1-1 By: Naishtat (Senate Sponsor - Zaffirini) H.B. No. 482
1-2 (In the Senate - Received from the House April 19, 2001;
1-3 April 20, 2001, read first time and referred to Committee on Health
1-4 and Human Services; May 1, 2001, reported favorably by the
1-5 following vote: Yeas 7, Nays 1; May 1, 2001, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to protecting certain persons from retaliation by nursing
1-9 homes or intermediate care facilities.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 242.042(a), Health and Safety Code, is
1-12 amended to read as follows:
1-13 (a) Each institution shall prominently and conspicuously
1-14 post for display in a public area of the institution that is
1-15 readily available to residents, employees, and visitors:
1-16 (1) the license issued under this chapter;
1-17 (2) a sign prescribed by the department that specifies
1-18 complaint procedures established under this chapter or rules
1-19 adopted under this chapter and that specifies how complaints may be
1-20 registered with the department;
1-21 (3) a notice in a form prescribed by the department
1-22 stating that licensing inspection reports and other related reports
1-23 which show deficiencies cited by the department are available at
1-24 the institution for public inspection and providing the
1-25 department's toll-free telephone number that may be used to obtain
1-26 information concerning the institution;
1-27 (4) a concise summary of the most recent inspection
1-28 report relating to the institution;
1-29 (5) notice that the department can provide summary
1-30 reports relating to the quality of care, recent investigations,
1-31 litigation, and other aspects of the operation of the institution;
1-32 (6) notice that the Texas Board of Nursing Facility
1-33 Administrators can provide information about the nursing facility
1-34 administrator;
1-35 (7) any notice or written statement required to be
1-36 posted under Section 242.072(c);
1-37 (8) notice that informational materials relating to
1-38 the compliance history of the institution are available for
1-39 inspection at a location in the institution specified by the sign;
1-40 and
1-41 (9) notice that employees, other staff, [and]
1-42 residents, volunteers, and family members and guardians of
1-43 residents are protected from discrimination or retaliation as
1-44 provided by Sections 242.133 and 242.1335.
1-45 SECTION 2. Section 242.1335, Health and Safety Code, is
1-46 amended to read as follows:
1-47 Sec. 242.1335. RETALIATION AGAINST VOLUNTEERS, [AND]
1-48 RESIDENTS, OR FAMILY MEMBERS OR GUARDIANS OF RESIDENTS. (a) An
1-49 institution may not retaliate or discriminate against a volunteer,
1-50 [or] a resident, or a family member or guardian of a resident
1-51 because the volunteer, the resident, the resident's family member
1-52 or guardian, or any other person:
1-53 (1) makes a complaint or files a grievance concerning
1-54 the facility;
1-55 (2) reports a violation of law, including a violation
1-56 of this chapter or a rule adopted under this chapter; or
1-57 (3) initiates or cooperates in an investigation or
1-58 proceeding of a governmental entity relating to care, services, or
1-59 conditions at the institution.
1-60 (b) A volunteer, [or] a resident, or a family member or
1-61 guardian of a resident who is retaliated or discriminated against
1-62 in violation of Subsection (a) is entitled to sue for:
1-63 (1) injunctive relief;
1-64 (2) the greater of $1,000 or actual damages, including
2-1 damages for mental anguish even if an injury other than mental
2-2 anguish is not shown;
2-3 (3) exemplary damages;
2-4 (4) court costs; and
2-5 (5) reasonable attorney's fees.
2-6 (c) A volunteer, a [or] resident, or a family member or
2-7 guardian of a resident who seeks relief under this section must
2-8 report the alleged violation not later than the 180th day after the
2-9 date on which the alleged violation of this section occurred or was
2-10 discovered by the volunteer, the [or] resident, or the family
2-11 member or guardian of the resident through reasonable diligence.
2-12 (d) A suit under this section may be brought in the district
2-13 court of the county in which the institution is located or in a
2-14 district court of Travis County.
2-15 SECTION 3. Section 252.039, Health and Safety Code, is
2-16 amended to read as follows:
2-17 Sec. 252.039. POSTING. Each facility shall prominently and
2-18 conspicuously post for display in a public area of the facility
2-19 that is readily available to residents, employees, and visitors:
2-20 (1) the license issued under this chapter;
2-21 (2) a sign prescribed by the department that specifies
2-22 complaint procedures established under this chapter or rules
2-23 adopted under this chapter and that specifies how complaints may be
2-24 registered with the department;
2-25 (3) a notice in a form prescribed by the department
2-26 stating that inspection and related reports are available at the
2-27 facility for public inspection and providing the department's
2-28 toll-free telephone number that may be used to obtain information
2-29 concerning the facility; [and]
2-30 (4) a concise summary of the most recent inspection
2-31 report relating to the facility; and
2-32 (5) notice that employees, other staff, residents,
2-33 volunteers, and family members and guardians of residents are
2-34 protected from discrimination or retaliation as provided by
2-35 Sections 252.132 and 252.133.
2-36 SECTION 4. Sections 252.132(a), (b), and (d), Health and
2-37 Safety Code, are amended to read as follows:
2-38 (a) In this section, "employee" means a person who is an
2-39 employee of a facility or any other person who provides services
2-40 for a facility for compensation, including a contract laborer for
2-41 the facility.
2-42 (b) An [A facility may not suspend or terminate the
2-43 employment of, or discipline or otherwise discriminate against, an]
2-44 employee has a cause of action against a facility, the owner of the
2-45 facility, or another employee of the facility that suspends or
2-46 terminates the employment of the employee or otherwise disciplines,
2-47 discriminates against, or retaliates against the employee for:
2-48 (1) reporting to the employee's supervisor, an
2-49 administrator of the facility, a state regulatory agency, or a law
2-50 enforcement agency a violation of law, including a violation of
2-51 this chapter or a rule adopted under this chapter; or
2-52 (2) initiating or cooperating in any investigation or
2-53 proceeding of a governmental entity relating to the care, services,
2-54 or conditions at the facility [the abuse or neglect of a resident].
2-55 [(b) A facility that violates Subsection (a) is liable to
2-56 the person against whom the facility discriminated. A person
2-57 against whom a facility discriminates in violation of Subsection
2-58 (a) may sue for injunctive relief, damages, or both.]
2-59 (d) In addition to the amounts that may be recovered under
2-60 Subsection (c), a person whose employment is suspended or
2-61 terminated is entitled to appropriate injunctive relief, including,
2-62 if applicable:
2-63 (1) reinstatement in the person's former position; and
2-64 (2) reinstatement of lost fringe benefits or seniority
2-65 rights.
2-66 SECTION 5. Section 252.133, Health and Safety Code, is
2-67 amended to read as follows:
2-68 Sec. 252.133. SUIT FOR RETALIATION AGAINST VOLUNTEER,
2-69 RESIDENT, OR FAMILY MEMBER OR GUARDIAN OF RESIDENT. (a) A
3-1 facility may not retaliate or discriminate against a volunteer, a
3-2 resident, or a family member or guardian of a resident because [if]
3-3 the volunteer, the resident, the resident's family member or
3-4 guardian, or any other person:
3-5 (1) makes a complaint or files a grievance concerning
3-6 the facility;
3-7 (2) reports a violation of law, including a violation
3-8 of this chapter or a rule adopted under this chapter; or
3-9 (3) initiates or cooperates in an investigation or
3-10 proceeding of a governmental entity relating to the care, services,
3-11 or conditions at the facility [reports abuse or neglect in
3-12 accordance with this subchapter].
3-13 (b) A volunteer, a resident, or a family member or guardian
3-14 of a resident against whom a facility retaliates or discriminates
3-15 in violation of Subsection (a) is entitled to sue for:
3-16 (1) injunctive relief;
3-17 (2) the greater of $1,000 or actual damages, including
3-18 damages for mental anguish even if an injury other than mental
3-19 anguish is not shown;
3-20 (3) exemplary damages;
3-21 (4) court costs; and
3-22 (5) reasonable attorney's fees.
3-23 (c) A volunteer, a resident, or a family member or guardian
3-24 of a resident who seeks relief under this section must report the
3-25 alleged violation not later than the 180th day after the date on
3-26 which the alleged violation of this section occurred or was
3-27 discovered by the volunteer, the resident, or the family member or
3-28 guardian of the resident through reasonable diligence.
3-29 (d) A suit under this section may be brought in the district
3-30 court of the county in which the facility is located or in a
3-31 district court of Travis County.
3-32 SECTION 6. This Act takes effect September 1, 2001, and
3-33 applies only to a cause of action that accrues on or after the
3-34 effective date of this Act. A cause of action that accrues before
3-35 that date is governed by the law in effect at the time the cause of
3-36 action accrues, and the former law is continued in effect for that
3-37 purpose.
3-38 * * * * *