By:  Moncrief                                          S.B. No. 618

                                A BILL TO BE ENTITLED

                                       AN ACT

 1-1     relating to the regulation of certain residential facilities;

 1-2     providing civil penalties.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Title 6, Human Resources Code, is amended by

 1-5     adding Chapter 105 to read as follows:

 1-6            CHAPTER 105.  RESIDENTIAL FACILITIES FOR THE ELDERLY

 1-7           Sec. 105.001.  DEFINITIONS.  In this chapter:

 1-8                 (1)  "Establishment" means a facility providing food

 1-9     and shelter to two or more qualifying adult residents, at least 80

1-10     percent of whom are 55 years of age or older or are disabled, and

1-11     offering or providing, for a fee, one or more supportive services,

1-12     whether offered or provided directly by the facility or by another

1-13     entity arranged for by the facility.

1-14                 (2)  "Qualifying adult resident" means an adult

1-15     resident of a facility who is not related within the second degree

1-16     by consanguinity or affinity to:

1-17                       (A)  a person who has an ownership interest in

1-18     the facility; or

1-19                       (B)  at least one other resident of the facility.

1-20                 (3)  "Supportive services" means providing, directly or

1-21     indirectly, medical services, health-related services, social

1-22     services, or help with personal laundry or handling or assisting

1-23     with personal funds of residents, but does not include referral or

 2-1     information services, whether provided by a service coordinator or

 2-2     other employees of the establishment.

 2-3           Sec. 105.002.  EXEMPT FACILITIES.  The following facilities

 2-4     are exempt from the application of this chapter:

 2-5                 (1)  housing in which all supportive services are

 2-6     arranged directly by the residents themselves and are provided by

 2-7     outside entities;

 2-8                 (2)  nursing facilities licensed under Chapter 242,

 2-9     Health and Safety Code;

2-10                 (3)  continuing care facilities regulated by the Texas

2-11     Department of Insurance under Chapter 246, Health and Safety Code;

2-12     and

2-13                 (4)  facilities which provide services only to persons

2-14     enrolled in a program funded and monitored by a state agency in

2-15     accordance with standards set by the state agency.

2-16           Sec. 105.003.  DISCLOSURE REQUIRED IN CONTRACT.  An

2-17     establishment that is not licensed as a personal care facility

2-18     under Chapter 247, Health and Safety Code, shall execute a contract

2-19     with each of its residents that contains, in addition to other

2-20     required information, the following elements:

2-21                 (1)  the name, street address, and mailing address of

2-22     the establishment;

2-23                 (2)  the name and mailing address of at least one

2-24     person authorized to act on behalf of the owner or owners or

2-25     management agent of the establishment;

 3-1                 (3)  a statement describing the licensure status of the

 3-2     establishment;

 3-3                 (4)  the name and mailing address of any provider,

 3-4     including any individual or entity, whether licensed or not

 3-5     licensed, providing supportive services under an arrangement with

 3-6     the establishment;

 3-7                 (5)  the term of the contract;

 3-8                 (6)  a description of the services to be provided that

 3-9     are included in the base monthly rate to be paid by the resident;

3-10                 (7)  a description of any additional services available

3-11     for an additional fee from the establishment, directly or through

3-12     arrangements with the establishment;

3-13                 (8)  a provision requiring the establishment to provide

3-14     30 days' written notice of any change in fee schedules that outline

3-15     the cost of additional services;

3-16                 (9)  a description of the process by which the contract

3-17     may be modified, amended, or terminated;

3-18                 (10)  a description of the complaint resolution process

3-19     available to residents;

3-20                 (11)  the name, street address, mailing address, and

3-21     telephone number of the resident's designated representative, if

3-22     any;

3-23                 (12)  a list of the criteria used by the establishment

3-24     to determine who may not continue to reside in the building;

3-25                 (13)  a description of the billing and payment

 4-1     procedures and requirements;

 4-2                 (14)  a statement regarding the ability and right of

 4-3     residents to receive services from service providers with whom the

 4-4     establishment does not have an arrangement; and

 4-5                 (15)  a statement as to the life safety and fire codes

 4-6     met by the building and a statement as to whether the codes meet

 4-7     the requirements of residents who are not capable of

 4-8     self-evacuation.

 4-9           Sec. 105.004.  ADVERTISING DISCLOSURE.  Any advertisement and

4-10     any promotional material distributed to the public for an

4-11     establishment must disclose whether or not the establishment is

4-12     licensed as a personal care facility under Chapter 247, Health and

4-13     Safety Code.

4-14           Sec. 105.005.  REMEDIES.  A resident of an establishment that

4-15     has violated Section 105.003 or 105.004 may obtain or exercise one

4-16     or more of the remedies available to a tenant under Section 92.205,

4-17     Property Code.

4-18           SECTION 2.  Subdivision (3), Section 247.002, Health and

4-19     Safety Code, is amended to read as follows:

4-20                 (3)  "Personal care facility" means an establishment,

4-21     including a board and care home, that:

4-22                       (A)  furnishes[, in one or more facilities,] food

4-23     and shelter to four or more persons who are unrelated to the

4-24     proprietor of the establishment and who are residents in one or

4-25     more facilities that are related by the fact that the same person

 5-1     has an ownership interest in each; and

 5-2                       (B)  provides personal care services.

 5-3           SECTION 3.  Section 247.004, Health and Safety Code, is

 5-4     amended to read as follows:

 5-5           Sec. 247.004.  Exemptions.  This chapter does not apply to:

 5-6                 (1)  a boarding facility that has rooms for rent and

 5-7     that may offer community meals but that does not provide personal

 5-8     care services;

 5-9                 (2)  an establishment conducted by or for the adherents

5-10     of the Church of Christ, Scientist, for the purpose of providing

5-11     facilities for the care or treatment of the sick who depend

5-12     exclusively on prayer or spiritual means for healing without the

5-13     use of any drug or material remedy if the establishment complies

5-14     with local safety, sanitary, and quarantine ordinances and

5-15     regulations; [or]

5-16                 (3)  a facility conducted by or for the adherents of a

5-17     qualified religious society classified as a tax-exempt organization

5-18     under an Internal Revenue Service group exemption ruling for the

5-19     purpose of providing personal care services without charge solely

5-20     for the society's professed members or ministers in retirement, if

5-21     the facility complies with local safety, sanitation, and quarantine

5-22     ordinances and regulations; or

5-23                 (4)  a facility which provides services only to persons

5-24     enrolled in a program funded and monitored by a state agency in

5-25     accordance with standards set by the state agency.

 6-1           SECTION 4.  Section 247.021, Health and Safety Code, is

 6-2     amended to read as follows:

 6-3           Sec. 247.021.  LICENSE REQUIRED.  (a)  A person may not

 6-4     establish or operate a personal care facility without possessing a

 6-5     license [issued] under this chapter for each such facility the

 6-6     person establishes or operates.

 6-7           (b)  The department by rule shall establish procedures to

 6-8     issue a six-month provisional license to existing facilities with

 6-9     residents.  The department may issue a provisional license if the

6-10     facility is in compliance with resident care standards but needs

6-11     additional time to meet life safety code and physical plant

6-12     standards.  If at the end of the six-month provisional license

6-13     period the facility does not meet life safety code and physical

6-14     plant standards, the department shall not issue a license to the

6-15     facility.

6-16           SECTION 5.  Section 247.044, Health and Safety Code, is

6-17     amended by adding a new Subsection (c) and redesignating existing

6-18     Subsections (c) and (d) to read as follows:

6-19           (c)  The department may petition a district court for a

6-20     temporary restraining order to inspect a facility allegedly

6-21     required to be licensed and operating without a license when

6-22     admission to the facility cannot be obtained.  If it is shown that

6-23     admission to the facility cannot be obtained, the court shall order

6-24     the facility to allow the department admission to the facility.

6-25           (d)  The attorney general or local prosecuting attorney may

 7-1     institute and conduct a suit authorized by this section at the

 7-2     request of the department.

 7-3           (e) [(d)]  Venue for a suit brought under this section is in

 7-4     the county in which the personal care facility is located or in

 7-5     Travis County.

 7-6           SECTION 6.  Section 247.045, Health and Safety Code, is

 7-7     amended to read as follows:

 7-8           Sec. 247.045.  Civil Penalties.  (a)  Except as provided by

 7-9     Subsection (b), a [A] person who violates this chapter or who fails

7-10     to comply with a rule adopted under this chapter and whose

7-11     violation is determined by the department to threaten the health

7-12     and safety of a resident of a personal care facility is subject to

7-13     a civil penalty of not less than $100 nor more than $10,000 for

7-14     each act of violation.  Each day of a continuing violation

7-15     constitutes a separate ground of recovery.

7-16           (b)  A person who does not possess a license for a personal

7-17     care facility as required by Section 247.021 is subject to a civil

7-18     penalty of not less than $1,000 nor more than $10,000 for each act

7-19     of violation.  Each day of a continuing violation constitutes a

7-20     separate ground for recovery.

7-21           (c)  If the attorney general fails to take action within 30

7-22     days of referral from the department, the department shall refer

7-23     the case to the local district attorney, county attorney, or city

7-24     attorney.  The district attorney, county attorney, or city attorney

7-25     shall file suit in a district court to collect and retain the

 8-1     penalty.

 8-2           (d)  Investigation and attorney's fees may not be assessed or

 8-3     collected by or on behalf of the department or other state agency

 8-4     unless the department or other state agency assesses and collects a

 8-5     penalty described under this chapter.

 8-6           (e)  The department and attorney general, or other legal

 8-7     representative as described in Subsection (c), shall work in close

 8-8     cooperation throughout any legal proceedings requested by the

 8-9     department.

8-10           (f)  The commissioner of human services must approve any

8-11     settlement agreement to a suit brought under this chapter.

8-12           SECTION 7.  Subchapter C, Chapter 247, Health and Safety

8-13     Code, is amended by adding Section 247.047 to read as follows:

8-14           Sec. 247.047.  AUTHORITY TO DEVELOP OTHER REMEDIES.  In

8-15     addition to the enforcement provisions authorized by this chapter,

8-16     the department may by rule develop additional remedies as necessary

8-17     to administer and ensure compliance with this chapter.  This

8-18     section does not authorize the department to assess monetary

8-19     administrative penalties.

8-20           SECTION 8.  (a)  The change in law made by this Act applies

8-21     only to a violation committed on or after the effective date of

8-22     this Act.  For purposes of this section, a violation is committed

8-23     before the effective date of this Act if any element of the

8-24     violation occurs before that date.

8-25           (b)  A violation committed before the effective date of this

 9-1     Act is covered by the law in effect when the violation was

 9-2     committed, and the former law is continued in effect for this

 9-3     purpose.

 9-4           SECTION 9.  This Act takes effect September 1, 1997.

 9-5           SECTION 10.  The importance of this legislation and the

 9-6     crowded condition of the calendars in both houses create an

 9-7     emergency and an imperative public necessity that the

 9-8     constitutional rule requiring bills to be read on three several

 9-9     days in each house be suspended, and this rule is hereby suspended.