By Zaffirini, et al. S.B. No. 190
75R1274 DLF-F
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. Each institution licensed under
1-13 this chapter shall, at a minimum, provide quality care in
1-14 accordance with this chapter and the rules and standards.
1-15 Components of quality of care addressed by these rules and
1-16 standards include:
1-17 (1) quality of life;
1-18 (2) access to care;
1-19 (3) continuity of care;
1-20 (4) comprehensiveness of care;
1-21 (5) coordination of services;
1-22 (6) humaneness of treatment;
1-23 (7) conservatism in intervention;
1-24 (8) safety of the environment;
2-1 (9) professionalism of caregivers; and
2-2 (10) participation in useful studies.
2-3 (b) The rules and standards adopted under this chapter may
2-4 be more stringent than the standards imposed by federal law for
2-5 certification for participation in the state Medicaid program. The
2-6 rules and standards may not be less stringent than the Medicaid
2-7 certification standards imposed under the Omnibus Budget
2-8 Reconciliation Act of 1987 (OBRA), Pub. L. No. 100-203.
2-9 (c) The rules and standards adopted under this chapter apply
2-10 to each licensed institution. The rules and standards are intended
2-11 for use in state surveys of the facilities and any investigation
2-12 and enforcement action and are designed to be useful to consumers
2-13 and providers in assessing the quality of care provided in an
2-14 institution.
2-15 (d) The legislature finds that the construction,
2-16 maintenance, and operation of institutions shall be regulated in a
2-17 manner that protects the residents of the institutions by:
2-18 (1) providing the highest possible quality of care;
2-19 (2) strictly monitoring all factors relating to the
2-20 health, safety, welfare, and dignity of each resident;
2-21 (3) imposing prompt and effective penalties for
2-22 noncompliance with licensing standards; and
2-23 (4) providing the public with information concerning
2-24 the operation of institutions in this state.
2-25 (e) It is the legislature's intent that this chapter
2-26 accomplish the goals listed by Subsection (d).
2-27 (f) This chapter shall be construed broadly to accomplish
3-1 the purposes set forth in this section. [The purpose of this
3-2 chapter is to promote the public health, safety, and welfare by
3-3 providing for the development, establishment, and enforcement of
3-4 standards for the treatment of residents of institutions and the
3-5 establishment, construction, maintenance, and operation of
3-6 institutions that, in the light of advancing knowledge, will
3-7 promote safe and adequate treatment of residents.]
3-8 SECTION 1.02. Section 242.002, Health and Safety Code, is
3-9 amended by adding Subdivision (10) to read as follows:
3-10 (10) "Restraints" means a device, a material, or
3-11 equipment that is attached or adjacent to a person and that
3-12 prevents free bodily movement to a position of choice. The term
3-13 does not include a device used for positioning supports.
3-14 SECTION 1.03. Subchapter A, Chapter 242, Health and Safety
3-15 Code, is amended by adding Section 242.0021 to read as follows:
3-16 Sec. 242.0021. CONTROL. (a) In this chapter, a person
3-17 controls an institution or other entity if the person directly or
3-18 indirectly possesses the power to direct or cause the direction of
3-19 the management and policies of the institution or other entity by
3-20 any means, including:
3-21 (1) through the ownership of voting securities; or
3-22 (2) by contract, other than a commercial contract for
3-23 goods or nonmanagement services.
3-24 (b) It is presumed that a person controls an institution or
3-25 other entity under this chapter if:
3-26 (1) the person, alone or together with members of the
3-27 person's immediate family, directly or indirectly:
4-1 (A) owns five percent of the institution or
4-2 other entity; or
4-3 (B) holds, with the power to vote, at least five
4-4 percent of the voting securities of the institution or other
4-5 entity; or
4-6 (2) the person, if other than a corporate officer or
4-7 director of the institution or other entity, holds proxies
4-8 representing at least five percent of the voting securities or
4-9 authority of the institution or other entity.
4-10 SECTION 1.04. Subchapter A, Chapter 242, Health and Safety
4-11 Code, is amended by adding Sections 242.015 and 242.016 to read as
4-12 follows:
4-13 Sec. 242.015. DOCUMENTS PUBLIC. Subject to Sections
4-14 242.126, 242.127, 242.552, and 242.553, a document received, owned,
4-15 used, or retained by the department in connection with this chapter
4-16 is public information for purposes of Chapter 552, Government Code.
4-17 Sec. 242.016. LICENSED ADMINISTRATOR. (a) Each institution
4-18 must have a licensed nursing facility administrator.
4-19 (b) The administrator shall:
4-20 (1) manage the institution;
4-21 (2) be responsible for:
4-22 (A) delivery of quality care to all residents;
4-23 and
4-24 (B) implementation of the policies and
4-25 procedures of the institution; and
4-26 (3) work at least 40 hours per week on administrative
4-27 duties.
5-1 SECTION 1.05. Section 242.032, Health and Safety Code, is
5-2 amended to read as follows:
5-3 Sec. 242.032. LICENSE OR RENEWAL APPLICATION. (a) An
5-4 application for a license or renewal of a license is made to the
5-5 department on a form provided by the department and must be
5-6 accompanied by the license fee.
5-7 (b) The application must contain information that the
5-8 department requires.
5-9 (c) The applicant or license holder must furnish evidence to
5-10 affirmatively establish the applicant's or license holder's ability
5-11 to comply with:
5-12 (1) minimum standards of medical care, nursing care,
5-13 and financial condition; and
5-14 (2) any other applicable state or federal standard.
5-15 (d) The department shall consider the background and
5-16 qualifications of:
5-17 (1) the applicant or license holder;
5-18 (2) a partner, officer, director, or managing employee
5-19 of the applicant or license holder;
5-20 (3) a person who owns or who controls the owner of the
5-21 physical plant of a facility in which the institution operates or
5-22 is to operate; and
5-23 (4) a person who controls the applicant, license
5-24 holder, or institution for which a license or license renewal is
5-25 requested.
5-26 (e) In making the evaluation required by Subsection (d),
5-27 the department shall require the applicant or license holder to
6-1 file a sworn affidavit of a satisfactory compliance history
6-2 relating to each state or other jurisdiction in which the
6-3 applicant or license holder and any other person described by
6-4 Subsection (d) operated an institution at any time during the
6-5 10-year period preceding the date on which the application is
6-6 made[, which may include affirmative evidence of ability to comply
6-7 with the standards and rules adopted under this chapter].
6-8 SECTION 1.06. Section 242.033(a), Health and Safety Code, is
6-9 amended to read as follows:
6-10 (a) After receiving an application for a license, the
6-11 department may [shall] issue the license if, after inspection and
6-12 investigation, it finds that the applicant or license holder, and
6-13 any other person described by Section 242.032(d), [and facilities]
6-14 meet the requirements established under this chapter.
6-15 SECTION 1.07. Section 242.034, Health and Safety Code, is
6-16 amended to read as follows:
6-17 Sec. 242.034. LICENSE FEES. (a) The board may establish by
6-18 rule license fees for institutions licensed by the department under
6-19 this chapter. The license fee may not exceed $150 plus:
6-20 (1) $5 for each unit of capacity or bed space for
6-21 which a license is sought; and
6-22 (2) a background examination fee imposed under
6-23 Subsection (c).
6-24 (b) An additional license fee may be charged as provided by
6-25 Section 242.097.
6-26 (c) The board may establish a background examination fee in
6-27 an amount necessary to defray the department's expenses in
7-1 administering its duties under Sections 242.032(d) and (e).
7-2 (d) [(b)] The license fee must be paid with each application
7-3 for an initial license, a renewal license, or a change of ownership
7-4 license.
7-5 (e) [(c)] The state is not required to pay the license fee.
7-6 (f) [(d)] An approved increase in bed space is subject to an
7-7 additional fee.
7-8 (g) [(e)] Except as provided by Section 242.097, all license
7-9 fees collected shall be deposited in the state treasury to the
7-10 credit of the department and may be appropriated to the department
7-11 to administer and enforce this chapter.
7-12 (h) [(f)] The license fees established under this chapter
7-13 are an allowable cost for reimbursement under the medical
7-14 assistance program administered by the Texas Department of Human
7-15 Services under Chapter 32, Human Resources Code. Any fee increases
7-16 shall be reflected in reimbursement rates prospectively.
7-17 SECTION 1.08. Section 242.037, Health and Safety Code, as
7-18 amended by Chapters 583 and 1049, Acts of the 74th Legislature,
7-19 Regular Session, 1995, is amended to read as follows:
7-20 Sec. 242.037. RULES; MINIMUM STANDARDS. (a) The department
7-21 shall make and enforce rules and minimum standards to implement
7-22 this chapter.
7-23 (b) The rules and standards adopted under this chapter may
7-24 be more stringent than the standards imposed by federal law for
7-25 certification for participation in the state Medicaid program.
7-26 (c) The rules and standards adopted by the department may
7-27 not be less stringent than the Medicaid certification standards and
8-1 regulations imposed under the Omnibus Budget Reconciliation Act of
8-2 1987 (OBRA), Pub. L. No. 100-203.
8-3 (d) In addition to standards or rules required by other
8-4 provisions of this chapter, the [The] board shall [may] adopt,
8-5 publish, and enforce minimum standards relating to:
8-6 (1) the construction of an institution, including
8-7 plumbing, heating, lighting, ventilation, and other housing
8-8 conditions, to ensure the residents' health, safety, comfort, and
8-9 protection from fire hazard;
8-10 (2) the regulation of the number and qualification of
8-11 all personnel, including management and nursing personnel,
8-12 responsible for any part of the care given to the residents;
8-13 (3) requirements for in-service education of all
8-14 employees who have any contact with the residents;
8-15 (4) training on the care of persons with Alzheimer's
8-16 disease and related disorders for employees who work with those
8-17 persons;
8-18 (5) sanitary and related conditions in an institution
8-19 and its surroundings, including water supply, sewage disposal, food
8-20 handling, and general hygiene in order to ensure the residents'
8-21 health, safety, and comfort;
8-22 (6) the dietary needs of each resident according to
8-23 good nutritional practice or the recommendations of the physician
8-24 attending the resident;
8-25 (7) equipment essential to the residents' health and
8-26 welfare; and
8-27 (8) the use and administration of medication in
9-1 conformity with applicable law and rules.
9-2 (e) [(b)] The board shall adopt, publish, and enforce
9-3 minimum standards requiring appropriate training in geriatric care
9-4 for each individual who provides services to geriatric residents as
9-5 an employee of an institution and who holds a license or
9-6 certificate issued by an agency of this state that authorizes the
9-7 person to provide the services. The minimum standards may require
9-8 that each licensed or certified individual complete an appropriate
9-9 program of continuing education or in-service training, as
9-10 determined by board rule, on a schedule determined by board rule.
9-11 (f) To administer the Provider Certification Survey provided
9-12 for by federal law and regulation, the department must identify
9-13 each area of care that is subject to both state licensing
9-14 requirements and federal certification requirements. For each area
9-15 of care that is subject to the same standard under both federal
9-16 certification and state licensing requirements, an institution that
9-17 is in compliance with the certification standard is considered to
9-18 be in compliance with the same state licensing requirement.
9-19 [(b) Notwithstanding Section 222.0255(b), an institution that is
9-20 certified as being in compliance with each standard of
9-21 participation in the state Medicaid program that relates to the
9-22 same subject matter as a minimum standard established under
9-23 Subsection (a) is not required to satisfy the minimum standard
9-24 established under that subsection.]
9-25 SECTION 1.09. Section 242.042, Health and Safety Code, is
9-26 amended to read as follows:
9-27 Sec. 242.042. POSTING. Each institution shall prominently
10-1 and conspicuously post for display in a public area of the
10-2 institution that is readily available to residents, employees, and
10-3 visitors:
10-4 (1) the license issued under this chapter;
10-5 (2) a sign prescribed by the department that specifies
10-6 complaint procedures established under this chapter or rules
10-7 adopted under this chapter and that specifies how complaints may be
10-8 registered with the department;
10-9 (3) a notice in a form prescribed by the department
10-10 stating that inspection and related reports are available at the
10-11 institution for public inspection and providing the department's
10-12 toll-free telephone number that may be used to obtain information
10-13 concerning the institution; [and]
10-14 (4) a concise summary of the most recent inspection
10-15 report relating to the institution;
10-16 (5) notice that the department can provide summary
10-17 reports relating to the quality of care, recent investigations,
10-18 litigation, and other aspects of the operation of the institution;
10-19 (6) notice that the Texas Board of Nursing Facility
10-20 Administrators can provide information about the nursing facility
10-21 administrator; and
10-22 (7) any notice or written statement required to be
10-23 posted under Section 242.071(b) or 242.504.
10-24 SECTION 1.10. Section 242.061(a), Health and Safety Code, is
10-25 amended to read as follows:
10-26 (a) The department, after providing notice and opportunity
10-27 for a hearing to the applicant or license holder, may deny,
11-1 suspend, or revoke a license if the department finds that the
11-2 applicant or license holder has:
11-3 (1) violated this chapter or a rule, standard, or
11-4 order adopted or license issued under this chapter;
11-5 (2) committed any act described by Sections
11-6 242.066(a)(2)-(7); or
11-7 (3) otherwise substantially failed to comply with the
11-8 requirements established under this chapter.
11-9 SECTION 1.11. Section 242.065(a), Health and Safety Code, is
11-10 amended to read as follows:
11-11 (a) A person who violates this chapter or a rule or standard
11-12 adopted under this chapter is liable for a civil penalty of not
11-13 [less than $100 or] more than $25,000 [$10,000] for each act of
11-14 violation if the department determines the violation threatens the
11-15 health and safety of a resident.
11-16 SECTION 1.12. Section 242.066, Health and Safety Code, is
11-17 amended by amending Subsections (a) and (b) and adding Subsections
11-18 (f), (g), and (h) to read as follows:
11-19 (a) The department may assess an administrative [a civil]
11-20 penalty against a person who:
11-21 (1) violates this chapter or a rule, standard, or
11-22 order adopted or license issued under this chapter;
11-23 (2) operates an institution without a valid license;
11-24 (3) makes a false statement, that the person knows or
11-25 should know is false, of a material fact:
11-26 (A) on an application for issuance or renewal of
11-27 a license or in an attachment to the application; or
12-1 (B) with respect to a matter under investigation
12-2 by the department;
12-3 (4) refuses to allow a representative of the
12-4 department to inspect:
12-5 (A) a book, record, or file required to be
12-6 maintained by an institution; or
12-7 (B) any portion of the premises of an
12-8 institution;
12-9 (5) wilfully interferes with the work of a
12-10 representative of the department or the enforcement of this
12-11 chapter;
12-12 (6) wilfully interferes with a representative of the
12-13 department preserving evidence of a violation of this chapter or a
12-14 rule, standard, or order adopted or license issued under this
12-15 chapter; or
12-16 (7) fails to pay a penalty assessed by the department
12-17 under this chapter not later than the 10th day after the date the
12-18 assessment of the penalty becomes final.
12-19 (b) Except as provided by Subsection (f) and Section
12-20 242.0665(c), the [The] penalty may not exceed $25,000 [$10,000] a
12-21 day for each violation.
12-22 (f) The penalty for a violation of Section 242.071(b),
12-23 Section 242.1225, or a right of a resident adopted under Subchapter
12-24 L may not exceed $1,000 a day for each violation. This subsection
12-25 does not apply to conduct that violates both Subchapter K or a
12-26 standard adopted under Subchapter K and a right of a resident
12-27 adopted under Subchapter L.
13-1 (g) The persons against whom an administrative penalty may
13-2 be assessed under Subsection (a) include:
13-3 (1) an applicant for a license under this chapter;
13-4 (2) a license holder;
13-5 (3) a partner, officer, director, or managing
13-6 employee of a license holder or applicant; and
13-7 (4) a person who controls an institution.
13-8 (h) A penalty assessed under Subsection (a)(7) is in
13-9 addition to the penalty previously assessed and not timely paid.
13-10 SECTION 1.13. Subchapter C, Chapter 242, Health and Safety
13-11 Code, is amended by adding Section 242.0665 to read as follows:
13-12 Sec. 242.0665. RIGHT TO CORRECT. (a) The department may
13-13 not assess an administrative penalty against an institution under
13-14 this subchapter if, not later than the 60th day after the date the
13-15 institution receives notice under Section 242.067(c), the
13-16 institution corrects the violation.
13-17 (b) Subsection (a) does not apply:
13-18 (1) to a violation that the department determines:
13-19 (A) results in serious harm to or death of a
13-20 resident;
13-21 (B) constitutes a serious threat to the health
13-22 or safety of a resident; or
13-23 (C) substantially limits the institution's
13-24 capacity to provide care;
13-25 (2) to a violation described by Sections
13-26 242.066(a)(2)-(7);
13-27 (3) to a violation of Section 242.1225, 242.133, or
14-1 242.1335; or
14-2 (4) to a violation of a right of a resident adopted
14-3 under Subchapter L.
14-4 (c) An institution that corrects a violation under
14-5 Subsection (a) must maintain the correction. If the institution
14-6 fails to maintain the correction until at least the first
14-7 anniversary of the date the correction was made, the department may
14-8 assess an administrative penalty under this subchapter for the
14-9 subsequent violation. A penalty assessed under this subsection may
14-10 not exceed $75,000 a day for each violation. The department is not
14-11 required to provide the institution an opportunity to correct the
14-12 subsequent violation under this section.
14-13 SECTION 1.14. Section 242.068(d), Health and Safety Code, is
14-14 amended to read as follows:
14-15 (d) Based on the findings of fact and recommendations of the
14-16 hearing examiner, the commissioner by order may find:
14-17 (1) a violation has occurred and assess an
14-18 administrative [a civil] penalty; or
14-19 (2) a violation has not occurred.
14-20 SECTION 1.15. Sections 242.067, 242.069, and 242.070, Health
14-21 and Safety Code, are amended to read as follows:
14-22 Sec. 242.067. REPORT RECOMMENDING ADMINISTRATIVE PENALTY.
14-23 (a) The department may issue a preliminary report stating the
14-24 facts on which it concludes that a violation of this chapter or a
14-25 rule, standard, or order adopted or license issued under this
14-26 chapter has occurred if it has:
14-27 (1) [it has] examined the possible violation and facts
15-1 surrounding the possible violation; and
15-2 (2) concluded that a violation has occurred.
15-3 (b) The report may recommend a penalty under Section 242.069
15-4 and the amount of the penalty.
15-5 (c) The department shall give written notice of the report
15-6 to the person charged with the violation not later than the 10th
15-7 day after the date on which the report is issued. The notice must
15-8 include:
15-9 (1) a brief summary of the charges;
15-10 (2) a statement of the amount of penalty recommended;
15-11 [and]
15-12 (3) a statement of whether the violation is subject to
15-13 correction under Section 242.0665 and, if the violation is subject
15-14 to correction under that section, a statement of:
15-15 (A) the steps necessary to correct the
15-16 violation; and
15-17 (B) the date on which the steps must be
15-18 completed to avoid assessment of the penalty; and
15-19 (4) a statement that the person charged has a right to
15-20 a hearing on the occurrence of the violation, the amount of the
15-21 penalty, or both.
15-22 (d) Not later than the 60th [20th] day after the date on
15-23 which the notice under Subsection (c) is sent, the person charged
15-24 may:
15-25 (1) give to the department written consent to the
15-26 department's report, including the recommended penalty; [or]
15-27 (2) make a written request for a hearing; or
16-1 (3) if the violation is subject to correction under
16-2 Section 242.0665, report to the department that the violation has
16-3 been corrected and request an inspection of the correction.
16-4 (e) If the violation is subject to correction under Section
16-5 242.0665, and the person reports to the department that the
16-6 violation has been corrected, the department shall inspect the
16-7 correction or take any other step necessary to confirm that the
16-8 violation has been corrected and shall notify the person that:
16-9 (1) the correction is satisfactory and that a penalty
16-10 is not assessed; or
16-11 (2) the correction is not satisfactory and that a
16-12 penalty is recommended.
16-13 (f) Not later than the 20th day after the date on which a
16-14 notice under Subsection (e)(2) is sent, the person charged may:
16-15 (1) give to the department written consent to the
16-16 department's report, including the recommended penalty; or
16-17 (2) make a written request for a hearing.
16-18 (g) If the person charged with the violation consents to the
16-19 administrative penalty recommended by the department, [or] does not
16-20 timely respond to a [the] notice sent under Subsection (c) or (e),
16-21 or fails to correct the violation to the department's satisfaction,
16-22 the commissioner or the commissioner's designee shall:
16-23 (1) assess the administrative penalty recommended by
16-24 the department; or
16-25 (2) order a hearing to be held on the findings and
16-26 recommendations in the department's report.
16-27 (h) [(f)] If the commissioner or the commissioner's designee
17-1 assesses the recommended penalty, the department shall give written
17-2 notice to the person charged of the decision and the person shall
17-3 pay the penalty.
17-4 Sec. 242.069. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
17-5 INTEREST; REFUND. (a) The commissioner shall give notice of the
17-6 decision taken under Section 242.068(d) to the person charged. If
17-7 the commissioner finds that a violation has occurred and has
17-8 assessed an administrative [a civil] penalty, the commissioner
17-9 shall give written notice to the person charged of:
17-10 (1) the findings;
17-11 (2) [,] the amount of the penalty;
17-12 (3) the rate of interest payable with respect to the
17-13 penalty and the date on which interest begins to accrue;
17-14 (4) whether payment of the penalty or other action
17-15 under Section 242.070 is required;[,] and
17-16 (5) the person's right to judicial review of the
17-17 order.
17-18 (b) Not later than the 30th day after the date on which the
17-19 commissioner's order is final, the person charged with the penalty
17-20 shall:
17-21 (1) pay the full amount of the penalty;
17-22 (2) pay the penalty and file a petition for judicial
17-23 review contesting the occurrence of the violation, the amount of
17-24 the penalty, the failure to correct the violation to the
17-25 department's satisfaction, or all of the above; or
17-26 (3) without paying the penalty, file a petition for
17-27 judicial review contesting the occurrence of the violation, the
18-1 amount of the penalty, the failure to correct the violation to the
18-2 department's satisfaction, or all of the above.
18-3 (c) Notwithstanding Subsection (b), the department may
18-4 permit the person to pay the penalty in installments or may require
18-5 the person to use the amount of the penalty under the department's
18-6 supervision in accordance with Section 242.070.
18-7 (d) Within the 30-day period, a person who acts under
18-8 Subsection (b)(3) may:
18-9 (1) stay enforcement of the penalty by:
18-10 (A) paying the penalty to the court for
18-11 placement in an escrow account; or
18-12 (B) giving to the court a supersedeas bond that
18-13 is approved by the court for the amount of the penalty and that is
18-14 effective until all judicial review of the order is final; or
18-15 (2) request the court to stay enforcement of the
18-16 penalty by:
18-17 (A) filing with the court a sworn affidavit of
18-18 the person stating that the person is financially unable to pay the
18-19 amount of the penalty and is financially unable to give the
18-20 supersedeas bond; and
18-21 (B) giving a copy of the affidavit to the
18-22 department by certified mail.
18-23 (e) If the department receives a copy of an affidavit under
18-24 Subsection (d)(2), the department may file with the court, not
18-25 later than the fifth day after the date the copy is received, a
18-26 contest to the affidavit. The court shall hold a hearing on the
18-27 facts alleged in the affidavit as soon as practicable and shall
19-1 stay the enforcement of the penalty on finding that the alleged
19-2 facts are true. The person who files an affidavit has the burden
19-3 of proving that the person is financially unable to pay the penalty
19-4 and to give a supersedeas bond.
19-5 (f) If the person does not pay the penalty within the 30-day
19-6 period and the enforcement of the penalty is not stayed:
19-7 (1) the penalty is subject to interest; and
19-8 (2) the department may refer the matter to the
19-9 attorney general for collection of the penalty and interest [If the
19-10 person seeks judicial review of the violation, the amount of the
19-11 penalty, or both, the person, within the time provided by
19-12 Subsection (b), shall:]
19-13 [(1) send the amount of the penalty to the
19-14 commissioner for placement in an escrow account; or]
19-15 [(2) post with the commissioner a supersedeas bond in
19-16 a form approved by the commissioner for the amount of the penalty,
19-17 the bond to be effective until the judicial review of the order or
19-18 decision is final.]
19-19 [(d) A person who fails to comply with Subsection (c) waives
19-20 the right to judicial review, and the commissioner may request
19-21 enforcement by the attorney general].
19-22 (g) [(e)] If a penalty is reduced or not assessed, the
19-23 commissioner shall:
19-24 (1) remit to the person charged the appropriate amount
19-25 of any penalty payment plus accrued interest; or
19-26 (2) execute a release of the supersedeas bond if one
19-27 has been posted.
20-1 (h) [(f)] Accrued interest on amounts remitted by the
20-2 commissioner under Subsection (g)(1) [(e)(1)] shall be paid:
20-3 (1) at a rate equal to the rate charged on loans to
20-4 depository institutions by the New York Federal Reserve Bank; and
20-5 (2) for the period beginning on the date the penalty
20-6 is paid [to the commissioner] under Subsection (d) [(c)] and ending
20-7 on the date the penalty is remitted.
20-8 (i) Accrued interest on amounts collected after the
20-9 expiration of the 30-day period under Subsection (f) shall be paid:
20-10 (1) at a rate equal to the rate charged on loans to
20-11 the depository institutions by the New York Federal Reserve Bank;
20-12 and
20-13 (2) for the period beginning on the date the notice of
20-14 the commissioner's order is received by the person and ending on
20-15 the date the penalty is paid.
20-16 (j) [(g)] Except as provided by Section 242.070, a [A]
20-17 penalty collected under this section shall be deposited to the
20-18 credit of the nursing and convalescent home trust fund established
20-19 under Section 242.096.
20-20 Sec. 242.070. AMELIORATION OF VIOLATION. In lieu of
20-21 ordering payment of the administrative penalty under Section
20-22 242.069, the commissioner may require the person to use, under the
20-23 supervision of the department, any portion of the penalty to
20-24 ameliorate the violation or to improve services, other than
20-25 administrative services, in the institution affected by the
20-26 violation. [APPLICATION OF OTHER LAW. The department may not
20-27 assess a penalty under both this subchapter and Section 32.021,
21-1 Human Resources Code, for a violation arising out of the same act
21-2 or failure to act.]
21-3 SECTION 1.16. Subchapter C, Chapter 242, Health and Safety
21-4 Code, is amended by adding Section 242.071 to read as follows:
21-5 Sec. 242.071. OTHER REMEDIES. (a) If, after notice and
21-6 hearing, the commissioner finds that an institution has committed
21-7 an act for which an administrative penalty may be imposed under
21-8 Section 242.066, the commissioner may, as appropriate under the
21-9 circumstances, order the institution to suspend admissions.
21-10 (b) During the period that an institution is ordered to
21-11 suspend admissions, the institution shall post a notice of the
21-12 suspension on all doors providing ingress to and egress from the
21-13 institution. The notice shall be posted in the form required by
21-14 the department.
21-15 (c) A person commits an offense if the person knowingly:
21-16 (1) violates Subsection (b); or
21-17 (2) removes a notice posted under Subsection (b)
21-18 before the facility is allowed to admit residents.
21-19 (d) An offense under Subsection (c) is a Class C
21-20 misdemeanor.
21-21 SECTION 1.17. Subchapter E, Chapter 242, Health and Safety
21-22 Code, is amended by adding Section 242.1225 to read as follows:
21-23 Sec. 242.1225. REPORTING UNLAWFUL OR UNSATISFACTORY
21-24 CONDITIONS. An institution, an employee of an institution, or a
21-25 physician, professional nurse, nursing facility administrator,
21-26 nurse's aide, or pharmacist shall report in accordance with this
21-27 subchapter if the person suspects that:
22-1 (1) an institution is violating state law, including
22-2 department rules or standards or federal law or regulations; or
22-3 (2) the conditions at an institution are unsanitary or
22-4 otherwise unsatisfactory.
22-5 SECTION 1.18. Section 242.123(a), Health and Safety Code, is
22-6 amended to read as follows:
22-7 (a) A report under Section 242.122 or 242.1225 [of abuse or
22-8 neglect] is nonaccusatory and reflects the reporting person's
22-9 belief that:
22-10 (1) a resident has been or will be abused or neglected
22-11 or has died of abuse or neglect; or
22-12 (2) a fact described by Section 242.1225(1) or (2)
22-13 exists.
22-14 SECTION 1.19. Section 242.124(a), Health and Safety Code, is
22-15 amended to read as follows:
22-16 (a) An anonymous report under Section 242.122 or 242.1225
22-17 [of abuse or neglect], although not encouraged, shall be received
22-18 and acted on in the same manner as an acknowledged report.
22-19 SECTION 1.20. Sections 242.125 and 242.126, Health and
22-20 Safety Code, are amended to read as follows:
22-21 Sec. 242.125. PROCESSING OF REPORTS. (a) A report of abuse
22-22 or neglect under Section 242.122 shall be made to the department or
22-23 a local or state law enforcement agency. A report under Section
22-24 242.1225 shall be made to the department.
22-25 (b) A local or state law enforcement agency that receives a
22-26 report of abuse or neglect may investigate the report and shall
22-27 refer the report to the department or the designated agency. The
23-1 agency shall investigate the report of abuse or neglect if the
23-2 report alleges that a resident's health or safety is in imminent
23-3 danger.
23-4 Sec. 242.126. INVESTIGATION AND REPORT OF DEPARTMENT OR
23-5 DESIGNATED [RECEIVING] AGENCY. (a) The department or the
23-6 designated agency shall make a thorough investigation [promptly]
23-7 after receiving an [either the] oral or written report of abuse or
23-8 neglect under Section 242.122 or another complaint alleging abuse
23-9 or neglect.
23-10 (b) The primary purpose of the investigation is the
23-11 protection of the resident.
23-12 (c) The agency shall begin the investigation:
23-13 (1) within two hours of receipt of the report or other
23-14 allegation, if the report of abuse or neglect or other complaint
23-15 alleges that:
23-16 (A) a resident's health or safety is in imminent
23-17 danger;
23-18 (B) a resident has recently died because of
23-19 conduct alleged in the report of abuse or neglect or other
23-20 complaint; or
23-21 (C) a resident has been hospitalized or been
23-22 treated in an emergency room because of conduct alleged in the
23-23 report of abuse or neglect or other complaint; or
23-24 (2) before the end of the next working day after the
23-25 date of receipt of the report of abuse or neglect or other
23-26 complaint, if the report or complaint alleges the existence of
23-27 circumstances that could result in abuse or neglect and that could
24-1 place a resident's health or safety in imminent danger.
24-2 (d) Except in cases where the investigation is part of
24-3 nursing facility surveyor activity under federal law, the
24-4 investigating agency shall complete an initial status report not
24-5 later than the second working day after the date the investigation
24-6 is begun. The initial status report must include:
24-7 (1) a summary of the report of abuse or neglect or
24-8 other complaint that identifies each alleged incident or problem;
24-9 (2) the status of the investigation;
24-10 (3) a statement as to whether a report of abuse or
24-11 neglect was initially filed at the direction of the administration
24-12 of the institution;
24-13 (4) a determination of whether protection of the
24-14 resident is needed and whether the institution must take action;
24-15 (5) the name and telephone number of the investigator;
24-16 and
24-17 (6) the projected date the investigation report will
24-18 be completed and a statement that the report will be available on
24-19 request after the department issues a letter of determination.
24-20 (e) Subject to Subsection (g), as soon as practicable and
24-21 not later than the second working day after the date the initial
24-22 status report described in Subsection (d) is completed, the
24-23 investigating agency shall provide, in person or by mail, a copy of
24-24 the report to:
24-25 (1) the person making the report of abuse or neglect
24-26 or other complaint, unless the person waives this requirement;
24-27 (2) the resident or a person designated to receive
25-1 information concerning the resident, if the report of abuse or
25-2 neglect or other complaint involves a specific resident;
25-3 (3) a representative of the office of the state
25-4 long-term care ombudsman, at the request of the person making the
25-5 report of abuse or neglect or other complaint; and
25-6 (4) the institution.
25-7 (f) Subject to Subsection (g), the investigating agency
25-8 shall permit public inspection of the initial status report.
25-9 (g) The investigating agency must delete from a copy of the
25-10 initial status report that is made available to the public or
25-11 provided to an individual listed in Subsection (e) the name of:
25-12 (1) any resident involved;
25-13 (2) the person making the report of abuse or neglect
25-14 or other complaint; and
25-15 (3) an individual interviewed in the investigation.
25-16 (h) In investigating the report of abuse or neglect or other
25-17 complaint, the investigator for the investigating agency shall:
25-18 (1) make an unannounced visit to the institution to
25-19 determine the nature and cause of the alleged abuse or neglect of
25-20 the resident;
25-21 (2) interview each available witness identified by any
25-22 source as having personal knowledge relevant to the report of abuse
25-23 or neglect or other complaint;
25-24 (3) personally inspect any physical circumstance that
25-25 is relevant and material to the report of abuse or neglect or other
25-26 complaint and that may be objectively observed; and
25-27 (4) write an investigation report that includes:
26-1 (A) the investigator's personal observations;
26-2 (B) a review of relevant documents and records;
26-3 (C) a summary of each witness statement; and
26-4 (D) a statement of the factual basis for the
26-5 findings for each incident or problem alleged in the report or
26-6 other allegation.
26-7 (i) An investigator for an investigating agency shall
26-8 conduct an interview under Subsection (h)(2) in private unless the
26-9 witness expressly requests that the interview not be private.
26-10 (j) Not later than the fifth working day after the date the
26-11 investigation is complete and not later than the 45th day after the
26-12 date the initial status report is completed, the investigator shall
26-13 prepare the written report required by Subsection (h). The
26-14 department shall make the investigation report available to the
26-15 public on request after the date the department's letter of
26-16 determination is complete. The department shall delete from any
26-17 copy made available to the public the name of any person listed in
26-18 Subsections (g)(1)-(3).
26-19 (k) In the investigation, the department or the designated
26-20 agency shall determine:
26-21 (1) the nature, extent, and cause of the abuse or
26-22 neglect;
26-23 (2) the identity of the person responsible for the
26-24 abuse or neglect;
26-25 (3) the names and conditions of the other residents;
26-26 (4) an evaluation of the persons responsible for the
26-27 care of the residents;
27-1 (5) the adequacy of the institution environment; and
27-2 (6) any other information required by the department.
27-3 (l) [(d) The investigation may include a visit to the
27-4 resident's institution and an interview with the resident if these
27-5 actions are determined by the department to be appropriate.]
27-6 [(e)] If the department attempts to carry out an on-site
27-7 investigation and it is shown that admission to the institution, or
27-8 any place where the resident is located, cannot be obtained, a
27-9 probate or county court shall order the person responsible for the
27-10 care of the resident or the person in charge of a place where the
27-11 resident is located to allow entrance for the interview and
27-12 investigation.
27-13 (m) [(f)] Before the completion of the investigation the
27-14 department shall file a petition for temporary care and protection
27-15 of the resident if the department determines that immediate removal
27-16 is necessary to protect the resident from further abuse or neglect.
27-17 (n) [(g)] The department or the designated agency shall make
27-18 a complete final written report of the investigation and submit the
27-19 report and its recommendations to the district attorney and, if a
27-20 law enforcement agency has not investigated the report of abuse or
27-21 neglect or other complaint, to the appropriate law enforcement
27-22 agency.
27-23 SECTION 1.21. Section 242.127, Health and Safety Code, is
27-24 amended to read as follows:
27-25 Sec. 242.127. CONFIDENTIALITY. The name of a person making
27-26 a [A] report[, record, or working paper used or developed in an
27-27 investigation made] under this subchapter is confidential and may
28-1 be disclosed only for purposes consistent with the rules adopted by
28-2 the board or the designated agency.
28-3 SECTION 1.22. Section 242.133(a), Health and Safety Code, is
28-4 amended to read as follows:
28-5 (a) A person has a cause of action against an institution,
28-6 or the owner or employee of the institution, that suspends or
28-7 terminates the employment of the person or otherwise disciplines or
28-8 discriminates or retaliates against the person for making a report
28-9 under this subchapter to [reporting the abuse or neglect of a
28-10 resident to the person's supervisors,] the department[,] or a law
28-11 enforcement agency or for reporting the abuse or neglect or other
28-12 complaint to the person's supervisors.
28-13 SECTION 1.23. Section 242.1335(a), Health and Safety Code,
28-14 is amended to read as follows:
28-15 (a) An institution may not retaliate or discriminate against
28-16 a resident if the resident, the resident's guardian, or any other
28-17 person reports [abuse or neglect] in accordance with this
28-18 subchapter.
28-19 SECTION 1.24. Subchapter H, Chapter 242, Health and Safety
28-20 Code, as added by Section 5, Chapter 1049, Acts of the 74th
28-21 Legislature, Regular Session, 1995, is redesignated as Subchapter J
28-22 and the subchapter heading is amended to read as follows:
28-23 SUBCHAPTER J [H]. ARBITRATION OF CERTAIN DISPUTES
28-24 SECTION 1.25. Sections 242.267 and 242.268, Health and
28-25 Safety Code, are amended to read as follows:
28-26 Sec. 242.267. COURT VACATING ORDER. (a) On a finding
28-27 described by Subsection (b), [application of the institution,] a
29-1 court shall:
29-2 (1) on application of an institution, vacate an
29-3 arbitrator's order with respect to an arbitration conducted at the
29-4 election of the department; or
29-5 (2) on application of the department, vacate an
29-6 arbitrator's order with respect to an arbitration conducted at the
29-7 election of an institution.
29-8 (b) A court shall vacate an arbitrator's order under
29-9 Subsection (a) only on a finding that:
29-10 (1) the order was procured by corruption, fraud, or
29-11 misrepresentation;
29-12 (2) the decision of the arbitrator was arbitrary or
29-13 capricious and against the weight of the evidence; or
29-14 (3) the order exceeded the jurisdiction of the
29-15 arbitrator under Section 242.264(a).
29-16 (c) [(b)] If the order is vacated, the dispute shall be
29-17 remanded to the department for another arbitration proceeding.
29-18 (d) [(c)] A suit to vacate an arbitrator's order must be
29-19 filed not later than the 30th day after:
29-20 (1) the date of the award; or
29-21 (2) the date the institution or department knew or
29-22 should have known of a basis for suit under this section, but in no
29-23 event later than the first anniversary of the date of the order.
29-24 (e) [(d)] Venue for a suit to vacate an arbitrator's order
29-25 is in the county in which the arbitration was conducted.
29-26 Sec. 242.268. NO ARBITRATION IN CASE OF EMERGENCY ORDER OR
29-27 CLOSING ORDER. This subchapter does not apply to an order issued
30-1 under Section 242.062, and neither the department nor the
30-2 institution may elect to arbitrate a dispute if the subject matter
30-3 of the dispute is part of the basis for suspension of an
30-4 institution's license or issuance of a closing order under Section
30-5 242.062.
30-6 SECTION 1.26. Chapter 242, Health and Safety Code, is
30-7 amended by redesignating Subchapter F as Subchapter N and adding a
30-8 new Subchapter F and Subchapters K, L, and M to read as follows:
30-9 SUBCHAPTER F. MEDICAL, NURSING, AND DENTAL SERVICES
30-10 OTHER THAN ADMINISTRATION OF MEDICATION
30-11 Sec. 242.151. ATTENDING PHYSICIAN. (a) An institution
30-12 shall have at least one attending physician who is licensed in this
30-13 state.
30-14 (b) The attending physician is responsible for a resident's
30-15 assessment and comprehensive plan of care and shall review, revise,
30-16 and sign orders relating to any medication or treatment in the plan
30-17 of care.
30-18 (c) Each resident has the right to choose a personal
30-19 attending physician.
30-20 Sec. 242.152. PHYSICIAN SERVICES FOR RESIDENTS YOUNGER THAN
30-21 18 YEARS OF AGE. (a) An institution shall use appropriate
30-22 pediatric consultative services for a resident younger than 18
30-23 years of age, in accordance with the resident's assessment and
30-24 comprehensive plan of care.
30-25 (b) A pediatrician or other physician with training or
30-26 expertise in the clinical care of children with complex medical
30-27 needs shall participate in all aspects of the resident's medical
31-1 care.
31-2 Sec. 242.153. DIRECTOR OF NURSING SERVICES. An institution
31-3 shall have a director of nursing services who shall be a registered
31-4 nurse or an advanced registered nurse practitioner. The director
31-5 of nursing services is responsible for:
31-6 (1) coordinating each resident's comprehensive plan of
31-7 care; and
31-8 (2) ensuring that only licensed personnel administer
31-9 medication, subject to Subchapter N.
31-10 Sec. 242.154. NURSING SERVICES. (a) An institution shall
31-11 provide the nursing care required for the classification given
31-12 each resident to allow each resident to achieve and maintain the
31-13 highest possible degree of function and independence medically
31-14 possible.
31-15 (b) The institution shall, at a minimum, maintain a ratio of
31-16 one licensed nursing staff person for each 20 residents. A
31-17 registered nurse must be on duty at least eight hours a day, seven
31-18 days a week. In an institution with 60 or fewer residents, the
31-19 director of nursing services may also serve as the required
31-20 registered nurse.
31-21 Sec. 242.155. PEDIATRIC NURSING SERVICES. An institution
31-22 shall ensure that:
31-23 (1) nursing services for a resident younger than 18
31-24 years of age are provided by staff who have been instructed and
31-25 have demonstrated competence in the care of children; and
31-26 (2) consultative pediatric nursing services are
31-27 available to staff if the institution has a resident younger than
32-1 18 years of age.
32-2 Sec. 242.156. REQUIRED MEDICAL EXAMINATION. (a) The
32-3 department shall require that each resident be given at least one
32-4 medical examination each year.
32-5 (b) The department shall specify the details of the
32-6 examination.
32-7 Sec. 242.157. DENTAL EXAMINATION. (a) The department shall
32-8 require that each resident of a nursing home or custodial care home
32-9 or the resident's custodian be asked at least once each year if the
32-10 resident desires a dental examination and possible treatment at the
32-11 resident's own expense.
32-12 (b) Each nursing home or custodial care home shall be
32-13 encouraged to use all reasonable efforts to arrange for a dental
32-14 examination for each resident who desires one.
32-15 (c) The nursing home or custodial care home is not liable
32-16 for any costs relating to a dental examination under this section.
32-17 SUBCHAPTER K. QUALITY OF CARE
32-18 Sec. 242.401. QUALITY OF LIFE. An institution shall care
32-19 for its residents in a manner and in an environment that promotes
32-20 maintenance or enhancement of each resident's quality of life. An
32-21 institution that admits a resident who is younger than 18 years of
32-22 age must provide care to meet the resident's unique medical and
32-23 developmental needs.
32-24 Sec. 242.402. QUALITY OF CARE. An institution shall provide
32-25 to each resident any care or service needed to enable the resident
32-26 to attain and maintain the highest practicable level of physical,
32-27 emotional, and social well-being, in accordance with each
33-1 resident's individual assessment and comprehensive plan of care.
33-2 Sec. 242.403. STANDARDS FOR QUALITY OF LIFE AND QUALITY OF
33-3 CARE. (a) The department shall adopt standards to implement
33-4 Sections 242.401 and 242.402. Those standards must, at a minimum,
33-5 address:
33-6 (1) the circumstances in which an institution may
33-7 admit residents, including appropriate prohibitions on admission of
33-8 a resident the institution is unable to adequately serve;
33-9 (2) the circumstances in which an institution may
33-10 admit a resident younger than 18 years of age and the actions the
33-11 institution must take to meet the resident's unique medical and
33-12 developmental needs, including necessary accommodations,
33-13 furnishings, and equipment and staff training;
33-14 (3) development by an institution of an initial
33-15 assessment and comprehensive plan of care for each resident,
33-16 including the matters to be addressed by the initial assessment and
33-17 the comprehensive plan of care and the time frame for developing
33-18 the assessment and the plan;
33-19 (4) transfer and discharge of a resident, including
33-20 appropriate notice to the resident and the resident's guardian or
33-21 next of kin;
33-22 (5) clinical records required to be maintained by an
33-23 institution for each resident, the content of the records, and the
33-24 manner in which the records are maintained, including standards to
33-25 ensure the confidentiality of the records;
33-26 (6) infection control at each institution;
33-27 (7) action to be taken by an institution to restore
34-1 the resident to the maximum possible function, including
34-2 rehabilitative services to be provided or made available by the
34-3 institution and the circumstances in which the services are
34-4 required;
34-5 (8) food services at an institution, including the
34-6 manner in which menus are selected, the times at which meals are
34-7 served, and the manner in which meals are served;
34-8 (9) social services and activities to be provided or
34-9 to be made available by an institution and the circumstances in
34-10 which the social services and activities are required;
34-11 (10) the manner in which an institution must monitor a
34-12 resident's weight;
34-13 (11) care to be provided to nonambulatory residents,
34-14 including care necessary to prevent and treat pressure sores;
34-15 (12) bladder and bowel retraining programs for
34-16 residents;
34-17 (13) prevention of complications from nasogastric or
34-18 gastrostomy tube feedings;
34-19 (14) relocation of a resident within an institution;
34-20 and
34-21 (15) postmortem procedures for deceased residents,
34-22 including procedures necessary to protect the dignity of a deceased
34-23 resident and to properly deliver the deceased resident's personal
34-24 belongings.
34-25 (b) The department may adopt standards in addition to those
34-26 required by Subsection (a) to implement Sections 242.401 and
34-27 242.402.
35-1 Sec. 242.404. RESTRAINTS; INTERDISCIPLINARY COMMITTEE.
35-2 (a) The department shall adopt standards for the use of restraints
35-3 by an institution in accordance with this section. The standards,
35-4 at a minimum, must address:
35-5 (1) the circumstances in which an institution may use
35-6 restraints, subject to Subsections (b), (c), and (d);
35-7 (2) the manner in which restraints may be used;
35-8 (3) the use of psychopharmacological agents; and
35-9 (4) actions to be taken to minimize the use of
35-10 restraints.
35-11 (b) An institution may not use chemical or physical
35-12 restraints to restrain a resident unless the restraints are
35-13 authorized by a physician for a limited period to protect the
35-14 resident or others from injury and the physician has executed an
35-15 order for the restraints that is included in the resident's
35-16 comprehensive plan of care.
35-17 (c) A resident may not be restrained through the use of
35-18 excessive drug dosages.
35-19 (d) A resident may not be restrained for punishment or for
35-20 the convenience of the institution or the institution's staff.
35-21 (e) An institution shall have an interdisciplinary committee
35-22 that has responsibility for the use of restraints in the
35-23 institution.
35-24 (f) The interdisciplinary committee shall develop and
35-25 implement written policies and procedures for the use of
35-26 restraints. The department shall adopt rules governing the manner
35-27 in which the policies and procedures may be adopted and amended and
36-1 the subjects that the policies and procedures must address. The
36-2 written policies and procedures must comply with this section.
36-3 Sec. 242.405. POLICIES, PROCEDURES, AND PRACTICES FOR
36-4 QUALITY OF CARE AND QUALITY OF LIFE. (a) Each institution shall
36-5 comply with the standards adopted under this subchapter and shall
36-6 develop written operating policies to implement those standards.
36-7 (b) The department shall adopt standards governing the
36-8 subject matter to be addressed by the policies and procedures and
36-9 the manner in which each institution shall implement the policies
36-10 and procedures.
36-11 (c) The policies and procedures must be available to each
36-12 physician, staff member, resident, and resident's next of kin or
36-13 guardian and to the public.
36-14 (Sections 242.406-242.500 reserved for expansion
36-15 SUBCHAPTER L. RIGHTS OF RESIDENTS
36-16 Sec. 242.501. RESIDENT'S RIGHTS. (a) The department by
36-17 rule shall adopt a statement of the rights of a resident. The
36-18 statement must be consistent with Chapter 102, Human Resources
36-19 Code, but shall reflect the unique circumstances of a resident at
36-20 an institution. At a minimum, the statement of the rights of a
36-21 resident must address the resident's constitutional, civil, and
36-22 legal rights and the resident's right:
36-23 (1) to be free from abuse and exploitation;
36-24 (2) to safe, decent, and clean conditions;
36-25 (3) to be treated with courtesy, consideration, and
36-26 respect;
36-27 (4) to not be subjected to discrimination based on
37-1 age, race, religion, sex, nationality, or disability and to
37-2 practice the resident's own religious beliefs;
37-3 (5) to privacy, including privacy during visits and
37-4 telephone calls;
37-5 (6) to complain about the institution and to organize
37-6 or participate in any program that presents residents' concerns to
37-7 the administrator of the institution;
37-8 (7) to have information about the resident in the
37-9 possession of the institution maintained as confidential;
37-10 (8) to retain the services of a physician the resident
37-11 chooses, at the resident's own expense or through a health care
37-12 plan, and to have a physician explain to the resident, in language
37-13 that the resident understands, the resident's complete medical
37-14 condition, the recommended treatment, and the expected results of
37-15 the treatment;
37-16 (9) to participate in developing a plan of care, to
37-17 refuse treatment, and to refuse to participate in experimental
37-18 research;
37-19 (10) to be free from the use of restraints, except
37-20 where permitted by Section 242.404 and standards adopted under that
37-21 section;
37-22 (11) to a written statement or admission agreement
37-23 describing the services provided by the institution and the related
37-24 charges;
37-25 (12) to manage the resident's own finances or to
37-26 delegate that responsibility to another person;
37-27 (13) to access money and property that the resident
38-1 has deposited with the institution and to an accounting of the
38-2 resident's money and property that are deposited with the
38-3 institution and of all financial transactions made with or on
38-4 behalf of the resident;
38-5 (14) to keep and use personal property, secure from
38-6 theft or loss;
38-7 (15) to not be relocated within the institution,
38-8 except in accordance with standards adopted by the department under
38-9 Section 242.403;
38-10 (16) to receive visitors;
38-11 (17) to receive unopened mail and to receive
38-12 assistance in reading or writing correspondence;
38-13 (18) to participate in activities inside and outside
38-14 the institution;
38-15 (19) to wear the resident's own clothes;
38-16 (20) to discharge himself or herself from the
38-17 institution unless the resident is an adjudicated mental
38-18 incompetent; and
38-19 (21) to not be discharged from the institution except
38-20 as provided in the standards adopted by the department under
38-21 Section 242.403.
38-22 (b) The statement of rights may indicate the circumstances
38-23 in which a right of a resident may be restricted. Except as
38-24 provided by the statement of rights, a resident's rights may be
38-25 restricted only if the resident's physician:
38-26 (1) determines that the exercise of the right by the
38-27 resident is medically inadvisable;
39-1 (2) states the reason for this determination in the
39-2 resident's clinical record; and
39-3 (3) provides an explanation to the resident's next of
39-4 kin or guardian.
39-5 (c) The department may adopt rights of residents in addition
39-6 to those required by Subsection (a) and may consider additional
39-7 rights applicable to residents in other jurisdictions.
39-8 Sec. 242.502. RIGHTS CUMULATIVE. The rights established
39-9 under this subchapter are cumulative of the rights established
39-10 under Chapter 102, Human Resources Code, and any other law.
39-11 Sec. 242.503. DUTIES OF INSTITUTION. (a) An institution
39-12 shall develop and implement policies to protect resident rights.
39-13 (b) An institution and the staff of an institution may not
39-14 violate a right adopted under this subchapter.
39-15 Sec. 242.504. INFORMATION ABOUT RESIDENT'S RIGHTS AND
39-16 VIOLATIONS. (a) An institution shall inform each resident and the
39-17 resident's next of kin or guardian of the rights adopted under this
39-18 subchapter and shall explain the rights to the resident and the
39-19 resident's next of kin or guardian. The institution shall provide
39-20 a written statement of:
39-21 (1) all of the resident's rights; and
39-22 (2) any additional rules adopted by the institution
39-23 involving resident rights and responsibilities.
39-24 (b) The institution shall provide a copy of the written
39-25 statement to:
39-26 (1) each resident;
39-27 (2) the next of kin or guardian of each resident; and
40-1 (3) each member of the staff of the institution.
40-2 (c) The institution shall maintain a copy of the statement,
40-3 signed by the resident or the resident's next of kin or guardian,
40-4 in the institution's records.
40-5 (d) The institution shall post the written statement in the
40-6 manner required by Section 242.042.
40-7 (e) An institution that has been cited by the department for
40-8 a violation of any right adopted under this subchapter shall post a
40-9 notice of the citation in the manner required by Section 242.042
40-10 and on each door providing ingress to and egress from the
40-11 institution. The notice of citation must remain posted until any
40-12 regulatory action or proceeding with respect to the violation is
40-13 complete and the department has determined that the institution is
40-14 in full compliance with the applicable requirement.
40-15 (Sections 242.505-242.550 reserved for expansion
40-16 SUBCHAPTER M. REQUEST FOR INSPECTION
40-17 Sec. 242.551. COMPLAINT REQUESTING INSPECTION. (a) A
40-18 person may request an inspection of an institution in accordance
40-19 with this chapter by making a complaint notifying the department of
40-20 an alleged violation of law and requesting an inspection.
40-21 (b) The department shall encourage a person who makes an
40-22 oral complaint under Subsection (a) to submit a written, signed
40-23 complaint.
40-24 Sec. 242.552. DISCLOSURE OF SUBSTANCE OF COMPLAINT. The
40-25 department may not provide information to the institution relating
40-26 to the substance of a complaint made under this subchapter before
40-27 an on-site inspection is begun in accordance with this subchapter.
41-1 Sec. 242.553. CONFIDENTIALITY. The name of the person
41-2 making the complaint is confidential and may not be released to the
41-3 institution or any other person, unless the person making the
41-4 complaint specifically requests that the person's name be released.
41-5 Sec. 242.554. PRELIMINARY REVIEW OF COMPLAINT; INSPECTION.
41-6 (a) On receipt of a complaint under this subchapter, the
41-7 department shall make a preliminary review of the complaint.
41-8 (b) Within a reasonable time after receipt of the complaint,
41-9 the department shall make an on-site inspection or otherwise
41-10 respond to the complaint unless the department determines that:
41-11 (1) the person making the complaint made the complaint
41-12 to harass the institution;
41-13 (2) the complaint is without any reasonable basis; or
41-14 (3) sufficient information in the possession of the
41-15 department indicates that corrective action has been taken.
41-16 (c) The department shall promptly notify the person making
41-17 the complaint of the department's proposed course of action under
41-18 Subsection (b) and the reasons for that action.
41-19 Sec. 242.555. PERSONS WHO MAY ACCOMPANY INSPECTOR. (a) On
41-20 request of the person making the complaint, the department may
41-21 permit the person or the person's representative, or both, to
41-22 accompany the inspector to the site of the alleged violation during
41-23 an on-site inspection conducted under this subchapter.
41-24 (b) A person may not be permitted to accompany an inspector
41-25 if the inspector determines that permitting the person to
41-26 accompany the inspector would violate the privacy of a resident.
41-27 (Sections 242.556-242.600 reserved for expansion
42-1 SUBCHAPTER N [F]. ADMINISTRATION OF MEDICATION
42-2 [MEDICAL AND DENTAL CARE]
42-3 Sec. 242.601. MEDICATION ADMINISTRATION. (a) An
42-4 institution must establish medication administration procedures to
42-5 ensure that:
42-6 (1) medications to be administered are checked against
42-7 the physician's orders;
42-8 (2) the resident is identified before the
42-9 administration of a medication;
42-10 (3) each resident's clinical record includes an
42-11 individual medication record in which the dose of medication
42-12 administered is properly recorded by the person who administered
42-13 the medication;
42-14 (4) medications and biologicals are prepared and
42-15 administered to a resident by the same individual, except under
42-16 unit-of-use package distribution systems; and
42-17 (5) a medication prescribed for one resident is not
42-18 administered to any other person.
42-19 (b) The medication administration procedures must comply
42-20 with this subchapter and the rules adopted by the board under
42-21 Section 242.608.
42-22 Sec. 242.602. PHARMACIST SERVICES. (a) An institution
42-23 shall:
42-24 (1) employ a licensed pharmacist responsible for
42-25 operating the institution's pharmacy; or
42-26 (2) contract, in writing, with a licensed pharmacist
42-27 to advise the institution on ordering, storage, administration, and
43-1 disposal of medications and biologicals and related recordkeeping.
43-2 (b) The institution shall allow residents to choose their
43-3 pharmacy provider from any pharmacy that is qualified to perform
43-4 the services.
43-5 Sec. 242.603. STORAGE AND DISPOSAL OF MEDICATIONS. (a) An
43-6 institution shall store medications under appropriate conditions of
43-7 sanitation, temperature, light, moisture, ventilation, segregation,
43-8 and security. Poisons, medications used externally, and
43-9 medications taken internally shall be stored on separate shelves or
43-10 in separate cabinets. Medication stored in a refrigerator
43-11 containing other items shall be kept in a separate compartment with
43-12 appropriate security. The institution shall store a medication in
43-13 a locked area that must remain locked unless an individual
43-14 authorized to distribute the medication is present.
43-15 (b) The institution shall properly dispose of:
43-16 (1) any medication that is discontinued or outdated,
43-17 except as provided by Subsection (c); and
43-18 (2) any medication in a container with a worn or
43-19 illegible label or missing a label.
43-20 (c) A discontinued medication that has not been destroyed
43-21 must be reinstated if reordered.
43-22 (d) An institution shall release the medications of a
43-23 resident who is transferred directly to another institution or who
43-24 is discharged to home or to the new institution or to the resident
43-25 or resident's next of kin or guardian, as appropriate. The
43-26 institution may release a medication to a resident only on the
43-27 written or verbal authorization of the attending physician.
44-1 Sec. 242.604. REPORTS OF MEDICATION ERRORS AND ADVERSE
44-2 REACTIONS. An institution's nursing staff must report medication
44-3 errors and adverse reactions to the resident's physician in a
44-4 timely manner, as warranted by an assessment of the resident's
44-5 condition, and record the errors and reactions in the resident's
44-6 clinical record.
44-7 Sec. 242.605. MEDICATION REFERENCE SOURCES. An institution
44-8 shall maintain updated medication reference texts or sources. If
44-9 the institution has a resident younger than 18 years of age, these
44-10 texts or sources must include information on pediatric medications,
44-11 dosages, sites, routes, techniques of administration of
44-12 medications, desired effects, and possible side effects.
44-13 Sec. 242.606 [242.151]. PERMITS TO ADMINISTER MEDICATION. A
44-14 person may not administer medication to a resident unless the
44-15 person:
44-16 (1) holds a license under state law that authorizes
44-17 the person to administer medication; or
44-18 (2) holds a permit issued under Section 242.610
44-19 [242.154] and acts under the authority of a person who holds a
44-20 license under state law that authorizes the person to administer
44-21 medication.
44-22 Sec. 242.607 [242.1511]. EXEMPTIONS FOR NURSING STUDENTS AND
44-23 MEDICATION AIDE TRAINEES. (a) Sections 242.606 and 242.614
44-24 [242.151 and 242.158] do not apply to:
44-25 (1) a graduate nurse holding a temporary permit issued
44-26 by the Board of Nurse Examiners;
44-27 (2) a student enrolled in an accredited school of
45-1 nursing or program for the education of registered nurses who is
45-2 administering medications as part of the student's clinical
45-3 experience;
45-4 (3) a graduate vocational nurse holding a temporary
45-5 permit issued by the Board of Vocational Nurse Examiners;
45-6 (4) a student enrolled in an accredited school of
45-7 vocational nursing or program for the education of vocational
45-8 nurses who is administering medications as part of the student's
45-9 clinical experience; or
45-10 (5) a trainee in a medication aide training program
45-11 approved by the department under this subchapter who is
45-12 administering medications as part of the trainee's clinical
45-13 experience.
45-14 (b) The administration of medications by persons exempted
45-15 under Subdivisions (1) through (4) of Subsection (a) is governed by
45-16 the terms of the memorandum of understanding executed by the
45-17 department and the Board of Nurse Examiners or the department and
45-18 the Board of Vocational Nurse Examiners, as appropriate.
45-19 Sec. 242.608 [242.152]. RULES FOR ADMINISTRATION OF
45-20 MEDICATION. The board by rule shall establish:
45-21 (1) minimum requirements for the issuance, denial,
45-22 renewal, suspension, emergency suspension, and revocation of a
45-23 permit to administer medication to a resident;
45-24 (2) curricula to train persons to administer
45-25 medication to a resident;
45-26 (3) minimum standards for the approval of programs to
45-27 train persons to administer medication to a resident and for
46-1 rescinding approval; and
46-2 (4) the acts and practices that are allowed or
46-3 prohibited to a permit holder.
46-4 Sec. 242.609 [242.153]. TRAINING PROGRAMS TO ADMINISTER
46-5 MEDICATION. (a) An application for the approval of a training
46-6 program must be made to the department on a form and under rules
46-7 prescribed by the board.
46-8 (b) The department shall approve a training program that
46-9 meets the minimum standards adopted under Section 242.608
46-10 [242.152]. The department may review the approval annually.
46-11 Sec. 242.610 [242.154]. ISSUANCE AND RENEWAL OF PERMIT TO
46-12 ADMINISTER MEDICATION. (a) To be issued or to have renewed a
46-13 permit to administer medication, a person shall apply to the
46-14 department on a form prescribed and under rules adopted by the
46-15 board.
46-16 (b) The department shall prepare and conduct, at the site of
46-17 the training program, an examination for the issuance of a permit.
46-18 (c) The department shall require a permit holder to
46-19 satisfactorily complete a continuing education course approved by
46-20 the department for renewal of the permit.
46-21 (d) The department shall issue a permit or renew a permit to
46-22 an applicant who:
46-23 (1) meets the minimum requirements adopted under
46-24 Section 242.608 [242.152];
46-25 (2) successfully completes the examination or the
46-26 continuing education requirements; and
46-27 (3) pays a nonrefundable application fee determined by
47-1 the board.
47-2 (e) A permit is valid for one year and is not transferable.
47-3 (f) The department may issue a permit to an employee of a
47-4 state or federal agency listed in Section 242.003(a)(6)(B).
47-5 Sec. 242.611 [242.155]. FEES FOR ISSUANCE AND RENEWAL OF
47-6 PERMIT TO ADMINISTER MEDICATION. (a) The board shall set the fees
47-7 in amounts reasonable and necessary to recover the amount projected
47-8 by the department as required to administer its functions. The
47-9 fees may not exceed:
47-10 (1) $25 for a combined permit application and
47-11 examination fee; and
47-12 (2) $15 for a renewal permit application fee.
47-13 (b) Fees received under this section may only be
47-14 appropriated to the department to defray costs incurred under this
47-15 section.
47-16 Sec. 242.612 [242.156]. VIOLATION OF PERMITS TO ADMINISTER
47-17 MEDICATION. (a) For the violation of this subchapter or a rule
47-18 adopted under this subchapter, the department may:
47-19 (1) suspend, revoke, or refuse to renew a permit;
47-20 (2) suspend a permit in an emergency; or
47-21 (3) rescind training program approval.
47-22 (b) Except as provided by Section 242.613 [242.157], the
47-23 procedure by which the department takes a disciplinary action and
47-24 the procedure by which a disciplinary action is appealed are
47-25 governed by the department's rules for a formal hearing and by
47-26 Chapter 2001, Government Code.
47-27 Sec. 242.613 [242.157]. EMERGENCY SUSPENSION OF PERMITS TO
48-1 ADMINISTER MEDICATION. (a) The department shall issue an order to
48-2 suspend a permit issued under this subchapter if the department has
48-3 reasonable cause to believe that the conduct of the permit holder
48-4 creates an imminent danger to the public health or safety.
48-5 (b) An emergency suspension is effective immediately without
48-6 a hearing on notice to the permit holder.
48-7 (c) If requested in writing by a permit holder whose permit
48-8 is suspended, the department shall conduct a hearing to continue,
48-9 modify, or rescind the emergency suspension.
48-10 (d) The hearing must be held not earlier than the 10th day
48-11 or later than the 30th day after the date on which the hearing
48-12 request is received.
48-13 (e) The hearing and an appeal from a disciplinary action
48-14 related to the hearing are governed by the department's rules for a
48-15 formal hearing and Chapter 2001, Government Code.
48-16 Sec. 242.614 [242.158]. ADMINISTRATION OF MEDICATION;
48-17 CRIMINAL PENALTY. (a) A person commits an offense if the person
48-18 knowingly administers medication to a resident and the person:
48-19 (1) does not hold a license under state law that
48-20 authorizes the person to administer medication; or
48-21 (2) does not hold a permit issued by the department
48-22 under this subchapter.
48-23 (b) An offense under this section is a Class B misdemeanor.
48-24 [Sec. 242.159. REQUIRED MEDICAL EXAMINATION. (a) The
48-25 department shall require each resident to be given at least one
48-26 medical examination each year.]
48-27 [(b) The department shall specify the details of the
49-1 examination.]
49-2 [Sec. 242.160. DENTAL EXAMINATION. (a) The department
49-3 shall require that each resident of a nursing home or custodial
49-4 care home or the resident's custodian be asked at least once each
49-5 year if the resident desires a dental examination and possible
49-6 treatment at the resident's own expense.]
49-7 [(b) Each nursing home or custodial care home shall be
49-8 encouraged to use all reasonable efforts to arrange for a dental
49-9 examination for each resident who desires one.]
49-10 [(c) The nursing home or custodial care home is not liable
49-11 for any costs relating to a dental examination under this section.]
49-12 Sec. 242.615 [242.161]. EMERGENCY MEDICATION KIT. (a) An
49-13 institution licensed under this chapter is entitled to maintain a
49-14 supply of controlled substances in an emergency medication kit for
49-15 a resident's emergency medication needs.
49-16 (b) The controlled substances shall be labeled in accordance
49-17 with all applicable state and federal food and drug laws, including
49-18 Chapter 481 (Texas Controlled Substances Act).
49-19 (c) The board shall adopt rules governing the amount, type,
49-20 and procedure for use of the controlled substances in the emergency
49-21 medication kit. The storage of the controlled substances in the
49-22 kit is under the supervision of the consultant pharmacist.
49-23 (d) The administration of the controlled substances in the
49-24 emergency medication kit shall comply with all applicable laws.
49-25 SECTION 1.27. Section 222.0255, Health and Safety Code, is
49-26 amended to read as follows:
49-27 Sec. 222.0255. NURSING HOMES. (a) The Texas Department of
50-1 Human Services shall adopt separate [develop one set of] standards
50-2 for nursing homes for [that apply to] licensing under Chapter 242
50-3 and for [to] certification for participation in the medical
50-4 assistance program under Chapter 32, Human Resources Code.
50-5 (b) The certification standards must, at a minimum, comply
50-6 with federal regulations. [If the federal regulations at the time
50-7 of adoption are less stringent than the state standards, the
50-8 department shall keep and comply with the state standards.]
50-9 (c) The department by rule shall adopt [the] standards for
50-10 licensing an institution under Chapter 242 [and any amendments to
50-11 the standards].
50-12 (d) The standards for licensing an institution under Chapter
50-13 242 must include enforcement measures to ensure that the health,
50-14 safety, dignity, and welfare of each resident of an institution are
50-15 protected, in accordance with Chapter 242 [department shall
50-16 maintain a set of standards for nursing homes that are licensed
50-17 only].
50-18 (e) Chapter 242 establishes the minimum licensing standards
50-19 for an institution. The licensing standards adopted by the
50-20 department under this chapter shall be adopted subject to Section
50-21 242.037(b) and must comply with Section 242.037(c) and the other
50-22 provisions of Chapter 242.
50-23 SECTION 1.28. Section 242.012, Health and Safety Code, is
50-24 repealed.
50-25 SECTION 1.29. The Texas Board of Human Services shall adopt
50-26 rules as necessary to implement the change in law made by this
50-27 article not later than January 1, 1998.
51-1 SECTION 1.30. This article applies only to conduct occurring
51-2 on or after January 1, 1998. Conduct occurring before January 1,
51-3 1998, is governed by the law as it existed immediately before
51-4 September 1, 1997, and that law is continued in effect for that
51-5 purpose.
51-6 ARTICLE 2. GOVERNMENT FUNDING OF NURSING SERVICES
51-7 SECTION 2.01. Section 32.021, Human Resources Code, is
51-8 amended by amending Subsections (d), (h), (i), (j), and (k) and
51-9 adding Subsections (l), (m), and (n) to read as follows:
51-10 (d) The department shall [may] include in its contracts for
51-11 the delivery of medical assistance by nursing facilities provisions
51-12 for monetary penalties to be assessed for contract violations as
51-13 required by 42 U.S.C. Section 1396r, including without limitation
51-14 the Omnibus Budget Reconciliation Act (OBRA), P.L. 100-203, Nursing
51-15 Home Reform Amendments of 1987, provided that the department
51-16 shall[:]
51-17 [(1) establish a penalties and sanctions advisory
51-18 committee of consumer advocates and long-term care providers to
51-19 help develop and monitor an appropriate system for assessing
51-20 penalties; and]
51-21 [(2)] develop rules [in accordance with Subsection
51-22 (i)] to adjudicate claims in contested cases.
51-23 (h) The [Except to the extent necessary to implement rights
51-24 granted to an elderly individual under Chapter 102, the] rules
51-25 adopted by the department for certification of nursing facilities
51-26 as being in compliance with the requirements for participation in
51-27 the state Medicaid program must comply with the more stringent of
52-1 state or [may not be different from the standards imposed by]
52-2 federal law. The [This subsection does not prevent the] department
52-3 shall use appropriate [from using any] civil, administrative, or
52-4 criminal remedies [remedy] authorized by state or federal law with
52-5 respect to a facility that is in violation of a certification or
52-6 licensing requirement.
52-7 (i) The department shall institute a reimbursement system to
52-8 compensate a nursing facility for the fair rental value, or the
52-9 equivalent, of the facility's investment in property. The
52-10 reimbursement shall begin on the date on which the facility is
52-11 built or substantially remodeled. The reimbursement must be
52-12 available for property owned or leased by the nursing facility.
52-13 [The rules adopted under Subsection (d)(2) must provide for:]
52-14 [(1) an informal dispute resolution process that
52-15 provides for adjudication by an appropriate disinterested person in
52-16 a regional office of the department and an informal appeal to the
52-17 department's central office;]
52-18 [(2) an administrative appeals process under Chapter
52-19 2001, Government Code; and]
52-20 [(3) the arbitration process described by Subsection
52-21 (k).]
52-22 (j) Except as provided by Subsections (k) and (l), a
52-23 department survey, complaint investigation, incident investigation,
52-24 or survey report [A finding by the department] that documents that
52-25 an institution has violated a standard for participation in the
52-26 state Medicaid program, or the assessment of a monetary penalty by
52-27 the department or the payment of a monetary penalty by the
53-1 institution [under this section], is not admissible as evidence in
53-2 a civil action to prove that the institution has committed a
53-3 violation.
53-4 (k) Subsection (j) [This subsection] does not:
53-5 (1) apply in an enforcement action or related
53-6 proceeding in which the state or an agency or political subdivision
53-7 of the state is a party;
53-8 (2) prohibit or limit the testimony of a department
53-9 surveyor or investigator in a civil action; or
53-10 (3) bar the admission into evidence in a civil action
53-11 of a written finding, survey report, complaint investigation,
53-12 incident investigation, or inspection report of the department that
53-13 is offered:
53-14 (A) to establish warning or notice to an
53-15 institution of a relevant finding; or
53-16 (B) under any rule or evidentiary predicate of
53-17 the Texas Rules of Civil Evidence.
53-18 (l) A department surveyor or investigator may testify in a
53-19 civil action as to observations, factual findings, conclusions, or
53-20 violations of requirements for licensure or for certification for
53-21 participation in the state Medicaid program that were made in the
53-22 discharge of official duties for the department, in accordance with
53-23 the Texas Rules of Civil Evidence.
53-24 (m) The department may not include as a reimbursable item to
53-25 a nursing facility an administrative or civil penalty assessed
53-26 against the facility under this chapter or under Chapter 242,
53-27 Health and Safety Code.
54-1 (n) Notwithstanding any provision of law to the contrary,
54-2 the department shall terminate a nursing facility's provider
54-3 agreement if the department has imposed required Category II or III
54-4 remedies on the facility three times within a 24-month period.
54-5 [(k) An assessment of monetary penalties under this section
54-6 is subject to arbitration under Subchapter H, Chapter 242, Health
54-7 and Safety Code.]
54-8 ARTICLE 3. EFFECTIVE DATE; EMERGENCY
54-9 SECTION 3.01. This Act takes effect September 1, 1997.
54-10 SECTION 3.02. The importance of this legislation and the
54-11 crowded condition of the calendars in both houses create an
54-12 emergency and an imperative public necessity that the
54-13 constitutional rule requiring bills to be read on three several
54-14 days in each house be suspended, and this rule is hereby suspended.