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