By: Zaffirini, Moncrief, et al. S.B. No. 190
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the regulation of nursing homes and similar facilities;
1-2 providing penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 ARTICLE 1. REGULATION OF NURSING HOMES AND SIMILAR FACILITIES
1-5 SECTION 1.01. Section 242.001, Health and Safety Code, is
1-6 amended to read as follows:
1-7 Sec. 242.001. SCOPE, PURPOSE, AND IMPLEMENTATION. (a) It
1-8 is the goal of this chapter to ensure that institutions in this
1-9 state deliver the highest possible quality of care. This chapter,
1-10 and the rules and standards adopted under this chapter, establish
1-11 minimum acceptable levels of care. Each institution licensed under
1-12 this chapter shall, at a minimum, provide quality care in
1-13 accordance with this chapter and the rules and standards.
1-14 Components of quality of care addressed by these rules and
1-15 standards include:
1-16 (1) quality of life;
1-17 (2) access to care;
1-18 (3) continuity of care;
1-19 (4) comprehensiveness of care;
1-20 (5) coordination of services;
1-21 (6) humaneness of treatment;
1-22 (7) conservatism in intervention;
1-23 (8) safety of the environment;
2-1 (9) professionalism of caregivers; and
2-2 (10) participation in useful studies.
2-3 (b) The rules and standards adopted under this chapter may
2-4 be more stringent than the standards imposed by federal law for
2-5 certification for participation in the state Medicaid program. The
2-6 rules and standards may not be less stringent than the Medicaid
2-7 certification standards imposed under the Omnibus Budget
2-8 Reconciliation Act of 1987 (OBRA), Pub. L. No. 100-203.
2-9 (c) The rules and standards adopted under this chapter apply
2-10 to each licensed institution. The rules and standards are intended
2-11 for use in state surveys of the facilities and any investigation
2-12 and enforcement action and are designed to be useful to consumers
2-13 and providers in assessing the quality of care provided in an
2-14 institution.
2-15 (d) The legislature finds that the construction,
2-16 maintenance, and operation of institutions shall be regulated in a
2-17 manner that protects the residents of the institutions by:
2-18 (1) providing the highest possible quality of care;
2-19 (2) strictly monitoring all factors relating to the
2-20 health, safety, welfare, and dignity of each resident;
2-21 (3) imposing prompt and effective remedies for
2-22 noncompliance with licensing standards; and
2-23 (4) providing the public with information concerning
2-24 the operation of institutions in this state.
2-25 (e) It is the legislature's intent that this chapter
3-1 accomplish the goals listed by Subsection (d).
3-2 (f) This chapter shall be construed broadly to accomplish
3-3 the purposes set forth in this section. [The purpose of this
3-4 chapter is to promote the public health, safety, and welfare by
3-5 providing for the development, establishment, and enforcement of
3-6 standards for the treatment of residents of institutions and the
3-7 establishment, construction, maintenance, and operation of
3-8 institutions that, in the light of advancing knowledge, will
3-9 promote safe and adequate treatment of residents.]
3-10 SECTION 1.02. Section 242.002, Health and Safety Code, is
3-11 amended to read as follows:
3-12 Sec. 242.002. DEFINITIONS. In this chapter:
3-13 (1) "Board" means the Texas Board of Human Services.
3-14 (2) "Commissioner" means the commissioner of human
3-15 services.
3-16 (3) "Department" means the Texas Department of Human
3-17 Services.
3-18 (4) [(3)] "Elderly person" means an individual who is
3-19 65 years of age or older.
3-20 (5) "Facility" means an institution.
3-21 (6) [(4)] "Governmental unit" means the state or a
3-22 political subdivision of the state, including a county or
3-23 municipality.
3-24 (7) "Home" means an institution.
3-25 (8) [(5)] "Hospital" has the meaning assigned by
4-1 Chapter 241 (Texas Hospital Licensing Law).
4-2 (9) [(6)] "Institution" means:
4-3 (A) an establishment that:
4-4 (i) furnishes, in one or more facilities,
4-5 food and shelter to four or more persons who are unrelated to the
4-6 proprietor of the establishment; and
4-7 (ii) provides minor treatment under the
4-8 direction and supervision of a physician licensed by the Texas
4-9 State Board of Medical Examiners, or other services that meet some
4-10 need beyond the basic provision of food, shelter, and laundry; or
4-11 (B) a foster care type residential facility that
4-12 provides room and board to fewer than five persons who:
4-13 (i) are not related within the second
4-14 degree of consanguinity or affinity, as determined under Chapter
4-15 573, Government Code, to the proprietor; and
4-16 (ii) because of their physical or mental
4-17 limitation, or both, require a level of care and services suitable
4-18 to their needs that contributes to their health, comfort, and
4-19 welfare.
4-20 (10) [(7)] "Person" means an individual, firm,
4-21 partnership, corporation, association, [or] joint stock company,
4-22 limited partnership, limited liability company, or any other legal
4-23 entity and includes a legal successor of those entities.
4-24 (11) [(8)] "Resident" means an individual, including a
4-25 patient, who resides in an institution.
5-1 [(9) "Commissioner" means the commissioner of human
5-2 services.]
5-3 SECTION 1.03. Subchapter A, Chapter 242, Health and Safety
5-4 Code, is amended by adding Section 242.0021 to read as follows:
5-5 Sec. 242.0021. CONTROLLING PERSON. (a) A person is a
5-6 controlling person if the person has the ability, acting alone or
5-7 in concert with others, to directly or indirectly influence,
5-8 direct, or cause the direction of the management, expenditure of
5-9 money, or policies of an institution or other person.
5-10 (b) For purposes of this chapter, "controlling person"
5-11 includes:
5-12 (1) a management company, landlord, or other business
5-13 entity that operates or contracts with others for the operation of
5-14 an institution;
5-15 (2) any person who is a controlling person of a
5-16 management company or other business entity that operates an
5-17 institution or that contracts with another person for the operation
5-18 of an institution; and
5-19 (3) any other individual who, because of a personal,
5-20 familial, or other relationship with the owner, manager, landlord,
5-21 tenant, or provider of an institution, is in a position of actual
5-22 control or authority with respect to the institution, without
5-23 regard to whether the individual is formally named as an owner,
5-24 manager, director, officer, provider, consultant, contractor, or
5-25 employee of the facility.
6-1 (c) A controlling person described by Subsection (b)(3) does
6-2 not include a person, such as a lender, secured creditor, or
6-3 landlord, who does not exercise any influence or control, whether
6-4 formal or actual, over the operation of an institution.
6-5 SECTION 1.04. Section 242.005, Health and Safety Code, is
6-6 amended to read as follows:
6-7 Sec. 242.005. PERFORMANCE REPORTS [ANNUAL REPORT]. (a) The
6-8 department and the attorney general shall each prepare annually a
6-9 full report of the operation and administration of their respective
6-10 responsibilities under this chapter, including recommendations and
6-11 suggestions they consider [it considers] advisable.
6-12 (b) The Legislative Budget Board and the state auditor shall
6-13 jointly prescribe the form and content of reports required by this
6-14 section.
6-15 (c) The department and the attorney general shall submit
6-16 their reports [the report] to the governor and the legislature not
6-17 later than October 1 of each year.
6-18 SECTION 1.05. Subchapter A, Chapter 242, Health and Safety
6-19 Code, is amended by adding Sections 242.015, 242.016, and 242.017
6-20 to read as follows:
6-21 Sec. 242.015. DOCUMENTS PUBLIC. Subject to Sections
6-22 242.126, 242.127, 242.552, and 242.553, a document received, owned,
6-23 used, or retained by the department in connection with this chapter
6-24 is public information for purposes of Chapter 552, Government Code.
6-25 Sec. 242.016. LICENSED ADMINISTRATOR. (a) Each institution
7-1 must have a licensed nursing facility administrator.
7-2 (b) The administrator shall:
7-3 (1) manage the institution;
7-4 (2) be responsible for:
7-5 (A) delivery of quality care to all residents;
7-6 and
7-7 (B) implementation of the policies and
7-8 procedures of the institution; and
7-9 (3) work at least 40 hours per week on administrative
7-10 duties.
7-11 Sec. 242.017. FEES AND PENALTIES. Except as expressly
7-12 provided by this chapter, a fee or penalty collected by or on
7-13 behalf of the department under this chapter must be deposited to
7-14 the credit of the general revenue fund and may be appropriated only
7-15 to the department to administer and enforce this chapter.
7-16 Investigation and attorney's fees may not be assessed or collected
7-17 by or on behalf of the department or other state agency unless the
7-18 department or other state agency assesses and collects a penalty
7-19 described under this chapter.
7-20 SECTION 1.06. Section 242.032, Health and Safety Code, is
7-21 amended to read as follows:
7-22 Sec. 242.032. LICENSE OR RENEWAL APPLICATION. (a) An
7-23 application for a license or renewal of a license is made to the
7-24 department on a form provided by the department and must be
7-25 accompanied by the license fee.
8-1 (b) The application must contain information that the
8-2 department requires.
8-3 (c) The applicant or license holder must furnish evidence to
8-4 affirmatively establish the applicant's or license holder's ability
8-5 to comply with:
8-6 (1) minimum standards of medical care, nursing care,
8-7 and financial condition; and
8-8 (2) any other applicable state or federal standard.
8-9 (d) The department shall consider the background and
8-10 qualifications of:
8-11 (1) the applicant or license holder;
8-12 (2) a partner, officer, director, or managing employee
8-13 of the applicant or license holder;
8-14 (3) a person who owns or who controls the owner of the
8-15 physical plant of a facility in which the institution operates or
8-16 is to operate; and
8-17 (4) a controlling person with respect to the
8-18 institution for which a license or license renewal is requested.
8-19 (e) In making the evaluation required by Subsection (d),
8-20 the department shall require the applicant or license holder to
8-21 file a sworn affidavit of a satisfactory compliance history and any
8-22 other information required by the department to substantiate a
8-23 satisfactory compliance history relating to each state or other
8-24 jurisdiction in which the applicant or license holder and any other
8-25 person described by Subsection (d) operated an institution at any
9-1 time during the 10-year period preceding the date on which the
9-2 application is made. The department may also require the applicant
9-3 or license holder to file information relating to the history of
9-4 the financial condition of the applicant or license holder and any
9-5 other person described by Subsection (d) with respect to an
9-6 institution operated in another state or jurisdiction at any time
9-7 during the 10-year period preceding the date on which the
9-8 application is made[, which may include affirmative evidence of
9-9 ability to comply with the standards and rules adopted under this
9-10 chapter].
9-11 SECTION 1.07. Subsection (a), Section 242.033, Health and
9-12 Safety Code, is amended to read as follows:
9-13 (a) After receiving an application for a license, the
9-14 department may [shall] issue the license if, after inspection and
9-15 investigation, it finds that the applicant or license holder and
9-16 any other person described by Section 242.032(d) [and facilities]
9-17 meet the requirements established under this chapter.
9-18 SECTION 1.08. Section 242.034, Health and Safety Code, is
9-19 amended to read as follows:
9-20 Sec. 242.034. LICENSE FEES. (a) The board may establish by
9-21 rule license fees for institutions licensed by the department under
9-22 this chapter. The license fee may not exceed $150 plus:
9-23 (1) $5 for each unit of capacity or bed space for
9-24 which a license is sought; and
9-25 (2) a background examination fee imposed under
10-1 Subsection (c).
10-2 (b) An additional license fee may be charged as provided by
10-3 Section 242.097.
10-4 (c) The board may establish a background examination fee in
10-5 an amount necessary to defray the department's expenses in
10-6 administering its duties under Sections 242.032(d) and (e).
10-7 (d) [(b)] The license fee must be paid with each application
10-8 for an initial license, a renewal license, or a change of ownership
10-9 license.
10-10 (e) [(c)] The state is not required to pay the license fee.
10-11 (f) [(d)] An approved increase in bed space is subject to an
10-12 additional fee.
10-13 (g) [(e) Except as provided by Section 242.097, all license
10-14 fees collected shall be deposited in the state treasury to the
10-15 credit of the department and may be appropriated to the department
10-16 to administer and enforce this chapter.]
10-17 [(f)] The license fees established under this chapter are an
10-18 allowable cost for reimbursement under the medical assistance
10-19 program administered by the Texas Department of Human Services
10-20 under Chapter 32, Human Resources Code. Any fee increases shall be
10-21 reflected in reimbursement rates prospectively.
10-22 SECTION 1.09. Section 242.037, Health and Safety Code, as
10-23 amended by Chapters 583 and 1049, Acts of the 74th Legislature,
10-24 1995, is amended to read as follows:
10-25 Sec. 242.037. RULES; MINIMUM STANDARDS. (a) The department
11-1 shall make and enforce rules and minimum standards to implement
11-2 this chapter, including rules and minimum standards relating to
11-3 quality of life, quality of care, and residents' rights.
11-4 (b) The rules and standards adopted under this chapter may
11-5 be more stringent than the standards imposed by federal law for
11-6 certification for participation in the state Medicaid program.
11-7 (c) The rules and standards adopted by the department may
11-8 not be less stringent than the Medicaid certification standards and
11-9 regulations imposed under the Omnibus Budget Reconciliation Act of
11-10 1987 (OBRA), Pub. L. No. 100-203.
11-11 (d) In addition to standards or rules required by other
11-12 provisions of this chapter, the [The] board shall [may] adopt,
11-13 publish, and enforce minimum standards relating to:
11-14 (1) the construction of an institution, including
11-15 plumbing, heating, lighting, ventilation, and other housing
11-16 conditions, to ensure the residents' health, safety, comfort, and
11-17 protection from fire hazard;
11-18 (2) the regulation of the number and qualification of
11-19 all personnel, including management and nursing personnel,
11-20 responsible for any part of the care given to the residents;
11-21 (3) requirements for in-service education of all
11-22 employees who have any contact with the residents;
11-23 (4) training on the care of persons with Alzheimer's
11-24 disease and related disorders for employees who work with those
11-25 persons;
12-1 (5) sanitary and related conditions in an institution
12-2 and its surroundings, including water supply, sewage disposal, food
12-3 handling, and general hygiene in order to ensure the residents'
12-4 health, safety, and comfort;
12-5 (6) the nutritional [dietary] needs of each resident
12-6 according to good nutritional practice or the recommendations of
12-7 the physician attending the resident;
12-8 (7) equipment essential to the residents' health and
12-9 welfare; [and]
12-10 (8) the use and administration of medication in
12-11 conformity with applicable law and rules;
12-12 (9) care and treatment of residents and any other
12-13 matter related to resident health, safety, and welfare;
12-14 (10) licensure of institutions; and
12-15 (11) implementation of this chapter.
12-16 (e) [(b)] The board shall adopt, publish, and enforce
12-17 minimum standards requiring appropriate training in geriatric care
12-18 for each individual who provides services to geriatric residents in
12-19 [as an employee of] an institution and who holds a license or
12-20 certificate issued by an agency of this state that authorizes the
12-21 person to provide the services. The minimum standards may require
12-22 that each licensed or certified individual complete an appropriate
12-23 program of continuing education or in-service training, as
12-24 determined by board rule, on a schedule determined by board rule.
12-25 (f) To administer the surveys for provider certification
13-1 provided for by federal law and regulation, the department must
13-2 identify each area of care that is subject to both state licensing
13-3 requirements and federal certification requirements. For each area
13-4 of care that is subject to the same standard under both federal
13-5 certification and state licensing requirements, an institution that
13-6 is in compliance with the federal certification standard is
13-7 considered to be in compliance with the same state licensing
13-8 requirement.
13-9 [(b) Notwithstanding Section 222.0255(b), an institution
13-10 that is certified as being in compliance with each standard of
13-11 participation in the state Medicaid program that relates to the
13-12 same subject matter as a minimum standard established under
13-13 Subsection (a) is not required to satisfy the minimum standard
13-14 established under that subsection.]
13-15 SECTION 1.10. Subchapter B, Chapter 242, Health and Safety
13-16 Code, is amended by amending Section 242.042 and adding Section
13-17 242.0421 to read as follows:
13-18 Sec. 242.042. POSTING. Each institution shall prominently
13-19 and conspicuously post for display in a public area of the
13-20 institution that is readily available to residents, employees, and
13-21 visitors:
13-22 (1) the license issued under this chapter;
13-23 (2) a sign prescribed by the department that specifies
13-24 complaint procedures established under this chapter or rules
13-25 adopted under this chapter and that specifies how complaints may be
14-1 registered with the department;
14-2 (3) a notice in a form prescribed by the department
14-3 stating that licensing inspection reports and other related reports
14-4 which show deficiencies cited by the department are available at
14-5 the institution for public inspection and providing the
14-6 department's toll-free telephone number that may be used to obtain
14-7 information concerning the institution; [and]
14-8 (4) a concise summary of the most recent inspection
14-9 report relating to the institution;
14-10 (5) notice that the department can provide summary
14-11 reports relating to the quality of care, recent investigations,
14-12 litigation, and other aspects of the operation of the institution;
14-13 (6) notice that the Texas Board of Nursing Facility
14-14 Administrators can provide information about the nursing facility
14-15 administrator; and
14-16 (7) any notice or written statement required to be
14-17 posted under Section 242.072(b).
14-18 Sec. 242.0421. AVAILABILITY OF REPORTS. A facility shall
14-19 make licensing inspection reports and other reports which show
14-20 deficiencies cited by the department available in a well-lit,
14-21 public area that is easily accessible by both residents and the
14-22 public.
14-23 SECTION 1.11. Subsection (c), Section 242.045, Health and
14-24 Safety Code, is amended to read as follows:
14-25 (c) An offense under this section is a third degree felony
15-1 [Class B misdemeanor].
15-2 SECTION 1.12. Section 242.061, Health and Safety Code, is
15-3 amended by amending Subsection (a) and adding Subsection (c) to
15-4 read as follows:
15-5 (a) The department, after providing notice and opportunity
15-6 for a hearing to the applicant or license holder, may deny,
15-7 suspend, or revoke a license if the department finds that the
15-8 applicant, the [or] license holder, or any other person described
15-9 by Section 242.032(d) has:
15-10 (1) violated this chapter or a rule, standard, or
15-11 order adopted or license issued under this chapter;
15-12 (2) committed any act described by Sections
15-13 242.066(a)(2)-(6); or
15-14 (3) otherwise [substantially] failed to comply with
15-15 the requirements established under this chapter.
15-16 (c) The department may deny, suspend, or revoke the license
15-17 of an institution if any person described by Section 242.032(d) has
15-18 been excluded from holding a license under Section 242.0615.
15-19 SECTION 1.13. Subchapter C, Chapter 242, Health and Safety
15-20 Code, is amended by adding Section 242.0615 to read as follows:
15-21 Sec. 242.0615. EXCLUSION. (a) The department, after
15-22 providing notice and opportunity for a hearing, may exclude a
15-23 person from eligibility for a license under this chapter if the
15-24 person has substantially failed to comply with this chapter and the
15-25 rules adopted under this chapter.
16-1 (b) Exclusion of a person under this section must extend for
16-2 a period of at least two years but may not exceed a period of 10
16-3 years.
16-4 SECTION 1.14. Subsection (a), Section 242.063, Health and
16-5 Safety Code, is amended to read as follows:
16-6 (a) The department may petition a district court for:
16-7 (1) a temporary restraining order to restrain a person
16-8 from [continuing] a violation or threatened violation of the
16-9 standards imposed under [prescribed by] this chapter or any other
16-10 law affecting residents if the department reasonably believes
16-11 [finds] that the violation or threatened violation creates an
16-12 immediate threat to the health and safety of a resident; and
16-13 (2) an injunction to restrain a person from a
16-14 violation or threatened violation of the standards imposed under
16-15 this chapter or by any other law affecting residents if the
16-16 department reasonably believes that the violation or threatened
16-17 violation creates a threat to the health and safety of a resident
16-18 [the institution's residents].
16-19 SECTION 1.15. Section 242.065, Health and Safety Code, is
16-20 amended to read as follows:
16-21 Sec. 242.065. CIVIL PENALTY. (a) A person who violates or
16-22 causes a violation of this chapter or a rule adopted under this
16-23 chapter is liable for a civil penalty of not less than $1,000
16-24 [$100] or more than $25,000 [$10,000] for each act of violation if
16-25 the department determines the violation threatens the health and
17-1 safety of a resident.
17-2 (b) In determining the amount of a penalty to be awarded
17-3 under this section, the trier of fact shall consider:
17-4 (1) the seriousness of the violation, including the
17-5 nature, circumstances, extent, and gravity of the violation and the
17-6 hazard or potential hazard created by the violation to the health
17-7 or safety of a resident;
17-8 (2) the history of violations committed by the person
17-9 or the person's affiliate, employee, or controlling person;
17-10 (3) the amount necessary to deter future violations;
17-11 (4) the efforts made to correct the violation;
17-12 (5) any misrepresentation made to the department or to
17-13 another person regarding:
17-14 (A) the quality of services rendered or to be
17-15 rendered to residents;
17-16 (B) the compliance history of the institution or
17-17 any institutions owned or controlled by an owner or controlling
17-18 person of the institution; or
17-19 (C) the identity of an owner or controlling
17-20 person of the institution;
17-21 (6) the culpability of the individual who committed
17-22 the violation; and
17-23 (7) any other matter that should, as a matter of
17-24 justice or equity, be considered.
17-25 (c) Each day of a continuing violation and each resident who
18-1 suffers directly because of the violation constitutes a separate
18-2 ground for recovery.
18-3 (d) Any party to a suit under this section may request a
18-4 jury.
18-5 (e) If a person who is liable under this section fails to
18-6 pay any amount the person is obligated to pay under this section,
18-7 the state may seek satisfaction from any owner, other controlling
18-8 person, or affiliate of the person found liable. The owner, other
18-9 controlling person, or affiliate may be found liable in the same
18-10 suit or in another suit on a showing by the state that the amount
18-11 to be paid has not been paid or otherwise legally discharged. The
18-12 department by rule may establish a method for satisfying an
18-13 obligation imposed under this section from an insurance policy,
18-14 letter of credit, or other contingency fund.
18-15 (f) A payment made to satisfy an obligation under this
18-16 section is not an allowable cost for reimbursement under the state
18-17 Medicaid program.
18-18 (g) A civil penalty awarded under this section constitutes a
18-19 fine, penalty, or forfeiture payable to and for the benefit of a
18-20 government unit and is not compensation for actual pecuniary loss.
18-21 SECTION 1.16. Section 242.066, Health and Safety Code, is
18-22 amended by amending Subsections (a) and (b) and adding Subsections
18-23 (f), (g), and (h) to read as follows:
18-24 (a) The department may assess an administrative [a civil]
18-25 penalty against a person who:
19-1 (1) violates this chapter or a rule, standard, or
19-2 order adopted or license issued under this chapter;
19-3 (2) makes a false statement, that the person knows is
19-4 false, of a material fact:
19-5 (A) on an application for issuance or renewal of
19-6 a license or in an attachment to the application; or
19-7 (B) with respect to a matter under investigation
19-8 by the department;
19-9 (3) refuses to allow a representative of the
19-10 department to inspect:
19-11 (A) a book, record, or file required to be
19-12 maintained by an institution; or
19-13 (B) any portion of the premises of an
19-14 institution;
19-15 (4) wilfully interferes with the work of a
19-16 representative of the department or the enforcement of this
19-17 chapter;
19-18 (5) wilfully interferes with a representative of the
19-19 department preserving evidence of a violation of this chapter or a
19-20 rule, standard, or order adopted or license issued under this
19-21 chapter; or
19-22 (6) fails to pay a penalty assessed by the department
19-23 under this chapter not later than the 10th day after the date the
19-24 assessment of the penalty becomes final.
19-25 (b) Except as provided by Subsection (f) and Section
20-1 242.0665(c), the [The] penalty may not exceed $10,000 a day for
20-2 each violation.
20-3 (f) The penalty for a violation of Section 242.072(b) or a
20-4 right of a resident adopted under Subchapter L may not exceed
20-5 $1,000 a day for each violation. This subsection does not apply to
20-6 conduct that violates both Subchapter K or a standard adopted under
20-7 Subchapter K and a right of a resident adopted under Subchapter L.
20-8 (g) The persons against whom an administrative penalty may
20-9 be assessed under Subsection (a) include:
20-10 (1) an applicant for a license under this chapter;
20-11 (2) a license holder;
20-12 (3) a partner, officer, director, or managing
20-13 employee of a license holder or applicant; and
20-14 (4) a person who controls an institution.
20-15 (h) A penalty assessed under Subsection (a)(6) is in
20-16 addition to the penalty previously assessed and not timely paid.
20-17 SECTION 1.17. Subchapter C, Chapter 242, Health and Safety
20-18 Code, is amended by adding Section 242.0665 to read as follows:
20-19 Sec. 242.0665. RIGHT TO CORRECT. (a) The department may
20-20 not assess an administrative penalty against an institution under
20-21 this subchapter if, not later than the 60th day after the date the
20-22 institution receives notice under Section 242.067(c), the
20-23 institution corrects the violation.
20-24 (b) Subsection (a) does not apply:
20-25 (1) to a violation that the department determines:
21-1 (A) results in serious harm to or death of a
21-2 resident;
21-3 (B) constitutes a serious threat to the health
21-4 or safety of a resident; or
21-5 (C) substantially limits the institution's
21-6 capacity to provide care;
21-7 (2) to a violation described by Sections
21-8 242.066(a)(2)-(6);
21-9 (3) to a violation of Section 242.133 or 242.1335; or
21-10 (4) to a violation of a right of a resident adopted
21-11 under Subchapter L.
21-12 (c) An institution that corrects a violation under
21-13 Subsection (a) must maintain the correction. If the institution
21-14 fails to maintain the correction until at least the first
21-15 anniversary of the date the correction was made, the department may
21-16 assess an administrative penalty under this subchapter for the
21-17 subsequent violation. A penalty assessed under this subsection may
21-18 not exceed $30,000 a day for each violation. The department is not
21-19 required to provide the institution an opportunity to correct the
21-20 subsequent violation under this section.
21-21 SECTION 1.18. Sections 242.067, 242.068, 242.069, and
21-22 242.070, Health and Safety Code, are amended to read as follows:
21-23 Sec. 242.067. REPORT RECOMMENDING ADMINISTRATIVE PENALTY.
21-24 (a) The department may issue a preliminary report stating the
21-25 facts on which it concludes that a violation of this chapter or a
22-1 rule, standard, or order adopted or license issued under this
22-2 chapter has occurred if it has:
22-3 (1) [it has] examined the possible violation and facts
22-4 surrounding the possible violation; and
22-5 (2) concluded that a violation has occurred.
22-6 (b) The report may recommend a penalty under Section 242.069
22-7 and the amount of the penalty.
22-8 (c) The department shall give written notice of the report
22-9 to the person charged with the violation not later than the 10th
22-10 day after the date on which the report is issued. The notice must
22-11 include:
22-12 (1) a brief summary of the charges;
22-13 (2) a statement of the amount of penalty recommended;
22-14 [and]
22-15 (3) a statement of whether the violation is subject to
22-16 correction under Section 242.0665 and, if the violation is subject
22-17 to correction under that section, a statement of:
22-18 (A) the date on which the institution must file
22-19 with the department a plan of correction to be approved by the
22-20 department; and
22-21 (B) the date on which the plan of correction
22-22 must be completed to avoid assessment of the penalty; and
22-23 (4) a statement that the person charged has a right to
22-24 a hearing on the occurrence of the violation, the amount of the
22-25 penalty, or both.
23-1 (d) Not later than the 20th day after the date on which the
23-2 notice under Subsection (c) is sent, the person charged may:
23-3 (1) give to the department written consent to the
23-4 department's report, including the recommended penalty; [or]
23-5 (2) make a written request for a hearing; or
23-6 (3) if the violation is subject to correction under
23-7 Section 242.0665, submit a plan of correction to the department for
23-8 approval.
23-9 (e) If the violation is subject to correction under Section
23-10 242.0665, and the person reports to the department that the
23-11 violation has been corrected, the department shall inspect the
23-12 correction or take any other step necessary to confirm that the
23-13 violation has been corrected and shall notify the person that:
23-14 (1) the correction is satisfactory and that a penalty
23-15 is not assessed; or
23-16 (2) the correction is not satisfactory and that a
23-17 penalty is recommended.
23-18 (f) Not later than the 20th day after the date on which a
23-19 notice under Subsection (e)(2) is sent, the person charged may:
23-20 (1) give to the department written consent to the
23-21 department's report, including the recommended penalty; or
23-22 (2) make a written request for a hearing.
23-23 (g) If the person charged with the violation consents to the
23-24 administrative penalty recommended by the department or does not
23-25 timely respond to a [the] notice sent under Subsection (c) or (e),
24-1 the commissioner or the commissioner's designee shall[:]
24-2 [(1)] assess the administrative penalty recommended by
24-3 the department[; or]
24-4 [(2) order a hearing to be held on the findings and
24-5 recommendations in the department's report].
24-6 (h) [(f)] If the commissioner or the commissioner's designee
24-7 assesses the recommended penalty, the department shall give written
24-8 notice to the person charged of the decision and the person shall
24-9 pay the penalty.
24-10 Sec. 242.068. HEARING. (a) An administrative law judge
24-11 [The commissioner] shall order a hearing and give notice of the
24-12 hearing if[:]
24-13 [(1)] a person charged under this chapter requests a
24-14 hearing[; or]
24-15 [(2) the commissioner or the commissioner's designee
24-16 orders a hearing].
24-17 (b) The hearing shall be held before an administrative law
24-18 judge [by a hearing examiner designated by the commissioner].
24-19 (c) The administrative law judge [hearing examiner] shall
24-20 make findings of fact and conclusions of law [promptly issue to the
24-21 commissioner a written decision] regarding the occurrence of a
24-22 violation of this chapter or a rule or order adopted or license
24-23 issued under this chapter [and a recommendation regarding the
24-24 amount of the proposed penalty if a penalty is warranted].
24-25 (d) Based on the findings of fact and conclusions of law
25-1 [recommendations of the hearing examiner], the administrative law
25-2 judge [commissioner] by order shall [may] find:
25-3 (1) a violation has occurred and assess an
25-4 administrative [a civil] penalty; or
25-5 (2) a violation has not occurred.
25-6 (e) Proceedings under this section are subject to Chapter
25-7 2001, Government Code.
25-8 Sec. 242.069. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
25-9 INTEREST; REFUND. (a) The commissioner shall give notice of the
25-10 decision taken under Section 242.068(d) to the person charged. If
25-11 the commissioner finds that a violation has occurred and has
25-12 assessed an administrative [a civil] penalty, the commissioner
25-13 shall give written notice to the person charged of:
25-14 (1) the findings;
25-15 (2) [,] the amount of the penalty;
25-16 (3) the rate of interest payable with respect to the
25-17 penalty and the date on which interest begins to accrue;
25-18 (4) whether payment of the penalty or other action
25-19 under Section 242.071 is required;[,] and
25-20 (5) the person's right to judicial review of the
25-21 order.
25-22 (b) Not later than the 10th [30th] day after the date on
25-23 which the commissioner's order is final, the person charged with
25-24 the penalty shall:
25-25 (1) pay the full amount of the penalty;
26-1 (2) pay the penalty and file a petition for judicial
26-2 review; or
26-3 (3) without paying the penalty, file a petition for
26-4 judicial review.
26-5 (c) Notwithstanding Subsection (b), the department may
26-6 permit the person to pay the penalty in installments or may require
26-7 the person to use the amount of the penalty under the department's
26-8 supervision in accordance with Section 242.071.
26-9 (d) If the person does not pay the penalty within the 10-day
26-10 period:
26-11 (1) the penalty is subject to interest; and
26-12 (2) the department may refer the matter to the
26-13 attorney general for collection of the penalty and interest [If the
26-14 person seeks judicial review of the violation, the amount of the
26-15 penalty, or both, the person, within the time provided by
26-16 Subsection (b), shall:]
26-17 [(1) send the amount of the penalty to the
26-18 commissioner for placement in an escrow account; or]
26-19 [(2) post with the commissioner a supersedeas bond in
26-20 a form approved by the commissioner for the amount of the penalty,
26-21 the bond to be effective until the judicial review of the order or
26-22 decision is final.]
26-23 [(d) A person who fails to comply with Subsection (c) waives
26-24 the right to judicial review, and the commissioner may request
26-25 enforcement by the attorney general].
27-1 (e) If a penalty is reduced or not assessed, the
27-2 commissioner shall:
27-3 (1) remit to the person charged the appropriate amount
27-4 of any penalty payment plus accrued interest; or
27-5 (2) execute a release of the supersedeas bond if one
27-6 has been posted.
27-7 (f) Accrued interest on amounts remitted by the commissioner
27-8 under Subsection (e)(1) shall be paid:
27-9 (1) at a rate equal to the rate charged on loans to
27-10 depository institutions by the New York Federal Reserve Bank; and
27-11 (2) for the period beginning on the date the penalty
27-12 is paid [to the commissioner] under Subsection (b) [(c)] and ending
27-13 on the date the penalty is remitted.
27-14 (g) Accrued interest on amounts collected after the
27-15 expiration of the 10-day period under Subsection (d) shall be
27-16 paid:
27-17 (1) at a rate equal to the rate charged on loans to
27-18 the depository institutions by the New York Federal Reserve Bank;
27-19 and
27-20 (2) for the period beginning on the date the notice of
27-21 the commissioner's order is received by the person and ending on
27-22 the date the penalty is paid. [A penalty collected under this
27-23 section shall be deposited to the credit of the nursing and
27-24 convalescent home trust fund established under Section 242.096.]
27-25 Sec. 242.070. APPLICATION OF OTHER LAW. The department may
28-1 not assess more than one monetary [a] penalty under [both] this
28-2 chapter [subchapter and Section 32.021, Human Resources Code,] for
28-3 a violation arising out of the same act or failure to act, except
28-4 as provided by Section 242.0665(c). This section does not prohibit
28-5 the department from assessing a monetary penalty under this chapter
28-6 and a monetary penalty under Chapter 32, Human Resources Code, for
28-7 the same act or failure to act.
28-8 SECTION 1.19. Subchapter C, Chapter 242, Health and Safety
28-9 Code, is amended by adding Sections 242.071, 242.072, and 242.073
28-10 to read as follows:
28-11 Sec. 242.071. AMELIORATION OF VIOLATION. In lieu of
28-12 ordering payment of the administrative penalty under Section
28-13 242.069, the commissioner may require the person to use, under the
28-14 supervision of the department, any portion of the penalty to
28-15 ameliorate the violation or to improve services, other than
28-16 administrative services, in the institution affected by the
28-17 violation.
28-18 Sec. 242.072. OTHER REMEDIES. (a) If the commissioner
28-19 finds that an institution has committed an act for which an
28-20 administrative penalty may be imposed under Section 242.066, the
28-21 commissioner may, as appropriate under the circumstances, order the
28-22 institution to suspend admissions.
28-23 (b) During the period that an institution is ordered to
28-24 suspend admissions, the institution shall post a notice of the
28-25 suspension on all doors providing ingress to and egress from the
29-1 institution. The notice shall be posted in the form required by
29-2 the department.
29-3 (c) A person commits an offense if the person knowingly:
29-4 (1) violates Subsection (b); or
29-5 (2) removes a notice posted under Subsection (b)
29-6 before the facility is allowed to admit residents.
29-7 (d) An offense under Subsection (c) is a Class C
29-8 misdemeanor.
29-9 Sec. 242.073. LEGAL ACTION BY THE ATTORNEY GENERAL.
29-10 (a) The department and the attorney general shall work in close
29-11 cooperation throughout any legal proceedings requested by the
29-12 department.
29-13 (b) The commissioner must approve any settlement agreement
29-14 to a suit brought under this chapter or any other law relating to
29-15 the health and safety of residents in institutions.
29-16 SECTION 1.20. Subsection (e), Section 242.096, Health and
29-17 Safety Code, is amended to read as follows:
29-18 (e) Any unencumbered amount in the nursing and convalescent
29-19 home trust fund in excess of $500,000 [$100,000] at the end of each
29-20 fiscal year shall be transferred to the credit of the general
29-21 revenue fund and may be appropriated only to the department for its
29-22 use in administering and enforcing this chapter.
29-23 SECTION 1.21. Section 242.097, Health and Safety Code, is
29-24 amended to read as follows:
29-25 Sec. 242.097. ADDITIONAL LICENSE FEE. (a) In addition to
30-1 the license fee provided by Section 242.034, the department shall
30-2 adopt an annual fee to be charged and collected if the amount of
30-3 the nursing and convalescent home trust fund is less than $500,000
30-4 [$100,000]. The fee shall be deposited to the credit of the
30-5 nursing and convalescent home trust fund created by this
30-6 subchapter.
30-7 (b) The department shall set the fee for each nursing and
30-8 convalescent home at $1 for each licensed unit of capacity or bed
30-9 space in that home or in an amount necessary to provide $500,000
30-10 [$100,000] in the fund.
30-11 SECTION 1.22. Subchapter E, Chapter 242, Health and Safety
30-12 Code, is amended by adding Section 242.1225 to read as follows:
30-13 Sec. 242.1225. ADDITIONAL REPORTING REQUIREMENT. (a) The
30-14 board shall adopt rules requiring any person required to report
30-15 abuse or neglect under Section 242.122 to report other conduct or
30-16 conditions specified by the rules. The rules must require
30-17 reporting of conduct or conditions resulting in exploitation of
30-18 residents and accidental injury to or hospitalization of residents.
30-19 (b) A report made under this section must be made in the
30-20 manner specified by board rule.
30-21 SECTION 1.23. Section 242.126, Health and Safety Code, is
30-22 amended to read as follows:
30-23 Sec. 242.126. INVESTIGATION AND REPORT OF DEPARTMENT OR
30-24 DESIGNATED [RECEIVING] AGENCY. (a) The department or the
30-25 designated agency shall make a thorough investigation [promptly]
31-1 after receiving an [either the] oral or written report of abuse or
31-2 neglect under Section 242.122 or another complaint alleging abuse
31-3 or neglect.
31-4 (b) The primary purpose of the investigation is the
31-5 protection of the resident.
31-6 (c) The agency shall begin the investigation:
31-7 (1) within 24 hours of receipt of the report or other
31-8 allegation if the report of abuse or neglect or other complaint
31-9 alleges that:
31-10 (A) a resident's health or safety is in imminent
31-11 danger;
31-12 (B) a resident has recently died because of
31-13 conduct alleged in the report of abuse or neglect or other
31-14 complaint; or
31-15 (C) a resident has been hospitalized or has been
31-16 treated in an emergency room because of conduct alleged in the
31-17 report of abuse or neglect or other complaint; or
31-18 (2) before the end of the next working day after the
31-19 date of receipt of the report of abuse or neglect or other
31-20 complaint if the report or complaint alleges the existence of
31-21 circumstances that could result in abuse or neglect and that could
31-22 place a resident's health or safety in imminent danger.
31-23 (d) The department shall adopt rules governing the conduct
31-24 of investigations, including procedures to ensure that the
31-25 complainant and the resident, the resident's next of kin, and any
32-1 person designated to receive information concerning the resident
32-2 receive periodic information regarding the investigation.
32-3 (e) In investigating the report of abuse or neglect or other
32-4 complaint, the investigator for the investigating agency shall:
32-5 (1) make an unannounced visit to the institution to
32-6 determine the nature and cause of the alleged abuse or neglect of
32-7 the resident;
32-8 (2) interview each available witness identified by any
32-9 source as having personal knowledge relevant to the report of abuse
32-10 or neglect or other complaint;
32-11 (3) personally inspect any physical circumstance that
32-12 is relevant and material to the report of abuse or neglect or other
32-13 complaint and that may be objectively observed; and
32-14 (4) write an investigation report that includes:
32-15 (A) the investigator's personal observations;
32-16 (B) a review of relevant documents and records;
32-17 (C) a summary of each witness statement; and
32-18 (D) a statement of the factual basis for the
32-19 findings for each incident or problem alleged in the report or
32-20 other allegation.
32-21 (f) An investigator for an investigating agency shall
32-22 conduct an interview under Subsection (e)(2) in private unless the
32-23 witness expressly requests that the interview not be private.
32-24 (g) Not later than the 30th day after the date the
32-25 investigation is complete, the investigator shall prepare the
33-1 written report required by Subsection (e). The department shall
33-2 make the investigation report available to the public on request
33-3 after the date the department's letter of determination is
33-4 complete. The department shall delete from any copy made available
33-5 to the public the name of:
33-6 (1) any resident, unless the department receives
33-7 written authorization from a resident or the resident's legal
33-8 representative requesting the resident's name be left in the
33-9 report;
33-10 (2) the person making the report of abuse or neglect
33-11 or other complaint; and
33-12 (3) an individual interviewed in the investigation.
33-13 (h) In the investigation, the department or the designated
33-14 agency shall determine:
33-15 (1) the nature, extent, and cause of the abuse or
33-16 neglect;
33-17 (2) the identity of the person responsible for the
33-18 abuse or neglect;
33-19 (3) the names and conditions of the other residents;
33-20 (4) an evaluation of the persons responsible for the
33-21 care of the residents;
33-22 (5) the adequacy of the institution environment; and
33-23 (6) any other information required by the department.
33-24 (i) [(d) The investigation may include a visit to the
33-25 resident's institution and an interview with the resident if these
34-1 actions are determined by the department to be appropriate.]
34-2 [(e)] If the department attempts to carry out an on-site
34-3 investigation and it is shown that admission to the institution, or
34-4 any place where the resident is located, cannot be obtained, a
34-5 probate or county court shall order the person responsible for the
34-6 care of the resident or the person in charge of a place where the
34-7 resident is located to allow entrance for the interview and
34-8 investigation.
34-9 (j) [(f)] Before the completion of the investigation the
34-10 department shall file a petition for temporary care and protection
34-11 of the resident if the department determines that immediate removal
34-12 is necessary to protect the resident from further abuse or neglect.
34-13 (k) [(g)] The department or the designated agency shall make
34-14 a complete final written report of the investigation and submit the
34-15 report and its recommendations to the district attorney and, if a
34-16 law enforcement agency has not investigated the report of abuse or
34-17 neglect or other complaint, to the appropriate law enforcement
34-18 agency.
34-19 SECTION 1.24. Section 242.127, Health and Safety Code, is
34-20 amended to read as follows:
34-21 Sec. 242.127. CONFIDENTIALITY. The name of a person making
34-22 a [A] report[, record, or working paper used or developed in an
34-23 investigation made] under this subchapter is confidential and may
34-24 be disclosed only for purposes consistent with the rules adopted by
34-25 the board or the designated agency.
35-1 SECTION 1.25. Subsection (a), Section 242.133, Health and
35-2 Safety Code, is amended to read as follows:
35-3 (a) A person has a cause of action against an institution,
35-4 or the owner or employee of the institution, that suspends or
35-5 terminates the employment of the person or otherwise disciplines or
35-6 discriminates or retaliates against the person for making a report
35-7 under this subchapter to [reporting the abuse or neglect of a
35-8 resident to the person's supervisors,] the department[,] or a law
35-9 enforcement agency, for reporting the abuse or neglect or other
35-10 complaint to the person's supervisors, or for initiating or
35-11 cooperating in any investigation or proceeding of a governmental
35-12 entity relating to care, services, or conditions at the
35-13 institution.
35-14 SECTION 1.26. Subsection (a), Section 242.1335, Health and
35-15 Safety Code, is amended to read as follows:
35-16 (a) An institution may not retaliate or discriminate against
35-17 a resident if the resident, the resident's guardian, or any other
35-18 person makes a complaint or files a grievance concerning the
35-19 facility or reports [abuse or neglect] in accordance with this
35-20 chapter [subchapter].
35-21 SECTION 1.27. Subchapter H, Chapter 242, Health and Safety
35-22 Code, as added by Section 5, Chapter 1049, Acts of the 74th
35-23 Legislature, 1995, is redesignated as Subchapter J and the
35-24 subchapter heading is amended to read as follows:
36-1 SUBCHAPTER J [H]. ARBITRATION OF CERTAIN DISPUTES
36-2 SECTION 1.28. Subsection (c), Section 242.253, Health and
36-3 Safety Code, is amended to read as follows:
36-4 (c) The party that elects arbitration [department] shall pay
36-5 the cost of the arbitration [if the department elects the
36-6 arbitration. The cost of the arbitration shall be shared equally
36-7 by the department and the institution if the institution elects the
36-8 arbitration]. The total fees and expenses paid for an arbitrator
36-9 for a day may not exceed $500.
36-10 SECTION 1.29. Subchapter H, Chapter 242, Health and Safety
36-11 Code, redesignated as Subchapter J by Section 1.26 of this Act, is
36-12 amended by amending Sections 242.267 and 242.268 and adding Section
36-13 242.269 to read as follows:
36-14 Sec. 242.267. COURT VACATING ORDER. (a) On a finding
36-15 described by Subsection (b) [application of the institution], a
36-16 court shall:
36-17 (1) on application of an institution, vacate an
36-18 arbitrator's order with respect to an arbitration conducted at the
36-19 election of the department; or
36-20 (2) on application of the department, vacate an
36-21 arbitrator's order with respect to an arbitration conducted at the
36-22 election of an institution.
36-23 (b) A court shall vacate an arbitrator's order under
36-24 Subsection (a) only on a finding that:
36-25 (1) the order was procured by corruption, fraud, or
37-1 misrepresentation;
37-2 (2) the decision of the arbitrator was arbitrary or
37-3 capricious and against the weight of the evidence; or
37-4 (3) the order exceeded the jurisdiction of the
37-5 arbitrator under Section 242.264(a).
37-6 (c) [(b)] If the order is vacated, the dispute shall be
37-7 remanded to the department for another arbitration proceeding.
37-8 (d) [(c)] A suit to vacate an arbitrator's order must be
37-9 filed not later than the 30th day after:
37-10 (1) the date of the award; or
37-11 (2) the date the institution or department knew or
37-12 should have known of a basis for suit under this section, but in no
37-13 event later than the first anniversary of the date of the order.
37-14 (e) [(d)] Venue for a suit to vacate an arbitrator's order
37-15 is in the county in which the arbitration was conducted.
37-16 Sec. 242.268. NO ARBITRATION IN CASE OF EMERGENCY ORDER OR
37-17 CLOSING ORDER. This subchapter does not apply to an order issued
37-18 under Section 242.062, and neither the department nor the
37-19 institution may elect to arbitrate a dispute if the subject matter
37-20 of the dispute is part of the basis for suspension of admission or
37-21 revocation, denial, or suspension of an institution's license or
37-22 issuance of a closing order under Section 242.062.
37-23 Sec. 242.269. NO ARBITRATION OF CIVIL PENALTY UNDER SECTION
37-24 242.065 WITHOUT CERTIFICATION OF THE DEPARTMENT AND ATTORNEY
37-25 GENERAL. This subchapter does not apply to a civil penalty under
38-1 Section 242.065 unless the commissioner and the attorney general
38-2 certify that the material of the findings by the department justify
38-3 the option of arbitration. Certification of eligibility for
38-4 arbitration must occur no later than 30 calendar days after the
38-5 receipt of a referral from the department by the attorney general.
38-6 The department and attorney general jointly shall notify the
38-7 institution that the case is eligible for arbitration no later than
38-8 10 days after certification. Certification does not imply an
38-9 election of arbitration by the state.
38-10 SECTION 1.30. Chapter 242, Health and Safety Code, is
38-11 amended by redesignating Subchapter F as Subchapter N and adding a
38-12 new Subchapter F and Subchapters K, L, M, and O to read as follows:
38-13 SUBCHAPTER F. MEDICAL, NURSING, AND DENTAL SERVICES
38-14 OTHER THAN ADMINISTRATION OF MEDICATION
38-15 Sec. 242.151. PHYSICIAN SERVICES. (a) An institution shall
38-16 have at least one medical director who is licensed as a physician
38-17 in this state.
38-18 (b) The attending physician is responsible for a resident's
38-19 assessment and comprehensive plan of care and shall review, revise,
38-20 and sign orders relating to any medication or treatment in the plan
38-21 of care. The responsibilities imposed on the attending physician
38-22 by this subsection may be performed by an advanced practice nurse
38-23 or a physician assistant pursuant to protocols jointly developed
38-24 with the attending physician.
38-25 (c) Each resident has the right to choose a personal
39-1 attending physician.
39-2 Sec. 242.152. PHYSICIAN SERVICES FOR RESIDENTS YOUNGER THAN
39-3 18 YEARS OF AGE. (a) An institution shall use appropriate
39-4 pediatric consultative services for a resident younger than 18
39-5 years of age, in accordance with the resident's assessment and
39-6 comprehensive plan of care.
39-7 (b) A pediatrician or other physician with training or
39-8 expertise in the clinical care of children with complex medical
39-9 needs shall participate in all aspects of the resident's medical
39-10 care.
39-11 Sec. 242.153. DIRECTOR OF NURSING SERVICES. (a) An
39-12 institution shall have a director of nursing services who shall be
39-13 a registered nurse. The director of nursing services is
39-14 responsible for:
39-15 (1) coordinating each resident's comprehensive plan of
39-16 care; and
39-17 (2) ensuring that only personnel with an appropriate
39-18 license or permit administer medication.
39-19 (b) The department may grant a waiver requested by the
39-20 facility from the requirement that the director of nursing be a
39-21 registered nurse.
39-22 Sec. 242.154. NURSING SERVICES. (a) An institution shall
39-23 provide the nursing care required to allow each resident to achieve
39-24 and maintain the highest possible degree of function and
39-25 independence medically possible.
40-1 (b) The institution shall maintain sufficient nursing staff
40-2 to ensure appropriate resident care.
40-3 Sec. 242.155. PEDIATRIC NURSING SERVICES. An institution
40-4 shall ensure that:
40-5 (1) nursing services for a resident younger than 18
40-6 years of age are provided by a staff member who has been instructed
40-7 and has demonstrated competence in the care of children; and
40-8 (2) consultative pediatric nursing services are
40-9 available to the staff if the institution has a resident younger
40-10 than 18 years of age.
40-11 Sec. 242.156. REQUIRED MEDICAL EXAMINATION. (a) Except as
40-12 required by federal law, the department shall require that each
40-13 resident be given at least one medical examination each year.
40-14 (b) The department shall specify the details of the
40-15 examination.
40-16 Sec. 242.157. DENTAL EXAMINATION. (a) The department shall
40-17 require that each resident of an institution or the resident's
40-18 custodian be asked at least once each year if the resident desires
40-19 a dental examination and possible treatment at the resident's own
40-20 expense.
40-21 (b) Each institution shall be encouraged to use all
40-22 reasonable efforts to arrange for a dental examination for each
40-23 resident who desires one.
40-24 (c) The institution is not liable for any costs relating to
40-25 a dental examination under this section.
41-1 SUBCHAPTER K. QUALITY OF CARE
41-2 Sec. 242.401. QUALITY OF LIFE. An institution shall care
41-3 for its residents in a manner and in an environment that promotes
41-4 maintenance or enhancement of each resident's quality of life. An
41-5 institution that admits a resident who is younger than 18 years of
41-6 age must provide care to meet the resident's unique medical and
41-7 developmental needs.
41-8 Sec. 242.402. QUALITY OF CARE. An institution shall provide
41-9 to each resident any care or service needed to enable the resident
41-10 to attain and maintain the highest practicable level of physical,
41-11 emotional, and social well-being, in accordance with each
41-12 resident's individual assessment and comprehensive plan of care.
41-13 Sec. 242.403. STANDARDS FOR QUALITY OF LIFE AND QUALITY OF
41-14 CARE. (a) The department shall adopt standards to implement
41-15 Sections 242.401 and 242.402. Those standards must, at a minimum,
41-16 address:
41-17 (1) the admission of residents, including appropriate
41-18 prohibitions on admission of a resident the facility is unable to
41-19 adequately serve;
41-20 (2) the admission of a resident younger than 18 years
41-21 of age and the actions the facility must take to meet the
41-22 resident's unique medical and developmental needs, including
41-23 necessary accommodations, furnishings, and equipment and staff
41-24 training;
41-25 (3) development by an institution of an initial
42-1 assessment and comprehensive plan of care for each resident,
42-2 including the matters to be addressed by the initial assessment and
42-3 the comprehensive plan of care and the time frame for developing
42-4 the assessment and the plan;
42-5 (4) transfer and discharge of a resident, including
42-6 appropriate notice to the resident and the resident's guardian or
42-7 next of kin;
42-8 (5) clinical records required to be maintained by an
42-9 institution for each resident, the content of the records, and the
42-10 manner in which the records are maintained, including standards to
42-11 ensure the confidentiality of the records;
42-12 (6) infection control at each institution;
42-13 (7) rehabilitative services to be provided or made
42-14 available by the facility;
42-15 (8) food service;
42-16 (9) nutrition services, sufficient to assure each
42-17 resident a nourishing, palatable, well-balanced diet that meets the
42-18 daily nutritional and special dietary needs of each resident, which
42-19 are provided by a director of food services who is licensed by the
42-20 Texas State Board of Examiners of Dietitians, or if not so
42-21 licensed, who is in frequent, scheduled consultation with a person
42-22 who is licensed by the Texas State Board of Examiners of Dietitians
42-23 for not fewer than eight hours per month for a facility having 60
42-24 or fewer residents, plus four additional hours per month for each
42-25 additional 30 residents or fraction thereof;
43-1 (10) social services and activities to be provided or
43-2 to be made available by a facility;
43-3 (11) monitoring a resident's weight;
43-4 (12) the prevention and treatment of pressure sores;
43-5 (13) bladder and bowel retraining programs for
43-6 residents;
43-7 (14) prevention of complications from nasogastric or
43-8 gastrostomy tube feedings;
43-9 (15) relocation of a resident within an institution;
43-10 (16) postmortem procedures for deceased residents,
43-11 including procedures necessary to protect the dignity of a deceased
43-12 resident and to properly deliver the deceased resident's personal
43-13 belongings; and
43-14 (17) appropriate use of chemical and physical
43-15 restraints.
43-16 (b) The department may adopt standards in addition to those
43-17 required by Subsection (a) to implement Sections 242.401 and
43-18 242.402.
43-19 Sec. 242.404. POLICIES, PROCEDURES, AND PRACTICES FOR
43-20 QUALITY OF CARE AND QUALITY OF LIFE. (a) Each institution shall
43-21 comply with the standards adopted under this subchapter and shall
43-22 develop written operating policies to implement those standards.
43-23 (b) The policies and procedures must be available to each
43-24 physician, staff member, resident, and resident's next of kin or
43-25 guardian and to the public.
44-1 (Sections 242.405-242.500 reserved for expansion
44-2 SUBCHAPTER L. RIGHTS OF RESIDENTS
44-3 Sec. 242.501. RESIDENT'S RIGHTS. (a) The department by
44-4 rule shall adopt a statement of the rights of a resident. The
44-5 statement must be consistent with Chapter 102, Human Resources
44-6 Code, but shall reflect the unique circumstances of a resident at
44-7 an institution. At a minimum, the statement of the rights of a
44-8 resident must address the resident's constitutional, civil, and
44-9 legal rights and the resident's right:
44-10 (1) to be free from abuse and exploitation;
44-11 (2) to safe, decent, and clean conditions;
44-12 (3) to be treated with courtesy, consideration, and
44-13 respect;
44-14 (4) to not be subjected to discrimination based on
44-15 age, race, religion, sex, nationality, or disability and to
44-16 practice the resident's own religious beliefs;
44-17 (5) to privacy, including privacy during visits and
44-18 telephone calls;
44-19 (6) to complain about the institution and to organize
44-20 or participate in any program that presents residents' concerns to
44-21 the administrator of the institution;
44-22 (7) to have information about the resident in the
44-23 possession of the institution maintained as confidential;
44-24 (8) to retain the services of a physician the resident
44-25 chooses, at the resident's own expense or through a health care
45-1 plan, and to have a physician explain to the resident, in language
45-2 that the resident understands, the resident's complete medical
45-3 condition, the recommended treatment, and the expected results of
45-4 the treatment;
45-5 (9) to participate in developing a plan of care, to
45-6 refuse treatment, and to refuse to participate in experimental
45-7 research;
45-8 (10) to a written statement or admission agreement
45-9 describing the services provided by the institution and the related
45-10 charges;
45-11 (11) to manage the resident's own finances or to
45-12 delegate that responsibility to another person;
45-13 (12) to access money and property that the resident
45-14 has deposited with the institution and to an accounting of the
45-15 resident's money and property that are deposited with the
45-16 institution and of all financial transactions made with or on
45-17 behalf of the resident;
45-18 (13) to keep and use personal property, secure from
45-19 theft or loss;
45-20 (14) to not be relocated within the institution,
45-21 except in accordance with standards adopted by the department under
45-22 Section 242.403;
45-23 (15) to receive visitors;
45-24 (16) to receive unopened mail and to receive
45-25 assistance in reading or writing correspondence;
46-1 (17) to participate in activities inside and outside
46-2 the institution;
46-3 (18) to wear the resident's own clothes;
46-4 (19) to discharge himself or herself from the
46-5 institution unless the resident is an adjudicated mental
46-6 incompetent;
46-7 (20) to not be discharged from the institution except
46-8 as provided in the standards adopted by the department under
46-9 Section 242.403; and
46-10 (21) to be free from any physical or chemical
46-11 restraints imposed for the purposes of discipline or convenience,
46-12 and not required to treat the resident's medical symptoms.
46-13 (b) The department may adopt rights of residents in addition
46-14 to those required by Subsection (a) and may consider additional
46-15 rights applicable to residents in other jurisdictions.
46-16 Sec. 242.502. RIGHTS CUMULATIVE. The rights established
46-17 under this subchapter are cumulative of the rights established
46-18 under Chapter 102, Human Resources Code, and any other law.
46-19 Sec. 242.503. DUTIES OF INSTITUTION. (a) An institution
46-20 shall develop and implement policies to protect resident rights.
46-21 (b) An institution and the staff of an institution may not
46-22 violate a right adopted under this subchapter.
46-23 Sec. 242.504. INFORMATION ABOUT RESIDENT'S RIGHTS AND
46-24 VIOLATIONS. (a) An institution shall inform each resident and the
46-25 resident's next of kin or guardian of the rights adopted under this
47-1 subchapter and shall explain the rights to the resident and the
47-2 resident's next of kin or guardian. The institution shall provide
47-3 a written statement of:
47-4 (1) all of the resident's rights; and
47-5 (2) any additional rules adopted by the institution
47-6 involving resident rights and responsibilities.
47-7 (b) The institution shall provide a copy of the written
47-8 statement to:
47-9 (1) each resident;
47-10 (2) the next of kin or guardian of each resident; and
47-11 (3) each member of the staff of the institution.
47-12 (c) The institution shall maintain a copy of the statement,
47-13 signed by the resident or the resident's next of kin or guardian,
47-14 in the institution's records.
47-15 (d) The institution shall post the written statement in the
47-16 manner required by Section 242.042.
47-17 (Sections 242.505-242.550 reserved for expansion
47-18 SUBCHAPTER M. COMPLAINT INSPECTIONS
47-19 Sec. 242.551. COMPLAINT REQUESTING INSPECTION. (a) A
47-20 person may request an inspection of an institution in accordance
47-21 with this chapter by making a complaint notifying the department of
47-22 an alleged violation of law and requesting an inspection.
47-23 (b) The department shall encourage a person who makes an
47-24 oral complaint under Subsection (a) to submit a written, signed
47-25 complaint.
48-1 Sec. 242.552. DISCLOSURE OF SUBSTANCE OF COMPLAINT. The
48-2 department may not provide information to the institution relating
48-3 to the substance of a complaint made under this subchapter before
48-4 an on-site inspection is begun in accordance with this subchapter.
48-5 Sec. 242.553. CONFIDENTIALITY. The name of the person
48-6 making the complaint is confidential and may not be released to the
48-7 institution or any other person unless the person making the
48-8 complaint specifically requests that the person's name be released.
48-9 Sec. 242.554. PRELIMINARY REVIEW OF COMPLAINT; INSPECTION.
48-10 (a) On receipt of a complaint under this subchapter, the
48-11 department shall make a preliminary review of the complaint.
48-12 (b) Within a reasonable time after receipt of the complaint,
48-13 the department shall make an on-site inspection or otherwise
48-14 respond to the complaint unless the department determines that:
48-15 (1) the person making the complaint made the complaint
48-16 to harass the institution;
48-17 (2) the complaint is without any reasonable basis; or
48-18 (3) sufficient information in the possession of the
48-19 department indicates that corrective action has been taken.
48-20 (c) The department shall promptly notify the person making
48-21 the complaint of the department's proposed course of action under
48-22 Subsection (b) and the reasons for that action.
48-23 (Sections 242.555-242.600 reserved for expansion
49-1 SUBCHAPTER N [F]. ADMINISTRATION OF MEDICATION
49-2 [MEDICAL AND DENTAL CARE]
49-3 Sec. 242.601. MEDICATION ADMINISTRATION. (a) An
49-4 institution must establish medication administration procedures to
49-5 ensure that:
49-6 (1) medications to be administered are checked against
49-7 the order of a physician, advanced practice nurse, or physician
49-8 assistant pursuant to protocols jointly developed with a physician;
49-9 (2) the resident is identified before the
49-10 administration of a medication;
49-11 (3) each resident's clinical record includes an
49-12 individual medication record in which the dose of medication
49-13 administered is properly recorded by the person who administered
49-14 the medication;
49-15 (4) medications and biologicals are prepared and
49-16 administered to a resident by the same individual, except under
49-17 unit-of-use package distribution systems; and
49-18 (5) a medication prescribed for one resident is not
49-19 administered to any other person.
49-20 (b) The medication administration procedures must comply
49-21 with this subchapter and the rules adopted by the board under
49-22 Section 242.608.
49-23 Sec. 242.602. PHARMACIST SERVICES. (a) An institution
49-24 shall:
49-25 (1) employ a licensed pharmacist responsible for
50-1 operating the institution's pharmacy; or
50-2 (2) contract, in writing, with a licensed pharmacist
50-3 to advise the institution on ordering, storage, administration, and
50-4 disposal of medications and biologicals and related recordkeeping.
50-5 (b) The institution shall allow residents to choose their
50-6 pharmacy provider from any pharmacy that is qualified to perform
50-7 the services.
50-8 Sec. 242.603. STORAGE AND DISPOSAL OF MEDICATIONS. (a) An
50-9 institution shall store medications under appropriate conditions of
50-10 sanitation, temperature, light, moisture, ventilation, segregation,
50-11 and security. Poisons, medications used externally, and
50-12 medications taken internally shall be stored on separate shelves or
50-13 in separate cabinets. Medication stored in a refrigerator
50-14 containing other items shall be kept in a separate compartment with
50-15 appropriate security. The institution shall store a medication in
50-16 a locked area that must remain locked unless an individual
50-17 authorized to distribute the medication is present.
50-18 (b) The institution shall properly dispose of:
50-19 (1) any medication that is discontinued or outdated,
50-20 except as provided by Subsection (c); and
50-21 (2) any medication in a container with a worn or
50-22 illegible label or missing a label.
50-23 (c) A discontinued medication that has not been destroyed
50-24 must be reinstated if reordered.
50-25 (d) An institution shall release the medications of a
51-1 resident who is transferred directly to another institution or who
51-2 is discharged to home or to the new institution or to the resident
51-3 or resident's next of kin or guardian, as appropriate. The
51-4 institution may release a medication to a resident only on the
51-5 written or verbal authorization of the attending physician.
51-6 Sec. 242.604. REPORTS OF MEDICATION ERRORS AND ADVERSE
51-7 REACTIONS. An institution's nursing staff must report medication
51-8 errors and adverse reactions to the resident's physician in a
51-9 timely manner, as warranted by an assessment of the resident's
51-10 condition, and record the errors and reactions in the resident's
51-11 clinical record.
51-12 Sec. 242.605. MEDICATION REFERENCE SOURCES. An institution
51-13 shall maintain updated medication reference texts or sources. If
51-14 the institution has a resident younger than 18 years of age, these
51-15 texts or sources must include information on pediatric medications,
51-16 dosages, sites, routes, techniques of administration of
51-17 medications, desired effects, and possible side effects.
51-18 Sec. 242.606 [242.151]. PERMITS TO ADMINISTER MEDICATION. A
51-19 person may not administer medication to a resident unless the
51-20 person:
51-21 (1) holds a license under state law that authorizes
51-22 the person to administer medication; or
51-23 (2) holds a permit issued under Section 242.610
51-24 [242.154] and acts under the authority of a person who holds a
51-25 license under state law that authorizes the person to administer
52-1 medication.
52-2 Sec. 242.607 [242.1511]. EXEMPTIONS FOR NURSING STUDENTS AND
52-3 MEDICATION AIDE TRAINEES. (a) Sections 242.606 and 242.614
52-4 [242.151 and 242.158] do not apply to:
52-5 (1) a graduate nurse holding a temporary permit issued
52-6 by the Board of Nurse Examiners;
52-7 (2) a student enrolled in an accredited school of
52-8 nursing or program for the education of registered nurses who is
52-9 administering medications as part of the student's clinical
52-10 experience;
52-11 (3) a graduate vocational nurse holding a temporary
52-12 permit issued by the Board of Vocational Nurse Examiners;
52-13 (4) a student enrolled in an accredited school of
52-14 vocational nursing or program for the education of vocational
52-15 nurses who is administering medications as part of the student's
52-16 clinical experience; or
52-17 (5) a trainee in a medication aide training program
52-18 approved by the department under this subchapter who is
52-19 administering medications as part of the trainee's clinical
52-20 experience.
52-21 (b) The administration of medications by persons exempted
52-22 under Subdivisions (1) through (4) of Subsection (a) is governed by
52-23 the terms of the memorandum of understanding executed by the
52-24 department and the Board of Nurse Examiners or the department and
52-25 the Board of Vocational Nurse Examiners, as appropriate.
53-1 Sec. 242.608 [242.152]. RULES FOR ADMINISTRATION OF
53-2 MEDICATION. The board by rule shall establish:
53-3 (1) minimum requirements for the issuance, denial,
53-4 renewal, suspension, emergency suspension, and revocation of a
53-5 permit to administer medication to a resident;
53-6 (2) curricula to train persons to administer
53-7 medication to a resident;
53-8 (3) minimum standards for the approval of programs to
53-9 train persons to administer medication to a resident and for
53-10 rescinding approval; and
53-11 (4) the acts and practices that are allowed or
53-12 prohibited to a permit holder.
53-13 Sec. 242.609 [242.153]. TRAINING PROGRAMS TO ADMINISTER
53-14 MEDICATION. (a) An application for the approval of a training
53-15 program must be made to the department on a form and under rules
53-16 prescribed by the board.
53-17 (b) The department shall approve a training program that
53-18 meets the minimum standards adopted under Section 242.608
53-19 [242.152]. The department may review the approval annually.
53-20 Sec. 242.610 [242.154]. ISSUANCE AND RENEWAL OF PERMIT TO
53-21 ADMINISTER MEDICATION. (a) To be issued or to have renewed a
53-22 permit to administer medication, a person shall apply to the
53-23 department on a form prescribed and under rules adopted by the
53-24 board.
53-25 (b) The department shall prepare and conduct, at the site of
54-1 the training program, an examination for the issuance of a permit.
54-2 (c) The department shall require a permit holder to
54-3 satisfactorily complete a continuing education course approved by
54-4 the department for renewal of the permit.
54-5 (d) The department shall issue a permit or renew a permit to
54-6 an applicant who:
54-7 (1) meets the minimum requirements adopted under
54-8 Section 242.608 [242.152];
54-9 (2) successfully completes the examination or the
54-10 continuing education requirements; and
54-11 (3) pays a nonrefundable application fee determined by
54-12 the board.
54-13 (e) A permit is valid for one year and is not transferable.
54-14 (f) The department may issue a permit to an employee of a
54-15 state or federal agency listed in Section 242.003(a)(6)(B).
54-16 Sec. 242.611 [242.155]. FEES FOR ISSUANCE AND RENEWAL OF
54-17 PERMIT TO ADMINISTER MEDICATION. [(a)] The board shall set the
54-18 fees in amounts reasonable and necessary to recover the amount
54-19 projected by the department as required to administer its
54-20 functions. The fees may not exceed:
54-21 (1) $25 for a combined permit application and
54-22 examination fee; and
54-23 (2) $15 for a renewal permit application fee.
54-24 [(b) Fees received under this section may only be
54-25 appropriated to the department to defray costs incurred under this
55-1 section.]
55-2 Sec. 242.612 [242.156]. VIOLATION OF PERMITS TO ADMINISTER
55-3 MEDICATION. (a) For the violation of this subchapter or a rule
55-4 adopted under this subchapter, the department may:
55-5 (1) suspend, revoke, or refuse to renew a permit;
55-6 (2) suspend a permit in an emergency; or
55-7 (3) rescind training program approval.
55-8 (b) Except as provided by Section 242.613 [242.157], the
55-9 procedure by which the department takes a disciplinary action and
55-10 the procedure by which a disciplinary action is appealed are
55-11 governed by the department's rules for a formal hearing and by
55-12 Chapter 2001, Government Code.
55-13 Sec. 242.613 [242.157]. EMERGENCY SUSPENSION OF PERMITS TO
55-14 ADMINISTER MEDICATION. (a) The department shall issue an order to
55-15 suspend a permit issued under this subchapter if the department has
55-16 reasonable cause to believe that the conduct of the permit holder
55-17 creates an imminent danger to the public health or safety.
55-18 (b) An emergency suspension is effective immediately without
55-19 a hearing on notice to the permit holder.
55-20 (c) If requested in writing by a permit holder whose permit
55-21 is suspended, the department shall conduct a hearing to continue,
55-22 modify, or rescind the emergency suspension.
55-23 (d) The hearing must be held not earlier than the 10th day
55-24 or later than the 30th day after the date on which the hearing
55-25 request is received.
56-1 (e) The hearing and an appeal from a disciplinary action
56-2 related to the hearing are governed by the department's rules for a
56-3 formal hearing and Chapter 2001, Government Code.
56-4 Sec. 242.614 [242.158]. ADMINISTRATION OF MEDICATION;
56-5 CRIMINAL PENALTY. (a) A person commits an offense if the person
56-6 knowingly administers medication to a resident and the person:
56-7 (1) does not hold a license under state law that
56-8 authorizes the person to administer medication; or
56-9 (2) does not hold a permit issued by the department
56-10 under this subchapter.
56-11 (b) An offense under this section is a Class B misdemeanor.
56-12 [Sec. 242.159. REQUIRED MEDICAL EXAMINATION. (a) The
56-13 department shall require each resident to be given at least one
56-14 medical examination each year.]
56-15 [(b) The department shall specify the details of the
56-16 examination.]
56-17 [Sec. 242.160. DENTAL EXAMINATION. (a) The department
56-18 shall require that each resident of a nursing home or custodial
56-19 care home or the resident's custodian be asked at least once each
56-20 year if the resident desires a dental examination and possible
56-21 treatment at the resident's own expense.]
56-22 [(b) Each nursing home or custodial care home shall be
56-23 encouraged to use all reasonable efforts to arrange for a dental
56-24 examination for each resident who desires one.]
56-25 [(c) The nursing home or custodial care home is not liable
57-1 for any costs relating to a dental examination under this section.]
57-2 Sec. 242.615 [242.161]. EMERGENCY MEDICATION KIT. (a) An
57-3 institution licensed under this chapter is entitled to maintain a
57-4 supply of controlled substances in an emergency medication kit for
57-5 a resident's emergency medication needs.
57-6 (b) The controlled substances shall be labeled in accordance
57-7 with all applicable state and federal food and drug laws, including
57-8 Chapter 481 (Texas Controlled Substances Act).
57-9 (c) The board shall adopt rules governing the amount, type,
57-10 and procedure for use of the controlled substances in the emergency
57-11 medication kit. The storage of the controlled substances in the
57-12 kit is under the supervision of the consultant pharmacist.
57-13 (d) The administration of the controlled substances in the
57-14 emergency medication kit shall comply with all applicable laws.
57-15 (Sections 242.616-242.650 reserved for expansion
57-16 SUBCHAPTER O. LEGISLATIVE OVERSIGHT
57-17 Sec. 242.651. DEFINITION; SUNSET DATE. (a) In this
57-18 subchapter, "committee" means the long-term care legislative
57-19 oversight committee.
57-20 (b) The committee is subject to Chapter 325, Government Code
57-21 (Texas Sunset Act). Unless continued in existence as provided by
57-22 that chapter, the committee is abolished September 1, 2001.
57-23 Sec. 242.652. COMPOSITION OF COMMITTEE; PRESIDING OFFICER.
57-24 (a) The committee is composed of:
57-25 (1) two members of the senate and one public member
58-1 appointed by the lieutenant governor; and
58-2 (2) two members of the house of representatives and
58-3 one public member appointed by the speaker of the house of
58-4 representatives.
58-5 (b) A member of the committee serves at the pleasure of the
58-6 appointing official.
58-7 (c) The lieutenant governor and the speaker of the house of
58-8 representatives shall appoint the presiding officer of the
58-9 committee on an alternating basis. The presiding officer shall
58-10 serve a two-year term expiring February 1 of each odd-numbered
58-11 year.
58-12 Sec. 242.653. COMMITTEE POWERS AND DUTIES. (a) The
58-13 committee shall:
58-14 (1) meet at the call of the presiding officer;
58-15 (2) receive information about rules proposed or
58-16 adopted by the department; and
58-17 (3) review specific recommendations for legislation
58-18 proposed by the department or the attorney general relating to
58-19 nursing facility rules and regulations and other long-term care
58-20 issues.
58-21 (b) The committee may issue process, in accordance with
58-22 Section 301.024, Government Code, to compel the attendance of
58-23 witnesses and the production of books, records, documents, and
58-24 instruments required by the committee.
58-25 (c) The committee shall monitor the effectiveness and
59-1 efficiency of the nursing facility regulatory system of this state.
59-2 (d) The committee may request reports and other information
59-3 from the department and the attorney general relating to the
59-4 nursing facility regulatory system of this state and other
59-5 long-term care issues.
59-6 (e) The committee shall use the existing staff resources of
59-7 the senate and the house of representatives to assist the committee
59-8 in performing its duties under this section.
59-9 Sec. 242.654. REPORT. (a) The committee shall report to
59-10 the governor, lieutenant governor, and speaker of the house of
59-11 representatives not later than November 15 of each even-numbered
59-12 year.
59-13 (b) The report must include:
59-14 (1) identification of significant problems in the
59-15 nursing facility regulatory system, with recommendations for
59-16 action;
59-17 (2) the effectiveness and efficiency of the nursing
59-18 facility regulatory system of this state, with recommendations for
59-19 any necessary research;
59-20 (3) an analysis of the continuum of care of long-term
59-21 services available to citizens of this state; and
59-22 (4) recommendations for legislative action.
59-23 SECTION 1.31. Section 222.0255, Health and Safety Code, is
59-24 amended by adding Subsection (e) to read as follows:
59-25 (e) Chapter 242 establishes the minimum licensing standards
60-1 for an institution. The licensing standards adopted by the
60-2 department under this chapter shall be adopted subject to Section
60-3 242.037(b) and must comply with Section 242.037(c) and the other
60-4 provisions of Chapter 242.
60-5 SECTION 1.32. Section 242.012, Health and Safety Code, is
60-6 repealed.
60-7 SECTION 1.33. The Texas Board of Human Services shall adopt
60-8 rules as necessary to implement the change in law made by this
60-9 article not later than January 1, 1998.
60-10 SECTION 1.34. This article applies only to conduct occurring
60-11 on or after January 1, 1998. Conduct occurring before January 1,
60-12 1998, is governed by the law as it existed immediately before
60-13 September 1, 1997, and that law is continued in effect for that
60-14 purpose.
60-15 ARTICLE 2. GOVERNMENT FUNDING OF NURSING SERVICES
60-16 SECTION 2.01. Section 32.021, Human Resources Code, is
60-17 amended by amending Subsections (d), (h), (i), (j), and (k) and
60-18 adding Subsections (l) and (m) to read as follows:
60-19 (d) The department shall [may] include in its contracts for
60-20 the delivery of medical assistance by nursing facilities provisions
60-21 for monetary penalties to be assessed for [contract] violations as
60-22 required by 42 U.S.C. Section 1396r, including without limitation
60-23 the Omnibus Budget Reconciliation Act (OBRA), P.L. 100-203, Nursing
60-24 Home Reform Amendments of 1987, provided that the department
60-25 shall:
61-1 (1) provide for an informal dispute resolution process
61-2 in the department's central office; the informal dispute resolution
61-3 process shall:
61-4 (A) require the institution to request informal
61-5 dispute resolution no later than the 10th calendar day after
61-6 notification by the department of a violation of a standard or
61-7 standards; and
61-8 (B) require the department to complete the
61-9 process no later than the 30th calendar day after receipt of a
61-10 request from the institution for informal dispute resolution; and
61-11 (C) require any individual representing an
61-12 institution in an informal dispute resolution process to register
61-13 with the department and disclose the following:
61-14 (i) the individual's five-year employment
61-15 history during the preceding five years, including employment in
61-16 regulatory agencies of this state and other states;
61-17 (ii) ownership, including the identity of
61-18 the controlling person or persons, of the institution the person is
61-19 representing before the department; and
61-20 (iii) the identity of other entities the
61-21 person represents or has represented before the agency during the
61-22 previous 24 months [establish a penalties and sanctions advisory
61-23 committee of consumer advocates and long-term care providers to
61-24 help develop and monitor an appropriate system for assessing
61-25 penalties]; and
62-1 (2) develop rules [in accordance with Subsection (i)]
62-2 to adjudicate claims in contested cases.
62-3 (h) Medicaid nursing facilities shall also comply with state
62-4 licensure rules, which may be more stringent than the requirements
62-5 for certification [Except to the extent necessary to implement
62-6 rights granted to an elderly individual under Chapter 102, the
62-7 rules adopted by the department for certification of nursing
62-8 facilities as being in compliance with the requirements for
62-9 participation in the state Medicaid program may not be different
62-10 from the standards imposed by federal law]. The [This subsection
62-11 does not prevent the] department shall use appropriate [from using
62-12 any] civil, administrative, or criminal remedies [remedy]
62-13 authorized by state or federal law with respect to a facility that
62-14 is in violation of a certification or licensing requirement.
62-15 (i) Except as provided by Subsections (j) and (k), a
62-16 department survey, complaint investigation, incident investigation,
62-17 or survey report [The rules adopted under Subsection (d)(2) must
62-18 provide for:]
62-19 [(1) an informal dispute resolution process that
62-20 provides for adjudication by an appropriate disinterested person in
62-21 a regional office of the department and an informal appeal to the
62-22 department's central office;]
62-23 [(2) an administrative appeals process under Chapter
62-24 2001, Government Code; and]
62-25 [(3) the arbitration process described by Subsection
63-1 (k).]
63-2 [(j) A finding by the department] that documents that an
63-3 institution has violated a standard for participation in the state
63-4 Medicaid program, or the assessment of a monetary penalty by the
63-5 department or the payment of a monetary penalty by the institution
63-6 [under this section], is not admissible as evidence in a civil
63-7 action to prove that the institution has committed a violation.
63-8 (j) Subsection (i) [This subsection] does not:
63-9 (1) apply in an enforcement action or related
63-10 proceeding in which the state or an agency or political subdivision
63-11 of the state is a party;
63-12 (2) prohibit or limit the testimony of a department
63-13 surveyor or investigator in a civil action; or
63-14 (3) bar the admission into evidence in a civil action
63-15 of a written finding, survey report, complaint investigation,
63-16 incident investigation, or inspection report of the department that
63-17 is offered:
63-18 (A) to establish warning or notice to an
63-19 institution of a relevant finding; or
63-20 (B) under any rule or evidentiary predicate of
63-21 the Texas Rules of Civil Evidence.
63-22 (k) A department surveyor or investigator may testify in a
63-23 civil action as to observations, factual findings, conclusions, or
63-24 violations of requirements for licensure or for certification for
63-25 participation in the state Medicaid program that were made in the
64-1 discharge of official duties for the department, in accordance with
64-2 the Texas Rules of Civil Evidence.
64-3 (l) The department may not include as a reimbursable item to
64-4 a nursing facility an administrative or civil penalty assessed
64-5 against the facility under this chapter or under Chapter 242,
64-6 Health and Safety Code.
64-7 (m) Notwithstanding any provision of law to the contrary,
64-8 the department shall terminate a nursing facility's provider
64-9 agreement if the department has imposed required Category II or III
64-10 remedies on the facility three times within a 24-month period. [An
64-11 assessment of monetary penalties under this section is subject to
64-12 arbitration under Subchapter H, Chapter 242, Health and Safety
64-13 Code.]
64-14 SECTION 2.02. Subsection (c), Section 32.034, Human
64-15 Resources Code, is amended to read as follows:
64-16 (c) The section does not apply if federal matching funds are
64-17 not available to pay the facility whose [a] contract is being
64-18 cancelled. If [because] federal matching funds cannot be used, no
64-19 state funds may be used to pay the facility [for contract payments
64-20 are no longer available or if the contract expires according to its
64-21 terms].
64-22 ARTICLE 3. EFFECTIVE DATE; EMERGENCY
64-23 SECTION 3.01. This Act takes effect September 1, 1997.
64-24 SECTION 3.02. The importance of this legislation and the
64-25 crowded condition of the calendars in both houses create an
65-1 emergency and an imperative public necessity that the
65-2 constitutional rule requiring bills to be read on three several
65-3 days in each house be suspended, and this rule is hereby suspended.