1-1 By: Moncrief, et al. S.B. No. 93
1-2 (In the Senate - Filed December 14, 1998; January 26, 1999,
1-3 read first time and referred to Committee on Health Services;
1-4 March 4, 1999, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 5, Nays 0; March 4, 1999,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 93 By: Moncrief
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the regulation of assisted living facilities and
1-11 requiring disclosures by certain other facilities serving persons
1-12 who are elderly or disabled.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. AMENDMENT. Chapter 247, Health and Safety Code,
1-15 is amended to read as follows:
1-16 CHAPTER 247. ASSISTED LIVING [PERSONAL CARE] FACILITIES
1-17 SUBCHAPTER A. GENERAL PROVISIONS
1-18 Sec. 247.001. SHORT TITLE. This chapter may be cited as the
1-19 Assisted Living [Personal Care] Facility Licensing Act.
1-20 Sec. 247.0011. SCOPE, PURPOSE, AND IMPLEMENTATION. (a) The
1-21 purpose of this chapter is to ensure that assisted living
1-22 facilities in this state deliver the highest possible quality of
1-23 care. This chapter and the rules adopted under this chapter
1-24 establish minimum acceptable levels of care, and a violation of a
1-25 minimum acceptable level of care established under this chapter is
1-26 a violation of law. For purposes of this chapter, components of
1-27 quality of care include:
1-28 (1) resident independence and self-determination;
1-29 (2) humane treatment;
1-30 (3) conservative intervention;
1-31 (4) access to care;
1-32 (5) continuity of care;
1-33 (6) coordination of services;
1-34 (7) safe surroundings;
1-35 (8) professionalism of service providers;
1-36 (9) participation in useful studies; and
1-37 (10) quality of life.
1-38 (b) The department shall protect residents of assisted
1-39 living facilities by:
1-40 (1) adopting rules relating to quality of care and
1-41 quality of life;
1-42 (2) adopting rules relating to the assessment of the
1-43 condition and service needs of each resident;
1-44 (3) promoting policies that maximize the dignity,
1-45 autonomy, privacy, and independence of each resident;
1-46 (4) regulating the construction, maintenance, and
1-47 operation of assisted living facilities;
1-48 (5) strictly monitoring factors relating to the
1-49 health, safety, welfare, and dignity of each resident;
1-50 (6) imposing prompt and effective remedies for
1-51 violations of this chapter and rules and standards adopted under
1-52 this chapter;
1-53 (7) providing a residential environment that allows
1-54 residents to maintain the highest possible degree of independence
1-55 and self-determination; and
1-56 (8) providing the public with helpful and
1-57 understandable information relating to the operation of assisted
1-58 living facilities in this state.
1-59 (c) Assisted living services are driven by a service
1-60 philosophy that emphasizes personal dignity, autonomy,
1-61 independence, and privacy. Assisted living services should enhance
1-62 a person's ability to age in place in a residential setting while
1-63 receiving increasing or decreasing levels of service as the
1-64 person's needs change.
2-1 Sec. 247.002. DEFINITIONS. In this chapter:
2-2 (1) "Assisted living facility" means an establishment
2-3 that:
2-4 (A) furnishes, in one or more facilities, food
2-5 and shelter to four or more persons who are unrelated to the
2-6 proprietor of the establishment; and
2-7 (B) provides personal care services.
2-8 (2) "Board" means the Texas Board of Human Services.
2-9 (3) "Controlling person" means a person who controls
2-10 an assisted living facility or other person as described by Section
2-11 247.005.
2-12 (4) [(2)] "Department" means the Texas Department of
2-13 Human Services.
2-14 (5) [(3) "Personal care facility" means an
2-15 establishment, including a board and care home, that:]
2-16 [(A) furnishes, in one or more facilities, food
2-17 and shelter to four or more persons who are unrelated to the
2-18 proprietor of the establishment; and]
2-19 [(B) provides personal care services.]
2-20 [(4)] "Personal care services" means:
2-21 (A) assistance with meals, dressing, movement,
2-22 bathing, or other personal needs or maintenance;
2-23 (B) the administration of medication by a person
2-24 licensed to administer medication or the assistance with or
2-25 supervision of medication; or
2-26 (C) general supervision or oversight of the
2-27 physical and mental well-being of a person who needs assistance to
2-28 maintain a private and independent residence in an assisted living
2-29 [a personal care] facility or who needs assistance to manage the
2-30 person's personal life, regardless of whether a guardian has been
2-31 appointed for the person.
2-32 (6) [(5)] "Qualified religious society" means a
2-33 church, synagogue, or other organization or association that is
2-34 organized primarily for religious purposes and that:
2-35 (A) has been in existence in this state for at
2-36 least 35 years; and
2-37 (B) does not distribute any of its income to its
2-38 members, officers, or governing body other than as reasonable
2-39 compensation for services or reimbursement of expenses.
2-40 Sec. 247.003. APPLICATION OF OTHER LAW. (a) Except as
2-41 provided by Subsection (b), Chapter 242 does not apply to an
2-42 assisted living [a personal care] facility licensed under this
2-43 chapter.
2-44 (b) Subchapter D, Chapter 242, applies to an assisted living
2-45 [a personal care] facility, and the department shall administer and
2-46 enforce that subchapter for an assisted living [a personal care]
2-47 facility in the same manner it is administered and enforced for a
2-48 nursing home.
2-49 Sec. 247.004. EXEMPTIONS. This chapter does not apply to:
2-50 (1) a boarding facility that has rooms for rent and
2-51 that may offer community meals, light housework, meal preparation,
2-52 transportation, grocery shopping, money management, or laundry
2-53 services but that does not provide personal care services;
2-54 (2) an establishment conducted by or for the adherents
2-55 of the Church of Christ, Scientist, for the purpose of providing
2-56 facilities for the care or treatment of the sick who depend
2-57 exclusively on prayer or spiritual means for healing without the
2-58 use of any drug or material remedy if the establishment complies
2-59 with local safety, sanitary, and quarantine ordinances and
2-60 regulations; [or]
2-61 (3) a facility conducted by or for the adherents of a
2-62 qualified religious society classified as a tax-exempt organization
2-63 under an Internal Revenue Service group exemption ruling for the
2-64 purpose of providing personal care services without charge solely
2-65 for the society's professed members or ministers in retirement, if
2-66 the facility complies with local safety, sanitation, and quarantine
2-67 ordinances and regulations; or
2-68 (4) a facility that provides personal care services
2-69 only to persons enrolled in a program that is funded in whole or in
3-1 part by the Texas Department of Mental Health and Mental
3-2 Retardation and that is monitored by the Texas Department of Mental
3-3 Health and Mental Retardation or its designated local authority in
3-4 accordance with standards set by the Texas Department of Mental
3-5 Health and Mental Retardation.
3-6 Sec. 247.005. CONTROLLING PERSON. (a) A person is a
3-7 controlling person if the person, acting alone or with others, has
3-8 the ability to directly or indirectly influence, direct, or cause
3-9 the direction of the management, expenditure of money, or policies
3-10 of an assisted living facility or other person.
3-11 (b) For purposes of this chapter, "controlling person"
3-12 includes:
3-13 (1) a management company, landlord, or other business
3-14 entity that operates or contracts with others for the operation of
3-15 an assisted living facility;
3-16 (2) a person who is a controlling person of a
3-17 management company or other business entity that operates an
3-18 assisted living facility or that contracts with another person for
3-19 the operation of an assisted living facility; and
3-20 (3) any other individual who, because of a personal,
3-21 familial, or other relationship with the owner, manager, landlord,
3-22 tenant, or provider of an assisted living facility, is in a
3-23 position of actual control or authority with respect to the
3-24 facility, without regard to whether the individual is formally
3-25 named as an owner, manager, director, officer, provider,
3-26 consultant, contractor, or employee of the facility.
3-27 (c) A controlling person described by Subsection (b)(3) does
3-28 not include an employee, lender, secured creditor, landlord, or
3-29 other person who does not exercise formal or actual influence or
3-30 control over the operation of an assisted living facility.
3-31 (d) The department may adopt rules that specify the
3-32 ownership interests and other relationships that qualify a person
3-33 as a controlling person.
3-34 SUBCHAPTER B. LICENSING, FEES, AND INSPECTIONS
3-35 Sec. 247.021. LICENSE REQUIRED. (a) A person may not
3-36 establish or operate an assisted living [a personal care] facility
3-37 without a license issued under this chapter.
3-38 (b) A person establishing or operating a facility that is
3-39 not required to be licensed under this chapter may not use the term
3-40 "assisted living" in referring to the facility or the services
3-41 provided at the facility.
3-42 (c) A person establishing or operating a facility that is
3-43 not required to be licensed but who elects to obtain a license
3-44 under this chapter may use the term "assisted living" in referring
3-45 to the facility or the services provided at the facility.
3-46 (d) The department by rule shall establish procedures to
3-47 issue a six-month provisional license to existing facilities with
3-48 residents. The department may issue a provisional license only if:
3-49 (1) the facility is in compliance with resident care
3-50 standards;
3-51 (2) the facility voluntarily discloses that the
3-52 facility needs additional time to comply with life safety code and
3-53 physical plant standards;
3-54 (3) the disclosure is made in writing by certified
3-55 mail to the department;
3-56 (4) an investigation of the violation was not
3-57 initiated and the violation was not independently detected by the
3-58 department; and
3-59 (5) the disclosure is made promptly after knowledge of
3-60 the information disclosed is obtained by the facility.
3-61 (e) [(c)] If, at the end of the six-month provisional
3-62 license period, the facility does not meet life safety code and
3-63 physical plant standards, the department may not issue a license to
3-64 the facility.
3-65 Sec. 247.022. LICENSE APPLICATION. (a) An applicant for an
3-66 assisted living [a personal care] facility license must submit an
3-67 application to the department on a form prescribed by the
3-68 department.
3-69 (b) Each application must be accompanied by a nonrefundable
4-1 license fee in an amount set by the board.
4-2 (c) The department may provide technical assistance to an
4-3 applicant by making brief inspections of the assisted living
4-4 [personal care] facility proposed to be licensed and making
4-5 recommendations concerning actions necessary to meet standards for
4-6 assisted living [personal care] facilities.
4-7 Sec. 247.023. ISSUANCE AND RENEWAL OF LICENSE. (a) The
4-8 department shall issue a license if, after inspection and
4-9 investigation, it finds that the applicant, [and] the assisted
4-10 living [personal care] facility, and all controlling persons with
4-11 respect to the applicant or facility meet the requirements of this
4-12 chapter and the standards adopted under this chapter.
4-13 (b) To renew a license, the license holder must submit to
4-14 the department the annual license renewal fee.
4-15 (c) The board may require participation in a continuing
4-16 education program as a condition of renewal of a license. The
4-17 board shall adopt rules to implement this subsection.
4-18 Sec. 247.0231. COMPLIANCE RECORD IN OTHER STATES. The
4-19 department may require an applicant or license holder to provide
4-20 the department with information relating to compliance by the
4-21 applicant, the license holder, or a controlling person with respect
4-22 to the applicant or license holder with regulatory requirements in
4-23 another state in which the applicant, license holder, or
4-24 controlling person operates or operated an assisted living
4-25 facility.
4-26 Sec. 247.024. FEES; DISPOSITION OF REVENUE. (a) The board
4-27 shall set license fees imposed by this chapter:
4-28 (1) on the basis of the number of beds in assisted
4-29 living facilities required to pay the fee; and
4-30 (2) in amounts reasonable and necessary to defray the
4-31 cost of administering this chapter, but not to exceed $750[:]
4-32 [(1) $300 for a personal care facility that has not
4-33 more than 10 beds;]
4-34 [(2) $350 for a personal care facility that has not
4-35 less than 11 or more than 20 beds; and]
4-36 [(3) $400 for a personal care facility that has 21 or
4-37 more beds].
4-38 (b) The board shall establish by rule a base fee schedule
4-39 and a per bed fee schedule.
4-40 (c) All fees or penalties collected under this chapter shall
4-41 be deposited in the state treasury to the credit of the general
4-42 revenue fund and shall be appropriated to the department only to
4-43 administer and enforce this chapter.
4-44 (d) [(c)] Investigation fees or attorney's fees may not be
4-45 assessed against or collected from an assisted living [a personal
4-46 care] facility by or on behalf of the department or another state
4-47 agency unless the department or other state agency assesses and
4-48 collects a penalty authorized by this chapter from the facility.
4-49 Sec. 247.025. ADOPTION OF RULES. The board shall adopt
4-50 rules necessary to implement this chapter, including requirements
4-51 for the issuance, renewal, denial, suspension, and revocation of a
4-52 license to operate an assisted living [a personal care] facility.
4-53 Sec. 247.026. STANDARDS. (a) The board by rule shall
4-54 prescribe minimum standards to protect the health and safety of an
4-55 assisted living [a personal care] facility resident.
4-56 (b) The standards must:
4-57 (1) clearly differentiate an assisted living [a
4-58 personal care] facility from an institution required to be licensed
4-59 under Chapter 242;
4-60 (2) ensure quality care and protection of the
4-61 residents' health and safety without excessive cost; and
4-62 (3) require an assisted living [a personal care]
4-63 facility to:
4-64 (A) indicate [use its license number] in all
4-65 advertisements, solicitations, and promotional materials that the
4-66 facility is licensed by the department or that an application for a
4-67 license is pending before the department; and
4-68 (B) provide each prospective resident or
4-69 prospective resident's representative, as appropriate, with a
5-1 consumer disclosure statement in a standard form adopted by the
5-2 department.
5-3 (c) The board shall require an assisted living facility that
5-4 provides brain injury rehabilitation services to include in the
5-5 facility's consumer disclosure statement a specific statement that
5-6 licensure as an assisted living facility does not indicate state
5-7 review, approval, or endorsement of the facility's rehabilitation
5-8 services.
5-9 (d) The board may prescribe different levels of minimum
5-10 standards for assisted living [personal care] facilities according
5-11 to the number of residents, the type of residents, the level of
5-12 personal care provided, and other distinctions the board considers
5-13 relevant.
5-14 (e) [(d)] Local health and safety standards adopted by the
5-15 municipality in which an assisted living [a personal care] facility
5-16 is located do not apply to the facility unless the standards
5-17 specifically state that they apply to assisted living [personal
5-18 care] facilities.
5-19 (f) [(e)] The board by rule shall prescribe minimum
5-20 standards requiring appropriate training in geriatric care for each
5-21 individual who provides services to geriatric residents as an
5-22 employee of an assisted living [a personal care] facility and who
5-23 holds a license or certificate issued by an agency of this state
5-24 that authorizes the person to provide the services. The minimum
5-25 standards may require that each licensed or certified individual
5-26 complete an appropriate program of continuing education or
5-27 in-service training, as determined by board rule, on a schedule
5-28 determined by board rule.
5-29 (g) [(f)] Any individual otherwise qualified, who has been
5-30 employed by a licensed assisted living [personal care] facility for
5-31 at least 90 days, shall be eligible to be certified as a medication
5-32 aide following completion of the required course of study and
5-33 successful completion of any required examination.
5-34 (h) An individual may not serve as the manager of an
5-35 assisted living facility that has 17 beds or more unless the
5-36 individual:
5-37 (1) has an associate's degree in nursing, health care
5-38 management, or a related field from a public or private institution
5-39 of higher education;
5-40 (2) has a bachelor's degree from a public or private
5-41 institution of higher education; or
5-42 (3) has at least one year of experience working in
5-43 management or in the health care industry.
5-44 (i) The board by rule shall require each manager of an
5-45 assisted living facility that has 17 beds or more to complete at
5-46 least one educational course on the management of assisted living
5-47 facilities not later than the first anniversary of the date the
5-48 manager begins employment in that capacity.
5-49 Sec. 247.0261. EARLY COMPLIANCE REVIEW. (a) The department
5-50 by rule shall adopt a procedure under which a person proposing to
5-51 construct or modify an assisted living facility may submit building
5-52 plans to the department for review for compliance with the
5-53 department's architectural requirements before beginning
5-54 construction or modification. In adopting the procedure, the
5-55 department shall set reasonable deadlines by which the department
5-56 must complete review of submitted plans.
5-57 (b) The department shall, within 30 days, review plans
5-58 submitted under this section for compliance with the department's
5-59 architectural requirements and inform the person of the results of
5-60 the review. If the plans comply with the department's
5-61 architectural requirements, the department may not subsequently
5-62 change the architectural requirements applicable to the project
5-63 unless:
5-64 (1) the change is required by federal law; or
5-65 (2) the person fails to complete the project within a
5-66 reasonable time.
5-67 (c) The department may charge a reasonable fee for
5-68 conducting a review under this section.
5-69 (d) A fee collected under this section shall be deposited in
6-1 the general revenue fund to the credit of the assisted living
6-2 account and shall be appropriated only to the department to conduct
6-3 reviews under this section.
6-4 (e) The review procedure provided by this section does not
6-5 include review of building plans for compliance with the Texas
6-6 Accessibility Standards as administered and enforced by the Texas
6-7 Department of Licensing and Regulation.
6-8 Sec. 247.027. INSPECTIONS. In addition to the inspection
6-9 required under Section 247.023(a), the department may inspect an
6-10 assisted living [a personal care] facility annually and may inspect
6-11 a facility at other reasonable times as necessary to assure
6-12 compliance with this chapter.
6-13 Sec. 247.0271. INSPECTOR TRAINING. (a) The department
6-14 shall develop and implement a training program to provide
6-15 specialized training to department employees who inspect assisted
6-16 living facilities under this chapter. The training must emphasize
6-17 the distinction between an assisted living facility and an
6-18 institution licensed under Chapter 242.
6-19 (b) In developing and updating the training program required
6-20 by this section, the department shall consult with operators of
6-21 assisted living facilities and consumers of personal care services
6-22 provided by assisted living facilities or legal representatives of
6-23 those consumers.
6-24 Sec. 247.028. ASSISTANCE BY DEPARTMENT. The department may
6-25 provide assistance to an assisted living [a personal care]
6-26 facility, including the provision of training materials, the
6-27 coordination of training conferences and workshops with other state
6-28 agencies, and the development of a provider's handbook explaining
6-29 assisted living [personal care] facility rules.
6-30 Sec. 247.029. FACILITIES FOR PERSONS WITH ALZHEIMER'S
6-31 DISEASE. (a) The board by rule shall establish a classification
6-32 and license for a facility that advertises, markets, or otherwise
6-33 promotes that the facility provides personal care services to
6-34 residents who have Alzheimer's disease or related disorders. A
6-35 facility is not required to be classified under this section to
6-36 provide care or treatment to residents who have Alzheimer's disease
6-37 or related disorders.
6-38 (b) The board shall adopt minimum standards for an assisted
6-39 living [a personal care] facility classified under this section.
6-40 (c) An individual may not serve as the manager of an
6-41 assisted living facility classified under this section or as the
6-42 supervisor of an assisted living facility unit classified under
6-43 this section unless the individual is at least 21 years of age and
6-44 has:
6-45 (1) a bachelor's degree from a public or private
6-46 institution of higher education in psychology, gerontology,
6-47 nursing, or a related field; or
6-48 (2) at least one year of experience working with
6-49 persons with dementia.
6-50 Sec. 247.030. FACILITIES FOR SUPERVISION OF MEDICATION AND
6-51 GENERAL WELFARE. (a) The board by rule shall establish a
6-52 classification and license for a facility that provides only
6-53 medication supervision and general supervision of residents'
6-54 welfare.
6-55 (b) The board shall adopt minimum standards for an assisted
6-56 living facility classified under this section, including standards
6-57 imposing adequate requirements relating to medication supervision.
6-58 The board shall modify standards generally applicable to a facility
6-59 licensed under this chapter as necessary for a facility classified
6-60 under this section to reflect the level of services provided by the
6-61 facility.
6-62 Sec. 247.031 [247.029]. MUNICIPAL ENFORCEMENT. The
6-63 governing body of a municipality by ordinance may:
6-64 (1) prohibit a person who does not hold a license
6-65 issued under this chapter from establishing or operating an
6-66 assisted living [a personal care] facility within the municipality;
6-67 and
6-68 (2) establish a procedure for emergency closure of a
6-69 facility in circumstances in which:
7-1 (A) the facility is established or operating in
7-2 violation of Section 247.021; and
7-3 (B) the continued operation of the facility
7-4 creates an immediate threat to the health and safety of a resident
7-5 of the facility.
7-6 SUBCHAPTER C. GENERAL ENFORCEMENT
7-7 Sec. 247.041. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE.
7-8 (a) The department may deny, suspend, or revoke a license for a
7-9 violation of this chapter or a rule adopted under this chapter.
7-10 (b) The denial, suspension, or revocation of a license by
7-11 the department and the appeal from that action are governed by the
7-12 procedures for a contested case hearing under Chapter 2001,
7-13 Government Code.
7-14 Sec. 247.042. EMERGENCY SUSPENSION OR CLOSING ORDER.
7-15 (a) If the department finds an assisted living [a personal care]
7-16 facility operating in violation of the standards prescribed under
7-17 this chapter and the violations create an immediate threat to the
7-18 health and safety of a resident in the facility, the department
7-19 shall suspend the license or order immediate closing of all or part
7-20 of the facility.
7-21 (b) The order suspending a license under Subsection (a) is
7-22 effective immediately on written notice to the license holder or on
7-23 the date specified in the order.
7-24 (c) The order suspending the license and ordering closure of
7-25 all or part of an assisted living [a personal care] facility is
7-26 valid for 10 days after its effective date.
7-27 (d) The department shall provide for the relocation of
7-28 residents of an assisted living [a personal care] facility that is
7-29 closed. The relocation may not be to a facility with a more
7-30 restrictive environment unless all other reasonable alternatives
7-31 are exhausted. Relocation procedures shall be adopted as part of
7-32 the memorandum of understanding adopted under Section 247.061
7-33 [247.062].
7-34 Sec. 247.043. INVESTIGATION OF ABUSE, EXPLOITATION, OR
7-35 NEGLECT. (a) The department shall conduct a preliminary
7-36 investigation of each allegation of abuse, exploitation, or neglect
7-37 of a resident of an assisted living [a personal care] facility to
7-38 determine if there is evidence to corroborate the allegation. If
7-39 the department determines that there is evidence to corroborate the
7-40 allegation, the department shall conduct a thorough investigation
7-41 of the allegation.
7-42 (b) If the thorough investigation reveals that abuse,
7-43 exploitation, or neglect has occurred, the department shall:
7-44 (1) implement enforcement measures, including closing
7-45 the facility, revoking the facility's license, relocating
7-46 residents, and making referrals to law enforcement agencies;
7-47 (2) notify the Department of Protective and Regulatory
7-48 Services of the results of the investigation;
7-49 (3) notify a health and human services agency, as
7-50 defined by Section 531.001, Government Code, that contracts with
7-51 the facility for the delivery of personal care services of the
7-52 results of the investigation; and
7-53 (4) provide to a contracting health and human services
7-54 agency access to the department's documents or records relating to
7-55 the investigation.
7-56 (c) Providing access to a confidential document or record
7-57 under Subsection (b)(4) does not constitute a waiver of
7-58 confidentiality.
7-59 Sec. 247.044. INJUNCTION. (a) The department may petition
7-60 a district court for a temporary restraining order to restrain a
7-61 continuing violation of the standards or licensing requirements
7-62 provided under this chapter if the department finds that:
7-63 (1) the violation creates an immediate threat to the
7-64 health and safety of the assisted living [personal care] facility
7-65 residents; or
7-66 (2) the facility is operating without a license.
7-67 (b) A district court, on petition of the department and on a
7-68 finding by the court that a person is violating the standards or
7-69 licensing requirements provided under this chapter, may by
8-1 injunction:
8-2 (1) prohibit a person from continuing a violation of
8-3 the standards or licensing requirements provided under this
8-4 chapter;
8-5 (2) restrain the establishment or operation of an
8-6 assisted living [a personal care] facility without a license issued
8-7 under this chapter; or
8-8 (3) grant any other injunctive relief warranted by the
8-9 facts.
8-10 (c) The department may petition a district court for a
8-11 temporary restraining order to inspect a facility allegedly
8-12 required to be licensed and operating without a license when
8-13 admission to the facility cannot be obtained. If it is shown that
8-14 admission to the facility cannot be obtained, the court shall order
8-15 the facility to allow the department admission to the facility.
8-16 (d) The attorney general or local prosecuting attorney may
8-17 institute and conduct a suit authorized by this section at the
8-18 request of the department.
8-19 (e) Venue for a suit brought under this section is in the
8-20 county in which the assisted living [personal care] facility is
8-21 located or in Travis County.
8-22 Sec. 247.045. CIVIL PENALTIES. (a) Except as provided by
8-23 Subsections [Subsection] (b) and (c), a person who violates this
8-24 chapter or who fails to comply with a rule adopted under this
8-25 chapter and whose violation is determined by the department to
8-26 threaten the health and safety of a resident of an assisted living
8-27 [a personal care] facility is subject to a civil penalty of not
8-28 less than $100 nor more than $10,000 for each act of violation.
8-29 Each day of a continuing violation constitutes a separate ground of
8-30 recovery.
8-31 (b) A person is subject to a civil penalty if the person:
8-32 (1) is in violation of Section 247.021; or
8-33 (2) has been determined to be in violation of Section
8-34 247.021 and violates any other provision of this chapter or fails
8-35 to comply with a rule adopted under this chapter.
8-36 [(b) A person who does not possess a license for a personal
8-37 care facility as required by Section 247.021 is subject to a civil
8-38 penalty of not less than $1,000 nor more than $10,000 for each act
8-39 of violation. Each day of a continuing violation constitutes a
8-40 separate ground for recovery.]
8-41 (c) The amount of a civil penalty under Subsection (b) may
8-42 not be less than $1,000 or more than $10,000 for each act of
8-43 violation. Each day of a continuing violation constitutes a
8-44 separate ground of recovery.
8-45 (d) The attorney general may institute and conduct a suit to
8-46 collect a penalty and fees under this section at the request of the
8-47 department. [(c)] If the attorney general fails to take action
8-48 within 30 days of referral from the department, the department
8-49 shall refer the case to the local district attorney, county
8-50 attorney, or city attorney. The district attorney, county
8-51 attorney, or city attorney shall file suit in a district court to
8-52 collect and retain the penalty.
8-53 (e) [(d)] Investigation and attorney's fees may not be
8-54 assessed or collected by or on behalf of the department or other
8-55 state agency unless the department or other state agency assesses
8-56 and collects a penalty described under this chapter.
8-57 (f) [(e)] The department and attorney general, or other
8-58 legal representative as described in Subsection (d) [(c)], shall
8-59 work in close cooperation throughout any legal proceedings
8-60 requested by the department.
8-61 (g) [(f)] The commissioner of human services must approve
8-62 any settlement agreement to a suit brought under this chapter.
8-63 Sec. 247.046. COOPERATION AMONG AGENCIES. The board, the
8-64 Department of Protective and Regulatory Services, and the attorney
8-65 general shall adopt by rule a memorandum of understanding that:
8-66 (1) defines each agency's responsibilities concerning
8-67 assisted living [personal care] facilities and coordinates each
8-68 agency's activities;
8-69 (2) details coordinated procedures to be used by each
9-1 agency in responding to complaints relating to neglect or abuse of
9-2 residents of facilities, to substandard facilities, and to
9-3 unlicensed facilities;
9-4 (3) identifies enforcement needs each agency may have
9-5 in order to perform its duties under the memorandum of
9-6 understanding, including any need for access to information or to
9-7 facilities under investigation or operating under a plan of
9-8 correction; and
9-9 (4) provides a plan for correcting violations in
9-10 substandard or unlicensed assisted living [personal care]
9-11 facilities that specifies the conditions under which it is
9-12 appropriate to impose such a plan and that outlines a schedule of
9-13 implementation for the plan.
9-14 Sec. 247.047 [247.046]. TRANSITION. The department shall
9-15 grant to a personal care facility licensed on or before December
9-16 31, 1990, under Chapter 242 a temporary permit to continue
9-17 operation until the department performs any inspection or
9-18 investigation required by this chapter.
9-19 Sec. 247.048. REGIONAL TRAINING FOR AGENCIES AND LOCAL
9-20 GOVERNMENTS. The department periodically shall conduct regional
9-21 training programs for representatives of local governments and
9-22 appropriate state agencies relating to assisted living facility
9-23 concerns. The training programs must provide to participants
9-24 information relating to the assisted living facility industry,
9-25 including information on:
9-26 (1) the general characteristics of assisted living
9-27 facilities and residents of those facilities;
9-28 (2) the different types of assisted living facilities;
9-29 (3) the laws applicable to assisted living facilities;
9-30 and
9-31 (4) the authority of the department and other entities
9-32 to enforce applicable laws.
9-33 SUBCHAPTER D. ADVISORY COMMITTEE ON ASSISTED LIVING
9-34 [PERSONAL CARE] FACILITIES
9-35 Sec. 247.051. ADVISORY COMMITTEE. (a) The Advisory
9-36 Committee on Assisted Living [Personal Care] Facilities consists of
9-37 nine members appointed by the board. The commissioner of human
9-38 services shall appoint two [one] staff members [member] from the
9-39 department to serve as [a] nonvoting advisory members [member]. In
9-40 appointing staff members under this subsection, the commissioner
9-41 shall appoint one member as a representative of long-term care
9-42 policy and one member as a representative of long-term care
9-43 regulation.
9-44 (b) The board shall appoint the advisory committee to
9-45 provide for a balanced representation of personal care providers
9-46 and consumers and shall appoint one member who has expertise in
9-47 life safety code regulations. At least one of the provider members
9-48 must be representative of a nonprofit facility, and at least one
9-49 member must be a family member of a resident of a facility.
9-50 (c) The committee shall elect the presiding officer from
9-51 among its members.
9-52 (d) The committee shall advise the department on standards
9-53 for licensing assisted living [personal care] facilities and on the
9-54 implementation of this chapter.
9-55 SUBCHAPTER E. MISCELLANEOUS PROVISIONS
9-56 Sec. 247.061. [PILOT PROGRAM: OFFICE OF PERSONAL CARE
9-57 FACILITY OMBUDSMAN. (a) The Texas Department on Aging, under its
9-58 office of long-term care ombudsman, shall establish and operate a
9-59 pilot program providing a personal care facility ombudsman in one
9-60 or more counties.]
9-61 [(b) The department may operate the office directly or by
9-62 contract or memorandum of agreement with a public agency or other
9-63 appropriate private nonprofit organization, including an
9-64 organization for family members of persons with mental illness or
9-65 an advocacy group concerning mental health, disabilities, or senior
9-66 citizens.]
9-67 [(c) The pilot program shall recruit volunteers and citizen
9-68 organizations to participate in the ombudsman program.]
9-69 [(d) The office shall provide training to ombudsmen,
10-1 including training in mental illness and special needs of the
10-2 elderly or disabled.]
10-3 [(e) An ombudsman in the pilot program may not make
10-4 investigations.]
10-5 [(f) The Texas Department on Aging and the department shall
10-6 cooperate in developing guidelines for the pilot program.]
10-7 [Sec. 247.062.] COORDINATION BETWEEN AGENCIES. (a) The
10-8 department and the attorney general shall adopt by rule a
10-9 memorandum of understanding that:
10-10 (1) defines each agency's responsibilities concerning
10-11 assisted living [personal care] facilities;
10-12 (2) outlines and coordinates procedures to be used by
10-13 those agencies in responding to complaints concerning assisted
10-14 living [personal care] facilities; and
10-15 (3) provides a plan for correcting violations or
10-16 deficiencies in assisted living [personal care] facilities.
10-17 (b) The department shall prepare the initial draft of the
10-18 memorandum of understanding and shall facilitate and ensure its
10-19 adoption.
10-20 Sec. 247.062 [247.063]. DIRECTORY OF ASSISTED LIVING
10-21 [PERSONAL CARE] FACILITIES; CONSUMERS' GUIDE. (a) The department
10-22 shall prepare a directory of assisted living [personal care]
10-23 facilities that includes the name of the owner, the address and
10-24 telephone number of the facility, the number of beds in the
10-25 facility, and the facility's accessibility to disabled persons.
10-26 (b) The department shall revise the directory annually and
10-27 shall make it available to the public.
10-28 (c) The department shall prepare a consumers' guide to
10-29 assisted living [personal care] facilities and make it available to
10-30 the public. The consumers' guide shall provide information on
10-31 licensing requirements for assisted living [personal care]
10-32 facilities, a brief description of minimum standards for
10-33 facilities, a copy of the residents' bill of rights, a copy of the
10-34 providers' bill of rights, and any other information that the
10-35 department determines may be useful to the public.
10-36 Sec. 247.063 [247.064]. REFERRALS. (a) If the Texas
10-37 Department of Mental Health and Mental Retardation or a local
10-38 mental health or mental retardation authority refers a patient or
10-39 client to an assisted living [a personal care] facility, the
10-40 referral may not be made to a [personal care] facility that is not
10-41 licensed under this chapter.
10-42 (b) If the Texas Department of Mental Health and Mental
10-43 Retardation or a local mental health or mental retardation
10-44 authority gains knowledge of an assisted living [a personal care]
10-45 facility that is not operated or licensed by the Texas Department
10-46 of Mental Health and Mental Retardation, the authority, or the
10-47 Texas Department of Human Services and that has four or more
10-48 residents who are unrelated to the proprietor of the facility, the
10-49 Texas Department of Mental Health and Mental Retardation or the
10-50 authority shall report the name, address, and telephone number of
10-51 the facility to the Texas Department of Human Services.
10-52 Sec. 247.0631. ACCESS. An employee of the Texas Department
10-53 of Mental Health and Mental Retardation or an employee of a local
10-54 mental health and mental retardation authority may enter an
10-55 assisted living facility as necessary to provide services to a
10-56 resident of the facility.
10-57 Sec. 247.064 [247.065]. RESIDENTS' BILL OF RIGHTS.
10-58 (a) Each assisted living [personal care] facility shall post a
10-59 residents' bill of rights in a prominent place in the facility.
10-60 (b) The residents' bill of rights must provide that each
10-61 resident in the assisted living [personal care] facility has the
10-62 right to:
10-63 (1) manage the resident's financial affairs;
10-64 (2) determine the resident's dress, hair style, or
10-65 other personal effects according to individual preference, except
10-66 that the resident has the responsibility to maintain personal
10-67 hygiene;
10-68 (3) retain and use personal property in the resident's
10-69 immediate living quarters and to have an individual locked cabinet
11-1 in which to keep personal property;
11-2 (4) receive and send unopened mail;
11-3 (5) unaccompanied access to a telephone at a
11-4 reasonable hour or in case of an emergency or personal crisis;
11-5 (6) privacy;
11-6 (7) unrestricted communication, including personal
11-7 visitation with any person of the resident's choice, at any
11-8 reasonable hour, including family members and representatives of
11-9 advocacy groups and community service organizations;
11-10 (8) make contacts with the community and to achieve
11-11 the highest level of independence, autonomy, and interaction with
11-12 the community of which the resident is capable;
11-13 (9) present grievances on behalf of the resident or
11-14 others to the operator, state agencies, or other persons without
11-15 threat of reprisal in any manner;
11-16 (10) a safe and decent living environment and
11-17 considerate and respectful care that recognizes the dignity and
11-18 individuality of the resident;
11-19 (11) refuse to perform services for the facility,
11-20 except as contracted for by the resident and operator;
11-21 (12) practice the religion of the resident's choice;
11-22 (13) leave the facility temporarily or permanently,
11-23 subject to contractual or financial obligations; and
11-24 (14) not be deprived of any constitutional, civil, or
11-25 legal right solely by reason of residence in an assisted living [a
11-26 personal care] facility.
11-27 (c) The residents' bill of rights must be written in the
11-28 primary language of each resident of the facility and must also
11-29 provide the toll-free telephone number of the department for
11-30 reporting abuse or neglect.
11-31 (d) The rights provided under this section do not take
11-32 precedence over health and safety rights of other residents of the
11-33 facility.
11-34 (e) The department shall develop a residents' bill of rights
11-35 in accordance with this section and provide a copy to each
11-36 facility. The copy shall be written in the primary language of
11-37 each resident of the facility.
11-38 Sec. 247.065 [247.066]. PROVIDERS' BILL OF RIGHTS.
11-39 (a) Each assisted living [personal care] facility shall post a
11-40 providers' bill of rights in a prominent place in the facility.
11-41 (b) The providers' bill of rights must provide that a
11-42 provider of personal care services has the right to:
11-43 (1) be shown consideration and respect that recognizes
11-44 the dignity and individuality of the provider and assisted living
11-45 [personal care] facility;
11-46 (2) terminate a resident's contract for just cause
11-47 after a written 30-day notice;
11-48 (3) terminate a contract immediately, after notice to
11-49 the department, if the provider finds that a resident creates a
11-50 serious or immediate threat to the health, safety, or welfare of
11-51 other residents of the assisted living [personal care] facility;
11-52 (4) present grievances, file complaints, or provide
11-53 information to state agencies or other persons without threat of
11-54 reprisal or retaliation;
11-55 (5) refuse to perform services for the resident or the
11-56 resident's family other than those contracted for by the resident
11-57 and the provider;
11-58 (6) contract with the community to achieve the highest
11-59 level of independence, autonomy, interaction, and services to
11-60 residents;
11-61 (7) access to patient information concerning a client
11-62 referred to the facility, which must remain confidential as
11-63 provided by law;
11-64 (8) refuse a person referred to the facility if the
11-65 referral is inappropriate;
11-66 (9) maintain an environment free of weapons and drugs;
11-67 and
11-68 (10) be made aware of a resident's problems, including
11-69 self-abuse, violent behavior, alcoholism, or drug abuse.
12-1 Sec. 247.066. APPROPRIATE PLACEMENT DETERMINATION. (a) The
12-2 department may not require the removal and relocation of a resident
12-3 of an assisted living facility if the resident's presence in the
12-4 facility does not endanger other residents and the resident can
12-5 receive adequate care at the facility through services:
12-6 (1) provided by the facility in accordance with its
12-7 license; or
12-8 (2) obtained by the resident from other providers.
12-9 (b) In assessing whether a resident can receive adequate
12-10 care at a facility, the department shall consider all relevant
12-11 factors, including the placement preference expressed by the
12-12 resident with the agreement of the facility operator, the
12-13 resident's physician, and the resident's family members or other
12-14 representatives.
12-15 Sec. 247.067. HEALTH CARE PROFESSIONALS. (a) In this
12-16 section, "health care professional" means an individual licensed,
12-17 certified, or otherwise authorized to administer health care, for
12-18 profit or otherwise, in the ordinary course of business or
12-19 professional practice. The term includes a physician, registered
12-20 nurse, physical therapist, and occupational therapist.
12-21 (b) A health care professional may provide services within
12-22 the professional's scope of practice to a resident of an assisted
12-23 living facility at the facility. This subsection does not
12-24 authorize a health care professional to provide ongoing services to
12-25 a chronically ill resident comparable to the services available in
12-26 an institution licensed under Chapter 242. A health care
12-27 professional providing services under this subsection shall
12-28 maintain medical records of those services in accordance with the
12-29 licensing, certification, or other regulatory standards applicable
12-30 to the health care professional under law.
12-31 Sec. 247.068. RETALIATION PROHIBITED. (a) A person
12-32 licensed under this chapter may not retaliate against a person for
12-33 filing a complaint, presenting a grievance, or providing in good
12-34 faith information relating to personal care services provided by
12-35 the license holder.
12-36 (b) This section does not prohibit a license holder from
12-37 terminating an employee for a reason other than retaliation.
12-38 SECTION 2. AMENDMENT. Subdivision (3), Section 250.001,
12-39 Health and Safety Code, is amended to read as follows:
12-40 (3) "Facility" means:
12-41 (A) a nursing home, custodial care home, or
12-42 other institution licensed by the Texas Department of Human
12-43 Services under Chapter 242;
12-44 (B) an assisted living [a personal care]
12-45 facility licensed by the Texas Department of Human Services under
12-46 Chapter 247;
12-47 (C) a home health agency licensed [by the Texas
12-48 Department of Health] under Chapter 142;
12-49 (D) an adult day care facility [or adult day
12-50 health care facility] licensed by the Texas Department of Human
12-51 Services under Chapter 103, Human Resources Code;
12-52 (E) a facility for persons with mental
12-53 retardation licensed under Chapter 252 [or certified by the Texas
12-54 Department of Human Services];
12-55 (F) an unlicensed attendant care agency that
12-56 contracts with the Texas Department of Human Services;
12-57 (G) [an intermediate care facility for persons
12-58 with mental retardation that is certified by the Texas Department
12-59 of Human Services to participate in the Medicaid program under
12-60 Title XIX of the Social Security Act (42 U.S.C. Section 1396 et
12-61 seq.);]
12-62 [(H)] an adult foster care provider that
12-63 contracts with the Texas Department of Human Services; or
12-64 (H) [(I)] a facility that provides mental health
12-65 services and that is operated by or contracts with the Texas
12-66 Department of Mental Health and Mental Retardation.
12-67 SECTION 3. AMENDMENT. Section 36.002, Human Resources Code,
12-68 is amended to read as follows:
12-69 Sec. 36.002. UNLAWFUL ACTS. A person commits an unlawful
13-1 act if the person:
13-2 (1) knowingly or intentionally makes or causes to be
13-3 made a false statement or misrepresentation of a material fact:
13-4 (A) on an application for a contract, benefit,
13-5 or payment under the Medicaid program; or
13-6 (B) that is intended to be used to determine a
13-7 person's eligibility for a benefit or payment under the Medicaid
13-8 program;
13-9 (2) knowingly or intentionally conceals or fails to
13-10 disclose an event:
13-11 (A) that the person knows affects the initial or
13-12 continued right to a benefit or payment under the Medicaid program
13-13 of:
13-14 (i) the person; or
13-15 (ii) another person on whose behalf the
13-16 person has applied for a benefit or payment or is receiving a
13-17 benefit or payment; and
13-18 (B) to permit a person to receive a benefit or
13-19 payment that is not authorized or that is greater than the payment
13-20 or benefit that is authorized;
13-21 (3) knowingly or intentionally applies for and
13-22 receives a benefit or payment on behalf of another person under the
13-23 Medicaid program and converts any part of the benefit or payment to
13-24 a use other than for the benefit of the person on whose behalf it
13-25 was received;
13-26 (4) knowingly or intentionally makes, causes to be
13-27 made, induces, or seeks to induce the making of a false statement
13-28 or misrepresentation of material fact concerning:
13-29 (A) the conditions or operation of a facility in
13-30 order that the facility may qualify for certification or
13-31 recertification required by the Medicaid program, including
13-32 certification or recertification as:
13-33 (i) a hospital;
13-34 (ii) a nursing facility or skilled nursing
13-35 facility;
13-36 (iii) a hospice;
13-37 (iv) an intermediate care facility for the
13-38 mentally retarded;
13-39 (v) an assisted living [a personal care]
13-40 facility; or
13-41 (vi) a home health agency; or
13-42 (B) information required to be provided by a
13-43 federal or state law, rule, regulation, or provider agreement
13-44 pertaining to the Medicaid program;
13-45 (5) except as authorized under the Medicaid program,
13-46 knowingly or intentionally charges, solicits, accepts, or receives,
13-47 in addition to an amount paid under the Medicaid program, a gift,
13-48 money, a donation, or other consideration as a condition to the
13-49 provision of a service or continued service to a Medicaid recipient
13-50 if the cost of the service provided to the Medicaid recipient is
13-51 paid for, in whole or in part, under the Medicaid program;
13-52 (6) knowingly or intentionally presents or causes to
13-53 be presented a claim for payment under the Medicaid program for a
13-54 product provided or a service rendered by a person who:
13-55 (A) is not licensed to provide the product or
13-56 render the service, if a license is required; or
13-57 (B) is not licensed in the manner claimed;
13-58 (7) knowingly or intentionally makes a claim under the
13-59 Medicaid program for:
13-60 (A) a service or product that has not been
13-61 approved or acquiesced in by a treating physician or health care
13-62 practitioner;
13-63 (B) a service or product that is substantially
13-64 inadequate or inappropriate when compared to generally recognized
13-65 standards within the particular discipline or within the health
13-66 care industry; or
13-67 (C) a product that has been adulterated,
13-68 debased, mislabeled, or that is otherwise inappropriate;
13-69 (8) makes a claim under the Medicaid program and
14-1 knowingly or intentionally fails to indicate the type of license
14-2 and the identification number of the licensed health care provider
14-3 who actually provided the service;
14-4 (9) knowingly or intentionally enters into an
14-5 agreement, combination, or conspiracy to defraud the state by
14-6 obtaining or aiding another person in obtaining an unauthorized
14-7 payment or benefit from the Medicaid program or a fiscal agent; or
14-8 (10) is a managed care organization that contracts
14-9 with the Health and Human Services Commission or other state agency
14-10 to provide or arrange to provide health care benefits or services
14-11 to individuals eligible under the Medicaid program and knowingly or
14-12 intentionally:
14-13 (A) fails to provide to an individual a health
14-14 care benefit or service that the organization is required to
14-15 provide under the contract;
14-16 (B) fails to provide to the commission or
14-17 appropriate state agency information required to be provided by
14-18 law, commission or agency rule, or contractual provision;
14-19 (C) engages in a fraudulent activity in
14-20 connection with the enrollment of an individual eligible under the
14-21 Medicaid program in the organization's managed care plan or in
14-22 connection with marketing the organization's services to an
14-23 individual eligible under the Medicaid program; or
14-24 (D) obstructs an investigation by the attorney
14-25 general of an alleged unlawful act under this section.
14-26 SECTION 4. AMENDMENT. Title 6, Human Resources Code, is
14-27 amended by adding Chapter 105 to read as follows:
14-28 CHAPTER 105. RESIDENTIAL FACILITIES FOR THE ELDERLY
14-29 Sec. 105.001. DEFINITIONS. In this chapter:
14-30 (1) "Establishment" means a facility providing
14-31 sleeping accommodations to two or more qualifying adult residents,
14-32 at least 80 percent of whom are 65 years of age or older or are
14-33 disabled, and offering, for a fee, one or more supportive services
14-34 through contract with an agency licensed under Chapter 142, Health
14-35 and Safety Code, or with another entity.
14-36 (2) "Qualifying adult resident" means an adult
14-37 resident of a facility who is not related within the second degree
14-38 by consanguinity or affinity to:
14-39 (A) a person who has an ownership interest in
14-40 the facility; or
14-41 (B) at least one other resident of the facility.
14-42 (3) "Supportive services" means medical services,
14-43 health-related services, or personal care services as defined by
14-44 Section 247.002, Health and Safety Code.
14-45 Sec. 105.002. EXEMPT FACILITIES. The following facilities
14-46 are exempt from the application of this chapter:
14-47 (1) housing in which all supportive services are
14-48 arranged directly by the residents themselves and are provided by
14-49 outside entities;
14-50 (2) nursing facilities licensed under Chapter 242,
14-51 Health and Safety Code; and
14-52 (3) continuing care facilities regulated by the Texas
14-53 Department of Insurance under Chapter 246, Health and Safety Code.
14-54 Sec. 105.003. DISCLOSURE REQUIRED IN CONTRACT. An
14-55 establishment that is not required to be licensed as an assisted
14-56 living facility under Chapter 247, Health and Safety Code, shall
14-57 execute a contract with each of its residents that contains, in
14-58 addition to other required information, the following elements:
14-59 (1) the name, street address, and mailing address of
14-60 the establishment;
14-61 (2) the name and mailing address of at least one
14-62 person authorized to act on behalf of the owner or owners or
14-63 management agent of the establishment;
14-64 (3) a statement describing the licensure status of the
14-65 establishment;
14-66 (4) the name, mailing address, and telephone number of
14-67 any provider, including any individual or entity, regardless of
14-68 whether licensed, providing supportive services under a contract
14-69 with the establishment;
15-1 (5) the term of the contract;
15-2 (6) a description of the services to be provided that
15-3 are included in the base monthly rate to be paid by the resident;
15-4 (7) a description of any additional services available
15-5 for an additional fee from a provider through a contract with the
15-6 establishment;
15-7 (8) a provision requiring the establishment to provide
15-8 written notice of any change in fee schedules that outline the cost
15-9 of additional services not later than the 31st day before the
15-10 effective date of the change;
15-11 (9) a description of the process by which the contract
15-12 may be modified, amended, or terminated;
15-13 (10) a description of the complaint resolution process
15-14 available to residents;
15-15 (11) the name, street address, mailing address, and
15-16 telephone number of the resident's designated representative, if
15-17 any;
15-18 (12) a description of the billing and payment
15-19 procedures and requirements;
15-20 (13) a statement ensuring the ability and right of
15-21 residents to receive services from providers with whom the
15-22 establishment does not have a contract; and
15-23 (14) a statement identifying the life safety and fire
15-24 codes met by the building and a statement indicating whether those
15-25 codes are comparable to the codes with which an assisted living
15-26 facility licensed under Chapter 247, Health and Safety Code, must
15-27 comply.
15-28 SECTION 5. AMENDMENT. Section 123.004, Human Resources
15-29 Code, is amended to read as follows:
15-30 Sec. 123.004. QUALIFICATION AS COMMUNITY HOME. To qualify
15-31 as a community home, an entity must comply with Sections 123.005
15-32 through 123.008 and be:
15-33 (1) a community-based residential home operated by:
15-34 (A) the Texas Department of Mental Health and
15-35 Mental Retardation;
15-36 (B) a community center organized under
15-37 Subchapter A, Chapter 534, Health and Safety Code, that provides
15-38 services to persons with disabilities;
15-39 (C) an entity subject to the Texas Non-Profit
15-40 Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil
15-41 Statutes); or
15-42 (D) an entity certified by the Texas Department
15-43 of Human Services as a provider under the medical assistance
15-44 program serving persons in intermediate care facilities for persons
15-45 with mental retardation; or
15-46 (2) an assisted living [a personal care] facility
15-47 licensed under Chapter 247, Health and Safety Code, provided that
15-48 the exterior structure retains compatibility with the surrounding
15-49 residential dwellings.
15-50 SECTION 6. REFERENCE TO PERSONAL CARE FACILITY. (a) A
15-51 reference in law to a personal care facility means an assisted
15-52 living facility, as defined by Section 247.002, Health and Safety
15-53 Code, as amended by this Act.
15-54 (b) A reference in law to the Advisory Committee on Personal
15-55 Care Facilities means the Advisory Committee on Assisted Living
15-56 Facilities established under Section 247.051, Health and Safety
15-57 Code, as amended by this Act.
15-58 SECTION 7. ENFORCEMENT OF LICENSURE REQUIREMENT. (a) Not
15-59 later than January 1, 2000, the Texas Department of Human Services
15-60 shall:
15-61 (1) identify unlicensed facilities in this state that
15-62 are required to be licensed under Chapter 247, Health and Safety
15-63 Code, as amended by this Act; and
15-64 (2) take action to enforce the licensure requirements.
15-65 (b) Not later than December 1, 2000, the department shall
15-66 submit to the governor and the legislature a report describing the
15-67 results of the department's efforts under this section. The
15-68 report must include:
15-69 (1) the number of facilities identified;
16-1 (2) the geographical distribution of those facilities;
16-2 and
16-3 (3) the results of the department's efforts to enforce
16-4 licensure of those facilities.
16-5 (c) This section takes effect on the first date that it may
16-6 take effect under Section 39, Article III, Texas Constitution.
16-7 SECTION 8. WORK GROUP ON TEXAS ACCESSIBILITY STANDARDS.
16-8 (a) As soon as possible after the effective date of this section,
16-9 the Texas Department of Human Services and the Texas Department of
16-10 Licensing and Regulation shall form a joint work group to study and
16-11 make recommendations not later than September 1, 2000, to those
16-12 agencies concerning the application of the Texas Accessibility
16-13 Standards and other architectural requirements to facilities
16-14 required to be licensed under Chapter 247, Health and Safety Code.
16-15 (b) The work group shall:
16-16 (1) review bathroom accessibility standards applicable
16-17 to a facility and make suggestions regarding any necessary changes
16-18 to those standards;
16-19 (2) determine whether the architectural reviews of a
16-20 facility currently conducted separately by each agency could be
16-21 consolidated into a single review;
16-22 (3) develop standard information materials that
16-23 address architectural requirements applicable to construction or
16-24 modification of a facility; and
16-25 (4) address any other issue relating to architectural
16-26 standards applicable to a facility.
16-27 (c) The agencies shall include in the work group
16-28 representatives of developers and providers of facilities and
16-29 consumers of personal care services provided by facilities.
16-30 (d) The members of the work group shall elect a presiding
16-31 officer and any other necessary officers for the work group.
16-32 (e) The work group shall meet at the call of the presiding
16-33 officer.
16-34 (f) A member of the work group receives no compensation for
16-35 serving on the work group.
16-36 (g) The work group is not subject to Chapter 2110,
16-37 Government Code.
16-38 (h) The work group dissolves and this section expires
16-39 September 1, 2001.
16-40 (i) This section takes effect on the first date that it may
16-41 take effect under Section 39, Article III, Texas Constitution.
16-42 SECTION 9. COMMUNITY-BASED ALTERNATIVES PROGRAM RATE METHOD.
16-43 (a) As soon as possible after the effective date of this section,
16-44 the Texas Department of Human Services by rule shall develop and
16-45 implement a new reimbursement method for personal care services
16-46 funded through the community-based alternatives program that is
16-47 based on the type of service provided in addition to the number of
16-48 clients occupying a room.
16-49 (b) This section takes effect on the first date that it may
16-50 take effect under Section 39, Article III, Texas Constitution.
16-51 SECTION 10. DEADLINE: CONSUMER DISCLOSURE STATEMENT. Not
16-52 later than September 1, 1999, the Texas Department of Human
16-53 Services shall adopt the consumer disclosure statement required by
16-54 Paragraph (B), Subdivision (3), Subsection (b), Section 247.026,
16-55 Health and Safety Code, as added by this Act.
16-56 SECTION 11. TRANSITION: REQUIRED EDUCATIONAL COURSE FOR
16-57 MANAGERS OF CERTAIN FACILITIES. Subsection (i), Section 247.026,
16-58 Health and Safety Code, as added by this Act, applies only to a
16-59 person who begins employment as a manager of an assisted living
16-60 facility on or after the effective date of this Act. A person who
16-61 begins employment as a manager of an assisted living facility
16-62 before the effective date of this Act is governed by the law in
16-63 effect on the date that the person begins employment, and that law
16-64 is continued in effect for that purpose.
16-65 SECTION 12. LEGISLATIVE INTENT. Subsection (d), Section
16-66 247.045, Health and Safety Code, as amended by this Act, is
16-67 intended to emphasize the authority of the attorney general to
16-68 institute and conduct a suit to collect a penalty and fees. The
16-69 amendment may not be construed to mean that the attorney general
17-1 lacked that authority before the effective date of this Act.
17-2 SECTION 13. WAIVERS. If, before implementing any provision
17-3 of this Act, a state agency determines that a waiver or
17-4 authorization from a federal agency is necessary for implementation
17-5 of that provision, the agency affected by the provision shall
17-6 request the waiver or authorization and may delay implementing that
17-7 provision until the waiver or authorization is granted.
17-8 SECTION 14. CONFLICTS. To the extent of any conflict, this
17-9 Act prevails over another Act of the 76th Legislature, Regular
17-10 Session, 1999, relating to nonsubstantive additions to and
17-11 corrections in enacted codes.
17-12 SECTION 15. EFFECTIVE DATE. Except as otherwise provided by
17-13 this Act, this Act takes effect September 1, 1999.
17-14 SECTION 16. EMERGENCY. The importance of this legislation
17-15 and the crowded condition of the calendars in both houses create an
17-16 emergency and an imperative public necessity that the
17-17 constitutional rule requiring bills to be read on three several
17-18 days in each house be suspended, and this rule is hereby suspended,
17-19 and that this Act take effect and be in force according to its
17-20 terms, and it is so enacted.
17-21 * * * * *