75R9465 DLF-F
By Zaffirini, et al. S.B. No. 190
Substitute the following for S.B. No. 190:
By Naishtat C.S.S.B. No. 190
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of nursing homes and similar facilities;
1-3 providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 ARTICLE 1. REGULATION OF NURSING HOMES AND SIMILAR FACILITIES
1-6 SECTION 1.01. Section 242.001, Health and Safety Code, is
1-7 amended to read as follows:
1-8 Sec. 242.001. SCOPE, PURPOSE, AND IMPLEMENTATION. (a) It
1-9 is the goal of this chapter to ensure that institutions in this
1-10 state deliver the highest possible quality of care. This chapter,
1-11 and the rules and standards adopted under this chapter, establish
1-12 minimum acceptable levels of care. A violation of a minimum
1-13 acceptable level of care established under this chapter or a rule
1-14 or standard adopted under this chapter is forbidden by law. Each
1-15 institution licensed under this chapter shall, at a minimum,
1-16 provide quality care in accordance with this chapter and the rules
1-17 and standards. Components of quality of care addressed by these
1-18 rules and standards include:
1-19 (1) quality of life;
1-20 (2) access to care;
1-21 (3) continuity of care;
1-22 (4) comprehensiveness of care;
1-23 (5) coordination of services;
1-24 (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 and are established to protect a class
2-13 of persons to which residents of institutions belong. The rules
2-14 and standards are not only intended for use in state surveys of
2-15 institutions and any investigation and enforcement action but are
2-16 also designed to:
2-17 (1) protect consumers by establishing minimum levels
2-18 of acceptable care; and
2-19 (2) establish criteria for consumers and providers to
2-20 assess the quality of care provided in an institution.
2-21 (d) The legislature finds that the construction,
2-22 maintenance, and operation of institutions shall be regulated in a
2-23 manner that protects the residents of the institutions by:
2-24 (1) providing the highest possible quality of care;
2-25 (2) strictly monitoring all factors relating to the
2-26 health, safety, welfare, and dignity of each resident;
2-27 (3) imposing prompt and effective penalties for
3-1 noncompliance with licensing standards; and
3-2 (4) providing the public with information concerning
3-3 the operation of institutions in this state.
3-4 (e) It is the legislature's intent that this chapter
3-5 accomplish the goals listed by Subsection (d).
3-6 (f) This chapter shall be construed broadly to accomplish
3-7 the purposes set forth in this section. [The purpose of this
3-8 chapter is to promote the public health, safety, and welfare by
3-9 providing for the development, establishment, and enforcement of
3-10 standards for the treatment of residents of institutions and the
3-11 establishment, construction, maintenance, and operation of
3-12 institutions that, in the light of advancing knowledge, will
3-13 promote safe and adequate treatment of residents.]
3-14 SECTION 1.02. Section 242.002, Health and Safety Code, is
3-15 amended to read as follows:
3-16 Sec. 242.002. DEFINITIONS. In this chapter:
3-17 (1) "Board" means the Texas Board of Human Services.
3-18 (2) "Commissioner" means the commissioner of human
3-19 services.
3-20 (3) "Controlling person" means a person who controls
3-21 an institution or other person as described by Section 242.0021.
3-22 (4) "Department" means the Texas Department of Human
3-23 Services.
3-24 (5) [(3)] "Elderly person" means an individual who is
3-25 65 years of age or older.
3-26 (6) "Facility" means an institution.
3-27 (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,
4-26 limited partnership, limited liability company, or any other legal
4-27 entity and includes a legal successor of those entities.
5-1 (12) [(8)] "Resident" means an individual, including a
5-2 patient, who resides in an institution.
5-3 [(9) "Commissioner" means the commissioner of human
5-4 services.]
5-5 SECTION 1.03. Subchapter A, Chapter 242, Health and Safety
5-6 Code, is amended by adding Section 242.0021 to read as follows:
5-7 Sec. 242.0021. CONTROLLING PERSON. (a) A person is a
5-8 controlling person if the person has the ability, acting alone or
5-9 in concert with others, to directly or indirectly influence,
5-10 direct, or cause the direction of the management, expenditure of
5-11 money, or policies of an institution or other person.
5-12 (b) For purposes of this chapter, "controlling person"
5-13 includes:
5-14 (1) a management company, landlord, or other business
5-15 entity that operates or contracts with others for the operation of
5-16 an institution;
5-17 (2) any person who is a controlling person of a
5-18 management company or other business entity that operates an
5-19 institution or that contracts with another person for the operation
5-20 of an institution; and
5-21 (3) any other individual who, because of a personal,
5-22 familial, or other relationship with the owner, manager, landlord,
5-23 tenant, or provider of an institution, is in a position of actual
5-24 control or authority with respect to the institution, without
5-25 regard to whether the individual is formally named as an owner,
5-26 manager, director, officer, provider, consultant, contractor, or
5-27 employee of the facility.
6-1 (c) A controlling person described by Subsection (b)(3) does
6-2 not include a person, such as a lender, secured creditor, or
6-3 landlord, who does not exercise any influence or control, whether
6-4 formal or actual, over the operation of an institution.
6-5 SECTION 1.04. Section 242.005, Health and Safety Code, is
6-6 amended to read as follows:
6-7 Sec. 242.005. PERFORMANCE REPORTS [ANNUAL REPORT]. (a) The
6-8 department and the attorney general each shall prepare annually a
6-9 full report of the operation and administration of their respective
6-10 responsibilities under this chapter, including recommendations and
6-11 suggestions considered [it considers] advisable.
6-12 (b) The Legislative Budget Board and the state auditor shall
6-13 jointly prescribe the form and content of reports required under
6-14 this section.
6-15 (c) The department and the attorney general shall submit the
6-16 required reports [report] to the governor and the legislature not
6-17 later than October 1 of each year.
6-18 SECTION 1.05. Subchapter A, Chapter 242, Health and Safety
6-19 Code, is amended by adding Sections 242.015 and 242.016 to read as
6-20 follows:
6-21 Sec. 242.015. LICENSED ADMINISTRATOR. (a) Each institution
6-22 must have a licensed nursing facility administrator.
6-23 (b) The administrator shall:
6-24 (1) manage the institution;
6-25 (2) be responsible for:
6-26 (A) delivery of quality care to all residents;
6-27 and
7-1 (B) implementation of the policies and
7-2 procedures of the institution; and
7-3 (3) work at least 40 hours per week on administrative
7-4 duties.
7-5 Sec. 242.016. FEES AND PENALTIES. Except as expressly
7-6 provided by this chapter, a fee or penalty collected by or on
7-7 behalf of the department under this chapter must be deposited to
7-8 the credit of the general revenue fund and may be appropriated only
7-9 to the department to administer and enforce this chapter.
7-10 SECTION 1.06. Section 242.032, Health and Safety Code, is
7-11 amended to read as follows:
7-12 Sec. 242.032. LICENSE OR RENEWAL APPLICATION. (a) An
7-13 application for a license or renewal of a license is made to the
7-14 department on a form provided by the department and must be
7-15 accompanied by the license fee.
7-16 (b) The application must contain information that the
7-17 department requires.
7-18 (c) The applicant or license holder must furnish evidence to
7-19 affirmatively establish the applicant's or license holder's ability
7-20 to comply with:
7-21 (1) minimum standards of medical care, nursing care,
7-22 and financial condition; and
7-23 (2) any other applicable state or federal standard.
7-24 (d) The department shall consider the background and
7-25 qualifications of:
7-26 (1) the applicant or license holder;
7-27 (2) a partner, officer, director, or managing employee
8-1 of the applicant or license holder;
8-2 (3) a person who owns or who controls the owner of the
8-3 physical plant of a facility in which the institution operates or
8-4 is to operate; and
8-5 (4) a controlling person with respect to the
8-6 institution for which a license or license renewal is requested.
8-7 (e) In making the evaluation required by Subsection (d),
8-8 the department shall require the applicant or license holder to
8-9 file a sworn affidavit of a satisfactory compliance history and
8-10 any other information required by the department to substantiate a
8-11 satisfactory compliance history relating to each state or other
8-12 jurisdiction in which the applicant or license holder and any other
8-13 person described by Subsection (d) operated an institution at any
8-14 time during the 10-year period preceding the date on which the
8-15 application is made. The department by rule shall determine what
8-16 constitutes a satisfactory compliance history.
8-17 (f) The department may also require the applicant or license
8-18 holder to file information relating to the history of the financial
8-19 condition of the applicant or license holder and any other person
8-20 described by Subsection (d) with respect to an institution operated
8-21 in another state or jurisdiction at any time during the 10-year
8-22 period preceding the date on which the application is made[, which
8-23 may include affirmative evidence of ability to comply with the
8-24 standards and rules adopted under this chapter].
8-25 SECTION 1.07. Section 242.033(a), Health and Safety Code, is
8-26 amended to read as follows:
8-27 (a) After receiving an application for a license, the
9-1 department may [shall] issue the license if, after inspection and
9-2 investigation, it finds that the applicant or license holder, and
9-3 any other person described by Section 242.032(d), [and facilities]
9-4 meet the requirements established under this chapter.
9-5 SECTION 1.08. Section 242.034, Health and Safety Code, is
9-6 amended to read as follows:
9-7 Sec. 242.034. LICENSE FEES. (a) The board may establish by
9-8 rule license fees for institutions licensed by the department under
9-9 this chapter. The license fee may not exceed $250 [$150] plus:
9-10 (1) $10 [$5] for each unit of capacity or bed space
9-11 for which a license is sought; and
9-12 (2) a background examination fee imposed under
9-13 Subsection (c).
9-14 (b) An additional license fee may be charged as provided by
9-15 Section 242.097.
9-16 (c) The board may establish a background examination fee in
9-17 an amount necessary to defray the department's expenses in
9-18 administering its duties under Sections 242.032(d), (e), and (f).
9-19 (d) [(b)] The license fee must be paid with each application
9-20 for an initial license, a renewal license, or a change of ownership
9-21 license.
9-22 (e) [(c)] The state is not required to pay the license fee.
9-23 (f) [(d)] An approved increase in bed space is subject to an
9-24 additional fee.
9-25 (g) [(e) Except as provided by Section 242.097, all license
9-26 fees collected shall be deposited in the state treasury to the
9-27 credit of the department and may be appropriated to the department
10-1 to administer and enforce this chapter.]
10-2 [(f)] The license fees established under this chapter are an
10-3 allowable cost for reimbursement under the medical assistance
10-4 program administered by the Texas Department of Human Services
10-5 under Chapter 32, Human Resources Code. Any fee increases shall be
10-6 reflected in reimbursement rates prospectively.
10-7 SECTION 1.09. Section 242.037, Health and Safety Code, as
10-8 amended by Chapters 583 and 1049, Acts of the 74th Legislature,
10-9 Regular Session, 1995, is amended to read as follows:
10-10 Sec. 242.037. RULES; MINIMUM STANDARDS. (a) The department
10-11 shall make and enforce rules and minimum standards to implement
10-12 this chapter, including rules and minimum standards relating to
10-13 quality of life, quality of care, and residents' rights. These
10-14 rules and minimum standards are expressly created to protect a
10-15 class of persons to which residents of institutions belong.
10-16 (b) The rules and standards adopted under this chapter may
10-17 be more stringent than the standards imposed by federal law for
10-18 certification for participation in the state Medicaid program.
10-19 (c) The rules and standards adopted by the department may
10-20 not be less stringent than the Medicaid certification standards and
10-21 regulations imposed under the Omnibus Budget Reconciliation Act of
10-22 1987 (OBRA), Pub. L. No. 100-203.
10-23 (d) In addition to standards or rules required by other
10-24 provisions of this chapter, the [The] board shall [may] adopt,
10-25 publish, and enforce minimum standards relating to:
10-26 (1) the construction of an institution, including
10-27 plumbing, heating, lighting, ventilation, and other housing
11-1 conditions, to ensure the residents' health, safety, comfort, and
11-2 protection from fire hazard;
11-3 (2) the regulation of the number and qualification of
11-4 all personnel, including management and nursing personnel,
11-5 responsible for any part of the care given to the residents;
11-6 (3) requirements for in-service education of all
11-7 employees who have any contact with the residents;
11-8 (4) training on the care of persons with Alzheimer's
11-9 disease and related disorders for employees who work with those
11-10 persons;
11-11 (5) sanitary and related conditions in an institution
11-12 and its surroundings, including water supply, sewage disposal, food
11-13 handling, and general hygiene in order to ensure the residents'
11-14 health, safety, and comfort;
11-15 (6) the dietary needs of each resident according to
11-16 good nutritional practice or the recommendations of the physician
11-17 attending the resident;
11-18 (7) equipment essential to the residents' health and
11-19 welfare; [and]
11-20 (8) the use and administration of medication in
11-21 conformity with applicable law and rules;
11-22 (9) care and treatment of residents and any other
11-23 matter related to resident health, safety, and welfare;
11-24 (10) licensure of institutions; and
11-25 (11) implementation of this chapter.
11-26 (e) [(b)] The board shall adopt, publish, and enforce
11-27 minimum standards requiring appropriate training in geriatric care
12-1 for each individual who provides services to geriatric residents in
12-2 [as an employee of] an institution and who holds a license or
12-3 certificate issued by an agency of this state that authorizes the
12-4 person to provide the services. The minimum standards may require
12-5 that each licensed or certified individual complete an appropriate
12-6 program of continuing education or in-service training, as
12-7 determined by board rule, on a schedule determined by board rule.
12-8 (f) To administer the Provider Certification Survey provided
12-9 for by federal law and regulation, the department must identify
12-10 each area of care that is subject to both state licensing
12-11 requirements and federal certification requirements. For each area
12-12 of care that is subject to the same standard under both federal
12-13 certification and state licensing requirements, an institution that
12-14 is in compliance with the certification standard is considered to
12-15 be in compliance with the same state licensing requirement.
12-16 (g) The board by rule shall adopt a system for prioritizing
12-17 investigation of and action on complaints relating to institutions.
12-18 [(b) Notwithstanding Section 222.0255(b), an institution
12-19 that is certified as being in compliance with each standard of
12-20 participation in the state Medicaid program that relates to the
12-21 same subject matter as a minimum standard established under
12-22 Subsection (a) is not required to satisfy the minimum standard
12-23 established under that subsection.]
12-24 SECTION 1.10. Section 242.042, Health and Safety Code, is
12-25 amended to read as follows:
12-26 Sec. 242.042. POSTING. (a) Each institution shall
12-27 prominently and conspicuously post for display in a public area of
13-1 the institution that is readily available to residents, employees,
13-2 and visitors:
13-3 (1) the license issued under this chapter;
13-4 (2) a sign prescribed by the department that specifies
13-5 complaint procedures established under this chapter or rules
13-6 adopted under this chapter and that specifies how complaints may be
13-7 registered with the department;
13-8 (3) a notice in a form prescribed by the department
13-9 stating that inspection and related reports are available at the
13-10 institution for public inspection and providing the department's
13-11 toll-free telephone number that may be used to obtain information
13-12 concerning the institution; [and]
13-13 (4) a concise summary of the most recent inspection
13-14 report relating to the institution;
13-15 (5) notice that the department can provide summary
13-16 reports relating to the quality of care, recent investigations,
13-17 litigation, and other aspects of the operation of the institution;
13-18 (6) notice that the Texas Board of Nursing Facility
13-19 Administrators can provide information about the nursing facility
13-20 administrator;
13-21 (7) any notice required to be posted under Section
13-22 242.073(c); and
13-23 (8) notice that informational materials relating to
13-24 the compliance history of the institution are available for
13-25 inspection at a location in the institution specified by the sign.
13-26 (b) The notice required by Subsection (a)(8) must also be
13-27 posted at each door providing ingress to and egress from the
14-1 institution.
14-2 (c) The informational materials required to be maintained
14-3 for public inspection by an institution under Subsection (a)(8)
14-4 must be maintained in a well-lighted accessible location and must
14-5 include:
14-6 (1) any information required to be included under
14-7 Section 242.504; and
14-8 (2) a statement of the institution's record of
14-9 compliance with this chapter and the rules and standards adopted
14-10 under this chapter that is updated not less frequently than monthly
14-11 and that reflects the record of compliance during the period
14-12 beginning one year before the date the statement is last updated,
14-13 in the form required by the department.
14-14 SECTION 1.11. Section 242.061, Health and Safety Code, is
14-15 amended by amending Subsection (a) and adding Subsection (c) to
14-16 read as follows:
14-17 (a) The department, after providing notice and opportunity
14-18 for a hearing to the applicant or license holder, may deny,
14-19 suspend, or revoke a license if the department finds that the
14-20 applicant, the [or] license holder, or any other person described
14-21 by Section 242.032(d) has:
14-22 (1) violated this chapter or a rule, standard, or
14-23 order adopted or license issued under this chapter in either a
14-24 repeated or substantial manner;
14-25 (2) committed any act described by Sections
14-26 242.066(a)(2)-(6); or
14-27 (3) otherwise [substantially] failed to comply with
15-1 the requirements established under this chapter.
15-2 (c) The department may deny, suspend, or revoke the license
15-3 of an institution if any person described by Section 242.032(d) has
15-4 been excluded from holding a license under Section 242.0615.
15-5 SECTION 1.12. Subchapter C, Chapter 242, Health and Safety
15-6 Code, is amended by adding Section 242.0615 to read as follows:
15-7 Sec. 242.0615. EXCLUSION. (a) The department, after
15-8 providing notice and opportunity for a hearing, may exclude a
15-9 person from eligibility for a license under this chapter if the
15-10 person or any person described by Section 242.032(d) has
15-11 substantially failed to comply with this chapter and the rules
15-12 adopted under this chapter. The authority granted by this
15-13 subsection is in addition to the authority to deny issuance of a
15-14 license under Section 242.061(a).
15-15 (b) Exclusion of a person under this section must extend for
15-16 a period of at least two years, but may not exceed a period of 10
15-17 years.
15-18 SECTION 1.13. Sections 242.063(a), (b), and (d), Health and
15-19 Safety Code, are amended to read as follows:
15-20 (a) The department may petition a district court for:
15-21 (1) a temporary restraining order to restrain a person
15-22 from [continuing] a violation or threatened violation of the
15-23 standards imposed under [prescribed by] this chapter or any other
15-24 law affecting residents if the department reasonably believes
15-25 [finds] that the violation or threatened violation creates an
15-26 immediate threat to the health and safety of [the institution's]
15-27 residents; and
16-1 (2) an injunction to restrain a person from continuing
16-2 a violation of the standards imposed under this chapter or by any
16-3 other law affecting residents if the department reasonably believes
16-4 that the violation causes a threat to the health and safety of
16-5 residents.
16-6 (b) A district court, on petition of the department, may by
16-7 injunction:
16-8 (1) prohibit a person from violating [continuing a
16-9 violation of] the standards or licensing requirements prescribed by
16-10 this chapter;
16-11 (2) restrain or prevent the establishment, conduct,
16-12 management, or operation of an institution without a license issued
16-13 under this chapter; or
16-14 (3) grant the injunctive relief warranted by the facts
16-15 on a finding by the court that a person is violating or threatening
16-16 to violate the standards or licensing requirements prescribed by
16-17 this chapter.
16-18 (d) Notwithstanding Chapter 15, Civil Practice and Remedies
16-19 Code, or Section 65.023, Civil Practice and Remedies Code, a [A]
16-20 suit for a temporary restraining order or other injunctive relief
16-21 may [must] be brought in Travis County or in the county in which
16-22 the alleged violation occurs.
16-23 SECTION 1.14. Section 242.065, Health and Safety Code, is
16-24 amended to read as follows:
16-25 Sec. 242.065. CIVIL PENALTY. (a) A person who violates or
16-26 causes a violation of this chapter, [or] a rule adopted under this
16-27 chapter, or any requirement for participation in the state Medicaid
17-1 program that is applicable to an institution that is licensed
17-2 under this chapter is liable for a civil penalty of not less than
17-3 $2,000 [$100] or more than $15,000 [$10,000] for each act of
17-4 violation if the department determines the violation threatens the
17-5 health and safety of a resident.
17-6 (b) In determining the amount of a penalty to be awarded
17-7 under this section, the trier of fact shall consider:
17-8 (1) the seriousness of the violation, including the
17-9 nature, circumstances, extent, and gravity of the violation and the
17-10 hazard or potential hazard created by the violation to the health
17-11 or safety of a resident;
17-12 (2) the history of violations committed by the person
17-13 or the person's affiliate, employee, or controlling person;
17-14 (3) the amount necessary to deter future violations;
17-15 (4) the efforts made to correct the violation;
17-16 (5) any misrepresentation made to the department or to
17-17 another person regarding:
17-18 (A) the quality of services rendered or to be
17-19 rendered to residents;
17-20 (B) the compliance history of the institution or
17-21 any institutions owned or controlled by an owner or controlling
17-22 person of the institution; or
17-23 (C) the identity of an owner or controlling
17-24 person of the institution;
17-25 (6) the culpability of the individual who committed
17-26 the violation; and
17-27 (7) any other matter that should, as a matter of
18-1 justice or equity, be considered.
18-2 (c) Each day of a continuing violation and each resident who
18-3 suffers directly because of the violation constitute [constitutes]
18-4 a separate ground for recovery.
18-5 (d) In this section, "affiliate" means:
18-6 (1) with respect to a partnership other than a limited
18-7 partnership, each partner of the partnership;
18-8 (2) with respect to a corporation:
18-9 (A) an officer;
18-10 (B) a director;
18-11 (C) a stockholder who owns, holds, or has the
18-12 power to vote at least 10 percent of any class of securities issued
18-13 by the corporation, regardless of whether the power is of record or
18-14 beneficial; and
18-15 (D) a controlling individual;
18-16 (3) with respect to an individual:
18-17 (A) a member of the individual's immediate
18-18 family;
18-19 (B) each partnership and each partner in the
18-20 partnership in which the individual or any other affiliate of the
18-21 individual is a partner; and
18-22 (C) each corporation or other business entity in
18-23 which the individual or another affiliate of the individual is:
18-24 (i) an officer;
18-25 (ii) a director;
18-26 (iii) a stockholder who owns, holds, or
18-27 has the power to vote at least 10 percent of any class of
19-1 securities issued by the corporation, regardless of whether the
19-2 power is of record or beneficial; and
19-3 (iv) a controlling individual;
19-4 (4) with respect to a limited partnership:
19-5 (A) a general partner; and
19-6 (B) a limited partner who is a controlling
19-7 individual;
19-8 (5) with respect to a limited liability company:
19-9 (A) an owner who is a manager as described by
19-10 the Texas Limited Liability Company Act (Article 1528n, Vernon's
19-11 Texas Civil Statutes); and
19-12 (B) each owner who is a controlling individual;
19-13 and
19-14 (6) with respect to any other business entity, a
19-15 controlling individual.
19-16 SECTION 1.15. Section 242.066, Health and Safety Code, is
19-17 amended by amending Subsections (a) and (b) and adding Subsections
19-18 (f), (g), and (h) to read as follows:
19-19 (a) The department may assess an administrative [a civil]
19-20 penalty against a person who:
19-21 (1) violates this chapter or a rule, standard, or
19-22 order adopted or license issued under this chapter;
19-23 (2) makes a false statement, that the person knows or
19-24 should know is false, of a material fact:
19-25 (A) on an application for issuance or renewal of
19-26 a license or in an attachment to the application; or
19-27 (B) with respect to a matter under investigation
20-1 by the department;
20-2 (3) refuses to allow a representative of the
20-3 department to inspect:
20-4 (A) a book, record, or file required to be
20-5 maintained by an institution; or
20-6 (B) any portion of the premises of an
20-7 institution;
20-8 (4) wilfully interferes with the work of a
20-9 representative of the department or the enforcement of this
20-10 chapter;
20-11 (5) wilfully interferes with a representative of the
20-12 department preserving evidence of a violation of this chapter or a
20-13 rule, standard, or order adopted or license issued under this
20-14 chapter; or
20-15 (6) fails to pay a penalty assessed by the department
20-16 under this chapter not later than the 10th day after the date the
20-17 assessment of the penalty becomes final.
20-18 (b) Except as provided by Subsection (f) and Section
20-19 242.0665(c), the [The] penalty may not be less than $500 or more
20-20 than $15,000 [exceed $10,000] a day for each violation.
20-21 (f) The penalty for a violation of Section 242.073(c), a
20-22 rule adopted under Section 242.1225, or a right of a resident
20-23 adopted under Subchapter L may not exceed $1,000 a day for each
20-24 violation. This subsection does not apply to conduct that violates
20-25 both Subchapter K or a standard adopted under Subchapter K and a
20-26 right of a resident adopted under Subchapter L.
20-27 (g) The persons against whom an administrative penalty may
21-1 be assessed under Subsection (a) include:
21-2 (1) an applicant for a license under this chapter;
21-3 (2) a license holder;
21-4 (3) a partner, officer, director, or managing
21-5 employee of a license holder or applicant; and
21-6 (4) a person who controls an institution.
21-7 (h) A penalty assessed under Subsection (a)(6) is in
21-8 addition to the penalty previously assessed and not timely paid.
21-9 SECTION 1.16. Subchapter C, Chapter 242, Health and Safety
21-10 Code, is amended by adding Section 242.0665 to read as follows:
21-11 Sec. 242.0665. RIGHT TO CORRECT. (a) The department may
21-12 not assess an administrative penalty against an institution under
21-13 this subchapter if, not later than the 30th day after the date the
21-14 institution receives notice under Section 242.067(c), the
21-15 institution corrects the violation.
21-16 (b) Subsection (a) does not apply:
21-17 (1) to a violation that the department determines:
21-18 (A) results in serious harm to or death of a
21-19 resident;
21-20 (B) constitutes a serious threat to the health
21-21 or safety of a resident; or
21-22 (C) substantially limits the institution's
21-23 capacity to provide care;
21-24 (2) to a violation described by Sections
21-25 242.066(a)(2)-(6);
21-26 (3) to a violation of a rule adopted under Section
21-27 242.1225 or of Section 242.133 or 242.1335; or
22-1 (4) to a violation of a right of a resident adopted
22-2 under Subchapter L.
22-3 (c) An institution that corrects a violation under
22-4 Subsection (a) must maintain the correction. If the institution
22-5 fails to maintain the correction until at least the first
22-6 anniversary of the date the correction was made, the department may
22-7 assess an administrative penalty under this subchapter for the
22-8 subsequent violation. A penalty assessed under this subsection may
22-9 not be less than $500 or more than $30,000 a day for each
22-10 violation. The department is not required to provide the
22-11 institution an opportunity to correct the subsequent violation
22-12 under this section.
22-13 SECTION 1.17. Section 242.068(d), Health and Safety Code, is
22-14 amended to read as follows:
22-15 (d) Based on the findings of fact and recommendations of the
22-16 hearing examiner, the commissioner by order may find:
22-17 (1) a violation has occurred and assess an
22-18 administrative [a civil] penalty; or
22-19 (2) a violation has not occurred.
22-20 SECTION 1.18. Sections 242.067, 242.069, and 242.070, Health
22-21 and Safety Code, are amended to read as follows:
22-22 Sec. 242.067. REPORT RECOMMENDING ADMINISTRATIVE PENALTY.
22-23 (a) The department may issue a preliminary report stating the
22-24 facts on which it concludes that a violation of this chapter or a
22-25 rule, standard, or order adopted or license issued under this
22-26 chapter has occurred if it has:
22-27 (1) [it has] examined the possible violation and facts
23-1 surrounding the possible violation; and
23-2 (2) concluded that a violation has occurred.
23-3 (b) The report may recommend a penalty under Section 242.069
23-4 and the amount of the penalty.
23-5 (c) The department shall give written notice of the report
23-6 to the person charged with the violation not later than the 10th
23-7 day after the date on which the report is issued. The notice must
23-8 include:
23-9 (1) a brief summary of the charges;
23-10 (2) a statement of the amount of penalty recommended;
23-11 [and]
23-12 (3) a statement of whether the violation is subject to
23-13 correction under Section 242.0665 and, if the violation is subject
23-14 to correction under that section, a statement of:
23-15 (A) the date on which the institution must file
23-16 with the department a plan of correction to be approved by the
23-17 department; and
23-18 (B) the date on which the plan of correction
23-19 must be completed to avoid assessment of the penalty; and
23-20 (4) a statement that the person charged has a right to
23-21 a hearing on the occurrence of the violation, the amount of the
23-22 penalty, or both.
23-23 (d) Not later than the 20th day after the date on which the
23-24 notice under Subsection (c) is sent, the person charged may:
23-25 (1) give to the department written consent to the
23-26 department's report, including the recommended penalty; [or]
23-27 (2) make a written request for a hearing; or
24-1 (3) if the violation is subject to correction under
24-2 Section 242.0665, submit a plan of correction to the department for
24-3 approval.
24-4 (e) If the violation is subject to correction under Section
24-5 242.0665, and the person reports to the department that the
24-6 violation has been corrected, the department shall inspect the
24-7 correction or take any other step necessary to confirm that the
24-8 violation has been corrected and shall notify the person that:
24-9 (1) the correction is satisfactory and that a penalty
24-10 is not assessed; or
24-11 (2) the correction is not satisfactory and that a
24-12 penalty is recommended.
24-13 (f) Not later than the 20th day after the date on which a
24-14 notice under Subsection (e)(2) is sent, the person charged may:
24-15 (1) give to the department written consent to the
24-16 department's report, including the recommended penalty; or
24-17 (2) make a written request for a hearing.
24-18 (g) If the person charged with the violation consents to the
24-19 administrative penalty recommended by the department, [or] does not
24-20 timely respond to a [the] notice sent under Subsection (c) or (e),
24-21 or fails to correct the violation to the department's satisfaction,
24-22 the commissioner or the commissioner's designee shall[:]
24-23 [(1)] assess the administrative penalty recommended by
24-24 the department[; or]
24-25 [(2) order a hearing to be held on the findings and
24-26 recommendations in the department's report].
24-27 (h) [(f)] If the commissioner or the commissioner's designee
25-1 assesses the recommended penalty, the department shall give written
25-2 notice to the person charged of the decision and the person shall
25-3 pay the penalty.
25-4 Sec. 242.069. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
25-5 INTEREST; REFUND. (a) The commissioner shall give notice of the
25-6 decision taken under Section 242.068(d) to the person charged. If
25-7 the commissioner finds that a violation has occurred and has
25-8 assessed an administrative [a civil] penalty, the commissioner
25-9 shall give written notice to the person charged of:
25-10 (1) the findings;
25-11 (2) [,] the amount of the penalty;
25-12 (3) the rate of interest payable with respect to the
25-13 penalty and the date on which interest begins to accrue;
25-14 (4) whether payment of the penalty or other action
25-15 under Section 242.071 is required;[,] and
25-16 (5) the person's right to judicial review of the
25-17 order.
25-18 (b) Not later than the 30th day after the date on which the
25-19 commissioner's order is final, the person charged with the penalty
25-20 shall:
25-21 (1) pay the full amount of the penalty; or
25-22 (2) file a petition for judicial review contesting the
25-23 occurrence of the violation, the amount of the penalty, the failure
25-24 to correct the violation to the department's satisfaction, or all
25-25 of the above.
25-26 (c) Notwithstanding Subsection (b), the department may
25-27 permit the person to pay the penalty in installments or may require
26-1 the person to use the amount of the penalty under the department's
26-2 supervision in accordance with Section 242.071.
26-3 (d) If the person does not pay the penalty within the 30-day
26-4 period:
26-5 (1) the penalty is subject to interest; and
26-6 (2) the department may refer the matter to the
26-7 attorney general for collection of the penalty and interest. [If
26-8 the person seeks judicial review of the violation, the amount of
26-9 the penalty, or both, the person, within the time provided by
26-10 Subsection (b), shall:]
26-11 [(1) send the amount of the penalty to the
26-12 commissioner for placement in an escrow account; or]
26-13 [(2) post with the commissioner a supersedeas bond in
26-14 a form approved by the commissioner for the amount of the penalty,
26-15 the bond to be effective until the judicial review of the order or
26-16 decision is final.]
26-17 [(d) A person who fails to comply with Subsection (c) waives
26-18 the right to judicial review, and the commissioner may request
26-19 enforcement by the attorney general.]
26-20 (e) If a penalty is reduced or not assessed, the
26-21 commissioner shall:
26-22 (1) remit to the person charged the appropriate amount
26-23 of any penalty payment plus accrued interest; or
26-24 (2) execute a release of the supersedeas bond if one
26-25 has been posted.
26-26 (f) Accrued interest on amounts collected after the
26-27 expiration of the 30-day period [remitted by the commissioner]
27-1 under Subsection (d) [(e)(1)] shall be paid:
27-2 (1) at a rate equal to the rate charged on loans to
27-3 depository institutions by the New York Federal Reserve Bank; and
27-4 (2) for the period beginning on the date the notice of
27-5 the commissioner's order is received by the person [penalty is paid
27-6 to the commissioner under Subsection (c)] and ending on the date
27-7 the penalty is paid [remitted].
27-8 [(g) A penalty collected under this section shall be
27-9 deposited to the credit of the nursing and convalescent home trust
27-10 fund established under Section 242.096.]
27-11 Sec. 242.070. APPLICATION OF OTHER LAW. (a) Except as
27-12 provided by Subsection (b), the [The] department may not assess a
27-13 penalty under both this subchapter and Section 32.021, Human
27-14 Resources Code, for a violation arising out of the same act or
27-15 failure to act.
27-16 (b) A penalty may be assessed under this chapter for an act
27-17 or failure to act that is a violation of this chapter and that also
27-18 is a violation of contractual obligations imposed under Chapter 32,
27-19 Human Resources Code. Not more than one penalty authorized by this
27-20 chapter may be assessed under this subsection for an occurrence of
27-21 an act or failure to act.
27-22 SECTION 1.19. Subchapter C, Chapter 242, Health and Safety
27-23 Code, is amended by adding Sections 242.071-242.076 to read as
27-24 follows:
27-25 Sec. 242.071. AMELIORATION OF VIOLATION. In lieu of
27-26 ordering payment of the administrative penalty under Section
27-27 242.069, the commissioner may require the person to use, under the
28-1 supervision of the department, any portion of the penalty to
28-2 ameliorate the violation or to improve services, other than
28-3 administrative services, in the institution affected by the
28-4 violation.
28-5 Sec. 242.072. RECOVERY OF COSTS. (a) If the attorney
28-6 general brings an action against a person under Section 242.063 or
28-7 242.065 or to enforce an administrative penalty assessed under this
28-8 subchapter, and an injunction is granted against the person or the
28-9 person is found liable for a civil or administrative penalty, the
28-10 attorney general may recover, on behalf of the attorney general and
28-11 the department, reasonable expenses and costs. The attorney
28-12 general is not entitled to recover reasonable expenses and costs on
28-13 behalf of the attorney general under this subsection unless the
28-14 court orders injunctive relief or payment of a civil or
28-15 administrative penalty or the amount of a civil or administrative
28-16 penalty is otherwise collected.
28-17 (b) For purposes of this section, "reasonable expenses and
28-18 costs" includes expenses incurred by the department and the
28-19 attorney general in the investigation, initiation, or prosecution
28-20 of an action, including reasonable investigative costs, court
28-21 costs, attorney's fees, witness fees, and deposition expenses.
28-22 (c) Costs and expenses collected under this section shall be
28-23 deposited to the credit of the general revenue fund and may be
28-24 appropriated only to the department and the attorney general.
28-25 Sec. 242.073. OTHER REMEDIES. (a) If the commissioner
28-26 finds that an institution has committed an act for which an
28-27 administrative penalty may be imposed under Section 242.066, the
29-1 commissioner may, as appropriate under the circumstances, order the
29-2 institution to immediately suspend admissions.
29-3 (b) A suspension of admissions ordered under Subsection (a)
29-4 is effective on the date a representative of the institution
29-5 receives notice of the order and of the manner in which the order
29-6 may be appealed. The department must provide an opportunity for a
29-7 hearing with respect to an appeal of the order not later than the
29-8 14th day after the date the suspension becomes effective.
29-9 (c) During the period that an institution is ordered to
29-10 suspend admissions, the institution shall post a notice of the
29-11 suspension on all doors providing ingress to and egress from the
29-12 institution. The notice shall be posted in the form required by
29-13 the department.
29-14 (d) A person commits an offense if the person knowingly:
29-15 (1) violates Subsection (c); or
29-16 (2) removes a notice posted under Subsection (c)
29-17 before the facility is allowed to admit residents.
29-18 (e) An offense under Subsection (d) is a Class C
29-19 misdemeanor.
29-20 Sec. 242.074. INVESTIGATIONS BY ATTORNEY GENERAL. (a) The
29-21 attorney general may conduct an investigation of an unlawful act
29-22 under this chapter, a rule imposed under this chapter, or another
29-23 law affecting residents under Subsection (b) if:
29-24 (1) the department requests the investigation; and
29-25 (2) the attorney general has reason to believe that:
29-26 (A) a person has information or custody or
29-27 control of documentary material relevant to the subject matter of
30-1 an investigation of the unlawful act;
30-2 (B) the person is committing, has committed, or
30-3 is about to commit the unlawful act; and
30-4 (C) it is in the public interest to conduct an
30-5 investigation to ascertain whether the person is committing, has
30-6 committed, or is about to commit the unlawful act.
30-7 (b) In investigating an unlawful act under this chapter, a
30-8 rule imposed under this chapter, or another law affecting
30-9 residents, the attorney general, in addition to investigations
30-10 undertaken under other authority, may:
30-11 (1) require a person to file on a prescribed form a
30-12 statement in writing, under oath or affirmation, as to all the
30-13 facts and circumstances concerning the alleged unlawful act and
30-14 other information considered necessary by the attorney general;
30-15 (2) examine under oath a person in connection with the
30-16 alleged unlawful act;
30-17 (3) execute in writing and serve on the person a civil
30-18 investigative demand under Section 242.075 that requires the person
30-19 to produce the documentary material and to permit inspection and
30-20 copying of the material; and
30-21 (4) make a reasonable and appropriate on-site
30-22 inspection and investigation of the affected institution.
30-23 Sec. 242.075. CIVIL INVESTIGATIVE DEMAND. (a) A civil
30-24 investigative demand must:
30-25 (1) state the rule or statute under which the alleged
30-26 unlawful act is being investigated and the general subject matter
30-27 of the investigation; and
31-1 (2) if the civil investigative demand requests
31-2 documentary material:
31-3 (A) describe the class or classes of documentary
31-4 material to be produced with reasonable specificity to fairly
31-5 indicate the documentary material demanded;
31-6 (B) prescribe a return date by which the
31-7 documentary material is to be produced; and
31-8 (C) identify an authorized employee of the
31-9 attorney general to whom the documentary material is to be made
31-10 available for inspection and copying.
31-11 (b) A civil investigative demand may require disclosure of
31-12 any documentary material that is discoverable under this chapter or
31-13 the Texas Rules of Civil Procedure.
31-14 (c) Service of a civil investigative demand may be made by:
31-15 (1) delivering an executed copy of the demand to the
31-16 person to be served or to a partner, officer, or agent authorized
31-17 by appointment or by law to receive service of process on behalf of
31-18 that person;
31-19 (2) delivering an executed copy of the demand to the
31-20 principal place of business in this state of the person to be
31-21 served; or
31-22 (3) mailing by registered or certified mail an
31-23 executed copy of the demand addressed to the person to be served at
31-24 the person's principal place of business in this state or, if the
31-25 person has no place of business in this state, to a person's
31-26 principal office or place of business.
31-27 (d) Documentary material demanded under this section must be
32-1 produced for inspection and copying during normal business hours at
32-2 the office of the attorney general, the principal place of business
32-3 of the person served, or a site to which the person served and the
32-4 attorney general agree.
32-5 (e) Except as ordered by a court for good cause shown, the
32-6 office of the attorney general may not produce for inspection or
32-7 copying or otherwise disclose the contents of documentary material
32-8 obtained under this section to a person other than an authorized
32-9 employee of the attorney general or the department without the
32-10 consent of the person who produced the documentary material. The
32-11 attorney general shall prescribe reasonable conditions allowing the
32-12 documentary material to be available for inspection and copying by
32-13 the person who produced the material or by an authorized
32-14 representative of that person. The attorney general may use the
32-15 documentary material or copies of it as the attorney general
32-16 determines necessary in the enforcement of this chapter and may
32-17 present the documentary material before a court.
32-18 (f) A person may file a petition, stating good cause, to
32-19 extend the return date for a demand for documentary material or
32-20 other information or to modify or set aside the demand. A petition
32-21 under this section must be filed in a district court of Travis
32-22 County before the earlier of:
32-23 (1) the return date specified in the demand; or
32-24 (2) the 20th day after the date the demand is served.
32-25 (g) Except as provided by court order, a person on whom a
32-26 civil investigative demand has been served under this section shall
32-27 comply with the terms of the demand.
33-1 (h) A person who has committed an unlawful act in relation
33-2 to any institution in this state has submitted to the jurisdiction
33-3 of this state, and personal service of a civil investigative demand
33-4 under this section may be made on the person outside of this state.
33-5 (i) This section does not limit the authority of the
33-6 attorney general to conduct investigations or to have access to a
33-7 person's documentary materials or other information under another
33-8 state or federal law, the Texas Rules of Civil Procedure, or the
33-9 Federal Rules of Civil Procedure.
33-10 (j) The attorney general may file in a district court of
33-11 Travis County a petition for an order to enforce a civil
33-12 investigative demand if:
33-13 (1) a person fails to comply with the demand; or
33-14 (2) copying and reproduction of documentary material
33-15 demanded cannot be satisfactorily accomplished and the person
33-16 refuses to surrender the documentary material.
33-17 (k) If a petition is filed under Subsection (j), the court
33-18 may determine the matter presented and may enter an order to
33-19 implement this section.
33-20 (l) Failure to comply with a final order entered under
33-21 Subsection (k) is punishable by contempt.
33-22 (m) A final order issued by a district court under
33-23 Subsection (k) is subject to appeal to the supreme court.
33-24 (n) A person who releases information to the attorney
33-25 general in accordance with a civil investigative demand under this
33-26 section is not civilly liable for surrendering confidential or
33-27 private material, including the health and medical records of
34-1 residents.
34-2 (o) An institution that refuses to comply with a civil
34-3 investigative demand relating to records of the institution or
34-4 residents is liable for a civil penalty of $10,000. Each day of
34-5 refusal constitutes a separate violation.
34-6 Sec. 242.076. USE OF WITHHELD EVIDENCE. An institution may
34-7 not use, in any action brought by the department or by the attorney
34-8 general based on the institution's violation of this chapter, rules
34-9 adopted under this chapter, or any other law, any evidence withheld
34-10 from the department or the attorney general during an inspection or
34-11 investigation under this chapter if the evidence:
34-12 (1) was requested by the department or the attorney
34-13 general; and
34-14 (2) is not privileged under the law of this state.
34-15 SECTION 1.20. Section 242.096(e), Health and Safety Code,
34-16 is amended to read as follows:
34-17 (e) Any unencumbered amount in the nursing and convalescent
34-18 home trust fund in excess of $500,000 [$100,000] at the end of each
34-19 fiscal year shall be transferred to the credit of the general
34-20 revenue fund and may be appropriated only to the department for its
34-21 use in administering and enforcing this chapter.
34-22 SECTION 1.21. Section 242.097, Health and Safety Code, is
34-23 amended to read as follows:
34-24 Sec. 242.097. ADDITIONAL LICENSE FEE. (a) In addition to
34-25 the license fee provided by Section 242.034, the department shall
34-26 adopt an annual fee to be charged and collected if the amount of
34-27 the nursing and convalescent home trust fund is less than $500,000
35-1 [$100,000]. The fee shall be deposited to the credit of the
35-2 nursing and convalescent home trust fund created by this
35-3 subchapter.
35-4 (b) The department shall set the fee for each nursing and
35-5 convalescent home at $1 for each licensed unit of capacity or bed
35-6 space in that home or in an amount necessary to provide $500,000
35-7 [$100,000] in the fund.
35-8 SECTION 1.22. Subchapter E, Chapter 242, Health and Safety
35-9 Code, is amended by adding Section 242.1225 to read as follows:
35-10 Sec. 242.1225. ADDITIONAL REPORTING REQUIREMENT. (a) The
35-11 board shall adopt rules requiring any person required to report
35-12 abuse or neglect under Section 242.122 to report other conduct or
35-13 conditions specified by the rules. The rules must require
35-14 reporting of conduct or conditions resulting in exploitation of
35-15 residents and accidental injury to or hospitalization of residents.
35-16 (b) A report made under this section must be made in the
35-17 manner specified by board rule.
35-18 SECTION 1.23. Section 242.126, Health and Safety Code, is
35-19 amended to read as follows:
35-20 Sec. 242.126. INVESTIGATION AND REPORT OF DEPARTMENT OR
35-21 DESIGNATED [RECEIVING] AGENCY. (a) The department or the
35-22 designated agency shall make a thorough investigation [promptly]
35-23 after receiving an [either the] oral or written report of abuse or
35-24 neglect under Section 242.122 or another complaint alleging abuse
35-25 or neglect.
35-26 (b) The primary purpose of the investigation is the
35-27 protection of the resident.
36-1 (c) The agency shall begin the investigation:
36-2 (1) within 24 hours of receipt of the report or other
36-3 allegation, if the report of abuse or neglect or other complaint
36-4 alleges that:
36-5 (A) a resident's health or safety is in imminent
36-6 danger;
36-7 (B) a resident has recently died because of
36-8 conduct alleged in the report of abuse or neglect or other
36-9 complaint; or
36-10 (C) a resident has been hospitalized or been
36-11 treated in an emergency room because of conduct alleged in the
36-12 report of abuse or neglect or other complaint; or
36-13 (2) before the end of the next working day after the
36-14 date of receipt of the report of abuse or neglect or other
36-15 complaint, if the report or complaint alleges the existence of
36-16 circumstances that could result in abuse or neglect and that could
36-17 place a resident's health or safety in imminent danger.
36-18 (d) The department shall adopt rules governing the conduct
36-19 of investigations, including procedures to ensure that the
36-20 complainant and the resident, the resident's next of kin, and any
36-21 person designated to receive information concerning the resident
36-22 receive periodic information regarding the investigation.
36-23 (e) In investigating the report of abuse or neglect or other
36-24 complaint, the investigator for the investigating agency shall:
36-25 (1) make an unannounced visit to the institution to
36-26 determine the nature and cause of the alleged abuse or neglect of
36-27 the resident;
37-1 (2) interview each available witness identified by any
37-2 source as having personal knowledge relevant to the report of abuse
37-3 or neglect or other complaint;
37-4 (3) personally inspect any physical circumstance that
37-5 is relevant and material to the report of abuse or neglect or other
37-6 complaint and that may be objectively observed; and
37-7 (4) write an investigation report that includes:
37-8 (A) the investigator's personal observations;
37-9 (B) a review of relevant documents and records;
37-10 (C) a summary of each witness statement; and
37-11 (D) a statement of the factual basis for the
37-12 findings for each incident or problem alleged in the report or
37-13 other allegation.
37-14 (f) An investigator for an investigating agency shall
37-15 conduct an interview under Subsection (e)(2) in private unless the
37-16 witness expressly requests that the interview not be private.
37-17 (g) Not later than the 30th day after the date the
37-18 investigation is complete, the investigator shall prepare the
37-19 written report required by Subsection (e). The department shall
37-20 make the investigation report available to the public on request
37-21 after the date the department's letter of determination is
37-22 complete. The department shall delete from any copy made available
37-23 to the public the name of:
37-24 (1) any resident;
37-25 (2) the person making the report of abuse or neglect
37-26 or other complaint; and
37-27 (3) an individual interviewed in the investigation.
38-1 (h) In the investigation, the department or the designated
38-2 agency shall determine:
38-3 (1) the nature, extent, and cause of the abuse or
38-4 neglect;
38-5 (2) the identity of the person responsible for the
38-6 abuse or neglect;
38-7 (3) the names and conditions of the other residents;
38-8 (4) an evaluation of the persons responsible for the
38-9 care of the residents;
38-10 (5) the adequacy of the institution environment; and
38-11 (6) any other information required by the department.
38-12 (i) [(d) The investigation may include a visit to the
38-13 resident's institution and an interview with the resident if these
38-14 actions are determined by the department to be appropriate.]
38-15 [(e)] If the department attempts to carry out an on-site
38-16 investigation and it is shown that admission to the institution, or
38-17 any place where the resident is located, cannot be obtained, a
38-18 probate or county court shall order the person responsible for the
38-19 care of the resident or the person in charge of a place where the
38-20 resident is located to allow entrance for the interview and
38-21 investigation.
38-22 (j) [(f)] Before the completion of the investigation the
38-23 department shall file a petition for temporary care and protection
38-24 of the resident if the department determines that immediate removal
38-25 is necessary to protect the resident from further abuse or neglect.
38-26 (k) [(g)] The department or the designated agency shall make
38-27 a complete final written report of the investigation and submit the
39-1 report and its recommendations to the district attorney and, if a
39-2 law enforcement agency has not investigated the report of abuse or
39-3 neglect or other complaint, to the appropriate law enforcement
39-4 agency.
39-5 SECTION 1.24. Section 242.127, Health and Safety Code, is
39-6 amended to read as follows:
39-7 Sec. 242.127. CONFIDENTIALITY. A report, record, or working
39-8 paper used or developed in an investigation made under this
39-9 subchapter and the name of any person making a report under this
39-10 subchapter are [is] confidential and may be disclosed only for
39-11 purposes consistent with the rules adopted by the board or the
39-12 designated agency.
39-13 SECTION 1.25. Section 242.133(a), Health and Safety Code, is
39-14 amended to read as follows:
39-15 (a) A person has a cause of action against an institution,
39-16 or the owner or employee of the institution, that suspends or
39-17 terminates the employment of the person or otherwise disciplines or
39-18 discriminates or retaliates against the person for making a report
39-19 or complaint under this chapter to [reporting the abuse or neglect
39-20 of a resident to the person's supervisors,] the department[,] or a
39-21 law enforcement agency, for reporting the abuse or neglect or other
39-22 complaint to the person's supervisors, or for initiating or
39-23 cooperating in any investigation or proceeding of a governmental
39-24 entity relating to care, services, or conditions at the
39-25 institution.
39-26 SECTION 1.26. Section 242.1335(a), Health and Safety Code,
39-27 is amended to read as follows:
40-1 (a) An institution may not retaliate or discriminate against
40-2 a resident if the resident, the resident's guardian, or any other
40-3 person makes a complaint or files a grievance concerning the
40-4 facility or reports [abuse or neglect] in accordance with this
40-5 subchapter.
40-6 SECTION 1.27. Subchapter H, Chapter 242, Health and Safety
40-7 Code, as added by Section 5, Chapter 1049, Acts of the 74th
40-8 Legislature, Regular Session, 1995, is redesignated as Subchapter J
40-9 and the subchapter heading is amended to read as follows:
40-10 SUBCHAPTER J [H]. ARBITRATION OF CERTAIN DISPUTES
40-11 SECTION 1.28. Section 242.253(c), Health and Safety Code, is
40-12 amended to read as follows:
40-13 (c) The party that elects arbitration [department] shall pay
40-14 the cost of the arbitration [if the department elects the
40-15 arbitration. The cost of the arbitration shall be shared equally
40-16 by the department and the institution if the institution elects the
40-17 arbitration]. The total fees and expenses paid for an arbitrator
40-18 for a day may not exceed $500.
40-19 SECTION 1.29. Sections 242.267 and 242.268, Health and
40-20 Safety Code, are amended to read as follows:
40-21 Sec. 242.267. COURT VACATING ORDER. (a) On a finding
40-22 described by Subsection (b) [application of the institution], a
40-23 court shall:
40-24 (1) on application of an institution, vacate an
40-25 arbitrator's order with respect to an arbitration conducted at the
40-26 election of the department; or
40-27 (2) on application of the department, vacate an
41-1 arbitrator's order with respect to an arbitration conducted at the
41-2 election of an institution.
41-3 (b) A court shall vacate an arbitrator's order under
41-4 Subsection (a) only on a finding that:
41-5 (1) the order was procured by corruption, fraud, or
41-6 misrepresentation;
41-7 (2) the decision of the arbitrator was arbitrary or
41-8 capricious and against the weight of the evidence; or
41-9 (3) the order exceeded the jurisdiction of the
41-10 arbitrator under Section 242.264(a).
41-11 (c) [(b)] If the order is vacated, the dispute shall be
41-12 remanded to the department for another arbitration proceeding.
41-13 (d) [(c)] A suit to vacate an arbitrator's order must be
41-14 filed not later than the 30th day after:
41-15 (1) the date of the award; or
41-16 (2) the date the institution or department knew or
41-17 should have known of a basis for suit under this section, but in no
41-18 event later than the first anniversary of the date of the order.
41-19 (e) [(d)] Venue for a suit to vacate an arbitrator's order
41-20 is in the county in which the arbitration was conducted.
41-21 Sec. 242.268. NO ARBITRATION IN CASE OF EMERGENCY ORDER OR
41-22 CLOSING ORDER. This subchapter does not apply to an order issued
41-23 under Section 242.062 or 242.073, and neither the department nor
41-24 the institution may elect to arbitrate a dispute if the subject
41-25 matter of the dispute is part of the basis for suspension of an
41-26 institution's license or issuance of a closing order under Section
41-27 242.062 or suspension of admissions under Section 242.073.
42-1 SECTION 1.30. Chapter 242, Health and Safety Code, is
42-2 amended by redesignating Subchapter F as Subchapter N and adding a
42-3 new Subchapter F and Subchapters K, L, and M to read as follows:
42-4 SUBCHAPTER F. MEDICAL, NURSING, AND DENTAL SERVICES
42-5 OTHER THAN ADMINISTRATION OF MEDICATION
42-6 Sec. 242.151. PHYSICIAN SERVICES. (a) An institution shall
42-7 have at least one medical director who is licensed in this state.
42-8 (b) The medical director is responsible for a resident's
42-9 assessment and comprehensive plan of care and shall review, revise,
42-10 and sign orders relating to any medication or treatment in the plan
42-11 of care.
42-12 (c) Each resident has the right to choose a personal
42-13 attending physician.
42-14 Sec. 242.152. PHYSICIAN SERVICES FOR RESIDENTS YOUNGER THAN
42-15 18 YEARS OF AGE. (a) An institution shall use appropriate
42-16 pediatric consultative services for a resident younger than 18
42-17 years of age, in accordance with the resident's assessment and
42-18 comprehensive plan of care.
42-19 (b) A pediatrician or other physician with training or
42-20 expertise in the clinical care of children with complex medical
42-21 needs shall participate in all aspects of the resident's medical
42-22 care.
42-23 Sec. 242.153. DIRECTOR OF NURSING SERVICES. An institution
42-24 shall have a director of nursing services who shall be a registered
42-25 nurse. The director of nursing services is responsible for:
42-26 (1) coordinating each resident's comprehensive plan of
42-27 care; and
43-1 (2) ensuring that only personnel with an appropriate
43-2 license or permit administer medication.
43-3 Sec. 242.154. NURSING SERVICES. (a) An institution shall
43-4 provide the nursing care required to allow each resident to achieve
43-5 and maintain the highest possible degree of function and
43-6 independence medically possible.
43-7 (b) The institution shall maintain sufficient staff to
43-8 provide nursing and related services:
43-9 (1) in accordance with each resident's plan of care;
43-10 and
43-11 (2) to obtain and maintain the physical, mental, and
43-12 psychosocial functions of each resident at the highest practicable
43-13 level, as determined by the resident's assessment and plan of care.
43-14 Sec. 242.155. PEDIATRIC NURSING SERVICES. An institution
43-15 shall ensure that:
43-16 (1) nursing services for a resident younger than 18
43-17 years of age are provided by a staff member who has been instructed
43-18 and has demonstrated competence in the care of children; and
43-19 (2) consultative pediatric nursing services are
43-20 available to the staff if the institution has a resident younger
43-21 than 18 years of age.
43-22 Sec. 242.156. REQUIRED MEDICAL EXAMINATION. (a) Except as
43-23 required by federal law, the department shall require that each
43-24 resident be given at least one medical examination each year.
43-25 (b) The department shall specify the details of the
43-26 examination.
43-27 Sec. 242.157. DENTAL EXAMINATION. (a) The department shall
44-1 require that each resident of an institution or the resident's
44-2 custodian be asked at least once each year if the resident desires
44-3 a dental examination and possible treatment at the resident's own
44-4 expense.
44-5 (b) Each institution shall be encouraged to use all
44-6 reasonable efforts to arrange for a dental examination for each
44-7 resident who desires one.
44-8 (c) The institution is not liable for any costs relating to
44-9 a dental examination under this section.
44-10 SUBCHAPTER K. QUALITY OF CARE
44-11 Sec. 242.401. QUALITY OF LIFE. (a) An institution shall
44-12 care for its residents in a manner and in an environment that
44-13 promotes maintenance or enhancement of each resident's quality of
44-14 life and dignity. An institution that admits a resident who is
44-15 younger than 18 years of age must provide care to meet the
44-16 resident's unique medical and developmental needs.
44-17 (b) A resident of an institution has the right to reside and
44-18 receive services in the institution with reasonable accommodation
44-19 of individual needs, except to the extent the health or safety of
44-20 the resident or other residents would be endangered.
44-21 Sec. 242.402. QUALITY OF CARE. An institution shall provide
44-22 to each resident the necessary care or service needed to enable the
44-23 resident to attain and maintain the highest practicable level of
44-24 physical, emotional, and social well-being, in accordance with:
44-25 (1) each resident's individual assessment and
44-26 comprehensive plan of care; and
44-27 (2) the rules and standards relating to quality of
45-1 care adopted under this chapter.
45-2 Sec. 242.403. STANDARDS FOR QUALITY OF LIFE AND QUALITY OF
45-3 CARE. (a) The department shall adopt standards to implement
45-4 Sections 242.401 and 242.402. Those standards must, at a minimum,
45-5 address:
45-6 (1) admission of residents;
45-7 (2) care of residents younger than 18 years of age;
45-8 (3) an initial assessment and comprehensive plan of
45-9 care for residents;
45-10 (4) transfer or discharge of residents;
45-11 (5) clinical records;
45-12 (6) infection control at the institution;
45-13 (7) rehabilitative services;
45-14 (8) food services;
45-15 (9) social services and activities;
45-16 (10) prevention of pressure sores;
45-17 (11) bladder and bowel retraining programs for
45-18 residents;
45-19 (12) prevention of complications from nasogastric or
45-20 gastrotomy tube feedings;
45-21 (13) relocation of residents within an institution;
45-22 (14) postmortem procedures; and
45-23 (15) appropriate use of chemical and physical
45-24 restraints.
45-25 (b) The department may adopt standards in addition to those
45-26 required by Subsection (a) to implement Sections 242.401 and
45-27 242.402.
46-1 Sec. 242.404. POLICIES, PROCEDURES, AND PRACTICES FOR
46-2 QUALITY OF CARE AND QUALITY OF LIFE. (a) Each institution shall
46-3 comply with the standards adopted under this subchapter and shall
46-4 develop written operating policies to implement those standards.
46-5 (b) The department shall adopt standards governing the
46-6 subject matter to be addressed by the policies and procedures and
46-7 the manner in which each institution shall implement the policies
46-8 and procedures.
46-9 (c) The policies and procedures must be available to each
46-10 physician, staff member, resident, and resident's next of kin or
46-11 guardian and to the public.
46-12 (Sections 242.405-242.500 reserved for expansion
46-13 SUBCHAPTER L. RIGHTS OF RESIDENTS
46-14 Sec. 242.501. RESIDENT'S RIGHTS. (a) The department by
46-15 rule shall adopt a statement of the rights of a resident. The
46-16 statement must reflect the unique circumstances of a resident at an
46-17 institution. At a minimum, the statement of the rights of a
46-18 resident must address the resident's constitutional, civil, and
46-19 legal rights and the resident's right:
46-20 (1) to be free from abuse and exploitation;
46-21 (2) to safe, decent, and clean conditions;
46-22 (3) to be treated with courtesy, consideration, and
46-23 respect;
46-24 (4) to not be subjected to discrimination based on
46-25 age, race, religion, sex, nationality, or disability and to
46-26 practice the resident's own religious beliefs;
46-27 (5) to privacy, including privacy during visits and
47-1 telephone calls;
47-2 (6) to complain about the institution and to organize
47-3 or participate in any program that presents residents' concerns to
47-4 the administrator of the institution;
47-5 (7) to have information about the resident in the
47-6 possession of the institution maintained as confidential;
47-7 (8) to retain the services of a physician the resident
47-8 chooses, at the resident's own expense or through a health care
47-9 plan, and to have a physician explain to the resident, in language
47-10 that the resident understands, the resident's complete medical
47-11 condition, the recommended treatment, and the expected results of
47-12 the treatment;
47-13 (9) to participate in developing a plan of care, to
47-14 refuse treatment, and to refuse to participate in experimental
47-15 research;
47-16 (10) to be free from the use of restraints;
47-17 (11) to a written statement or admission agreement
47-18 describing the services provided by the institution and the related
47-19 charges;
47-20 (12) to manage the resident's own finances or to
47-21 delegate that responsibility to another person;
47-22 (13) to access money and property that the resident
47-23 has deposited with the institution and to an accounting of the
47-24 resident's money and property that are deposited with the
47-25 institution and of all financial transactions made with or on
47-26 behalf of the resident;
47-27 (14) to keep and use personal property, secure from
48-1 theft or loss;
48-2 (15) to not be relocated within the institution,
48-3 except in accordance with standards adopted by the department under
48-4 Section 242.403;
48-5 (16) to receive visitors;
48-6 (17) to receive unopened mail and to receive
48-7 assistance in reading or writing correspondence;
48-8 (18) to participate in activities inside and outside
48-9 the institution;
48-10 (19) to wear the resident's own clothes;
48-11 (20) to discharge himself or herself from the
48-12 institution unless the resident is an adjudicated mental
48-13 incompetent; and
48-14 (21) to not be discharged from the institution except
48-15 as provided in the standards adopted by the department under
48-16 Section 242.403.
48-17 (b) A right of a resident may be restricted only to the
48-18 extent necessary to protect:
48-19 (1) a right of another resident, particularly a right
48-20 of the other resident relating to privacy and confidentiality; or
48-21 (2) the resident or another person from danger or
48-22 harm.
48-23 (c) The department may adopt rights of residents in addition
48-24 to those required by Subsection (a) and may consider additional
48-25 rights applicable to residents in other jurisdictions.
48-26 Sec. 242.502. RIGHTS CUMULATIVE. The rights established
48-27 under this subchapter are cumulative of the rights established
49-1 under any other law.
49-2 Sec. 242.503. DUTIES OF INSTITUTION. (a) An institution
49-3 shall develop and implement policies to protect resident rights.
49-4 (b) An institution and the staff of an institution may not
49-5 violate a right adopted under this subchapter.
49-6 Sec. 242.504. INFORMATION ABOUT RESIDENT'S RIGHTS AND
49-7 VIOLATIONS. (a) An institution shall inform each resident and the
49-8 resident's next of kin or guardian of the rights adopted under this
49-9 subchapter and shall explain the rights to the resident and the
49-10 resident's next of kin or guardian. The institution shall provide
49-11 a written statement of:
49-12 (1) all of the resident's rights; and
49-13 (2) any additional rules adopted by the institution
49-14 involving resident rights and responsibilities.
49-15 (b) The institution shall provide a copy of the written
49-16 statement to:
49-17 (1) each resident;
49-18 (2) the next of kin or guardian of each resident; and
49-19 (3) each member of the staff of the institution.
49-20 (c) The institution shall maintain a copy of the statement,
49-21 signed by the resident or the resident's next of kin or guardian,
49-22 in the institution's records.
49-23 (d) The institution shall include the written statement in
49-24 the informational materials required to be made available under
49-25 Section 242.042.
49-26 (e) An institution that has been cited by the department for
49-27 a violation of any right adopted under this subchapter shall
50-1 include a notice of the citation in the informational materials
50-2 required by Section 242.042(a)(8). The notice of citation must
50-3 continue to be included in the informational materials until any
50-4 regulatory action or proceeding with respect to the violation is
50-5 complete and the department has determined that the institution is
50-6 in full compliance with the applicable requirement.
50-7 (Sections 242.505-242.550 reserved for expansion
50-8 SUBCHAPTER M. COMPLAINT INSPECTIONS
50-9 Sec. 242.551. COMPLAINT REQUESTING INSPECTION. (a) A
50-10 person may request an inspection of an institution in accordance
50-11 with this chapter by making a complaint notifying the department of
50-12 an alleged violation of law and requesting an inspection.
50-13 (b) The department shall encourage a person who makes an
50-14 oral complaint under Subsection (a) to submit a written, signed
50-15 complaint.
50-16 Sec. 242.552. DISCLOSURE OF SUBSTANCE OF COMPLAINT. The
50-17 department may not provide information to the institution relating
50-18 to the substance of a complaint made under this subchapter before
50-19 an on-site inspection is begun in accordance with this subchapter.
50-20 Sec. 242.553. CONFIDENTIALITY. The name of the person
50-21 making the complaint is confidential and may not be released to the
50-22 institution or any other person, unless the person making the
50-23 complaint specifically requests that the person's name be released.
50-24 Sec. 242.554. PRELIMINARY REVIEW OF COMPLAINT; INSPECTION.
50-25 (a) On receipt of a complaint under this subchapter, the
50-26 department shall make a preliminary review of the complaint.
50-27 (b) Within a reasonable time after receipt of the complaint,
51-1 the department shall make an on-site inspection or otherwise
51-2 respond to the complaint unless the department determines that:
51-3 (1) the person making the complaint made the complaint
51-4 to harass the institution;
51-5 (2) the complaint is without any reasonable basis; or
51-6 (3) sufficient information in the possession of the
51-7 department indicates that corrective action has been taken.
51-8 (c) The department shall promptly notify the person making
51-9 the complaint of the department's proposed course of action under
51-10 Subsection (b) and the reasons for that action.
51-11 (Sections 242.555-242.600 reserved for expansion
51-12 SUBCHAPTER N [F]. ADMINISTRATION OF MEDICATION
51-13 [MEDICAL AND DENTAL CARE]
51-14 Sec. 242.601. MEDICATION ADMINISTRATION. (a) An
51-15 institution must establish medication administration procedures to
51-16 ensure that:
51-17 (1) medications to be administered are checked against
51-18 the orders of:
51-19 (A) a physician; or
51-20 (B) an advanced practice nurse issued in
51-21 accordance with protocols developed jointly by the physician and
51-22 the advanced practice nurse;
51-23 (2) the resident is identified before the
51-24 administration of a medication;
51-25 (3) each resident's clinical record includes an
51-26 individual medication record in which the dose of medication
51-27 administered is properly recorded by the person who administered
52-1 the medication;
52-2 (4) medications and biologicals are prepared and
52-3 administered to a resident by the same individual, except under
52-4 unit-of-use package distribution systems; and
52-5 (5) a medication prescribed for one resident is not
52-6 administered to any other person.
52-7 (b) The medication administration procedures must comply
52-8 with this subchapter and the rules adopted by the board under
52-9 Section 242.608.
52-10 Sec. 242.602. PHARMACIST SERVICES. (a) An institution
52-11 shall:
52-12 (1) employ a licensed pharmacist responsible for
52-13 operating the institution's pharmacy; or
52-14 (2) contract, in writing, with a licensed pharmacist
52-15 to advise the institution on ordering, storage, administration, and
52-16 disposal of medications and biologicals and related recordkeeping.
52-17 (b) The institution shall allow residents to choose their
52-18 pharmacy provider from any pharmacy that is qualified to perform
52-19 the services.
52-20 Sec. 242.603. STORAGE AND DISPOSAL OF MEDICATIONS. (a) An
52-21 institution shall store medications under appropriate conditions of
52-22 sanitation, temperature, light, moisture, ventilation, segregation,
52-23 and security. Poisons, medications used externally, and
52-24 medications taken internally shall be stored on separate shelves or
52-25 in separate cabinets. Medication stored in a refrigerator
52-26 containing other items shall be kept in a separate compartment with
52-27 appropriate security. The institution shall store a medication in
53-1 a locked area that must remain locked unless an individual
53-2 authorized to distribute the medication is present.
53-3 (b) The institution shall properly dispose of:
53-4 (1) any medication that is discontinued or outdated,
53-5 except as provided by Subsection (c); and
53-6 (2) any medication in a container with a worn or
53-7 illegible label or missing a label.
53-8 (c) A discontinued medication that has not been destroyed
53-9 must be reinstated if reordered.
53-10 (d) An institution shall release the medications of a
53-11 resident who is transferred directly to another institution or who
53-12 is discharged to home or to the new institution or to the resident
53-13 or resident's next of kin or guardian, as appropriate. The
53-14 institution may release a medication to a resident only on the
53-15 written or verbal authorization of the attending physician.
53-16 Sec. 242.604. REPORTS OF MEDICATION ERRORS AND ADVERSE
53-17 REACTIONS. An institution's nursing staff must report medication
53-18 errors and adverse reactions to the resident's physician in a
53-19 timely manner, as warranted by an assessment of the resident's
53-20 condition, and record the errors and reactions in the resident's
53-21 clinical record.
53-22 Sec. 242.605. MEDICATION REFERENCE SOURCES. An institution
53-23 shall maintain updated medication reference texts or sources. If
53-24 the institution has a resident younger than 18 years of age, these
53-25 texts or sources must include information on pediatric medications,
53-26 dosages, sites, routes, techniques of administration of
53-27 medications, desired effects, and possible side effects.
54-1 Sec. 242.606 [242.151]. PERMITS TO ADMINISTER MEDICATION. A
54-2 person may not administer medication to a resident unless the
54-3 person:
54-4 (1) holds a license under state law that authorizes
54-5 the person to administer medication; or
54-6 (2) holds a permit issued under Section 242.610
54-7 [242.154] and acts under the authority of a person who holds a
54-8 license under state law that authorizes the person to administer
54-9 medication.
54-10 Sec. 242.607 [242.1511]. EXEMPTIONS FOR NURSING STUDENTS AND
54-11 MEDICATION AIDE TRAINEES. (a) Sections 242.606 and 242.614
54-12 [242.151 and 242.158] do not apply to:
54-13 (1) a graduate nurse holding a temporary permit issued
54-14 by the Board of Nurse Examiners;
54-15 (2) a student enrolled in an accredited school of
54-16 nursing or program for the education of registered nurses who is
54-17 administering medications as part of the student's clinical
54-18 experience;
54-19 (3) a graduate vocational nurse holding a temporary
54-20 permit issued by the Board of Vocational Nurse Examiners;
54-21 (4) a student enrolled in an accredited school of
54-22 vocational nursing or program for the education of vocational
54-23 nurses who is administering medications as part of the student's
54-24 clinical experience; or
54-25 (5) a trainee in a medication aide training program
54-26 approved by the department under this subchapter who is
54-27 administering medications as part of the trainee's clinical
55-1 experience.
55-2 (b) The administration of medications by persons exempted
55-3 under Subdivisions (1) through (4) of Subsection (a) is governed by
55-4 the terms of the memorandum of understanding executed by the
55-5 department and the Board of Nurse Examiners or the department and
55-6 the Board of Vocational Nurse Examiners, as appropriate.
55-7 Sec. 242.608 [242.152]. RULES FOR ADMINISTRATION OF
55-8 MEDICATION. The board by rule shall establish:
55-9 (1) minimum requirements for the issuance, denial,
55-10 renewal, suspension, emergency suspension, and revocation of a
55-11 permit to administer medication to a resident;
55-12 (2) curricula to train persons to administer
55-13 medication to a resident;
55-14 (3) minimum standards for the approval of programs to
55-15 train persons to administer medication to a resident and for
55-16 rescinding approval; and
55-17 (4) the acts and practices that are allowed or
55-18 prohibited to a permit holder.
55-19 Sec. 242.609 [242.153]. TRAINING PROGRAMS TO ADMINISTER
55-20 MEDICATION. (a) An application for the approval of a training
55-21 program must be made to the department on a form and under rules
55-22 prescribed by the board.
55-23 (b) The department shall approve a training program that
55-24 meets the minimum standards adopted under Section 242.608
55-25 [242.152]. The department may review the approval annually.
55-26 Sec. 242.610 [242.154]. ISSUANCE AND RENEWAL OF PERMIT TO
55-27 ADMINISTER MEDICATION. (a) To be issued or to have renewed a
56-1 permit to administer medication, a person shall apply to the
56-2 department on a form prescribed and under rules adopted by the
56-3 board.
56-4 (b) The department shall prepare and conduct, at the site of
56-5 the training program, an examination for the issuance of a permit.
56-6 (c) The department shall require a permit holder to
56-7 satisfactorily complete a continuing education course approved by
56-8 the department for renewal of the permit.
56-9 (d) The department shall issue a permit or renew a permit to
56-10 an applicant who:
56-11 (1) meets the minimum requirements adopted under
56-12 Section 242.608 [242.152];
56-13 (2) successfully completes the examination or the
56-14 continuing education requirements; and
56-15 (3) pays a nonrefundable application fee determined by
56-16 the board.
56-17 (e) A permit is valid for one year and is not transferable.
56-18 (f) The department may issue a permit to an employee of a
56-19 state or federal agency listed in Section 242.003(a)(6)(B).
56-20 Sec. 242.611 [242.155]. FEES FOR ISSUANCE AND RENEWAL OF
56-21 PERMIT TO ADMINISTER MEDICATION. [(a)] The board shall set the
56-22 fees in amounts reasonable and necessary to recover the amount
56-23 projected by the department as required to administer its
56-24 functions. The fees may not exceed:
56-25 (1) $25 for a combined permit application and
56-26 examination fee; and
56-27 (2) $15 for a renewal permit application fee.
57-1 [(b) Fees received under this section may only be
57-2 appropriated to the department to defray costs incurred under this
57-3 section.]
57-4 Sec. 242.612 [242.156]. VIOLATION OF PERMITS TO ADMINISTER
57-5 MEDICATION. (a) For the violation of this subchapter or a rule
57-6 adopted under this subchapter, the department may:
57-7 (1) suspend, revoke, or refuse to renew a permit;
57-8 (2) suspend a permit in an emergency; or
57-9 (3) rescind training program approval.
57-10 (b) Except as provided by Section 242.613 [242.157], the
57-11 procedure by which the department takes a disciplinary action and
57-12 the procedure by which a disciplinary action is appealed are
57-13 governed by the department's rules for a formal hearing and by
57-14 Chapter 2001, Government Code.
57-15 Sec. 242.613 [242.157]. EMERGENCY SUSPENSION OF PERMITS TO
57-16 ADMINISTER MEDICATION. (a) The department shall issue an order to
57-17 suspend a permit issued under this subchapter if the department has
57-18 reasonable cause to believe that the conduct of the permit holder
57-19 creates an imminent danger to the public health or safety.
57-20 (b) An emergency suspension is effective immediately without
57-21 a hearing on notice to the permit holder.
57-22 (c) If requested in writing by a permit holder whose permit
57-23 is suspended, the department shall conduct a hearing to continue,
57-24 modify, or rescind the emergency suspension.
57-25 (d) The hearing must be held not earlier than the 10th day
57-26 or later than the 30th day after the date on which the hearing
57-27 request is received.
58-1 (e) The hearing and an appeal from a disciplinary action
58-2 related to the hearing are governed by the department's rules for a
58-3 formal hearing and Chapter 2001, Government Code.
58-4 Sec. 242.614 [242.158]. ADMINISTRATION OF MEDICATION;
58-5 CRIMINAL PENALTY. (a) A person commits an offense if the person
58-6 knowingly administers medication to a resident and the person:
58-7 (1) does not hold a license under state law that
58-8 authorizes the person to administer medication; or
58-9 (2) does not hold a permit issued by the department
58-10 under this subchapter.
58-11 (b) An offense under this section is a Class B misdemeanor.
58-12 [Sec. 242.159. REQUIRED MEDICAL EXAMINATION. (a) The
58-13 department shall require each resident to be given at least one
58-14 medical examination each year.]
58-15 [(b) The department shall specify the details of the
58-16 examination.]
58-17 [Sec. 242.160. DENTAL EXAMINATION. (a) The department
58-18 shall require that each resident of a nursing home or custodial
58-19 care home or the resident's custodian be asked at least once each
58-20 year if the resident desires a dental examination and possible
58-21 treatment at the resident's own expense.]
58-22 [(b) Each nursing home or custodial care home shall be
58-23 encouraged to use all reasonable efforts to arrange for a dental
58-24 examination for each resident who desires one.]
58-25 [(c) The nursing home or custodial care home is not liable
58-26 for any costs relating to a dental examination under this section.]
58-27 Sec. 242.615 [242.161]. EMERGENCY MEDICATION KIT. (a) An
59-1 institution licensed under this chapter is entitled to maintain a
59-2 supply of controlled substances in an emergency medication kit for
59-3 a resident's emergency medication needs.
59-4 (b) The controlled substances shall be labeled in accordance
59-5 with all applicable state and federal food and drug laws, including
59-6 Chapter 481 (Texas Controlled Substances Act).
59-7 (c) The board shall adopt rules governing the amount, type,
59-8 and procedure for use of the controlled substances in the emergency
59-9 medication kit. The storage of the controlled substances in the
59-10 kit is under the supervision of the consultant pharmacist.
59-11 (d) The administration of the controlled substances in the
59-12 emergency medication kit shall comply with all applicable laws.
59-13 SECTION 1.31. Section 222.0255, Health and Safety Code, is
59-14 amended by adding Subsection (e) to read as follows:
59-15 (e) Chapter 242 establishes the minimum licensing standards
59-16 for an institution. The licensing standards adopted by the
59-17 department under this chapter shall be adopted subject to Section
59-18 242.037(b) and must comply with Section 242.037(c) and the other
59-19 provisions of Chapter 242.
59-20 SECTION 1.32. Section 242.012, Health and Safety Code, is
59-21 repealed.
59-22 SECTION 1.33. The Texas Board of Human Services shall adopt
59-23 rules as necessary to implement the change in law made by this
59-24 article not later than January 1, 1998.
59-25 SECTION 1.34. The change in law made by this article to
59-26 Section 242.097, Health and Safety Code, applies only to a license
59-27 fee originally due on or after the effective date of this Act. A
60-1 license fee that was originally due before the effective date of
60-2 this Act is governed by the law as it existed immediately before
60-3 the effective date of this Act, and that law is continued in effect
60-4 for that purpose.
60-5 SECTION 1.35. Except as provided by Section 1.34 of this
60-6 article, this article applies only to conduct occurring on or after
60-7 January 1, 1998. Conduct occurring before January 1, 1998, is
60-8 governed by the law as it existed immediately before September 1,
60-9 1997, and that law is continued in effect for that purpose.
60-10 ARTICLE 2. GOVERNMENT FUNDING OF NURSING SERVICES
60-11 SECTION 2.01. Section 32.021, Human Resources Code, is
60-12 amended by amending Subsections (d), (h), (i), (j), and (k) and
60-13 adding Subsections (l), (m), (n), and (o) to read as follows:
60-14 (d) The department shall [may] include in its contracts for
60-15 the delivery of medical assistance by nursing facilities provisions
60-16 for monetary penalties to be assessed for contract violations as
60-17 required by 42 U.S.C. Section 1396r, including without limitation
60-18 the Omnibus Budget Reconciliation Act (OBRA), P.L. 100-203, Nursing
60-19 Home Reform Amendments of 1987, provided that the department
60-20 shall[:]
60-21 [(1) establish a penalties and sanctions advisory
60-22 committee of consumer advocates and long-term care providers to
60-23 help develop and monitor an appropriate system for assessing
60-24 penalties; and]
60-25 [(2)] develop rules [in accordance with Subsection
60-26 (i)] to adjudicate claims in contested cases.
60-27 (h) The [Except to the extent necessary to implement rights
61-1 granted to an elderly individual under Chapter 102, the] rules
61-2 adopted by the department for certification of nursing facilities
61-3 as being in compliance with the requirements for participation in
61-4 the state Medicaid program must comply with the more stringent of
61-5 state or [may not be different from the standards imposed by]
61-6 federal law. The [This subsection does not prevent the] department
61-7 shall use appropriate [from using any] civil, administrative, or
61-8 criminal remedies [remedy] authorized by state or federal law with
61-9 respect to a facility that is in violation of a certification or
61-10 licensing requirement.
61-11 (i) The rules adopted under Subsection (d) [(d)(2)] must
61-12 provide for[:]
61-13 [(1)] an informal dispute resolution process that
61-14 provides for adjudication by an appropriate disinterested person in
61-15 a regional office of the department and an informal appeal to the
61-16 department's central office[;]
61-17 [(2) an administrative appeals process under Chapter
61-18 2001, Government Code; and]
61-19 [(3) the arbitration process described by Subsection
61-20 (k)].
61-21 (j) Except as provided by Subsections (k) and (l), a
61-22 department survey, complaint investigation, incident investigation,
61-23 or survey report [A finding by the department] that documents that
61-24 an institution has violated a standard for participation in the
61-25 state Medicaid program, or the assessment of a monetary penalty by
61-26 the department or the payment of a monetary penalty by the
61-27 institution [under this section], is not admissible as evidence in
62-1 a civil action to prove that the institution has committed a
62-2 violation.
62-3 (k) Subsection (j) [This subsection] does not:
62-4 (1) apply in an enforcement action or related
62-5 proceeding in which the state or an agency or political subdivision
62-6 of the state is a party;
62-7 (2) prohibit or limit the testimony of a department
62-8 surveyor or investigator in a civil action; or
62-9 (3) bar the admission into evidence in a civil action
62-10 of a written finding, survey report, complaint investigation,
62-11 incident investigation, or inspection report of the department that
62-12 is offered:
62-13 (A) to establish warning or notice to an
62-14 institution of a relevant finding; or
62-15 (B) under any rule or evidentiary predicate of
62-16 the Texas Rules of Civil Evidence.
62-17 (l) A department surveyor or investigator may testify in a
62-18 civil action as to observations, factual findings, conclusions, or
62-19 violations of requirements for licensure or for certification for
62-20 participation in the state Medicaid program that were made in the
62-21 discharge of official duties for the department, in accordance with
62-22 the Texas Rules of Civil Evidence.
62-23 (m) The department may not include as a reimbursable item to
62-24 a nursing facility an administrative or civil penalty assessed
62-25 against the facility under this chapter or under Chapter 242,
62-26 Health and Safety Code.
62-27 (n) Notwithstanding any provision of law to the contrary,
63-1 the department shall terminate a nursing facility's provider
63-2 agreement if the department has imposed required Category II or III
63-3 remedies on the facility three times within a 24-month period.
63-4 (o) [(k)] An assessment of monetary penalties under this
63-5 section is subject to arbitration under Subchapter J [H], Chapter
63-6 242, Health and Safety Code.
63-7 ARTICLE 3. EFFECTIVE DATE; EMERGENCY
63-8 SECTION 3.01. This Act takes effect September 1, 1997.
63-9 SECTION 3.02. The importance of this legislation and the
63-10 crowded condition of the calendars in both houses create an
63-11 emergency and an imperative public necessity that the
63-12 constitutional rule requiring bills to be read on three several
63-13 days in each house be suspended, and this rule is hereby suspended.