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 * * * * *