By McCall H.B. No. 411
76R2967 KKA-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of assisted living facilities.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. AMENDMENT. Chapter 247, Health and Safety Code,
1-5 is amended to read as follows:
1-6 CHAPTER 247. ASSISTED LIVING [PERSONAL CARE] FACILITIES
1-7 SUBCHAPTER A. GENERAL PROVISIONS
1-8 Sec. 247.001. SHORT TITLE. This chapter may be cited as the
1-9 Assisted Living [Personal Care] Facility Licensing Act.
1-10 Sec. 247.0011. SCOPE, PURPOSE, AND IMPLEMENTATION. (a) The
1-11 purpose of this chapter is to ensure that assisted living
1-12 facilities in this state deliver the highest possible quality of
1-13 care. This chapter and the rules adopted under this chapter
1-14 establish minimum acceptable levels of care, and a violation of a
1-15 minimum acceptable level of care established under this chapter is
1-16 a violation of law. For purposes of this chapter, components of
1-17 quality of care include:
1-18 (1) resident independence and self-determination;
1-19 (2) humane treatment;
1-20 (3) conservative intervention;
1-21 (4) access to care;
1-22 (5) continuity of care;
1-23 (6) coordination of services;
1-24 (7) safe surroundings;
2-1 (8) professionalism of service providers;
2-2 (9) participation in useful studies; and
2-3 (10) quality of life.
2-4 (b) The department shall protect residents of assisted
2-5 living facilities by:
2-6 (1) adopting rules relating to quality of care and
2-7 quality of life;
2-8 (2) regulating the construction, maintenance, and
2-9 operation of assisted living facilities;
2-10 (3) strictly monitoring factors relating to the
2-11 health, safety, welfare, and dignity of each resident;
2-12 (4) imposing prompt and effective remedies for
2-13 violations of this chapter and rules and standards adopted under
2-14 this chapter;
2-15 (5) providing a residential environment that allows
2-16 residents to maintain the highest possible degree of independence
2-17 and self-determination; and
2-18 (6) providing the public with helpful and
2-19 understandable information relating to the operation of assisted
2-20 living facilities in this state.
2-21 (c) This chapter shall be construed broadly to accomplish
2-22 the purposes identified in this section.
2-23 Sec. 247.002. DEFINITIONS. In this chapter:
2-24 (1) "Assisted living facility" means an establishment
2-25 that:
2-26 (A) furnishes, in one or more facilities, food
2-27 and shelter to three or more persons who are unrelated to the
3-1 proprietor of the establishment; and
3-2 (B) provides personal care services.
3-3 (2) "Board" means the Texas Board of Human Services.
3-4 (3) "Controlling person" means a person who controls
3-5 an assisted living facility or other person as described by Section
3-6 247.005.
3-7 (4) [(2)] "Department" means the Texas Department of
3-8 Human Services.
3-9 (5) [(3) "Personal care facility" means an
3-10 establishment, including a board and care home, that:]
3-11 [(A) furnishes, in one or more facilities, food
3-12 and shelter to four or more persons who are unrelated to the
3-13 proprietor of the establishment; and]
3-14 [(B) provides personal care services.]
3-15 [(4)] "Personal care services" means:
3-16 (A) assistance with meals, dressing, movement,
3-17 bathing, or other personal needs or maintenance;
3-18 (B) the administration of medication by a person
3-19 licensed to administer medication or the assistance with or
3-20 supervision of medication; or
3-21 (C) general supervision or oversight of the
3-22 physical and mental well-being of a person who needs assistance to
3-23 maintain a private and independent residence in an assisted living
3-24 [a personal care] facility or who needs assistance to manage the
3-25 person's personal life, regardless of whether a guardian has been
3-26 appointed for the person.
3-27 (6) [(5)] "Qualified religious society" means a
4-1 church, synagogue, or other organization or association that is
4-2 organized primarily for religious purposes and that:
4-3 (A) has been in existence in this state for at
4-4 least 35 years; and
4-5 (B) does not distribute any of its income to its
4-6 members, officers, or governing body other than as reasonable
4-7 compensation for services or reimbursement of expenses.
4-8 Sec. 247.003. APPLICATION OF OTHER LAW. (a) Except as
4-9 provided by Subsection (b), Chapter 242 does not apply to an
4-10 assisted living [a personal care] facility licensed under this
4-11 chapter.
4-12 (b) Subchapter D, Chapter 242, applies to an assisted living
4-13 [a personal care] facility, and the department shall administer and
4-14 enforce that subchapter for an assisted living [a personal care]
4-15 facility in the same manner it is administered and enforced for a
4-16 nursing home.
4-17 Sec. 247.004. EXEMPTIONS. This chapter does not apply to:
4-18 (1) a boarding facility that has rooms for rent and
4-19 that may offer community meals but that does not provide personal
4-20 care services;
4-21 (2) an establishment conducted by or for the adherents
4-22 of the Church of Christ, Scientist, for the purpose of providing
4-23 facilities for the care or treatment of the sick who depend
4-24 exclusively on prayer or spiritual means for healing without the
4-25 use of any drug or material remedy if the establishment complies
4-26 with local safety, sanitary, and quarantine ordinances and
4-27 regulations; or
5-1 (3) a facility conducted by or for the adherents of a
5-2 qualified religious society classified as a tax-exempt organization
5-3 under an Internal Revenue Service group exemption ruling for the
5-4 purpose of providing personal care services without charge solely
5-5 for the society's professed members or ministers in retirement, if
5-6 the facility complies with local safety, sanitation, and quarantine
5-7 ordinances and regulations.
5-8 Sec. 247.005. CONTROLLING PERSON. (a) A person is a
5-9 controlling person if the person, acting alone or with others, has
5-10 the ability to directly or indirectly influence, direct, or cause
5-11 the direction of the management, expenditure of money, or policies
5-12 of an assisted living facility or other person.
5-13 (b) For purposes of this chapter, "controlling person"
5-14 includes:
5-15 (1) a management company, landlord, or other business
5-16 entity that operates or contracts with others for the operation of
5-17 an assisted living facility;
5-18 (2) a person who is a controlling person of a
5-19 management company or other business entity that operates an
5-20 assisted living facility or that contracts with another person for
5-21 the operation of an assisted living facility; and
5-22 (3) any other individual who, because of a personal,
5-23 familial, or other relationship with the owner, manager, landlord,
5-24 tenant, or provider of an assisted living facility, is in a
5-25 position of actual control or authority with respect to the
5-26 facility, without regard to whether the individual is formally
5-27 named as an owner, manager, director, officer, provider,
6-1 consultant, contractor, or employee of the facility.
6-2 (c) A controlling person described by Subsection (b)(3) does
6-3 not include an employee, lender, secured creditor, landlord, or
6-4 other person who does not exercise formal or actual influence or
6-5 control over the operation of an assisted living facility.
6-6 (d) The department may adopt rules that specify the
6-7 ownership interests and other relationships that qualify a person
6-8 as a controlling person.
6-9 SUBCHAPTER B. LICENSING, FEES, AND INSPECTIONS
6-10 Sec. 247.021. LICENSE REQUIRED. (a) A person may not
6-11 establish or operate an assisted living [a personal care] facility
6-12 without a license issued under this chapter.
6-13 (b) Notwithstanding any other provision of law, a person
6-14 shall obtain a license under this chapter and comply with all
6-15 requirements applicable to an assisted living facility if the
6-16 person provides personal care services through an agency licensed
6-17 under Chapter 142 to three or more individuals who:
6-18 (1) are unrelated to the person; and
6-19 (2) reside on the premises at which the agency is
6-20 located.
6-21 (c) The department by rule shall establish procedures to
6-22 issue a six-month provisional license to existing facilities with
6-23 residents. The department may issue a provisional license only if:
6-24 (1) the facility is in compliance with resident care
6-25 standards; and
6-26 (2) the facility seeks the license not later than the
6-27 30th day after the first date on which the facility is notified
7-1 that the facility is required to be licensed under this chapter
7-2 [voluntarily discloses that the facility needs additional time to
7-3 comply with life safety code and physical plant standards;]
7-4 [(3) the disclosure is made in writing by certified
7-5 mail to the department;]
7-6 [(4) an investigation of the violation was not
7-7 initiated and the violation was not independently detected by the
7-8 department; and]
7-9 [(5) the disclosure is made promptly after knowledge
7-10 of the information disclosed is obtained by the facility].
7-11 (d) [(c)] If, at the end of the six-month provisional
7-12 license period, the facility does not meet life safety code and
7-13 physical plant standards, the department may not issue a license to
7-14 the facility.
7-15 Sec. 247.022. LICENSE APPLICATION. (a) An applicant for an
7-16 assisted living [a personal care] facility license must submit an
7-17 application to the department on a form prescribed by the
7-18 department.
7-19 (b) Each application must be accompanied by a nonrefundable
7-20 license fee in an amount set by the board.
7-21 (c) The department may provide technical assistance to an
7-22 applicant by making brief inspections of the assisted living
7-23 [personal care] facility proposed to be licensed and making
7-24 recommendations concerning actions necessary to meet standards for
7-25 assisted living [personal care] facilities.
7-26 Sec. 247.023. ISSUANCE AND RENEWAL OF LICENSE. (a) The
7-27 department shall issue a license if, after inspection and
8-1 investigation, it finds that the applicant, [and] the assisted
8-2 living [personal care] facility, and any controlling person with
8-3 respect to the applicant or facility meet the requirements of this
8-4 chapter and the standards adopted under this chapter.
8-5 (b) To renew a license, the license holder must submit to
8-6 the department the annual license renewal fee.
8-7 (c) The board may require participation in a continuing
8-8 education program as a condition of renewal of a license. The
8-9 board shall adopt rules to implement this subsection.
8-10 Sec. 247.0231. COMPLIANCE RECORD IN OTHER STATES. The
8-11 department may require an applicant or license holder to provide
8-12 the department with information relating to compliance by the
8-13 applicant, the license holder, or a controlling person with respect
8-14 to the applicant or license holder with regulatory requirements in
8-15 another state in which the applicant, license holder, or
8-16 controlling person operates or operated an assisted living
8-17 facility.
8-18 Sec. 247.024. FEES[; DISPOSITION OF REVENUE]. (a) The
8-19 board shall set license fees imposed by this chapter:
8-20 (1) on the basis of the number of beds in assisted
8-21 living facilities required to pay the fee; and
8-22 (2) in amounts reasonable and necessary to defray the
8-23 cost of administering this chapter[, but not to exceed:]
8-24 [(1) $300 for a personal care facility that has not
8-25 more than 10 beds;]
8-26 [(2) $350 for a personal care facility that has not
8-27 less than 11 or more than 20 beds; and]
9-1 [(3) $400 for a personal care facility that has 21 or
9-2 more beds].
9-3 (b) [All fees or penalties collected under this chapter
9-4 shall be deposited in the state treasury to the credit of the
9-5 general revenue fund and shall be appropriated to the department
9-6 only to administer and enforce this chapter.]
9-7 [(c)] Investigation fees or attorney's fees may not be
9-8 assessed against or collected from an assisted living [a personal
9-9 care] facility by or on behalf of the department or another state
9-10 agency unless the department or other state agency assesses and
9-11 collects a penalty authorized by this chapter from the facility.
9-12 Sec. 247.025. ADOPTION OF RULES. The board shall adopt
9-13 rules necessary to implement this chapter, including requirements
9-14 for the issuance, renewal, denial, suspension, and revocation of a
9-15 license to operate an assisted living [a personal care] facility.
9-16 Sec. 247.026. STANDARDS. (a) The board by rule shall
9-17 prescribe minimum standards to protect the health and safety of an
9-18 assisted living [a personal care] facility resident.
9-19 (b) The standards must:
9-20 (1) clearly differentiate an assisted living [a
9-21 personal care] facility from an institution required to be licensed
9-22 under Chapter 242;
9-23 (2) ensure quality care and protection of the
9-24 residents' health and safety without excessive cost; and
9-25 (3) require an assisted living [a personal care]
9-26 facility to:
9-27 (A) indicate [use its license number] in all
10-1 advertisements, solicitations, and promotional materials that the
10-2 facility is licensed by the department or that an application for a
10-3 license is pending before the department; and
10-4 (B) provide each prospective resident or
10-5 prospective resident's representative, as appropriate, with a
10-6 consumer disclosure statement in a standard form adopted by the
10-7 department.
10-8 (c) The board shall require an assisted living facility that
10-9 provides brain injury rehabilitation services to include in the
10-10 facility's consumer disclosure statement a specific statement that
10-11 licensure as an assisted living facility does not indicate state
10-12 review, approval, or endorsement of the facility's rehabilitation
10-13 services.
10-14 (d) The board may prescribe different levels of minimum
10-15 standards for assisted living [personal care] facilities according
10-16 to the number of residents, the type of residents, the level of
10-17 personal care provided, and other distinctions the board considers
10-18 relevant.
10-19 (e) [(d)] Local health and safety standards adopted by the
10-20 municipality in which an assisted living [a personal care]
10-21 facility is located do not apply to the facility unless the
10-22 standards specifically state that they apply to assisted living
10-23 [personal care] facilities.
10-24 (f) [(e)] The board by rule shall prescribe minimum
10-25 standards requiring appropriate training in geriatric care for each
10-26 individual who provides services to geriatric residents as an
10-27 employee of an assisted living [a personal care] facility and who
11-1 holds a license or certificate issued by an agency of this state
11-2 that authorizes the person to provide the services. The minimum
11-3 standards may require that each licensed or certified individual
11-4 complete an appropriate program of continuing education or
11-5 in-service training, as determined by board rule, on a schedule
11-6 determined by board rule.
11-7 (g) [(f)] Any individual otherwise qualified, who has been
11-8 employed by a licensed assisted living [personal care] facility for
11-9 at least 90 days, shall be eligible to be certified as a medication
11-10 aide following completion of the required course of study and
11-11 successful completion of any required examination.
11-12 (h) An individual may not serve as the administrator of an
11-13 assisted living facility that has 17 beds or more unless the
11-14 individual:
11-15 (1) has a bachelor's degree from a public or private
11-16 institution of higher education;
11-17 (2) has at least one year of experience working in the
11-18 health care industry; and
11-19 (3) has completed at least one educational course on
11-20 the management of assisted living facilities.
11-21 Sec. 247.0261. EARLY COMPLIANCE REVIEW. (a) The department
11-22 by rule shall adopt a procedure under which a person proposing to
11-23 construct or modify an assisted living facility may submit building
11-24 plans to the department for review for compliance with the
11-25 department's architectural requirements before beginning
11-26 construction or modification. In adopting the procedure, the
11-27 department shall set reasonable deadlines by which the department
12-1 must complete review of submitted plans.
12-2 (b) The department shall promptly review plans submitted
12-3 under this section for compliance with the department's
12-4 architectural requirements and inform the person of the results of
12-5 the review. If the plans comply with the department's
12-6 architectural requirements, the department may not subsequently
12-7 change the architectural requirements applicable to the project
12-8 unless:
12-9 (1) the change is required by federal law; or
12-10 (2) the person fails to complete the project within a
12-11 reasonable time.
12-12 (c) The department may charge a reasonable fee for
12-13 conducting a review under this section.
12-14 (d) A fee collected under this section shall be deposited in
12-15 the general revenue fund to the credit of the assisted living
12-16 account and shall be appropriated only to the department to conduct
12-17 reviews under this section.
12-18 Sec. 247.027. INSPECTIONS. In addition to the inspection
12-19 required under Section 247.023(a), the department may inspect an
12-20 assisted living [a personal care] facility at reasonable times as
12-21 necessary to assure compliance with this chapter.
12-22 Sec. 247.0271. INSPECTOR TRAINING. (a) The department
12-23 shall develop and implement a training program to provide
12-24 specialized training to department employees who inspect assisted
12-25 living facilities under this chapter. The training must emphasize
12-26 the distinction between an assisted living facility and an
12-27 institution licensed under Chapter 242.
13-1 (b) In developing and updating the training program required
13-2 by this section, the department shall consult with operators of
13-3 assisted living facilities and consumers of personal care services
13-4 provided by assisted living facilities or legal representatives of
13-5 those consumers.
13-6 Sec. 247.028. ASSISTANCE BY DEPARTMENT. The department may
13-7 provide assistance to an assisted living [a personal care]
13-8 facility, including the provision of training materials, the
13-9 coordination of training conferences and workshops with other state
13-10 agencies, and the development of a provider's handbook explaining
13-11 assisted living [personal care] facility rules.
13-12 Sec. 247.029. FACILITIES FOR PERSONS WITH ALZHEIMER'S
13-13 DISEASE. (a) The board by rule shall establish a classification
13-14 and license for a facility that advertises, markets, or otherwise
13-15 promotes that the facility provides personal care services to
13-16 residents who have Alzheimer's disease or related disorders. A
13-17 facility is not required to be classified under this section to
13-18 provide care or treatment to residents who have Alzheimer's disease
13-19 or related disorders.
13-20 (b) The board shall adopt minimum standards for an assisted
13-21 living [a personal care] facility classified under this section.
13-22 (c) An individual may not serve as the administrator of an
13-23 assisted living facility classified under this section or as the
13-24 supervisor of an assisted living facility unit classified under
13-25 this section unless the individual is at least 21 years of age and
13-26 has:
13-27 (1) a bachelor's degree from a public or private
14-1 institution of higher education in psychology, gerontology,
14-2 nursing, or a related field; or
14-3 (2) at least one year of experience working with
14-4 persons with dementia.
14-5 Sec. 247.030. FACILITIES FOR SUPERVISION OF MEDICATION AND
14-6 GENERAL WELFARE. (a) The board by rule shall establish a
14-7 classification and license for a facility that provides only
14-8 medication supervision and general supervision of residents'
14-9 welfare.
14-10 (b) The board shall adopt minimum standards for an assisted
14-11 living facility classified under this section. The board shall
14-12 modify standards generally applicable to a facility licensed under
14-13 this chapter as necessary for a facility classified under this
14-14 section to reflect the level of services provided by the facility.
14-15 Sec. 247.031 [247.029]. MUNICIPAL ENFORCEMENT. The
14-16 governing body of a municipality by ordinance may:
14-17 (1) prohibit a person who does not hold a license
14-18 issued under this chapter from establishing or operating an
14-19 assisted living [a personal care] facility within the municipality;
14-20 and
14-21 (2) establish a procedure for emergency closure of a
14-22 facility in circumstances in which:
14-23 (A) the facility is established or operating in
14-24 violation of Section 247.021; and
14-25 (B) the continued operation of the facility
14-26 creates an immediate threat to the health and safety of a resident
14-27 of the facility.
15-1 SUBCHAPTER C. GENERAL ENFORCEMENT
15-2 Sec. 247.041. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE.
15-3 (a) The department may deny, suspend, or revoke a license for a
15-4 violation of this chapter or a rule adopted under this chapter.
15-5 (b) The denial, suspension, or revocation of a license by
15-6 the department and the appeal from that action are governed by the
15-7 procedures for a contested case hearing under Chapter 2001,
15-8 Government Code.
15-9 Sec. 247.042. EMERGENCY SUSPENSION OR CLOSING ORDER.
15-10 (a) If the department finds an assisted living [a personal care]
15-11 facility operating in violation of the standards prescribed under
15-12 this chapter and the violations create an immediate threat to the
15-13 health and safety of a resident in the facility, the department
15-14 shall suspend the license or order immediate closing of all or part
15-15 of the facility.
15-16 (b) The order suspending a license under Subsection (a) is
15-17 effective immediately on written notice to the license holder or on
15-18 the date specified in the order.
15-19 (c) The order suspending the license and ordering closure of
15-20 all or part of an assisted living [a personal care] facility is
15-21 valid for 10 days after its effective date.
15-22 (d) The department shall provide for the relocation of
15-23 residents of an assisted living [a personal care] facility that is
15-24 closed. The relocation may not be to a facility with a more
15-25 restrictive environment unless all other reasonable alternatives
15-26 are exhausted. Relocation procedures shall be adopted as part of
15-27 the memorandum of understanding adopted under Section 247.062.
16-1 Sec. 247.043. INVESTIGATION OF ABUSE, EXPLOITATION, OR
16-2 NEGLECT. (a) The department shall conduct a preliminary
16-3 investigation of each allegation of abuse, exploitation, or neglect
16-4 of a resident of an assisted living [a personal care] facility to
16-5 determine if there is evidence to corroborate the allegation. If
16-6 the department determines that there is evidence to corroborate the
16-7 allegation, the department shall conduct a thorough investigation
16-8 of the allegation.
16-9 (b) If the thorough investigation reveals that abuse,
16-10 exploitation, or neglect has occurred, the department shall:
16-11 (1) implement enforcement measures, including closing
16-12 the facility, revoking the facility's license, relocating
16-13 residents, and making referrals to law enforcement agencies;
16-14 (2) notify the Department of Protective and Regulatory
16-15 Services of the results of the investigation;
16-16 (3) notify a health and human services agency, as
16-17 defined by Section 531.001, Government Code, that contracts with
16-18 the facility for the delivery of personal care services of the
16-19 results of the investigation; and
16-20 (4) provide to a contracting health and human services
16-21 agency access to the department's documents or records relating to
16-22 the investigation.
16-23 (c) Providing access to a confidential document or record
16-24 under Subsection (b)(4) does not constitute a waiver of
16-25 confidentiality.
16-26 Sec. 247.044. INJUNCTION. (a) The department may petition
16-27 a district court for a temporary restraining order to restrain a
17-1 continuing violation of the standards or licensing requirements
17-2 provided under this chapter if the department finds that:
17-3 (1) the violation creates an immediate threat to the
17-4 health and safety of the assisted living [personal care] facility
17-5 residents; or
17-6 (2) the facility is operating without a license.
17-7 (b) A district court, on petition of the department and on a
17-8 finding by the court that a person is violating the standards or
17-9 licensing requirements provided under this chapter, may by
17-10 injunction:
17-11 (1) prohibit a person from continuing a violation of
17-12 the standards or licensing requirements provided under this
17-13 chapter;
17-14 (2) restrain the establishment or operation of an
17-15 assisted living [a personal care] facility without a license issued
17-16 under this chapter; or
17-17 (3) grant any other injunctive relief warranted by the
17-18 facts.
17-19 (c) The department may petition a district court for a
17-20 temporary restraining order to inspect a facility allegedly
17-21 required to be licensed and operating without a license when
17-22 admission to the facility cannot be obtained. If it is shown that
17-23 admission to the facility cannot be obtained, the court shall order
17-24 the facility to allow the department admission to the facility.
17-25 (d) The attorney general or local prosecuting attorney may
17-26 institute and conduct a suit authorized by this section at the
17-27 request of the department.
18-1 (e) Venue for a suit brought under this section is in the
18-2 county in which the assisted living [personal care] facility is
18-3 located or in Travis County.
18-4 Sec. 247.045. CIVIL PENALTIES. (a) Except as provided by
18-5 Subsections [Subsection] (b) and (c), a person who violates this
18-6 chapter or who fails to comply with a rule adopted under this
18-7 chapter and whose violation is determined by the department to
18-8 threaten the health and safety of a resident of an assisted living
18-9 [a personal care] facility is subject to a civil penalty of not
18-10 less than $100 nor more than $10,000 for each act of violation.
18-11 Each day of a continuing violation constitutes a separate ground of
18-12 recovery.
18-13 (b) A person is subject to a civil penalty if the person:
18-14 (1) is in violation of Section 247.021; or
18-15 (2) has been determined to be in violation of Section
18-16 247.021 and violates any other provision of this chapter or fails
18-17 to comply with a rule adopted under this chapter.
18-18 [(b) A person who does not possess a license for a personal
18-19 care facility as required by Section 247.021 is subject to a civil
18-20 penalty of not less than $1,000 nor more than $10,000 for each act
18-21 of violation. Each day of a continuing violation constitutes a
18-22 separate ground for recovery.]
18-23 (c) The amount of a civil penalty under Subsection (b) may
18-24 not be less than $1,000 or more than $10,000 for each act of
18-25 violation. Each day of a continuing violation constitutes a
18-26 separate ground of recovery.
18-27 (d) The attorney general may institute and conduct a suit to
19-1 collect a penalty and fees under this section at the request of the
19-2 department. [(c)] If the attorney general fails to take action
19-3 within 30 days of referral from the department, the department
19-4 shall refer the case to the local district attorney, county
19-5 attorney, or city attorney. The district attorney, county
19-6 attorney, or city attorney shall file suit in a district court to
19-7 collect and retain the penalty.
19-8 (e) [(d)] Investigation and attorney's fees may not be
19-9 assessed or collected by or on behalf of the department or other
19-10 state agency unless the department or other state agency assesses
19-11 and collects a penalty described under this chapter.
19-12 (f) [(e)] The department and attorney general, or other
19-13 legal representative as described in Subsection (d) [(c)], shall
19-14 work in close cooperation throughout any legal proceedings
19-15 requested by the department.
19-16 (g) [(f)] The commissioner of human services must approve
19-17 any settlement agreement to a suit brought under this chapter.
19-18 Sec. 247.046. COOPERATION AMONG AGENCIES. The board, the
19-19 Department of Protective and Regulatory Services, and the attorney
19-20 general shall adopt by rule a memorandum of understanding that:
19-21 (1) defines each agency's responsibilities concerning
19-22 assisted living [personal care] facilities and coordinates each
19-23 agency's activities;
19-24 (2) details coordinated procedures to be used by each
19-25 agency in responding to complaints relating to neglect or abuse of
19-26 residents of facilities, to substandard facilities, and to
19-27 unlicensed facilities;
20-1 (3) identifies enforcement needs each agency may have
20-2 in order to perform its duties under the memorandum of
20-3 understanding, including any need for access to information or to
20-4 facilities under investigation or operating under a plan of
20-5 correction; and
20-6 (4) provides a plan for correcting violations in
20-7 substandard or unlicensed assisted living [personal care]
20-8 facilities that specifies the conditions under which it is
20-9 appropriate to impose such a plan and that outlines a schedule of
20-10 implementation for the plan.
20-11 Sec. 247.047 [247.046]. TRANSITION. The department shall
20-12 grant to a personal care facility licensed on or before December
20-13 31, 1990, under Chapter 242 a temporary permit to continue
20-14 operation until the department performs any inspection or
20-15 investigation required by this chapter.
20-16 Sec. 247.048. REGIONAL TRAINING FOR AGENCIES AND LOCAL
20-17 GOVERNMENTS. The department periodically shall conduct regional
20-18 training programs for representatives of local governments and
20-19 appropriate state agencies relating to assisted living facility
20-20 concerns. The training programs must provide to participants
20-21 information relating to the assisted living facility industry,
20-22 including information on:
20-23 (1) the general characteristics of assisted living
20-24 facilities and residents of those facilities;
20-25 (2) the different types of assisted living facilities;
20-26 (3) the laws applicable to assisted living facilities;
20-27 and
21-1 (4) the authority of the department and other entities
21-2 to enforce applicable laws.
21-3 SUBCHAPTER D. [ADVISORY COMMITTEE ON PERSONAL CARE
21-4 FACILITIES]
21-5 [Sec. 247.051. ADVISORY COMMITTEE. (a) The Advisory
21-6 Committee on Personal Care Facilities consists of nine members
21-7 appointed by the board. The commissioner of human services shall
21-8 appoint one staff member from the department to serve as a
21-9 nonvoting advisory member.]
21-10 [(b) The board shall appoint the advisory committee to
21-11 provide for a balanced representation of personal care providers
21-12 and consumers and shall appoint one member who has expertise in
21-13 life safety code regulations. At least one of the provider members
21-14 must be representative of a nonprofit facility, and at least one
21-15 member must be a family member of a resident of a facility.]
21-16 [(c) The committee shall elect the presiding officer from
21-17 among its members.]
21-18 [(d) The committee shall advise the department on standards
21-19 for licensing personal care facilities and on the implementation of
21-20 this chapter.]
21-21 [SUBCHAPTER E.] MISCELLANEOUS PROVISIONS
21-22 Sec. 247.061. PILOT PROGRAM: OFFICE OF ASSISTED LIVING
21-23 [PERSONAL CARE] FACILITY OMBUDSMAN. (a) The Texas Department on
21-24 Aging, under its office of long-term care ombudsman, shall
21-25 establish and operate a pilot program providing an assisted living
21-26 [a personal care] facility ombudsman in one or more counties.
21-27 (b) The department may operate the office directly or by
22-1 contract or memorandum of agreement with a public agency or other
22-2 appropriate private nonprofit organization, including an
22-3 organization for family members of persons with mental illness or
22-4 an advocacy group concerning mental health, disabilities, or senior
22-5 citizens.
22-6 (c) The pilot program shall recruit volunteers and citizen
22-7 organizations to participate in the ombudsman program.
22-8 (d) The office shall provide training to ombudsmen,
22-9 including training in mental illness and special needs of the
22-10 elderly or disabled.
22-11 (e) An ombudsman in the pilot program may not make
22-12 investigations.
22-13 (f) The Texas Department on Aging and the department shall
22-14 cooperate in developing guidelines for the pilot program.
22-15 Sec. 247.062. COORDINATION BETWEEN AGENCIES. (a) The
22-16 department and the attorney general shall adopt by rule a
22-17 memorandum of understanding that:
22-18 (1) defines each agency's responsibilities concerning
22-19 assisted living [personal care] facilities;
22-20 (2) outlines and coordinates procedures to be used by
22-21 those agencies in responding to complaints concerning assisted
22-22 living [personal care] facilities; and
22-23 (3) provides a plan for correcting violations or
22-24 deficiencies in assisted living [personal care] facilities.
22-25 (b) The department shall prepare the initial draft of the
22-26 memorandum of understanding and shall facilitate and ensure its
22-27 adoption.
23-1 Sec. 247.063. DIRECTORY OF ASSISTED LIVING [PERSONAL CARE]
23-2 FACILITIES; CONSUMERS' GUIDE. (a) The department shall prepare a
23-3 directory of assisted living [personal care] facilities that
23-4 includes the name of the owner, the address and telephone number of
23-5 the facility, the number of beds in the facility, and the
23-6 facility's accessibility to disabled persons.
23-7 (b) The department shall revise the directory annually and
23-8 shall make it available to the public.
23-9 (c) The department shall prepare a consumers' guide to
23-10 assisted living [personal care] facilities and make it available to
23-11 the public. The consumers' guide shall provide information on
23-12 licensing requirements for assisted living [personal care]
23-13 facilities, a brief description of minimum standards for
23-14 facilities, a copy of the residents' bill of rights, a copy of the
23-15 providers' bill of rights, and any other information that the
23-16 department determines may be useful to the public.
23-17 Sec. 247.064. REFERRALS. (a) If the Texas Department of
23-18 Mental Health and Mental Retardation or a local mental health or
23-19 mental retardation authority refers a patient or client to an
23-20 assisted living [a personal care] facility, the referral may not be
23-21 made to a [personal care] facility that is not licensed under this
23-22 chapter.
23-23 (b) If the Texas Department of Mental Health and Mental
23-24 Retardation or a local mental health or mental retardation
23-25 authority gains knowledge of an assisted living [a personal care]
23-26 facility that is not operated or licensed by the Texas Department
23-27 of Mental Health and Mental Retardation, the authority, or the
24-1 Texas Department of Human Services and that has three [four] or
24-2 more residents who are unrelated to the proprietor of the facility,
24-3 the Texas Department of Mental Health and Mental Retardation or the
24-4 authority shall report the name, address, and telephone number of
24-5 the facility to the Texas Department of Human Services.
24-6 Sec. 247.0641. ACCESS. An employee of the Texas Department
24-7 of Mental Health and Mental Retardation or an employee of a local
24-8 mental health and mental retardation authority may enter an
24-9 assisted living facility as necessary to provide services to a
24-10 resident of the facility.
24-11 Sec. 247.065. RESIDENTS' BILL OF RIGHTS. (a) Each assisted
24-12 living [personal care] facility shall post a residents' bill of
24-13 rights in a prominent place in the facility.
24-14 (b) The residents' bill of rights must provide that each
24-15 resident in the assisted living [personal care] facility has the
24-16 right to:
24-17 (1) manage the resident's financial affairs;
24-18 (2) determine the resident's dress, hair style, or
24-19 other personal effects according to individual preference, except
24-20 that the resident has the responsibility to maintain personal
24-21 hygiene;
24-22 (3) retain and use personal property in the resident's
24-23 immediate living quarters and to have an individual locked cabinet
24-24 in which to keep personal property;
24-25 (4) receive and send unopened mail;
24-26 (5) unaccompanied access to a telephone at a
24-27 reasonable hour or in case of an emergency or personal crisis;
25-1 (6) privacy;
25-2 (7) unrestricted communication, including personal
25-3 visitation with any person of the resident's choice, at any
25-4 reasonable hour, including family members and representatives of
25-5 advocacy groups and community service organizations;
25-6 (8) make contacts with the community and to achieve
25-7 the highest level of independence, autonomy, and interaction with
25-8 the community of which the resident is capable;
25-9 (9) present grievances on behalf of the resident or
25-10 others to the operator, state agencies, or other persons without
25-11 threat of reprisal in any manner;
25-12 (10) a safe and decent living environment and
25-13 considerate and respectful care that recognizes the dignity and
25-14 individuality of the resident;
25-15 (11) refuse to perform services for the facility,
25-16 except as contracted for by the resident and operator;
25-17 (12) practice the religion of the resident's choice;
25-18 (13) leave the facility temporarily or permanently,
25-19 subject to contractual or financial obligations; and
25-20 (14) not be deprived of any constitutional, civil, or
25-21 legal right solely by reason of residence in an assisted living [a
25-22 personal care] facility.
25-23 (c) The residents' bill of rights must be written in the
25-24 primary language of each resident of the facility and must also
25-25 provide the toll-free telephone number of the department for
25-26 reporting abuse or neglect.
25-27 (d) The rights provided under this section do not take
26-1 precedence over health and safety rights of other residents of the
26-2 facility.
26-3 (e) The department shall develop a residents' bill of rights
26-4 in accordance with this section and provide a copy to each
26-5 facility. The copy shall be written in the primary language of
26-6 each resident of the facility.
26-7 Sec. 247.066. PROVIDERS' BILL OF RIGHTS. (a) Each assisted
26-8 living [personal care] facility shall post a providers' bill of
26-9 rights in a prominent place in the facility.
26-10 (b) The providers' bill of rights must provide that a
26-11 provider of personal care services has the right to:
26-12 (1) be shown consideration and respect that recognizes
26-13 the dignity and individuality of the provider and assisted living
26-14 [personal care] facility;
26-15 (2) terminate a resident's contract for just cause
26-16 after a written 30-day notice;
26-17 (3) terminate a contract immediately, after notice to
26-18 the department, if the provider finds that a resident creates a
26-19 serious or immediate threat to the health, safety, or welfare of
26-20 other residents of the assisted living [personal care] facility;
26-21 (4) present grievances, file complaints, or provide
26-22 information to state agencies or other persons without threat of
26-23 reprisal or retaliation;
26-24 (5) refuse to perform services for the resident or the
26-25 resident's family other than those contracted for by the resident
26-26 and the provider;
26-27 (6) contract with the community to achieve the highest
27-1 level of independence, autonomy, interaction, and services to
27-2 residents;
27-3 (7) access to patient information concerning a client
27-4 referred to the facility, which must remain confidential as
27-5 provided by law;
27-6 (8) refuse a person referred to the facility if the
27-7 referral is inappropriate;
27-8 (9) maintain an environment free of weapons and drugs;
27-9 and
27-10 (10) be made aware of a resident's problems, including
27-11 self-abuse, violent behavior, alcoholism, or drug abuse.
27-12 Sec. 247.067. APPROPRIATE PLACEMENT DETERMINATION. (a) The
27-13 department may not require the removal and relocation of a resident
27-14 of an assisted living facility if the resident's presence in the
27-15 facility does not endanger other residents and the resident can
27-16 receive adequate care at the facility through services:
27-17 (1) provided by the facility; or
27-18 (2) obtained by the resident from other providers.
27-19 (b) In assessing whether a resident can receive adequate
27-20 care at a facility, the department shall consider all relevant
27-21 factors, including the placement preference of the resident and the
27-22 resident's family members or other representatives.
27-23
27-24 Sec. 247.068. HEALTH CARE PROFESSIONALS. (a) In this
27-25 section, "health care professional" means an individual licensed,
27-26 certified, or otherwise authorized to administer health care, for
27-27 profit or otherwise, in the ordinary course of business or
28-1 professional practice. The term includes a physician, registered
28-2 nurse, and physical therapist.
28-3 (b) A health care professional may provide services within
28-4 the professional's scope of practice to a resident of an assisted
28-5 living facility at the facility.
28-6 Sec. 247.069. RETALIATION PROHIBITED. (a) A person
28-7 licensed under this chapter may not retaliate against a person for
28-8 filing a complaint, presenting a grievance, or providing in good
28-9 faith information relating to personal care services provided by
28-10 the license holder.
28-11 (b) This section does not prohibit a license holder from
28-12 terminating an employee for a reason other than retaliation.
28-13 SECTION 2. AMENDMENT. Section 250.001(3), Health and Safety
28-14 Code, is amended to read as follows:
28-15 (3) "Facility" means:
28-16 (A) a nursing home, custodial care home, or
28-17 other institution licensed by the Texas Department of Human
28-18 Services under Chapter 242;
28-19 (B) an assisted living [a personal care]
28-20 facility licensed by the Texas Department of Human Services under
28-21 Chapter 247;
28-22 (C) a home health agency licensed [by the Texas
28-23 Department of Health] under Chapter 142;
28-24 (D) an adult day care facility [or adult day
28-25 health care facility] licensed by the Texas Department of Human
28-26 Services under Chapter 103, Human Resources Code;
28-27 (E) a facility for persons with mental
29-1 retardation licensed under Chapter 252 [or certified by the Texas
29-2 Department of Human Services];
29-3 (F) an unlicensed attendant care agency that
29-4 contracts with the Texas Department of Human Services;
29-5 (G) [an intermediate care facility for persons
29-6 with mental retardation that is certified by the Texas Department
29-7 of Human Services to participate in the Medicaid program under
29-8 Title XIX of the Social Security Act (42 U.S.C. Section 1396 et
29-9 seq.);]
29-10 [(H)] an adult foster care provider that
29-11 contracts with the Texas Department of Human Services; or
29-12 (H) [(I)] a facility that provides mental health
29-13 services and that is operated by or contracts with the Texas
29-14 Department of Mental Health and Mental Retardation.
29-15 SECTION 3. AMENDMENT. Section 36.002, Human Resources Code,
29-16 is amended to read as follows:
29-17 Sec. 36.002. UNLAWFUL ACTS. A person commits an unlawful
29-18 act if the person:
29-19 (1) knowingly or intentionally makes or causes to be
29-20 made a false statement or misrepresentation of a material fact:
29-21 (A) on an application for a contract, benefit,
29-22 or payment under the Medicaid program; or
29-23 (B) that is intended to be used to determine a
29-24 person's eligibility for a benefit or payment under the Medicaid
29-25 program;
29-26 (2) knowingly or intentionally conceals or fails to
29-27 disclose an event:
30-1 (A) that the person knows affects the initial or
30-2 continued right to a benefit or payment under the Medicaid program
30-3 of:
30-4 (i) the person; or
30-5 (ii) another person on whose behalf the
30-6 person has applied for a benefit or payment or is receiving a
30-7 benefit or payment; and
30-8 (B) to permit a person to receive a benefit or
30-9 payment that is not authorized or that is greater than the payment
30-10 or benefit that is authorized;
30-11 (3) knowingly or intentionally applies for and
30-12 receives a benefit or payment on behalf of another person under the
30-13 Medicaid program and converts any part of the benefit or payment to
30-14 a use other than for the benefit of the person on whose behalf it
30-15 was received;
30-16 (4) knowingly or intentionally makes, causes to be
30-17 made, induces, or seeks to induce the making of a false statement
30-18 or misrepresentation of material fact concerning:
30-19 (A) the conditions or operation of a facility in
30-20 order that the facility may qualify for certification or
30-21 recertification required by the Medicaid program, including
30-22 certification or recertification as:
30-23 (i) a hospital;
30-24 (ii) a nursing facility or skilled nursing
30-25 facility;
30-26 (iii) a hospice;
30-27 (iv) an intermediate care facility for the
31-1 mentally retarded;
31-2 (v) an assisted living [a personal care]
31-3 facility; or
31-4 (vi) a home health agency; or
31-5 (B) information required to be provided by a
31-6 federal or state law, rule, regulation, or provider agreement
31-7 pertaining to the Medicaid program;
31-8 (5) except as authorized under the Medicaid program,
31-9 knowingly or intentionally charges, solicits, accepts, or receives,
31-10 in addition to an amount paid under the Medicaid program, a gift,
31-11 money, a donation, or other consideration as a condition to the
31-12 provision of a service or continued service to a Medicaid recipient
31-13 if the cost of the service provided to the Medicaid recipient is
31-14 paid for, in whole or in part, under the Medicaid program;
31-15 (6) knowingly or intentionally presents or causes to
31-16 be presented a claim for payment under the Medicaid program for a
31-17 product provided or a service rendered by a person who:
31-18 (A) is not licensed to provide the product or
31-19 render the service, if a license is required; or
31-20 (B) is not licensed in the manner claimed;
31-21 (7) knowingly or intentionally makes a claim under the
31-22 Medicaid program for:
31-23 (A) a service or product that has not been
31-24 approved or acquiesced in by a treating physician or health care
31-25 practitioner;
31-26 (B) a service or product that is substantially
31-27 inadequate or inappropriate when compared to generally recognized
32-1 standards within the particular discipline or within the health
32-2 care industry; or
32-3 (C) a product that has been adulterated,
32-4 debased, mislabeled, or that is otherwise inappropriate;
32-5 (8) makes a claim under the Medicaid program and
32-6 knowingly or intentionally fails to indicate the type of license
32-7 and the identification number of the licensed health care provider
32-8 who actually provided the service;
32-9 (9) knowingly or intentionally enters into an
32-10 agreement, combination, or conspiracy to defraud the state by
32-11 obtaining or aiding another person in obtaining an unauthorized
32-12 payment or benefit from the Medicaid program or a fiscal agent; or
32-13 (10) is a managed care organization that contracts
32-14 with the Health and Human Services Commission or other state agency
32-15 to provide or arrange to provide health care benefits or services
32-16 to individuals eligible under the Medicaid program and knowingly or
32-17 intentionally:
32-18 (A) fails to provide to an individual a health
32-19 care benefit or service that the organization is required to
32-20 provide under the contract;
32-21 (B) fails to provide to the commission or
32-22 appropriate state agency information required to be provided by
32-23 law, commission or agency rule, or contractual provision;
32-24 (C) engages in a fraudulent activity in
32-25 connection with the enrollment of an individual eligible under the
32-26 Medicaid program in the organization's managed care plan or in
32-27 connection with marketing the organization's services to an
33-1 individual eligible under the Medicaid program; or
33-2 (D) obstructs an investigation by the attorney
33-3 general of an alleged unlawful act under this section.
33-4 SECTION 4. AMENDMENT. Section 123.004, Human Resources
33-5 Code, is amended to read as follows:
33-6 Sec. 123.004. QUALIFICATION AS COMMUNITY HOME. To qualify
33-7 as a community home, an entity must comply with Sections 123.005
33-8 through 123.008 and be:
33-9 (1) a community-based residential home operated by:
33-10 (A) the Texas Department of Mental Health and
33-11 Mental Retardation;
33-12 (B) a community center organized under
33-13 Subchapter A, Chapter 534, Health and Safety Code, that provides
33-14 services to persons with disabilities;
33-15 (C) an entity subject to the Texas Non-Profit
33-16 Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil
33-17 Statutes); or
33-18 (D) an entity certified by the Texas Department
33-19 of Human Services as a provider under the medical assistance
33-20 program serving persons in intermediate care facilities for persons
33-21 with mental retardation; or
33-22 (2) an assisted living [a personal care] facility
33-23 licensed under Chapter 247, Health and Safety Code, provided that
33-24 the exterior structure retains compatibility with the surrounding
33-25 residential dwellings.
33-26 SECTION 5. REFERENCE TO PERSONAL CARE FACILITY. A reference
33-27 in law to a personal care facility means an assisted living
34-1 facility, as defined by Section 247.002, Health and Safety Code, as
34-2 amended by this Act.
34-3 SECTION 6. ENFORCEMENT OF LICENSURE REQUIREMENT. (a) Not
34-4 later than January 1, 2000, the Texas Department of Human Services
34-5 shall:
34-6 (1) identify unlicensed facilities in this state that
34-7 are required to be licensed under Chapter 247, Health and Safety
34-8 Code, as amended by this Act; and
34-9 (2) take action to enforce the licensure requirements.
34-10 (b) Not later than December 1, 2000, the department shall
34-11 submit to the governor and the legislature a report describing the
34-12 results of the department's efforts under this section. The
34-13 report must include:
34-14 (1) the number of facilities identified;
34-15 (2) the geographical distribution of those facilities;
34-16 and
34-17 (3) the results of the department's efforts to enforce
34-18 licensure of those facilities.
34-19 (c) This section takes effect on the first date that it may
34-20 take effect under Section 39, Article III, Texas Constitution.
34-21 SECTION 7. WORK GROUP ON TEXAS ACCESSIBILITY STANDARDS. (a)
34-22 As soon as possible after the effective date of this section, the
34-23 Texas Department of Human Services and the Texas Department of
34-24 Licensing and Regulation shall form a joint work group to study and
34-25 make recommendations not later than September 1, 2000, to those
34-26 agencies concerning the application of the Texas Accessibility
34-27 Standards and other architectural requirements to facilities
35-1 required to be licensed under Chapter 247, Health and Safety Code.
35-2 (b) The work group shall:
35-3 (1) review bathroom accessibility standards applicable
35-4 to a facility and make suggestions regarding any necessary changes
35-5 to those standards;
35-6 (2) determine whether the architectural reviews of a
35-7 facility currently conducted separately by each agency could be
35-8 consolidated into a single review;
35-9 (3) develop standard information materials that
35-10 address architectural requirements applicable to construction or
35-11 modification of a facility; and
35-12 (4) address any other issue relating to architectural
35-13 standards applicable to a facility.
35-14 (c) The agencies shall include in the work group
35-15 representatives of developers and providers of facilities and
35-16 consumers of personal care services provided by facilities.
35-17 (d) The members of the work group shall elect a presiding
35-18 officer and any other necessary officers for the work group.
35-19 (e) The work group shall meet at the call of the presiding
35-20 officer.
35-21 (f) A member of the work group receives no compensation for
35-22 serving on the work group.
35-23 (g) The work group is not subject to Chapter 2110,
35-24 Government Code.
35-25 (h) The work group dissolves and this section expires
35-26 September 1, 2001.
35-27 (i) This section takes effect on the first date that it may
36-1 take effect under Section 39, Article III, Texas Constitution.
36-2 SECTION 8. COMMUNITY-BASED ALTERNATIVES PROGRAM RATE METHOD.
36-3 (a) As soon as possible after the effective date of this section,
36-4 the Texas Department of Human Services by rule shall develop and
36-5 implement a new reimbursement method for personal care services
36-6 funded through the community-based alternatives program that is
36-7 based on the type of service provided instead of the number of
36-8 clients occupying a room.
36-9 (b) This section takes effect on the first date that it may
36-10 take effect under Section 39, Article III, Texas Constitution.
36-11 SECTION 9. DEADLINE: CONSUMER DISCLOSURE STATEMENT. Not
36-12 later than January 1, 2000, the Texas Department of Human Services
36-13 shall adopt the consumer disclosure statement required by Section
36-14 247.026(b)(3)(B), Health and Safety Code, as added by this Act.
36-15 SECTION 10. LEGISLATIVE INTENT. Section 247.045(d), Health
36-16 and Safety Code, as amended by this Act, is intended to emphasize
36-17 the authority of the attorney general to institute and conduct a
36-18 suit to collect a penalty and fees. The amendment may not be
36-19 construed to mean that the attorney general lacked that authority
36-20 before the effective date of this Act.
36-21 SECTION 11. WAIVERS. If, before implementing any provision
36-22 of this Act, a state agency determines that a waiver or
36-23 authorization from a federal agency is necessary for implementation
36-24 of that provision, the agency affected by the provision shall
36-25 request the waiver or authorization and may delay implementing that
36-26 provision until the waiver or authorization is granted.
36-27 SECTION 12. CONFLICTS. To the extent of any conflict, this
37-1 Act prevails over another Act of the 76th Legislature, Regular
37-2 Session, 1999, relating to nonsubstantive additions to and
37-3 corrections in enacted codes.
37-4 SECTION 13. EFFECTIVE DATE. Except as otherwise provided by
37-5 this Act, this Act takes effect September 1, 1999.
37-6 SECTION 14. EMERGENCY. The importance of this legislation
37-7 and the crowded condition of the calendars in both houses create an
37-8 emergency and an imperative public necessity that the
37-9 constitutional rule requiring bills to be read on three several
37-10 days in each house be suspended, and this rule is hereby suspended,
37-11 and that this Act take effect and be in force according to its
37-12 terms, and it is so enacted.