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. A violation of a minimum
1-12 acceptable level of care established under this chapter or a rule
1-13 or standard adopted under this chapter is forbidden by law. Each
1-14 institution licensed under this chapter shall, at a minimum,
1-15 provide quality care in accordance with this chapter and the rules
1-16 and standards. Components of quality of care addressed by these
1-17 rules and standards include:
1-18 (1) quality of life;
1-19 (2) access to care;
1-20 (3) continuity of care;
1-21 (4) comprehensiveness of care;
1-22 (5) coordination of services;
1-23 (6) humaneness of treatment;
2-1 (7) conservatism in intervention;
2-2 (8) safety of the environment;
2-3 (9) professionalism of caregivers; and
2-4 (10) participation in useful studies.
2-5 (b) The rules and standards adopted under this chapter may
2-6 be more stringent than the standards imposed by federal law for
2-7 certification for participation in the state Medicaid program. The
2-8 rules and standards may not be less stringent than the Medicaid
2-9 certification standards imposed under the Omnibus Budget
2-10 Reconciliation Act of 1987 (OBRA), Pub.L. No. 100-203.
2-11 (c) The rules and standards adopted under this chapter apply
2-12 to each licensed institution. The rules and standards are intended
2-13 for use in state surveys of the facilities and any investigation
2-14 and enforcement action and are designed to be useful to consumers
2-15 and providers in assessing the quality of care provided in an
2-16 institution.
2-17 (d) The legislature finds that the construction,
2-18 maintenance, and operation of institutions shall be regulated in a
2-19 manner that protects the residents of the institutions by:
2-20 (1) providing the highest possible quality of care;
2-21 (2) strictly monitoring all factors relating to the
2-22 health, safety, welfare, and dignity of each resident;
2-23 (3) imposing prompt and effective remedies for
2-24 noncompliance with licensing standards; and
2-25 (4) providing the public with information concerning
3-1 the operation of institutions in this state.
3-2 (e) It is the legislature's intent that this chapter
3-3 accomplish the goals listed in Subsection (d).
3-4 (f) This chapter shall be construed broadly to accomplish
3-5 the purposes set forth in this section. [The purpose of this
3-6 chapter is to promote the public health, safety, and welfare by
3-7 providing for the development, establishment, and enforcement of
3-8 standards for the treatment of residents of institutions and the
3-9 establishment, construction, maintenance, and operation of
3-10 institutions that, in the light of advancing knowledge, will
3-11 promote safe and adequate treatment of residents.]
3-12 SECTION 1.02. Section 242.002, Health and Safety Code, is
3-13 amended to read as follows:
3-14 Sec. 242.002. DEFINITIONS. In this chapter:
3-15 (1) "Board" means the Texas Board of Human Services.
3-16 (2) "Commissioner" means the commissioner of human
3-17 services.
3-18 (3) "Controlling person" means a person who controls
3-19 an institution or other person as described by Section 242.0021.
3-20 (4) "Department" means the Texas Department of Human
3-21 Services.
3-22 (5) [(3)] "Elderly person" means an individual who is
3-23 65 years of age or older.
3-24 (6) "Facility" means an institution.
3-25 (7) [(4)] "Governmental unit" means the state or a
4-1 political subdivision of the state, including a county or
4-2 municipality.
4-3 (8) "Home" means an institution.
4-4 (9) [(5)] "Hospital" has the meaning assigned by
4-5 Chapter 241 (Texas Hospital Licensing Law).
4-6 (10) [(6)] "Institution" means:
4-7 (A) an establishment that:
4-8 (i) furnishes, in one or more facilities,
4-9 food and shelter to four or more persons who are unrelated to the
4-10 proprietor of the establishment; and
4-11 (ii) provides minor treatment under the
4-12 direction and supervision of a physician licensed by the Texas
4-13 State Board of Medical Examiners, or other services that meet some
4-14 need beyond the basic provision of food, shelter, and laundry; or
4-15 (B) a foster care type residential facility that
4-16 provides room and board to fewer than five persons who:
4-17 (i) are not related within the second
4-18 degree of consanguinity or affinity, as determined under Chapter
4-19 573, Government Code, to the proprietor; and
4-20 (ii) because of their physical or mental
4-21 limitation, or both, require a level of care and services suitable
4-22 to their needs that contributes to their health, comfort, and
4-23 welfare.
4-24 (11) [(7)] "Person" means an individual, firm,
4-25 partnership, corporation, association, [or] joint stock company,
5-1 limited partnership, limited liability company, or any other legal
5-2 entity and includes a legal successor of those entities.
5-3 (12) [(8)] "Resident" means an individual, including a
5-4 patient, who resides in an institution.
5-5 [(9) "Commissioner" means the commissioner of human
5-6 services.]
5-7 SECTION 1.03. Subchapter A, Chapter 242, Health and Safety
5-8 Code, is amended by adding Section 242.0021 to read as follows:
5-9 Sec. 242.0021. CONTROLLING PERSON. (a) A person is a
5-10 controlling person if the person has the ability, acting alone or
5-11 in concert with others, to directly or indirectly influence,
5-12 direct, or cause the direction of the management, expenditure of
5-13 money, or policies of an institution or other person.
5-14 (b) For purposes of this chapter, "controlling person"
5-15 includes:
5-16 (1) a management company, landlord, or other business
5-17 entity that operates or contracts with others for the operation of
5-18 an institution;
5-19 (2) any person who is a controlling person of a
5-20 management company or other business entity that operates an
5-21 institution or that contracts with another person for the operation
5-22 of an institution; and
5-23 (3) any other individual who, because of a personal,
5-24 familial, or other relationship with the owner, manager, landlord,
5-25 tenant, or provider of an institution, is in a position of actual
6-1 control or authority with respect to the institution, without
6-2 regard to whether the individual is formally named as an owner,
6-3 manager, director, officer, provider, consultant, contractor, or
6-4 employee of the facility.
6-5 (c) A controlling person described by Subsection (b)(3) does
6-6 not include a person, such as an employee, lender, secured
6-7 creditor, or landlord, who does not exercise any influence or
6-8 control, whether formal or actual, over the operation of an
6-9 institution.
6-10 (d) The department may adopt rules that define the ownership
6-11 interests and other relationships that qualify a person as a
6-12 controlling person.
6-13 SECTION 1.04. Section 242.005, Health and Safety Code, is
6-14 amended to read as follows:
6-15 Sec. 242.005. PERFORMANCE REPORTS [ANNUAL REPORT]. (a) The
6-16 department and the attorney general each shall prepare annually a
6-17 full report of the operation and administration of their respective
6-18 responsibilities under this chapter, including recommendations and
6-19 suggestions considered [it considers] advisable.
6-20 (b) The Legislative Budget Board and the state auditor shall
6-21 jointly prescribe the form and content of reports required under
6-22 this section.
6-23 (c) The department and the attorney general shall submit the
6-24 required reports [report] to the governor and the legislature not
6-25 later than October 1 of each year.
7-1 SECTION 1.05. Subchapter A, Chapter 242, Health and Safety
7-2 Code, is amended by adding Sections 242.015 and 242.016 to read as
7-3 follows:
7-4 Sec. 242.015. LICENSED ADMINISTRATOR. (a) Each institution
7-5 must have a licensed nursing facility administrator.
7-6 (b) The administrator shall:
7-7 (1) manage the institution;
7-8 (2) be responsible for:
7-9 (A) delivery of quality care to all residents;
7-10 and
7-11 (B) implementation of the policies and
7-12 procedures of the institution; and
7-13 (3) work at least 40 hours per week on administrative
7-14 duties.
7-15 Sec. 242.016. FEES AND PENALTIES. Except as expressly
7-16 provided by this chapter, a fee or penalty collected by or on
7-17 behalf of the department under this chapter must be deposited to
7-18 the credit of the general revenue fund and may be appropriated only
7-19 to the department to administer and enforce this chapter.
7-20 Investigation and attorney's fees may not be assessed or collected
7-21 by or on behalf of the department or other state agency unless the
7-22 department or other state agency assesses and collects a penalty
7-23 described under this chapter.
7-24 SECTION 1.06. Section 242.032, Health and Safety Code, is
7-25 amended to read as follows:
8-1 Sec. 242.032. LICENSE OR RENEWAL APPLICATION. (a) An
8-2 application for a license or renewal of a license is made to the
8-3 department on a form provided by the department and must be
8-4 accompanied by the license fee.
8-5 (b) The application must contain information that the
8-6 department requires.
8-7 (c) The applicant or license holder must furnish evidence to
8-8 affirmatively establish the applicant's or license holder's ability
8-9 to comply with:
8-10 (1) minimum standards of medical care, nursing care,
8-11 and financial condition; and
8-12 (2) any other applicable state or federal standard.
8-13 (d) The department shall consider the background and
8-14 qualifications of:
8-15 (1) the applicant or license holder;
8-16 (2) a partner, officer, director, or managing employee
8-17 of the applicant or license holder;
8-18 (3) a person who owns or who controls the owner of the
8-19 physical plant of a facility in which the institution operates or
8-20 is to operate; and
8-21 (4) a controlling person with respect to the
8-22 institution for which a license or license renewal is requested.
8-23 (e) In making the evaluation required by Subsection (d), the
8-24 department shall require the applicant or license holder to file a
8-25 sworn affidavit of a satisfactory compliance history and any
9-1 other information required by the department to substantiate a
9-2 satisfactory compliance history relating to each state or other
9-3 jurisdiction in which the applicant or license holder and any other
9-4 person described by Subsection (d) operated an institution at any
9-5 time during the five-year period preceding the date on which the
9-6 application is made. The department by rule shall determine what
9-7 constitutes a satisfactory compliance history. The department may
9-8 also require the applicant or license holder to file information
9-9 relating to the history of the financial condition of the applicant
9-10 or license holder and any other person described by Subsection (d)
9-11 with respect to an institution operated in another state or
9-12 jurisdiction at any time during the five-year period preceding the
9-13 date on which the application is made[, which may include
9-14 affirmative evidence of ability to comply with the standards and
9-15 rules adopted under this chapter].
9-16 SECTION 1.07. Subsection (a), Section 242.033, Health and
9-17 Safety Code, is amended to read as follows:
9-18 (a) After receiving an application for a license, the
9-19 department shall issue the license if, after inspection and
9-20 investigation, it finds that the applicant or license holder, and
9-21 any other person described by Section 242.032(d), [and facilities]
9-22 meet the requirements established under each provision of this
9-23 chapter and any rule or standard adopted under this chapter.
9-24 SECTION 1.08. Section 242.034, Health and Safety Code, is
9-25 amended to read as follows:
10-1 Sec. 242.034. LICENSE FEES. (a) The board may establish by
10-2 rule license fees for institutions licensed by the department under
10-3 this chapter. The license fee may not exceed $250 [$150] plus:
10-4 (1) $10 [$5] for each unit of capacity or bed space
10-5 for which a license is sought; and
10-6 (2) a background examination fee imposed under
10-7 Subsection (c).
10-8 (b) An additional license fee may be charged as provided by
10-9 Section 242.097.
10-10 (c) The board may establish a background examination fee in
10-11 an amount necessary to defray the department's expenses in
10-12 administering its duties under Sections 242.032(d) and (e).
10-13 (d) [(b)] The license fee must be paid with each application
10-14 for an initial license, a renewal license, or a change of ownership
10-15 license.
10-16 (e) [(c)] The state is not required to pay the license fee.
10-17 (f) [(d)] An approved increase in bed space is subject to an
10-18 additional fee.
10-19 (g) [(e) Except as provided by Section 242.097, all license
10-20 fees collected shall be deposited in the state treasury to the
10-21 credit of the department and may be appropriated to the department
10-22 to administer and enforce this chapter.]
10-23 [(f)] The license fees established under this chapter are an
10-24 allowable cost for reimbursement under the medical assistance
10-25 program administered by the Texas Department of Human Services
11-1 under Chapter 32, Human Resources Code. Any fee increases shall be
11-2 reflected in reimbursement rates prospectively.
11-3 SECTION 1.09. Section 242.037, Health and Safety Code, as
11-4 amended by Chapters 583 and 1049, Acts of the 74th Legislature,
11-5 1995, is amended to read as follows:
11-6 Sec. 242.037. RULES; MINIMUM STANDARDS. (a) The department
11-7 shall make and enforce rules and minimum standards to implement
11-8 this chapter, including rules and minimum standards relating to
11-9 quality of life, quality of care, and residents' rights.
11-10 (b) The rules and standards adopted under this chapter may
11-11 be more stringent than the standards imposed by federal law for
11-12 certification for participation in the state Medicaid program.
11-13 (c) The rules and standards adopted by the department may
11-14 not be less stringent than the Medicaid certification standards and
11-15 regulations imposed under the Omnibus Budget Reconciliation Act of
11-16 1987 (OBRA), Pub.L. No. 100-203.
11-17 (d) To implement Sections 242.032(d) and (e), the department
11-18 by rule shall adopt minimum standards for the background and
11-19 qualifications of any person described by Section 242.032(d). The
11-20 department may not issue or renew a license if a person described
11-21 by Section 242.032 does not meet the minimum standards adopted
11-22 under this section.
11-23 (e) In addition to standards or rules required by other
11-24 provisions of this chapter, the [The] board shall [may] adopt,
11-25 publish, and enforce minimum standards relating to:
12-1 (1) the construction of an institution, including
12-2 plumbing, heating, lighting, ventilation, and other housing
12-3 conditions, to ensure the residents' health, safety, comfort, and
12-4 protection from fire hazard;
12-5 (2) the regulation of the number and qualification of
12-6 all personnel, including management and nursing personnel,
12-7 responsible for any part of the care given to the residents;
12-8 (3) requirements for in-service education of all
12-9 employees who have any contact with the residents;
12-10 (4) training on the care of persons with Alzheimer's
12-11 disease and related disorders for employees who work with those
12-12 persons;
12-13 (5) sanitary and related conditions in an institution
12-14 and its surroundings, including water supply, sewage disposal, food
12-15 handling, and general hygiene in order to ensure the residents'
12-16 health, safety, and comfort;
12-17 (6) the nutritional [dietary] needs of each resident
12-18 according to good nutritional practice or the recommendations of
12-19 the physician attending the resident;
12-20 (7) equipment essential to the residents' health and
12-21 welfare; [and]
12-22 (8) the use and administration of medication in
12-23 conformity with applicable law and rules;
12-24 (9) care and treatment of residents and any other
12-25 matter related to resident health, safety, and welfare;
13-1 (10) licensure of institutions; and
13-2 (11) implementation of this chapter.
13-3 (f) [(b)] The board shall adopt, publish, and enforce
13-4 minimum standards requiring appropriate training in geriatric care
13-5 for each individual who provides services to geriatric residents in
13-6 [as an employee of] an institution and who holds a license or
13-7 certificate issued by an agency of this state that authorizes the
13-8 person to provide the services. The minimum standards may require
13-9 that each licensed or certified individual complete an appropriate
13-10 program of continuing education or in-service training, as
13-11 determined by board rule, on a schedule determined by board rule.
13-12 (g) To administer the surveys for provider certification
13-13 provided for by federal law and regulation, the department must
13-14 identify each area of care that is subject to both state licensing
13-15 requirements and federal certification requirements. For each area
13-16 of care that is subject to the same standard under both federal
13-17 certification and state licensing requirements, an institution that
13-18 is in compliance with the federal certification standard is
13-19 considered to be in compliance with the same state licensing
13-20 requirement.
13-21 [(b) Notwithstanding Section 222.0255(b), an institution
13-22 that is certified as being in compliance with each standard of
13-23 participation in the state Medicaid program that relates to the
13-24 same subject matter as a minimum standard established under
13-25 Subsection (a) is not required to satisfy the minimum standard
14-1 established under that subsection.]
14-2 SECTION 1.10. Section 242.042, Health and Safety Code, is
14-3 amended to read as follows:
14-4 Sec. 242.042. POSTING. (a) Each institution shall
14-5 prominently and conspicuously post for display in a public area of
14-6 the institution that is readily available to residents, employees,
14-7 and visitors:
14-8 (1) the license issued under this chapter;
14-9 (2) a sign prescribed by the department that specifies
14-10 complaint procedures established under this chapter or rules
14-11 adopted under this chapter and that specifies how complaints may be
14-12 registered with the department;
14-13 (3) a notice in a form prescribed by the department
14-14 stating that licensing inspection reports and other related reports
14-15 which show deficiencies cited by the department are available at
14-16 the institution for public inspection and providing the
14-17 department's toll-free telephone number that may be used to obtain
14-18 information concerning the institution; [and]
14-19 (4) a concise summary of the most recent inspection
14-20 report relating to the institution;
14-21 (5) notice that the department can provide summary
14-22 reports relating to the quality of care, recent investigations,
14-23 litigation, and other aspects of the operation of the institution;
14-24 (6) notice that the Texas Board of Nursing Facility
14-25 Administrators can provide information about the nursing facility
15-1 administrator;
15-2 (7) any notice or written statement required to be
15-3 posted under Section 242.072(c); and
15-4 (8) notice that informational materials relating to
15-5 the compliance history of the institution are available for
15-6 inspection at a location in the institution specified by the sign.
15-7 (b) The notice required by Subsection (a)(8) must also be
15-8 posted at each door providing ingress to and egress from the
15-9 institution.
15-10 (c) The informational materials required to be maintained
15-11 for public inspection by an institution under Subsection (a)(8)
15-12 must be maintained in a well-lighted accessible location and must
15-13 include:
15-14 (1) any information required to be included under
15-15 Section 242.504; and
15-16 (2) a statement of the institution's record of
15-17 compliance with this chapter and the rules and standards adopted
15-18 under this chapter that is updated not less frequently than
15-19 bi-monthly and that reflects the record of compliance during the
15-20 period beginning one year before the date the statement is last
15-21 updated, in the form required by the department.
15-22 SECTION 1.11. Subsection (c), Section 242.045, Health and
15-23 Safety Code, is amended to read as follows:
15-24 (c) An offense under this section is a third degree felony
15-25 [Class B misdemeanor].
16-1 SECTION 1.12. Section 242.061, Health and Safety Code, is
16-2 amended by amending Subsection (a) and adding Subsection (c) to
16-3 read as follows:
16-4 (a) The department, after providing notice and opportunity
16-5 for a hearing to the applicant or license holder, may deny,
16-6 suspend, or revoke a license if the department finds that the
16-7 applicant, the [or] license holder, or any other person described
16-8 by Section 242.032(d) has:
16-9 (1) violated this chapter or a rule, standard, or
16-10 order adopted or license issued under this chapter in either a
16-11 repeated or substantial manner; or
16-12 (2) committed any act described by Sections
16-13 242.066(a)(2)-(6) [substantially failed to comply with the
16-14 requirements established under this chapter].
16-15 (c) The department may deny, suspend, or revoke the license
16-16 of an institution if any person described by Section 242.032(d) has
16-17 been excluded from holding a license under Section 242.0615.
16-18 SECTION 1.13. Subchapter C, Chapter 242, Health and Safety
16-19 Code, is amended by adding Section 242.0615 to read as follows:
16-20 Sec. 242.0615. EXCLUSION. (a) The department, after
16-21 providing notice and opportunity for a hearing, may exclude a
16-22 person from eligibility for a license under this chapter if the
16-23 person or any person described by Section 242.032(d) has
16-24 substantially failed to comply with this chapter and the rules
16-25 adopted under this chapter. The authority granted by this
17-1 subsection is in addition to the authority to deny issuance of a
17-2 license under Section 242.061(a).
17-3 (b) Exclusion of a person under this section must extend for
17-4 a period of at least two years, but may not exceed a period of 10
17-5 years.
17-6 SECTION 1.14. Section 242.063, Health and Safety Code, is
17-7 amended by amending Subsections (a), (b), and (d) and adding
17-8 Subsection (e) to read as follows:
17-9 (a) The department may petition a district court for:
17-10 (1) a temporary restraining order to restrain a person
17-11 from [continuing] a violation or threatened violation of the
17-12 standards imposed under [prescribed by] this chapter or any other
17-13 law affecting residents if the department reasonably believes
17-14 [finds] that the violation or threatened violation creates an
17-15 immediate threat to the health and safety of a resident; and
17-16 (2) an injunction to restrain a person from a
17-17 violation or threatened violation of the standards imposed under
17-18 this chapter or by any other law affecting residents if the
17-19 department reasonably believes that the violation or threatened
17-20 violation creates a threat to the health and safety of a resident
17-21 [the institution's residents].
17-22 (b) A district court, on petition of the department, may by
17-23 injunction:
17-24 (1) prohibit a person from violating [continuing a
17-25 violation of] the standards or licensing requirements prescribed by
18-1 this chapter;
18-2 (2) restrain or prevent the establishment, conduct,
18-3 management, or operation of an institution without a license issued
18-4 under this chapter; or
18-5 (3) grant the injunctive relief warranted by the facts
18-6 on a finding by the court that a person is violating or threatening
18-7 to violate the standards or licensing requirements prescribed by
18-8 this chapter.
18-9 (d) Notwithstanding Chapter 15, Civil Practice and Remedies
18-10 Code, or Section 65.023, Civil Practice and Remedies Code, a [A]
18-11 suit for a temporary restraining order or other injunctive relief
18-12 may [must] be brought in Travis County or in the county in which
18-13 the alleged violation occurs.
18-14 (e) The department by rule shall define "threatened
18-15 violation" for the purpose of this section.
18-16 SECTION 1.15. Section 242.065, Health and Safety Code, is
18-17 amended to read as follows:
18-18 Sec. 242.065. CIVIL PENALTY. (a) A person who violates or
18-19 causes a violation of this chapter or a rule adopted under this
18-20 chapter is liable for a civil penalty of not less than $1,000
18-21 [$100] or more than $20,000 [$10,000] for each act of violation if
18-22 the department determines the violation threatens the health and
18-23 safety of a resident.
18-24 (b) In determining the amount of a penalty to be awarded
18-25 under this section, the trier of fact shall consider:
19-1 (1) the seriousness of the violation, including the
19-2 nature, circumstances, extent, and gravity of the violation and the
19-3 hazard or potential hazard created by the violation to the health
19-4 or safety of a resident;
19-5 (2) the history of violations committed by the person
19-6 or the person's affiliate, employee, or controlling person;
19-7 (3) the amount necessary to deter future violations;
19-8 (4) the efforts made to correct the violation;
19-9 (5) any misrepresentation made to the department or to
19-10 another person regarding:
19-11 (A) the quality of services rendered or to be
19-12 rendered to residents;
19-13 (B) the compliance history of the institution or
19-14 any institutions owned or controlled by an owner or controlling
19-15 person of the institution; or
19-16 (C) the identity of an owner or controlling
19-17 person of the institution;
19-18 (6) the culpability of the individual who committed
19-19 the violation; and
19-20 (7) any other matter that should, as a matter of
19-21 justice or equity, be considered.
19-22 (c) Each day of a continuing violation constitutes a
19-23 separate ground for recovery.
19-24 (d) Any party to a suit under this section may request a
19-25 jury.
20-1 (e) If a person who is liable under this section fails to
20-2 pay any amount the person is obligated to pay under this section,
20-3 the state may seek satisfaction from any owner, other controlling
20-4 person, or affiliate of the person found liable. The owner, other
20-5 controlling person, or affiliate may be found liable in the same
20-6 suit or in another suit on a showing by the state that the amount
20-7 to be paid has not been paid or otherwise legally discharged. The
20-8 department by rule may establish a method for satisfying an
20-9 obligation imposed under this section from an insurance policy,
20-10 letter of credit, or other contingency fund.
20-11 (f) A payment made to satisfy an obligation under this
20-12 section is not an allowable cost for reimbursement under the state
20-13 Medicaid program.
20-14 (g) A civil penalty awarded under this section constitutes a
20-15 fine, penalty, or forfeiture payable to and for the benefit of a
20-16 government unit and is not compensation for actual pecuniary loss.
20-17 (h) In this section, "affiliate" means:
20-18 (1) with respect to a partnership other than a limited
20-19 partnership, each partner of the partnership;
20-20 (2) with respect to a corporation:
20-21 (A) an officer;
20-22 (B) a director;
20-23 (C) a stockholder who owns, holds, or has the
20-24 power to vote at least 10 percent of any class of securities issued
20-25 by the corporation, regardless of whether the power is of record or
21-1 beneficial; and
21-2 (D) a controlling individual;
21-3 (3) with respect to an individual:
21-4 (A) each partnership and each partner in the
21-5 partnership in which the individual or any other affiliate of the
21-6 individual is a partner; and
21-7 (B) each corporation or other business entity in
21-8 which the individual or another affiliate of the individual is:
21-9 (i) an officer;
21-10 (ii) a director;
21-11 (iii) a stockholder who owns, holds, or
21-12 has the power to vote at least 10 percent of any class of
21-13 securities issued by the corporation, regardless of whether the
21-14 power is of record or beneficial; and
21-15 (iv) a controlling individual;
21-16 (4) with respect to a limited partnership:
21-17 (A) a general partner; and
21-18 (B) a limited partner who is a controlling
21-19 individual;
21-20 (5) with respect to a limited liability company:
21-21 (A) an owner who is a manager as described by
21-22 the Texas Limited Liability Company Act (Article 1528n, Vernon's
21-23 Texas Civil Statutes); and
21-24 (B) each owner who is a controlling individual;
21-25 and
22-1 (6) with respect to any other business entity, a
22-2 controlling individual.
22-3 SECTION 1.16. Section 242.066, Health and Safety Code, is
22-4 amended by amending Subsections (a) and (b) and adding Subsections
22-5 (f), (g), and (h) to read as follows:
22-6 (a) The department may assess an administrative [a civil]
22-7 penalty against a person who:
22-8 (1) violates this chapter or a rule, standard, or
22-9 order adopted or license issued under this chapter;
22-10 (2) makes a false statement, that the person knows or
22-11 should know is false, of a material fact:
22-12 (A) on an application for issuance or renewal of
22-13 a license or in an attachment to the application; or
22-14 (B) with respect to a matter under investigation
22-15 by the department;
22-16 (3) refuses to allow a representative of the
22-17 department to inspect:
22-18 (A) a book, record, or file required to be
22-19 maintained by an institution; or
22-20 (B) any portion of the premises of an
22-21 institution;
22-22 (4) wilfully interferes with the work of a
22-23 representative of the department or the enforcement of this
22-24 chapter;
22-25 (5) wilfully interferes with a representative of the
23-1 department preserving evidence of a violation of this chapter or a
23-2 rule, standard, or order adopted or license issued under this
23-3 chapter; or
23-4 (6) fails to pay a penalty assessed by the department
23-5 under this chapter not later than the 10th day after the date the
23-6 assessment of the penalty becomes final.
23-7 (b) Except as provided by Subsection (f) and Section
23-8 242.0665(c), the [The] penalty may not exceed $10,000 a day for
23-9 each violation.
23-10 (f) The penalty for a violation of Section 242.072(c), a
23-11 rule adopted under Section 242.1225, or a right of a resident
23-12 adopted under Subchapter L may not exceed $1,000 a day for each
23-13 violation. This subsection does not apply to conduct that violates
23-14 both Subchapter K or a standard adopted under Subchapter K and a
23-15 right of a resident adopted under Subchapter L.
23-16 (g) The persons against whom an administrative penalty may
23-17 be assessed under Subsection (a) include:
23-18 (1) an applicant for a license under this chapter;
23-19 (2) a license holder;
23-20 (3) a partner, officer, director, or managing
23-21 employee of a license holder or applicant; and
23-22 (4) a person who controls an institution.
23-23 (h) A penalty assessed under Subsection (a)(6) is in
23-24 addition to the penalty previously assessed and not timely paid.
23-25 SECTION 1.17. Subchapter C, Chapter 242, Health and Safety
24-1 Code, is amended by adding Section 242.0665 to read as follows:
24-2 Sec. 242.0665. RIGHT TO CORRECT. (a) The department may
24-3 not collect an administrative penalty against an institution under
24-4 this subchapter if, not later than the 45th day after the date the
24-5 institution receives notice under Section 242.067(c), the
24-6 institution corrects the violation.
24-7 (b) Subsection (a) does not apply:
24-8 (1) to a violation that the department determines:
24-9 (A) results in serious harm to or death of a
24-10 resident;
24-11 (B) constitutes a serious threat to the health
24-12 or safety of a resident; or
24-13 (C) substantially limits the institution's
24-14 capacity to provide care;
24-15 (2) to a violation described by Sections
24-16 242.066(a)(2)-(6);
24-17 (3) to a violation of a rule adopted under Section
24-18 242.1225 or of Section 242.133 or 242.1335; or
24-19 (4) to a violation of a right of a resident adopted
24-20 under Subchapter L.
24-21 (c) An institution that corrects a violation under
24-22 Subsection (a) must maintain the correction. If the institution
24-23 fails to maintain the correction until at least the first
24-24 anniversary of the date the correction was made, the department may
24-25 assess an administrative penalty under this subchapter for the
25-1 subsequent violation. A penalty assessed under this subsection
25-2 shall be equal to three times the amount of the penalty assessed
25-3 but not collected under Subsection (a). The department is not
25-4 required to provide the institution an opportunity to correct the
25-5 subsequent violation under this section.
25-6 SECTION 1.18. Sections 242.067, 242.068, 242.069, and
25-7 242.070, Health and Safety Code, are amended to read as follows:
25-8 Sec. 242.067. REPORT RECOMMENDING ADMINISTRATIVE PENALTY.
25-9 (a) The department may issue a preliminary report stating the
25-10 facts on which it concludes that a violation of this chapter or a
25-11 rule, standard, or order adopted or license issued under this
25-12 chapter has occurred if it has:
25-13 (1) [it has] examined the possible violation and facts
25-14 surrounding the possible violation; and
25-15 (2) concluded that a violation has occurred.
25-16 (b) The report may recommend a penalty under Section 242.069
25-17 and the amount of the penalty.
25-18 (c) The department shall give written notice of the report
25-19 to the person charged with the violation not later than the 10th
25-20 day after the date on which the report is issued. The notice must
25-21 include:
25-22 (1) a brief summary of the charges;
25-23 (2) a statement of the amount of penalty recommended;
25-24 [and]
25-25 (3) a statement of whether the violation is subject to
26-1 correction under Section 242.0665 and, if the violation is subject
26-2 to correction under that section, a statement of:
26-3 (A) the date on which the institution must file
26-4 with the department a plan of correction to be approved by the
26-5 department; and
26-6 (B) the date on which the plan of correction
26-7 must be completed to avoid assessment of the penalty; and
26-8 (4) a statement that the person charged has a right to
26-9 a hearing on the occurrence of the violation, the amount of the
26-10 penalty, or both.
26-11 (d) Not later than the 20th day after the date on which the
26-12 notice under Subsection (c) is sent, the person charged may:
26-13 (1) give to the department written consent to the
26-14 department's report, including the recommended penalty; [or]
26-15 (2) make a written request for a hearing; or
26-16 (3) if the violation is subject to correction under
26-17 Section 242.0665, submit a plan of correction to the department for
26-18 approval.
26-19 (e) If the violation is subject to correction under Section
26-20 242.0665, and the person reports to the department that the
26-21 violation has been corrected, the department shall inspect the
26-22 correction or take any other step necessary to confirm that the
26-23 violation has been corrected and shall notify the person that:
26-24 (1) the correction is satisfactory and that a penalty
26-25 is not assessed; or
27-1 (2) the correction is not satisfactory and that a
27-2 penalty is recommended.
27-3 (f) Not later than the 20th day after the date on which a
27-4 notice under Subsection (e)(2) is sent, the person charged may:
27-5 (1) give to the department written consent to the
27-6 department's report, including the recommended penalty; or
27-7 (2) make a written request for a hearing.
27-8 (g) If the person charged with the violation consents to the
27-9 administrative penalty recommended by the department, [or] does not
27-10 timely respond to a [the] notice sent under Subsection (c) or (e),
27-11 or fails to correct the violation to the department's satisfaction,
27-12 the commissioner or the commissioner's designee shall[:]
27-13 [(1)] assess the administrative penalty recommended by
27-14 the department[; or]
27-15 [(2) order a hearing to be held on the findings and
27-16 recommendations in the department's report].
27-17 (h) [(f)] If the commissioner or the commissioner's designee
27-18 assesses the recommended penalty, the department shall give written
27-19 notice to the person charged of the decision and the person shall
27-20 pay the penalty.
27-21 Sec. 242.068. HEARINGS ON ADMINISTRATIVE PENALTIES
27-22 [HEARING]. (a) An administrative law judge [The commissioner]
27-23 shall order a hearing and give notice of the hearing if[:]
27-24 [(1)] a person charged under Section 242.067(c)
27-25 requests a hearing[; or]
28-1 [(2) the commissioner or the commissioner's designee
28-2 orders a hearing].
28-3 (b) The hearing shall be held before an administrative law
28-4 judge [by a hearing examiner designated by the commissioner].
28-5 (c) The administrative law judge [hearing examiner] shall
28-6 make findings of fact and conclusions of law [promptly issue to the
28-7 commissioner a written decision] regarding the occurrence of a
28-8 violation of this chapter or a rule or order adopted or license
28-9 issued under this chapter [and a recommendation regarding the
28-10 amount of the proposed penalty if a penalty is warranted].
28-11 (d) Based on the findings of fact and conclusions of law
28-12 [recommendations of the hearing examiner], the administrative law
28-13 judge [commissioner] by order shall [may] find:
28-14 (1) a violation has occurred and assess an
28-15 administrative [a civil] penalty; or
28-16 (2) a violation has not occurred.
28-17 (e) Proceedings under this section are subject to Chapter
28-18 2001, Government Code.
28-19 Sec. 242.069. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
28-20 INTEREST; REFUND. (a) The commissioner shall give notice of the
28-21 decision taken under Section 242.068(d) to the person charged. If
28-22 the commissioner finds that a violation has occurred and has
28-23 assessed an administrative [a civil] penalty, the commissioner
28-24 shall give written notice to the person charged of:
28-25 (1) the findings;
29-1 (2) [,] the amount of the penalty;
29-2 (3) the rate of interest payable with respect to the
29-3 penalty and the date on which interest begins to accrue;
29-4 (4) whether payment of the penalty or other action
29-5 under Section 242.071 is required;[,] and
29-6 (5) the person's right to judicial review of the
29-7 order.
29-8 (b) Not later than the 30th day after the date on which the
29-9 commissioner's order is final, the person charged with the penalty
29-10 shall:
29-11 (1) pay the full amount of the penalty; or
29-12 (2) file a petition for judicial review contesting the
29-13 occurrence of the violation, the amount of the penalty, the failure
29-14 to correct the violation to the department's satisfaction, or all
29-15 of the above.
29-16 (c) Notwithstanding Subsection (b), the department may
29-17 permit the person to pay the penalty in installments or may require
29-18 the person to use the amount of the penalty under the department's
29-19 supervision in accordance with Section 242.071.
29-20 (d) If the person does not pay the penalty within the 30-day
29-21 period:
29-22 (1) the penalty is subject to interest; and
29-23 (2) the department may refer the matter to the
29-24 attorney general for collection of the penalty and interest. [If
29-25 the person seeks judicial review of the violation, the amount of
30-1 the penalty, or both, the person, within the time provided by
30-2 Subsection (b), shall:]
30-3 [(1) send the amount of the penalty to the
30-4 commissioner for placement in an escrow account; or]
30-5 [(2) post with the commissioner a supersedeas bond in
30-6 a form approved by the commissioner for the amount of the penalty,
30-7 the bond to be effective until the judicial review of the order or
30-8 decision is final.]
30-9 [(d) A person who fails to comply with Subsection (c) waives
30-10 the right to judicial review, and the commissioner may request
30-11 enforcement by the attorney general.]
30-12 (e) If a penalty is reduced or not assessed, the
30-13 commissioner shall:
30-14 (1) remit to the person charged the appropriate amount
30-15 of any penalty payment plus accrued interest; or
30-16 (2) execute a release of the supersedeas bond if one
30-17 has been posted.
30-18 (f) Accrued interest on amounts remitted by the commissioner
30-19 under Subsection (e)(1) shall be paid:
30-20 (1) at a rate equal to the rate charged on loans to
30-21 depository institutions by the New York Federal Reserve Bank; and
30-22 (2) for the period beginning on the date the penalty
30-23 is paid [to the commissioner] under Subsection (b) [(c)] and ending
30-24 on the date the penalty is remitted.
30-25 (g) Interest under Subsection (d) shall be paid:
31-1 (1) at a rate equal to the rate charged on loans to
31-2 depository institutions by the New York Federal Reserve Bank; and
31-3 (2) for the period beginning on the date the notice of
31-4 the commissioner's order is received by the person and ending on
31-5 the date the penalty is paid [A penalty collected under this
31-6 section shall be deposited to the credit of the nursing and
31-7 convalescent home trust fund established under Section 242.096].
31-8 Sec. 242.070. APPLICATION OF OTHER LAW. The department may
31-9 not assess more than one monetary [a] penalty under [both] this
31-10 chapter [subchapter and Section 32.021, Human Resources Code,] for
31-11 a violation arising out of the same act or failure to act, except
31-12 as provided by Section 242.0665(c). This section does not prohibit
31-13 the department from assessing a monetary penalty under this chapter
31-14 and a monetary penalty under Chapter 32, Human Resources Code, for
31-15 the same act or failure to act.
31-16 SECTION 1.19. Subchapter C, Chapter 242, Health and Safety
31-17 Code, is amended by adding Sections 242.071, 242.072, and 242.073
31-18 to read as follows:
31-19 Sec. 242.071. AMELIORATION OF VIOLATION. In lieu of
31-20 ordering payment of the administrative penalty under Section
31-21 242.069, the commissioner may require the person to use, under the
31-22 supervision of the department, any portion of the penalty to
31-23 ameliorate the violation or to improve services, other than
31-24 administrative services, in the institution affected by the
31-25 violation.
32-1 Sec. 242.072. OTHER REMEDIES. (a) If the commissioner
32-2 finds that an institution has committed an act for which a civil
32-3 penalty may be imposed under Section 242.065, the commissioner may,
32-4 as appropriate under the circumstances, order the institution to
32-5 immediately suspend admissions.
32-6 (b) A suspension of admissions ordered under Subsection (a)
32-7 is effective on the date a representative of the institution
32-8 receives notice of the order and of the manner in which the order
32-9 may be appealed. The department must provide an opportunity for a
32-10 hearing with respect to an appeal of the order not later than the
32-11 14th day after the date the suspension becomes effective.
32-12 (c) During the period that an institution is ordered to
32-13 suspend admissions, the institution shall post a notice of the
32-14 suspension on all doors providing ingress to and egress from the
32-15 institution. The notice shall be posted in the form required by
32-16 the department.
32-17 (d) A person commits an offense if the person knowingly:
32-18 (1) violates Subsection (c); or
32-19 (2) removes a notice posted under Subsection (c)
32-20 before the facility is allowed to admit residents.
32-21 (e) An offense under Subsection (d) is a Class C
32-22 misdemeanor.
32-23 Sec. 242.073. LEGAL ACTION BY THE ATTORNEY GENERAL.
32-24 (a) The department and the attorney general shall work in close
32-25 cooperation throughout any legal proceedings requested by the
33-1 department.
33-2 (b) The commissioner must approve any settlement agreement
33-3 to a suit brought under this chapter or any other law relating to
33-4 the health and safety of residents in institutions.
33-5 SECTION 1.20. Subsection (e), Section 242.096, Health and
33-6 Safety Code, is amended to read as follows:
33-7 (e) Any unencumbered amount in the nursing and convalescent
33-8 home trust fund in excess of $500,000 [$100,000] at the end of each
33-9 fiscal year shall be transferred to the credit of the general
33-10 revenue fund and may be appropriated only to the department for its
33-11 use in administering and enforcing this chapter.
33-12 SECTION 1.21. Section 242.097, Health and Safety Code, is
33-13 amended to read as follows:
33-14 Sec. 242.097. ADDITIONAL LICENSE FEE. (a) In addition to
33-15 the license fee provided by Section 242.034, the department shall
33-16 adopt an annual fee to be charged and collected if the amount of
33-17 the nursing and convalescent home trust fund is less than $500,000
33-18 [$100,000]. The fee shall be deposited to the credit of the
33-19 nursing and convalescent home trust fund created by this
33-20 subchapter.
33-21 (b) The department shall set the fee for each nursing and
33-22 convalescent home at $1 for each licensed unit of capacity or bed
33-23 space in that home or in an amount necessary to provide $500,000
33-24 [$100,000] in the fund.
33-25 SECTION 1.22. Subchapter E, Chapter 242, Health and Safety
34-1 Code, is amended by adding Section 242.1225 to read as follows:
34-2 Sec. 242.1225. ADDITIONAL REPORTING REQUIREMENT. (a) The
34-3 board shall adopt rules requiring any person required to report
34-4 abuse or neglect under Section 242.122 to report other conduct or
34-5 conditions specified by the rules. The rules must require
34-6 reporting of conduct or conditions resulting in exploitation of
34-7 residents and accidental injury to or hospitalization of residents.
34-8 (b) A report made under this section must be made in the
34-9 manner specified by board rule.
34-10 SECTION 1.23. Section 242.126, Health and Safety Code, is
34-11 amended to read as follows:
34-12 Sec. 242.126. INVESTIGATION AND REPORT OF DEPARTMENT OR
34-13 DESIGNATED [RECEIVING] AGENCY. (a) The department or the
34-14 designated agency shall make a thorough investigation [promptly]
34-15 after receiving an [either the] oral or written report of abuse or
34-16 neglect under Section 242.122 or another complaint alleging abuse
34-17 or neglect.
34-18 (b) The primary purpose of the investigation is the
34-19 protection of the resident.
34-20 (c) The agency shall begin the investigation:
34-21 (1) within 24 hours of receipt of the report or other
34-22 allegation, if the report of abuse or neglect or other complaint
34-23 alleges that:
34-24 (A) a resident's health or safety is in imminent
34-25 danger;
35-1 (B) a resident has recently died because of
35-2 conduct alleged in the report of abuse or neglect or other
35-3 complaint; or
35-4 (C) a resident has been hospitalized or been
35-5 treated in an emergency room because of conduct alleged in the
35-6 report of abuse or neglect or other complaint; or
35-7 (2) before the end of the next working day after the
35-8 date of receipt of the report of abuse or neglect or other
35-9 complaint, if the report or complaint alleges the existence of
35-10 circumstances that could result in abuse or neglect and that could
35-11 place a resident's health or safety in imminent danger.
35-12 (d) The department shall adopt rules governing the conduct
35-13 of investigations, including procedures to ensure that the
35-14 complainant and the resident, the resident's next of kin, and any
35-15 person designated to receive information concerning the resident
35-16 receive periodic information regarding the investigation.
35-17 (e) In investigating the report of abuse or neglect or other
35-18 complaint, the investigator for the investigating agency shall:
35-19 (1) make an unannounced visit to the institution to
35-20 determine the nature and cause of the alleged abuse or neglect of
35-21 the resident;
35-22 (2) interview each available witness identified by any
35-23 source as having personal knowledge relevant to the report of abuse
35-24 or neglect or other complaint;
35-25 (3) personally inspect any physical circumstance that
36-1 is relevant and material to the report of abuse or neglect or other
36-2 complaint and that may be objectively observed; and
36-3 (4) write an investigation report that includes:
36-4 (A) the investigator's personal observations;
36-5 (B) a review of relevant documents and records;
36-6 (C) a summary of each witness statement; and
36-7 (D) a statement of the factual basis for the
36-8 findings for each incident or problem alleged in the report or
36-9 other allegation.
36-10 (f) An investigator for an investigating agency shall
36-11 conduct an interview under Subsection (e)(2) in private unless the
36-12 witness expressly requests that the interview not be private.
36-13 (g) Not later than the 30th day after the date the
36-14 investigation is complete, the investigator shall prepare the
36-15 written report required by Subsection (e). The department shall
36-16 make the investigation report available to the public on request
36-17 after the date the department's letter of determination is
36-18 complete. The department shall delete from any copy made available
36-19 to the public the name of:
36-20 (1) any resident, unless the department receives
36-21 written authorization from a resident or the resident's legal
36-22 representative requesting the resident's name be left in the
36-23 report;
36-24 (2) the person making the report of abuse or neglect
36-25 or other complaint; and
37-1 (3) an individual interviewed in the investigation.
37-2 (h) In the investigation, the department or the designated
37-3 agency shall determine:
37-4 (1) the nature, extent, and cause of the abuse or
37-5 neglect;
37-6 (2) the identity of the person responsible for the
37-7 abuse or neglect;
37-8 (3) the names and conditions of the other residents;
37-9 (4) an evaluation of the persons responsible for the
37-10 care of the residents;
37-11 (5) the adequacy of the institution environment; and
37-12 (6) any other information required by the department.
37-13 (i) [(d) The investigation may include a visit to the
37-14 resident's institution and an interview with the resident if these
37-15 actions are determined by the department to be appropriate.]
37-16 [(e)] If the department attempts to carry out an on-site
37-17 investigation and it is shown that admission to the institution, or
37-18 any place where the resident is located, cannot be obtained, a
37-19 probate or county court shall order the person responsible for the
37-20 care of the resident or the person in charge of a place where the
37-21 resident is located to allow entrance for the interview and
37-22 investigation.
37-23 (j) [(f)] Before the completion of the investigation the
37-24 department shall file a petition for temporary care and protection
37-25 of the resident if the department determines that immediate removal
38-1 is necessary to protect the resident from further abuse or neglect.
38-2 (k) [(g)] The department or the designated agency shall make
38-3 a complete final written report of the investigation and submit the
38-4 report and its recommendations to the district attorney and, if a
38-5 law enforcement agency has not investigated the report of abuse or
38-6 neglect or other complaint, to the appropriate law enforcement
38-7 agency.
38-8 SECTION 1.24. Section 242.127, Health and Safety Code, is
38-9 amended to read as follows:
38-10 Sec. 242.127. CONFIDENTIALITY. A report, record, or working
38-11 paper used or developed in an investigation made under this
38-12 subchapter and the name of any person making a report under this
38-13 subchapter are [is] confidential and may be disclosed only for
38-14 purposes consistent with the rules adopted by the board or the
38-15 designated agency.
38-16 SECTION 1.25. Subsection (a), Section 242.133, Health and
38-17 Safety Code, is amended to read as follows:
38-18 (a) A person has a cause of action against an institution,
38-19 or the owner or employee of the institution, that suspends or
38-20 terminates the employment of the person or otherwise disciplines or
38-21 discriminates or retaliates against the person for making a report
38-22 or complaint under this chapter to [reporting the abuse or neglect
38-23 of a resident to the person's supervisors,] the department[,] or a
38-24 law enforcement agency, for reporting the abuse or neglect or other
38-25 complaint to the person's supervisors, or for initiating or
39-1 cooperating in any investigation or proceeding of a governmental
39-2 entity relating to care, services, or conditions at the
39-3 institution.
39-4 SECTION 1.26. Subsection (a), Section 242.1335, Health and
39-5 Safety Code, is amended to read as follows:
39-6 (a) An institution may not retaliate or discriminate against
39-7 a resident if the resident, the resident's guardian, or any other
39-8 person makes a complaint or files a grievance concerning the
39-9 facility or reports [abuse or neglect] in accordance with this
39-10 chapter [subchapter].
39-11 SECTION 1.27. Subchapter H, Chapter 242, Health and Safety
39-12 Code, as added by Section 5, Chapter 1049, Acts of the 74th
39-13 Legislature, 1995, is redesignated as Subchapter J and the
39-14 subchapter heading is amended to read as follows:
39-15 SUBCHAPTER J [H]. ARBITRATION OF CERTAIN DISPUTES
39-16 SECTION 1.28. Subsection (c), Section 242.253, Health and
39-17 Safety Code, is amended to read as follows:
39-18 (c) The party that elects arbitration [department] shall pay
39-19 the cost of the arbitration [if the department elects the
39-20 arbitration. The cost of the arbitration shall be shared equally
39-21 by the department and the institution if the institution elects the
39-22 arbitration]. The total fees and expenses paid for an arbitrator
39-23 for a day may not exceed $500.
39-24 SECTION 1.29. Sections 242.267 and 242.268, Health and
39-25 Safety Code, are amended to read as follows:
40-1 Sec. 242.267. COURT VACATING ORDER. (a) On a finding
40-2 described by Subsection (b) [application of the institution], a
40-3 court shall:
40-4 (1) on application of an institution, vacate an
40-5 arbitrator's order with respect to an arbitration conducted at the
40-6 election of the department; or
40-7 (2) on application of the department, vacate an
40-8 arbitrator's order with respect to an arbitration conducted at the
40-9 election of an institution.
40-10 (b) A court shall vacate an arbitrator's order under
40-11 Subsection (a) only on a finding that:
40-12 (1) the order was procured by corruption, fraud, or
40-13 misrepresentation;
40-14 (2) the decision of the arbitrator was arbitrary or
40-15 capricious and against the weight of the evidence; or
40-16 (3) the order exceeded the jurisdiction of the
40-17 arbitrator under Section 242.264(a).
40-18 (c) [(b)] If the order is vacated, the dispute shall be
40-19 remanded to the department for another arbitration proceeding.
40-20 (d) [(c)] A suit to vacate an arbitrator's order must be
40-21 filed not later than the 30th day after:
40-22 (1) the date of the award; or
40-23 (2) the date the institution or department knew or
40-24 should have known of a basis for suit under this section, but in no
40-25 event later than the first anniversary of the date of the order.
41-1 (e) [(d)] Venue for a suit to vacate an arbitrator's order
41-2 is in the county in which the arbitration was conducted.
41-3 Sec. 242.268. NO ARBITRATION IN CASE OF EMERGENCY ORDER OR
41-4 CLOSING ORDER. This subchapter does not apply to an order issued
41-5 under Section 242.062 or 242.072, and neither the department nor
41-6 the institution may elect to arbitrate a dispute if the subject
41-7 matter of the dispute is part of the basis for:
41-8 (1) revocation, denial, or suspension of an
41-9 institution's license;
41-10 (2) issuance of a closing order under Section 242.062;
41-11 or
41-12 (3) suspension of admissions under Section 242.072.
41-13 SECTION 1.30. Chapter 242, Health and Safety Code, is
41-14 amended by redesignating Subchapter F as Subchapter N and adding a
41-15 new Subchapter F and Subchapters K, L, and M to read as follows:
41-16 SUBCHAPTER F. MEDICAL, NURSING, AND DENTAL SERVICES
41-17 OTHER THAN ADMINISTRATION OF MEDICATION
41-18 Sec. 242.151. PHYSICIAN SERVICES. (a) An institution shall
41-19 have at least one medical director who is licensed as a physician
41-20 in this state.
41-21 (b) The attending physician is responsible for a resident's
41-22 assessment and comprehensive plan of care and shall review, revise,
41-23 and sign orders relating to any medication or treatment in the plan
41-24 of care. The responsibilities imposed on the attending physician
41-25 by this subsection may be performed by an advanced practice nurse
42-1 or a physician assistant pursuant to protocols jointly developed
42-2 with the attending physician.
42-3 (c) Each resident has the right to choose a personal
42-4 attending physician.
42-5 Sec. 242.152. PHYSICIAN SERVICES FOR RESIDENTS YOUNGER THAN
42-6 18 YEARS OF AGE. (a) An institution shall use appropriate
42-7 pediatric consultative services for a resident younger than 18
42-8 years of age, in accordance with the resident's assessment and
42-9 comprehensive plan of care.
42-10 (b) A pediatrician or other physician with training or
42-11 expertise in the clinical care of children with complex medical
42-12 needs shall participate in all aspects of the resident's medical
42-13 care.
42-14 Sec. 242.153. DIRECTOR OF NURSING SERVICES. An institution
42-15 shall have a director of nursing services who shall be a registered
42-16 nurse. The director of nursing services is responsible for:
42-17 (1) coordinating each resident's comprehensive plan of
42-18 care; and
42-19 (2) ensuring that only personnel with an appropriate
42-20 license or permit administer medication.
42-21 Sec. 242.154. NURSING SERVICES. (a) An institution shall
42-22 provide the nursing care required to allow each resident to achieve
42-23 and maintain the highest possible degree of function and
42-24 independence medically possible.
42-25 (b) The institution shall maintain sufficient staff to
43-1 provide nursing and related services:
43-2 (1) in accordance with each resident's plan of care;
43-3 and
43-4 (2) to obtain and maintain the physical, mental, and
43-5 psychosocial functions of each resident at the highest practicable
43-6 level, as determined by the resident's assessment and plan of care.
43-7 Sec. 242.155. PEDIATRIC NURSING SERVICES. An institution
43-8 shall ensure that:
43-9 (1) nursing services for a resident younger than 18
43-10 years of age are provided by a staff member who has been instructed
43-11 and has demonstrated competence in the care of children; and
43-12 (2) consultative pediatric nursing services are
43-13 available to the staff if the institution has a resident younger
43-14 than 18 years of age.
43-15 Sec. 242.156. REQUIRED MEDICAL EXAMINATION. (a) Except as
43-16 required by federal law, the department shall require that each
43-17 resident be given at least one medical examination each year.
43-18 (b) The department shall specify the details of the
43-19 examination.
43-20 Sec. 242.157. DENTAL EXAMINATION. (a) The department shall
43-21 require that each resident of an institution or the resident's
43-22 custodian be asked at least once each year if the resident desires
43-23 a dental examination and possible treatment at the resident's own
43-24 expense.
43-25 (b) Each institution shall be encouraged to use all
44-1 reasonable efforts to arrange for a dental examination for each
44-2 resident who desires one.
44-3 (c) The institution is not liable for any costs relating to
44-4 a dental examination under this section.
44-5 SUBCHAPTER K. QUALITY OF CARE
44-6 Sec. 242.401. QUALITY OF LIFE. (a) An institution shall
44-7 care for its residents in a manner and in an environment that
44-8 promotes maintenance or enhancement of each resident's quality of
44-9 life and dignity. An institution that admits a resident who is
44-10 younger than 18 years of age must provide care to meet the
44-11 resident's unique medical and developmental needs.
44-12 (b) A resident of an institution has the right to reside and
44-13 receive services in the institution with reasonable accommodation
44-14 of individual needs, except to the extent the health or safety of
44-15 the resident or other residents would be endangered.
44-16 Sec. 242.402. QUALITY OF CARE. An institution shall provide
44-17 to each resident the necessary care or service needed to enable the
44-18 resident to attain and maintain the highest practicable level of
44-19 physical, emotional, and social well-being, in accordance with:
44-20 (1) each resident's individual assessment and
44-21 comprehensive plan of care; and
44-22 (2) the rules and standards relating to quality of
44-23 care adopted under this chapter.
44-24 Sec. 242.403. STANDARDS FOR QUALITY OF LIFE AND QUALITY OF
44-25 CARE. (a) The department shall adopt standards to implement
45-1 Sections 242.401 and 242.402. Those standards must, at a minimum,
45-2 address:
45-3 (1) admission of residents;
45-4 (2) care of residents younger than 18 years of age;
45-5 (3) an initial assessment and comprehensive plan of
45-6 care for residents;
45-7 (4) transfer or discharge of residents;
45-8 (5) clinical records;
45-9 (6) infection control at the institution;
45-10 (7) rehabilitative services;
45-11 (8) food services;
45-12 (9) nutrition services provided by a director of food
45-13 services who is licensed by the Texas State Board of Examiners of
45-14 Dietitians or, if not so licensed, who is in scheduled consultation
45-15 with a person who is so licensed as frequently and for such time as
45-16 the department shall determine necessary to assure each resident a
45-17 diet that meets the daily nutritional and special dietary needs of
45-18 each resident;
45-19 (10) social services and activities;
45-20 (11) prevention of pressure sores;
45-21 (12) bladder and bowel retraining programs for
45-22 residents;
45-23 (13) prevention of complications from nasogastric or
45-24 gastrotomy tube feedings;
45-25 (14) relocation of residents within an institution;
46-1 (15) postmortem procedures; and
46-2 (16) appropriate use of chemical and physical
46-3 restraints.
46-4 (b) The department may adopt standards in addition to those
46-5 required by Subsection (a) to implement Sections 242.401 and
46-6 242.402.
46-7 Sec. 242.404. POLICIES, PROCEDURES, AND PRACTICES FOR
46-8 QUALITY OF CARE AND QUALITY OF LIFE. (a) Each institution shall
46-9 comply with the standards adopted under this subchapter and shall
46-10 develop written operating policies to implement those standards.
46-11 (b) The policies and procedures must be available to each
46-12 physician, staff member, resident, and resident's next of kin or
46-13 guardian and to the public.
46-14 (Sections 242.405-242.500 reserved for expansion
46-15 SUBCHAPTER L. RIGHTS OF RESIDENTS
46-16 Sec. 242.501. RESIDENT'S RIGHTS. (a) The department by
46-17 rule shall adopt a statement of the rights of a resident. The
46-18 statement must be consistent with Chapter 102, Human Resources
46-19 Code, but shall reflect the unique circumstances of a resident at
46-20 an institution. At a minimum, the statement of the rights of a
46-21 resident must address the resident's constitutional, civil, and
46-22 legal rights and the resident's right:
46-23 (1) to be free from abuse and exploitation;
46-24 (2) to safe, decent, and clean conditions;
46-25 (3) to be treated with courtesy, consideration, and
47-1 respect;
47-2 (4) to not be subjected to discrimination based on
47-3 age, race, religion, sex, nationality, or disability and to
47-4 practice the resident's own religious beliefs;
47-5 (5) to privacy, including privacy during visits and
47-6 telephone calls;
47-7 (6) to complain about the institution and to organize
47-8 or participate in any program that presents residents' concerns to
47-9 the administrator of the institution;
47-10 (7) to have information about the resident in the
47-11 possession of the institution maintained as confidential;
47-12 (8) to retain the services of a physician the resident
47-13 chooses, at the resident's own expense or through a health care
47-14 plan, and to have a physician explain to the resident, in language
47-15 that the resident understands, the resident's complete medical
47-16 condition, the recommended treatment, and the expected results of
47-17 the treatment;
47-18 (9) to participate in developing a plan of care, to
47-19 refuse treatment, and to refuse to participate in experimental
47-20 research;
47-21 (10) to a written statement or admission agreement
47-22 describing the services provided by the institution and the related
47-23 charges;
47-24 (11) to manage the resident's own finances or to
47-25 delegate that responsibility to another person;
48-1 (12) to access money and property that the resident
48-2 has deposited with the institution and to an accounting of the
48-3 resident's money and property that are deposited with the
48-4 institution and of all financial transactions made with or on
48-5 behalf of the resident;
48-6 (13) to keep and use personal property, secure from
48-7 theft or loss;
48-8 (14) to not be relocated within the institution,
48-9 except in accordance with standards adopted by the department under
48-10 Section 242.403;
48-11 (15) to receive visitors;
48-12 (16) to receive unopened mail and to receive
48-13 assistance in reading or writing correspondence;
48-14 (17) to participate in activities inside and outside
48-15 the institution;
48-16 (18) to wear the resident's own clothes;
48-17 (19) to discharge himself or herself from the
48-18 institution unless the resident is an adjudicated mental
48-19 incompetent;
48-20 (20) to not be discharged from the institution except
48-21 as provided in the standards adopted by the department under
48-22 Section 242.403; and
48-23 (21) to be free from any physical or chemical
48-24 restraints imposed for the purposes of discipline or convenience,
48-25 and not required to treat the resident's medical symptoms.
49-1 (b) A right of a resident may be restricted only to the
49-2 extent necessary to protect:
49-3 (1) a right of another resident, particularly a right
49-4 of the other resident relating to privacy and confidentiality; or
49-5 (2) the resident or another person from danger or
49-6 harm.
49-7 (c) The department may adopt rights of residents in addition
49-8 to those required by Subsection (a) and may consider additional
49-9 rights applicable to residents in other jurisdictions.
49-10 Sec. 242.502. RIGHTS CUMULATIVE. The rights established
49-11 under this subchapter are cumulative of the rights established
49-12 under any other law.
49-13 Sec. 242.503. DUTIES OF INSTITUTION. (a) An institution
49-14 shall develop and implement policies to protect resident rights.
49-15 (b) An institution and the staff of an institution may not
49-16 violate a right adopted under this subchapter.
49-17 Sec. 242.504. INFORMATION ABOUT RESIDENT'S RIGHTS AND
49-18 VIOLATIONS. (a) An institution shall inform each resident and the
49-19 resident's next of kin or guardian of the rights adopted under this
49-20 subchapter and shall explain the rights to the resident and the
49-21 resident's next of kin or guardian. The institution shall provide
49-22 a written statement of:
49-23 (1) all of the resident's rights; and
49-24 (2) any additional rules adopted by the institution
49-25 involving resident rights and responsibilities.
50-1 (b) The institution shall provide a copy of the written
50-2 statement to:
50-3 (1) each resident;
50-4 (2) the next of kin or guardian of each resident; and
50-5 (3) each member of the staff of the institution.
50-6 (c) The institution shall maintain a copy of the statement,
50-7 signed by the resident or the resident's next of kin or guardian,
50-8 in the institution's records.
50-9 (d) The institution shall post the written statement in the
50-10 manner required by Section 242.042.
50-11 (e) An institution that has been cited by the department for
50-12 a violation of any right adopted under this subchapter shall
50-13 include a notice of the citation in the informational materials
50-14 required by Section 242.042(a)(8). The notice of citation must
50-15 continue to be included in the informational materials until any
50-16 regulatory action or proceeding with respect to the violation is
50-17 complete and the department has determined that the institution is
50-18 in full compliance with the applicable requirement.
50-19 (Sections 242.505-242.550 reserved for expansion
50-20 SUBCHAPTER M. COMPLAINT INSPECTIONS
50-21 Sec. 242.551. COMPLAINT REQUESTING INSPECTION. (a) A
50-22 person may request an inspection of an institution in accordance
50-23 with this chapter by making a complaint notifying the department of
50-24 an alleged violation of law and requesting an inspection.
50-25 (b) The department shall encourage a person who makes an
51-1 oral complaint under Subsection (a) to submit a written, signed
51-2 complaint.
51-3 Sec. 242.552. DISCLOSURE OF SUBSTANCE OF COMPLAINT. The
51-4 department may not provide information to the institution relating
51-5 to the substance of a complaint made under this subchapter before
51-6 an on-site inspection is begun in accordance with this subchapter.
51-7 Sec. 242.553. CONFIDENTIALITY. The name of the person
51-8 making the complaint is confidential and may not be released to the
51-9 institution or any other person, unless the person making the
51-10 complaint specifically requests that the person's name be released.
51-11 Sec. 242.554. PRELIMINARY REVIEW OF COMPLAINT; INSPECTION.
51-12 (a) On receipt of a complaint under this subchapter, the
51-13 department shall make a preliminary review of the complaint.
51-14 (b) Within a reasonable time after receipt of the complaint,
51-15 the department shall make an on-site inspection or otherwise
51-16 respond to the complaint unless the department determines that:
51-17 (1) the person making the complaint made the complaint
51-18 to harass the institution;
51-19 (2) the complaint is without any reasonable basis; or
51-20 (3) sufficient information in the possession of the
51-21 department indicates that corrective action has been taken.
51-22 (c) The department shall promptly notify the person making
51-23 the complaint of the department's proposed course of action under
51-24 Subsection (b) and the reasons for that action.
51-25 (Sections 242.555-242.600 reserved for expansion
52-1 SUBCHAPTER N [F]. ADMINISTRATION OF MEDICATION
52-2 [MEDICAL AND DENTAL CARE]
52-3 Sec. 242.601. MEDICATION ADMINISTRATION. (a) An
52-4 institution must establish medication administration procedures to
52-5 ensure that:
52-6 (1) medications to be administered are checked against
52-7 the order of a physician, advanced practice nurse, or physician
52-8 assistant pursuant to protocols jointly developed with a physician;
52-9 (2) the resident is identified before the
52-10 administration of a medication;
52-11 (3) each resident's clinical record includes an
52-12 individual medication record in which the dose of medication
52-13 administered is properly recorded by the person who administered
52-14 the medication;
52-15 (4) medications and biologicals are prepared and
52-16 administered to a resident by the same individual, except under
52-17 unit-of-use package distribution systems; and
52-18 (5) a medication prescribed for one resident is not
52-19 administered to any other person.
52-20 (b) The medication administration procedures must comply
52-21 with this subchapter and the rules adopted by the board under
52-22 Section 242.608.
52-23 Sec. 242.602. PHARMACIST SERVICES. (a) An institution
52-24 shall:
52-25 (1) employ a licensed pharmacist responsible for
53-1 operating the institution's pharmacy; or
53-2 (2) contract, in writing, with a licensed pharmacist
53-3 to advise the institution on ordering, storage, administration, and
53-4 disposal of medications and biologicals and related recordkeeping.
53-5 (b) The institution shall allow residents to choose their
53-6 pharmacy provider from any pharmacy that is qualified to perform
53-7 the services.
53-8 Sec. 242.603. STORAGE AND DISPOSAL OF MEDICATIONS. (a) An
53-9 institution shall store medications under appropriate conditions of
53-10 sanitation, temperature, light, moisture, ventilation, segregation,
53-11 and security. Poisons, medications used externally, and
53-12 medications taken internally shall be stored on separate shelves or
53-13 in separate cabinets. Medication stored in a refrigerator
53-14 containing other items shall be kept in a separate compartment with
53-15 appropriate security. The institution shall store a medication in
53-16 a locked area that must remain locked unless an individual
53-17 authorized to distribute the medication is present.
53-18 (b) The institution shall properly dispose of:
53-19 (1) any medication that is discontinued or outdated,
53-20 except as provided by Subsection (c); and
53-21 (2) any medication in a container with a worn or
53-22 illegible label or missing a label.
53-23 (c) A discontinued medication that has not been destroyed
53-24 must be reinstated if reordered.
53-25 (d) An institution shall release the medications of a
54-1 resident who is transferred directly to another institution or who
54-2 is discharged to home to the new institution or to the resident or
54-3 resident's next of kin or guardian, as appropriate. The
54-4 institution may release a medication to a resident only on the
54-5 written or verbal authorization of the attending physician.
54-6 Sec. 242.604. REPORTS OF MEDICATION ERRORS AND ADVERSE
54-7 REACTIONS. An institution's nursing staff must report medication
54-8 errors and adverse reactions to the resident's physician in a
54-9 timely manner, as warranted by an assessment of the resident's
54-10 condition, and record the errors and reactions in the resident's
54-11 clinical record.
54-12 Sec. 242.605. MEDICATION REFERENCE SOURCES. An institution
54-13 shall maintain updated medication reference texts or sources. If
54-14 the institution has a resident younger than 18 years of age, these
54-15 texts or sources must include information on pediatric medications,
54-16 dosages, sites, routes, techniques of administration of
54-17 medications, desired effects, and possible side effects.
54-18 Sec. 242.606 [242.151]. PERMITS TO ADMINISTER MEDICATION. A
54-19 person may not administer medication to a resident unless the
54-20 person:
54-21 (1) holds a license under state law that authorizes
54-22 the person to administer medication; or
54-23 (2) holds a permit issued under Section 242.610
54-24 [242.154] and acts under the authority of a person who holds a
54-25 license under state law that authorizes the person to administer
55-1 medication.
55-2 Sec. 242.607 [242.1511]. EXEMPTIONS FOR NURSING STUDENTS AND
55-3 MEDICATION AIDE TRAINEES. (a) Sections 242.606 and 242.614
55-4 [242.151 and 242.158] do not apply to:
55-5 (1) a graduate nurse holding a temporary permit issued
55-6 by the Board of Nurse Examiners;
55-7 (2) a student enrolled in an accredited school of
55-8 nursing or program for the education of registered nurses who is
55-9 administering medications as part of the student's clinical
55-10 experience;
55-11 (3) a graduate vocational nurse holding a temporary
55-12 permit issued by the Board of Vocational Nurse Examiners;
55-13 (4) a student enrolled in an accredited school of
55-14 vocational nursing or program for the education of vocational
55-15 nurses who is administering medications as part of the student's
55-16 clinical experience; or
55-17 (5) a trainee in a medication aide training program
55-18 approved by the department under this subchapter who is
55-19 administering medications as part of the trainee's clinical
55-20 experience.
55-21 (b) The administration of medications by persons exempted
55-22 under Subdivisions (1) through (4) of Subsection (a) is governed by
55-23 the terms of the memorandum of understanding executed by the
55-24 department and the Board of Nurse Examiners or the department and
55-25 the Board of Vocational Nurse Examiners, as appropriate.
56-1 Sec. 242.608 [242.152]. RULES FOR ADMINISTRATION OF
56-2 MEDICATION. The board by rule shall establish:
56-3 (1) minimum requirements for the issuance, denial,
56-4 renewal, suspension, emergency suspension, and revocation of a
56-5 permit to administer medication to a resident;
56-6 (2) curricula to train persons to administer
56-7 medication to a resident;
56-8 (3) minimum standards for the approval of programs to
56-9 train persons to administer medication to a resident and for
56-10 rescinding approval; and
56-11 (4) the acts and practices that are allowed or
56-12 prohibited to a permit holder.
56-13 Sec. 242.609 [242.153]. TRAINING PROGRAMS TO ADMINISTER
56-14 MEDICATION. (a) An application for the approval of a training
56-15 program must be made to the department on a form and under rules
56-16 prescribed by the board.
56-17 (b) The department shall approve a training program that
56-18 meets the minimum standards adopted under Section 242.608
56-19 [242.152]. The department may review the approval annually.
56-20 Sec. 242.610 [242.154]. ISSUANCE AND RENEWAL OF PERMIT TO
56-21 ADMINISTER MEDICATION. (a) To be issued or to have renewed a
56-22 permit to administer medication, a person shall apply to the
56-23 department on a form prescribed and under rules adopted by the
56-24 board.
56-25 (b) The department shall prepare and conduct, at the site of
57-1 the training program, an examination for the issuance of a permit.
57-2 (c) The department shall require a permit holder to
57-3 satisfactorily complete a continuing education course approved by
57-4 the department for renewal of the permit.
57-5 (d) The department shall issue a permit or renew a permit to
57-6 an applicant who:
57-7 (1) meets the minimum requirements adopted under
57-8 Section 242.608 [242.152];
57-9 (2) successfully completes the examination or the
57-10 continuing education requirements; and
57-11 (3) pays a nonrefundable application fee determined by
57-12 the board.
57-13 (e) A permit is valid for one year and is not transferable.
57-14 (f) The department may issue a permit to an employee of a
57-15 state or federal agency listed in Section 242.003(a)(6)(B).
57-16 Sec. 242.611 [242.155]. FEES FOR ISSUANCE AND RENEWAL OF
57-17 PERMIT TO ADMINISTER MEDICATION. [(a)] The board shall set the
57-18 fees in amounts reasonable and necessary to recover the amount
57-19 projected by the department as required to administer its
57-20 functions. The fees may not exceed:
57-21 (1) $25 for a combined permit application and
57-22 examination fee; and
57-23 (2) $15 for a renewal permit application fee.
57-24 [(b) Fees received under this section may only be
57-25 appropriated to the department to defray costs incurred under this
58-1 section.]
58-2 Sec. 242.612 [242.156]. VIOLATION OF PERMITS TO ADMINISTER
58-3 MEDICATION. (a) For the violation of this subchapter or a rule
58-4 adopted under this subchapter, the department may:
58-5 (1) suspend, revoke, or refuse to renew a permit;
58-6 (2) suspend a permit in an emergency; or
58-7 (3) rescind training program approval.
58-8 (b) Except as provided by Section 242.613 [242.157], the
58-9 procedure by which the department takes a disciplinary action and
58-10 the procedure by which a disciplinary action is appealed are
58-11 governed by the department's rules for a formal hearing and by
58-12 Chapter 2001, Government Code.
58-13 Sec. 242.613 [242.157]. EMERGENCY SUSPENSION OF PERMITS TO
58-14 ADMINISTER MEDICATION. (a) The department shall issue an order to
58-15 suspend a permit issued under this subchapter if the department has
58-16 reasonable cause to believe that the conduct of the permit holder
58-17 creates an imminent danger to the public health or safety.
58-18 (b) An emergency suspension is effective immediately without
58-19 a hearing on notice to the permit holder.
58-20 (c) If requested in writing by a permit holder whose permit
58-21 is suspended, the department shall conduct a hearing to continue,
58-22 modify, or rescind the emergency suspension.
58-23 (d) The hearing must be held not earlier than the 10th day
58-24 or later than the 30th day after the date on which the hearing
58-25 request is received.
59-1 (e) The hearing and an appeal from a disciplinary action
59-2 related to the hearing are governed by the department's rules for a
59-3 formal hearing and Chapter 2001, Government Code.
59-4 Sec. 242.614 [242.158]. ADMINISTRATION OF MEDICATION;
59-5 CRIMINAL PENALTY. (a) A person commits an offense if the person
59-6 knowingly administers medication to a resident and the person:
59-7 (1) does not hold a license under state law that
59-8 authorizes the person to administer medication; or
59-9 (2) does not hold a permit issued by the department
59-10 under this subchapter.
59-11 (b) An offense under this section is a Class B misdemeanor.
59-12 [Sec. 242.159. REQUIRED MEDICAL EXAMINATION. (a) The
59-13 department shall require each resident to be given at least one
59-14 medical examination each year.]
59-15 [(b) The department shall specify the details of the
59-16 examination.]
59-17 [Sec. 242.160. DENTAL EXAMINATION. (a) The department
59-18 shall require that each resident of a nursing home or custodial
59-19 care home or the resident's custodian be asked at least once each
59-20 year if the resident desires a dental examination and possible
59-21 treatment at the resident's own expense.]
59-22 [(b) Each nursing home or custodial care home shall be
59-23 encouraged to use all reasonable efforts to arrange for a dental
59-24 examination for each resident who desires one.]
59-25 [(c) The nursing home or custodial care home is not liable
60-1 for any costs relating to a dental examination under this section.]
60-2 Sec. 242.615 [242.161]. EMERGENCY MEDICATION KIT. (a) An
60-3 institution licensed under this chapter is entitled to maintain a
60-4 supply of controlled substances in an emergency medication kit for
60-5 a resident's emergency medication needs.
60-6 (b) The controlled substances shall be labeled in accordance
60-7 with all applicable state and federal food and drug laws, including
60-8 Chapter 481 (Texas Controlled Substances Act).
60-9 (c) The board shall adopt rules governing the amount, type,
60-10 and procedure for use of the controlled substances in the emergency
60-11 medication kit. The storage of the controlled substances in the
60-12 kit is under the supervision of the consultant pharmacist.
60-13 (d) The administration of the controlled substances in the
60-14 emergency medication kit shall comply with all applicable laws.
60-15 SECTION 1.31. Chapter 242, Health and Safety Code, is
60-16 amended by adding Subchapter O to read as follows:
60-17 SUBCHAPTER O. LEGISLATIVE OVERSIGHT
60-18 Sec. 242.651. DEFINITION. In this subchapter, "committee"
60-19 means the long-term care legislative oversight committee.
60-20 Sec. 242.652. COMPOSITION OF COMMITTEE; PRESIDING OFFICER.
60-21 (a) The committee is composed of:
60-22 (1) two members of the senate and one public member
60-23 appointed by the lieutenant governor; and
60-24 (2) two members of the house of representatives and
60-25 one public member appointed by the speaker of the house of
61-1 representatives.
61-2 (b) A member of the committee serves at the pleasure of the
61-3 appointing official.
61-4 (c) The lieutenant governor and the speaker of the house of
61-5 representatives shall appoint the presiding officer of the
61-6 committee on an alternating basis. The presiding officer shall
61-7 serve a two-year term expiring February 1 of each odd-numbered
61-8 year.
61-9 Sec. 242.653. COMMITTEE POWERS AND DUTIES. (a) The
61-10 committee shall:
61-11 (1) meet at the call of the presiding officer;
61-12 (2) receive information about rules proposed or
61-13 adopted by the department; and
61-14 (3) review specific recommendations for legislation
61-15 proposed by the department or the attorney general relating to
61-16 nursing facility rules and regulations and other long-term care
61-17 issues.
61-18 (b) The committee may issue process, in accordance with
61-19 Section 301.024, Government Code, to compel the attendance of
61-20 witnesses and the production of books, records, documents, and
61-21 instruments required by the committee.
61-22 (c) The committee shall monitor the effectiveness and
61-23 efficiency of the nursing facility regulatory system of this state.
61-24 (d) The committee may request reports and other information
61-25 from the department and the attorney general relating to the
62-1 nursing facility regulatory system of this state and other
62-2 long-term care issues.
62-3 (e) The committee shall use the existing staff resources of
62-4 the senate and the house of representatives to assist the committee
62-5 in performing its duties under this section.
62-6 Sec. 242.654. REPORT. (a) The committee shall report to
62-7 the governor, lieutenant governor, and speaker of the house of
62-8 representatives not later than November 15 of each even-numbered
62-9 year.
62-10 (b) The report must include:
62-11 (1) identification of significant problems in the
62-12 nursing facility regulatory system, with recommendations for
62-13 action;
62-14 (2) the effectiveness and efficiency of the nursing
62-15 facility regulatory system of this state, with recommendations for
62-16 any necessary research;
62-17 (3) an analysis of the continuum of care of long-term
62-18 services available to citizens of this state; and
62-19 (4) recommendations for legislative action.
62-20 Sec. 242.655. RIGHTS OF EMPLOYEES; RETALIATION PROHIBITED.
62-21 (a) An employee of the department may cooperate with the committee
62-22 in the performance of its functions.
62-23 (b) The department may not suspend or terminate the
62-24 employment of, or take another adverse personnel action against, an
62-25 employee of the department solely because the employee cooperates
63-1 with the committee in good faith.
63-2 (c) In this section, "personnel action" has the meaning
63-3 assigned by Section 554.001, Government Code.
63-4 SECTION 1.32. Section 222.0255, Health and Safety Code, is
63-5 amended by adding Subsection (e) to read as follows:
63-6 (e) Chapter 242 establishes the minimum licensing standards
63-7 for an institution. The licensing standards adopted by the
63-8 department under this chapter shall be adopted subject to Section
63-9 242.037(b) and must comply with Section 242.037(c) and the other
63-10 provisions of Chapter 242.
63-11 SECTION 1.33. Section 250.006, Health and Safety Code, is
63-12 amended to read as follows:
63-13 Sec. 250.006. CONVICTIONS BARRING EMPLOYMENT. A person
63-14 convicted of an offense listed in this section may not be employed
63-15 in a position the duties of which involve direct contact with a
63-16 consumer in a facility:
63-17 (1) an offense under Chapter 19, Penal Code (criminal
63-18 homicide);
63-19 (2) an offense under Chapter 20, Penal Code
63-20 (kidnapping and false imprisonment);
63-21 (3) an offense under Section 21.11, Penal Code
63-22 (indecency with a child);
63-23 (4) an offense under Section 22.011, Penal Code
63-24 (sexual assault);
63-25 (5) an offense under Section 22.02, Penal Code
64-1 (aggravated assault);
64-2 (6) an offense under Section 22.04, Penal Code (injury
64-3 to a child, elderly individual, or disabled individual);
64-4 (7) an offense under Section 22.041, Penal Code
64-5 (abandoning or endangering child);
64-6 (8) an offense under Section 22.08, Penal Code (aiding
64-7 suicide);
64-8 (9) an offense under Section 25.031, Penal Code
64-9 (agreement to abduct from custody);
64-10 (10) [(5)] an offense under Section 25.08, Penal Code
64-11 (sale or purchase of a child);
64-12 (11) [(6)] an offense under Section 28.02, Penal Code
64-13 (arson);
64-14 (12) [(7)] an offense under Section 29.02, Penal Code
64-15 (robbery); or
64-16 (13) [(8)] an offense under Section 29.03, Penal Code
64-17 (aggravated robbery).
64-18 SECTION 1.34. Section 242.012, Health and Safety Code, is
64-19 repealed.
64-20 SECTION 1.35. The Texas Board of Human Services shall adopt
64-21 rules as necessary to implement the change in law made by this
64-22 article not later than January 1, 1998.
64-23 SECTION 1.36. (a) The change in law made by this article to
64-24 Section 242.097, Health and Safety Code, applies only to a license
64-25 fee originally due on or after the effective date of this Act. A
65-1 license fee that was originally due before the effective date of
65-2 this Act is governed by the law as it existed immediately before
65-3 the effective date of this Act, and that law is continued in effect
65-4 for that purpose.
65-5 (b) The change in law made by this article to Section
65-6 250.006, Health and Safety Code, applies only to a person hired on
65-7 or after September 1, 1997, in a position the duties of which
65-8 involve direct contact with a consumer in a facility. That change
65-9 does not apply to a person hired before September 1, 1997, in a
65-10 position the duties of which involve direct contact with a consumer
65-11 in a facility as long as the person remains continuously employed
65-12 in that position on and after September 1, 1997.
65-13 SECTION 1.37. Except as provided by Section 1.36 of this
65-14 article, this article applies only to conduct occurring on or after
65-15 January 1, 1998. Conduct occurring before January 1, 1998, is
65-16 governed by the law as it existed immediately before September 1,
65-17 1997, and that law is continued in effect for that purpose.
65-18 ARTICLE 2. GOVERNMENT FUNDING OF NURSING SERVICES
65-19 SECTION 2.01. Section 32.021, Human Resources Code, is
65-20 amended by amending Subsections (d), (h), (i), (j), and (k) and
65-21 adding Subsections (l), (m), (n), and (o) to read as follows:
65-22 (d) The department shall [may] include in its contracts for
65-23 the delivery of medical assistance by nursing facilities provisions
65-24 for monetary penalties to be assessed for [contract] violations as
65-25 required by 42 U.S.C. Section 1396r, including without limitation
66-1 the Omnibus Budget Reconciliation Act (OBRA), P.L. 100-203, Nursing
66-2 Home Reform Amendments of 1987, provided that the department
66-3 shall:
66-4 (1) provide for an informal dispute resolution process
66-5 in the department's central office; the informal dispute resolution
66-6 process shall:
66-7 (A) require the institution to request informal
66-8 dispute resolution no later than the 10th calendar day after
66-9 notification by the department of a violation of a standard or
66-10 standards;
66-11 (B) require the department to complete the
66-12 process no later than the 30th calendar day after receipt of a
66-13 request from the institution for informal dispute resolution; and
66-14 (C) require any individual representing an
66-15 institution in an informal dispute resolution process to register
66-16 with the department and disclose the following:
66-17 (i) the individual's five-year employment
66-18 history during the preceding five years, including employment in
66-19 regulatory agencies of this state and other states;
66-20 (ii) ownership, including the identity of
66-21 the controlling person or persons, of the institution the person is
66-22 representing before the department; and
66-23 (iii) the identity of other entities the
66-24 person represents or has represented before the agency during the
66-25 previous 24 months [establish a penalties and sanctions advisory
67-1 committee of consumer advocates and long-term care providers to
67-2 help develop and monitor an appropriate system for assessing
67-3 penalties]; and
67-4 (2) develop rules [in accordance with Subsection (i)]
67-5 to adjudicate claims in contested cases.
67-6 (h) Medicaid nursing facilities shall also comply with state
67-7 licensure rules, which may be more stringent than the requirements
67-8 for certification [Except to the extent necessary to implement
67-9 rights granted to an elderly individual under Chapter 102, the
67-10 rules adopted by the department for certification of nursing
67-11 facilities as being in compliance with the requirements for
67-12 participation in the state Medicaid program may not be different
67-13 from the standards imposed by federal law]. The [This subsection
67-14 does not prevent the] department shall use appropriate [from using
67-15 any] civil, administrative, or criminal remedies [remedy]
67-16 authorized by state or federal law with respect to a facility that
67-17 is in violation of a certification or licensing requirement.
67-18 (i) Except as provided by Subsections (j) and (k), a
67-19 department survey, complaint investigation, incident investigation,
67-20 or survey report [The rules adopted under Subsection (d)(2) must
67-21 provide for:]
67-22 [(1) an informal dispute resolution process that
67-23 provides for adjudication by an appropriate disinterested person in
67-24 a regional office of the department and an informal appeal to the
67-25 department's central office;]
68-1 [(2) an administrative appeals process under Chapter
68-2 2001, Government Code; and]
68-3 [(3) the arbitration process described by Subsection
68-4 (k).]
68-5 [(j) A finding by the department] that documents that an
68-6 institution has violated a standard for participation in the state
68-7 Medicaid program, or the assessment of a monetary penalty by the
68-8 department or the payment of a monetary penalty by the institution
68-9 [under this section], is not admissible as evidence in a civil
68-10 action to prove that the institution has committed a violation.
68-11 (j) Subsection (i) [This subsection] does not:
68-12 (1) apply in an enforcement action or related
68-13 proceeding in which the state or an agency or political subdivision
68-14 of the state is a party;
68-15 (2) prohibit or limit the testimony of a department
68-16 surveyor or investigator in a civil action; or
68-17 (3) bar the admission into evidence in a civil action
68-18 of a written finding, survey report, complaint investigation,
68-19 incident investigation, or inspection report of the department that
68-20 is offered:
68-21 (A) to establish warning or notice to an
68-22 institution of a relevant finding; or
68-23 (B) under any rule or evidentiary predicate of
68-24 the Texas Rules of Civil Evidence.
68-25 (k) A department surveyor or investigator may testify in a
69-1 civil action as to observations, factual findings, conclusions, or
69-2 violations of requirements for licensure or for certification for
69-3 participation in the state Medicaid program that were made in the
69-4 discharge of official duties for the department, in accordance with
69-5 the Texas Rules of Civil Evidence.
69-6 (l) The department may not include as a reimbursable item to
69-7 a nursing facility an administrative or civil penalty assessed
69-8 against the facility under this chapter or under Chapter 242,
69-9 Health and Safety Code.
69-10 (m) Notwithstanding any provision of law to the contrary,
69-11 the department shall terminate a nursing facility's provider
69-12 agreement if the department has imposed required Category 2 or
69-13 Category 3 remedies on the facility three times within a 24-month
69-14 period unless the department makes an affirmative finding that good
69-15 cause exists to waive this requirement to facilitate a change in
69-16 ownership to protect residents of a facility. In this subsection,
69-17 "Category 2 remedies" and "Category 3 remedies" have the meanings
69-18 assigned by 42 C.F.R. Section 488.408.
69-19 (n) An assessment of monetary penalties under this section
69-20 is subject to arbitration under Subchapter J [H], Chapter 242,
69-21 Health and Safety Code.
69-22 (o) In any circumstance in which a nursing facility would
69-23 otherwise be required to admit a resident transferred from another
69-24 facility, because of an emergency or otherwise, the nursing
69-25 facility may not admit a resident whose needs cannot be met through
70-1 service from the facility's staff or in cooperation with community
70-2 resources or other providers under contract. If a nursing facility
70-3 refuses to admit a resident under this subsection, the nursing
70-4 facility shall provide a written statement of the reasons for the
70-5 refusal to the department within a period specified by department
70-6 rule. A nursing facility that fails to provide the written
70-7 statement, or that includes false or misleading information in the
70-8 statement, is subject to monetary penalties assessed in accordance
70-9 with this chapter.
70-10 SECTION 2.02. Subchapter B, Chapter 32, Human Resources
70-11 Code, is amended by adding Section 32.0213 to read as follows:
70-12 Sec. 32.0213. NURSING FACILITY BED CERTIFICATION AND
70-13 DECERTIFICATION. (a) The department by rule shall establish
70-14 procedures for:
70-15 (1) controlling the number of Medicaid beds in nursing
70-16 facilities;
70-17 (2) decertification of unused Medicaid beds in nursing
70-18 facilities; and
70-19 (3) reallocation of nursing home beds decertified
70-20 under Subdivision (2) to other nursing facilities.
70-21 (b) The procedures established under this section must take
70-22 into account the occupancy rate of the nursing facility.
70-23 SECTION 2.03. Subsection (c), Section 32.034, Human
70-24 Resources Code, is amended to read as follows:
70-25 (c) The section does not apply if federal matching funds are
71-1 not available to pay the facility whose [a] contract is being
71-2 cancelled. If [because] federal matching funds cannot be used, no
71-3 state funds may be used to pay the facility [for contract payments
71-4 are no longer available or if the contract expires according to its
71-5 terms].
71-6 SECTION 2.04. If before the Texas Department of Human
71-7 Services implements Subsection (o), Section 32.021, Human Resources
71-8 Code, as added by this Act, the Health and Human Services
71-9 Commission determines that a waiver or authorization from a
71-10 federal agency is necessary for implementation, the commission
71-11 shall request the waiver or authorization and the Texas Department
71-12 of Human Services shall delay implementing this Act until the
71-13 waiver or authorization is granted.
71-14 ARTICLE 3. EFFECTIVE DATE; EMERGENCY
71-15 SECTION 3.01. This Act takes effect September 1, 1997.
71-16 SECTION 3.02. The importance of this legislation and the
71-17 crowded condition of the calendars in both houses create an
71-18 emergency and an imperative public necessity that the
71-19 constitutional rule requiring bills to be read on three several
71-20 days in each house be suspended, and this rule is hereby suspended.
S.B. No. 190
________________________________ ________________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 190 passed the Senate on
April 3, 1997, by a viva-voce vote; April 28, 1997, Senate refused
to concur in House amendments and requested appointment of
Conference Committee; April 30, 1997, House granted request of the
Senate; May 28, 1997, Senate adopted Conference Committee Report by
a viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 190 passed the House, with
amendments, on April 22, 1997, by a non-record vote;
April 30, 1997, House granted request of the Senate for appointment
of Conference Committee; May 28, 1997, House adopted Conference
Committee Report by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
________________________________
Date
________________________________
Governor