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 (A) furnishes food, shelter, and treatment or
2-4 services to four or more persons unrelated to the owner;
2-5 (B) is primarily for the diagnosis, treatment,
2-6 or rehabilitation of persons with mental retardation or related
2-7 conditions; and
2-8 (C) provides in a protected setting continuous
2-9 evaluation, planning, 24-hour supervision, coordination, and
2-10 integration of health or rehabilitative services to help each
2-11 resident function at the resident's greatest ability.
2-12 (5) "Governmental unit" means the state or a political
2-13 subdivision of the state, including a county or municipality.
2-14 (6) "Person" means an individual, firm, partnership,
2-15 corporation, association, or joint stock company and includes a
2-16 legal successor of those entities.
2-17 (7) "Resident" means an individual, including a
2-18 client, with mental retardation or a related condition who is
2-19 residing in a facility licensed under this chapter.
2-20 Sec. 252.003. EXEMPTIONS. Except as otherwise provided by
2-21 this chapter, this chapter does not apply to an establishment that:
2-22 (1) provides training, habilitation, rehabilitation,
2-23 or education to individuals with mental retardation or a related
2-24 condition;
2-25 (2) is operated under the jurisdiction of a state or
3-1 federal agency, including the department, the Texas Rehabilitation
3-2 Commission, the Texas Department of Mental Health and Mental
3-3 Retardation, the Texas Commission for the Blind, the Texas
3-4 Commission on Alcohol and Drug Abuse, the institutional division of
3-5 the Texas Department of Criminal Justice, or the Veterans'
3-6 Administration;
3-7 (3) is certified through inspection or evaluation as
3-8 meeting the standards established by the state or federal agency;
3-9 and
3-10 (4) is conducted by or for the adherents of a
3-11 well-recognized church or religious denomination for the purpose of
3-12 providing facilities for the care or treatment of the sick who
3-13 depend exclusively on prayer or spiritual means for healing,
3-14 without the use of any drug or material remedy, if the
3-15 establishment complies with safety, sanitary, and quarantine laws
3-16 and rules.
3-17 Sec. 252.004. ALLOCATED FEDERAL MONEY. The department may
3-18 accept and use any money allocated by the federal government to the
3-19 department for administrative expenses.
3-20 Sec. 252.005. LANGUAGE REQUIREMENTS PROHIBITED. A facility
3-21 may not prohibit a resident or employee from communicating in the
3-22 person's native language with another resident or employee for the
3-23 purpose of acquiring or providing care, training, or treatment.
3-24 Sec. 252.006. RIGHTS OF RESIDENTS. Each facility shall
3-25 implement and enforce Chapter 102, Human Resources Code.
4-1 Sec. 252.007. PAPERWORK REDUCTION RULES. (a) The
4-2 department and any designee of the department shall:
4-3 (1) adopt rules to reduce the amount of paperwork a
4-4 facility must complete and retain; and
4-5 (2) attempt to reduce the amount of paperwork to the
4-6 minimum amount required by state and federal law unless the
4-7 reduction would jeopardize resident safety.
4-8 (b) The department, any designee of the department, and each
4-9 facility shall work together to review rules and propose changes in
4-10 paperwork requirements so that additional time is available for
4-11 direct resident care.
4-12 Sec. 252.008. RULES GENERALLY. The department shall adopt
4-13 rules related to the administration and implementation of this
4-14 chapter.
4-15 Sec. 252.009. CONSULTATION AND COORDINATION. (a) Whenever
4-16 possible, the department shall:
4-17 (1) use the services of and consult with state and
4-18 local agencies in carrying out the department's functions under
4-19 this chapter; and
4-20 (2) use the facilities of the department or a designee
4-21 of the department, particularly in establishing and maintaining
4-22 standards relating to the humane treatment of residents.
4-23 (b) The department may cooperate with local public health
4-24 officials of a municipality or county in carrying out this chapter
4-25 and may delegate to those officials the power to make inspections
5-1 and recommendations to the department under this chapter.
5-2 (c) The department may coordinate its personnel and
5-3 facilities with a local agency of a municipality or county and may
5-4 provide advice to the municipality or county if the municipality or
5-5 county decides to supplement the state program with additional
5-6 rules required to meet local conditions.
5-7 Sec. 252.010. CHANGE OF ADMINISTRATORS; FEE. A facility
5-8 that hires a new administrator or other person designated as the
5-9 chief management officer for the facility shall:
5-10 (1) notify the department in writing of the change not
5-11 later than the 30th day after the date on which the change becomes
5-12 effective; and
5-13 (2) pay a $20 administrative fee to the department.
5-14 Sec. 252.011. PROHIBITION OF REMUNERATION. (a) A facility
5-15 may not receive monetary or other remuneration from a person or
5-16 agency that furnishes services or materials to the facility or
5-17 residents for a fee.
5-18 (b) The department may revoke the license of a facility that
5-19 violates Subsection (a).
5-20 (Sections 252.012-252.030 reserved for expansion
5-21 SUBCHAPTER B. LICENSING, FEES, AND INSPECTIONS
5-22 Sec. 252.031. LICENSE REQUIRED. A person or governmental
5-23 unit, acting severally or jointly with any other person or
5-24 governmental unit, may not establish, conduct, or maintain a
5-25 facility in this state without a license issued under this chapter.
6-1 Sec. 252.032. LICENSE APPLICATION. (a) An application for
6-2 a license is made to the department on a form provided by the
6-3 department and must be accompanied by the license fee adopted under
6-4 Section 252.034.
6-5 (b) The application must contain information that the
6-6 department requires. The department may require affirmative
6-7 evidence of ability to comply with the standards and rules adopted
6-8 under this chapter.
6-9 Sec. 252.033. ISSUANCE AND RENEWAL OF LICENSE. (a) After
6-10 receiving the application, the department shall issue a license if,
6-11 after inspection and investigation, it finds that the applicant and
6-12 facility meet the requirements established under this chapter.
6-13 (b) The department may issue a license only for:
6-14 (1) the premises and persons or governmental unit
6-15 named in the application; and
6-16 (2) the maximum number of beds specified in the
6-17 application.
6-18 (c) A license may not be transferred or assigned.
6-19 (d) A license is renewable on the second anniversary of
6-20 issuance or renewal of the license after:
6-21 (1) an inspection;
6-22 (2) filing and approval of a renewal report; and
6-23 (3) payment of the renewal fee.
6-24 (e) The renewal report required under Subsection (d)(2) must
6-25 be filed in accordance with rules adopted by the department that
7-1 specify the form of the report, the date it must be submitted, and
7-2 the information it must contain.
7-3 (f) The department may not issue a license for new beds or
7-4 an expansion of an existing facility under this chapter unless the
7-5 addition of new beds or the expansion is included in the plan
7-6 approved by the Health and Human Services Commission in accordance
7-7 with Section 533.062.
7-8 (g) A license or renewal fee imposed under this chapter is
7-9 an allowable cost for reimbursement under the state Medicaid
7-10 program. An increase in the amount of a fee shall be reflected in
7-11 reimbursement rates prospectively.
7-12 Sec. 252.034. LICENSE FEES. (a) The board by rule may
7-13 adopt a fee for a license issued under this chapter. The fee may
7-14 not exceed $150 plus $5 for each unit of capacity or bed space for
7-15 which the license is sought.
7-16 (b) The license fee must be paid with each application for
7-17 an initial license or for a renewal or change of ownership of a
7-18 license.
7-19 (c) A facility operated by the state is not required to pay
7-20 a license fee.
7-21 (d) The board may adopt an additional fee for the approval
7-22 of an increase in bed space.
7-23 (e) All license fees collected under this section shall be
7-24 deposited in the state treasury to the credit of the department and
7-25 may be appropriated to the department to administer and enforce
8-1 this chapter.
8-2 Sec. 252.035. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE.
8-3 (a) The department, after providing notice and opportunity for a
8-4 hearing to the applicant or license holder, may deny, suspend, or
8-5 revoke a license if the department finds that the applicant or
8-6 license holder has substantially failed to comply with the
8-7 requirements established under this chapter.
8-8 (b) The status of an applicant for a license or a license
8-9 holder is preserved until final disposition of the contested
8-10 matter, except as the court having jurisdiction of a judicial
8-11 review of the matter may order in the public interest for the
8-12 welfare and safety of the residents.
8-13 Sec. 252.036. MINIMUM STANDARDS. The board may adopt,
8-14 publish, and enforce minimum standards relating to:
8-15 (1) the construction or remodeling of a facility,
8-16 including plumbing, heating, lighting, ventilation, and other
8-17 housing conditions, to ensure the residents' health, safety,
8-18 comfort, and protection from fire hazard;
8-19 (2) sanitary and related conditions in a facility and
8-20 its surroundings, including water supply, sewage disposal, food
8-21 handling, and general hygiene in order to ensure the residents'
8-22 health, safety, and comfort;
8-23 (3) equipment essential to the residents' health and
8-24 welfare;
8-25 (4) the reporting and investigation of injuries,
9-1 incidents, and unusual accidents and the establishment of other
9-2 policies and procedures necessary to ensure resident safety;
9-3 (5) behavior management, including use of seclusion
9-4 and physical restraints;
9-5 (6) policies and procedures for the control of
9-6 communicable diseases in employees and residents;
9-7 (7) the use and administration of medication in
9-8 conformity with applicable law and rules for pharmacy services;
9-9 (8) specialized nutrition support such as delivery of
9-10 enteral feedings and parenteral nutrients;
9-11 (9) requirements for in-service education of each
9-12 employee who has any contact with residents;
9-13 (10) the regulation of the number and qualification of
9-14 all personnel, including management and professional support
9-15 personnel, responsible for any part of the care given to residents;
9-16 and
9-17 (11) the quality of life and the provision of active
9-18 treatment to residents.
9-19 Sec. 252.037. REASONABLE TIME TO COMPLY. The board by rule
9-20 shall give a facility that is in operation when a rule or standard
9-21 is adopted under this chapter a reasonable time to comply with the
9-22 rule or standard.
9-23 Sec. 252.038. FIRE SAFETY REQUIREMENTS. (a) A facility
9-24 shall comply with fire safety requirements established under this
9-25 section.
10-1 (b) The board by rule shall adopt the fire safety standards
10-2 applicable to the facility. The fire safety standards must be the
10-3 same as the fire safety standards established by an edition of the
10-4 Life Safety Code of the National Fire Protection Association. If
10-5 required by federal law or regulation, the edition selected may be
10-6 different for facilities or portions of facilities operated or
10-7 approved for construction at different times.
10-8 (c) A facility that is licensed under applicable law on
10-9 September 1, 1997, must comply with the fire safety standards,
10-10 including fire safety standards imposed by municipal ordinance,
10-11 applicable to the facility on that date.
10-12 (d) The rules adopted under this section do not prevent a
10-13 facility licensed under this chapter from voluntarily conforming to
10-14 fire safety standards that are compatible with, equal to, or more
10-15 stringent than those adopted by the board.
10-16 (e) Notwithstanding any other provision of this section, a
10-17 municipality may enact additional and more stringent fire safety
10-18 standards applicable to new construction begun on or after
10-19 September 1, 1997.
10-20 Sec. 252.039. POSTING. Each facility shall prominently and
10-21 conspicuously post for display in a public area of the facility
10-22 that is readily available to residents, employees, and visitors:
10-23 (1) the license issued under this chapter;
10-24 (2) a sign prescribed by the department that specifies
10-25 complaint procedures established under this chapter or rules
11-1 adopted under this chapter and that specifies how complaints may be
11-2 registered with the department;
11-3 (3) a notice in a form prescribed by the department
11-4 stating that inspection and related reports are available at the
11-5 facility for public inspection and providing the department's
11-6 toll-free telephone number that may be used to obtain information
11-7 concerning the facility; and
11-8 (4) a concise summary of the most recent inspection
11-9 report relating to the facility.
11-10 Sec. 252.040. INSPECTIONS. (a) The department or the
11-11 department's designee may make any inspection, survey, or
11-12 investigation that it considers necessary and may enter the
11-13 premises of a facility at reasonable times to make an inspection,
11-14 survey, or investigation in accordance with board rules.
11-15 (b) The department is entitled to access to books, records,
11-16 and other documents maintained by or on behalf of a facility to the
11-17 extent necessary to enforce this chapter and the rules adopted
11-18 under this chapter.
11-19 (c) A license holder or an applicant for a license is
11-20 considered to have consented to entry and inspection of the
11-21 facility by a representative of the department in accordance with
11-22 this chapter.
11-23 (d) The department shall establish procedures to preserve
11-24 all relevant evidence of conditions the department finds during an
11-25 inspection, survey, or investigation that the department reasonably
12-1 believes threaten the health and safety of a resident. The
12-2 procedures may include photography or photocopying of relevant
12-3 documents, such as license holder's notes, physician's orders, and
12-4 pharmacy records, for use in any legal proceeding.
12-5 (e) When photographing a resident, the department:
12-6 (1) shall respect the privacy of the resident to the
12-7 greatest extent possible; and
12-8 (2) may not make public the identity of the resident.
12-9 (f) A facility, an officer or employee of a facility, and a
12-10 resident's attending physician are not civilly liable for
12-11 surrendering confidential or private material under this section,
12-12 including physician's orders, pharmacy records, notes and memoranda
12-13 of a state office, and resident files.
12-14 (g) The department shall establish in clear and concise
12-15 language a form to summarize each inspection report and complaint
12-16 investigation report.
12-17 (h) The department shall establish proper procedures to
12-18 ensure that copies of all forms and reports under this section are
12-19 made available to consumers, service recipients, and the relatives
12-20 of service recipients as the department considers proper.
12-21 Sec. 252.041. UNANNOUNCED INSPECTIONS. (a) Each licensing
12-22 period, the department shall conduct at least two unannounced
12-23 inspections of each facility.
12-24 (b) In order to ensure continuous compliance, the department
12-25 shall randomly select a sufficient percentage of facilities for
13-1 unannounced inspections to be conducted between 5 p.m. and 8 a.m.
13-2 Those inspections must be cursory to avoid to the greatest extent
13-3 feasible any disruption of the residents.
13-4 (c) The department may require additional inspections.
13-5 (d) As considered appropriate and necessary by the
13-6 department, the department may invite at least one person as a
13-7 citizen advocate to participate in inspections. The invited
13-8 advocate must be an individual who has an interest in or who is
13-9 employed by or affiliated with an organization or entity that
13-10 represents, advocates for, or serves individuals with mental
13-11 retardation or a related condition.
13-12 Sec. 252.042. DISCLOSURE OF UNANNOUNCED INSPECTIONS;
13-13 CRIMINAL PENALTY. (a) Except as expressly provided by this
13-14 chapter, a person commits an offense if the person intentionally,
13-15 knowingly, or recklessly discloses to an unauthorized person the
13-16 date, time, or any other fact about an unannounced inspection of a
13-17 facility before the inspection occurs.
13-18 (b) In this section, "unauthorized person" does not include:
13-19 (1) the department;
13-20 (2) the office of the attorney general;
13-21 (3) a representative of an agency or organization when
13-22 a Medicaid survey is made concurrently with a licensing inspection;
13-23 or
13-24 (4) any other person or entity authorized by law to
13-25 make an inspection or to accompany an inspector.
14-1 (c) An offense under this section is a Class B misdemeanor.
14-2 (d) A person convicted under this section is not eligible
14-3 for state employment.
14-4 Sec. 252.043. LICENSING SURVEYS. The department shall
14-5 provide a team to conduct surveys to validate findings of licensing
14-6 surveys. The purpose of a validation survey is to assure that
14-7 survey teams throughout the state survey in a fair and consistent
14-8 manner. A facility subjected to a validation survey must correct
14-9 deficiencies cited by the validation team but is not subject to
14-10 punitive action for those deficiencies.
14-11 (Sections 252.044-252.060 reserved for expansion
14-12 SUBCHAPTER C. GENERAL ENFORCEMENT
14-13 Sec. 252.061. EMERGENCY SUSPENSION OR CLOSING ORDER.
14-14 (a) The department shall suspend a facility's license or order an
14-15 immediate closing of part of the facility if:
14-16 (1) the department finds the facility is operating in
14-17 violation of the standards prescribed by this chapter; and
14-18 (2) the violation creates an immediate threat to the
14-19 health and safety of a resident.
14-20 (b) The board by rule shall provide for the placement of
14-21 residents during the facility's suspension or closing to ensure
14-22 their health and safety.
14-23 (c) An order suspending a license or closing a part of a
14-24 facility under this section is immediately effective on the date on
14-25 which the license holder receives written notice or a later date
15-1 specified in the order.
15-2 (d) An order suspending a license or ordering an immediate
15-3 closing of a part of a facility is valid for 10 days after the
15-4 effective date of the order.
15-5 Sec. 252.062. INJUNCTION. (a) The department may petition
15-6 a district court for a temporary restraining order to restrain a
15-7 person from continuing a violation of the standards prescribed by
15-8 this chapter if the department finds that the violation creates an
15-9 immediate threat to the health and safety of the facility's
15-10 residents.
15-11 (b) A district court, on petition of the department, may by
15-12 injunction:
15-13 (1) prohibit a person from continuing a violation of
15-14 the standards or licensing requirements prescribed by this chapter;
15-15 (2) restrain or prevent the establishment, conduct,
15-16 management, or operation of a facility without a license issued
15-17 under this chapter; or
15-18 (3) grant the injunctive relief warranted by the facts
15-19 on a finding by the court that a person is violating the standards
15-20 or licensing requirements prescribed by this chapter.
15-21 (c) The attorney general, on request by the department,
15-22 shall bring and conduct on behalf of the state a suit authorized by
15-23 this section.
15-24 (d) A suit for a temporary restraining order or other
15-25 injunctive relief must be brought in the county in which the
16-1 alleged violation occurs.
16-2 Sec. 252.063. LICENSE REQUIREMENTS; CRIMINAL PENALTY.
16-3 (a) A person commits an offense if the person violates Section
16-4 252.031.
16-5 (b) An offense under this section is punishable by a fine of
16-6 not more than $1,000 for the first offense and not more than $500
16-7 for each subsequent offense.
16-8 (c) Each day of a continuing violation after conviction is a
16-9 separate offense.
16-10 Sec. 252.064. CIVIL PENALTY. (a) A person who violates
16-11 this chapter or a rule adopted under this chapter is liable for a
16-12 civil penalty of not less than $100 or more than $10,000 for each
16-13 violation if the department determines the violation threatens the
16-14 health and safety of a resident.
16-15 (b) Each day of a continuing violation constitutes a
16-16 separate ground for recovery.
16-17 (c) The attorney general, on request of the department,
16-18 shall bring and conduct a suit to collect a civil penalty. Any
16-19 amount collected shall be remitted to the comptroller for deposit
16-20 to the credit of the general revenue fund.
16-21 Sec. 252.065. ADMINISTRATIVE PENALTY. (a) The department
16-22 may assess an administrative penalty against a facility that
16-23 violates this chapter or a rule adopted under this chapter as
16-24 specified by this section.
16-25 (b) The department by rule shall establish gradations and
17-1 amounts of penalties.
17-2 (c) In determining the amount of a penalty, the department
17-3 shall consider:
17-4 (1) the gradations of penalties established under
17-5 Subsection (b);
17-6 (2) the seriousness of the violation, including the
17-7 nature, circumstances, extent, and gravity of the violation;
17-8 (3) the hazard or potential hazard created by the
17-9 violation to the public health and safety;
17-10 (4) any previous violations;
17-11 (5) the amount necessary to deter future violations;
17-12 (6) efforts made to correct the violation;
17-13 (7) the size of the facility; and
17-14 (8) any other matter justice may require.
17-15 (d) The penalty may not exceed $5,000 for each violation.
17-16 Each day of a continuing violation constitutes a separate
17-17 violation.
17-18 (e) The department may not assess a penalty under both this
17-19 subchapter and Section 32.021, Human Resources Code, for a
17-20 violation arising out of the same act or failure to act.
17-21 Sec. 252.066. RULES REGARDING ADMINISTRATIVE PENALTY.
17-22 (a) The board shall adopt rules governing the assessment of
17-23 administrative penalties under this chapter, including rules
17-24 providing procedures for:
17-25 (1) giving notice of a violation to a facility;
18-1 (2) payment and refund of a penalty; and
18-2 (3) hearings and appeals.
18-3 (b) Rules adopted under this section shall include specific
18-4 and objective criteria that describe the scope and severity of a
18-5 violation that results in a recommendation for each specific
18-6 penalty. A penalty must be appropriate to the violation.
18-7 (c) The rules must establish a system to ensure standard and
18-8 consistent application of penalties by local surveyors and across
18-9 different areas of the state.
18-10 (d) The department may prescribe a per diem penalty. The
18-11 per diem penalty ceases on the date a violation is corrected. The
18-12 per diem penalty ceases only if the facility notifies the
18-13 department in writing that the violation has been corrected and of
18-14 the date of the correction and shows later that the violation was
18-15 corrected.
18-16 (e) For purposes of this section, "immediate and serious
18-17 threat" means a situation in which there is a high probability that
18-18 serious harm or injury to residents could occur at any time or has
18-19 already occurred and may occur again if residents are not protected
18-20 effectively from the harm or if the threat is not removed.
18-21 (Sections 252.067-252.090 reserved for expansion
18-22 SUBCHAPTER D. TRUSTEES FOR FACILITIES
18-23 Sec. 252.091. FINDINGS AND PURPOSE. (a) The legislature
18-24 finds that, under some circumstances, closing a facility for a
18-25 violation of a law or rule may:
19-1 (1) have an adverse effect on the facility's residents
19-2 and their families; and
19-3 (2) result in a lack of readily available financial
19-4 resources to meet the basic needs of the residents for food,
19-5 shelter, medication, and personal services.
19-6 (b) The purpose of this subchapter is to provide for:
19-7 (1) the appointment of a trustee to assume the
19-8 operations of the facility in a manner that emphasizes resident
19-9 care and reduces resident trauma; and
19-10 (2) a fund to assist a court-appointed trustee in
19-11 meeting the basic needs of the residents.
19-12 Sec. 252.092. APPOINTMENT BY AGREEMENT. (a) A person who
19-13 holds a controlling interest in a facility may request the
19-14 department to assume the operation of the facility through the
19-15 appointment of a trustee under this subchapter.
19-16 (b) After receiving the request, the department may enter
19-17 into an agreement providing for the appointment of a trustee to
19-18 take charge of the facility under conditions both parties consider
19-19 appropriate if the department considers the appointment desirable.
19-20 (c) An agreement under this section must:
19-21 (1) specify the terms and conditions of the trustee's
19-22 appointment and authority; and
19-23 (2) preserve the rights of the residents as granted by
19-24 law.
19-25 (d) The agreement terminates at the time:
20-1 (1) specified by the parties; or
20-2 (2) either party notifies the other in writing that
20-3 the party is terminating the appointment agreement.
20-4 Sec. 252.093. INVOLUNTARY APPOINTMENT. (a) The department
20-5 may request the attorney general to bring an action on behalf of
20-6 the state for the appointment of a trustee to operate a facility
20-7 if:
20-8 (1) the facility is operating without a license;
20-9 (2) the department has suspended or revoked the
20-10 facility's license;
20-11 (3) license suspension or revocation procedures
20-12 against the facility are pending and the department determines that
20-13 an imminent threat to the health and safety of the residents
20-14 exists;
20-15 (4) the department determines that an emergency exists
20-16 that presents an immediate threat to the health and safety of the
20-17 residents; or
20-18 (5) the facility is closing and arrangements for
20-19 relocation of the residents to other licensed facilities have not
20-20 been made before closure.
20-21 (b) A trustee appointed under Subsection (a)(5) may only
20-22 ensure an orderly and safe relocation of the facility's residents
20-23 as quickly as possible.
20-24 (c) After a hearing, a court shall appoint a trustee to take
20-25 charge of a facility if the court finds that involuntary
21-1 appointment of a trustee is necessary.
21-2 (d) If possible, the court shall appoint as trustee an
21-3 individual whose background includes mental retardation service
21-4 administration.
21-5 (e) An action under this section must be brought in Travis
21-6 County.
21-7 Sec. 252.094. FEE; RELEASE OF MONEY. (a) A trustee
21-8 appointed under this subchapter is entitled to a reasonable fee as
21-9 determined by the court.
21-10 (b) The trustee may petition the court to order the release
21-11 to the trustee of any payment owed the trustee for care and
21-12 services provided to the residents if the payment has been
21-13 withheld, including a payment withheld by a governmental agency or
21-14 other entity during the appointment of the trustee, such as
21-15 payments:
21-16 (1) for Medicaid or insurance;
21-17 (2) by a third party; or
21-18 (3) for medical expenses borne by the residents.
21-19 Sec. 252.095. EMERGENCY ASSISTANCE FEE. (a) In addition to
21-20 the licensing and renewal fee collected under Section 252.034, the
21-21 department may collect an annual fee to be used to make emergency
21-22 assistance money available to a facility licensed under this
21-23 chapter.
21-24 (b) The fee collected under this section shall be in the
21-25 amount prescribed by Section 242.097(b) and shall be deposited to
22-1 the credit of the nursing and convalescent home trust fund
22-2 established under Section 242.096.
22-3 (c) The department may disburse money to a trustee for a
22-4 facility licensed under this chapter to alleviate an immediate
22-5 threat to the health or safety of the facility's residents.
22-6 Payments under this section may include payments described by
22-7 Section 242.096(b).
22-8 (d) A court may order the department to disburse emergency
22-9 assistance money to a trustee for a facility licensed under this
22-10 chapter if the court makes the findings provided by Section
22-11 242.096(c).
22-12 Sec. 252.096. REIMBURSEMENT. (a) A facility that receives
22-13 emergency assistance money under this subchapter shall reimburse
22-14 the department for the amounts received, including interest.
22-15 (b) Interest on unreimbursed amounts begins to accrue on the
22-16 date on which the money is disbursed to the facility. The rate of
22-17 interest is the rate determined under Section 2, Article 1.05,
22-18 Title 79, Revised Statutes (Article 5069-1.05, Vernon's Texas Civil
22-19 Statutes), to be applicable to judgments rendered during the month
22-20 in which the money is disbursed to the facility.
22-21 (c) The owner of the facility when the trustee is appointed
22-22 is responsible for the reimbursement.
22-23 (d) The amount that remains unreimbursed on the first
22-24 anniversary of the date on which the money is received is
22-25 delinquent and the Texas Department of Mental Health and Mental
23-1 Retardation may determine that the facility is ineligible for a
23-2 Medicaid provider contract.
23-3 (e) The department shall deposit the reimbursement and
23-4 interest received under this section to the credit of the nursing
23-5 and convalescent home trust fund.
23-6 (f) The attorney general shall institute an action to
23-7 collect money due under this section at the request of the
23-8 department. An action under this section must be brought in
23-9 Travis County.
23-10 Sec. 252.097. NOTIFICATION OF CLOSURE. (a) A facility that
23-11 is closing temporarily or permanently, voluntarily or
23-12 involuntarily, shall notify the residents of the closing and make
23-13 reasonable efforts to notify in writing each resident's nearest
23-14 relative or the person responsible for the resident's support
23-15 within a reasonable time before the facility closes.
23-16 (b) If the department orders a facility to close or the
23-17 facility's closure is in any other way involuntary, the facility
23-18 shall make the notification, orally or in writing, immediately on
23-19 receiving notice of the closing.
23-20 (c) If the facility's closure is voluntary, the facility
23-21 shall make the notification not later than one week after the date
23-22 on which the decision to close is made.
23-23 Sec. 252.098. CRIMINAL PENALTY FOR FAILURE TO NOTIFY.
23-24 (a) A facility commits an offense if the facility knowingly fails
23-25 to comply with Section 252.097.
24-1 (b) An offense under this section is a Class A misdemeanor.
24-2 (Sections 252.099-252.120 reserved for expansion
24-3 SUBCHAPTER E. REPORTS OF ABUSE AND NEGLECT
24-4 Sec. 252.121. DEFINITION. In this subchapter, "designated
24-5 agency" means an agency designated by a court to be responsible for
24-6 the protection of a resident who is the subject of a report of
24-7 abuse or neglect.
24-8 Sec. 252.122. REPORTING OF ABUSE AND NEGLECT. (a) A
24-9 person, including an owner or employee of a facility, who has cause
24-10 to believe that the physical or mental health or welfare of a
24-11 resident has been or may be adversely affected by abuse or neglect
24-12 caused by another person shall report the abuse or neglect to the
24-13 department, to a designated agency, or to both the department and
24-14 the designated agency, as specified in department rules.
24-15 (b) Each facility shall require each employee of the
24-16 facility, as a condition of employment with the facility, to sign a
24-17 statement that the employee realizes that the employee may be
24-18 criminally liable for failure to report abuse or neglect.
24-19 (c) A person shall make an oral report immediately on
24-20 learning of abuse or neglect and shall make a written report to the
24-21 same agency not later than the fifth day after the oral report is
24-22 made.
24-23 Sec. 252.123. CONTENTS OF REPORT. (a) A report of abuse or
24-24 neglect is nonaccusatory and reflects the reporting person's belief
24-25 that a resident has been or will be abused or neglected or has died
25-1 of abuse or neglect.
25-2 (b) The report must contain:
25-3 (1) the name and address of the resident;
25-4 (2) the name and address of the person responsible for
25-5 the care of the resident, if available; and
25-6 (3) other relevant information.
25-7 Sec. 252.124. ANONYMOUS REPORTS OF ABUSE OR NEGLECT.
25-8 (a) An anonymous report of abuse or neglect, although not
25-9 encouraged, shall be received and acted on in the same manner as an
25-10 acknowledged report.
25-11 (b) A local or state law enforcement agency that receives a
25-12 report of abuse or neglect shall refer the report to the department
25-13 or the designated agency.
25-14 Sec. 252.125. INVESTIGATION AND REPORT OF RECEIVING AGENCY.
25-15 (a) The department or the designated agency shall make a thorough
25-16 investigation promptly after receiving either the oral or written
25-17 report.
25-18 (b) The primary purpose of the investigation is the
25-19 protection of the resident.
25-20 (c) In the investigation, the department or the designated
25-21 agency shall determine:
25-22 (1) the nature, extent, and cause of the abuse or
25-23 neglect;
25-24 (2) the identity of the person responsible for the
25-25 abuse or neglect;
26-1 (3) the names and conditions of the other residents;
26-2 (4) an evaluation of the persons responsible for the
26-3 care of the residents;
26-4 (5) the adequacy of the facility environment; and
26-5 (6) any other information required by the department.
26-6 (d) The investigation may include a visit to the resident's
26-7 facility and an interview with the resident, if considered
26-8 appropriate by the department.
26-9 (e) If the department attempts to carry out an on-site
26-10 investigation and it is shown that admission to the facility or any
26-11 place where a resident is located cannot be obtained, a probate or
26-12 county court shall order the person responsible for the care of the
26-13 resident or the person in charge of a place where the resident is
26-14 located to allow admission for the investigation and any interview
26-15 with the resident.
26-16 (f) Before the completion of the investigation, the
26-17 department shall file a petition for temporary care and protection
26-18 of the resident if the department determines that immediate removal
26-19 is necessary to protect the resident from further abuse or neglect.
26-20 (g) The department or the designated agency shall make a
26-21 complete written report of the investigation and submit the report
26-22 and its recommendations to the district attorney and the
26-23 appropriate law enforcement agency and, if necessary, to the
26-24 department on the department's request.
26-25 Sec. 252.126. CONFIDENTIALITY. A report, record, or working
27-1 paper used or developed in an investigation made under this
27-2 subchapter is confidential and may be disclosed only for purposes
27-3 consistent with the rules adopted by the board or the designated
27-4 agency.
27-5 Sec. 252.127. IMMUNITY. (a) Except as provided by Section
27-6 252.131, a person who reports an act of abuse or neglect as
27-7 provided by this subchapter is immune from civil or criminal
27-8 liability that, in the absence of the immunity, might result from
27-9 making the report.
27-10 (b) The immunity provided by this section extends to
27-11 participation in any judicial proceeding that results from the
27-12 report.
27-13 Sec. 252.128. PRIVILEGED COMMUNICATIONS. In a proceeding
27-14 regarding the abuse or neglect of a resident or the cause of any
27-15 abuse or neglect, evidence may not be excluded on the ground of
27-16 privileged communication except in the case of a communication
27-17 between an attorney and client.
27-18 Sec. 252.129. CENTRAL REGISTRY. (a) The department shall
27-19 maintain in the city of Austin a central registry of reported cases
27-20 of resident abuse or neglect. The department shall include the
27-21 registry in the registry maintained under Section 242.130.
27-22 (b) The board may adopt rules necessary to carry out this
27-23 section.
27-24 (c) The rules shall provide for cooperation with hospitals
27-25 and clinics in the exchange of reports of resident abuse or
28-1 neglect.
28-2 Sec. 252.130. FAILURE TO REPORT; CRIMINAL PENALTY. (a) A
28-3 person commits an offense if the person has cause to believe that a
28-4 resident's physical or mental health or welfare has been or may be
28-5 further adversely affected by abuse or neglect and knowingly fails
28-6 to report in accordance with Section 252.122.
28-7 (b) An offense under this section is a Class A misdemeanor.
28-8 Sec. 252.131. BAD FAITH, MALICIOUS, OR RECKLESS REPORTING;
28-9 CRIMINAL PENALTY. (a) A person commits an offense if the person
28-10 reports under this subchapter in bad faith, maliciously, or
28-11 recklessly.
28-12 (b) An offense under this section is a Class A misdemeanor.
28-13 (c) The criminal penalty provided by this section is in
28-14 addition to any civil penalties for which the person may be liable.
28-15 Sec. 252.132. SUIT FOR RETALIATION. (a) A facility may not
28-16 suspend or terminate the employment of, or discipline or otherwise
28-17 discriminate against, an employee for reporting to the employee's
28-18 supervisor, an administrator of the facility, a state regulatory
28-19 agency, or a law enforcement agency the abuse or neglect of a
28-20 resident.
28-21 (b) A facility that violates Subsection (a) is liable to the
28-22 person against whom the facility discriminated. A person against
28-23 whom a facility discriminates in violation of Subsection (a) may
28-24 sue for injunctive relief, damages, or both.
28-25 (c) A plaintiff who prevails in a suit under this section
29-1 may recover:
29-2 (1) the greater of $1,000 or actual damages, including
29-3 damages for mental anguish even if an injury other than mental
29-4 anguish is not shown and damages for lost wages if the petitioner's
29-5 employment was suspended or terminated;
29-6 (2) exemplary damages;
29-7 (3) court costs; and
29-8 (4) reasonable attorney's fees.
29-9 (d) In addition to the amounts that may be recovered under
29-10 Subsection (c), a person whose employment is suspended or
29-11 terminated is entitled to reinstatement in the person's former
29-12 position.
29-13 (e) The petitioner, not later than the 90th day after the
29-14 date on which the person's employment is suspended or terminated,
29-15 must bring suit or notify the Texas Workforce Commission of the
29-16 petitioner's intent to sue under this section. A petitioner who
29-17 notifies the Texas Workforce Commission under this subsection must
29-18 bring suit not later than the 90th day after the date of the
29-19 delivery of the notice to the commission. On receipt of the
29-20 notice, the commission shall notify the facility of the
29-21 petitioner's intent to bring suit under this section.
29-22 (f) The petitioner has the burden of proof, except that
29-23 there is a rebuttable presumption that the person's employment was
29-24 suspended or terminated for reporting abuse or neglect if the
29-25 person is suspended or terminated within 60 days after the date on
30-1 which the person reported in good faith.
30-2 (g) A suit under this section may be brought in the district
30-3 court of the county in which:
30-4 (1) the plaintiff resides;
30-5 (2) the plaintiff was employed by the defendant; or
30-6 (3) the defendant conducts business.
30-7 (h) Each facility shall require each employee of the
30-8 facility, as a condition of employment with the facility, to sign a
30-9 statement that the employee understands the employee's rights under
30-10 this section. The statement must be part of the statement required
30-11 under Section 252.122(b). If a facility does not require an
30-12 employee to read and sign the statement, the periods prescribed by
30-13 Subsection (e) do not apply, and the petitioner must bring suit not
30-14 later than the second anniversary of the date on which the person's
30-15 employment is suspended or terminated.
30-16 Sec. 252.133. SUIT FOR RETALIATION AGAINST RESIDENT. (a) A
30-17 facility may not retaliate or discriminate against a resident if
30-18 the resident, the resident's guardian, or any other person reports
30-19 abuse or neglect in accordance with this subchapter.
30-20 (b) A resident against whom a facility retaliates or
30-21 discriminates in violation of Subsection (a) is entitled to sue
30-22 for:
30-23 (1) injunctive relief;
30-24 (2) actual damages;
30-25 (3) exemplary damages;
31-1 (4) court costs; and
31-2 (5) reasonable attorney's fees.
31-3 (c) A resident who seeks relief under this section must
31-4 report the alleged violation not later than the 180th day after the
31-5 date on which the alleged violation of this section occurred or was
31-6 discovered by the resident through reasonable diligence.
31-7 (d) A suit under this section may be brought in the district
31-8 court of the county in which the facility is located or in a
31-9 district court of Travis County.
31-10 Sec. 252.134. REPORTS RELATING TO RESIDENT DEATHS;
31-11 STATISTICAL INFORMATION. (a) A facility licensed under this
31-12 chapter shall submit a report to the department concerning the
31-13 death of:
31-14 (1) a resident of the facility; and
31-15 (2) a former resident that occurs 24 hours or less
31-16 after the former resident is transferred from the facility to a
31-17 hospital.
31-18 (b) The report must be submitted not later than the 10th
31-19 working day after the last day of each month in which a resident of
31-20 the facility dies. The facility must make the report on a form
31-21 prescribed by the department. The report must contain the name and
31-22 social security number of the deceased.
31-23 (c) The department shall correlate reports under this
31-24 section with death certificate information to develop data relating
31-25 to the:
32-1 (1) name and age of the deceased;
32-2 (2) official cause of death listed on the death
32-3 certificate;
32-4 (3) date, time, and place of death; and
32-5 (4) name and address of the facility in which the
32-6 deceased resided.
32-7 (d) Unless specified by board rule, a record under this
32-8 section is confidential and not subject to the provisions of
32-9 Chapter 552, Government Code.
32-10 (e) The department shall develop statistical information on
32-11 official causes of death to determine patterns and trends of
32-12 incidents of death among persons with mental retardation and
32-13 related conditions and in specific facilities. Information
32-14 developed under this subsection is not confidential.
32-15 (f) A licensed facility shall make available on the request
32-16 of an applicant or an applicant's representative historical
32-17 statistics on all required information.
32-18 (Sections 252.135-252.150 reserved for expansion
32-19 SUBCHAPTER F. MEDICAL CARE
32-20 Sec. 252.151. ADMINISTRATION OF MEDICATION. The department
32-21 shall adopt rules relating to the administration of medication in
32-22 facilities.
32-23 Sec. 252.152. REQUIRED MEDICAL EXAMINATION. (a) The
32-24 department shall require each resident to be given at least one
32-25 medical examination each year.
33-1 (b) The department shall specify the details of the
33-2 examination.
33-3 Sec. 252.153. EMERGENCY MEDICATION KIT. (a) A facility
33-4 licensed under this chapter is entitled to maintain a supply of
33-5 controlled substances in an emergency medication kit for a
33-6 resident's emergency medication needs.
33-7 (b) The controlled substances shall be labeled in accordance
33-8 with all applicable state and federal food and drug laws, including
33-9 Chapter 481 (Texas Controlled Substances Act).
33-10 (c) The board shall adopt rules governing the amount, type,
33-11 and procedure for use of the controlled substances in the emergency
33-12 medication kit. The storage of the controlled substances in the
33-13 kit is under the supervision of the consultant pharmacist.
33-14 (d) The administration of the controlled substances in the
33-15 emergency medication kit shall comply with all applicable laws.
33-16 (Sections 252.154-252.180 reserved for expansion
33-17 SUBCHAPTER G. RESPITE CARE
33-18 Sec. 252.181. DEFINITIONS. In this subchapter:
33-19 (1) "Plan of care" means a written description of the
33-20 care, training, and treatment needed by a person during respite
33-21 care.
33-22 (2) "Respite care" means the provision by a facility
33-23 to a person, for not more than two weeks for each stay in the
33-24 facility, of:
33-25 (A) room and board; and
34-1 (B) care at the level ordinarily provided for
34-2 permanent residents.
34-3 Sec. 252.182. RESPITE CARE. (a) A facility licensed under
34-4 this chapter may provide respite care for an individual who has a
34-5 diagnosis of mental retardation or a related condition without
34-6 regard to whether the individual is eligible to receive
34-7 intermediate care services under federal law.
34-8 (b) The board may adopt rules for the regulation of respite
34-9 care provided by a facility licensed under this chapter.
34-10 Sec. 252.183. PLAN OF CARE. (a) The facility and the
34-11 person arranging the care must agree on the plan of care and the
34-12 plan must be filed at the facility before the facility admits the
34-13 person for the care.
34-14 (b) The plan of care must be signed by:
34-15 (1) a licensed physician if the person for whom the
34-16 care is arranged needs medical care or treatment; or
34-17 (2) the person arranging for the respite care if
34-18 medical care or treatment is not needed.
34-19 (c) The facility may keep an agreed plan of care for a
34-20 person for not longer than six months from the date on which it is
34-21 received. After each admission, the facility shall review and
34-22 update the plan of care. During that period, the facility may
34-23 admit the person as frequently as is needed and as accommodations
34-24 are available.
34-25 Sec. 252.184. NOTIFICATION. A facility that offers respite
35-1 care shall notify the department in writing that it offers respite
35-2 care.
35-3 Sec. 252.185. INSPECTIONS. The department, at the time of
35-4 an ordinary licensing inspection or at other times determined
35-5 necessary by the department, shall inspect a facility's records of
35-6 respite care services, physical accommodations available for
35-7 respite care, and the plan of care records to ensure that the
35-8 respite care services comply with the licensing standards of this
35-9 chapter and with any rules the board may adopt to regulate respite
35-10 care services.
35-11 Sec. 252.186. SUSPENSION. (a) The department may require a
35-12 facility to cease providing respite care if the department
35-13 determines that the respite care does not meet the standards
35-14 required by this chapter and that the facility cannot comply with
35-15 those standards in the respite care it provides.
35-16 (b) The department may suspend the license of a facility
35-17 that continues to provide respite care after receiving a written
35-18 order from the department to cease.
35-19 SECTION 2. Subdivision (6), Section 242.002, Health and
35-20 Safety Code, is amended to read as follows:
35-21 (6) "Institution" means[:]
35-22 [(A)] an establishment that:
35-23 (A) [(i)] furnishes, in one or more facilities,
35-24 food and shelter to four or more persons who are unrelated to the
35-25 proprietor of the establishment; and
36-1 (B) [(ii)] provides minor treatment under the
36-2 direction and supervision of a physician licensed by the Texas
36-3 State Board of Medical Examiners, or other services that meet some
36-4 need beyond the basic provision of food, shelter, and laundry[; or]
36-5 [(B) a foster care type residential facility
36-6 that provides room and board to fewer than five persons who:]
36-7 [(i) are not related within the second
36-8 degree of consanguinity or affinity, as determined under Chapter
36-9 573, Government Code, to the proprietor; and]
36-10 [(ii) because of their physical or mental
36-11 limitation, or both, require a level of care and services suitable
36-12 to their needs that contributes to their health, comfort, and
36-13 welfare].
36-14 SECTION 3. Section 242.003, Health and Safety Code, is
36-15 amended to read as follows:
36-16 Sec. 242.003. EXEMPTIONS. [(a)] Except as otherwise
36-17 provided, this chapter does not apply to:
36-18 (1) a hotel or other similar place that furnishes only
36-19 food, lodging, or both, to its guests;
36-20 (2) a hospital;
36-21 (3) an establishment conducted by or for the adherents
36-22 of a well-recognized church or religious denomination for the
36-23 purpose of providing facilities for the care or treatment of the
36-24 sick who depend exclusively on prayer or spiritual means for
36-25 healing, without the use of any drug or material remedy, if the
37-1 establishment complies with safety, sanitary, and quarantine laws
37-2 and rules;
37-3 (4) an establishment that furnishes, in addition to
37-4 food, shelter, and laundry, only baths and massages;
37-5 (5) an institution operated by a person licensed by
37-6 the Texas Board of Chiropractic Examiners;
37-7 (6) a facility that:
37-8 (A) primarily engages in training, habilitation,
37-9 rehabilitation, or education of clients or residents;
37-10 (B) is operated under the jurisdiction of a
37-11 state or federal agency, including the Texas Rehabilitation
37-12 Commission, Texas Department of Mental Health and Mental
37-13 Retardation, Texas Department of Human Services, Texas Commission
37-14 for the Blind, Texas Commission on Alcohol and Drug Abuse,
37-15 institutional division of the Texas Department of Criminal Justice,
37-16 and the Veteran's Administration; and
37-17 (C) is certified through inspection or
37-18 evaluation as meeting the standards established by the state or
37-19 federal agency; [and]
37-20 (7) a foster care type residential facility that
37-21 serves fewer than five persons and operates under rules adopted by
37-22 the Texas Department of Human Services; and
37-23 (8) a facility licensed under Chapter 252 or exempt
37-24 from licensure under Section 252.003.
37-25 [(b) An institution described by Section 242.002(6)(C) is
38-1 subject to licensing under this chapter only if written application
38-2 is made for participation in the intermediate care program under
38-3 federal law.]
38-4 SECTION 4. (a) Except as provided by Subsection (b) of this
38-5 section, this Act takes effect September 1, 1997.
38-6 (b) Section 2 of this Act takes effect January 1, 1998.
38-7 SECTION 5. (a) Notwithstanding Sections 252.031 and
38-8 252.063, Health and Safety Code, as added by this Act:
38-9 (1) a facility is not required to be licensed under
38-10 Chapter 252, Health and Safety Code, as added by this Act, before
38-11 January 1, 1998; and
38-12 (2) a facility that is required to be licensed under
38-13 that chapter and that is, on the effective date of this Act,
38-14 licensed under Chapter 242, Health and Safety Code, may continue to
38-15 operate under the license issued under Chapter 242 until the later
38-16 of:
38-17 (A) December 31, 1997; or
38-18 (B) the date on which the license is subject to
38-19 renewal.
38-20 (b) A license issued under Chapter 242, Health and Safety
38-21 Code, to an institution that is required to be licensed as a
38-22 facility under Chapter 252, Health and Safety Code, as added by
38-23 this Act, may not be renewed after December 1, 1997.
38-24 (c) A facility licensed under Chapter 252, Health and Safety
38-25 Code, as added by this Act, is not subject to Chapter 48, Human
39-1 Resources Code.
39-2 SECTION 6. The importance of this legislation and the
39-3 crowded condition of the calendars in both houses create an
39-4 emergency and an imperative public necessity that the
39-5 constitutional rule requiring bills to be read on three several
39-6 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1248 passed the Senate on
April 14, 1997, by a viva-voce vote; and that the Senate concurred
in House amendment on May 19, 1997, by a viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1248 passed the House, with
amendment, on May 16, 1997, by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor