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.
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