1-1 By: Moncrief S.B. No. 618
1-2 (In the Senate - Filed February 17, 1997; February 20, 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 9, Nays 1;
1-6 March 24, 1997, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 618 By: Moncrief
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the regulation of certain residential facilities;
1-11 providing civil penalties.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Title 6, Human Resources Code, is amended by
1-14 adding Chapter 105 to read as follows:
1-15 CHAPTER 105. RESIDENTIAL FACILITIES FOR THE ELDERLY
1-16 Sec. 105.001. DEFINITIONS. In this chapter:
1-17 (1) "Establishment" means a facility providing food
1-18 and shelter to two or more qualifying adult residents, at least 80
1-19 percent of whom are 55 years of age or older or are disabled, and
1-20 offering or providing, for a fee, one or more supportive services,
1-21 whether offered or provided directly by the facility or by another
1-22 entity arranged for by the facility.
1-23 (2) "Qualifying adult resident" means an adult
1-24 resident of a facility who is not related within the second degree
1-25 by consanguinity or affinity to:
1-26 (A) a person who has an ownership interest in
1-27 the facility; or
1-28 (B) at least one other resident of the facility.
1-29 (3) "Supportive services" means providing, directly or
1-30 indirectly, medical services, health-related services, social
1-31 services, or help with personal laundry or handling or assisting
1-32 with personal funds of residents, but does not include referral or
1-33 information services, whether provided by a service coordinator or
1-34 other employees of the establishment.
1-35 Sec. 105.002. EXEMPT FACILITIES. The following facilities
1-36 are exempt from the application of this chapter:
1-37 (1) housing in which all supportive services are
1-38 arranged directly by the residents themselves and are provided by
1-39 outside entities;
1-40 (2) nursing facilities licensed under Chapter 242,
1-41 Health and Safety Code;
1-42 (3) continuing care facilities regulated by the Texas
1-43 Department of Insurance under Chapter 246, Health and Safety Code;
1-44 and
1-45 (4) facilities which provide services only to persons
1-46 enrolled in a program funded and monitored by a state agency in
1-47 accordance with standards set by the state agency.
1-48 Sec. 105.003. DISCLOSURE REQUIRED IN CONTRACT. An
1-49 establishment that is not licensed as a personal care facility
1-50 under Chapter 247, Health and Safety Code, shall execute a contract
1-51 with each of its residents that contains, in addition to other
1-52 required information, the following elements:
1-53 (1) the name, street address, and mailing address of
1-54 the establishment;
1-55 (2) the name and mailing address of at least one
1-56 person authorized to act on behalf of the owner or owners or
1-57 management agent of the establishment;
1-58 (3) a statement describing the licensure status of the
1-59 establishment;
1-60 (4) the name and mailing address of any provider,
1-61 including any individual or entity, whether licensed or not
1-62 licensed, providing supportive services under an arrangement with
1-63 the establishment;
1-64 (5) the term of the contract;
2-1 (6) a description of the services to be provided that
2-2 are included in the base monthly rate to be paid by the resident;
2-3 (7) a description of any additional services available
2-4 for an additional fee from the establishment, directly or through
2-5 arrangements with the establishment;
2-6 (8) a provision requiring the establishment to provide
2-7 30 days' written notice of any change in fee schedules that outline
2-8 the cost of additional services;
2-9 (9) a description of the process by which the contract
2-10 may be modified, amended, or terminated;
2-11 (10) a description of the complaint resolution process
2-12 available to residents;
2-13 (11) the name, street address, mailing address, and
2-14 telephone number of the resident's designated representative, if
2-15 any;
2-16 (12) a list of the criteria used by the establishment
2-17 to determine who may not continue to reside in the building;
2-18 (13) a description of the billing and payment
2-19 procedures and requirements;
2-20 (14) a statement regarding the ability and right of
2-21 residents to receive services from service providers with whom the
2-22 establishment does not have an arrangement; and
2-23 (15) a statement as to the life safety and fire codes
2-24 met by the building and a statement as to whether the codes meet
2-25 the requirements of residents who are not capable of
2-26 self-evacuation.
2-27 Sec. 105.004. ADVERTISING DISCLOSURE. Any advertisement and
2-28 any promotional material distributed to the public for an
2-29 establishment must disclose whether or not the establishment is
2-30 licensed as a personal care facility under Chapter 247, Health and
2-31 Safety Code.
2-32 Sec. 105.005. REMEDIES. A resident of an establishment that
2-33 has violated Section 105.003 or 105.004 may obtain or exercise one
2-34 or more of the remedies available to a tenant under Section 92.205,
2-35 Property Code.
2-36 SECTION 2. Subdivision (3), Section 247.002, Health and
2-37 Safety Code, is amended to read as follows:
2-38 (3) "Personal care facility" means an establishment,
2-39 including a board and care home, that:
2-40 (A) furnishes[, in one or more facilities,] food
2-41 and shelter to four or more persons who are unrelated to the
2-42 proprietor of the establishment and who are residents in one or
2-43 more facilities that are related by the fact that the same person
2-44 has an ownership interest in each; and
2-45 (B) provides personal care services.
2-46 SECTION 3. Section 247.004, Health and Safety Code, is
2-47 amended to read as follows:
2-48 Sec. 247.004. Exemptions. This chapter does not apply to:
2-49 (1) a boarding facility that has rooms for rent and
2-50 that may offer community meals but that does not provide personal
2-51 care services;
2-52 (2) an establishment conducted by or for the adherents
2-53 of the Church of Christ, Scientist, for the purpose of providing
2-54 facilities for the care or treatment of the sick who depend
2-55 exclusively on prayer or spiritual means for healing without the
2-56 use of any drug or material remedy if the establishment complies
2-57 with local safety, sanitary, and quarantine ordinances and
2-58 regulations; [or]
2-59 (3) a facility conducted by or for the adherents of a
2-60 qualified religious society classified as a tax-exempt organization
2-61 under an Internal Revenue Service group exemption ruling for the
2-62 purpose of providing personal care services without charge solely
2-63 for the society's professed members or ministers in retirement, if
2-64 the facility complies with local safety, sanitation, and quarantine
2-65 ordinances and regulations; or
2-66 (4) a facility which provides services only to persons
2-67 enrolled in a program funded and monitored by a state agency in
2-68 accordance with standards set by the state agency.
2-69 SECTION 4. Section 247.021, Health and Safety Code, is
3-1 amended to read as follows:
3-2 Sec. 247.021. LICENSE REQUIRED. (a) A person may not
3-3 establish or operate a personal care facility without possessing a
3-4 license [issued] under this chapter for each such facility the
3-5 person establishes or operates.
3-6 (b) The department by rule shall establish procedures to
3-7 issue a six-month provisional license to existing facilities with
3-8 residents. The department may issue a provisional license if the
3-9 facility is in compliance with resident care standards but needs
3-10 additional time to meet life safety code and physical plant
3-11 standards. If at the end of the six-month provisional license
3-12 period the facility does not meet life safety code and physical
3-13 plant standards, the department shall not issue a license to the
3-14 facility.
3-15 SECTION 5. Section 247.044, Health and Safety Code, is
3-16 amended by adding a new Subsection (c) and redesignating existing
3-17 Subsections (c) and (d) to read as follows:
3-18 (c) The department may petition a district court for a
3-19 temporary restraining order to inspect a facility allegedly
3-20 required to be licensed and operating without a license when
3-21 admission to the facility cannot be obtained. If it is shown that
3-22 admission to the facility cannot be obtained, the court shall order
3-23 the facility to allow the department admission to the facility.
3-24 (d) The attorney general or local prosecuting attorney may
3-25 institute and conduct a suit authorized by this section at the
3-26 request of the department.
3-27 (e) [(d)] Venue for a suit brought under this section is in
3-28 the county in which the personal care facility is located or in
3-29 Travis County.
3-30 SECTION 6. Section 247.045, Health and Safety Code, is
3-31 amended to read as follows:
3-32 Sec. 247.045. Civil Penalties. (a) Except as provided by
3-33 Subsection (b), a [A] person who violates this chapter or who fails
3-34 to comply with a rule adopted under this chapter and whose
3-35 violation is determined by the department to threaten the health
3-36 and safety of a resident of a personal care facility is subject to
3-37 a civil penalty of not less than $100 nor more than $10,000 for
3-38 each act of violation. Each day of a continuing violation
3-39 constitutes a separate ground of recovery.
3-40 (b) A person who does not possess a license for a personal
3-41 care facility as required by Section 247.021 is subject to a civil
3-42 penalty of not less than $1,000 nor more than $10,000 for each act
3-43 of violation. Each day of a continuing violation constitutes a
3-44 separate ground for recovery.
3-45 SECTION 7. Subchapter C, Chapter 247, Health and Safety
3-46 Code, is amended by adding Section 247.047 to read as follows:
3-47 Sec. 247.047. AUTHORITY TO DEVELOP OTHER REMEDIES. In
3-48 addition to the enforcement provisions authorized by this chapter,
3-49 the department may by rule develop additional remedies as necessary
3-50 to administer and ensure compliance with this chapter. This
3-51 section does not authorize the department to assess monetary
3-52 administrative penalties.
3-53 SECTION 8. (a) The change in law made by this Act applies
3-54 only to a violation committed on or after the effective date of
3-55 this Act. For purposes of this section, a violation is committed
3-56 before the effective date of this Act if any element of the
3-57 violation occurs before that date.
3-58 (b) A violation committed before the effective date of this
3-59 Act is covered by the law in effect when the violation was
3-60 committed, and the former law is continued in effect for this
3-61 purpose.
3-62 SECTION 9. This Act takes effect September 1, 1997.
3-63 SECTION 10. The importance of this legislation and the
3-64 crowded condition of the calendars in both houses create an
3-65 emergency and an imperative public necessity that the
3-66 constitutional rule requiring bills to be read on three several
3-67 days in each house be suspended, and this rule is hereby suspended.
3-68 * * * * *