By Deshotel                                            H.B. No. 977
         77R1104 YDB-D                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the regulation of convalescent homes, nursing homes,
 1-3     and related institutions.     
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Section 242.037, Health and Safety Code, is
 1-6     amended by adding Subsection (i) to read as follows:
 1-7           (i)  The department shall identify in its rules each
 1-8     violation of a rule or standard for which a penalty may be assessed
 1-9     under this chapter or in accordance with Chapter 32, Human
1-10     Resources Code.
1-11           SECTION 2.  Section 242.0445(a), Health and Safety Code, is
1-12     amended to read as follows:
1-13           (a)  The department or the department's representative
1-14     conducting an inspection, survey, or investigation under Section
1-15     242.043 or 242.044 shall:
1-16                 (1)  list each violation of a law or rule on a form
1-17     designed by the department for inspections; [and]
1-18                 (2)  identify the specific law or rule the institution
1-19     [facility] violated; and
1-20                 (3)  if the institution is denied a right to correct
1-21     the violation, identify the specific reason under Section
1-22     242.0665(b) for the denial.
1-23           SECTION 3.  Subchapter B, Chapter 242, Health and Safety
1-24     Code, is amended by adding Sections 242.0447 and 242.0448 to read
 2-1     as follows:
 2-2           Sec. 242.0447.  DUTIES OF REPRESENTATIVES. The department
 2-3     shall adopt written policies requiring representatives of the
 2-4     department to treat the residents of the institution and the
 2-5     institution's staff with courtesy, consideration, and respect when
 2-6     conducting an inspection, survey, or investigation under Section
 2-7     242.043 or 242.044 or in accordance with Chapter 32, Human
 2-8     Resources Code.
 2-9           Sec. 242.0448.  INTERNAL AFFAIRS OFFICE. (a)  The department
2-10     shall establish an internal affairs office to investigate
2-11     complaints by institutions made in connection with an inspection,
2-12     survey, or investigation under Section 242.043 or 242.044 or in
2-13     accordance with Chapter 32, Human Resources Code.
2-14           (b)  An institution inspected, surveyed, or investigated by
2-15     the department or a representative of the department may report a
2-16     suspected violation of department policies adopted under Section
2-17     242.0447 to the internal affairs office.
2-18           (c)  The internal affairs office shall investigate complaints
2-19     received from institutions regulated under this chapter.
2-20           (d)  A representative of the department may not retaliate
2-21     against an institution for filing a complaint with the department's
2-22     internal affairs office under Subsection (b).  A representative of
2-23     the department who violates this subsection may not inspect,
2-24     survey, or investigate the institution after the date the
2-25     department determines that the violation occurred.
2-26           SECTION 4.  Section 242.066, Health and Safety Code, is
2-27     amended  by amending Subsection (e) and adding Subsection (i) to
 3-1     read as follows:
 3-2           (e)  In determining the amount of a penalty, the department
 3-3     shall consider any matter that justice may require, including:
 3-4                 (1)  the gradations of penalties established under
 3-5     Subsection (d);
 3-6                 (2)  the seriousness of the violation, including the
 3-7     nature, circumstances, extent, and gravity of the prohibited act
 3-8     and the hazard or potential hazard created by the act to the health
 3-9     or safety of the public;
3-10                 (3)  the history of previous violations;
3-11                 (4)  deterrence of future violations; [and]
3-12                 (5)  efforts to correct the violation; and
3-13                 (6)  the cash flow and financial condition of the
3-14     facility.
3-15           (i)  The department may impose only one administrative
3-16     penalty for each violation identified or confirmed in an
3-17     inspection, survey, or investigation.
3-18           SECTION 5.  Section 242.0665, Health and Safety Code, is
3-19     amended by amending Subsection (b) and adding Subsection (d) to
3-20     read as follows:
3-21           (b)  Subject to Subsection (d), Subsection (a) does not
3-22     apply:
3-23                 (1)  to a violation that the department determines:
3-24                       (A)  results in serious harm to or death of a
3-25     resident;
3-26                       (B)  constitutes a serious threat to the health
3-27     or safety of a resident; or
 4-1                       (C)  substantially limits the institution's
 4-2     capacity to provide care;
 4-3                 (2)  to a violation described by Sections
 4-4     242.066(a)(2)-(6);
 4-5                 (3)  to a violation of Section 242.133 or 242.1335; or
 4-6                 (4)  to a violation of a right of a resident adopted
 4-7     under Subchapter L.
 4-8           (d)  The department may not deny a right to correct unless
 4-9     actual harm to a resident has been identified with respect to a
4-10     violation described by Subsection (b).
4-11           SECTION 6.  Section 242.070, Health and Safety Code, is
4-12     amended to read as follows:
4-13           Sec. 242.070.  APPLICATION OF OTHER LAW. The department may
4-14     not assess more than one monetary penalty under this chapter for a
4-15     violation arising out of the same act or failure to act, except as
4-16     provided by Section 242.0665(c).  The [This section does not
4-17     prohibit the] department may not assess [from assessing] a monetary
4-18     penalty under this chapter and a monetary penalty under Chapter 32,
4-19     Human Resources Code, for the same act or failure to act.
4-20           SECTION 7.  (a)  This Act takes effect September 1, 2001.
4-21           (b)  The change in law made by this Act to Sections 242.066
4-22     and 242.0665, Health and Safety Code, apply only to the assessment
4-23     of an administrative penalty commenced under Subchapter C, Chapter
4-24     242, Health and Safety Code, on or after the effective date of this
4-25     Act.  The assessment of an administrative penalty commenced before
4-26     the effective date of this Act is governed by the law in effect
4-27     immediately before that date, and that law is continued in effect
 5-1     for that purpose.