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.