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.
9-10 COMMITTEE AMENDMENT NO. 1
9-11 Amend S.B. No. 618 by adding a new section, appropriately
9-12 numbered, to read as follows:
9-13 SECTION ____. Subchapter B, Chapter 247, Health and Safety
9-14 Code, is amended by adding Section 247.029 to read as follows:
9-15 Sec. 247.029. MUNICIPAL ENFORCEMENT. The governing body of
9-16 a municipality by ordinance may:
9-17 (1) prohibit a person who does not hold a license
9-18 issued under this chapter from establishing or operating a personal
9-19 care facility within the municipality; and
9-20 (2) establish a procedure for emergency closure of a
9-21 facility in circumstances in which:
9-22 (A) the facility is established or operating in
9-23 violation of Section 247.021; and
9-24 (B) the continued operation of the facility
9-25 creates an immediate threat to the health and safety of a resident
10-1 of the facility.
10-2 75R14298 DLF-D Naishtat
10-3 COMMITTEE AMENDMENT NO. 2
10-4 Amend SB 618 as follows:
10-5 (1) On page 8, strike lines 14 through 19 and insert the
10-6 following:
10-7 Sec. 247.047. AUTHORITY TO DEVELOP OTHER REMEDIES. In
10-8 addition to the enforcement provisions authorized by this chapter,
10-9 the department may by rule develop additional remedies necessary to
10-10 ensure compliance with this chapter. The remedies must ensure
10-11 quality care and protection of residents' health and safety. This
10-12 section does not authorize the department to assess monetary
10-13 administrative penalties.
10-14 Wohlgemuth
10-15 COMMITTEE AMENDMENT NO. 3
10-16 Amend SB 618 as follows:
10-17 (1) On page 6, line 7, strike lines 7 through 15 and
10-18 substitute the following:
10-19 (b) The department by rule shall establish procedures to
10-20 issue a six-month provisional license to existing facilities with
10-21 residents. The department may issue a provisional license only if:
10-22 (1) the facility is in compliance with resident care
10-23 standards;
10-24 (2) the facility voluntarily discloses that the
10-25 facility needs additional time to comply with life safety code and
11-1 physical plant standards;
11-2 (3) the disclosure was made in writing by certified
11-3 mail to the department;
11-4 (4) an investigation of the violation was not
11-5 initiated or the violation was not independently detected by the
11-6 department; and
11-7 (5) the disclosure was made promptly after knowledge
11-8 of the information disclosed is obtained by the facility.
11-9 (c) If at the end of the six-month provisional license
11-10 period the facility does not meet life safety code and physical
11-11 plant standards, the department shall not issue a license to the
11-12 facility.
11-13 Wohlgemuth
11-14 COMMITTEE AMENDMENT NO. 4
11-15 Amend SB 618 as follows:
11-16 (1) On page 5, strike lines 23 through 25; and
11-17 (2) Insert the following:
11-18 (4) a facility operated by a provider that is
11-19 certified by the Texas Department of Mental Health and Mental
11-20 Retardation to be in compliance with standards necessary for
11-21 participation in a Medicaid waiver approved by the federal
11-22 government.
11-23 Wohlgemuth
11-24 COMMITTEE AMENDMENT NO. 5
11-25 Amend S.B. No. 618 by adding the following appropriately
12-1 numbered section to the bill and renumbering existing sections of
12-2 the bill accordingly:
12-3 SECTION ____. Section 2, Article 9102, Revised Statutes, is
12-4 amended by adding Subsection (h) to read as follows:
12-5 (h) The standards adopted under this article do not apply to
12-6 a facility in which the owner or operator of the facility is:
12-7 (1) licensed to operate the facility under Chapter
12-8 247, Health and Safety Code; and
12-9 (2) required to comply with the Americans with
12-10 Disabilities Act of 1990, as amended (42 U.S.C. Section 12101 et
12-11 seq.), as a condition of licensure.
12-12 75R14644 CLG-D Wohlgemuth