By Coleman H.B. No. 2409
75R6494 MCK-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to creating a licensing program for adult foster care
1-3 homes; providing criminal penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 102.001(4), Human Resources Code, is
1-6 amended to read as follows:
1-7 (4) "Person providing services" means an individual,
1-8 corporation, association, partnership, or other private or public
1-9 entity providing convalescent and nursing home services, home
1-10 health services, personal care services, adult foster care home
1-11 services, or alternate care services.
1-12 SECTION 2. Subtitle B, Title 4, Health and Safety Code, is
1-13 amended by adding Chapter 252 to read as follows:
1-14 CHAPTER 252. ADULT FOSTER CARE HOMES
1-15 SUBCHAPTER A. GENERAL PROVISIONS
1-16 Sec. 252.001. DEFINITIONS. In this chapter:
1-17 (1) "Adult foster care home" means an establishment
1-18 that provides room and board to one or more elderly persons
1-19 unrelated to the proprietor that receives reimbursement under the
1-20 state Medicaid program and is not otherwise required to be licensed
1-21 by this state under any other law.
1-22 (2) "Board" means the Texas Board of Human Services.
1-23 (3) "Department" means the Texas Department of Human
1-24 Services.
2-1 (4) "Elderly person" means a person 65 years of age or
2-2 older.
2-3 Sec. 252.002. LICENSURE REQUIRED. A person may not
2-4 establish or operate an adult foster care home without a license
2-5 issued under this chapter.
2-6 Sec. 252.003. LICENSE APPLICATION. (a) An applicant for an
2-7 adult foster care home license must submit an application to the
2-8 department on a form prescribed by the department.
2-9 (b) Each application must be accompanied by a nonrefundable
2-10 license fee in an amount set by the board.
2-11 Sec. 252.004. ISSUANCE AND RENEWAL OF LICENSE. (a) The
2-12 department shall issue a license if, after inspection and
2-13 investigation, it finds that the applicant and the adult foster
2-14 care home meet the requirements of this chapter and the standards
2-15 adopted under this chapter.
2-16 (b) A license issued under this chapter expires on the
2-17 second anniversary after the date the license is issued.
2-18 (c) A license may be renewed if the license holder:
2-19 (1) submits the license renewal fee to the department;
2-20 and
2-21 (2) continues to meet the requirements of this
2-22 chapter.
2-23 Sec. 252.005. ADOPTION OF RULES; FEES. (a) The board shall
2-24 adopt rules necessary to implement this chapter, including
2-25 requirements for the issuance, renewal, denial, suspension, and
2-26 revocation of a license to operate an adult foster care home.
2-27 (b) The department may set fees sufficient to cover the cost
3-1 of administering this chapter.
3-2 Sec. 252.006. STANDARDS. (a) The board shall by rule
3-3 prescribe minimum standards to protect the health and safety of a
3-4 resident of an adult foster care home.
3-5 (b) The minimum standards must:
3-6 (1) clearly differentiate an adult foster care home
3-7 from other licensed institutions;
3-8 (2) ensure quality care and protection of the
3-9 residents' health and safety without excessive cost;
3-10 (3) prescribe minimum fire safety and emergency
3-11 standards;
3-12 (4) prescribe a limitation on the acuity levels of
3-13 residents' medical conditions for continued residence in the home;
3-14 (5) require monitoring of each resident's health
3-15 status and medical condition and maintenance of adequate medical
3-16 records to document the resident's health status and medical
3-17 condition;
3-18 (6) require adherence to minimum standards of resident
3-19 rights;
3-20 (7) require reporting of situations in which there is
3-21 reasonable cause to believe that abuse, neglect, mistreatment, or
3-22 exploitation has occurred;
3-23 (8) require criminal history checks of each
3-24 nonlicensed person who works with residents in adult foster care
3-25 homes and prohibit a person convicted of any felony specified by
3-26 the standards from working with a resident;
3-27 (9) prescribe minimum qualifications for an employee
4-1 of an adult foster care home that require the employee be
4-2 adequately trained to meet the health care needs of and provide
4-3 assistance in activities of daily living to residents of an adult
4-4 foster care home; and
4-5 (10) require each employee of an adult foster care
4-6 home to attend a minimum number of hours of continuing education in
4-7 subjects related to the care of elderly persons.
4-8 Sec. 252.007. INSPECTIONS. The department, with assistance
4-9 from the Texas Department on Aging, may inspect an adult foster
4-10 care home at reasonable times as necessary to assure compliance
4-11 with this chapter.
4-12 Sec. 252.008. ASSISTANCE BY DEPARTMENT. The department,
4-13 with assistance from the Texas Department on Aging, may provide
4-14 assistance to an adult foster care home provider, including the
4-15 provision of training materials, the coordination of training
4-16 conferences and workshops with other state agencies, and the
4-17 development of a provider's handbook explaining the rules governing
4-18 adult foster care homes.
4-19 Sec. 252.009. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE.
4-20 The department, after providing notice and opportunity for a
4-21 hearing to the applicant or license holder, may deny, suspend, or
4-22 revoke a license if the department finds that the applicant or
4-23 license holder has substantially failed to comply with the
4-24 requirements established under this chapter. The denial,
4-25 suspension, or revocation of a license by the department and an
4-26 appeal from that action are governed by the procedures for a
4-27 contested case hearing under Chapter 2001, Government Code.
5-1 Sec. 252.010. EMERGENCY SUSPENSION OR CLOSING ORDER. (a)
5-2 The department shall suspend an adult foster care home's license or
5-3 order an immediate closing of the adult foster care home if:
5-4 (1) the department finds the institution is operating
5-5 in violation of the standards prescribed by this chapter; and
5-6 (2) the violation creates an immediate threat to the
5-7 health and safety of a resident.
5-8 (b) An order under Subsection (a) suspending a license or
5-9 ordering the immediate closing of an adult foster care home is
5-10 immediately effective on the date on which the license holder
5-11 receives written notice or on the date specified in the order.
5-12 (c) An order suspending the license or ordering closure of
5-13 an adult foster care home is valid for 10 days after its effective
5-14 date.
5-15 (d) The department by rule shall provide for the relocation
5-16 of residents from an adult foster care home that is closed or whose
5-17 license is suspended.
5-18 (Sections 252.011-252.100 reserved for expansion
5-19 SUBCHAPTER B. REPORTS OF ABUSE AND NEGLECT
5-20 Sec. 252.101. DEFINITION. In this subchapter, "designated
5-21 agency" means an agency designated by a court to be responsible for
5-22 the protection of a resident who is the subject of a report of
5-23 abuse or neglect.
5-24 Sec. 252.102. REPORTING OF ABUSE AND NEGLECT. (a) A
5-25 person, including an owner or employee of an adult foster care
5-26 home, who has cause to believe that the physical or mental health
5-27 or welfare of a resident has been or may be adversely affected by
6-1 abuse or neglect caused by another person shall report the abuse or
6-2 neglect in accordance with this subchapter.
6-3 (b) Each adult foster care home shall require each employee
6-4 of the adult foster care home, as a condition of employment with
6-5 the adult foster care home, to sign a statement that the employee
6-6 realizes that the employee may be criminally liable for failure to
6-7 report abuse or neglect.
6-8 (c) A person shall make an oral report immediately on
6-9 learning of the abuse or neglect and shall make a written report to
6-10 the same agency not later than the fifth day after the oral report
6-11 is made.
6-12 Sec. 252.103. CONTENTS OF REPORT. (a) A report of abuse or
6-13 neglect is nonaccusatory and reflects the reporting person's belief
6-14 that a resident has been or will be abused or neglected or has died
6-15 of abuse or neglect.
6-16 (b) The report must contain:
6-17 (1) the name and address of the resident;
6-18 (2) the name and address of the person responsible for
6-19 the care of the resident, if available; and
6-20 (3) other relevant information.
6-21 Sec. 252.104. ANONYMOUS REPORTS OF ABUSE OR NEGLECT.
6-22 (a) An anonymous report of abuse or neglect, although not
6-23 encouraged, shall be received and acted on in the same manner as an
6-24 acknowledged report.
6-25 (b) An anonymous report about a specific individual that
6-26 accuses the individual of abuse or neglect need not be
6-27 investigated.
7-1 Sec. 252.105. PROCESSING OF REPORTS. (a) A report of abuse
7-2 or neglect shall be made to the department or a local or state law
7-3 enforcement agency.
7-4 (b) A local or state law enforcement agency that receives a
7-5 report of abuse or neglect shall refer the report to the department
7-6 or the designated agency.
7-7 Sec. 252.106. INVESTIGATION AND REPORT OF RECEIVING AGENCY.
7-8 (a) The department or the designated agency shall make a thorough
7-9 investigation promptly after receiving either the oral or written
7-10 report.
7-11 (b) The primary purpose of the investigation is the
7-12 protection of the resident.
7-13 (c) In the investigation, the department or the designated
7-14 agency shall determine:
7-15 (1) the nature, extent, and cause of the abuse or
7-16 neglect;
7-17 (2) the identity of the person responsible for the
7-18 abuse or neglect;
7-19 (3) the names and conditions of the other residents;
7-20 (4) an evaluation of the persons responsible for the
7-21 care of the residents;
7-22 (5) the adequacy of the adult foster care home
7-23 environment; and
7-24 (6) any other information required by the department.
7-25 (d) The investigation may include a visit to the resident's
7-26 adult foster care home and an interview with the resident if these
7-27 actions are determined by the department to be appropriate.
8-1 (e) If the department attempts to carry out an on-site
8-2 investigation and it is shown that admission to the adult foster
8-3 care home, or any place where the resident is located, cannot be
8-4 obtained, a probate or county court shall order the person
8-5 responsible for the care of the resident or the person in charge of
8-6 a place where the resident is located to allow entrance for the
8-7 interview and investigation.
8-8 (f) Before the completion of the investigation the
8-9 department shall file a petition for temporary care and protection
8-10 of the resident if the department determines that immediate removal
8-11 is necessary to protect the resident from further abuse or neglect.
8-12 (g) The department or the designated agency shall make a
8-13 complete written report of the investigation and submit the report
8-14 and its recommendations to the district attorney and the
8-15 appropriate law enforcement agency.
8-16 Sec. 252.107. CONFIDENTIALITY. A report, record, or working
8-17 paper used or developed in an investigation made under this
8-18 subchapter is confidential and may be disclosed only for purposes
8-19 consistent with the rules adopted by the board or the designated
8-20 agency.
8-21 Sec. 252.108. IMMUNITY. (a) A person who reports as
8-22 provided by this subchapter is immune from civil or criminal
8-23 liability that, in the absence of the immunity, might result from
8-24 making the report.
8-25 (b) The immunity provided by this section extends to
8-26 participation in any judicial proceeding that results from the
8-27 report.
9-1 (c) This section does not apply to a person who reports in
9-2 bad faith or with malice.
9-3 Sec. 252.109. PRIVILEGED COMMUNICATIONS. In a proceeding
9-4 regarding the abuse or neglect of a resident or the cause of any
9-5 abuse or neglect, evidence may not be excluded on the ground of
9-6 privileged communication except in the case of a communication
9-7 between an attorney and client.
9-8 Sec. 252.110. CENTRAL REGISTRY. (a) The department shall
9-9 maintain in the city of Austin a central registry of reported cases
9-10 of resident abuse or neglect.
9-11 (b) The board may adopt rules necessary to carry out this
9-12 section.
9-13 (c) The rules shall provide for cooperation with hospitals
9-14 and clinics in the exchange of reports of resident abuse or
9-15 neglect.
9-16 Sec. 252.111. FAILURE TO REPORT; CRIMINAL PENALTY. (a) A
9-17 person commits an offense if the person has cause to believe that a
9-18 resident's physical or mental health or welfare has been or may be
9-19 further adversely affected by abuse or neglect and knowingly fails
9-20 to report in accordance with Section 252.102.
9-21 (b) An offense under this section is a Class A misdemeanor.
9-22 Sec. 252.112. BAD FAITH, MALICIOUS, OR RECKLESS REPORTING;
9-23 CRIMINAL PENALTY. (a) A person commits an offense if the person
9-24 reports under this subchapter in bad faith, maliciously, or
9-25 recklessly.
9-26 (b) An offense under this section is a Class A misdemeanor.
9-27 (c) The criminal penalty provided by this section is in
10-1 addition to any civil penalties for which the person may be liable.
10-2 Sec. 252.113. SUIT FOR RETALIATION. (a) A person has a
10-3 cause of action against an adult foster care home, or the owner or
10-4 employee of the adult foster care home, that suspends or terminates
10-5 the employment of the person or otherwise disciplines or
10-6 discriminates against the person for reporting the abuse or neglect
10-7 of a resident to the person's supervisors, the department, or a law
10-8 enforcement agency.
10-9 (b) The petitioner may recover:
10-10 (1) the greater of $1,000 or actual damages, including
10-11 damages for mental anguish even if an injury other than mental
10-12 anguish is not shown, and damages for lost wages if the
10-13 petitioner's employment was suspended or terminated;
10-14 (2) exemplary damages;
10-15 (3) court costs; and
10-16 (4) reasonable attorney's fees.
10-17 (c) In addition to the amounts that may be recovered under
10-18 Subsection (b), a person whose employment is suspended or
10-19 terminated is entitled to reinstatement in the person's former
10-20 position.
10-21 (d) The petitioner, not later than the 90th day after the
10-22 date on which the person's employment is suspended or terminated,
10-23 must bring suit or notify the Texas Workforce Commission of the
10-24 petitioner's intent to sue under this section. A petitioner who
10-25 notifies the Texas Workforce Commission under this subsection must
10-26 bring suit not later than the 90th day after the date of the
10-27 delivery of the notice to the commission. On receipt of the
11-1 notice, the commission shall notify the adult foster care home of
11-2 the petitioner's intent to bring suit under this section.
11-3 (e) The petitioner has the burden of proof, except that
11-4 there is a rebuttable presumption that the person's employment was
11-5 suspended or terminated for reporting abuse or neglect if the
11-6 person is suspended or terminated within 60 days after the date on
11-7 which the person reported in good faith.
11-8 (f) A suit under this section may be brought in the district
11-9 court of the county in which:
11-10 (1) the plaintiff resides;
11-11 (2) the plaintiff was employed by the defendant; or
11-12 (3) the defendant conducts business.
11-13 (g) Each adult foster care home shall require each employee
11-14 of the adult foster care home, as a condition of employment with
11-15 the adult foster care home, to sign a statement that the employee
11-16 understands the employee's rights under this section. The
11-17 statement must be part of the statement required under Section
11-18 252.102. If an adult foster care home does not require an employee
11-19 to read and sign the statement, the periods under Subsection (d) do
11-20 not apply, and the petitioner must bring suit not later than the
11-21 second anniversary of the date on which the person's employment is
11-22 suspended or terminated.
11-23 Sec. 252.114. SUIT FOR RETALIATION AGAINST RESIDENT.
11-24 (a) An adult foster care home may not retaliate or discriminate
11-25 against a resident if the resident, the resident's guardian, or any
11-26 other person reports abuse or neglect in accordance with this
11-27 subchapter.
12-1 (b) A resident who is retaliated or discriminated against in
12-2 violation of Subsection (a) is entitled to sue for:
12-3 (1) injunctive relief;
12-4 (2) actual damages;
12-5 (3) exemplary damages;
12-6 (4) court costs; and
12-7 (5) reasonable attorney's fees.
12-8 (c) A resident who seeks relief under this section must
12-9 report the alleged violation not later than the 180th day after the
12-10 date on which the alleged violation of this section occurred or was
12-11 discovered by the resident through reasonable diligence.
12-12 (d) A suit under this section may be brought in the district
12-13 court of the county in which the adult foster care home is located
12-14 or in a district court of Travis County.
12-15 Sec. 252.115. REPORTS RELATING TO RESIDENT DEATHS. (a) An
12-16 adult foster care home licensed under this chapter shall submit a
12-17 report to the department concerning deaths of residents of the
12-18 adult foster care home. The report must be submitted within 10
12-19 working days after the last day of each month in which a resident
12-20 of the adult foster care home dies. The report must also include
12-21 the death of a resident occurring within 24 hours after the
12-22 resident is transferred from the adult foster care home to a
12-23 hospital.
12-24 (b) The adult foster care home must make the report on a
12-25 form prescribed by the department. The report must contain the
12-26 name and social security number of the deceased.
12-27 (c) The department shall correlate reports under this
13-1 section with death certificate information to develop data relating
13-2 to the:
13-3 (1) name and age of the deceased;
13-4 (2) official cause of death listed on the death
13-5 certificate;
13-6 (3) date, time, and place of death; and
13-7 (4) name and address of the adult foster care home in
13-8 which the deceased resided.
13-9 (d) Except as provided by Subsection (e), a record under
13-10 this section is confidential and not subject to the provisions of
13-11 Chapter 552, Government Code.
13-12 (e) The department shall develop statistical information on
13-13 official causes of death to determine patterns and trends of
13-14 incidents of death among the elderly and in specific adult foster
13-15 care homes. Information developed under this subsection is public.
13-16 (f) A licensed adult foster care home shall make available
13-17 historical statistics on all required information on request of an
13-18 applicant or applicant's representative.
13-19 SECTION 3. This Act takes effect September 1, 1997, except
13-20 that Section 252.002, Health and Safety Code, as added by this Act,
13-21 and Subchapter B, Chapter 252, Health and Safety Code, as added by
13-22 this Act, take effect January 1, 1998.
13-23 SECTION 4. The importance of this legislation and the
13-24 crowded condition of the calendars in both houses create an
13-25 emergency and an imperative public necessity that the
13-26 constitutional rule requiring bills to be read on three several
13-27 days in each house be suspended, and this rule is hereby suspended.