1-1     By:  Zaffirini, Moncrief, et al.                       S.B. No. 190

 1-2           (In the Senate - Filed January 9, 1997; January 15, 1997,

 1-3     read first time and referred to Committee on Health and Human

 1-4     Services; March 24, 1997, reported adversely, with favorable

 1-5     Committee Substitute by the following vote:  Yeas 11, Nays 0;

 1-6     March 24, 1997, sent to printer.)

 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 190                By:  Zaffirini

 1-8                            A BILL TO BE ENTITLED

 1-9                                   AN ACT

1-10     relating to the regulation of nursing homes and similar facilities;

1-11     providing penalties.

1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-13       ARTICLE 1.  REGULATION OF NURSING HOMES AND SIMILAR FACILITIES

1-14           SECTION 1.01.  Section 242.001, Health and Safety Code, is

1-15     amended to read as follows:

1-16           Sec. 242.001.  SCOPE, PURPOSE, AND IMPLEMENTATION.  (a)  It

1-17     is the goal of this chapter to ensure that institutions in this

1-18     state deliver the highest possible quality of care.  This chapter,

1-19     and the rules and standards adopted under this chapter, establish

1-20     minimum acceptable levels of care.  Each institution licensed under

1-21     this chapter shall, at a minimum, provide quality care in

1-22     accordance with this chapter and the rules and standards.

1-23     Components of quality of care addressed by these rules and

1-24     standards include:

1-25                 (1)  quality of life;

1-26                 (2)  access to care;

1-27                 (3)  continuity of care;

1-28                 (4)  comprehensiveness of care;

1-29                 (5)  coordination of services;

1-30                 (6)  humaneness of treatment;

1-31                 (7)  conservatism in intervention;

1-32                 (8)  safety of the environment;

1-33                 (9)  professionalism of caregivers; and

1-34                 (10)  participation in useful studies.

1-35           (b)  The rules and standards adopted under this chapter may

1-36     be more stringent than the standards imposed by federal law for

1-37     certification for participation in the state Medicaid program.  The

1-38     rules and standards may not be less stringent than the Medicaid

1-39     certification standards imposed under the Omnibus Budget

1-40     Reconciliation Act of 1987 (OBRA), Pub. L. No. 100-203.

1-41           (c)  The rules and standards adopted under this chapter apply

1-42     to each licensed institution.  The rules and standards are intended

1-43     for use in state surveys of the facilities and any investigation

1-44     and enforcement action and are designed to be useful to consumers

1-45     and providers in assessing the quality of care provided in an

1-46     institution.

1-47           (d)  The legislature finds that the construction,

1-48     maintenance, and operation of institutions shall be regulated in a

1-49     manner that protects the residents of the institutions by:

1-50                 (1)  providing the highest possible quality of care;

1-51                 (2)  strictly monitoring all factors relating to the

1-52     health, safety, welfare, and dignity of each resident;

1-53                 (3)  imposing prompt and effective remedies for

1-54     noncompliance with licensing standards; and

1-55                 (4)  providing the public with information concerning

1-56     the operation of institutions in this state.

1-57           (e)  It is the legislature's intent that this chapter

1-58     accomplish the goals listed by Subsection (d).

1-59           (f)  This chapter shall be construed broadly to accomplish

1-60     the purposes set forth in this section. [The purpose of this

1-61     chapter is to promote the public health, safety, and welfare by

1-62     providing for the development, establishment, and enforcement of

1-63     standards for the treatment of residents of institutions and the

1-64     establishment, construction, maintenance, and operation of

 2-1     institutions that, in the light of advancing knowledge, will

 2-2     promote safe and adequate treatment of residents.]

 2-3           SECTION 1.02.  Section 242.002, Health and Safety Code, is

 2-4     amended to read as follows:

 2-5           Sec. 242.002.  DEFINITIONS.  In this chapter:

 2-6                 (1)  "Board" means the Texas Board of Human Services.

 2-7                 (2)  "Commissioner" means the commissioner of human

 2-8     services.

 2-9                 (3)  "Department" means the Texas Department of Human

2-10     Services.

2-11                 (4) [(3)]  "Elderly person" means an individual who is

2-12     65 years of age or older.

2-13                 (5)  "Facility" means an institution.

2-14                 (6) [(4)]  "Governmental unit" means the state or a

2-15     political subdivision of the state, including a county or

2-16     municipality.

2-17                 (7)  "Home" means an institution.

2-18                 (8) [(5)]  "Hospital" has the meaning assigned by

2-19     Chapter 241 (Texas Hospital Licensing Law).

2-20                 (9) [(6)]  "Institution" means:

2-21                       (A)  an establishment that:

2-22                             (i)  furnishes, in one or more facilities,

2-23     food and shelter to four or more persons who are unrelated to the

2-24     proprietor of the establishment; and

2-25                             (ii)  provides minor treatment under the

2-26     direction and supervision of a physician licensed by the Texas

2-27     State Board of Medical Examiners, or other services that meet some

2-28     need beyond the basic provision of food, shelter, and laundry; or

2-29                       (B)  a foster care type residential facility that

2-30     provides room and board to fewer than five persons who:

2-31                             (i)  are not related within the second

2-32     degree of consanguinity or affinity, as determined under Chapter

2-33     573, Government Code, to the proprietor; and

2-34                             (ii)  because of their physical or mental

2-35     limitation, or both, require a level of care and services suitable

2-36     to their needs that contributes to their health, comfort, and

2-37     welfare.

2-38                 (10) [(7)]  "Person" means an individual, firm,

2-39     partnership, corporation, association, [or] joint stock company,

2-40     limited partnership, limited liability company, or any other legal

2-41     entity and includes a legal successor of those entities.

2-42                 (11) [(8)]  "Resident" means an individual, including a

2-43     patient, who resides in an institution.

2-44                 [(9)  "Commissioner" means the commissioner of human

2-45     services.]

2-46           SECTION 1.03.  Subchapter A, Chapter 242, Health and Safety

2-47     Code, is amended by adding Section 242.0021 to read as follows:

2-48           Sec. 242.0021.  CONTROLLING PERSON.  (a)  A person is a

2-49     controlling person if the person has the ability, acting alone or

2-50     in concert with others, to directly or indirectly influence,

2-51     direct, or cause the direction of the management, expenditure of

2-52     money, or policies of an institution or other person.

2-53           (b)  For purposes of this chapter, "controlling person"

2-54     includes:

2-55                 (1)  a management company, landlord, or other business

2-56     entity that operates or contracts with others for the operation of

2-57     an institution;

2-58                 (2)  any person who is a controlling person of a

2-59     management company or other business entity that operates an

2-60     institution or that contracts with another person for the operation

2-61     of an institution; and

2-62                 (3)  any other individual who, because of a personal,

2-63     familial, or other relationship with the owner, manager, landlord,

2-64     tenant, or provider of an institution, is in a position of actual

2-65     control or authority with respect to the institution, without

2-66     regard to whether the individual is formally named as an owner,

2-67     manager, director, officer, provider, consultant, contractor, or

2-68     employee of the facility.

2-69           (c)  A controlling person described by Subsection (b)(3) does

 3-1     not include a person, such as a lender, secured creditor, or

 3-2     landlord, who does not exercise any influence or control, whether

 3-3     formal or actual, over the operation of an institution.

 3-4           SECTION 1.04.  Section 242.005, Health and Safety Code, is

 3-5     amended to read as follows:

 3-6           Sec. 242.005.  PERFORMANCE REPORTS [ANNUAL REPORT].  (a)  The

 3-7     department and the attorney general shall each prepare annually a

 3-8     full report of the operation and administration of their respective

 3-9     responsibilities under this chapter, including recommendations and

3-10     suggestions they consider [it considers] advisable.

3-11           (b)  The Legislative Budget Board and the state auditor shall

3-12     jointly prescribe the form and content of reports required by this

3-13     section.

3-14           (c)  The department and the attorney general shall submit

3-15     their reports [the report] to the governor and the legislature not

3-16     later than October 1 of each year.

3-17           SECTION 1.05.  Subchapter A, Chapter 242, Health and Safety

3-18     Code, is amended by adding Sections 242.015, 242.016, and  242.017

3-19     to read as follows:

3-20           Sec. 242.015.  DOCUMENTS PUBLIC.  Subject to Sections

3-21     242.126, 242.127, 242.552, and 242.553, a document received, owned,

3-22     used, or retained by the department in connection with this chapter

3-23     is public information for purposes of Chapter 552, Government Code.

3-24           Sec. 242.016.  LICENSED ADMINISTRATOR.  (a)  Each institution

3-25     must have a licensed nursing facility administrator.

3-26           (b)  The administrator shall:

3-27                 (1)  manage the institution;

3-28                 (2)  be responsible for:

3-29                       (A)  delivery of quality care to all residents;

3-30     and

3-31                       (B)  implementation of the policies and

3-32     procedures of the institution; and

3-33                 (3)  work at least 40 hours per week on administrative

3-34     duties.

3-35           Sec. 242.017.  FEES AND PENALTIES.  Except as expressly

3-36     provided by this chapter, a fee or penalty collected by or on

3-37     behalf of the department under this chapter must be deposited to

3-38     the credit of the general revenue fund and may be appropriated only

3-39     to the department to administer and enforce this chapter.

3-40     Investigation and attorney's fees may not be assessed or collected

3-41     by or on behalf of the department or other state agency unless the

3-42     department or other state agency assesses and collects a penalty

3-43     described under this chapter.

3-44           SECTION 1.06.  Section 242.032, Health and Safety Code, is

3-45     amended to read as follows:

3-46           Sec. 242.032.  LICENSE OR RENEWAL APPLICATION.  (a)  An

3-47     application for a license or renewal of a license is made to the

3-48     department on a form provided by the department and must be

3-49     accompanied by the license fee.

3-50           (b)  The application must contain information that the

3-51     department requires.

3-52           (c)  The applicant or license holder must furnish evidence to

3-53     affirmatively establish the applicant's or license holder's ability

3-54     to comply with:

3-55                 (1)  minimum standards of medical care, nursing care,

3-56     and financial condition; and

3-57                 (2)  any other applicable state or federal standard.

3-58           (d)  The department shall consider the background and

3-59     qualifications of:

3-60                 (1)  the applicant or license holder;

3-61                 (2)  a partner, officer, director, or managing employee

3-62     of the applicant or license holder;

3-63                 (3)  a person who owns or who controls the owner of the

3-64     physical plant of a facility in which the institution operates or

3-65     is to operate; and

3-66                 (4)  a controlling person with respect to the

3-67     institution for which a license or license renewal is requested.

3-68           (e)  In making the  evaluation required by Subsection (d),

3-69     the department shall require the applicant or license holder to

 4-1     file a sworn affidavit of a satisfactory compliance history and any

 4-2     other information required by the department to substantiate a

 4-3     satisfactory compliance history  relating to each state or other

 4-4     jurisdiction in which the applicant or license holder and any other

 4-5     person described by Subsection (d) operated an institution at any

 4-6     time during the 10-year period preceding the date on which the

 4-7     application is made.  The department may also require the applicant

 4-8     or license holder to file information relating to the history of

 4-9     the financial condition of the applicant or license holder and any

4-10     other person described by Subsection (d) with respect to an

4-11     institution operated in another state or jurisdiction at any time

4-12     during the 10-year period preceding the date on which the

4-13     application is made[, which may include affirmative evidence of

4-14     ability to comply with the standards and rules adopted under this

4-15     chapter].

4-16           SECTION 1.07.  Subsection (a), Section 242.033, Health and

4-17     Safety Code, is amended to read as follows:

4-18           (a)  After receiving an application for a license, the

4-19     department may [shall] issue the license if, after inspection and

4-20     investigation, it finds that the applicant or license holder and

4-21     any other person described by Section 242.032(d) [and facilities]

4-22     meet the requirements established under this chapter.

4-23           SECTION 1.08.  Section 242.034, Health and Safety Code, is

4-24     amended to read as follows:

4-25           Sec. 242.034.  LICENSE FEES.  (a)  The board may establish by

4-26     rule license fees for institutions licensed by the department under

4-27     this chapter.  The license fee may not exceed $150 plus:

4-28                 (1)  $5 for each unit of capacity or bed space for

4-29     which a license is sought; and

4-30                 (2)  a background examination fee imposed under

4-31     Subsection (c).

4-32           (b)  An additional license fee may be charged as provided by

4-33     Section 242.097.

4-34           (c)  The board may establish a background examination fee in

4-35     an amount necessary to defray the department's expenses in

4-36     administering its duties under Sections 242.032(d) and (e).

4-37           (d) [(b)]  The license fee must be paid with each application

4-38     for an initial license, a renewal license, or a change of ownership

4-39     license.

4-40           (e) [(c)]  The state is not required to pay the license fee.

4-41           (f) [(d)]  An approved increase in bed space is subject to an

4-42     additional fee.

4-43           (g) [(e)  Except as provided by Section 242.097, all license

4-44     fees collected shall be deposited in the state treasury to the

4-45     credit of the department and may be appropriated to the department

4-46     to administer and enforce this chapter.]

4-47           [(f)]  The license fees established under this chapter are an

4-48     allowable cost for reimbursement under the medical assistance

4-49     program administered by the Texas Department of Human Services

4-50     under Chapter 32, Human Resources Code.  Any fee increases shall be

4-51     reflected in reimbursement rates prospectively.

4-52           SECTION 1.09.  Section 242.037, Health and Safety Code, as

4-53     amended by Chapters 583 and 1049, Acts of the 74th Legislature,

4-54     1995, is amended to read as follows:

4-55           Sec. 242.037.  RULES; MINIMUM STANDARDS.  (a)  The department

4-56     shall make and enforce rules and minimum standards to implement

4-57     this chapter, including rules and minimum standards relating to

4-58     quality of life, quality of care, and residents' rights.

4-59           (b)  The rules and standards adopted under this chapter may

4-60     be more stringent than the standards imposed by federal law for

4-61     certification for participation in the state Medicaid program.

4-62           (c)  The rules and standards adopted by the department may

4-63     not be less stringent than the Medicaid certification standards and

4-64     regulations imposed under the Omnibus Budget Reconciliation Act of

4-65     1987 (OBRA), Pub. L. No. 100-203.

4-66           (d)  In addition to standards or rules required by other

4-67     provisions of this chapter, the [The] board shall [may] adopt,

4-68     publish, and enforce minimum standards relating to:

4-69                 (1)  the construction of an institution, including

 5-1     plumbing, heating, lighting, ventilation, and other housing

 5-2     conditions, to ensure the residents' health, safety, comfort, and

 5-3     protection from fire hazard;

 5-4                 (2)  the regulation of the number and qualification of

 5-5     all personnel, including management and nursing personnel,

 5-6     responsible for any part of the care given to the residents;

 5-7                 (3)  requirements for in-service education of all

 5-8     employees who have any contact with the residents;

 5-9                 (4)  training on the care of persons with Alzheimer's

5-10     disease and related disorders for employees who work with those

5-11     persons;

5-12                 (5)  sanitary and related conditions in an institution

5-13     and its surroundings, including water supply, sewage disposal, food

5-14     handling, and general hygiene in order to ensure the residents'

5-15     health, safety, and comfort;

5-16                 (6)  the nutritional [dietary] needs of each resident

5-17     according to good nutritional practice or the recommendations of

5-18     the physician attending the resident;

5-19                 (7)  equipment essential to the residents' health and

5-20     welfare; [and]

5-21                 (8)  the use and administration of medication in

5-22     conformity with applicable law and rules;

5-23                 (9)  care and treatment of residents and any other

5-24     matter related to resident health, safety, and welfare;

5-25                 (10)  licensure of institutions; and

5-26                 (11)  implementation of this chapter.

5-27           (e) [(b)]  The board shall adopt, publish, and enforce

5-28     minimum standards requiring appropriate training in geriatric care

5-29     for each individual who provides services to geriatric residents in

5-30     [as an employee of] an institution and who holds a license or

5-31     certificate issued by an agency of this state that authorizes the

5-32     person to provide the services.  The minimum standards may require

5-33     that each licensed or certified individual complete an appropriate

5-34     program of continuing education or in-service training, as

5-35     determined by board rule, on a schedule determined by board rule.

5-36           (f)  To administer the surveys for provider certification

5-37     provided for by federal law and regulation, the department must

5-38     identify each area of care that is subject to both state licensing

5-39     requirements and federal certification requirements.  For each area

5-40     of care that is subject to the same standard under both federal

5-41     certification and state licensing requirements, an institution that

5-42     is in compliance with the federal certification standard is

5-43     considered to be in compliance with the same state licensing

5-44     requirement.

5-45           [(b)  Notwithstanding Section 222.0255(b), an institution

5-46     that is certified as being in compliance with each standard of

5-47     participation in the state Medicaid program that relates to the

5-48     same subject matter as a minimum standard established under

5-49     Subsection (a) is not required to satisfy the minimum standard

5-50     established under that subsection.]

5-51           SECTION 1.10.  Subchapter B, Chapter 242, Health and Safety

5-52     Code, is amended by amending Section 242.042 and adding Section

5-53     242.0421 to read as follows:

5-54           Sec. 242.042.  POSTING.  Each institution shall prominently

5-55     and conspicuously post for display in a public area of the

5-56     institution that is readily available to residents, employees, and

5-57     visitors:

5-58                 (1)  the license issued under this chapter;

5-59                 (2)  a sign prescribed by the department that specifies

5-60     complaint procedures established under this chapter or rules

5-61     adopted under this chapter and that specifies how complaints may be

5-62     registered with the department;

5-63                 (3)  a notice in a form prescribed by the department

5-64     stating that licensing inspection reports and other related reports

5-65     which show deficiencies cited by the department are available at

5-66     the institution for public inspection and providing the

5-67     department's toll-free telephone number that may be used to obtain

5-68     information concerning the institution; [and]

5-69                 (4)  a concise summary of the most recent inspection

 6-1     report relating to the institution;

 6-2                 (5)  notice that the department can provide summary

 6-3     reports relating to the quality of care, recent investigations,

 6-4     litigation, and other aspects of the operation of the institution;

 6-5                 (6)  notice that the Texas Board of Nursing Facility

 6-6     Administrators can provide information about the nursing facility

 6-7     administrator; and

 6-8                 (7)  any notice or written statement required to be

 6-9     posted under Section 242.072(b).

6-10           Sec. 242.0421.  AVAILABILITY OF REPORTS.  A facility shall

6-11     make licensing inspection reports and other reports which show

6-12     deficiencies cited by the department available in a well-lit,

6-13     public area that is easily accessible by both residents and the

6-14     public.

6-15           SECTION 1.11.  Section 242.061, Health and Safety Code, is

6-16     amended by amending Subsection (a) and adding Subsection (c) to

6-17     read as follows:

6-18           (a)  The department, after providing notice and opportunity

6-19     for a hearing to the applicant or license holder, may deny,

6-20     suspend, or revoke a license if the department finds that the

6-21     applicant, the [or] license holder, or any other person described

6-22     by Section 242.032(d) has:

6-23                 (1)  violated this chapter or a rule, standard, or

6-24     order adopted or license issued under this chapter;

6-25                 (2)  committed any act described by Sections

6-26     242.066(a)(2)-(6); or

6-27                 (3)  otherwise [substantially] failed to comply with

6-28     the requirements established under this chapter.

6-29           (c)  The department may deny, suspend, or revoke the license

6-30     of an institution if any person described by Section 242.032(d) has

6-31     been excluded from holding a license under Section 242.0615.

6-32           SECTION 1.12.  Subchapter C, Chapter 242, Health and Safety

6-33     Code, is amended by adding Section 242.0615 to read as follows:

6-34           Sec. 242.0615.  EXCLUSION.  (a)  The department, after

6-35     providing notice and opportunity for a hearing, may exclude a

6-36     person from eligibility for a license under this chapter if the

6-37     person has substantially failed to comply with this chapter and the

6-38     rules adopted under this chapter.

6-39           (b)  Exclusion of a person under this section must extend for

6-40     a period of at least two years but may not exceed a period of 10

6-41     years.

6-42           SECTION 1.13.  Subsection (a), Section 242.063, Health and

6-43     Safety Code, is amended to read as follows:

6-44           (a)  The department may petition a district court for:

6-45                 (1)  a temporary restraining order to restrain a person

6-46     from [continuing] a violation or threatened violation of the

6-47     standards imposed under [prescribed by] this chapter or any other

6-48     law affecting residents if the department reasonably believes

6-49     [finds] that the violation or threatened violation creates an

6-50     immediate threat to the health and safety of a resident; and

6-51                 (2)  an injunction to restrain a person from a

6-52     violation or threatened violation of the standards imposed under

6-53     this chapter or by any other law affecting residents if the

6-54     department reasonably believes that the violation or threatened

6-55     violation creates a threat to the health and safety of a resident

6-56     [the institution's residents].

6-57           SECTION 1.14.  Section 242.065, Health and Safety Code, is

6-58     amended to read as follows:

6-59           Sec. 242.065.  CIVIL PENALTY.  (a)  A person who violates or

6-60     causes a violation of this chapter or a rule adopted under this

6-61     chapter is liable for a civil penalty of not less than $1,000

6-62     [$100] or  more than $25,000 [$10,000] for each act of violation if

6-63     the  department determines the violation threatens the health and

6-64     safety of a resident.

6-65           (b)  In determining the amount of a penalty to be awarded

6-66     under this section, the trier of fact shall consider:

6-67                 (1)  the seriousness of the violation, including the

6-68     nature, circumstances, extent, and gravity of the violation and the

6-69     hazard or potential hazard created by the violation to the health

 7-1     or safety of a resident;

 7-2                 (2)  the history of violations committed by the person

 7-3     or the person's affiliate, employee, or controlling person;

 7-4                 (3)  the amount necessary to deter future violations;

 7-5                 (4)  the efforts made to correct the violation;

 7-6                 (5)  any misrepresentation made to the department or to

 7-7     another person regarding:

 7-8                       (A)  the quality of services rendered or to be

 7-9     rendered to residents;

7-10                       (B)  the compliance history of the institution or

7-11     any institutions owned or controlled by an owner or controlling

7-12     person of the institution; or

7-13                       (C)  the identity of an owner or controlling

7-14     person of the institution;

7-15                 (6)  the culpability of the individual who committed

7-16     the violation; and

7-17                 (7)  any other matter that should, as a matter of

7-18     justice or equity, be considered.

7-19           (c)  Each day of a continuing violation and each resident who

7-20     suffers directly because of the violation constitutes a separate

7-21     ground for recovery.

7-22           (d)  Any party to a suit under this section may request a

7-23     jury.

7-24           (e)  If a person who is liable under this section fails to

7-25     pay any amount the person is obligated to pay under this section,

7-26     the state may seek satisfaction from any owner, other controlling

7-27     person, or affiliate of the person found liable.  The owner, other

7-28     controlling person, or affiliate may be found liable in the same

7-29     suit or in another suit on a showing by the state that the amount

7-30     to be paid has not been paid or otherwise legally discharged. The

7-31     department by rule may establish a method for satisfying an

7-32     obligation imposed under this section from an insurance policy,

7-33     letter of credit, or other contingency fund.

7-34           (f)  A payment made to satisfy an obligation under this

7-35     section is not an allowable cost for reimbursement under the state

7-36     Medicaid program.

7-37           (g)  A civil penalty awarded under this section constitutes a

7-38     fine, penalty, or forfeiture payable to and for the benefit of a

7-39     government unit and is not compensation for actual pecuniary loss.

7-40           SECTION 1.15.  Section 242.066, Health and Safety Code, is

7-41     amended by amending Subsections (a) and (b) and adding Subsections

7-42     (f), (g), and (h) to read as follows:

7-43           (a)  The department may assess an administrative [a civil]

7-44     penalty against a person who:

7-45                 (1)  violates this chapter or a rule, standard, or

7-46     order adopted or license issued under this chapter;

7-47                 (2)  makes a false statement, that the person knows is

7-48     false, of a material fact:

7-49                       (A)  on an application for issuance or renewal of

7-50     a license or in an attachment to the application; or

7-51                       (B)  with respect to a matter under investigation

7-52     by the department;

7-53                 (3)  refuses to allow a representative of the

7-54     department to inspect:

7-55                       (A)  a book, record, or file required to be

7-56     maintained by an institution; or

7-57                       (B)  any portion of the premises of an

7-58     institution;

7-59                 (4)  wilfully interferes with the work of a

7-60     representative of the department or the enforcement of this

7-61     chapter;

7-62                 (5)  wilfully interferes with a representative of the

7-63     department preserving evidence of a violation of this chapter or a

7-64     rule, standard, or order adopted or license issued under this

7-65     chapter; or

7-66                 (6)  fails to pay a penalty assessed by the department

7-67     under this chapter not later than the 10th day after the date the

7-68     assessment of the penalty becomes final.

7-69           (b)  Except as provided by Subsection (f) and Section

 8-1     242.0665(c), the [The] penalty may not exceed $10,000 a day for

 8-2     each violation.

 8-3           (f)  The penalty for a violation of Section 242.072(b) or a

 8-4     right of a resident adopted under Subchapter L may not exceed

 8-5     $1,000 a day for each violation.  This subsection does not apply to

 8-6     conduct that violates both Subchapter K or a standard adopted under

 8-7     Subchapter K and a right of a resident adopted under Subchapter L.

 8-8           (g)  The persons against whom an administrative penalty may

 8-9     be assessed under Subsection (a) include:

8-10                 (1)  an applicant for a license under this chapter;

8-11                 (2)  a license holder;

8-12                 (3)  a partner, officer,  director, or managing

8-13     employee of a license holder or applicant; and

8-14                 (4)  a person who controls an institution.

8-15           (h)  A penalty assessed under Subsection (a)(6) is in

8-16     addition to the penalty previously assessed and not timely paid.

8-17           SECTION 1.16.  Subchapter C, Chapter 242, Health and Safety

8-18     Code, is amended by adding Section 242.0665 to read as follows:

8-19           Sec. 242.0665.  RIGHT TO CORRECT.  (a)  The department may

8-20     not assess an administrative penalty against an institution under

8-21     this subchapter if, not later than the 60th day after the date the

8-22     institution receives notice under Section 242.067(c), the

8-23     institution corrects the violation.

8-24           (b)  Subsection (a) does not apply:

8-25                 (1)  to a violation that the department determines:

8-26                       (A)  results in serious harm to or death of a

8-27     resident;

8-28                       (B)  constitutes a serious threat to the health

8-29     or safety of a resident; or

8-30                       (C)  substantially limits the institution's

8-31     capacity to provide care;

8-32                 (2)  to a violation described by Sections

8-33     242.066(a)(2)-(6);

8-34                 (3)  to a violation of Section 242.133 or 242.1335; or

8-35                 (4)  to a violation of a right of a resident adopted

8-36     under Subchapter L.

8-37           (c)  An institution that corrects a violation under

8-38     Subsection (a) must maintain the correction.  If the institution

8-39     fails to maintain the correction until at least the first

8-40     anniversary of the date the correction was made, the department may

8-41     assess an administrative penalty under this subchapter for the

8-42     subsequent violation.  A penalty assessed under this subsection may

8-43     not exceed $30,000 a day for each violation.  The department is not

8-44     required to provide the institution an opportunity to correct the

8-45     subsequent violation under this section.

8-46           SECTION 1.17.  Sections 242.067, 242.068, 242.069, and

8-47     242.070, Health and Safety Code, are amended to read as follows:

8-48           Sec. 242.067.  REPORT RECOMMENDING ADMINISTRATIVE PENALTY.

8-49     (a)  The department may issue a preliminary report stating the

8-50     facts on which it concludes that a violation of this chapter or a

8-51     rule, standard, or order adopted or license issued under this

8-52     chapter has occurred if it has:

8-53                 (1)  [it has] examined the possible violation and facts

8-54     surrounding the possible violation; and

8-55                 (2)  concluded that a violation has occurred.

8-56           (b)  The report may recommend a penalty under Section 242.069

8-57     and the amount of the penalty.

8-58           (c)  The department shall give written notice of the report

8-59     to the person charged with the violation not later than the 10th

8-60     day after the date on which the report is issued.  The notice must

8-61     include:

8-62                 (1)  a brief summary of the charges;

8-63                 (2)  a statement of the amount of penalty recommended;

8-64     [and]

8-65                 (3)  a statement of whether the violation is subject to

8-66     correction under Section 242.0665 and, if the violation is subject

8-67     to correction under that section, a statement of:

8-68                       (A)  the date on which the institution must file

8-69     with the department a plan of correction to be approved by the

 9-1     department; and

 9-2                       (B)  the date on which the plan of correction

 9-3     must be completed to avoid assessment of the penalty; and

 9-4                 (4)  a statement that the person charged has a right to

 9-5     a hearing on the occurrence of the violation, the amount of the

 9-6     penalty, or both.

 9-7           (d)  Not later than the 20th day after the date on which the

 9-8     notice under Subsection (c) is sent, the person charged may:

 9-9                 (1)  give to the department written consent to the

9-10     department's report, including the recommended penalty; [or]

9-11                 (2)  make a written request for a hearing; or

9-12                 (3)  if the violation is subject to correction under

9-13     Section 242.0665, submit a plan of correction to the department for

9-14     approval.

9-15           (e)  If the violation is subject to correction under Section

9-16     242.0665, and the person reports to the department that the

9-17     violation has been corrected, the department shall inspect the

9-18     correction or take any other step necessary to confirm that the

9-19     violation has been corrected and shall notify the person that:

9-20                 (1)  the correction is satisfactory and that a penalty

9-21     is not assessed; or

9-22                 (2)  the correction is not satisfactory and that a

9-23     penalty is recommended.

9-24           (f)  Not later than the 20th day after the date on which a

9-25     notice under Subsection (e)(2) is sent, the person charged may:

9-26                 (1)  give to the department written consent to the

9-27     department's report, including the recommended penalty; or

9-28                 (2)  make a written request for a hearing.

9-29           (g)  If the person charged with the violation consents to the

9-30     administrative penalty recommended by the department or does not

9-31     timely respond to a [the] notice sent under Subsection (c) or (e),

9-32     the commissioner or the commissioner's designee shall[:]

9-33                 [(1)]  assess the administrative penalty recommended by

9-34     the department[; or]

9-35                 [(2)  order a hearing to be held on the findings and

9-36     recommendations in the department's report].

9-37           (h) [(f)]  If the commissioner or the commissioner's designee

9-38     assesses the recommended penalty, the department shall give written

9-39     notice to the person charged of the decision and the person shall

9-40     pay the penalty.

9-41           Sec. 242.068.  HEARING.  (a)  An administrative law judge

9-42     [The commissioner] shall order a hearing and give notice of the

9-43     hearing if[:]

9-44                 [(1)]  a person charged under this chapter requests a

9-45     hearing[; or]

9-46                 [(2)  the commissioner or the commissioner's designee

9-47     orders a hearing].

9-48           (b)  The hearing shall be held before an administrative law

9-49     judge [by a hearing examiner designated by the commissioner].

9-50           (c)  The administrative law judge [hearing examiner] shall

9-51     make findings of fact and conclusions of law [promptly issue to the

9-52     commissioner a written decision] regarding the occurrence of a

9-53     violation of this chapter or a rule or order adopted or license

9-54     issued under this chapter [and a recommendation regarding the

9-55     amount of the proposed penalty if a penalty is warranted].

9-56           (d)  Based on the findings of fact and conclusions of law

9-57     [recommendations of the hearing examiner], the administrative law

9-58     judge [commissioner] by order shall [may] find:

9-59                 (1)  a violation has occurred and assess an

9-60     administrative [a civil] penalty; or

9-61                 (2)  a violation has not occurred.

9-62           (e)  Proceedings under this section are subject to Chapter

9-63     2001, Government Code.

9-64           Sec. 242.069.  NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;

9-65     INTEREST; REFUND.  (a)  The commissioner shall give notice of the

9-66     decision taken under Section 242.068(d) to the person charged.  If

9-67     the commissioner finds that a violation has occurred and has

9-68     assessed an administrative [a civil] penalty, the commissioner

9-69     shall give written notice to the person charged of:

 10-1                (1)  the findings;

 10-2                (2)  [,] the amount of the penalty;

 10-3                (3)  the rate of interest payable with respect to the

 10-4    penalty and the date on which interest begins to accrue;

 10-5                (4)  whether payment of the penalty or other action

 10-6    under Section 242.071 is required;[,] and

 10-7                (5)  the person's right to judicial review of the

 10-8    order.

 10-9          (b)  Not later than the 10th [30th] day after the date on

10-10    which the commissioner's order is final, the person charged with

10-11    the penalty shall:

10-12                (1)  pay the full amount of the penalty;

10-13                (2)  pay the penalty and file a petition for judicial

10-14    review; or

10-15                (3)  without paying the penalty, file a petition for

10-16    judicial review.

10-17          (c)  Notwithstanding Subsection (b), the department may

10-18    permit the person to pay the penalty in installments or may require

10-19    the person to use the amount of the penalty under the department's

10-20    supervision in accordance with Section 242.071.

10-21          (d)  If the person does not pay the penalty within the 10-day

10-22    period:

10-23                (1)  the penalty is subject to interest; and

10-24                (2)  the department may refer the matter to the

10-25    attorney general for collection of the penalty and interest [If the

10-26    person seeks judicial review of the violation, the amount of the

10-27    penalty, or both, the person, within the time provided by

10-28    Subsection (b), shall:]

10-29                [(1)  send the amount of the penalty to the

10-30    commissioner for placement in an escrow account; or]

10-31                [(2)  post with the commissioner a supersedeas bond in

10-32    a form approved by the commissioner for the amount of the penalty,

10-33    the bond to be effective until the judicial review of the order or

10-34    decision is final.]

10-35          [(d)  A person who fails to comply with Subsection (c) waives

10-36    the right to judicial review, and the commissioner may request

10-37    enforcement by the attorney general].

10-38          (e)  If a penalty is reduced or not assessed, the

10-39    commissioner shall:

10-40                (1)  remit to the person charged the appropriate amount

10-41    of any penalty payment plus accrued interest; or

10-42                (2)  execute a release of the supersedeas bond if one

10-43    has been posted.

10-44          (f)  Accrued interest on amounts remitted by the commissioner

10-45    under Subsection (e)(1) shall be paid:

10-46                (1)  at a rate equal to the rate charged on loans to

10-47    depository institutions by the New York Federal Reserve Bank; and

10-48                (2)  for the period beginning on the date the penalty

10-49    is paid [to the commissioner] under Subsection (b) [(c)] and ending

10-50    on the date the penalty is remitted.

10-51          (g)  Accrued interest on amounts collected after the

10-52    expiration of the 10-day period under Subsection (d) shall be

10-53    paid:

10-54                (1)  at a rate equal to the rate charged on loans to

10-55    the depository institutions by the New York Federal Reserve Bank;

10-56    and

10-57                (2)  for the period beginning on the date the notice of

10-58    the commissioner's order is received by the person and ending on

10-59    the date the penalty is paid.  [A penalty collected under this

10-60    section shall be deposited to the credit of the nursing and

10-61    convalescent home trust fund established under Section 242.096.]

10-62          Sec. 242.070.  APPLICATION OF OTHER LAW.  The department may

10-63    not assess more than one monetary [a] penalty under [both] this

10-64    chapter [subchapter and Section 32.021, Human Resources Code,] for

10-65    a violation arising out of the same act or failure to act, except

10-66    as provided by Section 242.0665(c).  This section does not prohibit

10-67    the department from assessing a monetary penalty under this chapter

10-68    and a monetary penalty under Chapter 32, Human Resources Code, for

10-69    the same act or failure to act.

 11-1          SECTION 1.18.  Subchapter C, Chapter 242, Health and Safety

 11-2    Code, is amended by adding Sections 242.071, 242.072, and 242.073

 11-3    to read as follows:

 11-4          Sec. 242.071.  AMELIORATION OF VIOLATION.  In lieu of

 11-5    ordering payment of the administrative penalty under Section

 11-6    242.069, the commissioner may require the person to use, under the

 11-7    supervision of the department, any portion of the penalty to

 11-8    ameliorate the violation or to improve services, other than

 11-9    administrative services, in the institution affected by the

11-10    violation.

11-11          Sec. 242.072.  OTHER REMEDIES.  (a)  If the commissioner

11-12    finds that an institution has committed an act for which an

11-13    administrative penalty may be imposed under Section 242.066, the

11-14    commissioner may, as appropriate under the circumstances, order the

11-15    institution to suspend admissions.

11-16          (b)  During the period that an institution is ordered to

11-17    suspend admissions, the institution shall post a notice of the

11-18    suspension on all doors providing ingress to and egress from the

11-19    institution.  The notice shall be posted in the form required by

11-20    the department.

11-21          (c)  A person commits an offense if the person knowingly:

11-22                (1)  violates Subsection (b); or

11-23                (2)  removes a notice posted under Subsection (b)

11-24    before the facility is allowed to admit residents.

11-25          (d)  An offense under Subsection (c) is a Class C

11-26    misdemeanor.

11-27          Sec. 242.073.  LEGAL ACTION BY THE ATTORNEY GENERAL.

11-28    (a)  The department and the attorney general shall work in close

11-29    cooperation throughout any legal proceedings requested by the

11-30    department.

11-31          (b)  The commissioner must approve any settlement agreement

11-32    to a suit brought under this chapter or any other law relating to

11-33    the health and safety of residents in institutions.

11-34          SECTION 1.19.  Subsection (e), Section 242.096, Health and

11-35    Safety Code, is amended to read as follows:

11-36          (e)  Any unencumbered amount in the nursing and convalescent

11-37    home trust fund in excess of $500,000 [$100,000] at the end of each

11-38    fiscal year shall be transferred to the credit of the general

11-39    revenue fund and may be appropriated only to the department for its

11-40    use in administering and enforcing this chapter.

11-41          SECTION 1.20.  Section 242.097, Health and Safety Code, is

11-42    amended to read as follows:

11-43          Sec. 242.097.  ADDITIONAL LICENSE FEE.  (a)  In addition to

11-44    the license fee provided by Section 242.034, the department shall

11-45    adopt an annual fee to be charged and collected if the amount of

11-46    the nursing and convalescent home trust fund is less than $500,000

11-47    [$100,000].  The fee shall be deposited to the credit of the

11-48    nursing and convalescent home trust fund created by this

11-49    subchapter.

11-50          (b)  The department shall set the fee for each nursing and

11-51    convalescent home at $1 for each licensed unit of capacity or bed

11-52    space in that home or in an amount necessary to provide $500,000

11-53    [$100,000] in the fund.

11-54          SECTION 1.21.  Subchapter E, Chapter 242, Health and Safety

11-55    Code, is amended by adding Section 242.1225 to read as follows:

11-56          Sec. 242.1225.  ADDITIONAL REPORTING REQUIREMENT.  (a)  The

11-57    board shall adopt rules requiring any person required to report

11-58    abuse or neglect under Section 242.122 to report other conduct or

11-59    conditions specified by the rules.  The rules must require

11-60    reporting of conduct or conditions resulting in exploitation of

11-61    residents and accidental injury to or hospitalization of residents.

11-62          (b)  A report made under this section must be made in the

11-63    manner specified by board rule.

11-64          SECTION 1.22.  Section 242.126, Health and Safety Code, is

11-65    amended to read as follows:

11-66          Sec. 242.126.  INVESTIGATION AND REPORT OF DEPARTMENT OR

11-67    DESIGNATED [RECEIVING] AGENCY.  (a)  The department or the

11-68    designated agency shall make a thorough investigation [promptly]

11-69    after receiving an [either the] oral or written report of abuse or

 12-1    neglect under Section 242.122 or another complaint alleging abuse

 12-2    or neglect.

 12-3          (b)  The primary purpose of the investigation is the

 12-4    protection of the resident.

 12-5          (c)  The agency shall begin the investigation:

 12-6                (1)  within 24 hours of receipt of the report or other

 12-7    allegation if the report of abuse or neglect or other complaint

 12-8    alleges that:

 12-9                      (A)  a resident's health or safety is in imminent

12-10    danger;

12-11                      (B)  a resident has recently died because of

12-12    conduct alleged in the report of abuse or neglect or other

12-13    complaint; or

12-14                      (C)  a resident has been hospitalized or has been

12-15    treated in an emergency room because of conduct alleged in the

12-16    report of abuse or neglect or other complaint; or

12-17                (2)  before the end of the next working day after the

12-18    date of receipt of the report of abuse or neglect or other

12-19    complaint if the report or complaint alleges the existence of

12-20    circumstances that could result in abuse or neglect and that could

12-21    place a resident's health or safety in imminent danger.

12-22          (d)  The department shall adopt rules governing the conduct

12-23    of investigations, including procedures to ensure that the

12-24    complainant and the resident, the resident's next of kin, and any

12-25    person designated to receive information concerning the resident

12-26    receive periodic information regarding the investigation.

12-27          (e)  In investigating the report of abuse or neglect or other

12-28    complaint, the investigator for the investigating agency shall:

12-29                (1)  make an unannounced visit to the institution to

12-30    determine the nature and cause of the alleged abuse or neglect of

12-31    the resident;

12-32                (2)  interview each available witness identified by any

12-33    source as having personal knowledge relevant to the report of abuse

12-34    or neglect or other complaint;

12-35                (3)  personally inspect any physical circumstance that

12-36    is relevant and material to the report of abuse or neglect or other

12-37    complaint and that may be objectively observed; and

12-38                (4)  write an investigation report that includes:

12-39                      (A)  the investigator's personal observations;

12-40                      (B)  a review of relevant documents and records;

12-41                      (C)  a summary of each witness statement; and

12-42                      (D)  a statement of the factual basis for the

12-43    findings for each incident or problem alleged in the report or

12-44    other allegation.

12-45          (f)  An investigator for an investigating agency shall

12-46    conduct an interview under Subsection (e)(2) in private unless the

12-47    witness expressly requests that the interview not be private.

12-48          (g)  Not later than the 30th day after the date the

12-49    investigation is complete, the investigator shall prepare the

12-50    written report required by Subsection (e).  The department shall

12-51    make the investigation report available to the public on request

12-52    after the date the department's letter of determination is

12-53    complete.  The department shall delete from any copy made available

12-54    to the public the name of:

12-55                (1)  any resident, unless the department receives

12-56    written authorization from a resident or the resident's legal

12-57    representative requesting the resident's name be left in the

12-58    report;

12-59                (2)  the person making the report of abuse or neglect

12-60    or other complaint; and

12-61                (3)  an individual interviewed in the investigation.

12-62          (h)  In the investigation, the department or the designated

12-63    agency shall determine:

12-64                (1)  the nature, extent, and cause of the abuse or

12-65    neglect;

12-66                (2)  the identity of the person responsible for the

12-67    abuse or neglect;

12-68                (3)  the names and conditions of the other residents;

12-69                (4)  an evaluation of the persons responsible for the

 13-1    care of the residents;

 13-2                (5)  the adequacy of the institution environment; and

 13-3                (6)  any other information required by the department.

 13-4          (i) [(d)  The investigation may include a visit to the

 13-5    resident's institution and an interview with the resident if these

 13-6    actions are determined by the department to be appropriate.]

 13-7          [(e)]  If the department attempts to carry out an on-site

 13-8    investigation and it is shown that admission to the institution, or

 13-9    any place where the resident is located, cannot be obtained, a

13-10    probate or county court shall order the person responsible for the

13-11    care of the resident or the person in charge of a place where the

13-12    resident is located to allow entrance for the interview and

13-13    investigation.

13-14          (j) [(f)]  Before the completion of the investigation the

13-15    department shall file a petition for temporary care and protection

13-16    of the resident if the department determines that immediate removal

13-17    is necessary to protect the resident from further abuse or neglect.

13-18          (k) [(g)]  The department or the designated agency shall make

13-19    a complete final written report of the investigation and submit the

13-20    report and its recommendations to the district attorney and, if a

13-21    law enforcement agency has not investigated the report of abuse or

13-22    neglect or other complaint, to the appropriate law enforcement

13-23    agency.

13-24          SECTION 1.23.  Section 242.127, Health and Safety Code, is

13-25    amended to read as follows:

13-26          Sec. 242.127.  CONFIDENTIALITY.  The name of a person making

13-27    a [A] report[, record, or working paper used or developed in an

13-28    investigation made] under this subchapter is confidential and may

13-29    be disclosed only for purposes consistent with the rules adopted by

13-30    the board or the designated agency.

13-31          SECTION 1.24.  Subsection (a), Section 242.133, Health and

13-32    Safety Code, is amended to read as follows:

13-33          (a)  A person has a cause of action against an institution,

13-34    or the owner or employee of the institution, that suspends or

13-35    terminates the employment of the person or otherwise disciplines or

13-36    discriminates or retaliates against the person for making a report

13-37    under this subchapter to [reporting the abuse or neglect of a

13-38    resident to the person's supervisors,] the department[,] or a law

13-39    enforcement agency, for reporting the abuse or neglect or other

13-40    complaint to the person's supervisors, or for initiating or

13-41    cooperating in any investigation or proceeding of a governmental

13-42    entity relating to care, services, or conditions at the

13-43    institution.

13-44          SECTION 1.25.  Subsection (a), Section 242.1335, Health and

13-45    Safety Code, is amended to read as follows:

13-46          (a)  An institution may not retaliate or discriminate against

13-47    a resident if the resident, the resident's guardian, or any other

13-48    person makes a complaint or files a grievance concerning the

13-49    facility or reports [abuse or neglect] in accordance with this

13-50    chapter [subchapter].

13-51          SECTION 1.26.  Subchapter H, Chapter 242, Health and Safety

13-52    Code, as added by Section 5, Chapter 1049, Acts of the 74th

13-53    Legislature, 1995, is redesignated as Subchapter J and the

13-54    subchapter heading is amended to read as follows:

13-55            SUBCHAPTER J [H].  ARBITRATION OF CERTAIN DISPUTES

13-56          SECTION 1.27.  Subsection (c), Section 242.253, Health and

13-57    Safety Code, is amended to read as follows:

13-58          (c)  The party that elects arbitration [department] shall pay

13-59    the cost of the arbitration [if the department elects the

13-60    arbitration.  The cost of the arbitration shall be shared equally

13-61    by the department and the institution if the institution elects the

13-62    arbitration].  The total fees and expenses paid for an arbitrator

13-63    for a day may not exceed $500.

13-64          SECTION 1.28.  Subchapter H, Chapter 242, Health and Safety

13-65    Code, redesignated as Subchapter J by Section 1.26 of this Act, is

13-66    amended by amending Sections 242.267 and 242.268 and adding Section

13-67    242.269 to read as follows:

13-68          Sec. 242.267.  COURT VACATING ORDER.  (a)  On a finding

13-69    described by Subsection (b) [application of the institution], a

 14-1    court shall:

 14-2                (1)  on application of an institution, vacate an

 14-3    arbitrator's order with respect to an arbitration conducted at the

 14-4    election of the department; or

 14-5                (2)  on application of the department, vacate an

 14-6    arbitrator's order with respect to an arbitration conducted at the

 14-7    election of an institution.

 14-8          (b)  A court shall vacate an arbitrator's order under

 14-9    Subsection (a) only on a finding that:

14-10                (1)  the order was procured by corruption, fraud, or

14-11    misrepresentation;

14-12                (2)  the decision of the arbitrator was arbitrary or

14-13    capricious and against the weight of the evidence; or

14-14                (3)  the order exceeded the jurisdiction of the

14-15    arbitrator under Section 242.264(a).

14-16          (c) [(b)]  If the order is vacated, the dispute shall be

14-17    remanded to the department for another arbitration proceeding.

14-18          (d) [(c)]  A suit to vacate an arbitrator's order must be

14-19    filed not later than the 30th day after:

14-20                (1)  the date of the award; or

14-21                (2)  the date the institution or department knew or

14-22    should have known of a basis for suit under this section, but in no

14-23    event later than the first anniversary of the date of the order.

14-24          (e) [(d)]  Venue for a suit to vacate an arbitrator's order

14-25    is in the county in which the arbitration was conducted.

14-26          Sec. 242.268.  NO ARBITRATION IN CASE OF EMERGENCY ORDER OR

14-27    CLOSING ORDER.  This subchapter does not apply to an order issued

14-28    under Section 242.062, and neither the department nor the

14-29    institution may elect to arbitrate a dispute if the subject matter

14-30    of the dispute is part of the basis for suspension of admission or

14-31    revocation, denial, or suspension of an institution's license or

14-32    issuance of a closing order under Section 242.062.

14-33          Sec. 242.269.  NO ARBITRATION OF CIVIL PENALTY UNDER SECTION

14-34    242.065 WITHOUT CERTIFICATION OF THE DEPARTMENT AND ATTORNEY

14-35    GENERAL.  This subchapter does not apply to a civil penalty under

14-36    Section 242.065 unless the commissioner and the attorney general

14-37    certify that the material of the findings by the department justify

14-38    the option of arbitration.  Certification of eligibility for

14-39    arbitration must occur no later than 30 calendar days after the

14-40    receipt of a referral from the department by the attorney general.

14-41    The department and attorney general jointly shall notify the

14-42    institution that the case is eligible for arbitration no later than

14-43    10 days after certification.  Certification does not imply an

14-44    election of arbitration by the state.

14-45          SECTION 1.29.  Chapter 242, Health and Safety Code, is

14-46    amended by redesignating Subchapter F as Subchapter N and adding a

14-47    new Subchapter F and Subchapters K, L, M, and O to read as follows:

14-48           SUBCHAPTER F.  MEDICAL, NURSING, AND DENTAL SERVICES

14-49                  OTHER THAN ADMINISTRATION OF MEDICATION

14-50          Sec. 242.151.  PHYSICIAN SERVICES.  (a)  An institution shall

14-51    have at least one medical director who is licensed as a physician

14-52    in this state.

14-53          (b)  The attending physician is responsible for a resident's

14-54    assessment and comprehensive plan of care and shall review, revise,

14-55    and sign orders relating to any medication or treatment in the plan

14-56    of care.  The responsibilities imposed on the attending physician

14-57    by this subsection may be performed by an advanced practice nurse

14-58    or a physician assistant pursuant to protocols jointly developed

14-59    with the attending physician.

14-60          (c)  Each resident has the right to choose a personal

14-61    attending physician.

14-62          Sec. 242.152.  PHYSICIAN SERVICES FOR RESIDENTS YOUNGER THAN

14-63    18 YEARS OF AGE.  (a)  An institution shall use appropriate

14-64    pediatric consultative services for a resident younger than 18

14-65    years of age, in accordance with the resident's assessment and

14-66    comprehensive plan of care.

14-67          (b)  A pediatrician or other physician with training or

14-68    expertise in the clinical care of children with complex medical

14-69    needs shall participate in all aspects of the resident's medical

 15-1    care.

 15-2          Sec. 242.153.  DIRECTOR OF NURSING SERVICES.  (a)  An

 15-3    institution shall have a director of nursing services who shall be

 15-4    a registered nurse.  The director of nursing services is

 15-5    responsible for:

 15-6                (1)  coordinating each resident's comprehensive plan of

 15-7    care; and

 15-8                (2)  ensuring that only personnel with an appropriate

 15-9    license or permit administer medication.

15-10          (b)  The department may grant a waiver requested by the

15-11    facility from the requirement that the director of nursing be a

15-12    registered nurse.

15-13          Sec. 242.154.  NURSING SERVICES.  (a)  An institution shall

15-14    provide the nursing care required to allow each resident to achieve

15-15    and maintain the highest possible degree of function and

15-16    independence medically possible.

15-17          (b)  The institution shall maintain sufficient nursing staff

15-18    to ensure appropriate resident care.

15-19          Sec. 242.155.  PEDIATRIC NURSING SERVICES.  An institution

15-20    shall ensure that:

15-21                (1)  nursing services for a resident younger than 18

15-22    years of age are provided by a staff member who has been instructed

15-23    and has demonstrated competence in the care of children; and

15-24                (2)  consultative pediatric nursing services are

15-25    available to the staff if the institution has a resident younger

15-26    than 18 years of age.

15-27          Sec. 242.156.  REQUIRED MEDICAL EXAMINATION.  (a)  Except as

15-28    required by federal law, the department shall require that each

15-29    resident be given at least one medical examination each year.

15-30          (b)  The department shall specify the details of the

15-31    examination.

15-32          Sec. 242.157.  DENTAL EXAMINATION.  (a)  The department shall

15-33    require that each resident of an institution or the resident's

15-34    custodian be asked at least once each year if the resident desires

15-35    a dental examination and possible treatment at the resident's own

15-36    expense.

15-37          (b)  Each institution shall be encouraged to use all

15-38    reasonable efforts to arrange for a dental examination for each

15-39    resident who desires one.

15-40          (c)  The institution is not liable for any costs relating to

15-41    a dental examination under this section.

15-42                      SUBCHAPTER K.  QUALITY OF CARE

15-43          Sec. 242.401.  QUALITY OF LIFE.  An institution shall care

15-44    for its residents in a manner and in an environment that promotes

15-45    maintenance or enhancement of each resident's quality of life.  An

15-46    institution that admits a resident who is younger than 18 years of

15-47    age must provide care to meet the resident's unique medical and

15-48    developmental needs.

15-49          Sec. 242.402.  QUALITY OF CARE.  An institution shall provide

15-50    to each resident any care or service needed to enable the resident

15-51    to attain and maintain the highest practicable level of physical,

15-52    emotional, and social well-being, in accordance with each

15-53    resident's individual assessment and comprehensive plan of care.

15-54          Sec. 242.403.  STANDARDS FOR QUALITY OF LIFE AND QUALITY OF

15-55    CARE.  (a)  The department shall adopt standards to implement

15-56    Sections 242.401 and 242.402.  Those standards must, at a minimum,

15-57    address:

15-58                (1)  the admission of residents, including appropriate

15-59    prohibitions on admission of a resident the facility is unable to

15-60    adequately serve;

15-61                (2)  the admission of a resident younger than 18 years

15-62    of age and the actions the facility must take to meet the

15-63    resident's unique medical and developmental needs, including

15-64    necessary accommodations, furnishings, and equipment and staff

15-65    training;

15-66                (3)  development by an institution of an initial

15-67    assessment and comprehensive plan of care for each resident,

15-68    including the matters to be addressed by the initial assessment and

15-69    the comprehensive plan of care and the time frame for developing

 16-1    the assessment and the plan;

 16-2                (4)  transfer and discharge of a resident, including

 16-3    appropriate notice to the resident and the resident's guardian or

 16-4    next of kin;

 16-5                (5)  clinical records required to be maintained by an

 16-6    institution for each resident, the content of the records, and the

 16-7    manner in which the records are maintained, including standards to

 16-8    ensure the confidentiality of the records;

 16-9                (6)  infection control at each institution;

16-10                (7)  rehabilitative services to be provided or made

16-11    available by the facility;

16-12                (8)  food service;

16-13                (9)  nutrition services, sufficient to assure each

16-14    resident a nourishing, palatable, well-balanced diet that meets the

16-15    daily nutritional and special dietary needs of each resident, which

16-16    are provided by a director of food services who is licensed by the

16-17    Texas State Board of Examiners of Dietitians, or if not so

16-18    licensed, who is in frequent, scheduled consultation with a person

16-19    who is licensed by the State Board of Examiners of Dietitians for

16-20    not fewer than eight hours per month for a facility having 60 or

16-21    fewer residents, plus four additional hours per month for each

16-22    additional 30 residents or fraction thereof;

16-23                (10)  social services and activities to be provided or

16-24    to be made available by a facility;

16-25                (11)  monitoring a resident's weight;

16-26                (12)  the prevention and treatment of pressure sores;

16-27                (13)  bladder and bowel retraining programs for

16-28    residents;

16-29                (14)  prevention of complications from nasogastric or

16-30    gastrostomy tube feedings;

16-31                (15)  relocation of a resident within an institution;

16-32                (16)  postmortem procedures for deceased residents,

16-33    including procedures necessary to protect the dignity of a deceased

16-34    resident and to properly deliver the deceased resident's personal

16-35    belongings; and

16-36                (17)  appropriate use of chemical and physical

16-37    restraints.

16-38          (b)  The department may adopt standards in addition to those

16-39    required by Subsection (a) to implement Sections 242.401 and

16-40    242.402.

16-41          Sec. 242.404.  POLICIES, PROCEDURES, AND PRACTICES FOR

16-42    QUALITY OF CARE AND QUALITY OF LIFE.  (a)  Each institution shall

16-43    comply with the standards adopted under this subchapter and  shall

16-44    develop written operating policies to implement those standards.

16-45          (b)  The policies and procedures must be available to each

16-46    physician, staff member, resident, and resident's next of kin or

16-47    guardian and to the public.

16-48             (Sections 242.405-242.500 reserved for expansion

16-49                    SUBCHAPTER L.  RIGHTS OF RESIDENTS

16-50          Sec. 242.501.  RESIDENT'S RIGHTS.  (a)  The department by

16-51    rule shall adopt a statement of the rights of a resident.  The

16-52    statement must be consistent with Chapter 102, Human Resources

16-53    Code, but shall reflect the unique circumstances of a resident at

16-54    an institution.  At a minimum, the statement of the rights of a

16-55    resident must address the resident's constitutional, civil, and

16-56    legal rights and the resident's right:

16-57                (1)  to be free from abuse and exploitation;

16-58                (2)  to safe, decent, and clean conditions;

16-59                (3)  to be treated with courtesy, consideration, and

16-60    respect;

16-61                (4)  to not be subjected to discrimination based on

16-62    age, race, religion, sex, nationality, or disability and to

16-63    practice the resident's own religious beliefs;

16-64                (5)  to privacy, including privacy during visits and

16-65    telephone calls;

16-66                (6)  to complain about the institution and to organize

16-67    or participate in any program that presents residents' concerns to

16-68    the administrator of the institution;

16-69                (7)  to have information about the resident in the

 17-1    possession of the institution maintained as confidential;

 17-2                (8)  to retain the services of a physician the resident

 17-3    chooses, at the resident's own expense or through a health care

 17-4    plan, and to have a physician explain to the resident, in language

 17-5    that the resident understands, the resident's complete medical

 17-6    condition, the recommended treatment, and the expected results of

 17-7    the treatment;

 17-8                (9)  to participate in developing a plan of care, to

 17-9    refuse treatment, and to refuse to participate in experimental

17-10    research;

17-11                (10)  to a written statement or admission agreement

17-12    describing the services provided by the institution and the related

17-13    charges;

17-14                (11)  to manage the resident's own finances or to

17-15    delegate that responsibility to another person;

17-16                (12)  to access money and property that the resident

17-17    has deposited with the institution and to an accounting of the

17-18    resident's money and property that are deposited with the

17-19    institution and of all financial transactions made with or on

17-20    behalf of the resident;

17-21                (13)  to keep and use personal property, secure from

17-22    theft or loss;

17-23                (14)  to not be relocated within the institution,

17-24    except in accordance with standards adopted by the department under

17-25    Section 242.403;

17-26                (15)  to receive visitors;

17-27                (16)  to receive unopened mail and to receive

17-28    assistance in reading or writing correspondence;

17-29                (17)  to participate in activities inside and outside

17-30    the institution;

17-31                (18)  to wear the resident's own clothes;

17-32                (19)  to discharge himself or herself from the

17-33    institution unless the resident is an adjudicated mental

17-34    incompetent;

17-35                (20)  to not be discharged from the institution except

17-36    as provided in the standards adopted by the department under

17-37    Section 242.403; and

17-38                (21)  to be free from any physical or chemical

17-39    restraints imposed for the purposes of discipline or convenience,

17-40    and not required to treat the resident's medical symptoms.

17-41          (b)  The department may adopt rights of residents in addition

17-42    to those required by Subsection (a) and may consider additional

17-43    rights applicable to residents in other jurisdictions.

17-44          Sec. 242.502.  RIGHTS CUMULATIVE.  The rights established

17-45    under this subchapter are cumulative of the rights established

17-46    under Chapter 102, Human Resources Code, and any other law.

17-47          Sec. 242.503.  DUTIES OF INSTITUTION.  (a)  An institution

17-48    shall develop and implement policies to protect resident rights.

17-49          (b)  An institution and the staff of an institution may not

17-50    violate a right adopted under this subchapter.

17-51          Sec. 242.504.  INFORMATION ABOUT RESIDENT'S RIGHTS AND

17-52    VIOLATIONS.  (a)  An institution shall inform each resident and the

17-53    resident's next of kin or guardian of the rights adopted under this

17-54    subchapter and shall explain the rights to the resident and the

17-55    resident's next of kin or guardian.  The institution shall provide

17-56    a written statement of:

17-57                (1)  all of the resident's rights; and

17-58                (2)  any additional rules adopted by the institution

17-59    involving resident rights and responsibilities.

17-60          (b)  The institution shall provide a copy of the written

17-61    statement to:

17-62                (1)  each resident;

17-63                (2)  the next of kin or guardian of each resident; and

17-64                (3)  each member of the staff of the institution.

17-65          (c)  The institution shall maintain a copy of the statement,

17-66    signed by the resident or the resident's next of kin or guardian,

17-67    in the institution's records.

17-68          (d)  The institution shall post the written statement in the

17-69    manner required by Section 242.042.

 18-1             (Sections 242.505-242.550 reserved for expansion

 18-2                   SUBCHAPTER M.  COMPLAINT INSPECTIONS

 18-3          Sec. 242.551.  COMPLAINT REQUESTING INSPECTION.  (a)  A

 18-4    person may request an inspection of an institution in accordance

 18-5    with this chapter by making a complaint notifying the department of

 18-6    an alleged violation of law and requesting an inspection.

 18-7          (b)  The department shall encourage a person who makes an

 18-8    oral complaint under Subsection (a) to submit a written, signed

 18-9    complaint.

18-10          Sec. 242.552.  DISCLOSURE OF SUBSTANCE OF COMPLAINT.  The

18-11    department may not provide information to the institution relating

18-12    to the substance of a complaint made under this subchapter before

18-13    an on-site inspection is begun in accordance with this subchapter.

18-14          Sec. 242.553.  CONFIDENTIALITY.  The name of the person

18-15    making the complaint is confidential and may not be released to the

18-16    institution or any other person unless the person making the

18-17    complaint specifically requests that the person's name be released.

18-18          Sec. 242.554.  PRELIMINARY REVIEW OF COMPLAINT; INSPECTION.

18-19    (a)  On receipt of a complaint under this subchapter, the

18-20    department shall make a preliminary review of the complaint.

18-21          (b)  Within a reasonable time after receipt of the complaint,

18-22    the department shall make an on-site inspection or otherwise

18-23    respond to the complaint unless the department determines that:

18-24                (1)  the person making the complaint made the complaint

18-25    to harass the institution;

18-26                (2)  the complaint is without any reasonable basis; or

18-27                (3)  sufficient information in the possession of the

18-28    department indicates that corrective action has been taken.

18-29          (c)  The department shall promptly notify  the person making

18-30    the complaint of the department's proposed course of action under

18-31    Subsection (b) and the reasons for that action.

18-32             (Sections 242.555-242.600 reserved for expansion

18-33              SUBCHAPTER N [F].  ADMINISTRATION OF MEDICATION

18-34                         [MEDICAL AND DENTAL CARE]

18-35          Sec. 242.601.  MEDICATION ADMINISTRATION.  (a)  An

18-36    institution must establish medication administration procedures to

18-37    ensure that:

18-38                (1)  medications to be administered are checked against

18-39    the order of a physician, advanced practice nurse, or physician

18-40    assistant pursuant to protocols jointly developed with a physician;

18-41                (2)  the resident is identified before the

18-42    administration of a medication;

18-43                (3)  each resident's clinical record includes an

18-44    individual medication record in which the dose of medication

18-45    administered is properly recorded by the person who administered

18-46    the medication;

18-47                (4)  medications and biologicals are prepared and

18-48    administered to a resident by the same individual, except under

18-49    unit-of-use package distribution systems; and

18-50                (5)  a medication prescribed for one resident is not

18-51    administered to any other person.

18-52          (b)  The medication administration procedures must comply

18-53    with this subchapter and the rules adopted by the board under

18-54    Section 242.608.

18-55          Sec. 242.602.  PHARMACIST SERVICES.  (a)  An institution

18-56    shall:

18-57                (1)  employ a licensed pharmacist responsible for

18-58    operating the institution's pharmacy; or

18-59                (2)  contract, in writing, with a licensed pharmacist

18-60    to advise the institution on ordering, storage, administration, and

18-61    disposal of medications and biologicals and related recordkeeping.

18-62          (b)  The institution shall allow residents to choose their

18-63    pharmacy provider from any pharmacy that is qualified to perform

18-64    the services.

18-65          Sec. 242.603.  STORAGE AND DISPOSAL OF MEDICATIONS.  (a)  An

18-66    institution shall store medications under appropriate conditions of

18-67    sanitation, temperature, light, moisture, ventilation, segregation,

18-68    and security.  Poisons, medications used externally, and

18-69    medications taken internally shall be stored on separate shelves or

 19-1    in separate cabinets.  Medication stored in a refrigerator

 19-2    containing other items shall be kept in a separate compartment with

 19-3    appropriate security.  The institution shall store a medication  in

 19-4    a locked area that must remain locked unless an individual

 19-5    authorized to distribute the medication is present.

 19-6          (b)  The institution shall properly dispose of:

 19-7                (1)  any medication that is discontinued or outdated,

 19-8    except as provided by Subsection (c); and

 19-9                (2)  any medication in a container with a worn or

19-10    illegible label or missing a label.

19-11          (c)  A discontinued medication that has not been destroyed

19-12    must be reinstated if reordered.

19-13          (d)  An institution shall release the medications of a

19-14    resident who is transferred directly to another institution or who

19-15    is discharged to home or to the new institution or to the resident

19-16    or resident's next of kin or guardian, as appropriate.  The

19-17    institution may release a medication to a resident only on the

19-18    written or verbal authorization of the attending physician.

19-19          Sec. 242.604.  REPORTS OF MEDICATION ERRORS AND ADVERSE

19-20    REACTIONS.  An institution's nursing staff must report medication

19-21    errors and adverse reactions to the resident's physician in a

19-22    timely manner, as warranted by an assessment of the resident's

19-23    condition, and record the errors and reactions in the resident's

19-24    clinical record.

19-25          Sec. 242.605.  MEDICATION REFERENCE SOURCES.  An institution

19-26    shall maintain updated medication reference texts or sources.  If

19-27    the institution has a resident younger than 18 years of age, these

19-28    texts or sources must include information on pediatric medications,

19-29    dosages, sites, routes, techniques of administration of

19-30    medications, desired effects, and possible side effects.

19-31          Sec. 242.606 [242.151].  PERMITS TO ADMINISTER MEDICATION.  A

19-32    person may not administer medication to a resident unless the

19-33    person:

19-34                (1)  holds a license under state law that authorizes

19-35    the person to administer medication; or

19-36                (2)  holds a permit issued under Section 242.610

19-37    [242.154] and acts under the authority of a person who holds a

19-38    license under state law that authorizes the person to administer

19-39    medication.

19-40          Sec. 242.607 [242.1511].  EXEMPTIONS FOR NURSING STUDENTS AND

19-41    MEDICATION AIDE TRAINEES.  (a)  Sections 242.606 and 242.614

19-42    [242.151 and 242.158] do not apply to:

19-43                (1)  a graduate nurse holding a temporary permit issued

19-44    by the Board of Nurse Examiners;

19-45                (2)  a student enrolled in an accredited school of

19-46    nursing or program for the education of registered nurses who is

19-47    administering medications as part of the student's clinical

19-48    experience;

19-49                (3)  a graduate vocational nurse holding a temporary

19-50    permit issued by the Board of Vocational Nurse Examiners;

19-51                (4)  a student enrolled in an accredited school of

19-52    vocational nursing or program for the education of vocational

19-53    nurses who is administering medications as part of the student's

19-54    clinical experience; or

19-55                (5)  a trainee in a medication aide training program

19-56    approved by the department under this subchapter who is

19-57    administering medications as part of the trainee's clinical

19-58    experience.

19-59          (b)  The administration of medications by persons exempted

19-60    under Subdivisions (1) through (4) of Subsection (a) is governed by

19-61    the terms of the memorandum of understanding executed by the

19-62    department and the Board of Nurse Examiners or the department and

19-63    the Board of Vocational Nurse Examiners, as appropriate.

19-64          Sec. 242.608 [242.152].  RULES FOR ADMINISTRATION OF

19-65    MEDICATION.  The board by rule shall establish:

19-66                (1)  minimum requirements for the issuance, denial,

19-67    renewal, suspension, emergency suspension, and revocation of a

19-68    permit to administer medication to a resident;

19-69                (2)  curricula to train persons to administer

 20-1    medication to a resident;

 20-2                (3)  minimum standards for the approval of programs to

 20-3    train persons to administer medication to a resident and for

 20-4    rescinding approval; and

 20-5                (4)  the acts and practices that are allowed or

 20-6    prohibited to a permit holder.

 20-7          Sec. 242.609 [242.153].  TRAINING PROGRAMS TO ADMINISTER

 20-8    MEDICATION.  (a)  An application for the approval of a training

 20-9    program must be made to the department on a form and under rules

20-10    prescribed by the board.

20-11          (b)  The department shall approve a training program that

20-12    meets the minimum standards adopted under Section 242.608

20-13    [242.152].  The department may review the approval annually.

20-14          Sec. 242.610 [242.154].  ISSUANCE AND RENEWAL OF PERMIT TO

20-15    ADMINISTER MEDICATION.  (a)  To be issued or to have renewed a

20-16    permit to administer medication, a person shall apply to the

20-17    department on a form prescribed and under rules adopted by the

20-18    board.

20-19          (b)  The department shall prepare and conduct, at the site of

20-20    the training program, an examination for the issuance of a permit.

20-21          (c)  The department shall require a permit holder to

20-22    satisfactorily complete a continuing education course approved by

20-23    the department for renewal of the permit.

20-24          (d)  The department shall issue a permit or renew a permit to

20-25    an applicant who:

20-26                (1)  meets the minimum requirements adopted under

20-27    Section 242.608 [242.152];

20-28                (2)  successfully completes the examination or the

20-29    continuing education requirements; and

20-30                (3)  pays a nonrefundable application fee determined by

20-31    the board.

20-32          (e)  A permit is valid for one year and is not transferable.

20-33          (f)  The department may issue a permit to an employee of a

20-34    state or federal agency listed in Section 242.003(a)(6)(B).

20-35          Sec. 242.611 [242.155].  FEES FOR ISSUANCE AND RENEWAL OF

20-36    PERMIT TO ADMINISTER MEDICATION.  [(a)]  The board shall set the

20-37    fees in amounts reasonable and necessary to recover the amount

20-38    projected by the department as required to administer its

20-39    functions.  The fees may not exceed:

20-40                (1)  $25 for a combined permit application and

20-41    examination fee; and

20-42                (2)  $15 for a renewal permit application fee.

20-43          [(b)  Fees received under this section may only be

20-44    appropriated to the department to defray costs incurred under this

20-45    section.]

20-46          Sec. 242.612 [242.156].  VIOLATION OF PERMITS TO ADMINISTER

20-47    MEDICATION.  (a)  For the violation of this subchapter or a rule

20-48    adopted under this subchapter, the department may:

20-49                (1)  suspend, revoke, or refuse to renew a permit;

20-50                (2)  suspend a permit in an emergency; or

20-51                (3)  rescind training program approval.

20-52          (b)  Except as provided by Section 242.613 [242.157], the

20-53    procedure by which the department takes a disciplinary action and

20-54    the procedure by which a disciplinary action is appealed are

20-55    governed by the department's rules for a formal hearing and by

20-56    Chapter 2001, Government Code.

20-57          Sec. 242.613 [242.157].  EMERGENCY SUSPENSION OF PERMITS TO

20-58    ADMINISTER MEDICATION.  (a)  The department shall issue an order to

20-59    suspend a permit issued under this subchapter if the department has

20-60    reasonable cause to believe that the conduct of the permit holder

20-61    creates an imminent danger to the public health or safety.

20-62          (b)  An emergency suspension is effective immediately without

20-63    a hearing on notice to the permit holder.

20-64          (c)  If requested in writing by a permit holder whose permit

20-65    is suspended, the department shall conduct a hearing to continue,

20-66    modify, or rescind the emergency suspension.

20-67          (d)  The hearing must be held not earlier than the 10th day

20-68    or later than the 30th day after the date on which the hearing

20-69    request is received.

 21-1          (e)  The hearing and an appeal from a disciplinary action

 21-2    related to the hearing are governed by the department's rules for a

 21-3    formal hearing and Chapter 2001, Government Code.

 21-4          Sec. 242.614 [242.158].  ADMINISTRATION OF MEDICATION;

 21-5    CRIMINAL PENALTY.  (a)  A person commits an offense if the person

 21-6    knowingly administers medication to a resident and the person:

 21-7                (1)  does not hold a license under state law that

 21-8    authorizes the person to administer medication; or

 21-9                (2)  does not hold a permit issued by the department

21-10    under this subchapter.

21-11          (b)  An offense under this section is a Class B misdemeanor.

21-12          [Sec. 242.159.  REQUIRED MEDICAL EXAMINATION.  (a)  The

21-13    department shall require each resident to be given at least one

21-14    medical examination each year.]

21-15          [(b)  The department shall specify the details of the

21-16    examination.]

21-17          [Sec. 242.160.  DENTAL EXAMINATION.  (a)  The department

21-18    shall require that each resident of a nursing home or custodial

21-19    care home or the resident's custodian be asked at least once each

21-20    year if the resident desires a dental examination and possible

21-21    treatment at the resident's own expense.]

21-22          [(b)  Each nursing home or custodial care home shall be

21-23    encouraged to use all reasonable efforts to arrange for a dental

21-24    examination for each resident who desires one.]

21-25          [(c)  The nursing home or custodial care home is not liable

21-26    for any costs relating to a dental examination under this section.]

21-27          Sec. 242.615 [242.161].  EMERGENCY MEDICATION KIT.  (a)  An

21-28    institution licensed under this chapter is entitled to maintain a

21-29    supply of controlled substances in an emergency medication kit for

21-30    a resident's emergency medication needs.

21-31          (b)  The controlled substances shall be labeled in accordance

21-32    with all applicable state and federal food and drug laws, including

21-33    Chapter 481 (Texas Controlled Substances Act).

21-34          (c)  The board shall adopt rules governing the amount, type,

21-35    and procedure for use of the controlled substances in the emergency

21-36    medication kit.  The storage of the controlled substances in the

21-37    kit is under the supervision of the consultant pharmacist.

21-38          (d)  The administration of the controlled substances in the

21-39    emergency medication kit shall comply with all applicable laws.

21-40             (Sections 242.616-242.650 reserved for expansion

21-41                   SUBCHAPTER O.  LEGISLATIVE OVERSIGHT

21-42          Sec. 242.651.  DEFINITION; SUNSET DATE.  (a)  In this

21-43    subchapter, "committee" means the long-term care legislative

21-44    oversight committee.

21-45          (b)  The committee is subject to Chapter 325, Government Code

21-46    (Texas Sunset Act).  Unless continued in existence as provided by

21-47    that chapter, the committee is abolished September 1, 2001.

21-48          Sec. 242.652.  COMPOSITION OF COMMITTEE; PRESIDING OFFICER.

21-49    (a)  The committee is composed of:

21-50                (1)  two members of the senate and one public member

21-51    appointed by the lieutenant governor; and

21-52                (2)  two members of the house of representatives and

21-53    one public member appointed by the speaker of the house of

21-54    representatives.

21-55          (b)  A member of the committee serves at the pleasure of the

21-56    appointing official.

21-57          (c)  The lieutenant governor and the speaker of the house of

21-58    representatives shall appoint the presiding officer of the

21-59    committee on an alternating basis.  The presiding officer shall

21-60    serve a two-year term expiring February 1 of each odd-numbered

21-61    year.

21-62          Sec. 242.653.  COMMITTEE POWERS AND DUTIES.  (a)  The

21-63    committee shall:

21-64                (1)  meet at the call of the presiding officer;

21-65                (2)  receive information about rules proposed or

21-66    adopted by the department; and

21-67                (3)  review specific recommendations for legislation

21-68    proposed by the department or the attorney general relating to

21-69    nursing facility rules and regulations and other long-term care

 22-1    issues.

 22-2          (b)  The committee may issue process, in accordance with

 22-3    Section 301.024, Government Code, to compel the attendance of

 22-4    witnesses and the production of books, records, documents, and

 22-5    instruments required by the committee.

 22-6          (c)  The committee shall monitor the effectiveness and

 22-7    efficiency of the nursing facility regulatory system of this state.

 22-8          (d)  The committee may request reports and other information

 22-9    from the department and the attorney general relating to the

22-10    nursing facility regulatory system of this state and other

22-11    long-term care issues.

22-12          (e)  The committee shall use the existing staff resources of

22-13    the senate and the house of representatives to assist the committee

22-14    in performing its duties under this section.

22-15          Sec. 242.654.  REPORT.  (a)  The committee shall report to

22-16    the governor, lieutenant governor, and speaker of the house of

22-17    representatives not later than November 15 of each even-numbered

22-18    year.

22-19          (b)  The report must include:

22-20                (1)  identification of significant problems in the

22-21    nursing facility regulatory system, with recommendations for

22-22    action;

22-23                (2)  the effectiveness and efficiency of the nursing

22-24    facility regulatory system of this state, with recommendations for

22-25    any necessary research;

22-26                (3)  an analysis of the continuum of care of long-term

22-27    services available to citizens of this state; and

22-28                (4)  recommendations for legislative action.

22-29          SECTION 1.30.  Section 222.0255, Health and Safety Code, is

22-30    amended by adding Subsection (e) to read as follows:

22-31          (e)  Chapter 242 establishes the minimum licensing standards

22-32    for an institution.  The licensing standards adopted by the

22-33    department under this chapter shall be adopted subject to Section

22-34    242.037(b) and must comply with Section 242.037(c) and the other

22-35    provisions of Chapter 242.

22-36          SECTION 1.31.  Section 242.012, Health and Safety Code, is

22-37    repealed.

22-38          SECTION 1.32.  The Texas Board of Human Services shall adopt

22-39    rules as necessary to implement the change in law made by this

22-40    article not later than January 1, 1998.

22-41          SECTION 1.33.  This article applies only to conduct occurring

22-42    on or after January 1, 1998.  Conduct occurring before January 1,

22-43    1998, is governed by the law as it existed immediately before

22-44    September 1, 1997, and that law is continued in effect for that

22-45    purpose.

22-46            ARTICLE 2.  GOVERNMENT FUNDING OF NURSING SERVICES

22-47          SECTION 2.01.  Section 32.021, Human Resources Code, is

22-48    amended by amending Subsections (d), (h), (i), (j), and (k) and

22-49    adding Subsections (l) and (m) to read as follows:

22-50          (d)  The department shall [may] include in its contracts for

22-51    the delivery of medical assistance by nursing facilities provisions

22-52    for monetary penalties to be assessed for [contract] violations as

22-53    required by 42 U.S.C. Section 1396r, including without limitation

22-54    the Omnibus Budget Reconciliation Act (OBRA), P.L. 100-203, Nursing

22-55    Home Reform Amendments of 1987, provided that the department

22-56    shall:

22-57                (1)  provide for an informal dispute resolution process

22-58    in the department's central office; the informal dispute resolution

22-59    process shall:

22-60                      (A)  require the institution to request informal

22-61    dispute resolution no later than the 10th calendar day after

22-62    notification by the department of a violation of a standard or

22-63    standards; and

22-64                      (B)  require the department to complete the

22-65    process no later than the 30th calendar day after receipt of a

22-66    request from the institution for informal dispute resolution; and

22-67                      (C)  require any individual representing an

22-68    institution in an informal dispute resolution process to register

22-69    with the department and disclose the following:

 23-1                            (i)  the individual's five-year employment

 23-2    history during the preceding five years, including employment in

 23-3    regulatory agencies of this state and other states;

 23-4                            (ii)  ownership, including the identity of

 23-5    the controlling person or persons, of the institution the person is

 23-6    representing before the department; and

 23-7                            (iii)  the identity of other entities the

 23-8    person represents or has represented before the agency during the

 23-9    previous 24 months [establish a penalties and sanctions advisory

23-10    committee of consumer advocates and long-term care providers to

23-11    help develop and monitor an appropriate system for assessing

23-12    penalties]; and

23-13                (2)  develop rules [in accordance with Subsection (i)]

23-14    to adjudicate claims in contested cases.

23-15          (h)  Medicaid nursing facilities shall also comply with state

23-16    licensure rules, which may be more stringent than the requirements

23-17    for certification [Except to the extent necessary to implement

23-18    rights granted to an elderly individual under Chapter 102, the

23-19    rules adopted by the department for certification of nursing

23-20    facilities as being in compliance with the requirements for

23-21    participation in the state Medicaid program may not be different

23-22    from the standards imposed by federal law].  The [This subsection

23-23    does not prevent the] department shall use appropriate [from using

23-24    any] civil, administrative, or criminal remedies [remedy]

23-25    authorized by state or federal law with respect to a facility that

23-26    is in violation of a certification or licensing requirement.

23-27          (i)  Except as provided by Subsections (j) and (k), a

23-28    department survey, complaint investigation, incident investigation,

23-29    or survey report [The rules adopted under Subsection (d)(2) must

23-30    provide for:]

23-31                [(1)  an informal dispute resolution process that

23-32    provides for adjudication by an appropriate disinterested person in

23-33    a regional office of the department and an informal appeal to the

23-34    department's central office;]

23-35                [(2)  an administrative appeals process under Chapter

23-36    2001, Government Code; and]

23-37                [(3)  the arbitration process described by Subsection

23-38    (k).]

23-39          [(j)  A finding by the department] that documents that an

23-40    institution has violated a standard for participation in the state

23-41    Medicaid program, or the assessment of a monetary penalty by the

23-42    department or the payment of a monetary penalty by the institution

23-43    [under this section], is not admissible as evidence in a civil

23-44    action to prove that the institution has committed a violation.

23-45          (j)  Subsection (i) [This subsection] does not:

23-46                (1)  apply in an enforcement action or related

23-47    proceeding in which the state or an agency or political subdivision

23-48    of the state is a party;

23-49                (2)  prohibit or limit the testimony of a department

23-50    surveyor or investigator in a civil action; or

23-51                (3)  bar the admission into evidence in a civil action

23-52    of a written finding, survey report, complaint investigation,

23-53    incident investigation, or inspection report of the department that

23-54    is offered:

23-55                      (A)  to establish warning or notice to an

23-56    institution of a relevant finding; or

23-57                      (B)  under any rule or evidentiary predicate of

23-58    the Texas Rules of Civil Evidence.

23-59          (k)  A department surveyor or investigator may testify in a

23-60    civil action as to observations, factual findings, conclusions, or

23-61    violations of requirements for licensure or for certification  for

23-62    participation in the state Medicaid program that were made in the

23-63    discharge of official duties for the department, in accordance with

23-64    the Texas Rules of Civil Evidence.

23-65          (l)  The department may not include as a reimbursable item to

23-66    a nursing facility an administrative or civil penalty assessed

23-67    against the facility under this chapter or under Chapter 242,

23-68    Health and Safety Code.

23-69          (m)  Notwithstanding any provision of law to the contrary,

 24-1    the department shall terminate a nursing facility's provider

 24-2    agreement if the department has imposed required Category II or III

 24-3    remedies on the facility three times within a 24-month period.  [An

 24-4    assessment of monetary penalties under this section is subject to

 24-5    arbitration under Subchapter H, Chapter 242, Health and Safety

 24-6    Code.]

 24-7          SECTION 2.02.  Subsection (c), Section 32.034, Human

 24-8    Resources Code, is amended to read as follows:

 24-9          (c)  The section does not apply if federal matching funds are

24-10    not available to pay the facility whose [a] contract is being

24-11    cancelled.  If [because] federal matching funds cannot be used, no

24-12    state funds may be used to pay the facility [for contract payments

24-13    are no longer available or if the contract expires according to its

24-14    terms].

24-15                   ARTICLE 3.  EFFECTIVE DATE; EMERGENCY

24-16          SECTION 3.01.  This Act takes effect September 1, 1997.

24-17          SECTION 3.02.  The importance of this legislation and the

24-18    crowded condition of the calendars in both houses create an

24-19    emergency and an imperative public necessity that the

24-20    constitutional rule requiring bills to be read on three several

24-21    days in each house be suspended, and this rule is hereby suspended.

24-22                                 * * * * *