1-1 By: Madla S.B. No. 1248
1-2 (In the Senate - Filed March 12, 1997; March 17, 1997, read
1-3 first time and referred to Committee on Health and Human Services;
1-4 April 8, 1997, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 10, Nays 0; April 8, 1997,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1248 By: Madla
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to intermediate care facilities for the mentally retarded;
1-11 imposing civil and criminal penalties.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Subtitle B, Title 4, Health and Safety Code, is
1-14 amended by adding Chapter 252 to read as follows:
1-15 CHAPTER 252. INTERMEDIATE CARE FACILITIES FOR THE MENTALLY
1-16 RETARDED
1-17 SUBCHAPTER A. GENERAL PROVISIONS
1-18 Sec. 252.001. PURPOSE. The purpose of this chapter is to
1-19 promote the public health, safety, and welfare by providing for the
1-20 development, establishment, and enforcement of standards for the
1-21 provision of services to individuals residing in intermediate care
1-22 facilities for the mentally retarded and the establishment,
1-23 construction, maintenance, and operation of facilities providing
1-24 this service that, in light of advancing knowledge, will promote
1-25 quality in the delivery of services and treatment of residents.
1-26 Sec. 252.002. DEFINITIONS. In this chapter:
1-27 (1) "Board" means the Texas Board of Human Services.
1-28 (2) "Department" means the Texas Department of Human
1-29 Services.
1-30 (3) "Designee" means a state agency or entity with
1-31 which the department contracts to perform specific, identified
1-32 duties related to the fulfillment of a responsibility prescribed by
1-33 this chapter.
1-34 (4) "Facility" means a home or an establishment that
1-35 furnishes, in single or multiple facilities, food, shelter, and
1-36 some treatment or services to four or more persons unrelated to the
1-37 proprietor and:
1-38 (A) is primarily for the diagnosis, treatment,
1-39 or rehabilitation of persons with mental retardation or persons
1-40 with related conditions; and
1-41 (B) provides, in a protected setting, ongoing
1-42 evaluation, planning, 24-hour supervision, coordination, and
1-43 integration of health or rehabilitative services to help each
1-44 resident function at his or her greatest ability.
1-45 (5) "Governmental unit" means the state or a political
1-46 subdivision of the state, including a county or municipality.
1-47 (6) "Person" means an individual, firm, partnership,
1-48 corporation, association, or joint stock company and includes a
1-49 legal successor of those entities.
1-50 (7) "Resident" means an individual, including a
1-51 client, with mental retardation or a related condition who is
1-52 residing in a facility licensed under this chapter.
1-53 Sec. 252.003. EXEMPTIONS. Except as otherwise provided by
1-54 this chapter, this chapter does not apply to an establishment that:
1-55 (1) provides training, habilitation, rehabilitation,
1-56 or education to individuals with mental retardation or a related
1-57 condition;
1-58 (2) is operated under the jurisdiction of a state or
1-59 federal agency, including the department, the Texas Rehabilitation
1-60 Commission, the Texas Department of Mental Health and Mental
1-61 Retardation, the Texas Commission for the Blind, the Texas
1-62 Commission on Alcohol and Drug Abuse, the institutional division of
1-63 the Texas Department of Criminal Justice, or the Veterans
1-64 Administration; and
2-1 (3) is certified through inspection or evaluation as
2-2 meeting the standards established by the state or federal agency.
2-3 Sec. 252.004. ALLOCATED FEDERAL MONEY. The department may
2-4 accept and use any money allocated by the federal government to the
2-5 department for administrative expenses.
2-6 Sec. 252.005. LANGUAGE REQUIREMENTS PROHIBITED. A facility
2-7 may not prohibit a resident or employee from communicating in the
2-8 person's native language with another resident or employee for the
2-9 purpose of acquiring or providing care, training, or treatment.
2-10 Sec. 252.006. RIGHTS OF RESIDENTS. Each facility shall
2-11 implement and enforce Chapter 102, Human Resources Code.
2-12 Sec. 252.007. PAPERWORK REDUCTION RULES. (a) The
2-13 department and any designee of the department shall:
2-14 (1) adopt rules to reduce the amount of paperwork a
2-15 facility must complete and retain; and
2-16 (2) attempt to reduce the amount of paperwork to the
2-17 minimum amount required by state and federal law unless the
2-18 reduction would jeopardize resident safety.
2-19 (b) The department, any designee of the department, and each
2-20 facility shall work together to review rules and propose changes in
2-21 paperwork requirements so that additional time is available for
2-22 direct resident care.
2-23 Sec. 252.008. RULES GENERALLY. The department shall adopt
2-24 rules related to the administration and implementation of this
2-25 chapter.
2-26 Sec. 252.009. CONSULTATION AND COORDINATION. (a) Whenever
2-27 possible, the department shall:
2-28 (1) use the services of and consult with state and
2-29 local agencies in carrying out the department's functions under
2-30 this chapter; and
2-31 (2) use the facilities of the department or a designee
2-32 of the department, particularly in establishing and maintaining
2-33 standards relating to the humane treatment of residents.
2-34 (b) The department may cooperate with local public health
2-35 officials of a municipality or county in carrying out this chapter
2-36 and may delegate to those officials the power to make inspections
2-37 and recommendations to the department under this chapter.
2-38 (c) The department may coordinate its personnel and
2-39 facilities with a local agency of a municipality or county and may
2-40 provide advice to the municipality or county if the municipality or
2-41 county decides to supplement the state program with additional
2-42 rules required to meet local conditions.
2-43 Sec. 252.010. CHANGE OF ADMINISTRATORS; FEE. A facility
2-44 that hires a new administrator or other person designated as the
2-45 chief management officer for the facility shall:
2-46 (1) notify the department in writing of the change not
2-47 later than the 30th day after the date on which the change becomes
2-48 effective; and
2-49 (2) pay a $20 administrative fee to the department.
2-50 Sec. 252.011. PROHIBITION OF REMUNERATION. (a) A facility
2-51 may not receive monetary or other remuneration from a person or
2-52 agency that furnishes services or materials to the facility or
2-53 residents for a fee.
2-54 (b) The department may revoke the license of a facility that
2-55 violates Subsection (a).
2-56 (Sections 252.012-252.030 reserved for expansion
2-57 SUBCHAPTER B. LICENSING, FEES, AND INSPECTIONS
2-58 Sec. 252.031. LICENSE REQUIRED. A person or governmental
2-59 unit, acting severally or jointly with any other person or
2-60 governmental unit, may not establish, conduct, or maintain a
2-61 facility in this state without a license issued under this chapter.
2-62 Sec. 252.032. LICENSE APPLICATION. (a) An application for
2-63 a license is made to the department on a form provided by the
2-64 department and must be accompanied by the license fee adopted under
2-65 Section 252.034.
2-66 (b) The application must contain information that the
2-67 department requires. The department may require affirmative
2-68 evidence of ability to comply with the standards and rules adopted
2-69 under this chapter.
3-1 Sec. 252.033. ISSUANCE AND RENEWAL OF LICENSE. (a) After
3-2 receiving the application, the department shall issue a license if,
3-3 after inspection and investigation, it finds that the applicant and
3-4 facility meet the requirements established under this chapter.
3-5 (b) The department may issue a license only for:
3-6 (1) the premises and persons or governmental unit
3-7 named in the application; and
3-8 (2) the maximum number of beds specified in the
3-9 application.
3-10 (c) A license may not be transferred or assigned.
3-11 (d) A license is renewable on the second anniversary of
3-12 issuance or renewal of the license after:
3-13 (1) an inspection;
3-14 (2) filing and approval of a renewal report; and
3-15 (3) payment of the renewal fee.
3-16 (e) The renewal report required under Subsection (d)(2) must
3-17 be filed in accordance with rules adopted by the department that
3-18 specify the form of the report, the date it must be submitted, and
3-19 the information it must contain.
3-20 (f) The department may not issue a license for new beds or
3-21 an expansion of an existing facility under this chapter unless the
3-22 addition of new beds or the expansion is included in the plan
3-23 approved by the Health and Human Services Commission in accordance
3-24 with Section 533.062.
3-25 (g) A license or renewal fee imposed under this chapter is
3-26 an allowable cost for reimbursement under the state Medicaid
3-27 program. An increase in the amount of a fee shall be reflected in
3-28 reimbursement rates prospectively.
3-29 Sec. 252.034. LICENSE FEES. (a) The board by rule may
3-30 adopt a fee for a license issued under this chapter. The fee may
3-31 not exceed $150 plus $5 for each unit of capacity or bed space for
3-32 which the license is sought.
3-33 (b) The license fee must be paid with each application for
3-34 an initial license or for a renewal or change of ownership of a
3-35 license.
3-36 (c) A facility operated by the state is not required to pay
3-37 a license fee.
3-38 (d) The board may adopt an additional fee for the approval
3-39 of an increase in bed space.
3-40 (e) All license fees collected under this section shall be
3-41 deposited in the state treasury to the credit of the department and
3-42 may be appropriated to the department to administer and enforce
3-43 this chapter.
3-44 Sec. 252.035. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE.
3-45 (a) The department, after providing notice and opportunity for a
3-46 hearing to the applicant or license holder, may deny, suspend, or
3-47 revoke a license if the department finds that the applicant or
3-48 license holder has substantially failed to comply with the
3-49 requirements established under this chapter.
3-50 (b) The status of an applicant for a license or a license
3-51 holder is preserved until final disposition of the contested
3-52 matter, except as the court having jurisdiction of a judicial
3-53 review of the matter may order in the public interest for the
3-54 welfare and safety of the residents.
3-55 Sec. 252.036. MINIMUM STANDARDS. The board may adopt,
3-56 publish, and enforce minimum standards relating to:
3-57 (1) the construction or remodeling of a facility,
3-58 including plumbing, heating, lighting, ventilation, and other
3-59 housing conditions, to ensure the residents' health, safety,
3-60 comfort, and protection from fire hazard;
3-61 (2) sanitary and related conditions in a facility and
3-62 its surroundings, including water supply, sewage disposal, food
3-63 handling, and general hygiene in order to ensure the residents'
3-64 health, safety, and comfort;
3-65 (3) equipment essential to the residents' health and
3-66 welfare;
3-67 (4) the reporting and investigation of injuries,
3-68 incidents, and unusual accidents and the establishment of other
3-69 policies and procedures necessary to ensure resident safety;
4-1 (5) behavior management, including use of seclusion
4-2 and physical restraints;
4-3 (6) policies and procedures for the control of
4-4 communicable diseases in employees and residents;
4-5 (7) the use and administration of medication in
4-6 conformity with applicable law and rules for pharmacy services;
4-7 (8) specialized nutrition support such as delivery of
4-8 enteral feedings and parenteral nutrients;
4-9 (9) requirements for in-service education of each
4-10 employee who has any contact with residents;
4-11 (10) the regulation of the number and qualification of
4-12 all personnel, including management and professional support
4-13 personnel, responsible for any part of the care given to residents;
4-14 and
4-15 (11) the quality of life and the provision of active
4-16 treatment to residents.
4-17 Sec. 252.037. REASONABLE TIME TO COMPLY. The board by rule
4-18 shall give a facility that is in operation when a rule or standard
4-19 is adopted under this chapter a reasonable time to comply with the
4-20 rule or standard.
4-21 Sec. 252.038. FIRE SAFETY REQUIREMENTS. (a) A facility
4-22 shall comply with fire safety requirements established under this
4-23 section.
4-24 (b) The board by rule shall adopt the fire safety standards
4-25 applicable to the facility. The fire safety standards must be the
4-26 same as the fire safety standards established by an edition of the
4-27 Life Safety Code of the National Fire Protection Association. If
4-28 required by federal law or regulation, the edition selected may be
4-29 different for facilities or portions of facilities operated or
4-30 approved for construction at different times.
4-31 (c) A facility that is licensed under applicable law on
4-32 September 1, 1997, must comply with the fire safety standards,
4-33 including fire safety standards imposed by municipal ordinance,
4-34 applicable to the facility on that date.
4-35 (d) The rules adopted under this section do not prevent a
4-36 facility licensed under this chapter from voluntarily conforming to
4-37 fire safety standards that are compatible with, equal to, or more
4-38 stringent than those adopted by the board.
4-39 (e) Notwithstanding any other provision of this section, a
4-40 municipality may enact additional and more stringent fire safety
4-41 standards applicable to new construction begun on or after
4-42 September 1, 1997.
4-43 Sec. 252.039. POSTING. Each facility shall prominently and
4-44 conspicuously post for display in a public area of the facility
4-45 that is readily available to residents, employees, and visitors:
4-46 (1) the license issued under this chapter;
4-47 (2) a sign prescribed by the department that specifies
4-48 complaint procedures established under this chapter or rules
4-49 adopted under this chapter and that specifies how complaints may be
4-50 registered with the department;
4-51 (3) a notice in a form prescribed by the department
4-52 stating that inspection and related reports are available at the
4-53 facility for public inspection and providing the department's
4-54 toll-free telephone number that may be used to obtain information
4-55 concerning the facility; and
4-56 (4) a concise summary of the most recent inspection
4-57 report relating to the facility.
4-58 Sec. 252.040. INSPECTIONS. (a) The department or the
4-59 department's designee may make any inspection, survey, or
4-60 investigation that it considers necessary and may enter the
4-61 premises of a facility at reasonable times to make an inspection,
4-62 survey, or investigation in accordance with board rules.
4-63 (b) The department is entitled to access to books, records,
4-64 and other documents maintained by or on behalf of a facility to the
4-65 extent necessary to enforce this chapter and the rules adopted
4-66 under this chapter.
4-67 (c) A license holder or an applicant for a license is
4-68 considered to have consented to entry and inspection of the
4-69 facility by a representative of the department in accordance with
5-1 this chapter.
5-2 (d) The department shall establish procedures to preserve
5-3 all relevant evidence of conditions the department finds during an
5-4 inspection, survey, or investigation that the department reasonably
5-5 believes threaten the health and safety of a resident. The
5-6 procedures may include photography or photocopying of relevant
5-7 documents, such as license holder's notes, physician's orders, and
5-8 pharmacy records, for use in any legal proceeding.
5-9 (e) When photographing a resident, the department:
5-10 (1) shall respect the privacy of the resident to the
5-11 greatest extent possible; and
5-12 (2) may not make public the identity of the resident.
5-13 (f) A facility, an officer or employee of a facility, and a
5-14 resident's attending physician are not civilly liable for
5-15 surrendering confidential or private material under this section,
5-16 including physician's orders, pharmacy records, notes and memoranda
5-17 of a state office, and resident files.
5-18 (g) The department shall establish in clear and concise
5-19 language a form to summarize each inspection report and complaint
5-20 investigation report.
5-21 (h) The department shall establish proper procedures to
5-22 ensure that copies of all forms and reports under this section are
5-23 made available to consumers, service recipients, and the relatives
5-24 of service recipients as the department considers proper.
5-25 Sec. 252.041. UNANNOUNCED INSPECTIONS. (a) Each licensing
5-26 period, the department shall conduct at least two unannounced
5-27 inspections of each facility.
5-28 (b) In order to ensure continuous compliance, the department
5-29 shall randomly select a sufficient percentage of facilities for
5-30 unannounced inspections to be conducted between 5 p.m. and 8 a.m.
5-31 Those inspections must be cursory to avoid to the greatest extent
5-32 feasible any disruption of the residents.
5-33 (c) The department may require additional inspections.
5-34 (d) As considered appropriate and necessary by the
5-35 department, the department may invite at least one person as a
5-36 citizen advocate to participate in inspections. The invited
5-37 advocate must be an individual who has an interest in or who is
5-38 employed by or affiliated with an organization or entity that
5-39 represents, advocates for, or serves individuals with mental
5-40 retardation or a related condition.
5-41 Sec. 252.042. DISCLOSURE OF UNANNOUNCED INSPECTIONS;
5-42 CRIMINAL PENALTY. (a) Except as expressly provided by this
5-43 chapter, a person commits an offense if the person intentionally,
5-44 knowingly, or recklessly discloses to an unauthorized person the
5-45 date, time, or any other fact about an unannounced inspection of a
5-46 facility before the inspection occurs.
5-47 (b) In this section, "unauthorized person" does not include:
5-48 (1) the department;
5-49 (2) the office of the attorney general;
5-50 (3) a representative of an agency or organization when
5-51 a Medicaid survey is made concurrently with a licensing inspection;
5-52 or
5-53 (4) any other person or entity authorized by law to
5-54 make an inspection or to accompany an inspector.
5-55 (c) An offense under this section is a Class B misdemeanor.
5-56 (d) A person convicted under this section is not eligible
5-57 for state employment.
5-58 Sec. 252.043. LICENSING SURVEYS. The department shall
5-59 provide a team to conduct surveys to validate findings of licensing
5-60 surveys. The purpose of a validation survey is to assure that
5-61 survey teams throughout the state survey in a fair and consistent
5-62 manner. A facility subjected to a validation survey must correct
5-63 deficiencies cited by the validation team but is not subject to
5-64 punitive action for those deficiencies.
5-65 (Sections 252.044-252.060 reserved for expansion
5-66 SUBCHAPTER C. GENERAL ENFORCEMENT
5-67 Sec. 252.061. EMERGENCY SUSPENSION OR CLOSING ORDER.
5-68 (a) The department shall suspend a facility's license or order an
5-69 immediate closing of part of the facility if:
6-1 (1) the department finds the facility is operating in
6-2 violation of the standards prescribed by this chapter; and
6-3 (2) the violation creates an immediate threat to the
6-4 health and safety of a resident.
6-5 (b) The board by rule shall provide for the placement of
6-6 residents during the facility's suspension or closing to ensure
6-7 their health and safety.
6-8 (c) An order suspending a license or closing a part of a
6-9 facility under this section is immediately effective on the date on
6-10 which the license holder receives written notice or a later date
6-11 specified in the order.
6-12 (d) An order suspending a license or ordering an immediate
6-13 closing of a part of a facility is valid for 10 days after the
6-14 effective date of the order.
6-15 Sec. 252.062. INJUNCTION. (a) The department may petition
6-16 a district court for a temporary restraining order to restrain a
6-17 person from continuing a violation of the standards prescribed by
6-18 this chapter if the department finds that the violation creates an
6-19 immediate threat to the health and safety of the facility's
6-20 residents.
6-21 (b) A district court, on petition of the department, may by
6-22 injunction:
6-23 (1) prohibit a person from continuing a violation of
6-24 the standards or licensing requirements prescribed by this chapter;
6-25 (2) restrain or prevent the establishment, conduct,
6-26 management, or operation of a facility without a license issued
6-27 under this chapter; or
6-28 (3) grant the injunctive relief warranted by the facts
6-29 on a finding by the court that a person is violating the standards
6-30 or licensing requirements prescribed by this chapter.
6-31 (c) The attorney general, on request by the department,
6-32 shall bring and conduct on behalf of the state a suit authorized by
6-33 this section.
6-34 (d) A suit for a temporary restraining order or other
6-35 injunctive relief must be brought in the county in which the
6-36 alleged violation occurs.
6-37 Sec. 252.063. LICENSE REQUIREMENTS; CRIMINAL PENALTY.
6-38 (a) A person commits an offense if the person violates Section
6-39 252.031.
6-40 (b) An offense under this section is punishable by a fine of
6-41 not more than $1,000 for the first offense and not more than $500
6-42 for each subsequent offense.
6-43 (c) Each day of a continuing violation after conviction is a
6-44 separate offense.
6-45 Sec. 252.064. CIVIL PENALTY. (a) A person who violates
6-46 this chapter or a rule adopted under this chapter is liable for a
6-47 civil penalty of not less than $100 or more than $10,000 for each
6-48 violation if the department determines the violation threatens the
6-49 health and safety of a resident.
6-50 (b) Each day of a continuing violation constitutes a
6-51 separate ground for recovery.
6-52 (c) The attorney general, on request of the department,
6-53 shall bring and conduct a suit to collect a civil penalty. Any
6-54 amount collected shall be remitted to the comptroller for deposit
6-55 to the credit of the general revenue fund.
6-56 Sec. 252.065. ADMINISTRATIVE PENALTY. (a) The department
6-57 may assess an administrative penalty against a facility that
6-58 violates this chapter or a rule adopted under this chapter as
6-59 specified by this section.
6-60 (b) The department by rule shall establish gradations and
6-61 amounts of penalties.
6-62 (c) In determining the amount of a penalty, the department
6-63 shall consider:
6-64 (1) the gradations of penalties established under
6-65 Subsection (b);
6-66 (2) the seriousness of the violation, including the
6-67 nature, circumstances, extent, and gravity of the violation;
6-68 (3) the hazard or potential hazard created by the
6-69 violation to the public health and safety;
7-1 (4) any previous violations;
7-2 (5) the amount necessary to deter future violations;
7-3 (6) efforts made to correct the violation;
7-4 (7) the size of the facility; and
7-5 (8) any other matter justice may require.
7-6 (d) The penalty may not exceed $5,000 for each violation.
7-7 Each day of a continuing violation constitutes a separate
7-8 violation.
7-9 (e) The department may not assess a penalty under both this
7-10 subchapter and Section 32.021, Human Resources Code, for a
7-11 violation arising out of the same act or failure to act.
7-12 Sec. 252.066. RULES REGARDING ADMINISTRATIVE PENALTY.
7-13 (a) The board shall adopt rules governing the assessment of
7-14 administrative penalties under this chapter, including rules
7-15 providing procedures for:
7-16 (1) giving notice of a violation to a facility;
7-17 (2) payment and refund of a penalty; and
7-18 (3) hearings and appeals.
7-19 (b) Rules adopted under this section shall include specific
7-20 and objective criteria that describe the scope and severity of a
7-21 violation that results in a recommendation for each specific
7-22 penalty. A penalty must be appropriate to the violation and may be
7-23 imposed only when a violation presents an immediate and serious
7-24 threat to the health and safety of a resident.
7-25 (c) The rules must establish a system to ensure standard and
7-26 consistent application of penalties by local surveyors and across
7-27 different areas of the state.
7-28 (d) The department may prescribe a per diem penalty. The
7-29 per diem penalty ceases on the date a violation is corrected. The
7-30 per diem penalty ceases only if the facility notifies the
7-31 department in writing that the violation has been corrected and of
7-32 the date of the correction and shows later that the violation was
7-33 corrected.
7-34 (e) For purposes of this section, "immediate and serious
7-35 threat" means a situation in which there is a high probability that
7-36 serious harm or injury to residents could occur at any time or has
7-37 already occurred and may occur again if residents are not protected
7-38 effectively from the harm or if the threat is not removed.
7-39 (Sections 252.067-252.090 reserved for expansion
7-40 SUBCHAPTER D. TRUSTEES FOR FACILITIES
7-41 Sec. 252.091. FINDINGS AND PURPOSE. (a) The legislature
7-42 finds that, under some circumstances, closing a facility for a
7-43 violation of a law or rule may:
7-44 (1) have an adverse effect on the facility's residents
7-45 and their families; and
7-46 (2) result in a lack of readily available financial
7-47 resources to meet the basic needs of the residents for food,
7-48 shelter, medication, and personal services.
7-49 (b) The purpose of this subchapter is to provide for:
7-50 (1) the appointment of a trustee to assume the
7-51 operations of the facility in a manner that emphasizes resident
7-52 care and reduces resident trauma; and
7-53 (2) a fund to assist a court-appointed trustee in
7-54 meeting the basic needs of the residents.
7-55 Sec. 252.092. APPOINTMENT BY AGREEMENT. (a) A person who
7-56 holds a controlling interest in a facility may request the
7-57 department to assume the operation of the facility through the
7-58 appointment of a trustee under this subchapter.
7-59 (b) After receiving the request, the department may enter
7-60 into an agreement providing for the appointment of a trustee to
7-61 take charge of the facility under conditions both parties consider
7-62 appropriate if the department considers the appointment desirable.
7-63 (c) An agreement under this section must:
7-64 (1) specify the terms and conditions of the trustee's
7-65 appointment and authority; and
7-66 (2) preserve the rights of the residents as granted by
7-67 law.
7-68 (d) The agreement terminates at the time:
7-69 (1) specified by the parties; or
8-1 (2) either party notifies the other in writing that
8-2 the party is terminating the appointment agreement.
8-3 Sec. 252.093. INVOLUNTARY APPOINTMENT. (a) The department
8-4 may request the attorney general to bring an action on behalf of
8-5 the state for the appointment of a trustee to operate a facility
8-6 if:
8-7 (1) the facility is operating without a license;
8-8 (2) the department has suspended or revoked the
8-9 facility's license;
8-10 (3) license suspension or revocation procedures
8-11 against the facility are pending and the department determines that
8-12 an imminent threat to the health and safety of the residents
8-13 exists;
8-14 (4) the department determines that an emergency exists
8-15 that presents an immediate threat to the health and safety of the
8-16 residents; or
8-17 (5) the facility is closing and arrangements for
8-18 relocation of the residents to other licensed facilities have not
8-19 been made before closure.
8-20 (b) A trustee appointed under Subsection (a)(5) may only
8-21 ensure an orderly and safe relocation of the facility's residents
8-22 as quickly as possible.
8-23 (c) After a hearing, a court shall appoint a trustee to take
8-24 charge of a facility if the court finds that involuntary
8-25 appointment of a trustee is necessary.
8-26 (d) If possible, the court shall appoint as trustee an
8-27 individual whose background includes mental retardation service
8-28 administration.
8-29 (e) An action under this section must be brought in Travis
8-30 County.
8-31 Sec. 252.094. FEE; RELEASE OF MONEY. (a) A trustee
8-32 appointed under this subchapter is entitled to a reasonable fee as
8-33 determined by the court.
8-34 (b) The trustee may petition the court to order the release
8-35 to the trustee of any payment owed the trustee for care and
8-36 services provided to the residents if the payment has been
8-37 withheld, including a payment:
8-38 (1) withheld by the department at the recommendation
8-39 of the department; or
8-40 (2) withheld by a governmental agency or other entity
8-41 during the appointment of the trustee, such as payments:
8-42 (A) for Medicaid or insurance;
8-43 (B) by a third party; or
8-44 (C) for medical expenses borne by the residents.
8-45 Sec. 252.095. EMERGENCY ASSISTANCE FEE. (a) In addition to
8-46 the licensing and renewal fee collected under Section 252.034, the
8-47 department may collect an annual fee to be used to make emergency
8-48 assistance money available to a facility licensed under this
8-49 chapter.
8-50 (b) The fee collected under this section shall be in the
8-51 amount prescribed by Section 242.097(b) and shall be deposited to
8-52 the credit of the nursing and convalescent home trust fund
8-53 established under Section 242.096.
8-54 (c) The department may disburse money to a trustee for a
8-55 facility licensed under this chapter to alleviate an immediate
8-56 threat to the health or safety of the facility's residents.
8-57 Payments under this section may include payments described by
8-58 Section 242.096(b).
8-59 (d) A court may order the department to disburse emergency
8-60 assistance money to a trustee for a facility licensed under this
8-61 chapter if the court makes the findings provided by Section
8-62 242.096(c).
8-63 Sec. 252.096. REIMBURSEMENT. (a) A facility that receives
8-64 emergency assistance money under this subchapter shall reimburse
8-65 the department for the amounts received, including interest.
8-66 (b) Interest on unreimbursed amounts begins to accrue on the
8-67 date on which the money is disbursed to the facility. The rate of
8-68 interest is the rate determined under Section 2, Article 1.05,
8-69 Title 79, Revised Statutes (Article 5069-1.05, Vernon's Texas Civil
9-1 Statutes), to be applicable to judgments rendered during the month
9-2 in which the money is disbursed to the facility.
9-3 (c) The owner of the facility when the trustee is appointed
9-4 is responsible for the reimbursement.
9-5 (d) The amount that remains unreimbursed on the first
9-6 anniversary of the date on which the money is received is
9-7 delinquent and the department may determine that the facility is
9-8 ineligible for a Medicaid provider contract.
9-9 (e) The department shall deposit the reimbursement and
9-10 interest received under this section to the credit of the nursing
9-11 and convalescent home trust fund.
9-12 (f) The attorney general shall institute an action to
9-13 collect money due under this section at the request of the
9-14 department. An action under this section must be brought in Travis
9-15 County.
9-16 Sec. 252.097. NOTIFICATION OF CLOSURE. (a) A facility that
9-17 is closing temporarily or permanently, voluntarily or
9-18 involuntarily, shall notify the residents of the closing and make
9-19 reasonable efforts to notify in writing each resident's nearest
9-20 relative or the person responsible for the resident's support
9-21 within a reasonable time before the facility closes.
9-22 (b) If the department orders a facility to close or the
9-23 facility's closure is in any other way involuntary, the facility
9-24 shall make the notification, orally or in writing, immediately on
9-25 receiving notice of the closing.
9-26 (c) If the facility's closure is voluntary, the facility
9-27 shall make the notification not later than one week after the date
9-28 on which the decision to close is made.
9-29 Sec. 252.098. CRIMINAL PENALTY FOR FAILURE TO NOTIFY.
9-30 (a) A facility commits an offense if the facility knowingly fails
9-31 to comply with Section 252.097.
9-32 (b) An offense under this section is a Class A misdemeanor.
9-33 (Sections 252.099-252.120 reserved for expansion
9-34 SUBCHAPTER E. REPORTS OF ABUSE AND NEGLECT
9-35 Sec. 252.121. DEFINITION. In this subchapter, "designated
9-36 agency" means an agency designated by a court to be responsible for
9-37 the protection of a resident who is the subject of a report of
9-38 abuse or neglect.
9-39 Sec. 252.122. REPORTING OF ABUSE AND NEGLECT. (a) A
9-40 person, including an owner or employee of a facility, who has cause
9-41 to believe that the physical or mental health or welfare of a
9-42 resident has been or may be adversely affected by abuse or neglect
9-43 caused by another person shall report the abuse or neglect to the
9-44 department, to a designated agency, or to both the department and
9-45 the designated agency, as specified in department rules.
9-46 (b) Each facility shall require each employee of the
9-47 facility, as a condition of employment with the facility, to sign a
9-48 statement that the employee realizes that the employee may be
9-49 criminally liable for failure to report abuse or neglect.
9-50 (c) A person shall make an oral report immediately on
9-51 learning of abuse or neglect and shall make a written report to the
9-52 same agency not later than the fifth day after the oral report is
9-53 made.
9-54 Sec. 252.123. CONTENTS OF REPORT. (a) A report of abuse or
9-55 neglect is nonaccusatory and reflects the reporting person's belief
9-56 that a resident has been or will be abused or neglected or has died
9-57 of abuse or neglect.
9-58 (b) The report must contain:
9-59 (1) the name and address of the resident;
9-60 (2) the name and address of the person responsible for
9-61 the care of the resident, if available; and
9-62 (3) other relevant information.
9-63 Sec. 252.124. ANONYMOUS REPORTS OF ABUSE OR NEGLECT.
9-64 (a) An anonymous report of abuse or neglect, although not
9-65 encouraged, shall be received and acted on in the same manner as an
9-66 acknowledged report.
9-67 (b) A local or state law enforcement agency that receives a
9-68 report of abuse or neglect shall refer the report to the department
9-69 or the designated agency.
10-1 Sec. 252.125. INVESTIGATION AND REPORT OF RECEIVING AGENCY.
10-2 (a) The department or the designated agency shall make a thorough
10-3 investigation promptly after receiving either the oral or written
10-4 report.
10-5 (b) The primary purpose of the investigation is the
10-6 protection of the resident.
10-7 (c) In the investigation, the department or the designated
10-8 agency shall determine:
10-9 (1) the nature, extent, and cause of the abuse or
10-10 neglect;
10-11 (2) the identity of the person responsible for the
10-12 abuse or neglect;
10-13 (3) the names and conditions of the other residents;
10-14 (4) an evaluation of the persons responsible for the
10-15 care of the residents;
10-16 (5) the adequacy of the facility environment; and
10-17 (6) any other information required by the department.
10-18 (d) The investigation may include a visit to the resident's
10-19 facility and an interview with the resident, if considered
10-20 appropriate by the department.
10-21 (e) If the department attempts to carry out an on-site
10-22 investigation and it is shown that admission to the facility or any
10-23 place where a resident is located cannot be obtained, a probate or
10-24 county court shall order the person responsible for the care of the
10-25 resident or the person in charge of a place where the resident is
10-26 located to allow admission for the investigation and any interview
10-27 with the resident.
10-28 (f) Before the completion of the investigation, the
10-29 department shall file a petition for temporary care and protection
10-30 of the resident if the department determines that immediate removal
10-31 is necessary to protect the resident from further abuse or neglect.
10-32 (g) The department or the designated agency shall make a
10-33 complete written report of the investigation and submit the report
10-34 and its recommendations to the district attorney and the
10-35 appropriate law enforcement agency and, if necessary, to the
10-36 department on the department's request.
10-37 Sec. 252.126. CONFIDENTIALITY. A report, record, or working
10-38 paper used or developed in an investigation made under this
10-39 subchapter is confidential and may be disclosed only for purposes
10-40 consistent with the rules adopted by the board or the designated
10-41 agency.
10-42 Sec. 252.127. IMMUNITY. (a) Except as provided by Section
10-43 252.131, a person who reports an act of abuse or neglect as
10-44 provided by this subchapter is immune from civil or criminal
10-45 liability that, in the absence of the immunity, might result from
10-46 making the report.
10-47 (b) The immunity provided by this section extends to
10-48 participation in any judicial proceeding that results from the
10-49 report.
10-50 Sec. 252.128. PRIVILEGED COMMUNICATIONS. In a proceeding
10-51 regarding the abuse or neglect of a resident or the cause of any
10-52 abuse or neglect, evidence may not be excluded on the ground of
10-53 privileged communication except in the case of a communication
10-54 between an attorney and client.
10-55 Sec. 252.129. CENTRAL REGISTRY. (a) The department shall
10-56 maintain in the city of Austin a central registry of reported cases
10-57 of resident abuse or neglect. The department shall include the
10-58 registry in the registry maintained under Section 242.130.
10-59 (b) The board may adopt rules necessary to carry out this
10-60 section.
10-61 (c) The rules shall provide for cooperation with hospitals
10-62 and clinics in the exchange of reports of resident abuse or
10-63 neglect.
10-64 Sec. 252.130. FAILURE TO REPORT; CRIMINAL PENALTY. (a) A
10-65 person commits an offense if the person has cause to believe that a
10-66 resident's physical or mental health or welfare has been or may be
10-67 further adversely affected by abuse or neglect and knowingly fails
10-68 to report in accordance with Section 252.122.
10-69 (b) An offense under this section is a Class A misdemeanor.
11-1 Sec. 252.131. BAD FAITH, MALICIOUS, OR RECKLESS REPORTING;
11-2 CRIMINAL PENALTY. (a) A person commits an offense if the person
11-3 reports under this subchapter in bad faith, maliciously, or
11-4 recklessly.
11-5 (b) An offense under this section is a Class A misdemeanor.
11-6 (c) The criminal penalty provided by this section is in
11-7 addition to any civil penalties for which the person may be liable.
11-8 Sec. 252.132. SUIT FOR RETALIATION. (a) A facility may not
11-9 suspend or terminate the employment of, or discipline or otherwise
11-10 discriminate against, an employee for reporting to the employee's
11-11 supervisor, an administrator of the facility, a state regulatory
11-12 agency, or a law enforcement agency the abuse or neglect of a
11-13 resident.
11-14 (b) A facility that violates Subsection (a) is liable to the
11-15 person against whom the facility discriminated. A person against
11-16 whom a facility discriminates in violation of Subsection (a) may
11-17 sue for injunctive relief, damages, or both.
11-18 (c) A plaintiff who prevails in a suit under this section
11-19 may recover:
11-20 (1) the greater of $1,000 or actual damages, including
11-21 damages for mental anguish even if an injury other than mental
11-22 anguish is not shown and damages for lost wages if the petitioner's
11-23 employment was suspended or terminated;
11-24 (2) exemplary damages;
11-25 (3) court costs; and
11-26 (4) reasonable attorney's fees.
11-27 (d) In addition to the amounts that may be recovered under
11-28 Subsection (c), a person whose employment is suspended or
11-29 terminated is entitled to reinstatement in the person's former
11-30 position.
11-31 (e) The petitioner, not later than the 90th day after the
11-32 date on which the person's employment is suspended or terminated,
11-33 must bring suit or notify the Texas Workforce Commission of the
11-34 petitioner's intent to sue under this section. A petitioner who
11-35 notifies the Texas Workforce Commission under this subsection must
11-36 bring suit not later than the 90th day after the date of the
11-37 delivery of the notice to the commission. On receipt of the
11-38 notice, the commission shall notify the facility of the
11-39 petitioner's intent to bring suit under this section.
11-40 (f) The petitioner has the burden of proof, except that
11-41 there is a rebuttable presumption that the person's employment was
11-42 suspended or terminated for reporting abuse or neglect if the
11-43 person is suspended or terminated within 60 days after the date on
11-44 which the person reported in good faith.
11-45 (g) A suit under this section may be brought in the district
11-46 court of the county in which:
11-47 (1) the plaintiff resides;
11-48 (2) the plaintiff was employed by the defendant; or
11-49 (3) the defendant conducts business.
11-50 (h) Each facility shall require each employee of the
11-51 facility, as a condition of employment with the facility, to sign a
11-52 statement that the employee understands the employee's rights under
11-53 this section. The statement must be part of the statement required
11-54 under Section 252.122(b). If a facility does not require an
11-55 employee to read and sign the statement, the periods prescribed by
11-56 Subsection (e) do not apply, and the petitioner must bring suit not
11-57 later than the second anniversary of the date on which the person's
11-58 employment is suspended or terminated.
11-59 Sec. 252.133. SUIT FOR RETALIATION AGAINST RESIDENT. (a) A
11-60 facility may not retaliate or discriminate against a resident if
11-61 the resident, the resident's guardian, or any other person reports
11-62 abuse or neglect in accordance with this subchapter.
11-63 (b) A resident against whom a facility retaliates or
11-64 discriminates in violation of Subsection (a) is entitled to sue
11-65 for:
11-66 (1) injunctive relief;
11-67 (2) actual damages;
11-68 (3) exemplary damages;
11-69 (4) court costs; and
12-1 (5) reasonable attorney's fees.
12-2 (c) A resident who seeks relief under this section must
12-3 report the alleged violation not later than the 180th day after the
12-4 date on which the alleged violation of this section occurred or was
12-5 discovered by the resident through reasonable diligence.
12-6 (d) A suit under this section may be brought in the district
12-7 court of the county in which the facility is located or in a
12-8 district court of Travis County.
12-9 Sec. 252.134. REPORTS RELATING TO RESIDENT DEATHS;
12-10 STATISTICAL INFORMATION. (a) A facility licensed under this
12-11 chapter shall submit a report to the department concerning the
12-12 death of:
12-13 (1) a resident of the facility; and
12-14 (2) a former resident that occurs 24 hours or less
12-15 after the former resident is transferred from the facility to a
12-16 hospital.
12-17 (b) The report must be submitted not later than the 10th
12-18 working day after the last day of each month in which a resident of
12-19 the facility dies. The facility must make the report on a form
12-20 prescribed by the department. The report must contain the name and
12-21 social security number of the deceased.
12-22 (c) The department shall correlate reports under this
12-23 section with death certificate information to develop data relating
12-24 to the:
12-25 (1) name and age of the deceased;
12-26 (2) official cause of death listed on the death
12-27 certificate;
12-28 (3) date, time, and place of death; and
12-29 (4) name and address of the facility in which the
12-30 deceased resided.
12-31 (d) Unless specified by board rule, a record under this
12-32 section is confidential and not subject to the provisions of
12-33 Chapter 552, Government Code.
12-34 (e) The department shall develop statistical information on
12-35 official causes of death to determine patterns and trends of
12-36 incidents of death among persons with mental retardation and
12-37 related conditions and in specific facilities. Information
12-38 developed under this subsection is not confidential.
12-39 (f) A licensed facility shall make available on the request
12-40 of an applicant or an applicant's representative historical
12-41 statistics on all required information.
12-42 (Sections 252.135-252.150 reserved for expansion
12-43 SUBCHAPTER F. MEDICAL CARE
12-44 Sec. 252.151. ADMINISTRATION OF MEDICATION. The department
12-45 shall adopt rules relating to the administration of medication in
12-46 intermediate care facilities.
12-47 Sec. 252.152. APPLICATION OF OTHER LAW. (a) Except as
12-48 provided by Subsection (c), Subchapter F, Chapter 242, applies to a
12-49 facility.
12-50 (b) In applying Subchapter F, Chapter 242, to a facility,
12-51 the term "resident" has the meaning assigned by Section 252.002 and
12-52 the term "institution" means a facility.
12-53 (c) Section 242.160 does not apply to a facility.
12-54 (Sections 252.153-252.180 reserved for expansion
12-55 SUBCHAPTER G. RESPITE CARE
12-56 Sec. 252.181. DEFINITIONS. In this subchapter:
12-57 (1) "Plan of care" means a written description of the
12-58 care, training, and treatment needed by a person during respite
12-59 care.
12-60 (2) "Respite care" means the provision by a facility
12-61 to a person, for not more than two weeks for each stay in the
12-62 facility, of:
12-63 (A) room and board; and
12-64 (B) care at the level ordinarily provided for
12-65 permanent residents.
12-66 Sec. 252.182. RESPITE CARE. (a) A facility licensed under
12-67 this chapter may provide respite care for an individual who has a
12-68 diagnosis of mental retardation or a related condition without
12-69 regard to whether the individual is eligible to receive
13-1 intermediate care services under federal law.
13-2 (b) The board may adopt rules for the regulation of respite
13-3 care provided by a facility licensed under this chapter.
13-4 Sec. 252.183. PLAN OF CARE. (a) The facility and the
13-5 person arranging the care must agree on the plan of care and the
13-6 plan must be filed at the facility before the facility admits the
13-7 person for the care.
13-8 (b) The plan of care must be signed by:
13-9 (1) a licensed physician if the person for whom the
13-10 care is arranged needs medical care or treatment; or
13-11 (2) the person arranging for the respite care if
13-12 medical care or treatment is not needed.
13-13 (c) The facility may keep an agreed plan of care for a
13-14 person for not longer than six months from the date on which it is
13-15 received. After each admission, the facility shall review and
13-16 update the plan of care. During that period, the facility may
13-17 admit the person as frequently as is needed and as accommodations
13-18 are available.
13-19 Sec. 252.184. NOTIFICATION. A facility that offers respite
13-20 care shall notify the department in writing that it offers respite
13-21 care.
13-22 Sec. 252.185. INSPECTIONS. The department, at the time of
13-23 an ordinary licensing inspection or at other times determined
13-24 necessary by the department, shall inspect a facility's records of
13-25 respite care services, physical accommodations available for
13-26 respite care, and the plan of care records to ensure that the
13-27 respite care services comply with the licensing standards of this
13-28 chapter and with any rules the board may adopt to regulate respite
13-29 care services.
13-30 Sec. 252.186. SUSPENSION. (a) The department may require a
13-31 facility to cease providing respite care if the department
13-32 determines that the respite care does not meet the standards
13-33 required by this chapter and that the facility cannot comply with
13-34 those standards in the respite care it provides.
13-35 (b) The department may suspend the license of a facility
13-36 that continues to provide respite care after receiving a written
13-37 order from the department to cease.
13-38 SECTION 2. Subdivision (6), Section 242.002, Health and
13-39 Safety Code, is amended to read as follows:
13-40 (6) "Institution" means[:]
13-41 [(A)] an establishment that:
13-42 (A) [(i)] furnishes, in one or more facilities,
13-43 food and shelter to four or more persons who are unrelated to the
13-44 proprietor of the establishment; and
13-45 (B) [(ii)] provides minor treatment under the
13-46 direction and supervision of a physician licensed by the Texas
13-47 State Board of Medical Examiners, or other services that meet some
13-48 need beyond the basic provision of food, shelter, and laundry[; or]
13-49 [(B) a foster care type residential facility
13-50 that provides room and board to fewer than five persons who:]
13-51 [(i) are not related within the second
13-52 degree of consanguinity or affinity, as determined under Chapter
13-53 573, Government Code, to the proprietor; and]
13-54 [(ii) because of their physical or mental
13-55 limitation, or both, require a level of care and services suitable
13-56 to their needs that contributes to their health, comfort, and
13-57 welfare].
13-58 SECTION 3. Section 242.003, Health and Safety Code, is
13-59 amended to read as follows:
13-60 Sec. 242.003. EXEMPTIONS. [(a)] Except as otherwise
13-61 provided, this chapter does not apply to:
13-62 (1) a hotel or other similar place that furnishes only
13-63 food, lodging, or both, to its guests;
13-64 (2) a hospital;
13-65 (3) an establishment conducted by or for the adherents
13-66 of a well-recognized church or religious denomination for the
13-67 purpose of providing facilities for the care or treatment of the
13-68 sick who depend exclusively on prayer or spiritual means for
13-69 healing, without the use of any drug or material remedy, if the
14-1 establishment complies with safety, sanitary, and quarantine laws
14-2 and rules;
14-3 (4) an establishment that furnishes, in addition to
14-4 food, shelter, and laundry, only baths and massages;
14-5 (5) an institution operated by a person licensed by
14-6 the Texas Board of Chiropractic Examiners;
14-7 (6) a facility that:
14-8 (A) primarily engages in training, habilitation,
14-9 rehabilitation, or education of clients or residents;
14-10 (B) is operated under the jurisdiction of a
14-11 state or federal agency, including the Texas Rehabilitation
14-12 Commission, Texas Department of Mental Health and Mental
14-13 Retardation, Texas Department of Human Services, Texas Commission
14-14 for the Blind, Texas Commission on Alcohol and Drug Abuse,
14-15 institutional division of the Texas Department of Criminal Justice,
14-16 and the Veteran's Administration; and
14-17 (C) is certified through inspection or
14-18 evaluation as meeting the standards established by the state or
14-19 federal agency; [and]
14-20 (7) a foster care type residential facility that
14-21 serves fewer than five persons and operates under rules adopted by
14-22 the Texas Department of Human Services; and
14-23 (8) a facility licensed under Chapter 252 or exempt
14-24 from licensure under Section 252.003.
14-25 [(b) An institution described by Section 242.002(6)(C) is
14-26 subject to licensing under this chapter only if written application
14-27 is made for participation in the intermediate care program under
14-28 federal law.]
14-29 SECTION 4. (a) Except as provided by Subsection (b) of this
14-30 section, this Act takes effect September 1, 1997.
14-31 (b) Section 2 of this Act takes effect January 1, 1998.
14-32 SECTION 5. (a) Notwithstanding Sections 252.031 and
14-33 252.063, Health and Safety Code, as added by this Act:
14-34 (1) a facility is not required to be licensed under
14-35 Chapter 252, Health and Safety Code, as added by this Act, before
14-36 January 1, 1998; and
14-37 (2) a facility that is required to be licensed under
14-38 that chapter and that is, on the effective date of this Act,
14-39 licensed under Chapter 242, Health and Safety Code, may continue to
14-40 operate under the license issued under Chapter 242 until the later
14-41 of:
14-42 (A) December 31, 1997; or
14-43 (B) the date on which the license is subject to
14-44 renewal.
14-45 (b) A license issued under Chapter 242, Health and Safety
14-46 Code, to an institution that is required to be licensed as a
14-47 facility under Chapter 252, Health and Safety Code, as added by
14-48 this Act, may not be renewed after December 1, 1997.
14-49 (c) A facility licensed under Chapter 252, Health and Safety
14-50 Code, as added by this Act, is not subject to Chapter 48, Human
14-51 Resources Code.
14-52 SECTION 6. The importance of this legislation and the
14-53 crowded condition of the calendars in both houses create an
14-54 emergency and an imperative public necessity that the
14-55 constitutional rule requiring bills to be read on three several
14-56 days in each house be suspended, and this rule is hereby suspended.
14-57 * * * * *