AN ACT
1-1 relating to the regulation of assisted living facilities and
1-2 requirements concerning 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 (f) No provisional licenses shall be issued after
8-10 December 31, 1999.
8-11 (g) Notwithstanding Subsection (f), the department may
8-12 automatically issue a provisional license to a newly constructed
8-13 facility if:
8-14 (1) the facility is in compliance with resident care
8-15 standards;
8-16 (2) all local approvals have been obtained;
8-17 (3) a complete license application is submitted within
8-18 30 days of receipt of all local approvals; and
8-19 (4) the license fee has been paid.
8-20 (h) Notwithstanding Subsection (f), the department may
8-21 automatically issue a provisional license in the case of a
8-22 corporate change of ownership of a facility.
8-23 Sec. 247.022. LICENSE APPLICATION. (a) An applicant for an
8-24 assisted living [a personal care] facility license must submit an
8-25 application to the department on a form prescribed by the
8-26 department.
9-1 (b) Each application must be accompanied by a nonrefundable
9-2 license fee in an amount set by the board.
9-3 (c) The department may provide technical assistance to an
9-4 applicant by making brief inspections of the assisted living
9-5 [personal care] facility proposed to be licensed and making
9-6 recommendations concerning actions necessary to meet standards for
9-7 assisted living [personal care] facilities.
9-8 Sec. 247.023. ISSUANCE AND RENEWAL OF LICENSE. (a) The
9-9 department shall issue a license if, after inspection and
9-10 investigation, it finds that the applicant, [and] the assisted
9-11 living [personal care] facility, and all controlling persons with
9-12 respect to the applicant or facility meet the requirements of this
9-13 chapter and the standards adopted under this chapter.
9-14 (b) To renew a license, the license holder must submit to
9-15 the department the annual license renewal fee.
9-16 (c) The board may require participation in a continuing
9-17 education program as a condition of renewal of a license. The
9-18 board shall adopt rules to implement this subsection.
9-19 Sec. 247.0231. COMPLIANCE RECORD IN OTHER STATES. The
9-20 department may require an applicant or license holder to provide
9-21 the department with information relating to compliance by the
9-22 applicant, the license holder, or a controlling person with respect
9-23 to the applicant or license holder with regulatory requirements in
9-24 another state in which the applicant, license holder, or
9-25 controlling person operates or operated an assisted living
9-26 facility.
10-1 Sec. 247.024. FEES; DISPOSITION OF REVENUE. (a) The board
10-2 shall set license fees imposed by this chapter:
10-3 (1) on the basis of the number of beds in assisted
10-4 living facilities required to pay the fee; and
10-5 (2) in amounts reasonable and necessary to defray the
10-6 cost of administering this chapter, but not to exceed $750[:]
10-7 [(1) $300 for a personal care facility that has not
10-8 more than 10 beds;]
10-9 [(2) $350 for a personal care facility that has not
10-10 less than 11 or more than 20 beds; and]
10-11 [(3) $400 for a personal care facility that has 21 or
10-12 more beds].
10-13 (b) The board shall establish by rule a base fee schedule
10-14 and a per bed fee schedule.
10-15 (c) All fees or penalties collected under this chapter shall
10-16 be deposited in the state treasury to the credit of the general
10-17 revenue fund and shall be appropriated to the department only to
10-18 administer and enforce this chapter.
10-19 (d) [(c)] Investigation fees or attorney's fees may not be
10-20 assessed against or collected from an assisted living [a personal
10-21 care] facility by or on behalf of the department or another state
10-22 agency unless the department or other state agency assesses and
10-23 collects a penalty authorized by this chapter from the facility.
10-24 Sec. 247.025. ADOPTION OF RULES. The board shall adopt
10-25 rules necessary to implement this chapter, including requirements
10-26 for the issuance, renewal, denial, suspension, and revocation of a
11-1 license to operate an assisted living [a personal care] facility.
11-2 Sec. 247.026. STANDARDS. (a) The board by rule shall
11-3 prescribe minimum standards to protect the health and safety of an
11-4 assisted living [a personal care] facility resident.
11-5 (b) The standards must:
11-6 (1) clearly differentiate an assisted living [a
11-7 personal care] facility from an institution required to be licensed
11-8 under Chapter 242;
11-9 (2) ensure quality care and protection of the
11-10 residents' health and safety without excessive cost; [and]
11-11 (3) ensure that the daily nutritional and special
11-12 dietary needs of each resident are met; and
11-13 (4) require an assisted living [a personal care]
11-14 facility to:
11-15 (A) use its license number or a state-issued
11-16 facility identification number in all advertisements,
11-17 solicitations, and promotional materials; and
11-18 (B) provide each prospective resident or
11-19 prospective resident's representative, as appropriate, with a
11-20 consumer disclosure statement in a standard form adopted by the
11-21 department.
11-22 (c) The board shall require an assisted living facility that
11-23 provides brain injury rehabilitation services to include in the
11-24 facility's consumer disclosure statement a specific statement that
11-25 licensure as an assisted living facility does not indicate state
11-26 review, approval, or endorsement of the facility's rehabilitation
12-1 services.
12-2 (d) The board may prescribe different levels of minimum
12-3 standards for assisted living [personal care] facilities according
12-4 to the number of residents, the type of residents, the level of
12-5 personal care provided, the nutritional needs of residents, and
12-6 other distinctions the board considers relevant.
12-7 (e) [(d)] Local health and safety standards adopted by the
12-8 municipality in which an assisted living [a personal care] facility
12-9 is located do not apply to the facility unless the standards
12-10 specifically state that they apply to assisted living [personal
12-11 care] facilities.
12-12 (f) [(e)] The board by rule shall prescribe minimum
12-13 standards requiring appropriate training in geriatric care for each
12-14 individual who provides services to geriatric residents as an
12-15 employee of an assisted living [a personal care] facility and who
12-16 holds a license or certificate issued by an agency of this state
12-17 that authorizes the person to provide the services. The minimum
12-18 standards may require that each licensed or certified individual
12-19 complete an appropriate program of continuing education or
12-20 in-service training, as determined by board rule, on a schedule
12-21 determined by board rule.
12-22 (g) [(f)] Any individual otherwise qualified, who has been
12-23 employed by a licensed assisted living [personal care] facility for
12-24 at least 90 days, shall be eligible to be certified as a medication
12-25 aide following completion of the required course of study and
12-26 successful completion of any required examination.
13-1 (h) An individual may not serve as the manager of an
13-2 assisted living facility that has 17 beds or more unless the
13-3 individual:
13-4 (1) has an associate's degree in nursing, health care
13-5 management, or a related field from a public or private institution
13-6 of higher education;
13-7 (2) has a bachelor's degree from a public or private
13-8 institution of higher education; or
13-9 (3) has at least one year of experience working in
13-10 management or in the health care industry.
13-11 (i) The board by rule shall require each manager of an
13-12 assisted living facility that has 17 beds or more to complete at
13-13 least one educational course on the management of assisted living
13-14 facilities not later than the first anniversary of the date the
13-15 manager begins employment in that capacity.
13-16 Sec. 247.0261. EARLY COMPLIANCE REVIEW. (a) The department
13-17 by rule shall adopt a procedure under which a person proposing to
13-18 construct or modify an assisted living facility may submit building
13-19 plans to the department for review for compliance with the
13-20 department's architectural requirements before beginning
13-21 construction or modification. In adopting the procedure, the
13-22 department shall set reasonable deadlines by which the department
13-23 must complete review of submitted plans.
13-24 (b) The department shall, within 30 days, review plans
13-25 submitted under this section for compliance with the department's
13-26 architectural requirements and inform the person of the results of
14-1 the review. If the plans comply with the department's
14-2 architectural requirements, the department may not subsequently
14-3 change the architectural requirements applicable to the project
14-4 unless:
14-5 (1) the change is required by federal law; or
14-6 (2) the person fails to complete the project within a
14-7 reasonable time.
14-8 (c) The department may charge a reasonable fee for
14-9 conducting a review under this section.
14-10 (d) A fee collected under this section shall be deposited in
14-11 the general revenue fund to the credit of the assisted living
14-12 account and shall be appropriated only to the department to conduct
14-13 reviews under this section.
14-14 (e) The review procedure provided by this section does not
14-15 include review of building plans for compliance with the Texas
14-16 Accessibility Standards as administered and enforced by the Texas
14-17 Department of Licensing and Regulation.
14-18 Sec. 247.027. INSPECTIONS. (a) In addition to the
14-19 inspection required under Section 247.023(a), the department may
14-20 inspect an assisted living [a personal care] facility annually and
14-21 may inspect a facility at other reasonable times as necessary to
14-22 assure compliance with this chapter.
14-23 (b) The department shall establish an inspection checklist
14-24 based on the minimum standards that describes the matters subject
14-25 to inspection. The department shall use the inspection checklist
14-26 in conducting inspections under this section and Section
15-1 247.023(a).
15-2 Sec. 247.0271. INSPECTION EXIT CONFERENCE. (a) At the
15-3 conclusion of an inspection under Section 247.023(a) or Section
15-4 247.027, the inspector shall perform an exit conference to advise
15-5 the assisted living facility of the findings resulting from the
15-6 inspection.
15-7 (b) At the exit conference, the inspector shall provide a
15-8 copy of the inspection checklist to the assisted living facility
15-9 and list each violation discovered during the inspection, with
15-10 specific reference to the standard violated.
15-11 (c) If, after the initial exit conference, additional
15-12 violations are cited, the inspector shall conduct an additional
15-13 exit conference regarding the newly identified violations.
15-14 (d) The assisted living facility shall submit an acceptable
15-15 plan of correction to the regional director with supervisory
15-16 authority over the inspector not later than the 10th day after the
15-17 date of completion of the final exit conference.
15-18 Sec. 247.0272. INSPECTOR TRAINING. (a) The department
15-19 shall develop and implement a training program to provide
15-20 specialized training to department employees who inspect assisted
15-21 living facilities under this chapter. The training must emphasize
15-22 the distinction between an assisted living facility and an
15-23 institution licensed under Chapter 242.
15-24 (b) In developing and updating the training program required
15-25 by this section, the department shall consult with operators of
15-26 assisted living facilities and consumers of personal care services
16-1 provided by assisted living facilities or legal representatives of
16-2 those consumers.
16-3 Sec. 247.028. ASSISTANCE BY DEPARTMENT. The department may
16-4 provide assistance to an assisted living [a personal care]
16-5 facility, including the provision of training materials, the
16-6 coordination of training conferences and workshops with other state
16-7 agencies, and the development of a provider's handbook explaining
16-8 assisted living [personal care] facility rules.
16-9 Sec. 247.029. FACILITIES FOR PERSONS WITH ALZHEIMER'S
16-10 DISEASE. (a) The board by rule shall establish a classification
16-11 and license for a facility that advertises, markets, or otherwise
16-12 promotes that the facility provides personal care services to
16-13 residents who have Alzheimer's disease or related disorders. A
16-14 facility is not required to be classified under this section to
16-15 provide care or treatment to residents who have Alzheimer's disease
16-16 or related disorders.
16-17 (b) The board shall adopt minimum standards for an assisted
16-18 living [a personal care] facility classified under this section.
16-19 (c) An individual may not serve as the manager of an
16-20 assisted living facility classified under this section or as the
16-21 supervisor of an assisted living facility unit classified under
16-22 this section unless the individual is at least 21 years of age and
16-23 has:
16-24 (1) an associate's degree from a public or private
16-25 institution of higher education in nursing, health care management,
16-26 or a related field;
17-1 (2) a bachelor's degree from a public or private
17-2 institution of higher education in psychology, gerontology,
17-3 nursing, or a related field; or
17-4 (3) at least one year of experience working with
17-5 persons with dementia.
17-6 Sec. 247.030. FACILITIES FOR SUPERVISION OF MEDICATION AND
17-7 GENERAL WELFARE. (a) The board by rule shall establish a
17-8 classification and license for a facility that:
17-9 (1) provides only medication supervision, in
17-10 accordance with Section 247.002(5)(B), and general supervision of
17-11 residents' welfare, in accordance with Section 247.002(5)(C); and
17-12 (2) does not provide substantial assistance with the
17-13 activities of daily living, as described by Section 247.002(5)(A).
17-14 (b) The board shall adopt minimum standards for an assisted
17-15 living facility classified under this section, including standards
17-16 imposing adequate requirements relating to medication supervision.
17-17 The board shall modify accessibility and life safety code standards
17-18 generally applicable to a facility licensed under this chapter as
17-19 necessary for a facility classified under this section to reflect
17-20 the level of services provided by the facility. The modified
17-21 standards must be specifically defined by the board.
17-22 (c) Except as provided by this section, an assisted living
17-23 facility classified under this section is required to comply with
17-24 all requirements imposed by this chapter.
17-25 Sec. 247.031 [247.029]. MUNICIPAL ENFORCEMENT. The
17-26 governing body of a municipality by ordinance may:
18-1 (1) prohibit a person who does not hold a license
18-2 issued under this chapter from establishing or operating an
18-3 assisted living [a personal care] facility within the municipality;
18-4 and
18-5 (2) establish a procedure for emergency closure of a
18-6 facility in circumstances in which:
18-7 (A) the facility is established or operating in
18-8 violation of Section 247.021; and
18-9 (B) the continued operation of the facility
18-10 creates an immediate threat to the health and safety of a resident
18-11 of the facility.
18-12 SUBCHAPTER C. GENERAL ENFORCEMENT
18-13 Sec. 247.041. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE.
18-14 (a) The department may deny, suspend, or revoke a license for a
18-15 violation of this chapter or a rule adopted under this chapter.
18-16 (b) The denial, suspension, or revocation of a license by
18-17 the department and the appeal from that action are governed by the
18-18 procedures for a contested case hearing under Chapter 2001,
18-19 Government Code.
18-20 Sec. 247.042. EMERGENCY SUSPENSION OR CLOSING ORDER.
18-21 (a) If the department finds an assisted living [a personal care]
18-22 facility operating in violation of the standards prescribed under
18-23 this chapter and the violations create an immediate threat to the
18-24 health and safety of a resident in the facility, the department
18-25 shall suspend the license or order immediate closing of all or part
18-26 of the facility.
19-1 (b) The order suspending a license under Subsection (a) is
19-2 effective immediately on written notice to the license holder or on
19-3 the date specified in the order.
19-4 (c) The order suspending the license and ordering closure of
19-5 all or part of an assisted living [a personal care] facility is
19-6 valid for 10 days after its effective date.
19-7 (d) The department shall provide for the relocation of
19-8 residents of an assisted living [a personal care] facility that is
19-9 closed. The relocation may not be to a facility with a more
19-10 restrictive environment unless all other reasonable alternatives
19-11 are exhausted. Relocation procedures shall be adopted as part of
19-12 the memorandum of understanding adopted under Section 247.061
19-13 [247.062].
19-14 Sec. 247.043. INVESTIGATION OF ABUSE, EXPLOITATION, OR
19-15 NEGLECT. (a) The department shall conduct a preliminary
19-16 investigation of each allegation of abuse, exploitation, or neglect
19-17 of a resident of an assisted living [a personal care] facility to
19-18 determine if there is evidence to corroborate the allegation. If
19-19 the department determines that there is evidence to corroborate the
19-20 allegation, the department shall conduct a thorough investigation
19-21 of the allegation.
19-22 (b) If the thorough investigation reveals that abuse,
19-23 exploitation, or neglect has occurred, the department shall:
19-24 (1) implement enforcement measures, including closing
19-25 the facility, revoking the facility's license, relocating
19-26 residents, and making referrals to law enforcement agencies;
20-1 (2) notify the Department of Protective and Regulatory
20-2 Services of the results of the investigation;
20-3 (3) notify a health and human services agency, as
20-4 defined by Section 531.001, Government Code, that contracts with
20-5 the facility for the delivery of personal care services of the
20-6 results of the investigation; and
20-7 (4) provide to a contracting health and human services
20-8 agency access to the department's documents or records relating to
20-9 the investigation.
20-10 (c) Providing access to a confidential document or record
20-11 under Subsection (b)(4) does not constitute a waiver of
20-12 confidentiality.
20-13 Sec. 247.044. INJUNCTION. (a) The department may petition
20-14 a district court for a temporary restraining order to restrain a
20-15 continuing violation of the standards or licensing requirements
20-16 provided under this chapter if the department finds that:
20-17 (1) the violation creates an immediate threat to the
20-18 health and safety of the assisted living [personal care] facility
20-19 residents; or
20-20 (2) the facility is operating without a license.
20-21 (b) A district court, on petition of the department and on a
20-22 finding by the court that a person is violating the standards or
20-23 licensing requirements provided under this chapter, may by
20-24 injunction:
20-25 (1) prohibit a person from continuing a violation of
20-26 the standards or licensing requirements provided under this
21-1 chapter;
21-2 (2) restrain the establishment or operation of an
21-3 assisted living [a personal care] facility without a license issued
21-4 under this chapter; or
21-5 (3) grant any other injunctive relief warranted by the
21-6 facts.
21-7 (c) The department may petition a district court for a
21-8 temporary restraining order to inspect a facility allegedly
21-9 required to be licensed and operating without a license when
21-10 admission to the facility cannot be obtained. If it is shown that
21-11 admission to the facility cannot be obtained, the court shall order
21-12 the facility to allow the department admission to the facility.
21-13 (d) The attorney general or local prosecuting attorney may
21-14 institute and conduct a suit authorized by this section at the
21-15 request of the department.
21-16 (e) Venue for a suit brought under this section is in the
21-17 county in which the assisted living [personal care] facility is
21-18 located or in Travis County.
21-19 Sec. 247.045. CIVIL PENALTIES. (a) Except as provided by
21-20 Subsections [Subsection] (b) and (c), a person who violates this
21-21 chapter or who fails to comply with a rule adopted under this
21-22 chapter and whose violation is determined by the department to
21-23 threaten the health and safety of a resident of an assisted living
21-24 [a personal care] facility is subject to a civil penalty of not
21-25 less than $100 nor more than $10,000 for each act of violation.
21-26 Each day of a continuing violation constitutes a separate ground of
22-1 recovery.
22-2 (b) A person is subject to a civil penalty if the person:
22-3 (1) is in violation of Section 247.021; or
22-4 (2) has been determined to be in violation of Section
22-5 247.021 and violates any other provision of this chapter or fails
22-6 to comply with a rule adopted under this chapter.
22-7 [(b) A person who does not possess a license for a personal
22-8 care facility as required by Section 247.021 is subject to a civil
22-9 penalty of not less than $1,000 nor more than $10,000 for each act
22-10 of violation. Each day of a continuing violation constitutes a
22-11 separate ground for recovery.]
22-12 (c) The amount of a civil penalty under Subsection (b) may
22-13 not be less than $1,000 or more than $10,000 for each act of
22-14 violation. Each day of a continuing violation constitutes a
22-15 separate ground of recovery.
22-16 (d) The attorney general may institute and conduct a suit to
22-17 collect a penalty and fees under this section at the request of the
22-18 department. [(c)] If the attorney general fails to take action
22-19 within 30 days of referral from the department, the department
22-20 shall refer the case to the local district attorney, county
22-21 attorney, or city attorney. The district attorney, county
22-22 attorney, or city attorney shall file suit in a district court to
22-23 collect and retain the penalty.
22-24 (e) [(d)] Investigation and attorney's fees may not be
22-25 assessed or collected by or on behalf of the department or other
22-26 state agency unless the department or other state agency assesses
23-1 and collects a penalty described under this chapter.
23-2 (f) [(e)] The department and attorney general, or other
23-3 legal representative as described in Subsection (d) [(c)], shall
23-4 work in close cooperation throughout any legal proceedings
23-5 requested by the department.
23-6 (g) [(f)] The commissioner of human services must approve
23-7 any settlement agreement to a suit brought under this chapter.
23-8 Sec. 247.046. COOPERATION AMONG AGENCIES. The board, the
23-9 Department of Protective and Regulatory Services, and the attorney
23-10 general shall adopt by rule a memorandum of understanding that:
23-11 (1) defines each agency's responsibilities concerning
23-12 assisted living [personal care] facilities and coordinates each
23-13 agency's activities;
23-14 (2) details coordinated procedures to be used by each
23-15 agency in responding to complaints relating to neglect or abuse of
23-16 residents of facilities, to substandard facilities, and to
23-17 unlicensed facilities;
23-18 (3) identifies enforcement needs each agency may have
23-19 in order to perform its duties under the memorandum of
23-20 understanding, including any need for access to information or to
23-21 facilities under investigation or operating under a plan of
23-22 correction; and
23-23 (4) provides a plan for correcting violations in
23-24 substandard or unlicensed assisted living [personal care]
23-25 facilities that specifies the conditions under which it is
23-26 appropriate to impose such a plan and that outlines a schedule of
24-1 implementation for the plan.
24-2 Sec. 247.047 [247.046]. TRANSITION. The department shall
24-3 grant to a personal care facility licensed on or before December
24-4 31, 1990, under Chapter 242 a temporary permit to continue
24-5 operation until the department performs any inspection or
24-6 investigation required by this chapter.
24-7 Sec. 247.048. REGIONAL TRAINING FOR AGENCIES AND LOCAL
24-8 GOVERNMENTS. The department periodically shall conduct regional
24-9 training programs for representatives of local governments and
24-10 appropriate state agencies relating to assisted living facility
24-11 concerns. The training programs must provide to participants
24-12 information relating to the assisted living facility industry,
24-13 including information on:
24-14 (1) the general characteristics of assisted living
24-15 facilities and residents of those facilities;
24-16 (2) the different types of assisted living facilities;
24-17 (3) the laws applicable to assisted living facilities;
24-18 and
24-19 (4) the authority of the department and other entities
24-20 to enforce applicable laws.
24-21 Sec. 247.049. USE OF REGULATORY REPORTS AND DOCUMENTS.
24-22 (a) Except as otherwise provided by this section, a report or
24-23 other document prepared by the department that relates to
24-24 regulation of an assisted living facility is not admissible as
24-25 evidence in a civil action to prove that the facility violated a
24-26 standard prescribed under this chapter.
25-1 (b) Subsection (a) does not:
25-2 (1) bar the admission into evidence of department
25-3 reports or other documents in an enforcement action in which the
25-4 state or an agency or political subdivision of the state is a
25-5 party, including:
25-6 (A) an action seeking injunctive relief under
25-7 Section 247.044;
25-8 (B) an action seeking imposition of a civil
25-9 penalty under Section 247.045; and
25-10 (C) a contested case hearing involving denial,
25-11 suspension, or revocation of a license issued under this chapter;
25-12 (2) bar the admission into evidence of department
25-13 reports or other documents that are offered:
25-14 (A) to establish warning or notice to an
25-15 assisted living facility of a relevant department determination; or
25-16 (B) under any rule or evidentiary predicate of
25-17 the Texas Rules of Evidence;
25-18 (3) prohibit or limit the testimony of a department
25-19 employee, in accordance with the Texas Rules of Evidence, as to
25-20 observations, factual findings, conclusions, or determinations that
25-21 an assisted living facility violated a standard prescribed under
25-22 this chapter if the observations, factual findings, conclusions, or
25-23 determinations were made in the discharge of the employee's
25-24 official duties for the department; or
25-25 (4) prohibit or limit the use of department reports or
25-26 other documents in depositions or other forms of discovery
26-1 conducted in connection with a civil action if use of the reports
26-2 or other documents appears reasonably calculated to lead to the
26-3 discovery of admissible evidence.
26-4 Sec. 247.050. MONITORING OF UNLICENSED FACILITIES;
26-5 REPORTING. (a) The board shall adopt procedures to monitor the
26-6 status of unlicensed assisted living facilities. As part of these
26-7 procedures, the department shall:
26-8 (1) maintain a registry of all reported unlicensed
26-9 assisted living facilities for the purpose of periodic follow-up by
26-10 the field staff in each region; and
26-11 (2) prepare a quarterly report that shows the number
26-12 of:
26-13 (A) complaints relating to unlicensed assisted
26-14 living facilities that are received;
26-15 (B) complaints that are investigated;
26-16 (C) unsubstantiated complaints;
26-17 (D) substantiated complaints; and
26-18 (E) cases referred to the attorney general.
26-19 (b) The attorney general shall prepare a quarterly report
26-20 that shows:
26-21 (1) the number of:
26-22 (A) unlicensed assisted living facilities
26-23 referred to the attorney general;
26-24 (B) referrals pending;
26-25 (C) referrals investigated;
26-26 (D) facilities closed; and
27-1 (E) operators permanently enjoined from
27-2 operating an unlicensed assisted living facility; and
27-3 (2) the amount of civil penalties collected from
27-4 operators of unlicensed assisted living facilities.
27-5 (c) The department and the attorney general shall file a
27-6 copy of the quarterly reports required by this section with the
27-7 substantive committees of each house of the legislature with
27-8 jurisdiction over regulation of assisted living facilities.
27-9 SUBCHAPTER D. ADVISORY COMMITTEE ON ASSISTED LIVING
27-10 [PERSONAL CARE] FACILITIES
27-11 Sec. 247.051. ADVISORY COMMITTEE. (a) The Advisory
27-12 Committee on Assisted Living [Personal Care] Facilities consists of
27-13 nine members appointed by the board. The commissioner of human
27-14 services shall appoint two [one] staff members [member] from the
27-15 department to serve as [a] nonvoting advisory members [member]. In
27-16 appointing staff members under this subsection, the commissioner
27-17 shall appoint one member as a representative of long-term care
27-18 policy and one member as a representative of long-term care
27-19 regulation.
27-20 (b) The board shall appoint the advisory committee to
27-21 provide for a balanced representation of personal care providers
27-22 and consumers and shall appoint one member who has expertise in
27-23 life safety code regulations. At least one of the provider members
27-24 must be representative of a nonprofit facility, and at least one
27-25 member must be a family member of a resident of a facility.
27-26 (c) The committee shall elect the presiding officer from
28-1 among its members.
28-2 (d) The committee shall advise the department on standards
28-3 for licensing assisted living [personal care] facilities and on the
28-4 implementation of this chapter.
28-5 SUBCHAPTER E. MISCELLANEOUS PROVISIONS
28-6 Sec. 247.061. [PILOT PROGRAM: OFFICE OF PERSONAL CARE
28-7 FACILITY OMBUDSMAN. (a) The Texas Department on Aging, under its
28-8 office of long-term care ombudsman, shall establish and operate a
28-9 pilot program providing a personal care facility ombudsman in one
28-10 or more counties.]
28-11 [(b) The department may operate the office directly or by
28-12 contract or memorandum of agreement with a public agency or other
28-13 appropriate private nonprofit organization, including an
28-14 organization for family members of persons with mental illness or
28-15 an advocacy group concerning mental health, disabilities, or senior
28-16 citizens.]
28-17 [(c) The pilot program shall recruit volunteers and citizen
28-18 organizations to participate in the ombudsman program.]
28-19 [(d) The office shall provide training to ombudsmen,
28-20 including training in mental illness and special needs of the
28-21 elderly or disabled.]
28-22 [(e) An ombudsman in the pilot program may not make
28-23 investigations.]
28-24 [(f) The Texas Department on Aging and the department shall
28-25 cooperate in developing guidelines for the pilot program.]
28-26 [Sec. 247.062.] COORDINATION BETWEEN AGENCIES. (a) The
29-1 department and the attorney general shall adopt by rule a
29-2 memorandum of understanding that:
29-3 (1) defines each agency's responsibilities concerning
29-4 assisted living [personal care] facilities;
29-5 (2) outlines and coordinates procedures to be used by
29-6 those agencies in responding to complaints concerning assisted
29-7 living [personal care] facilities; and
29-8 (3) provides a plan for correcting violations or
29-9 deficiencies in assisted living [personal care] facilities.
29-10 (b) The department shall prepare the initial draft of the
29-11 memorandum of understanding and shall facilitate and ensure its
29-12 adoption.
29-13 Sec. 247.062 [247.063]. DIRECTORY OF ASSISTED LIVING
29-14 [PERSONAL CARE] FACILITIES; CONSUMERS' GUIDE. (a) The department
29-15 shall prepare a directory of assisted living [personal care]
29-16 facilities that includes the name of the owner, the address and
29-17 telephone number of the facility, the number of beds in the
29-18 facility, and the facility's accessibility to disabled persons.
29-19 (b) The department shall revise the directory annually and
29-20 shall make it available to the public.
29-21 (c) The department shall prepare a consumers' guide to
29-22 assisted living [personal care] facilities and make it available to
29-23 the public. The consumers' guide shall provide information on
29-24 licensing requirements for assisted living [personal care]
29-25 facilities, a brief description of minimum standards for
29-26 facilities, a copy of the residents' bill of rights, a copy of the
30-1 providers' bill of rights, and any other information that the
30-2 department determines may be useful to the public.
30-3 Sec. 247.063 [247.064]. REFERRALS. (a) If the Texas
30-4 Department of Mental Health and Mental Retardation or a local
30-5 mental health or mental retardation authority refers a patient or
30-6 client to an assisted living [a personal care] facility, the
30-7 referral may not be made to a [personal care] facility that is not
30-8 licensed under this chapter.
30-9 (b) If the Texas Department of Mental Health and Mental
30-10 Retardation or a local mental health or mental retardation
30-11 authority gains knowledge of an assisted living [a personal care]
30-12 facility that is not operated or licensed by the Texas Department
30-13 of Mental Health and Mental Retardation, the authority, or the
30-14 Texas Department of Human Services and that has four or more
30-15 residents who are unrelated to the proprietor of the facility, the
30-16 Texas Department of Mental Health and Mental Retardation or the
30-17 authority shall report the name, address, and telephone number of
30-18 the facility to the Texas Department of Human Services.
30-19 Sec. 247.0631. ACCESS. An employee of the Texas Department
30-20 of Mental Health and Mental Retardation or an employee of a local
30-21 mental health and mental retardation authority may enter an
30-22 assisted living facility as necessary to provide services to a
30-23 resident of the facility.
30-24 Sec. 247.064 [247.065]. RESIDENTS' BILL OF RIGHTS.
30-25 (a) Each assisted living [personal care] facility shall post a
30-26 residents' bill of rights in a prominent place in the facility.
31-1 (b) The residents' bill of rights must provide that each
31-2 resident in the assisted living [personal care] facility has the
31-3 right to:
31-4 (1) manage the resident's financial affairs;
31-5 (2) determine the resident's dress, hair style, or
31-6 other personal effects according to individual preference, except
31-7 that the resident has the responsibility to maintain personal
31-8 hygiene;
31-9 (3) retain and use personal property in the resident's
31-10 immediate living quarters and to have an individual locked cabinet
31-11 in which to keep personal property;
31-12 (4) receive and send unopened mail;
31-13 (5) unaccompanied access to a telephone at a
31-14 reasonable hour or in case of an emergency or personal crisis;
31-15 (6) privacy;
31-16 (7) unrestricted communication, including personal
31-17 visitation with any person of the resident's choice, at any
31-18 reasonable hour, including family members and representatives of
31-19 advocacy groups and community service organizations;
31-20 (8) make contacts with the community and to achieve
31-21 the highest level of independence, autonomy, and interaction with
31-22 the community of which the resident is capable;
31-23 (9) present grievances on behalf of the resident or
31-24 others to the operator, state agencies, or other persons without
31-25 threat of reprisal in any manner;
31-26 (10) a safe and decent living environment and
32-1 considerate and respectful care that recognizes the dignity and
32-2 individuality of the resident;
32-3 (11) refuse to perform services for the facility,
32-4 except as contracted for by the resident and operator;
32-5 (12) practice the religion of the resident's choice;
32-6 (13) leave the facility temporarily or permanently,
32-7 subject to contractual or financial obligations; and
32-8 (14) not be deprived of any constitutional, civil, or
32-9 legal right solely by reason of residence in an assisted living [a
32-10 personal care] facility.
32-11 (c) The residents' bill of rights must be written in the
32-12 primary language of each resident of the facility and must also
32-13 provide the toll-free telephone number of the department for
32-14 reporting abuse or neglect.
32-15 (d) The rights provided under this section do not take
32-16 precedence over health and safety rights of other residents of the
32-17 facility.
32-18 (e) The department shall develop a residents' bill of rights
32-19 in accordance with this section and provide a copy to each
32-20 facility. The copy shall be written in the primary language of
32-21 each resident of the facility.
32-22 Sec. 247.065 [247.066]. PROVIDERS' BILL OF RIGHTS.
32-23 (a) Each assisted living [personal care] facility shall post a
32-24 providers' bill of rights in a prominent place in the facility.
32-25 (b) The providers' bill of rights must provide that a
32-26 provider of personal care services has the right to:
33-1 (1) be shown consideration and respect that recognizes
33-2 the dignity and individuality of the provider and assisted living
33-3 [personal care] facility;
33-4 (2) terminate a resident's contract for just cause
33-5 after a written 30-day notice;
33-6 (3) terminate a contract immediately, after notice to
33-7 the department, if the provider finds that a resident creates a
33-8 serious or immediate threat to the health, safety, or welfare of
33-9 other residents of the assisted living [personal care] facility;
33-10 (4) present grievances, file complaints, or provide
33-11 information to state agencies or other persons without threat of
33-12 reprisal or retaliation;
33-13 (5) refuse to perform services for the resident or the
33-14 resident's family other than those contracted for by the resident
33-15 and the provider;
33-16 (6) contract with the community to achieve the highest
33-17 level of independence, autonomy, interaction, and services to
33-18 residents;
33-19 (7) access to patient information concerning a client
33-20 referred to the facility, which must remain confidential as
33-21 provided by law;
33-22 (8) refuse a person referred to the facility if the
33-23 referral is inappropriate;
33-24 (9) maintain an environment free of weapons and drugs;
33-25 and
33-26 (10) be made aware of a resident's problems, including
34-1 self-abuse, violent behavior, alcoholism, or drug abuse.
34-2 Sec. 247.066. APPROPRIATE PLACEMENT DETERMINATION. (a) The
34-3 department may not require the removal and relocation of a resident
34-4 of an assisted living facility if the resident's presence in the
34-5 facility does not endanger other residents and the resident can
34-6 receive adequate care at the facility through services:
34-7 (1) provided by the facility in accordance with its
34-8 license; or
34-9 (2) obtained by the resident from other providers.
34-10 (b) In assessing whether a resident can receive adequate
34-11 care at a facility, the department shall consider all relevant
34-12 factors, including the placement preference expressed by the
34-13 resident with the agreement of the facility operator, the
34-14 resident's physician, and the resident's family members or other
34-15 representatives.
34-16 Sec. 247.067. HEALTH CARE PROFESSIONALS. (a) In this
34-17 section, "health care professional" means an individual licensed,
34-18 certified, or otherwise authorized to administer health care, for
34-19 profit or otherwise, in the ordinary course of business or
34-20 professional practice. The term includes a physician, registered
34-21 nurse, licensed vocational nurse, licensed dietitian, physical
34-22 therapist, and occupational therapist.
34-23 (b) A health care professional may provide services within
34-24 the professional's scope of practice to a resident of an assisted
34-25 living facility at the facility. This subsection does not
34-26 authorize a facility to provide ongoing services comparable to the
35-1 services available in an institution licensed under Chapter 242. A
35-2 health care professional providing services under this subsection
35-3 shall maintain medical records of those services in accordance with
35-4 the licensing, certification, or other regulatory standards
35-5 applicable to the health care professional under law.
35-6 (c) A resident of an assisted living facility has the right
35-7 to contract with a home and community support services agency
35-8 licensed under Chapter 142 or with an independent health
35-9 professional for health care services.
35-10 Sec. 247.068. RETALIATION PROHIBITED. (a) A person
35-11 licensed under this chapter may not retaliate against a person for
35-12 filing a complaint, presenting a grievance, or providing in good
35-13 faith information relating to personal care services provided by
35-14 the license holder.
35-15 (b) This section does not prohibit a license holder from
35-16 terminating an employee for a reason other than retaliation.
35-17 SECTION 2. AMENDMENT. Subchapter B, Chapter 242, Health and
35-18 Safety Code, is amended by adding Section 242.0445 to read as
35-19 follows:
35-20 Sec. 242.0445. REPORTING OF VIOLATIONS. (a) The department
35-21 or the department's representative conducting an inspection,
35-22 survey, or investigation under Section 242.043 or 242.044 shall:
35-23 (1) list each violation of a law or rule on a form
35-24 designed by the department for inspections; and
35-25 (2) identify the specific law or rule the facility
35-26 violated.
36-1 (b) At the conclusion of an inspection, survey, or
36-2 investigation under Section 242.043 or 242.044, the department or
36-3 the department's representative conducting the inspection, survey,
36-4 or investigation shall discuss the violations with the facility's
36-5 management in an exit conference. The department or the
36-6 department's representative shall leave a written list of the
36-7 violations with the facility at the time of the exit conference.
36-8 If the department or the department's representative discovers any
36-9 additional violations during the review of field notes or
36-10 preparation of the official final list, the department or the
36-11 department's representative shall give the facility an additional
36-12 exit conference regarding the additional violations.
36-13 (c) The facility shall submit a plan to correct the
36-14 violations to the regional director not later than the 10th working
36-15 day after the date the facility receives the final statement of
36-16 violations.
36-17 SECTION 3. AMENDMENT. Subdivision (3), Section 250.001,
36-18 Health and Safety Code, is amended to read as follows:
36-19 (3) "Facility" means:
36-20 (A) a nursing home, custodial care home, or
36-21 other institution licensed by the Texas Department of Human
36-22 Services under Chapter 242;
36-23 (B) an assisted living [a personal care]
36-24 facility licensed by the Texas Department of Human Services under
36-25 Chapter 247;
36-26 (C) a home health agency licensed [by the Texas
37-1 Department of Health] under Chapter 142;
37-2 (D) an adult day care facility [or adult day
37-3 health care facility] licensed by the Texas Department of Human
37-4 Services under Chapter 103, Human Resources Code;
37-5 (E) a facility for persons with mental
37-6 retardation licensed under Chapter 252 [or certified by the Texas
37-7 Department of Human Services];
37-8 (F) an unlicensed attendant care agency that
37-9 contracts with the Texas Department of Human Services;
37-10 (G) [an intermediate care facility for persons
37-11 with mental retardation that is certified by the Texas Department
37-12 of Human Services to participate in the Medicaid program under
37-13 Title XIX of the Social Security Act (42 U.S.C. Section 1396 et
37-14 seq.);]
37-15 [(H)] an adult foster care provider that
37-16 contracts with the Texas Department of Human Services; or
37-17 (H) [(I)] a facility that provides mental health
37-18 services and that is operated by or contracts with the Texas
37-19 Department of Mental Health and Mental Retardation.
37-20 SECTION 4. AMENDMENT. Section 36.002, Human Resources Code,
37-21 is amended to read as follows:
37-22 Sec. 36.002. UNLAWFUL ACTS. A person commits an unlawful
37-23 act if the person:
37-24 (1) knowingly or intentionally makes or causes to be
37-25 made a false statement or misrepresentation of a material fact:
37-26 (A) on an application for a contract, benefit,
38-1 or payment under the Medicaid program; or
38-2 (B) that is intended to be used to determine a
38-3 person's eligibility for a benefit or payment under the Medicaid
38-4 program;
38-5 (2) knowingly or intentionally conceals or fails to
38-6 disclose an event:
38-7 (A) that the person knows affects the initial or
38-8 continued right to a benefit or payment under the Medicaid program
38-9 of:
38-10 (i) the person; or
38-11 (ii) another person on whose behalf the
38-12 person has applied for a benefit or payment or is receiving a
38-13 benefit or payment; and
38-14 (B) to permit a person to receive a benefit or
38-15 payment that is not authorized or that is greater than the payment
38-16 or benefit that is authorized;
38-17 (3) knowingly or intentionally applies for and
38-18 receives a benefit or payment on behalf of another person under the
38-19 Medicaid program and converts any part of the benefit or payment to
38-20 a use other than for the benefit of the person on whose behalf it
38-21 was received;
38-22 (4) knowingly or intentionally makes, causes to be
38-23 made, induces, or seeks to induce the making of a false statement
38-24 or misrepresentation of material fact concerning:
38-25 (A) the conditions or operation of a facility in
38-26 order that the facility may qualify for certification or
39-1 recertification required by the Medicaid program, including
39-2 certification or recertification as:
39-3 (i) a hospital;
39-4 (ii) a nursing facility or skilled nursing
39-5 facility;
39-6 (iii) a hospice;
39-7 (iv) an intermediate care facility for the
39-8 mentally retarded;
39-9 (v) an assisted living [a personal care]
39-10 facility; or
39-11 (vi) a home health agency; or
39-12 (B) information required to be provided by a
39-13 federal or state law, rule, regulation, or provider agreement
39-14 pertaining to the Medicaid program;
39-15 (5) except as authorized under the Medicaid program,
39-16 knowingly or intentionally charges, solicits, accepts, or receives,
39-17 in addition to an amount paid under the Medicaid program, a gift,
39-18 money, a donation, or other consideration as a condition to the
39-19 provision of a service or continued service to a Medicaid recipient
39-20 if the cost of the service provided to the Medicaid recipient is
39-21 paid for, in whole or in part, under the Medicaid program;
39-22 (6) knowingly or intentionally presents or causes to
39-23 be presented a claim for payment under the Medicaid program for a
39-24 product provided or a service rendered by a person who:
39-25 (A) is not licensed to provide the product or
39-26 render the service, if a license is required; or
40-1 (B) is not licensed in the manner claimed;
40-2 (7) knowingly or intentionally makes a claim under the
40-3 Medicaid program for:
40-4 (A) a service or product that has not been
40-5 approved or acquiesced in by a treating physician or health care
40-6 practitioner;
40-7 (B) a service or product that is substantially
40-8 inadequate or inappropriate when compared to generally recognized
40-9 standards within the particular discipline or within the health
40-10 care industry; or
40-11 (C) a product that has been adulterated,
40-12 debased, mislabeled, or that is otherwise inappropriate;
40-13 (8) makes a claim under the Medicaid program and
40-14 knowingly or intentionally fails to indicate the type of license
40-15 and the identification number of the licensed health care provider
40-16 who actually provided the service;
40-17 (9) knowingly or intentionally enters into an
40-18 agreement, combination, or conspiracy to defraud the state by
40-19 obtaining or aiding another person in obtaining an unauthorized
40-20 payment or benefit from the Medicaid program or a fiscal agent; or
40-21 (10) is a managed care organization that contracts
40-22 with the Health and Human Services Commission or other state agency
40-23 to provide or arrange to provide health care benefits or services
40-24 to individuals eligible under the Medicaid program and knowingly or
40-25 intentionally:
40-26 (A) fails to provide to an individual a health
41-1 care benefit or service that the organization is required to
41-2 provide under the contract;
41-3 (B) fails to provide to the commission or
41-4 appropriate state agency information required to be provided by
41-5 law, commission or agency rule, or contractual provision;
41-6 (C) engages in a fraudulent activity in
41-7 connection with the enrollment of an individual eligible under the
41-8 Medicaid program in the organization's managed care plan or in
41-9 connection with marketing the organization's services to an
41-10 individual eligible under the Medicaid program; or
41-11 (D) obstructs an investigation by the attorney
41-12 general of an alleged unlawful act under this section.
41-13 SECTION 5. AMENDMENT. Title 6, Human Resources Code, is
41-14 amended by adding Chapter 105 to read as follows:
41-15 CHAPTER 105. RESIDENTIAL FACILITIES FOR THE ELDERLY
41-16 Sec. 105.001. DEFINITIONS. In this chapter:
41-17 (1) "Establishment" means a facility providing
41-18 sleeping accommodations to two or more qualifying adult residents,
41-19 at least 80 percent of whom are 65 years of age or older or are
41-20 disabled, and offering, for a fee, one or more supportive services
41-21 through contract with an agency licensed under Chapter 142, Health
41-22 and Safety Code, or with another entity.
41-23 (2) "Qualifying adult resident" means an adult
41-24 resident of a facility who is not related within the second degree
41-25 by consanguinity or affinity to:
41-26 (A) a person who has an ownership interest in
42-1 the facility; or
42-2 (B) at least one other resident of the facility.
42-3 (3) "Supportive services" means medical services,
42-4 health-related services, or personal care services as defined by
42-5 Section 247.002, Health and Safety Code.
42-6 Sec. 105.002. EXEMPT FACILITIES. The following facilities
42-7 are exempt from the application of this chapter:
42-8 (1) housing in which all supportive services are
42-9 arranged directly by the residents themselves and are provided by
42-10 outside entities;
42-11 (2) nursing facilities licensed under Chapter 242,
42-12 Health and Safety Code; and
42-13 (3) continuing care facilities regulated by the Texas
42-14 Department of Insurance under Chapter 246, Health and Safety Code.
42-15 Sec. 105.003. DISCLOSURE REQUIRED IN CONTRACT. An
42-16 establishment that is not required to be licensed as an assisted
42-17 living facility under Chapter 247, Health and Safety Code, shall
42-18 execute a contract with each of its residents that contains, in
42-19 addition to other required information, the following elements:
42-20 (1) the name, street address, and mailing address of
42-21 the establishment;
42-22 (2) the name and mailing address of at least one
42-23 person authorized to act on behalf of the owner or owners or
42-24 management agent of the establishment;
42-25 (3) a statement describing the licensure status of the
42-26 establishment;
43-1 (4) the name, mailing address, and telephone number of
43-2 any provider, including any individual or entity, regardless of
43-3 whether licensed, providing supportive services under a contract
43-4 with the establishment;
43-5 (5) the term of the contract;
43-6 (6) a description of the services to be provided that
43-7 are included in the base monthly rate to be paid by the resident;
43-8 (7) a description of any additional services available
43-9 for an additional fee from a provider through a contract with the
43-10 establishment;
43-11 (8) a provision requiring the establishment to provide
43-12 written notice of any change in fee schedules that outline the cost
43-13 of additional services not later than the 31st day before the
43-14 effective date of the change;
43-15 (9) a description of the process by which the contract
43-16 may be modified, amended, or terminated;
43-17 (10) a description of the complaint resolution process
43-18 available to residents;
43-19 (11) the name, street address, mailing address, and
43-20 telephone number of the resident's designated representative, if
43-21 any;
43-22 (12) a description of the billing and payment
43-23 procedures and requirements;
43-24 (13) a statement ensuring the ability and right of
43-25 residents to receive services from providers with whom the
43-26 establishment does not have a contract; and
44-1 (14) a statement identifying the life safety and fire
44-2 codes met by the building and a statement indicating whether those
44-3 codes are comparable to the codes with which an assisted living
44-4 facility licensed under Chapter 247, Health and Safety Code, must
44-5 comply.
44-6 SECTION 6. AMENDMENT. Section 123.004, Human Resources
44-7 Code, is amended to read as follows:
44-8 Sec. 123.004. QUALIFICATION AS COMMUNITY HOME. To qualify
44-9 as a community home, an entity must comply with Sections 123.005
44-10 through 123.008 and be:
44-11 (1) a community-based residential home operated by:
44-12 (A) the Texas Department of Mental Health and
44-13 Mental Retardation;
44-14 (B) a community center organized under
44-15 Subchapter A, Chapter 534, Health and Safety Code, that provides
44-16 services to persons with disabilities;
44-17 (C) an entity subject to the Texas Non-Profit
44-18 Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil
44-19 Statutes); or
44-20 (D) an entity certified by the Texas Department
44-21 of Human Services as a provider under the medical assistance
44-22 program serving persons in intermediate care facilities for persons
44-23 with mental retardation; or
44-24 (2) an assisted living [a personal care] facility
44-25 licensed under Chapter 247, Health and Safety Code, provided that
44-26 the exterior structure retains compatibility with the surrounding
45-1 residential dwellings.
45-2 SECTION 7. REFERENCE TO PERSONAL CARE FACILITY. (a) A
45-3 reference in law to a personal care facility means an assisted
45-4 living facility, as defined by Section 247.002, Health and Safety
45-5 Code, as amended by this Act.
45-6 (b) A reference in law to the Advisory Committee on Personal
45-7 Care Facilities means the Advisory Committee on Assisted Living
45-8 Facilities established under Section 247.051, Health and Safety
45-9 Code, as amended by this Act.
45-10 SECTION 8. ENFORCEMENT OF LICENSURE REQUIREMENT. (a) Not
45-11 later than January 1, 2000, the Texas Department of Human Services
45-12 shall:
45-13 (1) identify unlicensed facilities in this state that
45-14 are required to be licensed under Chapter 247, Health and Safety
45-15 Code, as amended by this Act; and
45-16 (2) take action to enforce the licensure requirements.
45-17 (b) Not later than December 1, 2000, the department shall
45-18 submit to the governor and the legislature a report describing the
45-19 results of the department's efforts under this section. The
45-20 report must include:
45-21 (1) the number of facilities identified;
45-22 (2) the geographical distribution of those facilities;
45-23 and
45-24 (3) the results of the department's efforts to enforce
45-25 licensure of those facilities.
45-26 (c) This section takes effect on the first date that it may
46-1 take effect under Section 39, Article III, Texas Constitution.
46-2 SECTION 9. WORK GROUP ON TEXAS ACCESSIBILITY STANDARDS.
46-3 (a) As soon as possible after the effective date of this section,
46-4 the Texas Department of Human Services and the Texas Department of
46-5 Licensing and Regulation shall form a joint work group to study and
46-6 make recommendations not later than September 1, 2000, to those
46-7 agencies concerning the application of the Texas Accessibility
46-8 Standards and other architectural requirements to facilities
46-9 required to be licensed under Chapter 247, Health and Safety Code.
46-10 (b) The work group shall:
46-11 (1) review bathroom accessibility standards applicable
46-12 to a facility and make suggestions regarding any necessary changes
46-13 to those standards;
46-14 (2) determine whether the architectural reviews of a
46-15 facility currently conducted separately by each agency could be
46-16 consolidated into a single review;
46-17 (3) develop standard information materials that
46-18 address architectural requirements applicable to construction or
46-19 modification of a facility; and
46-20 (4) address any other issue relating to architectural
46-21 standards applicable to a facility.
46-22 (c) The agencies shall include in the work group
46-23 representatives of developers and providers of facilities and
46-24 consumers of personal care services provided by facilities.
46-25 (d) The members of the work group shall elect a presiding
46-26 officer and any other necessary officers for the work group.
47-1 (e) The work group shall meet at the call of the presiding
47-2 officer.
47-3 (f) A member of the work group receives no compensation for
47-4 serving on the work group.
47-5 (g) The work group is not subject to Chapter 2110,
47-6 Government Code.
47-7 (h) The work group dissolves and this section expires
47-8 September 1, 2001.
47-9 (i) This section takes effect on the first date that it may
47-10 take effect under Section 39, Article III, Texas Constitution.
47-11 SECTION 10. COMMUNITY-BASED ALTERNATIVES PROGRAM RATE
47-12 METHOD. (a) As soon as possible after the effective date of this
47-13 section, the Texas Department of Human Services by rule shall
47-14 develop and implement a new reimbursement method for personal care
47-15 services funded through the community-based alternatives program
47-16 that is based on the type of service provided, in addition to the
47-17 number of clients occupying a room and whether the living
47-18 arrangement is an apartment or a non-apartment setting.
47-19 (b) This section takes effect on the first date that it may
47-20 take effect under Section 39, Article III, Texas Constitution.
47-21 SECTION 11. DEADLINE: CONSUMER DISCLOSURE STATEMENT. Not
47-22 later than September 1, 1999, the Texas Department of Human
47-23 Services shall adopt the consumer disclosure statement required by
47-24 Paragraph (B), Subdivision (4), Subsection (b), Section 247.026,
47-25 Health and Safety Code, as added by this Act.
47-26 SECTION 12. TRANSITION: REQUIRED EDUCATIONAL COURSE FOR
48-1 MANAGERS OF CERTAIN FACILITIES. Subsection (i), Section 247.026,
48-2 Health and Safety Code, as added by this Act, applies only to a
48-3 person who begins employment as a manager of an assisted living
48-4 facility on or after the effective date of this Act. A person who
48-5 begins employment as a manager of an assisted living facility
48-6 before the effective date of this Act is governed by the law in
48-7 effect on the date that the person begins employment, and that law
48-8 is continued in effect for that purpose.
48-9 SECTION 13. LEGISLATIVE INTENT. Subsection (d), Section
48-10 247.045, Health and Safety Code, as amended by this Act, is
48-11 intended to emphasize the authority of the attorney general to
48-12 institute and conduct a suit to collect a penalty and fees. The
48-13 amendment may not be construed to mean that the attorney general
48-14 lacked that authority before the effective date of this Act.
48-15 SECTION 14. WAIVERS. If, before implementing any provision
48-16 of this Act, a state agency determines that a waiver or
48-17 authorization from a federal agency is necessary for implementation
48-18 of that provision, the agency affected by the provision shall
48-19 request the waiver or authorization and may delay implementing that
48-20 provision until the waiver or authorization is granted.
48-21 SECTION 15. CONFLICTS. To the extent of any conflict, this
48-22 Act prevails over another Act of the 76th Legislature, Regular
48-23 Session, 1999, relating to nonsubstantive additions to and
48-24 corrections in enacted codes.
48-25 SECTION 16. EFFECTIVE DATE. Except as otherwise provided by
48-26 this Act, this Act takes effect September 1, 1999.
49-1 SECTION 17. EMERGENCY. The importance of this legislation
49-2 and the crowded condition of the calendars in both houses create an
49-3 emergency and an imperative public necessity that the
49-4 constitutional rule requiring bills to be read on three several
49-5 days in each house be suspended, and this rule is hereby suspended,
49-6 and that this Act take effect and be in force according to its
49-7 terms, and it is so enacted.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 93 passed the Senate on
March 18, 1999, by the following vote: Yeas 30, Nays 0, one
present not voting; and that the Senate concurred in House
amendments on May 11, 1999, by the following vote: Yeas 30,
Nays 0.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 93 passed the House, with
amendments, on May 7, 1999, by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor