By: Madla, Moncrief S.B. No. 1248
A BILL TO BE ENTITLED
AN ACT
1-1 relating to intermediate care facilities for the mentally retarded;
1-2 imposing civil and criminal penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subtitle B, Title 4, Health and Safety Code, is
1-5 amended by adding Chapter 252 to read as follows:
1-6 CHAPTER 252. INTERMEDIATE CARE FACILITIES FOR THE MENTALLY
1-7 RETARDED
1-8 SUBCHAPTER A. GENERAL PROVISIONS
1-9 Sec. 252.001. PURPOSE. The purpose of this chapter is to
1-10 promote the public health, safety, and welfare by providing for the
1-11 development, establishment, and enforcement of standards for the
1-12 provision of services to individuals residing in intermediate care
1-13 facilities for the mentally retarded and the establishment,
1-14 construction, maintenance, and operation of facilities providing
1-15 this service that, in light of advancing knowledge, will promote
1-16 quality in the delivery of services and treatment of residents.
1-17 Sec. 252.002. DEFINITIONS. In this chapter:
1-18 (1) "Board" means the Texas Board of Human Services.
1-19 (2) "Department" means the Texas Department of Human
1-20 Services.
1-21 (3) "Designee" means a state agency or entity with
1-22 which the department contracts to perform specific, identified
1-23 duties related to the fulfillment of a responsibility prescribed by
2-1 this chapter.
2-2 (4) "Facility" means a home or an establishment that
2-3 furnishes, in single or multiple facilities, food, shelter, and
2-4 some treatment or services to four or more persons unrelated to the
2-5 proprietor and:
2-6 (A) is primarily for the diagnosis, treatment,
2-7 or rehabilitation of persons with mental retardation or persons
2-8 with related conditions; and
2-9 (B) provides, in a protected setting, ongoing
2-10 evaluation, planning, 24-hour supervision, coordination, and
2-11 integration of health or rehabilitative services to help each
2-12 resident function at his or her greatest ability.
2-13 (5) "Governmental unit" means the state or a political
2-14 subdivision of the state, including a county or municipality.
2-15 (6) "Person" means an individual, firm, partnership,
2-16 corporation, association, or joint stock company and includes a
2-17 legal successor of those entities.
2-18 (7) "Resident" means an individual, including a
2-19 client, with mental retardation or a related condition who is
2-20 residing in a facility licensed under this chapter.
2-21 Sec. 252.003. EXEMPTIONS. Except as otherwise provided by
2-22 this chapter, this chapter does not apply to an establishment that:
2-23 (1) provides training, habilitation, rehabilitation,
2-24 or education to individuals with mental retardation or a related
2-25 condition;
3-1 (2) is operated under the jurisdiction of a state or
3-2 federal agency, including the department, the Texas Rehabilitation
3-3 Commission, the Texas Department of Mental Health and Mental
3-4 Retardation, the Texas Commission for the Blind, the Texas
3-5 Commission on Alcohol and Drug Abuse, the institutional division of
3-6 the Texas Department of Criminal Justice, or the Veterans'
3-7 Administration;
3-8 (3) is certified through inspection or evaluation as
3-9 meeting the standards established by the state or federal agency;
3-10 and
3-11 (4) is conducted by or for the adherents of a
3-12 well-recognized church or religious denomination for the purpose of
3-13 providing facilities for the care or treatment of the sick who
3-14 depend exclusively on prayer or spiritual means for healing,
3-15 without the use of any drug or material remedy, if the
3-16 establishment complies with safety, sanitary, and quarantine laws
3-17 and rules.
3-18 Sec. 252.004. ALLOCATED FEDERAL MONEY. The department may
3-19 accept and use any money allocated by the federal government to the
3-20 department for administrative expenses.
3-21 Sec. 252.005. LANGUAGE REQUIREMENTS PROHIBITED. A facility
3-22 may not prohibit a resident or employee from communicating in the
3-23 person's native language with another resident or employee for the
3-24 purpose of acquiring or providing care, training, or treatment.
3-25 Sec. 252.006. RIGHTS OF RESIDENTS. Each facility shall
4-1 implement and enforce Chapter 102, Human Resources Code.
4-2 Sec. 252.007. PAPERWORK REDUCTION RULES. (a) The
4-3 department and any designee of the department shall:
4-4 (1) adopt rules to reduce the amount of paperwork a
4-5 facility must complete and retain; and
4-6 (2) attempt to reduce the amount of paperwork to the
4-7 minimum amount required by state and federal law unless the
4-8 reduction would jeopardize resident safety.
4-9 (b) The department, any designee of the department, and each
4-10 facility shall work together to review rules and propose changes in
4-11 paperwork requirements so that additional time is available for
4-12 direct resident care.
4-13 Sec. 252.008. RULES GENERALLY. The department shall adopt
4-14 rules related to the administration and implementation of this
4-15 chapter.
4-16 Sec. 252.009. CONSULTATION AND COORDINATION. (a) Whenever
4-17 possible, the department shall:
4-18 (1) use the services of and consult with state and
4-19 local agencies in carrying out the department's functions under
4-20 this chapter; and
4-21 (2) use the facilities of the department or a designee
4-22 of the department, particularly in establishing and maintaining
4-23 standards relating to the humane treatment of residents.
4-24 (b) The department may cooperate with local public health
4-25 officials of a municipality or county in carrying out this chapter
5-1 and may delegate to those officials the power to make inspections
5-2 and recommendations to the department under this chapter.
5-3 (c) The department may coordinate its personnel and
5-4 facilities with a local agency of a municipality or county and may
5-5 provide advice to the municipality or county if the municipality or
5-6 county decides to supplement the state program with additional
5-7 rules required to meet local conditions.
5-8 Sec. 252.010. CHANGE OF ADMINISTRATORS; FEE. A facility
5-9 that hires a new administrator or other person designated as the
5-10 chief management officer for the facility shall:
5-11 (1) notify the department in writing of the change not
5-12 later than the 30th day after the date on which the change becomes
5-13 effective; and
5-14 (2) pay a $20 administrative fee to the department.
5-15 Sec. 252.011. PROHIBITION OF REMUNERATION. (a) A facility
5-16 may not receive monetary or other remuneration from a person or
5-17 agency that furnishes services or materials to the facility or
5-18 residents for a fee.
5-19 (b) The department may revoke the license of a facility that
5-20 violates Subsection (a).
5-21 (Sections 252.012-252.030 reserved for expansion
5-22 SUBCHAPTER B. LICENSING, FEES, AND INSPECTIONS
5-23 Sec. 252.031. LICENSE REQUIRED. A person or governmental
5-24 unit, acting severally or jointly with any other person or
5-25 governmental unit, may not establish, conduct, or maintain a
6-1 facility in this state without a license issued under this chapter.
6-2 Sec. 252.032. LICENSE APPLICATION. (a) An application for
6-3 a license is made to the department on a form provided by the
6-4 department and must be accompanied by the license fee adopted under
6-5 Section 252.034.
6-6 (b) The application must contain information that the
6-7 department requires. The department may require affirmative
6-8 evidence of ability to comply with the standards and rules adopted
6-9 under this chapter.
6-10 Sec. 252.033. ISSUANCE AND RENEWAL OF LICENSE. (a) After
6-11 receiving the application, the department shall issue a license if,
6-12 after inspection and investigation, it finds that the applicant and
6-13 facility meet the requirements established under this chapter.
6-14 (b) The department may issue a license only for:
6-15 (1) the premises and persons or governmental unit
6-16 named in the application; and
6-17 (2) the maximum number of beds specified in the
6-18 application.
6-19 (c) A license may not be transferred or assigned.
6-20 (d) A license is renewable on the second anniversary of
6-21 issuance or renewal of the license after:
6-22 (1) an inspection;
6-23 (2) filing and approval of a renewal report; and
6-24 (3) payment of the renewal fee.
6-25 (e) The renewal report required under Subsection (d)(2) must
7-1 be filed in accordance with rules adopted by the department that
7-2 specify the form of the report, the date it must be submitted, and
7-3 the information it must contain.
7-4 (f) The department may not issue a license for new beds or
7-5 an expansion of an existing facility under this chapter unless the
7-6 addition of new beds or the expansion is included in the plan
7-7 approved by the Health and Human Services Commission in accordance
7-8 with Section 533.062.
7-9 (g) A license or renewal fee imposed under this chapter is
7-10 an allowable cost for reimbursement under the state Medicaid
7-11 program. An increase in the amount of a fee shall be reflected in
7-12 reimbursement rates prospectively.
7-13 Sec. 252.034. LICENSE FEES. (a) The board by rule may
7-14 adopt a fee for a license issued under this chapter. The fee may
7-15 not exceed $150 plus $5 for each unit of capacity or bed space for
7-16 which the license is sought.
7-17 (b) The license fee must be paid with each application for
7-18 an initial license or for a renewal or change of ownership of a
7-19 license.
7-20 (c) A facility operated by the state is not required to pay
7-21 a license fee.
7-22 (d) The board may adopt an additional fee for the approval
7-23 of an increase in bed space.
7-24 (e) All license fees collected under this section shall be
7-25 deposited in the state treasury to the credit of the department and
8-1 may be appropriated to the department to administer and enforce
8-2 this chapter.
8-3 Sec. 252.035. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE.
8-4 (a) The department, after providing notice and opportunity for a
8-5 hearing to the applicant or license holder, may deny, suspend, or
8-6 revoke a license if the department finds that the applicant or
8-7 license holder has substantially failed to comply with the
8-8 requirements established under this chapter.
8-9 (b) The status of an applicant for a license or a license
8-10 holder is preserved until final disposition of the contested
8-11 matter, except as the court having jurisdiction of a judicial
8-12 review of the matter may order in the public interest for the
8-13 welfare and safety of the residents.
8-14 Sec. 252.036. MINIMUM STANDARDS. The board may adopt,
8-15 publish, and enforce minimum standards relating to:
8-16 (1) the construction or remodeling of a facility,
8-17 including plumbing, heating, lighting, ventilation, and other
8-18 housing conditions, to ensure the residents' health, safety,
8-19 comfort, and protection from fire hazard;
8-20 (2) sanitary and related conditions in a facility and
8-21 its surroundings, including water supply, sewage disposal, food
8-22 handling, and general hygiene in order to ensure the residents'
8-23 health, safety, and comfort;
8-24 (3) equipment essential to the residents' health and
8-25 welfare;
9-1 (4) the reporting and investigation of injuries,
9-2 incidents, and unusual accidents and the establishment of other
9-3 policies and procedures necessary to ensure resident safety;
9-4 (5) behavior management, including use of seclusion
9-5 and physical restraints;
9-6 (6) policies and procedures for the control of
9-7 communicable diseases in employees and residents;
9-8 (7) the use and administration of medication in
9-9 conformity with applicable law and rules for pharmacy services;
9-10 (8) specialized nutrition support such as delivery of
9-11 enteral feedings and parenteral nutrients;
9-12 (9) requirements for in-service education of each
9-13 employee who has any contact with residents;
9-14 (10) the regulation of the number and qualification of
9-15 all personnel, including management and professional support
9-16 personnel, responsible for any part of the care given to residents;
9-17 and
9-18 (11) the quality of life and the provision of active
9-19 treatment to residents.
9-20 Sec. 252.037. REASONABLE TIME TO COMPLY. The board by rule
9-21 shall give a facility that is in operation when a rule or standard
9-22 is adopted under this chapter a reasonable time to comply with the
9-23 rule or standard.
9-24 Sec. 252.038. FIRE SAFETY REQUIREMENTS. (a) A facility
9-25 shall comply with fire safety requirements established under this
10-1 section.
10-2 (b) The board by rule shall adopt the fire safety standards
10-3 applicable to the facility. The fire safety standards must be the
10-4 same as the fire safety standards established by an edition of the
10-5 Life Safety Code of the National Fire Protection Association. If
10-6 required by federal law or regulation, the edition selected may be
10-7 different for facilities or portions of facilities operated or
10-8 approved for construction at different times.
10-9 (c) A facility that is licensed under applicable law on
10-10 September 1, 1997, must comply with the fire safety standards,
10-11 including fire safety standards imposed by municipal ordinance,
10-12 applicable to the facility on that date.
10-13 (d) The rules adopted under this section do not prevent a
10-14 facility licensed under this chapter from voluntarily conforming to
10-15 fire safety standards that are compatible with, equal to, or more
10-16 stringent than those adopted by the board.
10-17 (e) Notwithstanding any other provision of this section, a
10-18 municipality may enact additional and more stringent fire safety
10-19 standards applicable to new construction begun on or after
10-20 September 1, 1997.
10-21 Sec. 252.039. POSTING. Each facility shall prominently and
10-22 conspicuously post for display in a public area of the facility
10-23 that is readily available to residents, employees, and visitors:
10-24 (1) the license issued under this chapter;
10-25 (2) a sign prescribed by the department that specifies
11-1 complaint procedures established under this chapter or rules
11-2 adopted under this chapter and that specifies how complaints may be
11-3 registered with the department;
11-4 (3) a notice in a form prescribed by the department
11-5 stating that inspection and related reports are available at the
11-6 facility for public inspection and providing the department's
11-7 toll-free telephone number that may be used to obtain information
11-8 concerning the facility; and
11-9 (4) a concise summary of the most recent inspection
11-10 report relating to the facility.
11-11 Sec. 252.040. INSPECTIONS. (a) The department or the
11-12 department's designee may make any inspection, survey, or
11-13 investigation that it considers necessary and may enter the
11-14 premises of a facility at reasonable times to make an inspection,
11-15 survey, or investigation in accordance with board rules.
11-16 (b) The department is entitled to access to books, records,
11-17 and other documents maintained by or on behalf of a facility to the
11-18 extent necessary to enforce this chapter and the rules adopted
11-19 under this chapter.
11-20 (c) A license holder or an applicant for a license is
11-21 considered to have consented to entry and inspection of the
11-22 facility by a representative of the department in accordance with
11-23 this chapter.
11-24 (d) The department shall establish procedures to preserve
11-25 all relevant evidence of conditions the department finds during an
12-1 inspection, survey, or investigation that the department reasonably
12-2 believes threaten the health and safety of a resident. The
12-3 procedures may include photography or photocopying of relevant
12-4 documents, such as license holder's notes, physician's orders, and
12-5 pharmacy records, for use in any legal proceeding.
12-6 (e) When photographing a resident, the department:
12-7 (1) shall respect the privacy of the resident to the
12-8 greatest extent possible; and
12-9 (2) may not make public the identity of the resident.
12-10 (f) A facility, an officer or employee of a facility, and a
12-11 resident's attending physician are not civilly liable for
12-12 surrendering confidential or private material under this section,
12-13 including physician's orders, pharmacy records, notes and memoranda
12-14 of a state office, and resident files.
12-15 (g) The department shall establish in clear and concise
12-16 language a form to summarize each inspection report and complaint
12-17 investigation report.
12-18 (h) The department shall establish proper procedures to
12-19 ensure that copies of all forms and reports under this section are
12-20 made available to consumers, service recipients, and the relatives
12-21 of service recipients as the department considers proper.
12-22 Sec. 252.041. UNANNOUNCED INSPECTIONS. (a) Each licensing
12-23 period, the department shall conduct at least two unannounced
12-24 inspections of each facility.
12-25 (b) In order to ensure continuous compliance, the department
13-1 shall randomly select a sufficient percentage of facilities for
13-2 unannounced inspections to be conducted between 5 p.m. and 8 a.m.
13-3 Those inspections must be cursory to avoid to the greatest extent
13-4 feasible any disruption of the residents.
13-5 (c) The department may require additional inspections.
13-6 (d) As considered appropriate and necessary by the
13-7 department, the department may invite at least one person as a
13-8 citizen advocate to participate in inspections. The invited
13-9 advocate must be an individual who has an interest in or who is
13-10 employed by or affiliated with an organization or entity that
13-11 represents, advocates for, or serves individuals with mental
13-12 retardation or a related condition.
13-13 Sec. 252.042. DISCLOSURE OF UNANNOUNCED INSPECTIONS;
13-14 CRIMINAL PENALTY. (a) Except as expressly provided by this
13-15 chapter, a person commits an offense if the person intentionally,
13-16 knowingly, or recklessly discloses to an unauthorized person the
13-17 date, time, or any other fact about an unannounced inspection of a
13-18 facility before the inspection occurs.
13-19 (b) In this section, "unauthorized person" does not include:
13-20 (1) the department;
13-21 (2) the office of the attorney general;
13-22 (3) a representative of an agency or organization when
13-23 a Medicaid survey is made concurrently with a licensing inspection;
13-24 or
13-25 (4) any other person or entity authorized by law to
14-1 make an inspection or to accompany an inspector.
14-2 (c) An offense under this section is a Class B misdemeanor.
14-3 (d) A person convicted under this section is not eligible
14-4 for state employment.
14-5 Sec. 252.043. LICENSING SURVEYS. The department shall
14-6 provide a team to conduct surveys to validate findings of licensing
14-7 surveys. The purpose of a validation survey is to assure that
14-8 survey teams throughout the state survey in a fair and consistent
14-9 manner. A facility subjected to a validation survey must correct
14-10 deficiencies cited by the validation team but is not subject to
14-11 punitive action for those deficiencies.
14-12 (Sections 252.044-252.060 reserved for expansion
14-13 SUBCHAPTER C. GENERAL ENFORCEMENT
14-14 Sec. 252.061. EMERGENCY SUSPENSION OR CLOSING ORDER.
14-15 (a) The department shall suspend a facility's license or order an
14-16 immediate closing of part of the facility if:
14-17 (1) the department finds the facility is operating in
14-18 violation of the standards prescribed by this chapter; and
14-19 (2) the violation creates an immediate threat to the
14-20 health and safety of a resident.
14-21 (b) The board by rule shall provide for the placement of
14-22 residents during the facility's suspension or closing to ensure
14-23 their health and safety.
14-24 (c) An order suspending a license or closing a part of a
14-25 facility under this section is immediately effective on the date on
15-1 which the license holder receives written notice or a later date
15-2 specified in the order.
15-3 (d) An order suspending a license or ordering an immediate
15-4 closing of a part of a facility is valid for 10 days after the
15-5 effective date of the order.
15-6 Sec. 252.062. INJUNCTION. (a) The department may petition
15-7 a district court for a temporary restraining order to restrain a
15-8 person from continuing a violation of the standards prescribed by
15-9 this chapter if the department finds that the violation creates an
15-10 immediate threat to the health and safety of the facility's
15-11 residents.
15-12 (b) A district court, on petition of the department, may by
15-13 injunction:
15-14 (1) prohibit a person from continuing a violation of
15-15 the standards or licensing requirements prescribed by this chapter;
15-16 (2) restrain or prevent the establishment, conduct,
15-17 management, or operation of a facility without a license issued
15-18 under this chapter; or
15-19 (3) grant the injunctive relief warranted by the facts
15-20 on a finding by the court that a person is violating the standards
15-21 or licensing requirements prescribed by this chapter.
15-22 (c) The attorney general, on request by the department,
15-23 shall bring and conduct on behalf of the state a suit authorized by
15-24 this section.
15-25 (d) A suit for a temporary restraining order or other
16-1 injunctive relief must be brought in the county in which the
16-2 alleged violation occurs.
16-3 Sec. 252.063. LICENSE REQUIREMENTS; CRIMINAL PENALTY.
16-4 (a) A person commits an offense if the person violates Section
16-5 252.031.
16-6 (b) An offense under this section is punishable by a fine of
16-7 not more than $1,000 for the first offense and not more than $500
16-8 for each subsequent offense.
16-9 (c) Each day of a continuing violation after conviction is a
16-10 separate offense.
16-11 Sec. 252.064. CIVIL PENALTY. (a) A person who violates
16-12 this chapter or a rule adopted under this chapter is liable for a
16-13 civil penalty of not less than $100 or more than $10,000 for each
16-14 violation if the department determines the violation threatens the
16-15 health and safety of a resident.
16-16 (b) Each day of a continuing violation constitutes a
16-17 separate ground for recovery.
16-18 (c) The attorney general, on request of the department,
16-19 shall bring and conduct a suit to collect a civil penalty. Any
16-20 amount collected shall be remitted to the comptroller for deposit
16-21 to the credit of the general revenue fund.
16-22 Sec. 252.065. ADMINISTRATIVE PENALTY. (a) The department
16-23 may assess an administrative penalty against a facility that
16-24 violates this chapter or a rule adopted under this chapter as
16-25 specified by this section.
17-1 (b) The department by rule shall establish gradations and
17-2 amounts of penalties.
17-3 (c) In determining the amount of a penalty, the department
17-4 shall consider:
17-5 (1) the gradations of penalties established under
17-6 Subsection (b);
17-7 (2) the seriousness of the violation, including the
17-8 nature, circumstances, extent, and gravity of the violation;
17-9 (3) the hazard or potential hazard created by the
17-10 violation to the public health and safety;
17-11 (4) any previous violations;
17-12 (5) the amount necessary to deter future violations;
17-13 (6) efforts made to correct the violation;
17-14 (7) the size of the facility; and
17-15 (8) any other matter justice may require.
17-16 (d) The penalty may not exceed $5,000 for each violation.
17-17 Each day of a continuing violation constitutes a separate
17-18 violation.
17-19 (e) The department may not assess a penalty under both this
17-20 subchapter and Section 32.021, Human Resources Code, for a
17-21 violation arising out of the same act or failure to act.
17-22 Sec. 252.066. RULES REGARDING ADMINISTRATIVE PENALTY.
17-23 (a) The board shall adopt rules governing the assessment of
17-24 administrative penalties under this chapter, including rules
17-25 providing procedures for:
18-1 (1) giving notice of a violation to a facility;
18-2 (2) payment and refund of a penalty; and
18-3 (3) hearings and appeals.
18-4 (b) Rules adopted under this section shall include specific
18-5 and objective criteria that describe the scope and severity of a
18-6 violation that results in a recommendation for each specific
18-7 penalty. A penalty must be appropriate to the violation and may be
18-8 imposed only when a violation presents an immediate and serious
18-9 threat to the health and safety of a resident.
18-10 (c) The rules must establish a system to ensure standard and
18-11 consistent application of penalties by local surveyors and across
18-12 different areas of the state.
18-13 (d) The department may prescribe a per diem penalty. The
18-14 per diem penalty ceases on the date a violation is corrected. The
18-15 per diem penalty ceases only if the facility notifies the
18-16 department in writing that the violation has been corrected and of
18-17 the date of the correction and shows later that the violation was
18-18 corrected.
18-19 (e) For purposes of this section, "immediate and serious
18-20 threat" means a situation in which there is a high probability that
18-21 serious harm or injury to residents could occur at any time or has
18-22 already occurred and may occur again if residents are not protected
18-23 effectively from the harm or if the threat is not removed.
18-24 (Sections 252.067-252.090 reserved for expansion
19-1 SUBCHAPTER D. TRUSTEES FOR FACILITIES
19-2 Sec. 252.091. FINDINGS AND PURPOSE. (a) The legislature
19-3 finds that, under some circumstances, closing a facility for a
19-4 violation of a law or rule may:
19-5 (1) have an adverse effect on the facility's residents
19-6 and their families; and
19-7 (2) result in a lack of readily available financial
19-8 resources to meet the basic needs of the residents for food,
19-9 shelter, medication, and personal services.
19-10 (b) The purpose of this subchapter is to provide for:
19-11 (1) the appointment of a trustee to assume the
19-12 operations of the facility in a manner that emphasizes resident
19-13 care and reduces resident trauma; and
19-14 (2) a fund to assist a court-appointed trustee in
19-15 meeting the basic needs of the residents.
19-16 Sec. 252.092. APPOINTMENT BY AGREEMENT. (a) A person who
19-17 holds a controlling interest in a facility may request the
19-18 department to assume the operation of the facility through the
19-19 appointment of a trustee under this subchapter.
19-20 (b) After receiving the request, the department may enter
19-21 into an agreement providing for the appointment of a trustee to
19-22 take charge of the facility under conditions both parties consider
19-23 appropriate if the department considers the appointment desirable.
19-24 (c) An agreement under this section must:
19-25 (1) specify the terms and conditions of the trustee's
20-1 appointment and authority; and
20-2 (2) preserve the rights of the residents as granted by
20-3 law.
20-4 (d) The agreement terminates at the time:
20-5 (1) specified by the parties; or
20-6 (2) either party notifies the other in writing that
20-7 the party is terminating the appointment agreement.
20-8 Sec. 252.093. INVOLUNTARY APPOINTMENT. (a) The department
20-9 may request the attorney general to bring an action on behalf of
20-10 the state for the appointment of a trustee to operate a facility
20-11 if:
20-12 (1) the facility is operating without a license;
20-13 (2) the department has suspended or revoked the
20-14 facility's license;
20-15 (3) license suspension or revocation procedures
20-16 against the facility are pending and the department determines that
20-17 an imminent threat to the health and safety of the residents
20-18 exists;
20-19 (4) the department determines that an emergency exists
20-20 that presents an immediate threat to the health and safety of the
20-21 residents; or
20-22 (5) the facility is closing and arrangements for
20-23 relocation of the residents to other licensed facilities have not
20-24 been made before closure.
20-25 (b) A trustee appointed under Subsection (a)(5) may only
21-1 ensure an orderly and safe relocation of the facility's residents
21-2 as quickly as possible.
21-3 (c) After a hearing, a court shall appoint a trustee to take
21-4 charge of a facility if the court finds that involuntary
21-5 appointment of a trustee is necessary.
21-6 (d) If possible, the court shall appoint as trustee an
21-7 individual whose background includes mental retardation service
21-8 administration.
21-9 (e) An action under this section must be brought in Travis
21-10 County.
21-11 Sec. 252.094. FEE; RELEASE OF MONEY. (a) A trustee
21-12 appointed under this subchapter is entitled to a reasonable fee as
21-13 determined by the court.
21-14 (b) The trustee may petition the court to order the release
21-15 to the trustee of any payment owed the trustee for care and
21-16 services provided to the residents if the payment has been
21-17 withheld, including a payment:
21-18 (1) withheld by the department at the recommendation
21-19 of the department; or
21-20 (2) withheld by a governmental agency or other entity
21-21 during the appointment of the trustee, such as payments:
21-22 (A) for Medicaid or insurance;
21-23 (B) by a third party; or
21-24 (C) for medical expenses borne by the residents.
21-25 Sec. 252.095. EMERGENCY ASSISTANCE FEE. (a) In addition to
22-1 the licensing and renewal fee collected under Section 252.034, the
22-2 department may collect an annual fee to be used to make emergency
22-3 assistance money available to a facility licensed under this
22-4 chapter.
22-5 (b) The fee collected under this section shall be in the
22-6 amount prescribed by Section 242.097(b) and shall be deposited to
22-7 the credit of the nursing and convalescent home trust fund
22-8 established under Section 242.096.
22-9 (c) The department may disburse money to a trustee for a
22-10 facility licensed under this chapter to alleviate an immediate
22-11 threat to the health or safety of the facility's residents.
22-12 Payments under this section may include payments described by
22-13 Section 242.096(b).
22-14 (d) A court may order the department to disburse emergency
22-15 assistance money to a trustee for a facility licensed under this
22-16 chapter if the court makes the findings provided by Section
22-17 242.096(c).
22-18 Sec. 252.096. REIMBURSEMENT. (a) A facility that receives
22-19 emergency assistance money under this subchapter shall reimburse
22-20 the department for the amounts received, including interest.
22-21 (b) Interest on unreimbursed amounts begins to accrue on the
22-22 date on which the money is disbursed to the facility. The rate of
22-23 interest is the rate determined under Section 2, Article 1.05,
22-24 Title 79, Revised Statutes (Article 5069-1.05, Vernon's Texas Civil
22-25 Statutes), to be applicable to judgments rendered during the month
23-1 in which the money is disbursed to the facility.
23-2 (c) The owner of the facility when the trustee is appointed
23-3 is responsible for the reimbursement.
23-4 (d) The amount that remains unreimbursed on the first
23-5 anniversary of the date on which the money is received is
23-6 delinquent and the department may determine that the facility is
23-7 ineligible for a Medicaid provider contract.
23-8 (e) The department shall deposit the reimbursement and
23-9 interest received under this section to the credit of the nursing
23-10 and convalescent home trust fund.
23-11 (f) The attorney general shall institute an action to
23-12 collect money due under this section at the request of the
23-13 department. An action under this section must be brought in Travis
23-14 County.
23-15 Sec. 252.097. NOTIFICATION OF CLOSURE. (a) A facility that
23-16 is closing temporarily or permanently, voluntarily or
23-17 involuntarily, shall notify the residents of the closing and make
23-18 reasonable efforts to notify in writing each resident's nearest
23-19 relative or the person responsible for the resident's support
23-20 within a reasonable time before the facility closes.
23-21 (b) If the department orders a facility to close or the
23-22 facility's closure is in any other way involuntary, the facility
23-23 shall make the notification, orally or in writing, immediately on
23-24 receiving notice of the closing.
23-25 (c) If the facility's closure is voluntary, the facility
24-1 shall make the notification not later than one week after the date
24-2 on which the decision to close is made.
24-3 Sec. 252.098. CRIMINAL PENALTY FOR FAILURE TO NOTIFY.
24-4 (a) A facility commits an offense if the facility knowingly fails
24-5 to comply with Section 252.097.
24-6 (b) An offense under this section is a Class A misdemeanor.
24-7 (Sections 252.099-252.120 reserved for expansion
24-8 SUBCHAPTER E. REPORTS OF ABUSE AND NEGLECT
24-9 Sec. 252.121. DEFINITION. In this subchapter, "designated
24-10 agency" means an agency designated by a court to be responsible for
24-11 the protection of a resident who is the subject of a report of
24-12 abuse or neglect.
24-13 Sec. 252.122. REPORTING OF ABUSE AND NEGLECT. (a) A
24-14 person, including an owner or employee of a facility, who has cause
24-15 to believe that the physical or mental health or welfare of a
24-16 resident has been or may be adversely affected by abuse or neglect
24-17 caused by another person shall report the abuse or neglect to the
24-18 department, to a designated agency, or to both the department and
24-19 the designated agency, as specified in department rules.
24-20 (b) Each facility shall require each employee of the
24-21 facility, as a condition of employment with the facility, to sign a
24-22 statement that the employee realizes that the employee may be
24-23 criminally liable for failure to report abuse or neglect.
24-24 (c) A person shall make an oral report immediately on
24-25 learning of abuse or neglect and shall make a written report to the
25-1 same agency not later than the fifth day after the oral report is
25-2 made.
25-3 Sec. 252.123. CONTENTS OF REPORT. (a) A report of abuse or
25-4 neglect is nonaccusatory and reflects the reporting person's belief
25-5 that a resident has been or will be abused or neglected or has died
25-6 of abuse or neglect.
25-7 (b) The report must contain:
25-8 (1) the name and address of the resident;
25-9 (2) the name and address of the person responsible for
25-10 the care of the resident, if available; and
25-11 (3) other relevant information.
25-12 Sec. 252.124. ANONYMOUS REPORTS OF ABUSE OR NEGLECT.
25-13 (a) An anonymous report of abuse or neglect, although not
25-14 encouraged, shall be received and acted on in the same manner as an
25-15 acknowledged report.
25-16 (b) A local or state law enforcement agency that receives a
25-17 report of abuse or neglect shall refer the report to the department
25-18 or the designated agency.
25-19 Sec. 252.125. INVESTIGATION AND REPORT OF RECEIVING AGENCY.
25-20 (a) The department or the designated agency shall make a thorough
25-21 investigation promptly after receiving either the oral or written
25-22 report.
25-23 (b) The primary purpose of the investigation is the
25-24 protection of the resident.
25-25 (c) In the investigation, the department or the designated
26-1 agency shall determine:
26-2 (1) the nature, extent, and cause of the abuse or
26-3 neglect;
26-4 (2) the identity of the person responsible for the
26-5 abuse or neglect;
26-6 (3) the names and conditions of the other residents;
26-7 (4) an evaluation of the persons responsible for the
26-8 care of the residents;
26-9 (5) the adequacy of the facility environment; and
26-10 (6) any other information required by the department.
26-11 (d) The investigation may include a visit to the resident's
26-12 facility and an interview with the resident, if considered
26-13 appropriate by the department.
26-14 (e) If the department attempts to carry out an on-site
26-15 investigation and it is shown that admission to the facility or any
26-16 place where a resident is located cannot be obtained, a probate or
26-17 county court shall order the person responsible for the care of the
26-18 resident or the person in charge of a place where the resident is
26-19 located to allow admission for the investigation and any interview
26-20 with the resident.
26-21 (f) Before the completion of the investigation, the
26-22 department shall file a petition for temporary care and protection
26-23 of the resident if the department determines that immediate removal
26-24 is necessary to protect the resident from further abuse or neglect.
26-25 (g) The department or the designated agency shall make a
27-1 complete written report of the investigation and submit the report
27-2 and its recommendations to the district attorney and the
27-3 appropriate law enforcement agency and, if necessary, to the
27-4 department on the department's request.
27-5 Sec. 252.126. CONFIDENTIALITY. A report, record, or working
27-6 paper used or developed in an investigation made under this
27-7 subchapter is confidential and may be disclosed only for purposes
27-8 consistent with the rules adopted by the board or the designated
27-9 agency.
27-10 Sec. 252.127. IMMUNITY. (a) Except as provided by Section
27-11 252.131, a person who reports an act of abuse or neglect as
27-12 provided by this subchapter is immune from civil or criminal
27-13 liability that, in the absence of the immunity, might result from
27-14 making the report.
27-15 (b) The immunity provided by this section extends to
27-16 participation in any judicial proceeding that results from the
27-17 report.
27-18 Sec. 252.128. PRIVILEGED COMMUNICATIONS. In a proceeding
27-19 regarding the abuse or neglect of a resident or the cause of any
27-20 abuse or neglect, evidence may not be excluded on the ground of
27-21 privileged communication except in the case of a communication
27-22 between an attorney and client.
27-23 Sec. 252.129. CENTRAL REGISTRY. (a) The department shall
27-24 maintain in the city of Austin a central registry of reported cases
27-25 of resident abuse or neglect. The department shall include the
28-1 registry in the registry maintained under Section 242.130.
28-2 (b) The board may adopt rules necessary to carry out this
28-3 section.
28-4 (c) The rules shall provide for cooperation with hospitals
28-5 and clinics in the exchange of reports of resident abuse or
28-6 neglect.
28-7 Sec. 252.130. FAILURE TO REPORT; CRIMINAL PENALTY. (a) A
28-8 person commits an offense if the person has cause to believe that a
28-9 resident's physical or mental health or welfare has been or may be
28-10 further adversely affected by abuse or neglect and knowingly fails
28-11 to report in accordance with Section 252.122.
28-12 (b) An offense under this section is a Class A misdemeanor.
28-13 Sec. 252.131. BAD FAITH, MALICIOUS, OR RECKLESS REPORTING;
28-14 CRIMINAL PENALTY. (a) A person commits an offense if the person
28-15 reports under this subchapter in bad faith, maliciously, or
28-16 recklessly.
28-17 (b) An offense under this section is a Class A misdemeanor.
28-18 (c) The criminal penalty provided by this section is in
28-19 addition to any civil penalties for which the person may be liable.
28-20 Sec. 252.132. SUIT FOR RETALIATION. (a) A facility may not
28-21 suspend or terminate the employment of, or discipline or otherwise
28-22 discriminate against, an employee for reporting to the employee's
28-23 supervisor, an administrator of the facility, a state regulatory
28-24 agency, or a law enforcement agency the abuse or neglect of a
28-25 resident.
29-1 (b) A facility that violates Subsection (a) is liable to the
29-2 person against whom the facility discriminated. A person against
29-3 whom a facility discriminates in violation of Subsection (a) may
29-4 sue for injunctive relief, damages, or both.
29-5 (c) A plaintiff who prevails in a suit under this section
29-6 may recover:
29-7 (1) the greater of $1,000 or actual damages, including
29-8 damages for mental anguish even if an injury other than mental
29-9 anguish is not shown and damages for lost wages if the petitioner's
29-10 employment was suspended or terminated;
29-11 (2) exemplary damages;
29-12 (3) court costs; and
29-13 (4) reasonable attorney's fees.
29-14 (d) In addition to the amounts that may be recovered under
29-15 Subsection (c), a person whose employment is suspended or
29-16 terminated is entitled to reinstatement in the person's former
29-17 position.
29-18 (e) The petitioner, not later than the 90th day after the
29-19 date on which the person's employment is suspended or terminated,
29-20 must bring suit or notify the Texas Workforce Commission of the
29-21 petitioner's intent to sue under this section. A petitioner who
29-22 notifies the Texas Workforce Commission under this subsection must
29-23 bring suit not later than the 90th day after the date of the
29-24 delivery of the notice to the commission. On receipt of the
29-25 notice, the commission shall notify the facility of the
30-1 petitioner's intent to bring suit under this section.
30-2 (f) The petitioner has the burden of proof, except that
30-3 there is a rebuttable presumption that the person's employment was
30-4 suspended or terminated for reporting abuse or neglect if the
30-5 person is suspended or terminated within 60 days after the date on
30-6 which the person reported in good faith.
30-7 (g) A suit under this section may be brought in the district
30-8 court of the county in which:
30-9 (1) the plaintiff resides;
30-10 (2) the plaintiff was employed by the defendant; or
30-11 (3) the defendant conducts business.
30-12 (h) Each facility shall require each employee of the
30-13 facility, as a condition of employment with the facility, to sign a
30-14 statement that the employee understands the employee's rights under
30-15 this section. The statement must be part of the statement required
30-16 under Section 252.122(b). If a facility does not require an
30-17 employee to read and sign the statement, the periods prescribed by
30-18 Subsection (e) do not apply, and the petitioner must bring suit not
30-19 later than the second anniversary of the date on which the person's
30-20 employment is suspended or terminated.
30-21 Sec. 252.133. SUIT FOR RETALIATION AGAINST RESIDENT. (a) A
30-22 facility may not retaliate or discriminate against a resident if
30-23 the resident, the resident's guardian, or any other person reports
30-24 abuse or neglect in accordance with this subchapter.
30-25 (b) A resident against whom a facility retaliates or
31-1 discriminates in violation of Subsection (a) is entitled to sue
31-2 for:
31-3 (1) injunctive relief;
31-4 (2) actual damages;
31-5 (3) exemplary damages;
31-6 (4) court costs; and
31-7 (5) reasonable attorney's fees.
31-8 (c) A resident who seeks relief under this section must
31-9 report the alleged violation not later than the 180th day after the
31-10 date on which the alleged violation of this section occurred or was
31-11 discovered by the resident through reasonable diligence.
31-12 (d) A suit under this section may be brought in the district
31-13 court of the county in which the facility is located or in a
31-14 district court of Travis County.
31-15 Sec. 252.134. REPORTS RELATING TO RESIDENT DEATHS;
31-16 STATISTICAL INFORMATION. (a) A facility licensed under this
31-17 chapter shall submit a report to the department concerning the
31-18 death of:
31-19 (1) a resident of the facility; and
31-20 (2) a former resident that occurs 24 hours or less
31-21 after the former resident is transferred from the facility to a
31-22 hospital.
31-23 (b) The report must be submitted not later than the 10th
31-24 working day after the last day of each month in which a resident of
31-25 the facility dies. The facility must make the report on a form
32-1 prescribed by the department. The report must contain the name and
32-2 social security number of the deceased.
32-3 (c) The department shall correlate reports under this
32-4 section with death certificate information to develop data relating
32-5 to the:
32-6 (1) name and age of the deceased;
32-7 (2) official cause of death listed on the death
32-8 certificate;
32-9 (3) date, time, and place of death; and
32-10 (4) name and address of the facility in which the
32-11 deceased resided.
32-12 (d) Unless specified by board rule, a record under this
32-13 section is confidential and not subject to the provisions of
32-14 Chapter 552, Government Code.
32-15 (e) The department shall develop statistical information on
32-16 official causes of death to determine patterns and trends of
32-17 incidents of death among persons with mental retardation and
32-18 related conditions and in specific facilities. Information
32-19 developed under this subsection is not confidential.
32-20 (f) A licensed facility shall make available on the request
32-21 of an applicant or an applicant's representative historical
32-22 statistics on all required information.
32-23 (Sections 252.135-252.150 reserved for expansion
32-24 SUBCHAPTER F. MEDICAL CARE
32-25 Sec. 252.151. ADMINISTRATION OF MEDICATION. The department
33-1 shall adopt rules relating to the administration of medication in
33-2 intermediate care facilities.
33-3 Sec. 252.152. APPLICATION OF OTHER LAW. (a) Except as
33-4 provided by Subsection (c), Subchapter F, Chapter 242, applies to a
33-5 facility.
33-6 (b) In applying Subchapter F, Chapter 242, to a facility,
33-7 the term "resident" has the meaning assigned by Section 252.002 and
33-8 the term "institution" means a facility.
33-9 (c) Section 242.160 does not apply to a facility.
33-10 (Sections 252.153-252.180 reserved for expansion
33-11 SUBCHAPTER G. RESPITE CARE
33-12 Sec. 252.181. DEFINITIONS. In this subchapter:
33-13 (1) "Plan of care" means a written description of the
33-14 care, training, and treatment needed by a person during respite
33-15 care.
33-16 (2) "Respite care" means the provision by a facility
33-17 to a person, for not more than two weeks for each stay in the
33-18 facility, of:
33-19 (A) room and board; and
33-20 (B) care at the level ordinarily provided for
33-21 permanent residents.
33-22 Sec. 252.182. RESPITE CARE. (a) A facility licensed under
33-23 this chapter may provide respite care for an individual who has a
33-24 diagnosis of mental retardation or a related condition without
33-25 regard to whether the individual is eligible to receive
34-1 intermediate care services under federal law.
34-2 (b) The board may adopt rules for the regulation of respite
34-3 care provided by a facility licensed under this chapter.
34-4 Sec. 252.183. PLAN OF CARE. (a) The facility and the
34-5 person arranging the care must agree on the plan of care and the
34-6 plan must be filed at the facility before the facility admits the
34-7 person for the care.
34-8 (b) The plan of care must be signed by:
34-9 (1) a licensed physician if the person for whom the
34-10 care is arranged needs medical care or treatment; or
34-11 (2) the person arranging for the respite care if
34-12 medical care or treatment is not needed.
34-13 (c) The facility may keep an agreed plan of care for a
34-14 person for not longer than six months from the date on which it is
34-15 received. After each admission, the facility shall review and
34-16 update the plan of care. During that period, the facility may
34-17 admit the person as frequently as is needed and as accommodations
34-18 are available.
34-19 Sec. 252.184. NOTIFICATION. A facility that offers respite
34-20 care shall notify the department in writing that it offers respite
34-21 care.
34-22 Sec. 252.185. INSPECTIONS. The department, at the time of
34-23 an ordinary licensing inspection or at other times determined
34-24 necessary by the department, shall inspect a facility's records of
34-25 respite care services, physical accommodations available for
35-1 respite care, and the plan of care records to ensure that the
35-2 respite care services comply with the licensing standards of this
35-3 chapter and with any rules the board may adopt to regulate respite
35-4 care services.
35-5 Sec. 252.186. SUSPENSION. (a) The department may require a
35-6 facility to cease providing respite care if the department
35-7 determines that the respite care does not meet the standards
35-8 required by this chapter and that the facility cannot comply with
35-9 those standards in the respite care it provides.
35-10 (b) The department may suspend the license of a facility
35-11 that continues to provide respite care after receiving a written
35-12 order from the department to cease.
35-13 SECTION 2. Subdivision (6), Section 242.002, Health and
35-14 Safety Code, is amended to read as follows:
35-15 (6) "Institution" means[:]
35-16 [(A)] an establishment that:
35-17 (A) [(i)] furnishes, in one or more facilities,
35-18 food and shelter to four or more persons who are unrelated to the
35-19 proprietor of the establishment; and
35-20 (B) [(ii)] provides minor treatment under the
35-21 direction and supervision of a physician licensed by the Texas
35-22 State Board of Medical Examiners, or other services that meet some
35-23 need beyond the basic provision of food, shelter, and laundry[; or]
35-24 [(B) a foster care type residential facility
35-25 that provides room and board to fewer than five persons who:]
36-1 [(i) are not related within the second
36-2 degree of consanguinity or affinity, as determined under Chapter
36-3 573, Government Code, to the proprietor; and]
36-4 [(ii) because of their physical or mental
36-5 limitation, or both, require a level of care and services suitable
36-6 to their needs that contributes to their health, comfort, and
36-7 welfare].
36-8 SECTION 3. Section 242.003, Health and Safety Code, is
36-9 amended to read as follows:
36-10 Sec. 242.003. EXEMPTIONS. [(a)] Except as otherwise
36-11 provided, this chapter does not apply to:
36-12 (1) a hotel or other similar place that furnishes only
36-13 food, lodging, or both, to its guests;
36-14 (2) a hospital;
36-15 (3) an establishment conducted by or for the adherents
36-16 of a well-recognized church or religious denomination for the
36-17 purpose of providing facilities for the care or treatment of the
36-18 sick who depend exclusively on prayer or spiritual means for
36-19 healing, without the use of any drug or material remedy, if the
36-20 establishment complies with safety, sanitary, and quarantine laws
36-21 and rules;
36-22 (4) an establishment that furnishes, in addition to
36-23 food, shelter, and laundry, only baths and massages;
36-24 (5) an institution operated by a person licensed by
36-25 the Texas Board of Chiropractic Examiners;
37-1 (6) a facility that:
37-2 (A) primarily engages in training, habilitation,
37-3 rehabilitation, or education of clients or residents;
37-4 (B) is operated under the jurisdiction of a
37-5 state or federal agency, including the Texas Rehabilitation
37-6 Commission, Texas Department of Mental Health and Mental
37-7 Retardation, Texas Department of Human Services, Texas Commission
37-8 for the Blind, Texas Commission on Alcohol and Drug Abuse,
37-9 institutional division of the Texas Department of Criminal Justice,
37-10 and the Veteran's Administration; and
37-11 (C) is certified through inspection or
37-12 evaluation as meeting the standards established by the state or
37-13 federal agency; [and]
37-14 (7) a foster care type residential facility that
37-15 serves fewer than five persons and operates under rules adopted by
37-16 the Texas Department of Human Services; and
37-17 (8) a facility licensed under Chapter 252 or exempt
37-18 from licensure under Section 252.003.
37-19 [(b) An institution described by Section 242.002(6)(C) is
37-20 subject to licensing under this chapter only if written application
37-21 is made for participation in the intermediate care program under
37-22 federal law.]
37-23 SECTION 4. (a) Except as provided by Subsection (b) of this
37-24 section, this Act takes effect September 1, 1997.
37-25 (b) Section 2 of this Act takes effect January 1, 1998.
38-1 SECTION 5. (a) Notwithstanding Sections 252.031 and
38-2 252.063, Health and Safety Code, as added by this Act:
38-3 (1) a facility is not required to be licensed under
38-4 Chapter 252, Health and Safety Code, as added by this Act, before
38-5 January 1, 1998; and
38-6 (2) a facility that is required to be licensed under
38-7 that chapter and that is, on the effective date of this Act,
38-8 licensed under Chapter 242, Health and Safety Code, may continue to
38-9 operate under the license issued under Chapter 242 until the later
38-10 of:
38-11 (A) December 31, 1997; or
38-12 (B) the date on which the license is subject to
38-13 renewal.
38-14 (b) A license issued under Chapter 242, Health and Safety
38-15 Code, to an institution that is required to be licensed as a
38-16 facility under Chapter 252, Health and Safety Code, as added by
38-17 this Act, may not be renewed after December 1, 1997.
38-18 (c) A facility licensed under Chapter 252, Health and Safety
38-19 Code, as added by this Act, is not subject to Chapter 48, Human
38-20 Resources Code.
38-21 SECTION 6. The importance of this legislation and the
38-22 crowded condition of the calendars in both houses create an
38-23 emergency and an imperative public necessity that the
38-24 constitutional rule requiring bills to be read on three several
38-25 days in each house be suspended, and this rule is hereby suspended.