 (b) The status of an applicant for a license or a license
7-7 holder is preserved until final disposition of the contested
7-8 matter, except as the court having jurisdiction of a judicial
7-9 review of the matter may order in the public interest for the
7-10 welfare and safety of the residents.
7-11 Sec. 252.036. MINIMUM STANDARDS. The board may adopt,
7-12 publish, and enforce minimum standards relating to:
7-13 (1) the construction or remodeling of a facility,
7-14 including plumbing, heating, lighting, ventilation, and other
7-15 housing conditions, to ensure the residents' health, safety,
7-16 comfort, and protection from fire hazard;
7-17 (2) sanitary and related conditions in a facility and
7-18 its surroundings, including water supply, sewage disposal, food
7-19 handling, and general hygiene in order to ensure the residents'
7-20 health, safety, and comfort;
7-21 (3) equipment essential to the residents' health and
7-22 welfare;
7-23 (4) the reporting and investigation of injuries,
7-24 incidents, and unusual accidents and the establishment of other
7-25 policies and procedures necessary to ensure resident safety;
7-26 (5) behavior management, including use of seclusion
7-27 and physical restraints;
8-1 (6) policies and procedures for the control of
8-2 communicable diseases in employees and residents;
8-3 (7) the use and administration of medication in
8-4 conformity with applicable law and rules for pharmacy services;
8-5 (8) specialized nutrition support such as delivery of
8-6 enteral feedings and parenteral nutrients;
8-7 (9) requirements for in-service education of each
8-8 employee who has any contact with residents;
8-9 (10) the regulation of the number and qualification of
8-10 all personnel, including management and professional support
8-11 personnel, responsible for any part of the care given to residents;
8-12 and
8-13 (11) the quality of life and the provision of active
8-14 treatment to residents.
8-15 Sec. 252.037. REASONABLE TIME TO COMPLY. The board, by
8-16 rule, shall give a facility that is in operation when a rule or
8-17 standard is adopted under this chapter a reasonable time to comply
8-18 with the rule or standard.
8-19 Sec. 252.038. FIRE SAFETY REQUIREMENTS. (a) A facility
8-20 shall comply with fire safety requirements established under this
8-21 section.
8-22 (b) The board, by rule, shall adopt the fire safety
8-23 standards applicable to the facility. The fire safety standards
8-24 must be the same as the fire safety standards established by an
8-25 edition of the Life Safety Code of the National Fire Protection
8-26 Association. If required by federal law or regulation, the edition
8-27 selected may be different for facilities or portions of facilities
9-1 operated or approved for construction at different times.
9-2 (c) A facility that is licensed under applicable law on
9-3 September 1, 1997, must comply with the fire safety standards,
9-4 including fire safety standards imposed by municipal ordinance,
9-5 applicable to the facility on that date.
9-6 (d) The rules adopted under this section do not prevent a
9-7 facility licensed under this chapter from voluntarily conforming to
9-8 fire safety standards that are compatible with, equal to, or more
9-9 stringent than those adopted by the board.
9-10 (e) Notwithstanding any other provision of this section, a
9-11 municipality may enact additional and more stringent fire safety
9-12 standards applicable to new construction begun on or after
9-13 September 1, 1997.
9-14 Sec. 252.039. POSTING. Each facility shall prominently and
9-15 conspicuously post for display in a public area of the facility
9-16 that is readily available to residents, employees, and visitors:
9-17 (1) the license issued under this chapter;
9-18 (2) a sign prescribed by the department that specifies
9-19 complaint procedures established under this chapter or rules
9-20 adopted under this chapter and that specifies how complaints may be
9-21 registered with the department;
9-22 (3) a notice in a form prescribed by the department
9-23 stating that inspection and related reports are available at the
9-24 facility for public inspection and providing the department's
9-25 toll-free telephone number that may be used to obtain information
9-26 concerning the facility; and
9-27 (4) a concise summary of the most recent inspection
10-1 report relating to the facility.
10-2 Sec. 252.040. INSPECTIONS. (a) The department or the
10-3 department's designee may make any inspection, survey, or
10-4 investigation that it considers necessary and may enter the
10-5 premises of a facility at reasonable times to make an inspection,
10-6 survey, or investigation in accordance with board rules.
10-7 (b) The department is entitled to access to books, records,
10-8 and other documents maintained by or on behalf of a facility to the
10-9 extent necessary to enforce this chapter and the rules adopted
10-10 under this chapter.
10-11 (c) A license holder or an applicant for a license is
10-12 considered to have consented to entry and inspection of the
10-13 facility by a representative of the department in accordance with
10-14 this chapter.
10-15 (d) The department shall establish procedures to preserve
10-16 all relevant evidence of conditions the department finds during an
10-17 inspection, survey, or investigation that the department reasonably
10-18 believes threaten the health and safety of a resident. The
10-19 procedures may include photography or photocopying of relevant
10-20 documents, such as license holder's notes, physician's orders, and
10-21 pharmacy records, for use in any legal proceeding.
10-22 (e) When photographing a resident, the department:
10-23 (1) shall respect the privacy of the resident to the
10-24 greatest extent possible; and
10-25 (2) may not make public the identity of the resident.
10-26 (f) A facility, an officer or employee of a facility, and a
10-27 resident's attending physician are not civilly liable for
11-1 surrendering confidential or private material under this section,
11-2 including physician's orders, pharmacy records, notes and memoranda
11-3 of a state office, and resident files.
11-4 (g) The department shall establish in clear and concise
11-5 language a form to summarize each inspection report and complaint
11-6 investigation report.
11-7 (h) The department shall establish proper procedures to
11-8 ensure that copies of all forms and reports under this section are
11-9 made available to consumers, service recipients, and the relatives
11-10 of service recipients as the department considers proper.
11-11 Sec. 252.041. UNANNOUNCED INSPECTIONS. (a) Each licensing
11-12 period, the department shall conduct at least two unannounced
11-13 inspections of each facility.
11-14 (b) In order to ensure continuous compliance, the department
11-15 shall randomly select a sufficient percentage of facilities for
11-16 unannounced inspections to be conducted between 5 p.m. and 8 a.m.
11-17 Those inspections must be cursory to avoid to the greatest extent
11-18 feasible any disruption of the residents.
11-19 (c) The department may require additional inspections.
11-20 (d) As considered appropriate and necessary by the
11-21 department, the department may invite at least one person as a
11-22 citizen advocate to participate in inspections. The invited
11-23 advocate must be an individual who has an interest in or who is
11-24 employed by or affiliated with an organization or entity that
11-25 represents, advocates for, or serves individuals with mental
11-26 retardation or a related condition.
11-27 Sec. 252.042. DISCLOSURE OF UNANNOUNCED INSPECTIONS;
12-1 CRIMINAL PENALTY. (a) Except as expressly provided by this
12-2 chapter, a person commits an offense if the person intentionally,
12-3 knowingly, or recklessly discloses to an unauthorized person the
12-4 date, time, or any other fact about an unannounced inspection of a
12-5 facility before the inspection occurs.
12-6 (b) In this section, "unauthorized person" does not include:
12-7 (1) the department;
12-8 (2) the office of the attorney general;
12-9 (3) a representative of an agency or organization when
12-10 a Medicaid survey is made concurrently with a licensing inspection;
12-11 or
12-12 (4) any other person or entity authorized by law to
12-13 make an inspection or to accompany an inspector.
12-14 (c) An offense under this section is a Class B misdemeanor.
12-15 (d) A person convicted under this section is not eligible
12-16 for state employment.
12-17 Sec. 252.043. LICENSING SURVEYS. The department shall
12-18 provide a team to conduct surveys to validate findings of licensing
12-19 surveys. The purpose of a validation survey is to assure that
12-20 survey teams throughout the state survey in a fair and consistent
12-21 manner. A facility subjected to a validation survey must correct
12-22 deficiencies cited by the validation team but is not subject to
12-23 punitive action for those deficiencies.
12-24 (Sections 252.044-252.060 reserved for expansion
12-25 SUBCHAPTER C. GENERAL ENFORCEMENT
12-26 Sec. 252.061. EMERGENCY SUSPENSION OR CLOSING ORDER. (a)
12-27 The department shall suspend a facility's license or order an
13-1 immediate closing of part of the facility if:
13-2 (1) the department finds the facility is operating in
13-3 violation of the standards prescribed by this chapter; and
13-4 (2) the violation creates an immediate threat to the
13-5 health and safety of a resident.
13-6 (b) The board by rule shall provide for the placement of
13-7 residents during the facility's suspension or closing to ensure
13-8 their health and safety.
13-9 (c) An order suspending a license or closing a part of a
13-10 facility under this section is immediately effective on the date on
13-11 which the license holder receives written notice or a later date
13-12 specified in the order.
13-13 (d) An order suspending a license or ordering an immediate
13-14 closing of a part of a facility is valid for 10 days after the
13-15 effective date of the order.
13-16 Sec. 252.062. INJUNCTION. (a) The department may petition a
13-17 district court for a temporary restraining order to restrain a
13-18 person from continuing a violation of the standards prescribed by
13-19 this chapter if the department finds that the violation creates an
13-20 immediate threat to the health and safety of the facility's
13-21 residents.
13-22 (b) A district court, on petition of the department, may by
13-23 injunction:
13-24 (1) prohibit a person from continuing a violation of
13-25 the standards or licensing requirements prescribed by this chapter;
13-26 (2) restrain or prevent the establishment, conduct,
13-27 management, or operation of a facility without a license issued
14-1 under this chapter; or
14-2 (3) grant the injunctive relief warranted by the facts
14-3 on a finding by the court that a person is violating the standards
14-4 or licensing requirements prescribed by this chapter.
14-5 (c) The attorney general, on request by the department,
14-6 shall bring and conduct on behalf of the state a suit authorized by
14-7 this section.
14-8 (d) A suit for a temporary restraining order or other
14-9 injunctive relief must be brought in the county in which the
14-10 alleged violation occurs.
14-11 Sec. 252.063. LICENSE REQUIREMENTS; CRIMINAL PENALTY. (a)
14-12 A person commits an offense if the person violates Section 252.031.
14-13 (b) An offense under this section is punishable by a fine of
14-14 not more than $1,000 for the first offense and not more than $500
14-15 for each subsequent offense.
14-16 (c) Each day of a continuing violation after conviction is a
14-17 separate offense.
14-18 Sec. 252.064. CIVIL PENALTY. (a) A person who violates this
14-19 chapter or a rule adopted under this chapter is liable for a civil
14-20 penalty of not less than $100 or more than $10,000 for each
14-21 violation if the department determines the violation threatens the
14-22 health and safety of a resident.
14-23 (b) Each day of a continuing violation constitutes a
14-24 separate ground for recovery.
14-25 (c) The attorney general, on request of the department,
14-26 shall bring and conduct a suit to collect a civil penalty. Any
14-27 amount collected shall be remitted to the comptroller for deposit
15-1 to the credit of the general revenue fund.
15-2 Sec. 252.065. ADMINISTRATIVE PENALTY. (a) The board may
15-3 impose an administrative penalty against a person licensed under
15-4 this chapter who violates this chapter or a rule or order adopted
15-5 under this chapter.
15-6 (b) The penalty for a violation may be in an amount not to
15-7 exceed $5,000. Each day a violation continues or occurs is a
15-8 separate violation for purposes of imposing a penalty.
15-9 (c) The amount of the penalty shall be based on:
15-10 (1) the seriousness of the violation, including the
15-11 nature, circumstances, extent, and gravity of any prohibited acts,
15-12 and the hazard or potential hazard created to the health, safety,
15-13 or economic welfare of the public;
15-14 (2) the economic harm to property or the environment
15-15 caused by the violation;
15-16 (3) the history of previous violations;
15-17 (4) the amount necessary to deter future violations;
15-18 (5) efforts to correct the violation; and
15-19 (6) any other matter that justice may require.
15-20 (d) If the executive director determines that a violation
15-21 has occurred, the director may issue a report to the board that
15-22 states the facts on which the determination is based and the
15-23 director's recommendation on the imposition of a penalty, including
15-24 a recommendation on the amount of the penalty.
15-25 (e) Within 14 days after the date the report is issued, the
15-26 executive director shall give written notice of the report to the
15-27 person. The notice may be given by certified mail. The notice
16-1 must include a brief summary of the alleged violation and a
16-2 statement of the amount of the recommended penalty and must inform
16-3 the person that the person has a right to a hearing on the
16-4 occurrence of the violation, the amount of the penalty, or both the
16-5 occurrence of the violation and the amount of the penalty.
16-6 (f) Within 20 days after the date the person receives the
16-7 notice, the person in writing may accept the determination and
16-8 recommended penalty of the executive director or may make a written
16-9 request for a hearing on the occurrence of the violation, the
16-10 amount of the penalty, or both the occurrence of the violation and
16-11 the amount of the penalty.
16-12 (g) If the person accepts the determination and recommended
16-13 penalty of the executive director, the board by order shall approve
16-14 the determination and impose the recommended penalty.
16-15 (h) If the person requests a hearing or fails to respond
16-16 timely to the notice, the executive director shall set a hearing
16-17 and give notice of the hearing to the person. The hearing shall be
16-18 held by an administrative law judge of the State Office of
16-19 Administrative Hearings. The administrative law judge shall make
16-20 findings of fact and conclusions of law and promptly issue to the
16-21 board a proposal for a decision about the occurrence of the
16-22 violation and the amount of a proposed penalty. Based on the
16-23 findings of fact, conclusions of law, and proposal for a decision,
16-24 the board by order may find that a violation has occurred and
16-25 impose a penalty or may find that no violation occurred.
16-26 (i) The notice of the board's order given to the person
16-27 under Chapter 2001, Government Code, must include a statement of
17-1 the right of the person to judicial review of the order.
17-2 (j) Within 30 days after the date the board's order becomes
17-3 final as provided by Section 2001.144, Government Code, the person
17-4 shall:
17-5 (1) pay the amount of the penalty;
17-6 (2) pay the amount of the penalty and file a petition
17-7 for judicial review contesting the occurrence of the violation, the
17-8 amount of the penalty, or both the occurrence of the violation and
17-9 the amount of the penalty; or
17-10 (3) without paying the amount of the penalty, file a
17-11 petition for judicial review contesting the occurrence of the
17-12 violation, the amount of the penalty, or both the occurrence of the
17-13 violation and the amount of the penalty.
17-14 (k) Within the 30-day period, a person who acts under
17-15 Subsection (j)(3) of this section may:
17-16 (1) stay enforcement of the penalty by:
17-17 (A) paying the amount of the penalty to the
17-18 court for placement in an escrow account; or
17-19 (B) giving to the court a supersedeas bond that
17-20 is approved by the court for the amount of the penalty and that is
17-21 effective until all judicial review of the board's order is final;
17-22 or
17-23 (2) request the court to stay enforcement of the
17-24 penalty by:
17-25 (A) filing with the court a sworn affidavit of
17-26 the person stating that the person is financially unable to pay the
17-27 amount of the penalty and is financially unable to give the
18-1 supersedeas bond; and
18-2 (B) giving a copy of the affidavit to the
18-3 executive director by certified mail.
18-4 (l) If the executive director receives a copy of an
18-5 affidavit under Subsection (k)(2) of this section, the director may
18-6 file with the court, within five days after the date the copy is
18-7 received, a contest to the affidavit. The court shall hold a
18-8 hearing on the facts alleged in the affidavit as soon as
18-9 practicable and shall stay the enforcement of the penalty on
18-10 finding that the alleged facts are true. The person who files an
18-11 affidavit has the burden of proving that the person is financially
18-12 unable to pay the amount of the penalty and to give a supersedeas
18-13 bond.
18-14 (m) If the person does not pay the amount of the penalty and
18-15 the enforcement of the penalty is not stayed, the executive
18-16 director may refer the matter to the attorney general for
18-17 collection of the amount of the penalty.
18-18 (n) Judicial review of the order of the board:
18-19 (1) is instituted by filing a petition as provided by
18-20 Subchapter G, Chapter 2001, Government Code; and
18-21 (2) is under the substantial evidence rule.
18-22 (o) If the court sustains the occurrence of the violation,
18-23 the court may uphold or reduce the amount of the penalty and order
18-24 the person to pay the full or reduced amount of the penalty. If
18-25 the court does not sustain the occurrence of the violation, the
18-26 court shall order that no penalty is owed.
18-27 (p) When the judgment of the court becomes final, the court
19-1 shall proceed under this subsection. If the person paid the amount
19-2 of the penalty and if that amount is reduced or is not upheld by
19-3 the court, the court shall order that the appropriate amount plus
19-4 accrued interest be remitted to the person. The rate of the
19-5 interest is the rate charged on loans to depository institutions by
19-6 the New York Federal Reserve Bank, and the interest shall be paid
19-7 for the period beginning on the date the penalty was paid and
19-8 ending on the date the penalty is remitted. If the person gave a
19-9 supersedeas bond and if the amount of the penalty is not upheld by
19-10 the court, the court shall order the release of the bond. If the
19-11 person gave a supersedeas bond and if the amount of the penalty is
19-12 reduced, the court shall order the release of the bond after the
19-13 person pays the amount.
19-14 (q) A penalty collected under this section shall be remitted
19-15 to the comptroller for deposit in the general revenue fund.
19-16 (r) All proceedings to impose a penalty under this section
19-17 are subject to Chapter 2001, Government Code.
19-18 Sec. 252.066. RULES REGARDING ADMINISTRATIVE PENALTY. (a)
19-19 The board shall adopt rules governing the assessment of
19-20 administrative penalties under this chapter, including rules:
19-21 (1) providing for giving notice of a violation to a
19-22 facility; and
19-23 (2) governing payment and refund of the penalty.
19-24 (b) Rules adopted under this section shall include specific
19-25 and objective criteria for determining the scope and severity of a
19-26 violation and specific penalty ranges that correspond to
19-27 violations. The range for a penalty must be appropriate to the
20-1 violation, and the rules must provide that a penalty may be imposed
20-2 only when a violation presents an immediate and serious threat to
20-3 the health and safety of a resident.
20-4 (c) The rules must establish a system to ensure standard and
20-5 consistent application of penalties.
20-6 (d) The department may prescribe a penalty for each day of a
20-7 continuing violation. If a facility notifies the department that a
20-8 violation has been corrected, the notification is prima facie
20-9 evidence that the violation has been corrected. The department may
20-10 not assess a penalty for a continuing violation after the date on
20-11 which the department receives notification that the violation has
20-12 been corrected unless the department finds that the violation in
20-13 fact continued after that date.
20-14 (e) For purposes of this section, "immediate and serious
20-15 threat" means a situation where there is a high probability that
20-16 serious harm or injury to residents could occur at any time or has
20-17 already occurred and may occur again if residents are not protected
20-18 effectively from the harm or if the threat is not removed.
20-19 (Sections 252.067-252.090 reserved for expansion
20-20 SUBCHAPTER D. TRUSTEES FOR FACILITIES
20-21 Sec. 252.091. FINDINGS AND PURPOSE. (a) The legislature
20-22 finds that, under some circumstances, closing a facility for a
20-23 violation of a law or rule may:
20-24 (1) have an adverse effect on the facility's residents
20-25 and their families; and
20-26 (2) result in a lack of readily available financial
20-27 resources to meet the basic needs of the residents for food,
21-1 shelter, medication, and personal services.
21-2 (b) The purpose of this subchapter is to provide for:
21-3 (1) the appointment of a trustee to assume the
21-4 operations of the facility in a manner that emphasizes resident
21-5 care and reduces resident trauma; and
21-6 (2) a fund to assist a court-appointed trustee in
21-7 meeting the basic needs of the residents.
21-8 Sec. 252.092. APPOINTMENT BY AGREEMENT. (a) A person who
21-9 holds a controlling interest in a facility may request the
21-10 department to assume the operation of the facility through the
21-11 appointment of a trustee under this subchapter.
21-12 (b) After receiving the request, the department may enter
21-13 into an agreement providing for the appointment of a trustee to
21-14 take charge of the facility under conditions both parties consider
21-15 appropriate if the department considers the appointment desirable.
21-16 (c) An agreement under this section must:
21-17 (1) specify the terms and conditions of the trustee's
21-18 appointment and authority; and
21-19 (2) preserve the rights of the residents as granted by
21-20 law.
21-21 (d) The agreement terminates at the time:
21-22 (1) specified by the parties; or
21-23 (2) either party notifies the other in writing that
21-24 the party is terminating the appointment agreement.
21-25 Sec. 252.093. INVOLUNTARY APPOINTMENT. (a) The department
21-26 may request the attorney general to bring an action on behalf of
21-27 the state for the appointment of a trustee to operate a facility
22-1 if:
22-2 (1) the facility is operating without a license;
22-3 (2) the department has suspended or revoked the
22-4 facility's license;
22-5 (3) license suspension or revocation procedures
22-6 against the facility are pending and the department determines that
22-7 an imminent threat to the health and safety of the residents
22-8 exists;
22-9 (4) the department determines that an emergency exists
22-10 that presents an immediate threat to the health and safety of the
22-11 residents; or
22-12 (5) the facility is closing and arrangements for
22-13 relocation of the residents to other licensed facilities have not
22-14 been made before closure.
22-15 (b) A trustee appointed under Subsection (a)(5) may only
22-16 ensure an orderly and safe relocation of the facility's residents
22-17 as quickly as possible.
22-18 (c) After a hearing, a court shall appoint a trustee to take
22-19 charge of a facility if the court finds that involuntary
22-20 appointment of a trustee is necessary.
22-21 (d) If possible, the court shall appoint as trustee an
22-22 individual whose background includes mental retardation service
22-23 administration.
22-24 (e) An action under this section must be brought in Travis
22-25 County.
22-26 Sec. 252.094. FEE; RELEASE OF MONEY. (a) A trustee
22-27 appointed under this subchapter is entitled to a reasonable fee as
23-1 determined by the court.
23-2 (b) The trustee may petition the court to order the release
23-3 to the trustee of any payment owed the trustee for care and
23-4 services provided to the residents if the payment has been
23-5 withheld, including a payment:
23-6 (1) withheld by the department at the recommendation
23-7 of the department; or
23-8 (2) withheld by a governmental agency or other entity
23-9 during the appointment of the trustee, such as payments:
23-10 (A) for Medicaid or insurance;
23-11 (B) by a third party; or
23-12 (C) for medical expenses borne by the residents.
23-13 Sec. 252.095. EMERGENCY ASSISTANCE FEE. (a) In addition to
23-14 the licensing and renewal fee collected under Section 252.034, the
23-15 department may collect an annual fee to be used to make emergency
23-16 assistance money available to a facility licensed under this
23-17 chapter.
23-18 (b) The fee collected under this section shall be in the
23-19 amount prescribed by Section 242.097(b) and shall be deposited to
23-20 the credit of the nursing and convalescent home trust fund
23-21 established under Section 242.096.
23-22 (c) The department may disburse money to a trustee for a
23-23 facility licensed under this chapter to alleviate an immediate
23-24 threat to the health or safety of the facility's residents.
23-25 Payments under this section may include payments described by
23-26 Section 242.096(b).
23-27 (d) A court may order the department to disburse emergency
24-1 assistance money to a trustee for a facility licensed under this
24-2 chapter if the court makes the findings provided by Section
24-3 242.096(c).
24-4 Sec. 252.096. REIMBURSEMENT. (a) A facility that receives
24-5 emergency assistance money under this subchapter shall reimburse
24-6 the department for the amounts received, including interest.
24-7 (b) Interest on unreimbursed amounts begins to accrue on the
24-8 date on which the money is disbursed to the facility. The rate of
24-9 interest is the rate determined under Section 2, Article 1.05,
24-10 Title 79, Revised Statutes (Article 5069-1.05, Vernon's Texas Civil
24-11 Statutes), to be applicable to judgments rendered during the month
24-12 in which the money is disbursed to the facility.
24-13 (c) The owner of the facility when the trustee is appointed
24-14 is responsible for the reimbursement.
24-15 (d) The amount that remains unreimbursed on the first
24-16 anniversary of the date on which the money is received is
24-17 delinquent and the department may determine that the facility is
24-18 ineligible for a Medicaid provider contract.
24-19 (e) The department shall deposit the reimbursement and
24-20 interest received under this section to the credit of the nursing
24-21 and convalescent home trust fund.
24-22 (f) The attorney general shall institute an action to
24-23 collect money due under this section at the request of the
24-24 department. An action under this section must be brought in Travis
24-25 County.
24-26 Sec. 252.097. NOTIFICATION OF CLOSURE; CRIMINAL PENALTY.
24-27 (a) A facility that is closing temporarily or permanently,
25-1 voluntarily or involuntarily, shall notify the residents of the
25-2 closing and make reasonable efforts to notify in writing each
25-3 resident's nearest relative or the person responsible for the
25-4 resident's support within a reasonable time before the facility
25-5 closes.
25-6 (b) If the department orders a facility to close or the
25-7 facility's closure is in any other way involuntary, the facility
25-8 shall make the notification, orally or in writing, immediately on
25-9 receiving notice of the closing.
25-10 (c) If the facility's closure is voluntary, the facility
25-11 shall make the notification not later than one week after the date
25-12 on which the decision to close is made.
25-13 Sec. 252.098. CRIMINAL PENALTY FOR FAILURE TO NOTIFY. (a)
25-14 A facility commits an offense if the facility knowingly fails to
25-15 comply with Section 252.097.
25-16 (b) An offense under this section is a Class A misdemeanor.
25-17 (Sections 252.099-252.120 reserved for expansion
25-18 SUBCHAPTER E. REPORTS OF ABUSE AND NEGLECT
25-19 Sec. 252.121. DEFINITION. In this subchapter, "designated
25-20 agency" means an agency designated by a court to be responsible for
25-21 the protection of a resident who is the subject of a report of
25-22 abuse or neglect.
25-23 Sec. 252.122. REPORTING OF ABUSE AND NEGLECT. (a) A
25-24 person, including an owner or employee of a facility, who has cause
25-25 to believe that the physical or mental health or welfare of a
25-26 resident has been or may be adversely affected by abuse or neglect
25-27 caused by another person shall report the abuse or neglect to the
26-1 department, to a designated agency, or to both the department and
26-2 the designated agency, as specified in department rules.
26-3 (b) Each facility shall require each employee of the
26-4 facility, as a condition of employment with the facility, to sign a
26-5 statement that the employee realizes that the employee may be
26-6 criminally liable for failure to report abuse or neglect.
26-7 (c) A person shall make an oral report immediately on
26-8 learning of abuse or neglect and shall make a written report to the
26-9 same agency not later than the fifth day after the oral report is
26-10 made.
26-11 Sec. 252.123. CONTENTS OF REPORT. (a) A report of abuse or
26-12 neglect is nonaccusatory and reflects the reporting person's belief
26-13 that a resident has been or will be abused or neglected or has died
26-14 of abuse or neglect.
26-15 (b) The report must contain:
26-16 (1) the name and address of the resident;
26-17 (2) the name and address of the person responsible for
26-18 the care of the resident, if available; and
26-19 (3) other relevant information.
26-20 Sec. 252.124. ANONYMOUS REPORTS OF ABUSE OR NEGLECT. (a)
26-21 An anonymous report of abuse or neglect, although not encouraged,
26-22 shall be received and acted on in the same manner as an
26-23 acknowledged report.
26-24 (b) A local or state law enforcement agency that receives a
26-25 report of abuse or neglect shall refer the report to the department
26-26 or the designated agency.
26-27 Sec. 252.125. INVESTIGATION AND REPORT OF RECEIVING AGENCY.
27-1 (a) The department or the designated agency shall make a thorough
27-2 investigation promptly after receiving either the oral or written
27-3 report.
27-4 (b) The primary purpose of the investigation is the
27-5 protection of the resident.
27-6 (c) In the investigation, the department or the designated
27-7 agency shall determine:
27-8 (1) the nature, extent, and cause of the abuse or
27-9 neglect;
27-10 (2) the identity of the person responsible for the
27-11 abuse or neglect;
27-12 (3) the names and conditions of the other residents;
27-13 (4) an evaluation of the persons responsible for the
27-14 care of the residents;
27-15 (5) the adequacy of the facility environment; and
27-16 (6) any other information required by the department.
27-17 (d) The investigation may include a visit to the resident's
27-18 facility and an interview with the resident, if considered
27-19 appropriate by the department.
27-20 (e) If the department attempts to carry out an on-site
27-21 investigation and it is shown that admission to the facility or any
27-22 place where a resident is located cannot be obtained, a probate or
27-23 county court shall order the person responsible for the care of the
27-24 resident or the person in charge of a place where the resident is
27-25 located to allow admission for the investigation and any interview
27-26 with the resident.
27-27 (f) Before the completion of the investigation, the
28-1 department shall file a petition for temporary care and protection
28-2 of the resident if the department determines that immediate removal
28-3 is necessary to protect the resident from further abuse or neglect.
28-4 (g) The department or the designated agency shall make a
28-5 complete written report of the investigation and submit the report
28-6 and its recommendations to the district attorney and the
28-7 appropriate law enforcement agency and, if necessary, to the
28-8 department on the department's request.
28-9 Sec. 252.126. CONFIDENTIALITY. A report, record, or working
28-10 paper used or developed in an investigation made under this
28-11 subchapter is confidential and may be disclosed only for purposes
28-12 consistent with the rules adopted by the board or the designated
28-13 agency.
28-14 Sec. 252.127. IMMUNITY. (a) Except as provided by Section
28-15 252.131, a person who reports an act of abuse or neglect as
28-16 provided by this subchapter is immune from civil or criminal
28-17 liability that, in the absence of the immunity, might result from
28-18 making the report.
28-19 (b) The immunity provided by this section extends to
28-20 participation in any judicial proceeding that results from the
28-21 report.
28-22 Sec. 252.128. PRIVILEGED COMMUNICATIONS. In a proceeding
28-23 regarding the abuse or neglect of a resident or the cause of any
28-24 abuse or neglect, evidence may not be excluded on the ground of
28-25 privileged communication except in the case of a communication
28-26 between an attorney and client.
28-27 Sec. 252.129. CENTRAL REGISTRY. (a) The department shall
29-1 maintain in the city of Austin a central registry of reported cases
29-2 of resident abuse or neglect.
29-3 (b) The board may adopt rules necessary to carry out this
29-4 section.
29-5 (c) The rules shall provide for cooperation with hospitals
29-6 and clinics in the exchange of reports of resident abuse or
29-7 neglect.
29-8 Sec. 252.130. FAILURE TO REPORT; CRIMINAL PENALTY. (a) A
29-9 person commits an offense if the person has cause to believe that a
29-10 resident's physical or mental health or welfare has been or may be
29-11 further adversely affected by abuse or neglect and knowingly fails
29-12 to report in accordance with Section 252.122.
29-13 (b) An offense under this section is a Class A misdemeanor.
29-14 Sec. 252.131. BAD FAITH, MALICIOUS, OR RECKLESS REPORTING;
29-15 CRIMINAL PENALTY. (a) A person commits an offense if the person
29-16 reports under this subchapter in bad faith, maliciously, or
29-17 recklessly.
29-18 (b) An offense under this section is a Class A misdemeanor.
29-19 (c) The criminal penalty provided by this section is in
29-20 addition to any civil penalties for which the person may be liable.
29-21 Sec. 252.132. SUIT FOR RETALIATION. (a) A facility may not
29-22 suspend or terminate the employment of, or discipline or otherwise
29-23 discriminate against, an employee for reporting to the employee's
29-24 supervisor, an administrator of the facility, a state regulatory
29-25 agency, or a law enforcement agency the abuse or neglect of a
29-26 resident.
29-27 (b) A facility that violates Subsection (a) is liable to the
30-1 person against whom the facility discriminated. A person against
30-2 whom a facility discriminates in violation of Subsection (a) may
30-3 sue for injunctive relief, damages, or both.
30-4 (c) A plaintiff who prevails in a suit under this section
30-5 may recover:
30-6 (1) the greater of $1,000 or actual damages, including
30-7 damages for mental anguish even if an injury other than mental
30-8 anguish is not shown and damages for lost wages if the petitioner's
30-9 employment was suspended or terminated;
30-10 (2) exemplary damages;
30-11 (3) court costs; and
30-12 (4) reasonable attorney's fees.
30-13 (d) In addition to the amounts that may be recovered under
30-14 Subsection (c), a person whose employment is suspended or
30-15 terminated is entitled to reinstatement in the person's former
30-16 position.
30-17 (e) The petitioner, not later than the 90th day after the
30-18 date on which the person's employment is suspended or terminated,
30-19 must bring suit or notify the Texas Workforce Commission of the
30-20 petitioner's intent to sue under this section. A petitioner who
30-21 notifies the Texas Workforce Commission under this subsection must
30-22 bring suit not later than the 90th day after the date of the
30-23 delivery of the notice to the commission. On receipt of the
30-24 notice, the commission shall notify the facility of the
30-25 petitioner's intent to bring suit under this section.
30-26 (f) The petitioner has the burden of proof, except that
30-27 there is a rebuttable presumption that the person's employment was
31-1 suspended or terminated for reporting abuse or neglect if the
31-2 person is suspended or terminated within 60 days after the date on
31-3 which the person reported in good faith.
31-4 (g) A suit under this section may be brought in the district
31-5 court of the county in which:
31-6 (1) the plaintiff resides;
31-7 (2) the plaintiff was employed by the defendant; or
31-8 (3) the defendant conducts business.
31-9 (h) Each facility shall require each employee of the
31-10 facility, as a condition of employment with the facility, to sign a
31-11 statement that the employee understands the employee's rights under
31-12 this section. The statement must be part of the statement required
31-13 under Section 252.122(b). If a facility does not require an
31-14 employee to read and sign the statement, the periods prescribed by
31-15 Subsection (e) do not apply, and the petitioner must bring suit not
31-16 later than the second anniversary of the date on which the person's
31-17 employment is suspended or terminated.
31-18 Sec. 252.133. SUIT FOR RETALIATION AGAINST RESIDENT. (a) A
31-19 facility may not retaliate or discriminate against a resident if
31-20 the resident, the resident's guardian, or any other person reports
31-21 abuse or neglect in accordance with this subchapter.
31-22 (b) A resident against whom a facility retaliates or
31-23 discriminates in violation of Subsection (a) is entitled to sue
31-24 for:
31-25 (1) injunctive relief;
31-26 (2) actual damages;
31-27 (3) exemplary damages;
32-1 (4) court costs; and
32-2 (5) reasonable attorney's fees.
32-3 (c) A resident who seeks relief under this section must
32-4 report the alleged violation not later than the 180th day after the
32-5 date on which the alleged violation of this section occurred or was
32-6 discovered by the resident through reasonable diligence.
32-7 (d) A suit under this section may be brought in the district
32-8 court of the county in which the facility is located or in a
32-9 district court of Travis County.
32-10 Sec. 252.134. REPORTS RELATING TO RESIDENT DEATHS. (a) A
32-11 facility licensed under this chapter shall submit a report to the
32-12 department concerning the death of:
32-13 (1) a resident of the facility; and
32-14 (2) a former resident that occurs 24 hours or less
32-15 after the former resident is transferred from the facility to a
32-16 hospital.
32-17 (b) The report must be submitted not later than the 10th
32-18 working day after the last day of each month in which a resident of
32-19 the facility dies. The facility must make the report on a form
32-20 prescribed by the department. The report must contain the name and
32-21 social security number of the deceased.
32-22 (c) The department shall correlate reports under this
32-23 section with death certificate information to develop data relating
32-24 to the:
32-25 (1) name and age of the deceased;
32-26 (2) official cause of death listed on the death
32-27 certificate;
33-1 (3) date, time, and place of death; and
33-2 (4) name and address of the facility in which the
33-3 deceased resided.
33-4 (d) Unless specified by board rule, a record under this
33-5 section is confidential and not subject to the provisions of
33-6 Chapter 552, Government Code.
33-7 (Sections 252.135-252.150 reserved for expansion
33-8 SUBCHAPTER F. MEDICAL CARE
33-9 Sec. 252.151. ADMINISTRATION OF MEDICATION. The department
33-10 shall adopt rules relating to the administration of medication in
33-11 intermediate care facilities.
33-12 Sec. 252.152. APPLICATION OF OTHER LAW. (a) Except as
33-13 provided by Subsection (c), Subchapter F, Chapter 242, applies to a
33-14 facility.
33-15 (b) In applying Subchapter F, Chapter 242, to a facility,
33-16 the term "resident" has the meaning assigned by Section 252.002 and
33-17 the term "institution" means a facility.
33-18 (c) Section 242.160 does not apply to a facility.
33-19 (Sections 252.153-252.180 reserved for expansion
33-20 SUBCHAPTER G. RESPITE CARE
33-21 Sec. 252.181. DEFINITIONS. In this subchapter:
33-22 (1) "Plan of care" means a written description of the
33-23 care, training, and treatment needed by a person during respite
33-24 care.
33-25 (2) "Respite care" means the provision by a facility
33-26 to a person, for not more than two weeks for each stay in the
33-27 facility, of:
34-1 (A) room and board; and
34-2 (B) care at the level ordinarily provided for
34-3 permanent residents.
34-4 Sec. 252.182. RESPITE CARE. (a) A facility licensed under
34-5 this chapter may provide respite care for an individual who has a
34-6 diagnosis of mental retardation or a related condition without
34-7 regard to whether the individual is eligible to receive
34-8 intermediate care services under federal law.
34-9 (b) The board may adopt rules for the regulation of respite
34-10 care provided by a facility licensed under this chapter.
34-11 Sec. 252.183. PLAN OF CARE. (a) The facility and the
34-12 person arranging the care must agree on the plan of care and the
34-13 plan must be filed at the facility before the facility admits the
34-14 person for the care.
34-15 (b) The plan of care must be signed by:
34-16 (1) a licensed physician if the person for whom the
34-17 care is arranged needs medical care or treatment; or
34-18 (2) the person arranging for the respite care if
34-19 medical care or treatment is not needed.
34-20 (c) The facility may keep an agreed plan of care for a
34-21 person for not longer than six months from the date on which it is
34-22 received. After each admission, the facility shall review and
34-23 update the plan of care. During that period, the facility may
34-24 admit the person as frequently as is needed and as accommodations
34-25 are available.
34-26 Sec. 252.184. NOTIFICATION. A facility that offers respite
34-27 care shall notify the department in writing that it offers respite
35-1 care.
35-2 Sec. 252.185. INSPECTIONS. The department, at the time of
35-3 an ordinary licensing inspection or at other times determined
35-4 necessary by the department, shall inspect a facility's records of
35-5 respite care services, physical accommodations available for
35-6 respite care, and the plan of care records to ensure that the
35-7 respite care services comply with the licensing standards of this
35-8 chapter and with any rules the board may adopt to regulate respite
35-9 care services.
35-10 Sec. 252.186. SUSPENSION. (a) The department may require a
35-11 facility to cease providing respite care if the department
35-12 determines that the respite care does not meet the standards
35-13 required by this chapter and that the facility cannot comply with
35-14 those standards in the respite care it provides.
35-15 (b) The department may suspend the license of a facility
35-16 that continues to provide respite care after receiving a written
35-17 order from the department to cease.
35-18 SECTION 2. Section 242.002(6), Health and Safety Code, is
35-19 amended to read as follows:
35-20 (6) "Institution" means[:]
35-21 [(A)] an establishment that:
35-22 (A) [(i)] furnishes, in one or more facilities,
35-23 food and shelter to four or more persons who are unrelated to the
35-24 proprietor of the establishment; and
35-25 (B) [(ii)] provides minor treatment under the
35-26 direction and supervision of a physician licensed by the Texas
35-27 State Board of Medical Examiners, or other services that meet some
36-1 need beyond the basic provision of food, shelter, and laundry[; or]
36-2 [(B) a foster care type residential facility
36-3 that provides room and board to fewer than five persons who:]
36-4 [(i) are not related within the second
36-5 degree of consanguinity or affinity, as determined under Chapter
36-6 573, Government Code, to the proprietor; and]
36-7 [(ii) because of their physical or mental
36-8 limitation, or both, require a level of care and services suitable
36-9 to their needs that contributes to their health, comfort, and
36-10 welfare].
36-11 SECTION 3. Section 242.003, Health and Safety Code, is
36-12 amended to read as follows:
36-13 Sec. 242.003. EXEMPTIONS. [(a)] Except as otherwise
36-14 provided, this chapter does not apply to:
36-15 (1) a hotel or other similar place that furnishes only
36-16 food, lodging, or both, to its guests;
36-17 (2) a hospital;
36-18 (3) an establishment conducted by or for the adherents
36-19 of a well-recognized church or religious denomination for the
36-20 purpose of providing facilities for the care or treatment of the
36-21 sick who depend exclusively on prayer or spiritual means for
36-22 healing, without the use of any drug or material remedy, if the
36-23 establishment complies with safety, sanitary, and quarantine laws
36-24 and rules;
36-25 (4) an establishment that furnishes, in addition to
36-26 food, shelter, and laundry, only baths and massages;
36-27 (5) an institution operated by a person licensed by
37-1 the Texas Board of Chiropractic Examiners;
37-2 (6) a facility that:
37-3 (A) primarily engages in training, habilitation,
37-4 rehabilitation, or education of clients or residents;
37-5 (B) is operated under the jurisdiction of a
37-6 state or federal agency, including the Texas Rehabilitation
37-7 Commission, Texas Department of Mental Health and Mental
37-8 Retardation, Texas Department of Human Services, Texas Commission
37-9 for the Blind, Texas Commission on Alcohol and Drug Abuse,
37-10 institutional division of the Texas Department of Criminal Justice,
37-11 and the Veteran's Administration; and
37-12 (C) is certified through inspection or
37-13 evaluation as meeting the standards established by the state or
37-14 federal agency; [and]
37-15 (7) a foster care type residential facility that
37-16 serves fewer than five persons and operates under rules adopted by
37-17 the Texas Department of Human Services; and
37-18 (8) a facility licensed under Chapter 251 or exempt
37-19 from licensure under Section 251.003.
37-20 [(b) An institution described by Section 242.002(6)(C) is
37-21 subject to licensing under this chapter only if written application
37-22 is made for participation in the intermediate care program under
37-23 federal law.]
37-24 SECTION 4. (a) Except as provided by Subsection (b) of this
37-25 section, this Act takes effect September 1, 1997.
37-26 (b) Section 2 of this Act takes effect January 1, 1998.
37-27 SECTION 5. (a) Notwithstanding Sections 252.031 and
38-1 252.063, Health and Safety Code, as added by this Act:
38-2 (1) a facility is not required to be licensed under
38-3 Chapter 252, Health and Safety Code, as added by this Act, before
38-4 January 1, 1998; and
38-5 (2) a facility that is required to be licensed under
38-6 that chapter and that is, on the effective date of this Act,
38-7 licensed under Chapter 242, Health and Safety Code, may continue to
38-8 operate under the license issued under Chapter 242 until the later
38-9 of:
38-10 (A) December 31, 1997; or
38-11 (B) the date on which the license is subject to
38-12 renewal.
38-13 (b) A license issued under Chapter 242, Health and Safety
38-14 Code, to an institution that is required to be licensed as a
38-15 facility under Chapter 252, Health and Safety Code, as added by
38-16 this Act, may not be renewed after December 1, 1997.
38-17 (c) A facility licensed under Chapter 252, Health and Safety
38-18 Code, as added by this Act, is not subject to Chapter 48, Human
38-19 Resources Code.
38-20 SECTION 6. The importance of this legislation and the
38-21 crowded condition of the calendars in both houses create an
38-22 emergency and an imperative public necessity that the
38-23 constitutional rule requiring bills to be read on three several
38-24 days in each house be suspended, and this rule is hereby suspended.