1-1                                   AN ACT
 1-2     relating to taking regulatory action against assisted living
 1-3     facilities, including the imposition of administrative penalties.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Section 247.002, Health and Safety Code, is
 1-6     amended by adding Subdivision (7) to read as follows:
 1-7                 (7)  "Commissioner" means the commissioner of human
 1-8     services.
 1-9           SECTION 2.  Subchapter A, Chapter 247, Health and Safety
1-10     Code, is amended by adding Section 247.0025 to read as follows:
1-11           Sec. 247.0025.  IMMEDIATE THREAT OF HARM.  For purposes of
1-12     this chapter, there is considered to be an immediate threat to the
1-13     health or safety of a resident, or a situation is considered to put
1-14     the health or safety of a resident in immediate jeopardy, if there
1-15     is a situation in which an assisted living facility's noncompliance
1-16     with one or more requirements of licensure has caused, or is likely
1-17     to cause, serious injury, harm, impairment, or death to a resident.
1-18           SECTION 3.  The section heading to Section 247.0272, Health
1-19     and Safety Code, is amended to read as follows:
1-20           Sec. 247.0272.  INSPECTOR TRAINING; REQUIRED EXAMINATION.
1-21           SECTION 4.  Section 247.0272, Health and Safety Code, is
1-22     amended by adding Subsections (c) and (d) to read as follows:
1-23           (c)  The department shall examine department employees who
1-24     inspect or otherwise survey assisted living facilities under this
1-25     chapter.  In developing the examination, the department shall
 2-1     consult with operators of assisted living facilities or their
 2-2     representatives and with consumers of personal care services
 2-3     provided by assisted living facilities or representatives of
 2-4     consumers.
 2-5           (d)  A department employee may not independently inspect,
 2-6     survey, or take administrative action against an assisted living
 2-7     facility unless the employee has passed the examination
 2-8     administered under Subsection (c).
 2-9           SECTION 5.  Section 247.041, Health and Safety Code, is
2-10     amended to read as follows:
2-11           Sec. 247.041.  DENIAL, SUSPENSION, OR REVOCATION OF LICENSE.
2-12     (a)  The department, after providing notice and opportunity for a
2-13     hearing to the applicant or license holder, may deny, suspend, or
2-14     revoke a license if the department finds that the applicant,
2-15     license holder, or a controlling person has:
2-16                 (1)  violated [for a violation of] this chapter or a
2-17     rule, standard, or order adopted or license issued under this
2-18     chapter in either a repeated or substantial manner; or
2-19                 (2)  committed any act described by Sections
2-20     247.0451(a)(2)-(6).
2-21           (b)  The denial, suspension, or revocation of a license by
2-22     the department and the appeal from that action are governed by the
2-23     procedures for a contested case hearing under Chapter 2001,
2-24     Government Code.
2-25           (c)  The status of a person as an applicant for a license or
2-26     as a license holder is preserved until final disposition of the
 3-1     contested matter, except as the court having jurisdiction of a
 3-2     judicial review of the matter may order in the public interest for
 3-3     the welfare and safety of the residents.
 3-4           (d)  A court having jurisdiction of a judicial review of the
 3-5     matter may not order arbitration, whether on motion of any party or
 3-6     on the court's own motion, to resolve a dispute involving the
 3-7     denial, suspension, or revocation of a license under this section
 3-8     or the conduct with respect to which the denial, suspension, or
 3-9     revocation of the license is sought.
3-10           SECTION 6.  Section 247.042, Health and Safety Code, is
3-11     amended by amending Subsection (a) and adding Subsection (e) to
3-12     read as follows:
3-13           (a)  If the department finds an assisted living facility
3-14     operating in violation of the standards prescribed by [under] this
3-15     chapter and the violations create an immediate threat to the health
3-16     and safety of a resident in the facility, the department may
3-17     [shall] suspend the license or order immediate closing of all or
3-18     part of the facility.
3-19           (e)  The department and the State Office of Administrative
3-20     Hearings shall expedite any hearing or decision involving an
3-21     emergency suspension or closing order issued under this section.
3-22           SECTION 7.  Section 247.0455, Health and Safety Code, is
3-23     redesignated as Section 247.0459, Health and Safety Code, and
3-24     amended to read as follows:
3-25           Sec. 247.0459 [247.0455].  VIOLATION OF LAW RELATING TO
3-26     ADVANCE DIRECTIVES.  (a)  The department shall assess an
 4-1     administrative penalty against an assisted living [a personal care]
 4-2     facility that violates Section 166.004.
 4-3           (b)  A penalty assessed under this section shall be $500.
 4-4           (c)  The penalty shall be assessed in accordance with
 4-5     department rules.  The rules must provide for notice and an
 4-6     opportunity for a hearing.
 4-7           SECTION 8.  Subchapter C, Chapter 247, Health and Safety
 4-8     Code, is amended by adding Sections 247.0451 through 247.0457 to
 4-9     read as follows:
4-10           Sec. 247.0451.  ADMINISTRATIVE PENALTY.  (a)  The department
4-11     may assess an administrative penalty against a person who:
4-12                 (1)  violates this chapter or a rule, standard, or
4-13     order adopted under this chapter or a term of a license issued
4-14     under this chapter;
4-15                 (2)  makes a false statement, that the person knows or
4-16     should know is false, of a material fact:
4-17                       (A)  on an application for issuance or renewal of
4-18     a license or in an attachment to the application; or
4-19                       (B)  with respect to a matter under investigation
4-20     by the department;
4-21                 (3)  refuses to allow a representative of the
4-22     department to inspect:
4-23                       (A)  a book, record, or file required to be
4-24     maintained by an assisted living facility; or
4-25                       (B)  any portion of the premises of an assisted
4-26     living facility;
 5-1                 (4)  wilfully interferes with the work of a
 5-2     representative of the department or the enforcement of this
 5-3     chapter;
 5-4                 (5)  wilfully interferes with a representative of the
 5-5     department preserving evidence of a violation of this chapter or a
 5-6     rule, standard, or order adopted under this chapter or a term of a
 5-7     license issued under this chapter; or
 5-8                 (6)  fails to pay a penalty assessed under this chapter
 5-9     not later than the 30th day after the date the assessment of the
5-10     penalty becomes final.
5-11           (b)  Except as provided by Section 247.0452(c), the penalty
5-12     may not exceed $1,000 for each violation.
5-13           (c)  The board shall establish gradations of penalties in
5-14     accordance with the relative seriousness of the violation.
5-15           (d)  In determining the amount of a penalty, the department
5-16     shall consider any matter that justice may require, but must
5-17     consider each of the following and make a record of the extent to
5-18     which each of the following was considered:
5-19                 (1)  the gradations of penalties established under
5-20     Subsection (c);
5-21                 (2)  the seriousness of the violation, including the
5-22     nature, circumstances, extent, and gravity of the prohibited act
5-23     and the hazard or potential hazard created by the act to the health
5-24     or safety of the public;
5-25                 (3)  the history of previous violations;
5-26                 (4)  deterrence of future violations;
 6-1                 (5)  efforts to correct the violation; and
 6-2                 (6)  the size of the facility and of the business
 6-3     entity that owns the facility.
 6-4           (e)  A penalty assessed under Subsection (a)(6) is in
 6-5     addition to the penalty previously assessed and not timely paid.
 6-6           (f)  The department may not assess a penalty under this
 6-7     section against a resident of an assisted living facility unless
 6-8     the resident is also an employee of the facility or a controlling
 6-9     person.
6-10           Sec. 247.0452.  RIGHT TO CORRECT.  (a)  The department may
6-11     not collect an administrative penalty from an assisted living
6-12     facility under Section 247.0451 if, not later than the 45th day
6-13     after the date the facility receives notice under Section
6-14     247.0453(c), the facility corrects the violation.
6-15           (b)  Subsection (a)  does not apply:
6-16                 (1)  to a violation that the department determines
6-17     results in serious harm to or death of a resident;
6-18                 (2)  to a violation described by Sections
6-19     247.0451(a)(2)-(6);
6-20                 (3)  to a second or subsequent violation of:
6-21                       (A)  a right of the same resident under Section
6-22     247.064; or
6-23                       (B)  the same right of all residents under
6-24     Section 247.064; or
6-25                 (4)  to a violation described by Section 247.066, which
6-26     contains its own right to correct provisions.
 7-1           (c)  An assisted living facility that corrects a violation
 7-2     must maintain the correction.  If the facility  fails to maintain
 7-3     the correction until at least the first anniversary of the date the
 7-4     correction was made, the department may assess and collect an
 7-5     administrative penalty for the subsequent violation.  An
 7-6     administrative penalty assessed under this subsection is equal to
 7-7     three times the amount of the original penalty assessed but not
 7-8     collected.  The department is not required to provide the facility
 7-9     with an opportunity under this section to correct the subsequent
7-10     violation.
7-11           Sec. 247.0453.  REPORT RECOMMENDING ADMINISTRATIVE PENALTY.
7-12     (a)  The department shall issue a preliminary report stating the
7-13     facts on which the department concludes that a violation of this
7-14     chapter or a rule, standard, or order adopted under this chapter or
7-15     a term of a license issued under this chapter has occurred if the
7-16     department has:
7-17                 (1)  examined the possible violation and facts
7-18     surrounding the possible violation; and
7-19                 (2)  concluded that a violation has occurred.
7-20           (b)  The report may recommend a penalty under Section
7-21     247.0451 and the amount of the penalty.
7-22           (c)  The department shall give written notice of the report
7-23     to the person charged with the violation not later than the 10th
7-24     day after the date on which the report is issued.  The notice must
7-25     include:
7-26                 (1)  a brief summary of the charges;
 8-1                 (2)  a statement of the amount of penalty recommended;
 8-2                 (3)  a statement of whether the violation is subject to
 8-3     correction under Section 247.0452 and, if the violation is subject
 8-4     to correction under that section, a statement of:
 8-5                       (A)  the date on which the assisted living
 8-6     facility must file with the department a plan of correction to be
 8-7     approved by the department; and
 8-8                       (B)  the date on which the plan of correction
 8-9     must be completed to avoid assessment of the penalty; and
8-10                 (4)  a statement that the person charged has a right to
8-11     a hearing on the occurrence of the violation, the amount of the
8-12     penalty, or both.
8-13           (d)  Not later than the 20th day after the date on which the
8-14     notice under Subsection (c) is received, the person charged may:
8-15                 (1)  give to the department written consent to the
8-16     department's report, including the recommended penalty; or
8-17                 (2)  make a written request for a hearing.
8-18           (e)  If the violation is subject to correction under Section
8-19     247.0452, the assisted living facility shall submit a plan of
8-20     correction to the department for approval not later than the 10th
8-21     day after the date on which the notice under Subsection (c) is
8-22     received.
8-23           (f)  If the violation is subject to correction under Section
8-24     247.0452, and the person reports to the department that the
8-25     violation has been corrected, the department shall inspect the
8-26     correction or take any other step necessary to confirm the
 9-1     correction and shall notify the person that:
 9-2                 (1)  the correction is satisfactory and a penalty will
 9-3     not be assessed; or
 9-4                 (2)  the correction is not satisfactory and a penalty
 9-5     is recommended.
 9-6           (g)  Not later than the 20th day after the date on which a
 9-7     notice under Subsection (f)(2) is received, the person charged may:
 9-8                 (1)  give to the department written consent to the
 9-9     department's report, including the recommended penalty; or
9-10                 (2)  make a written request for a hearing.
9-11           (h)  If the person charged with the violation consents to the
9-12     penalty recommended by the department or does not timely respond to
9-13     a notice sent under Subsection (c) or (f)(2), the commissioner or
9-14     the commissioner's designee shall assess the penalty recommended by
9-15     the department.
9-16           (i)  If the commissioner or the commissioner's designee
9-17     assesses the recommended penalty, the department shall give written
9-18     notice to the person charged of the decision and the person shall
9-19     pay the penalty.
9-20           Sec. 247.0454.  HEARING ON ADMINISTRATIVE PENALTY.  (a)  An
9-21     administrative law judge shall order a hearing and give notice of
9-22     the hearing if a person charged with a violation under Section
9-23     247.0451 timely requests a hearing.
9-24           (b)  The hearing shall be held before an administrative law
9-25     judge.
9-26           (c)  The administrative law judge shall make findings of fact
 10-1    and conclusions of law and promptly issue to the commissioner or
 10-2    the commissioner's designee a written decision regarding the
 10-3    occurrence of a violation of this chapter or a rule, standard, or
 10-4    order adopted under this chapter or a term of a license issued
 10-5    under this chapter and a recommendation regarding the amount of the
 10-6    proposed penalty if a penalty is warranted.
 10-7          (d)  Based on the findings of fact and conclusions of law and
 10-8    the recommendation of the administrative law judge, the
 10-9    commissioner or the commissioner's designee by order may:
10-10                (1)  find that a violation has occurred and assess an
10-11    administrative penalty; or
10-12                (2)  find that a violation has not occurred.
10-13          (e)  If the commissioner or the commissioner's designee finds
10-14    that a violation has not occurred, the commissioner or the
10-15    commissioner's designee shall order that all records reflecting
10-16    that the department found a violation had occurred and attempted to
10-17    impose an administrative penalty shall be expunged except:
10-18                (1)  records obtained by the department during its
10-19    investigation; and
10-20                (2)  the administrative law judge's findings of fact.
10-21          (f)  Proceedings under this section are subject to Chapter
10-22    2001, Government Code.
10-23          Sec. 247.0455.  NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
10-24    INTEREST; REFUND.  (a)  The commissioner or the commissioner's
10-25    designee shall give notice of the findings made under Section
10-26    247.0454(d) to the person charged.  If the commissioner or the
 11-1    commissioner's designee finds that a violation has occurred, the
 11-2    commissioner or the commissioner's designee shall give to the
 11-3    person charged written notice of:
 11-4                (1)  the findings;
 11-5                (2)  the amount of the administrative penalty;
 11-6                (3)  the rate of interest payable with respect to the
 11-7    penalty and the date on which interest begins to accrue;
 11-8                (4)  whether action under Section 247.0457 is required
 11-9    in lieu of payment of all or part of the penalty; and
11-10                (5)  the person's right to judicial review of the order
11-11    of the commissioner or the commissioner's designee.
11-12          (b)  Not later than the 30th day after the date on which the
11-13    order of the commissioner or the commissioner's designee is final,
11-14    the person charged with the penalty shall:
11-15                (1)  pay the full amount of the penalty; or
11-16                (2)  file a petition for judicial review contesting the
11-17    occurrence of the violation, the amount of the penalty, the
11-18    department's dissatisfaction with efforts to correct the violation,
11-19    or any combination of these issues.
11-20          (c)  Notwithstanding Subsection (b), the department may
11-21    permit the person to pay a penalty in installments or may require
11-22    the person to use all or part of the amount of the penalty in
11-23    accordance with Section 247.0457.
11-24          (d)  If the person does not pay the penalty within the period
11-25    provided by Subsection (b) or in accordance with Subsection (c), if
11-26    applicable:
 12-1                (1)  the penalty is subject to interest; and
 12-2                (2)  the department may refer the matter to the
 12-3    attorney general for collection of the penalty and interest.
 12-4          (e)  Interest under Subsection (d)(1) accrues:
 12-5                (1)  at a rate equal to the rate charged on loans to
 12-6    depository institutions by the New York Federal Reserve Bank; and
 12-7                (2)  for the period beginning on the day after the date
 12-8    on which the penalty becomes due and ending on the date the penalty
 12-9    is paid.
12-10          (f)  If the amount of the penalty is reduced or the
12-11    assessment of a penalty is not upheld on judicial review, the
12-12    commissioner shall:
12-13                (1)  remit to the person charged the appropriate amount
12-14    of any penalty payment plus accrued interest; or
12-15                (2)  execute a release of the supersedeas bond if one
12-16    has been posted.
12-17          (g)  Accrued interest on amounts remitted by the commissioner
12-18    under Subsection (f)(1) shall be paid:
12-19                (1)  at a rate equal to the rate charged on loans to
12-20    depository institutions by the New York Federal Reserve Bank; and
12-21                (2)  for the period beginning on the date the penalty
12-22    is paid and ending on the date the penalty is remitted to the
12-23    person charged.
12-24          Sec. 247.0456.  APPLICATION OF OTHER LAW.  The department may
12-25    not assess a monetary penalty under this chapter and a monetary
12-26    penalty under Chapter 32, Human Resources Code, for the same act or
 13-1    failure to act.
 13-2          Sec. 247.0457.  AMELIORATION OF VIOLATION.  (a)  In lieu of
 13-3    demanding payment of an administrative penalty assessed under
 13-4    Section 247.0451, the commissioner in accordance with this section
 13-5    may allow the person to use, under the supervision of the
 13-6    department, any portion of the penalty to ameliorate the violation
 13-7    or to improve services, other than administrative services, in the
 13-8    assisted living facility affected by the violation.
 13-9          (b)  The department shall offer amelioration to a person for
13-10    a charged violation if the department determines that the violation
13-11    does not constitute immediate jeopardy to the health and safety of
13-12    a resident of the assisted living facility.
13-13          (c)  The department shall offer amelioration to a person
13-14    under this section not later than the 10th day after the date the
13-15    person receives from the department a final notification of the
13-16    recommended assessment of an administrative penalty that is sent to
13-17    the person after an informal dispute resolution process but before
13-18    an administrative hearing under Section 247.0454.
13-19          (d)  A person to whom amelioration has been offered must file
13-20    a plan for amelioration not later than the 45th day after the date
13-21    the person receives the offer of amelioration from the department.
13-22    In submitting the plan, the person must agree to waive the person's
13-23    right to an administrative hearing under Section 247.0454 if the
13-24    department approves the plan.
13-25          (e)  At a minimum, a plan for amelioration must:
13-26                (1)  propose changes to the management or operation of
 14-1    the assisted living facility that will improve services to or
 14-2    quality of care of residents of the assisted living facility;
 14-3                (2)  identify, through measurable outcomes, the ways in
 14-4    which and the extent to which the proposed changes will improve
 14-5    services to or quality of care of residents of the assisted living
 14-6    facility;
 14-7                (3)  establish clear goals to be achieved through the
 14-8    proposed changes;
 14-9                (4)  establish a time line for implementing the
14-10    proposed changes; and
14-11                (5)  identify specific actions necessary to implement
14-12    the  proposed changes.
14-13          (f)  A plan for amelioration may include proposed changes to:
14-14                (1)  improve staff recruitment and retention;
14-15                (2)  offer or improve dental services for residents;
14-16    and
14-17                (3)  improve the overall quality of life for residents.
14-18          (g)  The department may require that an amelioration plan
14-19    propose changes that would result in conditions that exceed the
14-20    requirements of this chapter or the rules adopted under this
14-21    chapter.
14-22          (h)  The department shall approve or deny an amelioration
14-23    plan not later than the 45th day after the date the department
14-24    receives the plan.  On approval of a person's plan, the department
14-25    shall deny a pending request for a hearing submitted by the person
14-26    under Section 247.0453.
 15-1          (i)  The department may not offer amelioration to a person:
 15-2                (1)  more than three times in a two-year period; or
 15-3                (2)  more than one time in a two-year period for the
 15-4    same or similar violation.
 15-5          SECTION 9.  Subsection (b), Section 247.049, Health and
 15-6    Safety Code, is amended to read as follows:
 15-7          (b)  Subsection (a) does not:
 15-8                (1)  bar the admission into evidence of department
 15-9    reports or other documents in an enforcement action in which the
15-10    state or an agency or political subdivision of the state is a
15-11    party, including:
15-12                      (A)  an action seeking injunctive relief under
15-13    Section 247.044;
15-14                      (B)  an action seeking imposition of a civil
15-15    penalty under Section 247.045; [and]
15-16                      (C)  a contested case hearing involving denial,
15-17    suspension, or revocation of a license issued under this chapter;
15-18    and
15-19                      (D)  an action seeking imposition of an
15-20    administrative penalty under this subchapter;
15-21                (2)  bar the admission into evidence of department
15-22    reports or other documents that are offered:
15-23                      (A)  to establish warning or notice to an
15-24    assisted living facility of a relevant department determination; or
15-25                      (B)  under any rule or evidentiary predicate of
15-26    the Texas Rules of Evidence;
 16-1                (3)  prohibit or limit the testimony of a department
 16-2    employee, in accordance with the Texas Rules of Evidence, as to
 16-3    observations, factual findings, conclusions, or determinations that
 16-4    an assisted living facility violated a standard prescribed under
 16-5    this chapter if the observations, factual findings, conclusions, or
 16-6    determinations were made in the discharge of the employee's
 16-7    official duties for the department; or
 16-8                (4)  prohibit or limit the use of department reports or
 16-9    other documents in depositions or other forms of discovery
16-10    conducted in connection with a civil action if use of the reports
16-11    or other documents appears reasonably calculated to lead to the
16-12    discovery of admissible evidence.
16-13          SECTION 10.  Section 247.051, Health and Safety Code, is
16-14    transferred to Subchapter A, Chapter 247, Health and Safety Code,
16-15    renumbered as Section 247.006, Health and Safety Code, and amended
16-16    to read as follows:
16-17          Sec. 247.006 [247.051].  ADVISORY COMMITTEE.  (a)  The
16-18    Advisory Committee on Assisted Living Facilities consists of nine
16-19    members appointed by the board.  The commissioner of human services
16-20    shall appoint two staff members from the department to serve as
16-21    nonvoting advisory members.  In appointing staff members under this
16-22    subsection, the commissioner shall appoint one member as a
16-23    representative of long-term care policy and one member as a
16-24    representative of long-term care regulation.
16-25          (b)  The board shall appoint the advisory committee to
16-26    provide for a balanced representation of assisted living [personal
 17-1    care] providers and consumers and shall appoint one member who has
 17-2    expertise in life safety code regulations.  At least one of the
 17-3    provider members must be representative of a nonprofit facility,
 17-4    and at least one member must be a family member of a resident of a
 17-5    facility.
 17-6          (c)  The committee shall elect the presiding officer from
 17-7    among its members.
 17-8          (d)  The committee shall advise the department on standards
 17-9    for licensing assisted living facilities and on the implementation
17-10    of this chapter.
17-11          SECTION 11.  The subchapter heading to Subchapter D, Chapter
17-12    247, Health and Safety Code, is repealed.
17-13          SECTION 12.  Subchapter E, Chapter 247, Health and Safety
17-14    Code, is redesignated as Subchapter D, Chapter 247, Health and
17-15    Safety Code, and the subchapter heading is amended to read as
17-16    follows:
17-17                SUBCHAPTER D [E].  MISCELLANEOUS PROVISIONS
17-18          SECTION 13.  Subchapter C, Chapter 247, Health and Safety
17-19    Code, is amended by adding Section 247.051 to read as follows:
17-20          Sec. 247.051.  INFORMAL DISPUTE RESOLUTION.  (a)  The Health
17-21    and Human Services Commission by rule shall establish an informal
17-22    dispute resolution process in accordance with this section.  The
17-23    process must provide for adjudication by an appropriate
17-24    disinterested person of disputes relating to a proposed enforcement
17-25    action or related proceeding under this chapter.  The informal
17-26    dispute resolution process must require:
 18-1                (1)  the assisted living facility to request informal
 18-2    dispute resolution not later than the 10th day after the date of
 18-3    notification by the department of the violation of a standard or
 18-4    standards;
 18-5                (2)  the Health and Human Services Commission to
 18-6    complete the process not later than the 30th day after the date of
 18-7    receipt of a request from the assisted living facility for informal
 18-8    dispute resolution; and
 18-9                (3)  any individual representing an assisted living
18-10    facility in an informal dispute resolution process to register with
18-11    the Health and Human Services Commission and disclose the
18-12    following:
18-13                      (A)  the individual's employment history during
18-14    the preceding five years, including employment in regulatory
18-15    agencies of this state and other states;
18-16                      (B)  ownership, including the identity of the
18-17    controlling person or persons, of the assisted living facility the
18-18    individual is representing before the Health and Human Services
18-19    Commission; and
18-20                      (C)  the identity of other entities the
18-21    individual represents or has represented before the Health and
18-22    Human Services Commission during the preceding 24 months.
18-23          (b)  The Health and Human Services Commission shall adopt
18-24    rules to adjudicate claims in contested cases.
18-25          (c)  The Health and Human Services Commission may not
18-26    delegate its responsibility to administer the informal dispute
 19-1    resolution process established by this section to another state
 19-2    agency.
 19-3          SECTION 14.  Section 247.066, Health and Safety Code, is
 19-4    amended by adding Subsections (c), (d), and (e) to read as follows:
 19-5          (c)  If a department inspector determines that a resident is
 19-6    inappropriately placed at a facility, the facility is not required
 19-7    to move the resident if, not later than the 10th business day after
 19-8    the date that the facility is informed of the specific basis of the
 19-9    inspector's determination, the facility:
19-10                (1)  obtains a written assessment from a physician that
19-11    the resident is appropriately placed;
19-12                (2)  obtains a written statement:
19-13                      (A)  from the resident that the resident wishes
19-14    to remain in the facility; or
19-15                      (B)  from a family member of the resident that
19-16    the family member wishes for the resident to remain in the
19-17    facility, if the resident lacks capacity to give a statement under
19-18    this subsection;
19-19                (3)  states in writing that the facility wishes for the
19-20    resident to remain in the facility; and
19-21                (4)  applies for and obtains a waiver from the
19-22    department of all applicable requirements for evacuation that the
19-23    facility does not meet with respect to the resident, if the
19-24    facility does not meet all requirements for the evacuation of
19-25    residents with respect to the resident.
19-26          (d)  If a department inspector determines that a resident is
 20-1    inappropriately placed at a facility and the facility either agrees
 20-2    with the determination or does not obtain the written statements
 20-3    prescribed by Subsection (c) that would allow the resident to
 20-4    remain in the facility notwithstanding the determination of the
 20-5    inspector, the department may not assess an administrative penalty
 20-6    against the facility because of the inappropriate placement.
 20-7    However, the facility shall discharge the resident.  The resident
 20-8    is allowed 30 days after the date of discharge to move from the
 20-9    facility.  A discharge required under this subsection must be made
20-10    notwithstanding:
20-11                (1)  any other law, including any law relating to the
20-12    rights of residents and any obligations imposed under the Property
20-13    Code; and
20-14                (2)  the terms of any contract.
20-15          (e)  To facilitate obtaining the written statements required
20-16    under Subsections (c)(1)-(3), the department shall develop standard
20-17    forms that must be used under Subsections (c)(1)-(3).  The
20-18    department shall develop criteria under which the department will
20-19    determine, based on a resident's specific situation, whether it
20-20    will grant or deny a request for a waiver under Subsection (c)(4).
20-21          SECTION 15.  Subchapter D, Chapter 242, Health and Safety
20-22    Code, is amended by adding Sections 242.0965 and 242.0975 to read
20-23    as follows:
20-24          Sec. 242.0965.  ASSISTED LIVING FACILITY TRUST FUND AND
20-25    EMERGENCY ASSISTANCE FUNDS.  (a)  The assisted living facility
20-26    trust fund is a trust fund with the comptroller and shall be made
 21-1    available to the department for expenditures without legislative
 21-2    appropriation to make emergency assistance funds available to an
 21-3    assisted living facility.
 21-4          (b)  A trustee of an assisted living facility may use the
 21-5    emergency assistance funds only to alleviate an immediate threat to
 21-6    the health or safety of the residents.  The use may include
 21-7    payments for:
 21-8                (1)  food;
 21-9                (2)  medication;
21-10                (3)  sanitation services;
21-11                (4)  minor repairs;
21-12                (5)  supplies necessary for personal hygiene; or
21-13                (6)  services necessary for the personal care, health,
21-14    and safety of the residents.
21-15          (c)  A court may order the department to disburse emergency
21-16    assistance funds to an assisted living facility if the court finds
21-17    that:
21-18                (1)  the assisted living facility has inadequate funds
21-19    accessible to the trustee for the operation of the assisted living
21-20    facility;
21-21                (2)  an emergency exists that presents an immediate
21-22    threat to the health and safety of the residents; and
21-23                (3)  it is in the best interests of the health and
21-24    safety of the residents that funds are immediately available.
21-25          (d)  The department shall disburse money from the assisted
21-26    living facility trust fund as ordered by the court in accordance
 22-1    with board rules.
 22-2          (e)  Any unencumbered amount in the assisted living facility
 22-3    trust fund in excess of $500,000 at the end of each fiscal year
 22-4    shall be transferred to the credit of the general revenue fund and
 22-5    may be appropriated only to the department for its use in
 22-6    administering and enforcing Chapter 247.
 22-7          Sec. 242.0975.  ADDITIONAL LICENSE FEE--ASSISTED LIVING
 22-8    FACILITIES.  (a)  In addition to the license fee provided by
 22-9    Section 247.024, the department shall adopt an annual fee to be
22-10    charged and collected if the amount of the assisted living facility
22-11    trust fund is less than $500,000.  The fee shall be deposited to
22-12    the credit of the assisted living facility trust fund created by
22-13    this subchapter.
22-14          (b)  The department may charge and collect a fee under this
22-15    section more than once each year only if necessary to ensure that
22-16    the amount in the assisted living facility trust fund is sufficient
22-17    to make the disbursements required under Section 242.0965.  If the
22-18    department makes a second or subsequent assessment under this
22-19    subsection in any year, the department shall notify the governor
22-20    and the Legislative Budget Board.
22-21          (c)  The department shall set the fee on the basis of the
22-22    number of beds in assisted living facilities required to pay the
22-23    fee and in an amount necessary to provide not more than $500,000 in
22-24    the assisted living facility trust fund.
22-25          SECTION 16.  The section heading of Section 242.097, Health
22-26    and Safety Code, is amended to read as follows:
                                                                S.B. No. 527
    23-1          Sec. 242.097.  ADDITIONAL LICENSE FEE--NURSING AND
    23-2    CONVALESCENT HOMES.
    23-3          SECTION 17.  Subsection (d), Section 247.0271, Health and
    23-4    Safety Code, is repealed.
    23-5          SECTION 18.  The Texas Department of Human Services shall
    23-6    adopt rules to implement Section 247.0452, Health and Safety Code,
    23-7    as added by this Act, and Section 247.066, Health and Safety Code,
    23-8    as amended by this Act, not later than January 1, 2002.
    23-9          SECTION 19.  This Act takes effect September 1, 2001.
            _______________________________     _______________________________
                President of the Senate              Speaker of the House
                  I hereby certify that S.B. No. 527 passed the Senate on
            May 3, 2001, by a viva-voce vote; May 25, 2001, Senate refused to
            concur in House amendments and requested appointment of Conference
            Committee; May 25, 2001, House granted request of the Senate;
            May 27, 2001, Senate adopted Conference Committee Report by a
            viva-voce vote.
                                                _______________________________
                                                    Secretary of the Senate
                  I hereby certify that S.B. No. 527 passed the House, with
            amendments, on May 23, 2001, by a non-record vote; May 25, 2001,
            House granted request of the Senate for appointment of Conference
            Committee; May 27, 2001, House adopted Conference Committee Report
            by a non-record vote.
                                                _______________________________
                                                    Chief Clerk of the House
            Approved:
            _______________________________
                         Date
            _______________________________
                       Governor