By: Moncrief, et al. S.B. No. 93
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the regulation of assisted living facilities and
1-2 requiring disclosures by certain other facilities serving persons
1-3 who are elderly or disabled.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. AMENDMENT. Chapter 247, Health and Safety Code,
1-6 is amended to read as follows:
1-7 CHAPTER 247. ASSISTED LIVING [PERSONAL CARE] FACILITIES
1-8 SUBCHAPTER A. GENERAL PROVISIONS
1-9 Sec. 247.001. SHORT TITLE. This chapter may be cited as the
1-10 Assisted Living [Personal Care] Facility Licensing Act.
1-11 Sec. 247.0011. SCOPE, PURPOSE, AND IMPLEMENTATION. (a) The
1-12 purpose of this chapter is to ensure that assisted living
1-13 facilities in this state deliver the highest possible quality of
1-14 care. This chapter and the rules adopted under this chapter
1-15 establish minimum acceptable levels of care, and a violation of a
1-16 minimum acceptable level of care established under this chapter is
1-17 a violation of law. For purposes of this chapter, components of
1-18 quality of care include:
1-19 (1) resident independence and self-determination;
1-20 (2) humane treatment;
1-21 (3) conservative intervention;
1-22 (4) access to care;
1-23 (5) continuity of care;
1-24 (6) coordination of services;
2-1 (7) safe surroundings;
2-2 (8) professionalism of service providers;
2-3 (9) participation in useful studies; and
2-4 (10) quality of life.
2-5 (b) The department shall protect residents of assisted
2-6 living facilities by:
2-7 (1) adopting rules relating to quality of care and
2-8 quality of life;
2-9 (2) adopting rules relating to the assessment of the
2-10 condition and service needs of each resident;
2-11 (3) promoting policies that maximize the dignity,
2-12 autonomy, privacy, and independence of each resident;
2-13 (4) regulating the construction, maintenance, and
2-14 operation of assisted living facilities;
2-15 (5) strictly monitoring factors relating to the
2-16 health, safety, welfare, and dignity of each resident;
2-17 (6) imposing prompt and effective remedies for
2-18 violations of this chapter and rules and standards adopted under
2-19 this chapter;
2-20 (7) providing a residential environment that allows
2-21 residents to maintain the highest possible degree of independence
2-22 and self-determination; and
2-23 (8) providing the public with helpful and
2-24 understandable information relating to the operation of assisted
2-25 living facilities in this state.
2-26 (c) Assisted living services are driven by a service
3-1 philosophy that emphasizes personal dignity, autonomy,
3-2 independence, and privacy. Assisted living services should enhance
3-3 a person's ability to age in place in a residential setting while
3-4 receiving increasing or decreasing levels of service as the
3-5 person's needs change.
3-6 Sec. 247.002. DEFINITIONS. In this chapter:
3-7 (1) "Assisted living facility" means an establishment
3-8 that:
3-9 (A) furnishes, in one or more facilities, food
3-10 and shelter to four or more persons who are unrelated to the
3-11 proprietor of the establishment; and
3-12 (B) provides personal care services.
3-13 (2) "Board" means the Texas Board of Human Services.
3-14 (3) "Controlling person" means a person who controls
3-15 an assisted living facility or other person as described by Section
3-16 247.005.
3-17 (4) [(2)] "Department" means the Texas Department of
3-18 Human Services.
3-19 (5) [(3) "Personal care facility" means an
3-20 establishment, including a board and care home, that:]
3-21 [(A) furnishes, in one or more facilities, food
3-22 and shelter to four or more persons who are unrelated to the
3-23 proprietor of the establishment; and]
3-24 [(B) provides personal care services.]
3-25 [(4)] "Personal care services" means:
3-26 (A) assistance with meals, dressing, movement,
4-1 bathing, or other personal needs or maintenance;
4-2 (B) the administration of medication by a person
4-3 licensed to administer medication or the assistance with or
4-4 supervision of medication; or
4-5 (C) general supervision or oversight of the
4-6 physical and mental well-being of a person who needs assistance to
4-7 maintain a private and independent residence in an assisted living
4-8 [a personal care] facility or who needs assistance to manage the
4-9 person's personal life, regardless of whether a guardian has been
4-10 appointed for the person.
4-11 (6) [(5)] "Qualified religious society" means a
4-12 church, synagogue, or other organization or association that is
4-13 organized primarily for religious purposes and that:
4-14 (A) has been in existence in this state for at
4-15 least 35 years; and
4-16 (B) does not distribute any of its income to its
4-17 members, officers, or governing body other than as reasonable
4-18 compensation for services or reimbursement of expenses.
4-19 Sec. 247.003. APPLICATION OF OTHER LAW. (a) Except as
4-20 provided by Subsection (b), Chapter 242 does not apply to an
4-21 assisted living [a personal care] facility licensed under this
4-22 chapter.
4-23 (b) Subchapter D, Chapter 242, applies to an assisted living
4-24 [a personal care] facility, and the department shall administer and
4-25 enforce that subchapter for an assisted living [a personal care]
4-26 facility in the same manner it is administered and enforced for a
5-1 nursing home.
5-2 Sec. 247.004. EXEMPTIONS. This chapter does not apply to:
5-3 (1) a boarding facility that has rooms for rent and
5-4 that may offer community meals, light housework, meal preparation,
5-5 transportation, grocery shopping, money management, or laundry
5-6 services but that does not provide personal care services;
5-7 (2) an establishment conducted by or for the adherents
5-8 of the Church of Christ, Scientist, for the purpose of providing
5-9 facilities for the care or treatment of the sick who depend
5-10 exclusively on prayer or spiritual means for healing without the
5-11 use of any drug or material remedy if the establishment complies
5-12 with local safety, sanitary, and quarantine ordinances and
5-13 regulations; [or]
5-14 (3) a facility conducted by or for the adherents of a
5-15 qualified religious society classified as a tax-exempt organization
5-16 under an Internal Revenue Service group exemption ruling for the
5-17 purpose of providing personal care services without charge solely
5-18 for the society's professed members or ministers in retirement, if
5-19 the facility complies with local safety, sanitation, and quarantine
5-20 ordinances and regulations; or
5-21 (4) a facility that provides personal care services
5-22 only to persons enrolled in a program that is funded in whole or in
5-23 part by the Texas Department of Mental Health and Mental
5-24 Retardation and that is monitored by the Texas Department of Mental
5-25 Health and Mental Retardation or its designated local authority in
5-26 accordance with standards set by the Texas Department of Mental
6-1 Health and Mental Retardation.
6-2 Sec. 247.005. CONTROLLING PERSON. (a) A person is a
6-3 controlling person if the person, acting alone or with others, has
6-4 the ability to directly or indirectly influence, direct, or cause
6-5 the direction of the management, expenditure of money, or policies
6-6 of an assisted living facility or other person.
6-7 (b) For purposes of this chapter, "controlling person"
6-8 includes:
6-9 (1) a management company, landlord, or other business
6-10 entity that operates or contracts with others for the operation of
6-11 an assisted living facility;
6-12 (2) a person who is a controlling person of a
6-13 management company or other business entity that operates an
6-14 assisted living facility or that contracts with another person for
6-15 the operation of an assisted living facility; and
6-16 (3) any other individual who, because of a personal,
6-17 familial, or other relationship with the owner, manager, landlord,
6-18 tenant, or provider of an assisted living facility, is in a
6-19 position of actual control or authority with respect to the
6-20 facility, without regard to whether the individual is formally
6-21 named as an owner, manager, director, officer, provider,
6-22 consultant, contractor, or employee of the facility.
6-23 (c) A controlling person described by Subsection (b)(3) does
6-24 not include an employee, lender, secured creditor, landlord, or
6-25 other person who does not exercise formal or actual influence or
6-26 control over the operation of an assisted living facility.
7-1 (d) The department may adopt rules that specify the
7-2 ownership interests and other relationships that qualify a person
7-3 as a controlling person.
7-4 SUBCHAPTER B. LICENSING, FEES, AND INSPECTIONS
7-5 Sec. 247.021. LICENSE REQUIRED. (a) A person may not
7-6 establish or operate an assisted living [a personal care] facility
7-7 without a license issued under this chapter.
7-8 (b) A person establishing or operating a facility that is
7-9 not required to be licensed under this chapter may not use the term
7-10 "assisted living" in referring to the facility or the services
7-11 provided at the facility.
7-12 (c) A person establishing or operating a facility that is
7-13 not required to be licensed but who elects to obtain a license
7-14 under this chapter may use the term "assisted living" in referring
7-15 to the facility or the services provided at the facility.
7-16 (d) The department by rule shall establish procedures to
7-17 issue a six-month provisional license to existing facilities with
7-18 residents. The department may issue a provisional license only if:
7-19 (1) the facility is in compliance with resident care
7-20 standards;
7-21 (2) the facility voluntarily discloses that the
7-22 facility needs additional time to comply with life safety code and
7-23 physical plant standards;
7-24 (3) the disclosure is made in writing by certified
7-25 mail to the department;
7-26 (4) an investigation of the violation was not
8-1 initiated and the violation was not independently detected by the
8-2 department; and
8-3 (5) the disclosure is made promptly after knowledge of
8-4 the information disclosed is obtained by the facility.
8-5 (e) [(c)] If, at the end of the six-month provisional
8-6 license period, the facility does not meet life safety code and
8-7 physical plant standards, the department may not issue a license to
8-8 the facility.
8-9 Sec. 247.022. LICENSE APPLICATION. (a) An applicant for an
8-10 assisted living [a personal care] facility license must submit an
8-11 application to the department on a form prescribed by the
8-12 department.
8-13 (b) Each application must be accompanied by a nonrefundable
8-14 license fee in an amount set by the board.
8-15 (c) The department may provide technical assistance to an
8-16 applicant by making brief inspections of the assisted living
8-17 [personal care] facility proposed to be licensed and making
8-18 recommendations concerning actions necessary to meet standards for
8-19 assisted living [personal care] facilities.
8-20 Sec. 247.023. ISSUANCE AND RENEWAL OF LICENSE. (a) The
8-21 department shall issue a license if, after inspection and
8-22 investigation, it finds that the applicant, [and] the assisted
8-23 living [personal care] facility, and all controlling persons with
8-24 respect to the applicant or facility meet the requirements of this
8-25 chapter and the standards adopted under this chapter.
8-26 (b) To renew a license, the license holder must submit to
9-1 the department the annual license renewal fee.
9-2 (c) The board may require participation in a continuing
9-3 education program as a condition of renewal of a license. The
9-4 board shall adopt rules to implement this subsection.
9-5 Sec. 247.0231. COMPLIANCE RECORD IN OTHER STATES. The
9-6 department may require an applicant or license holder to provide
9-7 the department with information relating to compliance by the
9-8 applicant, the license holder, or a controlling person with respect
9-9 to the applicant or license holder with regulatory requirements in
9-10 another state in which the applicant, license holder, or
9-11 controlling person operates or operated an assisted living
9-12 facility.
9-13 Sec. 247.024. FEES; DISPOSITION OF REVENUE. (a) The board
9-14 shall set license fees imposed by this chapter:
9-15 (1) on the basis of the number of beds in assisted
9-16 living facilities required to pay the fee; and
9-17 (2) in amounts reasonable and necessary to defray the
9-18 cost of administering this chapter, but not to exceed $750[:]
9-19 [(1) $300 for a personal care facility that has not
9-20 more than 10 beds;]
9-21 [(2) $350 for a personal care facility that has not
9-22 less than 11 or more than 20 beds; and]
9-23 [(3) $400 for a personal care facility that has 21 or
9-24 more beds].
9-25 (b) The board shall establish by rule a base fee schedule
9-26 and a per bed fee schedule.
10-1 (c) All fees or penalties collected under this chapter shall
10-2 be deposited in the state treasury to the credit of the general
10-3 revenue fund and shall be appropriated to the department only to
10-4 administer and enforce this chapter.
10-5 (d) [(c)] Investigation fees or attorney's fees may not be
10-6 assessed against or collected from an assisted living [a personal
10-7 care] facility by or on behalf of the department or another state
10-8 agency unless the department or other state agency assesses and
10-9 collects a penalty authorized by this chapter from the facility.
10-10 Sec. 247.025. ADOPTION OF RULES. The board shall adopt
10-11 rules necessary to implement this chapter, including requirements
10-12 for the issuance, renewal, denial, suspension, and revocation of a
10-13 license to operate an assisted living [a personal care] facility.
10-14 Sec. 247.026. STANDARDS. (a) The board by rule shall
10-15 prescribe minimum standards to protect the health and safety of an
10-16 assisted living [a personal care] facility resident.
10-17 (b) The standards must:
10-18 (1) clearly differentiate an assisted living [a
10-19 personal care] facility from an institution required to be licensed
10-20 under Chapter 242;
10-21 (2) ensure quality care and protection of the
10-22 residents' health and safety without excessive cost; and
10-23 (3) require an assisted living [a personal care]
10-24 facility to:
10-25 (A) indicate [use its license number] in all
10-26 advertisements, solicitations, and promotional materials that the
11-1 facility is licensed by the department or that an application for a
11-2 license is pending before the department; and
11-3 (B) provide each prospective resident or
11-4 prospective resident's representative, as appropriate, with a
11-5 consumer disclosure statement in a standard form adopted by the
11-6 department.
11-7 (c) The board shall require an assisted living facility that
11-8 provides brain injury rehabilitation services to include in the
11-9 facility's consumer disclosure statement a specific statement that
11-10 licensure as an assisted living facility does not indicate state
11-11 review, approval, or endorsement of the facility's rehabilitation
11-12 services.
11-13 (d) The board may prescribe different levels of minimum
11-14 standards for assisted living [personal care] facilities according
11-15 to the number of residents, the type of residents, the level of
11-16 personal care provided, and other distinctions the board considers
11-17 relevant.
11-18 (e) [(d)] Local health and safety standards adopted by the
11-19 municipality in which an assisted living [a personal care] facility
11-20 is located do not apply to the facility unless the standards
11-21 specifically state that they apply to assisted living [personal
11-22 care] facilities.
11-23 (f) [(e)] The board by rule shall prescribe minimum
11-24 standards requiring appropriate training in geriatric care for each
11-25 individual who provides services to geriatric residents as an
11-26 employee of an assisted living [a personal care] facility and who
12-1 holds a license or certificate issued by an agency of this state
12-2 that authorizes the person to provide the services. The minimum
12-3 standards may require that each licensed or certified individual
12-4 complete an appropriate program of continuing education or
12-5 in-service training, as determined by board rule, on a schedule
12-6 determined by board rule.
12-7 (g) [(f)] Any individual otherwise qualified, who has been
12-8 employed by a licensed assisted living [personal care] facility for
12-9 at least 90 days, shall be eligible to be certified as a medication
12-10 aide following completion of the required course of study and
12-11 successful completion of any required examination.
12-12 (h) An individual may not serve as the manager of an
12-13 assisted living facility that has 17 beds or more unless the
12-14 individual:
12-15 (1) has an associate's degree in nursing, health care
12-16 management, or a related field from a public or private institution
12-17 of higher education;
12-18 (2) has a bachelor's degree from a public or private
12-19 institution of higher education; or
12-20 (3) has at least one year of experience working in
12-21 management or in the health care industry.
12-22 (i) The board by rule shall require each manager of an
12-23 assisted living facility that has 17 beds or more to complete at
12-24 least one educational course on the management of assisted living
12-25 facilities not later than the first anniversary of the date the
12-26 manager begins employment in that capacity.
13-1 Sec. 247.0261. EARLY COMPLIANCE REVIEW. (a) The department
13-2 by rule shall adopt a procedure under which a person proposing to
13-3 construct or modify an assisted living facility may submit building
13-4 plans to the department for review for compliance with the
13-5 department's architectural requirements before beginning
13-6 construction or modification. In adopting the procedure, the
13-7 department shall set reasonable deadlines by which the department
13-8 must complete review of submitted plans.
13-9 (b) The department shall, within 30 days, review plans
13-10 submitted under this section for compliance with the department's
13-11 architectural requirements and inform the person of the results of
13-12 the review. If the plans comply with the department's
13-13 architectural requirements, the department may not subsequently
13-14 change the architectural requirements applicable to the project
13-15 unless:
13-16 (1) the change is required by federal law; or
13-17 (2) the person fails to complete the project within a
13-18 reasonable time.
13-19 (c) The department may charge a reasonable fee for
13-20 conducting a review under this section.
13-21 (d) A fee collected under this section shall be deposited in
13-22 the general revenue fund to the credit of the assisted living
13-23 account and shall be appropriated only to the department to conduct
13-24 reviews under this section.
13-25 (e) The review procedure provided by this section does not
13-26 include review of building plans for compliance with the Texas
14-1 Accessibility Standards as administered and enforced by the Texas
14-2 Department of Licensing and Regulation.
14-3 Sec. 247.027. INSPECTIONS. In addition to the inspection
14-4 required under Section 247.023(a), the department may inspect an
14-5 assisted living [a personal care] facility annually and may inspect
14-6 a facility at other reasonable times as necessary to assure
14-7 compliance with this chapter.
14-8 Sec. 247.0271. INSPECTOR TRAINING. (a) The department
14-9 shall develop and implement a training program to provide
14-10 specialized training to department employees who inspect assisted
14-11 living facilities under this chapter. The training must emphasize
14-12 the distinction between an assisted living facility and an
14-13 institution licensed under Chapter 242.
14-14 (b) In developing and updating the training program required
14-15 by this section, the department shall consult with operators of
14-16 assisted living facilities and consumers of personal care services
14-17 provided by assisted living facilities or legal representatives of
14-18 those consumers.
14-19 Sec. 247.028. ASSISTANCE BY DEPARTMENT. The department may
14-20 provide assistance to an assisted living [a personal care]
14-21 facility, including the provision of training materials, the
14-22 coordination of training conferences and workshops with other state
14-23 agencies, and the development of a provider's handbook explaining
14-24 assisted living [personal care] facility rules.
14-25 Sec. 247.029. FACILITIES FOR PERSONS WITH ALZHEIMER'S
14-26 DISEASE. (a) The board by rule shall establish a classification
15-1 and license for a facility that advertises, markets, or otherwise
15-2 promotes that the facility provides personal care services to
15-3 residents who have Alzheimer's disease or related disorders. A
15-4 facility is not required to be classified under this section to
15-5 provide care or treatment to residents who have Alzheimer's disease
15-6 or related disorders.
15-7 (b) The board shall adopt minimum standards for an assisted
15-8 living [a personal care] facility classified under this section.
15-9 (c) An individual may not serve as the manager of an
15-10 assisted living facility classified under this section or as the
15-11 supervisor of an assisted living facility unit classified under
15-12 this section unless the individual is at least 21 years of age and
15-13 has:
15-14 (1) an associate's degree from a public or private
15-15 institution of higher education in nursing, health care management,
15-16 or a related field;
15-17 (2) a bachelor's degree from a public or private
15-18 institution of higher education in psychology, gerontology,
15-19 nursing, or a related field; or
15-20 (3) at least one year of experience working with
15-21 persons with dementia.
15-22 Sec. 247.030. FACILITIES FOR SUPERVISION OF MEDICATION AND
15-23 GENERAL WELFARE. (a) The board by rule shall establish a
15-24 classification and license for a facility that:
15-25 (1) provides only medication supervision, in
15-26 accordance with Section 247.002(5)(B), and general supervision of
16-1 residents' welfare, in accordance with Section 247.002(5)(C); and
16-2 (2) does not provide substantial assistance with the
16-3 activities of daily living, as described by Section 247.002(5)(A).
16-4 (b) The board shall adopt minimum standards for an assisted
16-5 living facility classified under this section, including standards
16-6 imposing adequate requirements relating to medication supervision.
16-7 The board shall modify accessibility and life safety code standards
16-8 generally applicable to a facility licensed under this chapter as
16-9 necessary for a facility classified under this section to reflect
16-10 the level of services provided by the facility. The modified
16-11 standards must be specifically defined by the board.
16-12 (c) Except as provided by this section, an assisted living
16-13 facility classified under this section is required to comply with
16-14 all requirements imposed by this chapter.
16-15 Sec. 247.031 [247.029]. MUNICIPAL ENFORCEMENT. The
16-16 governing body of a municipality by ordinance may:
16-17 (1) prohibit a person who does not hold a license
16-18 issued under this chapter from establishing or operating an
16-19 assisted living [a personal care] facility within the municipality;
16-20 and
16-21 (2) establish a procedure for emergency closure of a
16-22 facility in circumstances in which:
16-23 (A) the facility is established or operating in
16-24 violation of Section 247.021; and
16-25 (B) the continued operation of the facility
16-26 creates an immediate threat to the health and safety of a resident
17-1 of the facility.
17-2 SUBCHAPTER C. GENERAL ENFORCEMENT
17-3 Sec. 247.041. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE.
17-4 (a) The department may deny, suspend, or revoke a license for a
17-5 violation of this chapter or a rule adopted under this chapter.
17-6 (b) The denial, suspension, or revocation of a license by
17-7 the department and the appeal from that action are governed by the
17-8 procedures for a contested case hearing under Chapter 2001,
17-9 Government Code.
17-10 Sec. 247.042. EMERGENCY SUSPENSION OR CLOSING ORDER.
17-11 (a) If the department finds an assisted living [a personal care]
17-12 facility operating in violation of the standards prescribed under
17-13 this chapter and the violations create an immediate threat to the
17-14 health and safety of a resident in the facility, the department
17-15 shall suspend the license or order immediate closing of all or part
17-16 of the facility.
17-17 (b) The order suspending a license under Subsection (a) is
17-18 effective immediately on written notice to the license holder or on
17-19 the date specified in the order.
17-20 (c) The order suspending the license and ordering closure of
17-21 all or part of an assisted living [a personal care] facility is
17-22 valid for 10 days after its effective date.
17-23 (d) The department shall provide for the relocation of
17-24 residents of an assisted living [a personal care] facility that is
17-25 closed. The relocation may not be to a facility with a more
17-26 restrictive environment unless all other reasonable alternatives
18-1 are exhausted. Relocation procedures shall be adopted as part of
18-2 the memorandum of understanding adopted under Section 247.061
18-3 [247.062].
18-4 Sec. 247.043. INVESTIGATION OF ABUSE, EXPLOITATION, OR
18-5 NEGLECT. (a) The department shall conduct a preliminary
18-6 investigation of each allegation of abuse, exploitation, or neglect
18-7 of a resident of an assisted living [a personal care] facility to
18-8 determine if there is evidence to corroborate the allegation. If
18-9 the department determines that there is evidence to corroborate the
18-10 allegation, the department shall conduct a thorough investigation
18-11 of the allegation.
18-12 (b) If the thorough investigation reveals that abuse,
18-13 exploitation, or neglect has occurred, the department shall:
18-14 (1) implement enforcement measures, including closing
18-15 the facility, revoking the facility's license, relocating
18-16 residents, and making referrals to law enforcement agencies;
18-17 (2) notify the Department of Protective and Regulatory
18-18 Services of the results of the investigation;
18-19 (3) notify a health and human services agency, as
18-20 defined by Section 531.001, Government Code, that contracts with
18-21 the facility for the delivery of personal care services of the
18-22 results of the investigation; and
18-23 (4) provide to a contracting health and human services
18-24 agency access to the department's documents or records relating to
18-25 the investigation.
18-26 (c) Providing access to a confidential document or record
19-1 under Subsection (b)(4) does not constitute a waiver of
19-2 confidentiality.
19-3 Sec. 247.044. INJUNCTION. (a) The department may petition
19-4 a district court for a temporary restraining order to restrain a
19-5 continuing violation of the standards or licensing requirements
19-6 provided under this chapter if the department finds that:
19-7 (1) the violation creates an immediate threat to the
19-8 health and safety of the assisted living [personal care] facility
19-9 residents; or
19-10 (2) the facility is operating without a license.
19-11 (b) A district court, on petition of the department and on a
19-12 finding by the court that a person is violating the standards or
19-13 licensing requirements provided under this chapter, may by
19-14 injunction:
19-15 (1) prohibit a person from continuing a violation of
19-16 the standards or licensing requirements provided under this
19-17 chapter;
19-18 (2) restrain the establishment or operation of an
19-19 assisted living [a personal care] facility without a license issued
19-20 under this chapter; or
19-21 (3) grant any other injunctive relief warranted by the
19-22 facts.
19-23 (c) The department may petition a district court for a
19-24 temporary restraining order to inspect a facility allegedly
19-25 required to be licensed and operating without a license when
19-26 admission to the facility cannot be obtained. If it is shown that
20-1 admission to the facility cannot be obtained, the court shall order
20-2 the facility to allow the department admission to the facility.
20-3 (d) The attorney general or local prosecuting attorney may
20-4 institute and conduct a suit authorized by this section at the
20-5 request of the department.
20-6 (e) Venue for a suit brought under this section is in the
20-7 county in which the assisted living [personal care] facility is
20-8 located or in Travis County.
20-9 Sec. 247.045. CIVIL PENALTIES. (a) Except as provided by
20-10 Subsections [Subsection] (b) and (c), a person who violates this
20-11 chapter or who fails to comply with a rule adopted under this
20-12 chapter and whose violation is determined by the department to
20-13 threaten the health and safety of a resident of an assisted living
20-14 [a personal care] facility is subject to a civil penalty of not
20-15 less than $100 nor more than $10,000 for each act of violation.
20-16 Each day of a continuing violation constitutes a separate ground of
20-17 recovery.
20-18 (b) A person is subject to a civil penalty if the person:
20-19 (1) is in violation of Section 247.021; or
20-20 (2) has been determined to be in violation of Section
20-21 247.021 and violates any other provision of this chapter or fails
20-22 to comply with a rule adopted under this chapter.
20-23 [(b) A person who does not possess a license for a personal
20-24 care facility as required by Section 247.021 is subject to a civil
20-25 penalty of not less than $1,000 nor more than $10,000 for each act
20-26 of violation. Each day of a continuing violation constitutes a
21-1 separate ground for recovery.]
21-2 (c) The amount of a civil penalty under Subsection (b) may
21-3 not be less than $1,000 or more than $10,000 for each act of
21-4 violation. Each day of a continuing violation constitutes a
21-5 separate ground of recovery.
21-6 (d) The attorney general may institute and conduct a suit to
21-7 collect a penalty and fees under this section at the request of the
21-8 department. [(c)] If the attorney general fails to take action
21-9 within 30 days of referral from the department, the department
21-10 shall refer the case to the local district attorney, county
21-11 attorney, or city attorney. The district attorney, county
21-12 attorney, or city attorney shall file suit in a district court to
21-13 collect and retain the penalty.
21-14 (e) [(d)] Investigation and attorney's fees may not be
21-15 assessed or collected by or on behalf of the department or other
21-16 state agency unless the department or other state agency assesses
21-17 and collects a penalty described under this chapter.
21-18 (f) [(e)] The department and attorney general, or other
21-19 legal representative as described in Subsection (d) [(c)], shall
21-20 work in close cooperation throughout any legal proceedings
21-21 requested by the department.
21-22 (g) [(f)] The commissioner of human services must approve
21-23 any settlement agreement to a suit brought under this chapter.
21-24 Sec. 247.046. COOPERATION AMONG AGENCIES. The board, the
21-25 Department of Protective and Regulatory Services, and the attorney
21-26 general shall adopt by rule a memorandum of understanding that:
22-1 (1) defines each agency's responsibilities concerning
22-2 assisted living [personal care] facilities and coordinates each
22-3 agency's activities;
22-4 (2) details coordinated procedures to be used by each
22-5 agency in responding to complaints relating to neglect or abuse of
22-6 residents of facilities, to substandard facilities, and to
22-7 unlicensed facilities;
22-8 (3) identifies enforcement needs each agency may have
22-9 in order to perform its duties under the memorandum of
22-10 understanding, including any need for access to information or to
22-11 facilities under investigation or operating under a plan of
22-12 correction; and
22-13 (4) provides a plan for correcting violations in
22-14 substandard or unlicensed assisted living [personal care]
22-15 facilities that specifies the conditions under which it is
22-16 appropriate to impose such a plan and that outlines a schedule of
22-17 implementation for the plan.
22-18 Sec. 247.047 [247.046]. TRANSITION. The department shall
22-19 grant to a personal care facility licensed on or before December
22-20 31, 1990, under Chapter 242 a temporary permit to continue
22-21 operation until the department performs any inspection or
22-22 investigation required by this chapter.
22-23 Sec. 247.048. REGIONAL TRAINING FOR AGENCIES AND LOCAL
22-24 GOVERNMENTS. The department periodically shall conduct regional
22-25 training programs for representatives of local governments and
22-26 appropriate state agencies relating to assisted living facility
23-1 concerns. The training programs must provide to participants
23-2 information relating to the assisted living facility industry,
23-3 including information on:
23-4 (1) the general characteristics of assisted living
23-5 facilities and residents of those facilities;
23-6 (2) the different types of assisted living facilities;
23-7 (3) the laws applicable to assisted living facilities;
23-8 and
23-9 (4) the authority of the department and other entities
23-10 to enforce applicable laws.
23-11 Sec. 247.049. USE OF REGULATORY REPORTS AND DOCUMENTS.
23-12 (a) Except as otherwise provided by this section, a report or
23-13 other document prepared by the department that relates to
23-14 regulation of an assisted living facility is not admissible as
23-15 evidence in a civil action to prove that the facility violated a
23-16 standard prescribed under this chapter.
23-17 (b) Subsection (a) does not:
23-18 (1) apply to the admissibility as evidence of
23-19 department reports or other documents in an enforcement action in
23-20 which the state or an agency or political subdivision of the state
23-21 is a party, including:
23-22 (A) an action seeking injunctive relief under
23-23 Section 247.044;
23-24 (B) an action seeking imposition of a civil
23-25 penalty under Section 247.045; and
23-26 (C) a contested case hearing involving denial,
24-1 suspension, or revocation of a license issued under this chapter;
24-2 (2) apply to the admissibility as evidence of
24-3 department reports or other documents that are offered:
24-4 (A) to establish warning or notice to an
24-5 assisted living facility of a relevant department determination; or
24-6 (B) under any rule or evidentiary predicate of
24-7 the Texas Rules of Evidence;
24-8 (3) prohibit or limit the testimony of a department
24-9 employee, in accordance with the Texas Rules of Evidence, as to
24-10 observations, factual findings, conclusions, or determinations that
24-11 an assisted living facility violated a standard prescribed under
24-12 this chapter if the observations, factual findings, conclusions, or
24-13 determinations were made in the discharge of the employee's
24-14 official duties for the department; or
24-15 (4) prohibit or limit the use of department reports or
24-16 other documents in depositions or other forms of discovery
24-17 conducted in connection with a civil action if use of the reports
24-18 or other documents appears reasonably calculated to lead to the
24-19 discovery of admissible evidence.
24-20 SUBCHAPTER D. ADVISORY COMMITTEE ON ASSISTED LIVING
24-21 [PERSONAL CARE] FACILITIES
24-22 Sec. 247.051. ADVISORY COMMITTEE. (a) The Advisory
24-23 Committee on Assisted Living [Personal Care] Facilities consists of
24-24 nine members appointed by the board. The commissioner of human
24-25 services shall appoint two [one] staff members [member] from the
24-26 department to serve as [a] nonvoting advisory members [member]. In
25-1 appointing staff members under this subsection, the commissioner
25-2 shall appoint one member as a representative of long-term care
25-3 policy and one member as a representative of long-term care
25-4 regulation.
25-5 (b) The board shall appoint the advisory committee to
25-6 provide for a balanced representation of personal care providers
25-7 and consumers and shall appoint one member who has expertise in
25-8 life safety code regulations. At least one of the provider members
25-9 must be representative of a nonprofit facility, and at least one
25-10 member must be a family member of a resident of a facility.
25-11 (c) The committee shall elect the presiding officer from
25-12 among its members.
25-13 (d) The committee shall advise the department on standards
25-14 for licensing assisted living [personal care] facilities and on the
25-15 implementation of this chapter.
25-16 SUBCHAPTER E. MISCELLANEOUS PROVISIONS
25-17 Sec. 247.061. [PILOT PROGRAM: OFFICE OF PERSONAL CARE
25-18 FACILITY OMBUDSMAN. (a) The Texas Department on Aging, under its
25-19 office of long-term care ombudsman, shall establish and operate a
25-20 pilot program providing a personal care facility ombudsman in one
25-21 or more counties.]
25-22 [(b) The department may operate the office directly or by
25-23 contract or memorandum of agreement with a public agency or other
25-24 appropriate private nonprofit organization, including an
25-25 organization for family members of persons with mental illness or
25-26 an advocacy group concerning mental health, disabilities, or senior
26-1 citizens.]
26-2 [(c) The pilot program shall recruit volunteers and citizen
26-3 organizations to participate in the ombudsman program.]
26-4 [(d) The office shall provide training to ombudsmen,
26-5 including training in mental illness and special needs of the
26-6 elderly or disabled.]
26-7 [(e) An ombudsman in the pilot program may not make
26-8 investigations.]
26-9 [(f) The Texas Department on Aging and the department shall
26-10 cooperate in developing guidelines for the pilot program.]
26-11 [Sec. 247.062.] COORDINATION BETWEEN AGENCIES. (a) The
26-12 department and the attorney general shall adopt by rule a
26-13 memorandum of understanding that:
26-14 (1) defines each agency's responsibilities concerning
26-15 assisted living [personal care] facilities;
26-16 (2) outlines and coordinates procedures to be used by
26-17 those agencies in responding to complaints concerning assisted
26-18 living [personal care] facilities; and
26-19 (3) provides a plan for correcting violations or
26-20 deficiencies in assisted living [personal care] facilities.
26-21 (b) The department shall prepare the initial draft of the
26-22 memorandum of understanding and shall facilitate and ensure its
26-23 adoption.
26-24 Sec. 247.062 [247.063]. DIRECTORY OF ASSISTED LIVING
26-25 [PERSONAL CARE] FACILITIES; CONSUMERS' GUIDE. (a) The department
26-26 shall prepare a directory of assisted living [personal care]
27-1 facilities that includes the name of the owner, the address and
27-2 telephone number of the facility, the number of beds in the
27-3 facility, and the facility's accessibility to disabled persons.
27-4 (b) The department shall revise the directory annually and
27-5 shall make it available to the public.
27-6 (c) The department shall prepare a consumers' guide to
27-7 assisted living [personal care] facilities and make it available to
27-8 the public. The consumers' guide shall provide information on
27-9 licensing requirements for assisted living [personal care]
27-10 facilities, a brief description of minimum standards for
27-11 facilities, a copy of the residents' bill of rights, a copy of the
27-12 providers' bill of rights, and any other information that the
27-13 department determines may be useful to the public.
27-14 Sec. 247.063 [247.064]. REFERRALS. (a) If the Texas
27-15 Department of Mental Health and Mental Retardation or a local
27-16 mental health or mental retardation authority refers a patient or
27-17 client to an assisted living [a personal care] facility, the
27-18 referral may not be made to a [personal care] facility that is not
27-19 licensed under this chapter.
27-20 (b) If the Texas Department of Mental Health and Mental
27-21 Retardation or a local mental health or mental retardation
27-22 authority gains knowledge of an assisted living [a personal care]
27-23 facility that is not operated or licensed by the Texas Department
27-24 of Mental Health and Mental Retardation, the authority, or the
27-25 Texas Department of Human Services and that has four or more
27-26 residents who are unrelated to the proprietor of the facility, the
28-1 Texas Department of Mental Health and Mental Retardation or the
28-2 authority shall report the name, address, and telephone number of
28-3 the facility to the Texas Department of Human Services.
28-4 Sec. 247.0631. ACCESS. An employee of the Texas Department
28-5 of Mental Health and Mental Retardation or an employee of a local
28-6 mental health and mental retardation authority may enter an
28-7 assisted living facility as necessary to provide services to a
28-8 resident of the facility.
28-9 Sec. 247.064 [247.065]. RESIDENTS' BILL OF RIGHTS.
28-10 (a) Each assisted living [personal care] facility shall post a
28-11 residents' bill of rights in a prominent place in the facility.
28-12 (b) The residents' bill of rights must provide that each
28-13 resident in the assisted living [personal care] facility has the
28-14 right to:
28-15 (1) manage the resident's financial affairs;
28-16 (2) determine the resident's dress, hair style, or
28-17 other personal effects according to individual preference, except
28-18 that the resident has the responsibility to maintain personal
28-19 hygiene;
28-20 (3) retain and use personal property in the resident's
28-21 immediate living quarters and to have an individual locked cabinet
28-22 in which to keep personal property;
28-23 (4) receive and send unopened mail;
28-24 (5) unaccompanied access to a telephone at a
28-25 reasonable hour or in case of an emergency or personal crisis;
28-26 (6) privacy;
29-1 (7) unrestricted communication, including personal
29-2 visitation with any person of the resident's choice, at any
29-3 reasonable hour, including family members and representatives of
29-4 advocacy groups and community service organizations;
29-5 (8) make contacts with the community and to achieve
29-6 the highest level of independence, autonomy, and interaction with
29-7 the community of which the resident is capable;
29-8 (9) present grievances on behalf of the resident or
29-9 others to the operator, state agencies, or other persons without
29-10 threat of reprisal in any manner;
29-11 (10) a safe and decent living environment and
29-12 considerate and respectful care that recognizes the dignity and
29-13 individuality of the resident;
29-14 (11) refuse to perform services for the facility,
29-15 except as contracted for by the resident and operator;
29-16 (12) practice the religion of the resident's choice;
29-17 (13) leave the facility temporarily or permanently,
29-18 subject to contractual or financial obligations; and
29-19 (14) not be deprived of any constitutional, civil, or
29-20 legal right solely by reason of residence in an assisted living [a
29-21 personal care] facility.
29-22 (c) The residents' bill of rights must be written in the
29-23 primary language of each resident of the facility and must also
29-24 provide the toll-free telephone number of the department for
29-25 reporting abuse or neglect.
29-26 (d) The rights provided under this section do not take
30-1 precedence over health and safety rights of other residents of the
30-2 facility.
30-3 (e) The department shall develop a residents' bill of rights
30-4 in accordance with this section and provide a copy to each
30-5 facility. The copy shall be written in the primary language of
30-6 each resident of the facility.
30-7 Sec. 247.065 [247.066]. PROVIDERS' BILL OF RIGHTS.
30-8 (a) Each assisted living [personal care] facility shall post a
30-9 providers' bill of rights in a prominent place in the facility.
30-10 (b) The providers' bill of rights must provide that a
30-11 provider of personal care services has the right to:
30-12 (1) be shown consideration and respect that recognizes
30-13 the dignity and individuality of the provider and assisted living
30-14 [personal care] facility;
30-15 (2) terminate a resident's contract for just cause
30-16 after a written 30-day notice;
30-17 (3) terminate a contract immediately, after notice to
30-18 the department, if the provider finds that a resident creates a
30-19 serious or immediate threat to the health, safety, or welfare of
30-20 other residents of the assisted living [personal care] facility;
30-21 (4) present grievances, file complaints, or provide
30-22 information to state agencies or other persons without threat of
30-23 reprisal or retaliation;
30-24 (5) refuse to perform services for the resident or the
30-25 resident's family other than those contracted for by the resident
30-26 and the provider;
31-1 (6) contract with the community to achieve the highest
31-2 level of independence, autonomy, interaction, and services to
31-3 residents;
31-4 (7) access to patient information concerning a client
31-5 referred to the facility, which must remain confidential as
31-6 provided by law;
31-7 (8) refuse a person referred to the facility if the
31-8 referral is inappropriate;
31-9 (9) maintain an environment free of weapons and drugs;
31-10 and
31-11 (10) be made aware of a resident's problems, including
31-12 self-abuse, violent behavior, alcoholism, or drug abuse.
31-13 Sec. 247.066. APPROPRIATE PLACEMENT DETERMINATION. (a) The
31-14 department may not require the removal and relocation of a resident
31-15 of an assisted living facility if the resident's presence in the
31-16 facility does not endanger other residents and the resident can
31-17 receive adequate care at the facility through services:
31-18 (1) provided by the facility in accordance with its
31-19 license; or
31-20 (2) obtained by the resident from other providers.
31-21 (b) In assessing whether a resident can receive adequate
31-22 care at a facility, the department shall consider all relevant
31-23 factors, including the placement preference expressed by the
31-24 resident with the agreement of the facility operator, the
31-25 resident's physician, and the resident's family members or other
31-26 representatives.
32-1 Sec. 247.067. HEALTH CARE PROFESSIONALS. (a) In this
32-2 section, "health care professional" means an individual licensed,
32-3 certified, or otherwise authorized to administer health care, for
32-4 profit or otherwise, in the ordinary course of business or
32-5 professional practice. The term includes a physician, registered
32-6 nurse, physical therapist, and occupational therapist.
32-7 (b) A health care professional may provide services within
32-8 the professional's scope of practice to a resident of an assisted
32-9 living facility at the facility. This subsection does not
32-10 authorize a health care professional to provide ongoing services to
32-11 a chronically ill resident comparable to the services available in
32-12 an institution licensed under Chapter 242. A health care
32-13 professional providing services under this subsection shall
32-14 maintain medical records of those services in accordance with the
32-15 licensing, certification, or other regulatory standards applicable
32-16 to the health care professional under law.
32-17 Sec. 247.068. RETALIATION PROHIBITED. (a) A person
32-18 licensed under this chapter may not retaliate against a person for
32-19 filing a complaint, presenting a grievance, or providing in good
32-20 faith information relating to personal care services provided by
32-21 the license holder.
32-22 (b) This section does not prohibit a license holder from
32-23 terminating an employee for a reason other than retaliation.
32-24 SECTION 2. AMENDMENT. Subdivision (3), Section 250.001,
32-25 Health and Safety Code, is amended to read as follows:
32-26 (3) "Facility" means:
33-1 (A) a nursing home, custodial care home, or
33-2 other institution licensed by the Texas Department of Human
33-3 Services under Chapter 242;
33-4 (B) an assisted living [a personal care]
33-5 facility licensed by the Texas Department of Human Services under
33-6 Chapter 247;
33-7 (C) a home health agency licensed [by the Texas
33-8 Department of Health] under Chapter 142;
33-9 (D) an adult day care facility [or adult day
33-10 health care facility] licensed by the Texas Department of Human
33-11 Services under Chapter 103, Human Resources Code;
33-12 (E) a facility for persons with mental
33-13 retardation licensed under Chapter 252 [or certified by the Texas
33-14 Department of Human Services];
33-15 (F) an unlicensed attendant care agency that
33-16 contracts with the Texas Department of Human Services;
33-17 (G) [an intermediate care facility for persons
33-18 with mental retardation that is certified by the Texas Department
33-19 of Human Services to participate in the Medicaid program under
33-20 Title XIX of the Social Security Act (42 U.S.C. Section 1396 et
33-21 seq.);]
33-22 [(H)] an adult foster care provider that
33-23 contracts with the Texas Department of Human Services; or
33-24 (H) [(I)] a facility that provides mental health
33-25 services and that is operated by or contracts with the Texas
33-26 Department of Mental Health and Mental Retardation.
34-1 SECTION 3. AMENDMENT. Section 36.002, Human Resources Code,
34-2 is amended to read as follows:
34-3 Sec. 36.002. UNLAWFUL ACTS. A person commits an unlawful
34-4 act if the person:
34-5 (1) knowingly or intentionally makes or causes to be
34-6 made a false statement or misrepresentation of a material fact:
34-7 (A) on an application for a contract, benefit,
34-8 or payment under the Medicaid program; or
34-9 (B) that is intended to be used to determine a
34-10 person's eligibility for a benefit or payment under the Medicaid
34-11 program;
34-12 (2) knowingly or intentionally conceals or fails to
34-13 disclose an event:
34-14 (A) that the person knows affects the initial or
34-15 continued right to a benefit or payment under the Medicaid program
34-16 of:
34-17 (i) the person; or
34-18 (ii) another person on whose behalf the
34-19 person has applied for a benefit or payment or is receiving a
34-20 benefit or payment; and
34-21 (B) to permit a person to receive a benefit or
34-22 payment that is not authorized or that is greater than the payment
34-23 or benefit that is authorized;
34-24 (3) knowingly or intentionally applies for and
34-25 receives a benefit or payment on behalf of another person under the
34-26 Medicaid program and converts any part of the benefit or payment to
35-1 a use other than for the benefit of the person on whose behalf it
35-2 was received;
35-3 (4) knowingly or intentionally makes, causes to be
35-4 made, induces, or seeks to induce the making of a false statement
35-5 or misrepresentation of material fact concerning:
35-6 (A) the conditions or operation of a facility in
35-7 order that the facility may qualify for certification or
35-8 recertification required by the Medicaid program, including
35-9 certification or recertification as:
35-10 (i) a hospital;
35-11 (ii) a nursing facility or skilled nursing
35-12 facility;
35-13 (iii) a hospice;
35-14 (iv) an intermediate care facility for the
35-15 mentally retarded;
35-16 (v) an assisted living [a personal care]
35-17 facility; or
35-18 (vi) a home health agency; or
35-19 (B) information required to be provided by a
35-20 federal or state law, rule, regulation, or provider agreement
35-21 pertaining to the Medicaid program;
35-22 (5) except as authorized under the Medicaid program,
35-23 knowingly or intentionally charges, solicits, accepts, or receives,
35-24 in addition to an amount paid under the Medicaid program, a gift,
35-25 money, a donation, or other consideration as a condition to the
35-26 provision of a service or continued service to a Medicaid recipient
36-1 if the cost of the service provided to the Medicaid recipient is
36-2 paid for, in whole or in part, under the Medicaid program;
36-3 (6) knowingly or intentionally presents or causes to
36-4 be presented a claim for payment under the Medicaid program for a
36-5 product provided or a service rendered by a person who:
36-6 (A) is not licensed to provide the product or
36-7 render the service, if a license is required; or
36-8 (B) is not licensed in the manner claimed;
36-9 (7) knowingly or intentionally makes a claim under the
36-10 Medicaid program for:
36-11 (A) a service or product that has not been
36-12 approved or acquiesced in by a treating physician or health care
36-13 practitioner;
36-14 (B) a service or product that is substantially
36-15 inadequate or inappropriate when compared to generally recognized
36-16 standards within the particular discipline or within the health
36-17 care industry; or
36-18 (C) a product that has been adulterated,
36-19 debased, mislabeled, or that is otherwise inappropriate;
36-20 (8) makes a claim under the Medicaid program and
36-21 knowingly or intentionally fails to indicate the type of license
36-22 and the identification number of the licensed health care provider
36-23 who actually provided the service;
36-24 (9) knowingly or intentionally enters into an
36-25 agreement, combination, or conspiracy to defraud the state by
36-26 obtaining or aiding another person in obtaining an unauthorized
37-1 payment or benefit from the Medicaid program or a fiscal agent; or
37-2 (10) is a managed care organization that contracts
37-3 with the Health and Human Services Commission or other state agency
37-4 to provide or arrange to provide health care benefits or services
37-5 to individuals eligible under the Medicaid program and knowingly or
37-6 intentionally:
37-7 (A) fails to provide to an individual a health
37-8 care benefit or service that the organization is required to
37-9 provide under the contract;
37-10 (B) fails to provide to the commission or
37-11 appropriate state agency information required to be provided by
37-12 law, commission or agency rule, or contractual provision;
37-13 (C) engages in a fraudulent activity in
37-14 connection with the enrollment of an individual eligible under the
37-15 Medicaid program in the organization's managed care plan or in
37-16 connection with marketing the organization's services to an
37-17 individual eligible under the Medicaid program; or
37-18 (D) obstructs an investigation by the attorney
37-19 general of an alleged unlawful act under this section.
37-20 SECTION 4. AMENDMENT. Title 6, Human Resources Code, is
37-21 amended by adding Chapter 105 to read as follows:
37-22 CHAPTER 105. RESIDENTIAL FACILITIES FOR THE ELDERLY
37-23 Sec. 105.001. DEFINITIONS. In this chapter:
37-24 (1) "Establishment" means a facility providing
37-25 sleeping accommodations to two or more qualifying adult residents,
37-26 at least 80 percent of whom are 65 years of age or older or are
38-1 disabled, and offering, for a fee, one or more supportive services
38-2 through contract with an agency licensed under Chapter 142, Health
38-3 and Safety Code, or with another entity.
38-4 (2) "Qualifying adult resident" means an adult
38-5 resident of a facility who is not related within the second degree
38-6 by consanguinity or affinity to:
38-7 (A) a person who has an ownership interest in
38-8 the facility; or
38-9 (B) at least one other resident of the facility.
38-10 (3) "Supportive services" means medical services,
38-11 health-related services, or personal care services as defined by
38-12 Section 247.002, Health and Safety Code.
38-13 Sec. 105.002. EXEMPT FACILITIES. The following facilities
38-14 are exempt from the application of this chapter:
38-15 (1) housing in which all supportive services are
38-16 arranged directly by the residents themselves and are provided by
38-17 outside entities;
38-18 (2) nursing facilities licensed under Chapter 242,
38-19 Health and Safety Code; and
38-20 (3) continuing care facilities regulated by the Texas
38-21 Department of Insurance under Chapter 246, Health and Safety Code.
38-22 Sec. 105.003. DISCLOSURE REQUIRED IN CONTRACT. An
38-23 establishment that is not required to be licensed as an assisted
38-24 living facility under Chapter 247, Health and Safety Code, shall
38-25 execute a contract with each of its residents that contains, in
38-26 addition to other required information, the following elements:
39-1 (1) the name, street address, and mailing address of
39-2 the establishment;
39-3 (2) the name and mailing address of at least one
39-4 person authorized to act on behalf of the owner or owners or
39-5 management agent of the establishment;
39-6 (3) a statement describing the licensure status of the
39-7 establishment;
39-8 (4) the name, mailing address, and telephone number of
39-9 any provider, including any individual or entity, regardless of
39-10 whether licensed, providing supportive services under a contract
39-11 with the establishment;
39-12 (5) the term of the contract;
39-13 (6) a description of the services to be provided that
39-14 are included in the base monthly rate to be paid by the resident;
39-15 (7) a description of any additional services available
39-16 for an additional fee from a provider through a contract with the
39-17 establishment;
39-18 (8) a provision requiring the establishment to provide
39-19 written notice of any change in fee schedules that outline the cost
39-20 of additional services not later than the 31st day before the
39-21 effective date of the change;
39-22 (9) a description of the process by which the contract
39-23 may be modified, amended, or terminated;
39-24 (10) a description of the complaint resolution process
39-25 available to residents;
39-26 (11) the name, street address, mailing address, and
40-1 telephone number of the resident's designated representative, if
40-2 any;
40-3 (12) a description of the billing and payment
40-4 procedures and requirements;
40-5 (13) a statement ensuring the ability and right of
40-6 residents to receive services from providers with whom the
40-7 establishment does not have a contract; and
40-8 (14) a statement identifying the life safety and fire
40-9 codes met by the building and a statement indicating whether those
40-10 codes are comparable to the codes with which an assisted living
40-11 facility licensed under Chapter 247, Health and Safety Code, must
40-12 comply.
40-13 SECTION 5. AMENDMENT. Section 123.004, Human Resources
40-14 Code, is amended to read as follows:
40-15 Sec. 123.004. QUALIFICATION AS COMMUNITY HOME. To qualify
40-16 as a community home, an entity must comply with Sections 123.005
40-17 through 123.008 and be:
40-18 (1) a community-based residential home operated by:
40-19 (A) the Texas Department of Mental Health and
40-20 Mental Retardation;
40-21 (B) a community center organized under
40-22 Subchapter A, Chapter 534, Health and Safety Code, that provides
40-23 services to persons with disabilities;
40-24 (C) an entity subject to the Texas Non-Profit
40-25 Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil
40-26 Statutes); or
41-1 (D) an entity certified by the Texas Department
41-2 of Human Services as a provider under the medical assistance
41-3 program serving persons in intermediate care facilities for persons
41-4 with mental retardation; or
41-5 (2) an assisted living [a personal care] facility
41-6 licensed under Chapter 247, Health and Safety Code, provided that
41-7 the exterior structure retains compatibility with the surrounding
41-8 residential dwellings.
41-9 SECTION 6. REFERENCE TO PERSONAL CARE FACILITY. (a) A
41-10 reference in law to a personal care facility means an assisted
41-11 living facility, as defined by Section 247.002, Health and Safety
41-12 Code, as amended by this Act.
41-13 (b) A reference in law to the Advisory Committee on Personal
41-14 Care Facilities means the Advisory Committee on Assisted Living
41-15 Facilities established under Section 247.051, Health and Safety
41-16 Code, as amended by this Act.
41-17 SECTION 7. ENFORCEMENT OF LICENSURE REQUIREMENT. (a) Not
41-18 later than January 1, 2000, the Texas Department of Human Services
41-19 shall:
41-20 (1) identify unlicensed facilities in this state that
41-21 are required to be licensed under Chapter 247, Health and Safety
41-22 Code, as amended by this Act; and
41-23 (2) take action to enforce the licensure requirements.
41-24 (b) Not later than December 1, 2000, the department shall
41-25 submit to the governor and the legislature a report describing the
41-26 results of the department's efforts under this section. The
42-1 report must include:
42-2 (1) the number of facilities identified;
42-3 (2) the geographical distribution of those facilities;
42-4 and
42-5 (3) the results of the department's efforts to enforce
42-6 licensure of those facilities.
42-7 (c) This section takes effect on the first date that it may
42-8 take effect under Section 39, Article III, Texas Constitution.
42-9 SECTION 8. WORK GROUP ON TEXAS ACCESSIBILITY STANDARDS.
42-10 (a) As soon as possible after the effective date of this section,
42-11 the Texas Department of Human Services and the Texas Department of
42-12 Licensing and Regulation shall form a joint work group to study and
42-13 make recommendations not later than September 1, 2000, to those
42-14 agencies concerning the application of the Texas Accessibility
42-15 Standards and other architectural requirements to facilities
42-16 required to be licensed under Chapter 247, Health and Safety Code.
42-17 (b) The work group shall:
42-18 (1) review bathroom accessibility standards applicable
42-19 to a facility and make suggestions regarding any necessary changes
42-20 to those standards;
42-21 (2) determine whether the architectural reviews of a
42-22 facility currently conducted separately by each agency could be
42-23 consolidated into a single review;
42-24 (3) develop standard information materials that
42-25 address architectural requirements applicable to construction or
42-26 modification of a facility; and
43-1 (4) address any other issue relating to architectural
43-2 standards applicable to a facility.
43-3 (c) The agencies shall include in the work group
43-4 representatives of developers and providers of facilities and
43-5 consumers of personal care services provided by facilities.
43-6 (d) The members of the work group shall elect a presiding
43-7 officer and any other necessary officers for the work group.
43-8 (e) The work group shall meet at the call of the presiding
43-9 officer.
43-10 (f) A member of the work group receives no compensation for
43-11 serving on the work group.
43-12 (g) The work group is not subject to Chapter 2110,
43-13 Government Code.
43-14 (h) The work group dissolves and this section expires
43-15 September 1, 2001.
43-16 (i) This section takes effect on the first date that it may
43-17 take effect under Section 39, Article III, Texas Constitution.
43-18 SECTION 9. COMMUNITY-BASED ALTERNATIVES PROGRAM RATE METHOD.
43-19 (a) As soon as possible after the effective date of this section,
43-20 the Texas Department of Human Services by rule shall develop and
43-21 implement a new reimbursement method for personal care services
43-22 funded through the community-based alternatives program that is
43-23 based on the type of service provided in addition to the number of
43-24 clients occupying a room.
43-25 (b) This section takes effect on the first date that it may
43-26 take effect under Section 39, Article III, Texas Constitution.
44-1 SECTION 10. DEADLINE: CONSUMER DISCLOSURE STATEMENT. Not
44-2 later than September 1, 1999, the Texas Department of Human
44-3 Services shall adopt the consumer disclosure statement required by
44-4 Paragraph (B), Subdivision (3), Subsection (b), Section 247.026,
44-5 Health and Safety Code, as added by this Act.
44-6 SECTION 11. TRANSITION: REQUIRED EDUCATIONAL COURSE FOR
44-7 MANAGERS OF CERTAIN FACILITIES. Subsection (i), Section 247.026,
44-8 Health and Safety Code, as added by this Act, applies only to a
44-9 person who begins employment as a manager of an assisted living
44-10 facility on or after the effective date of this Act. A person who
44-11 begins employment as a manager of an assisted living facility
44-12 before the effective date of this Act is governed by the law in
44-13 effect on the date that the person begins employment, and that law
44-14 is continued in effect for that purpose.
44-15 SECTION 12. LEGISLATIVE INTENT. Subsection (d), Section
44-16 247.045, Health and Safety Code, as amended by this Act, is
44-17 intended to emphasize the authority of the attorney general to
44-18 institute and conduct a suit to collect a penalty and fees. The
44-19 amendment may not be construed to mean that the attorney general
44-20 lacked that authority before the effective date of this Act.
44-21 SECTION 13. WAIVERS. If, before implementing any provision
44-22 of this Act, a state agency determines that a waiver or
44-23 authorization from a federal agency is necessary for implementation
44-24 of that provision, the agency affected by the provision shall
44-25 request the waiver or authorization and may delay implementing that
44-26 provision until the waiver or authorization is granted.
45-1 SECTION 14. CONFLICTS. To the extent of any conflict, this
45-2 Act prevails over another Act of the 76th Legislature, Regular
45-3 Session, 1999, relating to nonsubstantive additions to and
45-4 corrections in enacted codes.
45-5 SECTION 15. EFFECTIVE DATE. Except as otherwise provided by
45-6 this Act, this Act takes effect September 1, 1999.
45-7 SECTION 16. EMERGENCY. The importance of this legislation
45-8 and the crowded condition of the calendars in both houses create an
45-9 emergency and an imperative public necessity that the
45-10 constitutional rule requiring bills to be read on three several
45-11 days in each house be suspended, and this rule is hereby suspended,
45-12 and that this Act take effect and be in force according to its
45-13 terms, and it is so enacted.