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                                  * * * * *