77R16262 JRD-F
By Moncrief S.B. No. 527
Substitute the following for S.B. No. 527:
By Naishtat C.S.S.B. No. 527
A BILL TO BE ENTITLED
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
2-1 chapter. In developing the examination, the department shall
2-2 consult with operators of assisted living facilities or their
2-3 representatives and with consumers of personal care services
2-4 provided by assisted living facilities or representatives of
2-5 consumers.
2-6 (d) A department employee may not independently inspect,
2-7 survey, or take administrative action against an assisted living
2-8 facility unless the employee has passed the examination
2-9 administered under Subsection (c).
2-10 SECTION 5. Section 247.041, Health and Safety Code, is
2-11 amended to read as follows:
2-12 Sec. 247.041. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE.
2-13 (a) The department, after providing notice and opportunity for a
2-14 hearing to the applicant or license holder, may deny, suspend, or
2-15 revoke a license if the department finds that the applicant,
2-16 license holder, or a controlling person has:
2-17 (1) violated [for a violation of] this chapter or a
2-18 rule, standard, or order adopted or license issued under this
2-19 chapter in either a repeated or substantial manner; or
2-20 (2) committed any act described by Sections
2-21 247.0451(a)(2)-(6).
2-22 (b) The denial, suspension, or revocation of a license by
2-23 the department and the appeal from that action are governed by the
2-24 procedures for a contested case hearing under Chapter 2001,
2-25 Government Code.
2-26 (c) The status of a person as an applicant for a license or
2-27 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
3-27 administrative penalty against an assisted living [a personal care]
4-1 facility that violates Section 166.004.
4-2 (b) A penalty assessed under this section shall be $500.
4-3 (c) The penalty shall be assessed in accordance with
4-4 department rules. The rules must provide for notice and an
4-5 opportunity for a hearing.
4-6 SECTION 8. Subchapter C, Chapter 247, Health and Safety
4-7 Code, is amended by adding Sections 247.0451 through 247.0457 to
4-8 read as follows:
4-9 Sec. 247.0451. ADMINISTRATIVE PENALTY. (a) The department
4-10 may assess an administrative penalty against a person who:
4-11 (1) violates this chapter or a rule, standard, or
4-12 order adopted under this chapter or a term of a license issued
4-13 under this chapter;
4-14 (2) makes a false statement, that the person knows or
4-15 should know is false, of a material fact:
4-16 (A) on an application for issuance or renewal of
4-17 a license or in an attachment to the application; or
4-18 (B) with respect to a matter under investigation
4-19 by the department;
4-20 (3) refuses to allow a representative of the
4-21 department to inspect:
4-22 (A) a book, record, or file required to be
4-23 maintained by an assisted living facility; or
4-24 (B) any portion of the premises of an assisted
4-25 living facility;
4-26 (4) wilfully interferes with the work of a
4-27 representative of the department or the enforcement of this
5-1 chapter;
5-2 (5) wilfully interferes with a representative of the
5-3 department preserving evidence of a violation of this chapter or a
5-4 rule, standard, or order adopted under this chapter or a term of a
5-5 license issued under this chapter; or
5-6 (6) fails to pay a penalty assessed under this chapter
5-7 not later than the 30th day after the date the assessment of the
5-8 penalty becomes final.
5-9 (b) Except as provided by Section 247.0452(c), the penalty
5-10 may not exceed $1,000 for each violation.
5-11 (c) The board shall establish gradations of penalties in
5-12 accordance with the relative seriousness of the violation.
5-13 (d) In determining the amount of a penalty, the department
5-14 shall consider any matter that justice may require, but must
5-15 consider each of the following and make a record of the extent to
5-16 which each of the following was considered:
5-17 (1) the gradations of penalties established under
5-18 Subsection (c);
5-19 (2) the seriousness of the violation, including the
5-20 nature, circumstances, extent, and gravity of the prohibited act
5-21 and the hazard or potential hazard created by the act to the health
5-22 or safety of the public;
5-23 (3) the history of previous violations;
5-24 (4) deterrence of future violations;
5-25 (5) efforts to correct the violation; and
5-26 (6) the size of the facility and of the business
5-27 entity that owns the facility.
6-1 (e) A penalty assessed under Subsection (a)(6) is in
6-2 addition to the penalty previously assessed and not timely paid.
6-3 Sec. 247.0452. RIGHT TO CORRECT. (a) The department may
6-4 not collect an administrative penalty from an assisted living
6-5 facility under Section 247.0451 if, not later than the 45th day
6-6 after the date the facility receives notice under Section
6-7 247.0453(c), the facility corrects the violation.
6-8 (b) Subsection (a) does not apply:
6-9 (1) to a violation that the department determines
6-10 results in serious harm to or death of a resident;
6-11 (2) to a violation described by Sections
6-12 247.0451(a)(2)-(6);
6-13 (3) to a second or subsequent violation of:
6-14 (A) a right of the same resident under Section
6-15 247.064; or
6-16 (B) the same right of all residents under
6-17 Section 247.064; or
6-18 (4) to a violation described by Section 247.066, which
6-19 contains its own right to correct provisions.
6-20 (c) An assisted living facility that corrects a violation
6-21 must maintain the correction. If the facility fails to maintain
6-22 the correction until at least the first anniversary of the date the
6-23 correction was made, the department may assess and collect an
6-24 administrative penalty for the subsequent violation. An
6-25 administrative penalty assessed under this subsection is equal to
6-26 three times the amount of the original penalty assessed but not
6-27 collected. The department is not required to provide the facility
7-1 with an opportunity under this section to correct the subsequent
7-2 violation.
7-3 Sec. 247.0453. REPORT RECOMMENDING ADMINISTRATIVE PENALTY.
7-4 (a) The department shall issue a preliminary report stating the
7-5 facts on which the department concludes that a violation of this
7-6 chapter or a rule, standard, or order adopted under this chapter or
7-7 a term of a license issued under this chapter has occurred if the
7-8 department has:
7-9 (1) examined the possible violation and facts
7-10 surrounding the possible violation; and
7-11 (2) concluded that a violation has occurred.
7-12 (b) The report may recommend a penalty under Section
7-13 247.0451 and the amount of the penalty.
7-14 (c) The department shall give written notice of the report
7-15 to the person charged with the violation not later than the 10th
7-16 day after the date on which the report is issued. The notice must
7-17 include:
7-18 (1) a brief summary of the charges;
7-19 (2) a statement of the amount of penalty recommended;
7-20 (3) a statement of whether the violation is subject to
7-21 correction under Section 247.0452 and, if the violation is subject
7-22 to correction under that section, a statement of:
7-23 (A) the date on which the assisted living
7-24 facility must file with the department a plan of correction to be
7-25 approved by the department; and
7-26 (B) the date on which the plan of correction
7-27 must be completed to avoid assessment of the penalty; and
8-1 (4) a statement that the person charged has a right to
8-2 a hearing on the occurrence of the violation, the amount of the
8-3 penalty, or both.
8-4 (d) Not later than the 20th day after the date on which the
8-5 notice under Subsection (c) is received, the person charged may:
8-6 (1) give to the department written consent to the
8-7 department's report, including the recommended penalty; or
8-8 (2) make a written request for a hearing.
8-9 (e) If the violation is subject to correction under Section
8-10 247.0452, the assisted living facility shall submit a plan of
8-11 correction to the department for approval not later than the 10th
8-12 day after the date on which the notice under Subsection (c) is
8-13 received.
8-14 (f) If the violation is subject to correction under Section
8-15 247.0452, and the person reports to the department that the
8-16 violation has been corrected, the department shall inspect the
8-17 correction or take any other step necessary to confirm the
8-18 correction and shall notify the person that:
8-19 (1) the correction is satisfactory and a penalty will
8-20 not be assessed; or
8-21 (2) the correction is not satisfactory and a penalty
8-22 is recommended.
8-23 (g) Not later than the 20th day after the date on which a
8-24 notice under Subsection (f)(2) is received, the person charged may:
8-25 (1) give to the department written consent to the
8-26 department's report, including the recommended penalty; or
8-27 (2) make a written request for a hearing.
9-1 (h) If the person charged with the violation consents to the
9-2 penalty recommended by the department or does not timely respond to
9-3 a notice sent under Subsection (c) or (f)(2), the commissioner or
9-4 the commissioner's designee shall assess the penalty recommended by
9-5 the department.
9-6 (i) If the commissioner or the commissioner's designee
9-7 assesses the recommended penalty, the department shall give written
9-8 notice to the person charged of the decision and the person shall
9-9 pay the penalty.
9-10 Sec. 247.0454. HEARING ON ADMINISTRATIVE PENALTY. (a) An
9-11 administrative law judge shall order a hearing and give notice of
9-12 the hearing if a person charged with a violation under Section
9-13 247.0451 timely requests a hearing.
9-14 (b) The hearing shall be held before an administrative law
9-15 judge.
9-16 (c) The administrative law judge shall make findings of fact
9-17 and conclusions of law and promptly issue to the commissioner or
9-18 the commissioner's designee a written decision regarding the
9-19 occurrence of a violation of this chapter or a rule, standard, or
9-20 order adopted under this chapter or a term of a license issued
9-21 under this chapter and a recommendation regarding the amount of the
9-22 proposed penalty if a penalty is warranted.
9-23 (d) Based on the findings of fact and conclusions of law and
9-24 the recommendation of the administrative law judge, the
9-25 commissioner or the commissioner's designee by order may:
9-26 (1) find that a violation has occurred and assess an
9-27 administrative penalty; or
10-1 (2) find that a violation has not occurred.
10-2 (e) If the commissioner or the commissioner's designee finds
10-3 that a violation has not occurred, the commissioner or the
10-4 commissioner's designee shall order that all records reflecting
10-5 that the department found a violation had occurred and attempted to
10-6 impose an administrative penalty shall be expunged except:
10-7 (1) records obtained by the department during its
10-8 investigation; and
10-9 (2) the administrative law judge's findings of fact.
10-10 (f) Proceedings under this section are subject to Chapter
10-11 2001, Government Code.
10-12 Sec. 247.0455. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
10-13 INTEREST; REFUND. (a) The commissioner or the commissioner's
10-14 designee shall give notice of the findings made under Section
10-15 247.0454(d) to the person charged. If the commissioner or the
10-16 commissioner's designee finds that a violation has occurred, the
10-17 commissioner or the commissioner's designee shall give to the
10-18 person charged written notice of:
10-19 (1) the findings;
10-20 (2) the amount of the administrative penalty;
10-21 (3) the rate of interest payable with respect to the
10-22 penalty and the date on which interest begins to accrue;
10-23 (4) whether action under Section 247.0457 is required
10-24 in lieu of payment of all or part of the penalty; and
10-25 (5) the person's right to judicial review of the order
10-26 of the commissioner or the commissioner's designee.
10-27 (b) Not later than the 30th day after the date on which the
11-1 order of the commissioner or the commissioner's designee is final,
11-2 the person charged with the penalty shall:
11-3 (1) pay the full amount of the penalty; or
11-4 (2) file a petition for judicial review contesting the
11-5 occurrence of the violation, the amount of the penalty, the
11-6 department's dissatisfaction with efforts to correct the violation,
11-7 or any combination of these issues.
11-8 (c) Notwithstanding Subsection (b), the department may
11-9 permit the person to pay a penalty in installments or may require
11-10 the person to use all or part of the amount of the penalty in
11-11 accordance with Section 247.0457.
11-12 (d) If the person does not pay the penalty within the period
11-13 provided by Subsection (b) or in accordance with Subsection (c), if
11-14 applicable:
11-15 (1) the penalty is subject to interest; and
11-16 (2) the department may refer the matter to the
11-17 attorney general for collection of the penalty and interest.
11-18 (e) Interest under Subsection (d)(1) accrues:
11-19 (1) at a rate equal to the rate charged on loans to
11-20 depository institutions by the New York Federal Reserve Bank; and
11-21 (2) for the period beginning on the day after the date
11-22 on which the penalty becomes due and ending on the date the penalty
11-23 is paid.
11-24 (f) If the amount of the penalty is reduced or the
11-25 assessment of a penalty is not upheld on judicial review, the
11-26 commissioner shall:
11-27 (1) remit to the person charged the appropriate amount
12-1 of any penalty payment plus accrued interest; or
12-2 (2) execute a release of the supersedeas bond if one
12-3 has been posted.
12-4 (g) Accrued interest on amounts remitted by the commissioner
12-5 under Subsection (f)(1) shall be paid:
12-6 (1) at a rate equal to the rate charged on loans to
12-7 depository institutions by the New York Federal Reserve Bank; and
12-8 (2) for the period beginning on the date the penalty
12-9 is paid and ending on the date the penalty is remitted to the
12-10 person charged.
12-11 Sec. 247.0456. APPLICATION OF OTHER LAW. The department may
12-12 not assess a monetary penalty under this chapter and a monetary
12-13 penalty under Chapter 32, Human Resources Code, for the same act or
12-14 failure to act.
12-15 Sec. 247.0457. AMELIORATION OF VIOLATION. (a) In lieu of
12-16 demanding payment of an administrative penalty assessed under
12-17 Section 247.0451, the commissioner in accordance with this section
12-18 may allow the person to use, under the supervision of the
12-19 department, any portion of the penalty to ameliorate the violation
12-20 or to improve services, other than administrative services, in the
12-21 assisted living facility affected by the violation.
12-22 (b) The department shall offer amelioration to a person for
12-23 a charged violation if the department determines that the violation
12-24 does not constitute immediate jeopardy to the health and safety of
12-25 a resident of the assisted living facility.
12-26 (c) The department shall offer amelioration to a person
12-27 under this section not later than the 10th day after the date the
13-1 person receives from the department a final notification of the
13-2 recommended assessment of an administrative penalty that is sent to
13-3 the person after an informal dispute resolution process but before
13-4 an administrative hearing under Section 247.0454.
13-5 (d) A person to whom amelioration has been offered must file
13-6 a plan for amelioration not later than the 45th day after the date
13-7 the person receives the offer of amelioration from the department.
13-8 In submitting the plan, the person must agree to waive the person's
13-9 right to an administrative hearing under Section 247.0454 if the
13-10 department approves the plan.
13-11 (e) At a minimum, a plan for amelioration must:
13-12 (1) propose changes to the management or operation of
13-13 the assisted living facility that will improve services to or
13-14 quality of care of residents of the assisted living facility;
13-15 (2) identify, through measurable outcomes, the ways in
13-16 which and the extent to which the proposed changes will improve
13-17 services to or quality of care of residents of the assisted living
13-18 facility;
13-19 (3) establish clear goals to be achieved through the
13-20 proposed changes;
13-21 (4) establish a time line for implementing the
13-22 proposed changes; and
13-23 (5) identify specific actions necessary to implement
13-24 the proposed changes.
13-25 (f) A plan for amelioration may include proposed changes to:
13-26 (1) improve staff recruitment and retention;
13-27 (2) offer or improve dental services for residents;
14-1 and
14-2 (3) improve the overall quality of life for residents.
14-3 (g) The department may require that an amelioration plan
14-4 propose changes that would result in conditions that exceed the
14-5 requirements of this chapter or the rules adopted under this
14-6 chapter.
14-7 (h) The department shall approve or deny an amelioration
14-8 plan not later than the 45th day after the date the department
14-9 receives the plan. On approval of a person's plan, the department
14-10 shall deny a pending request for a hearing submitted by the person
14-11 under Section 247.0453.
14-12 (i) The department may not offer amelioration to a person:
14-13 (1) more than three times in a two-year period; or
14-14 (2) more than one time in a two-year period for the
14-15 same or similar violation.
14-16 SECTION 9. Subsection (b), Section 247.049, Health and
14-17 Safety Code, is amended to read as follows:
14-18 (b) Subsection (a) does not:
14-19 (1) bar the admission into evidence of department
14-20 reports or other documents in an enforcement action in which the
14-21 state or an agency or political subdivision of the state is a
14-22 party, including:
14-23 (A) an action seeking injunctive relief under
14-24 Section 247.044;
14-25 (B) an action seeking imposition of a civil
14-26 penalty under Section 247.045; [and]
14-27 (C) a contested case hearing involving denial,
15-1 suspension, or revocation of a license issued under this chapter;
15-2 and
15-3 (D) an action seeking imposition of an
15-4 administrative penalty under this subchapter;
15-5 (2) bar the admission into evidence of department
15-6 reports or other documents that are offered:
15-7 (A) to establish warning or notice to an
15-8 assisted living facility of a relevant department determination; or
15-9 (B) under any rule or evidentiary predicate of
15-10 the Texas Rules of Evidence;
15-11 (3) prohibit or limit the testimony of a department
15-12 employee, in accordance with the Texas Rules of Evidence, as to
15-13 observations, factual findings, conclusions, or determinations that
15-14 an assisted living facility violated a standard prescribed under
15-15 this chapter if the observations, factual findings, conclusions, or
15-16 determinations were made in the discharge of the employee's
15-17 official duties for the department; or
15-18 (4) prohibit or limit the use of department reports or
15-19 other documents in depositions or other forms of discovery
15-20 conducted in connection with a civil action if use of the reports
15-21 or other documents appears reasonably calculated to lead to the
15-22 discovery of admissible evidence.
15-23 SECTION 10. Section 247.051, Health and Safety Code, is
15-24 transferred to Subchapter A, Chapter 247, Health and Safety Code,
15-25 renumbered as Section 247.006, Health and Safety Code, and amended
15-26 to read as follows:
15-27 Sec. 247.006 [247.051]. ADVISORY COMMITTEE. (a) The
16-1 Advisory Committee on Assisted Living Facilities consists of nine
16-2 members appointed by the board. The commissioner of human services
16-3 shall appoint two staff members from the department to serve as
16-4 nonvoting advisory members. In appointing staff members under this
16-5 subsection, the commissioner shall appoint one member as a
16-6 representative of long-term care policy and one member as a
16-7 representative of long-term care regulation.
16-8 (b) The board shall appoint the advisory committee to
16-9 provide for a balanced representation of assisted living [personal
16-10 care] providers and consumers and shall appoint one member who has
16-11 expertise in life safety code regulations. At least one of the
16-12 provider members must be representative of a nonprofit facility,
16-13 and at least one member must be a family member of a resident of a
16-14 facility.
16-15 (c) The committee shall elect the presiding officer from
16-16 among its members.
16-17 (d) The committee shall advise the department on standards
16-18 for licensing assisted living facilities and on the implementation
16-19 of this chapter.
16-20 SECTION 11. The subchapter heading to Subchapter D, Chapter
16-21 247, Health and Safety Code, is repealed.
16-22 SECTION 12. Subchapter E, Chapter 247, Health and Safety
16-23 Code, is redesignated as Subchapter D, Chapter 247, Health and
16-24 Safety Code, and the subchapter heading is amended to read as
16-25 follows:
16-26 SUBCHAPTER D [E]. MISCELLANEOUS PROVISIONS
16-27 SECTION 13. Subchapter C, Chapter 247, Health and Safety
17-1 Code, is amended by adding Section 247.051 to read as follows:
17-2 Sec. 247.051. INFORMAL DISPUTE RESOLUTION. (a) The Health
17-3 and Human Services Commission by rule shall establish an informal
17-4 dispute resolution process in accordance with this section. The
17-5 process must provide for adjudication by an appropriate
17-6 disinterested person of disputes relating to a proposed enforcement
17-7 action or related proceeding under this chapter. The informal
17-8 dispute resolution process must require:
17-9 (1) the assisted living facility to request informal
17-10 dispute resolution not later than the 10th day after the date of
17-11 notification by the department of the violation of a standard or
17-12 standards;
17-13 (2) the Health and Human Services Commission to
17-14 complete the process not later than the 30th day after the date of
17-15 receipt of a request from the assisted living facility for informal
17-16 dispute resolution; and
17-17 (3) any individual representing an assisted living
17-18 facility in an informal dispute resolution process to register with
17-19 the Health and Human Services Commission and disclose the
17-20 following:
17-21 (A) the individual's employment history during
17-22 the preceding five years, including employment in regulatory
17-23 agencies of this state and other states;
17-24 (B) ownership, including the identity of the
17-25 controlling person or persons, of the assisted living facility the
17-26 individual is representing before the Health and Human Services
17-27 Commission; and
18-1 (C) the identity of other entities the
18-2 individual represents or has represented before the Health and
18-3 Human Services Commission during the preceding 24 months.
18-4 (b) The Health and Human Services Commission shall adopt
18-5 rules to adjudicate claims in contested cases.
18-6 (c) The Health and Human Services Commission may not
18-7 delegate its responsibility to administer the informal dispute
18-8 resolution process established by this section to another state
18-9 agency.
18-10 SECTION 14. Section 247.066, Health and Safety Code, is
18-11 amended by adding Subsections (c), (d), and (e) to read as follows:
18-12 (c) If a department inspector determines that a resident is
18-13 inappropriately placed at a facility, the facility is not required
18-14 to move the resident if, not later than the 10th business day after
18-15 the date that the facility is informed of the specific basis of the
18-16 inspector's determination, the facility:
18-17 (1) obtains a written assessment from a physician that
18-18 the resident is appropriately placed;
18-19 (2) obtains a written statement:
18-20 (A) from the resident that the resident wishes
18-21 to remain in the facility; or
18-22 (B) from a family member of the resident that
18-23 the family member wishes for the resident to remain in the
18-24 facility, if the resident lacks capacity to give a statement under
18-25 this subsection;
18-26 (3) states in writing that the facility wishes for the
18-27 resident to remain in the facility; and
19-1 (4) applies for and obtains a waiver from the
19-2 department of all applicable requirements for evacuation that the
19-3 facility does not meet with respect to the resident, if the
19-4 facility does not meet all requirements for the evacuation of
19-5 residents with respect to the resident.
19-6 (d) If a department inspector determines that a resident is
19-7 inappropriately placed at a facility and the facility either agrees
19-8 with the determination or does not obtain the written statements
19-9 prescribed by Subsection (c) that would allow the resident to
19-10 remain in the facility notwithstanding the determination of the
19-11 inspector, the department may not assess an administrative penalty
19-12 against the facility because of the inappropriate placement.
19-13 However, the facility shall discharge the resident. The resident
19-14 is allowed 30 days after the date of discharge to move from the
19-15 facility. A discharge required under this subsection must be made
19-16 notwithstanding:
19-17 (1) any other law, including any law relating to the
19-18 rights of residents and any obligations imposed under the Property
19-19 Code; and
19-20 (2) the terms of any contract.
19-21 (e) To facilitate obtaining the written statements required
19-22 under Subsections (c)(1)-(3), the department shall develop standard
19-23 forms that must be used under Subsections (c)(1)-(3). The
19-24 department shall develop criteria under which the department will
19-25 determine, based on a resident's specific situation, whether it
19-26 will grant or deny a request for a waiver under Subsection (c)(4).
19-27 SECTION 15. Subchapter D, Chapter 242, Health and Safety
20-1 Code, is amended by adding Sections 242.0965 and 242.0975 to read
20-2 as follows:
20-3 Sec. 242.0965. ASSISTED LIVING FACILITY TRUST FUND AND
20-4 EMERGENCY ASSISTANCE FUNDS. (a) The assisted living facility trust
20-5 fund is a trust fund with the comptroller and shall be made
20-6 available to the department for expenditures without legislative
20-7 appropriation to make emergency assistance funds available to an
20-8 assisted living facility.
20-9 (b) A trustee of an assisted living facility may use the
20-10 emergency assistance funds only to alleviate an immediate threat to
20-11 the health or safety of the residents. The use may include
20-12 payments for:
20-13 (1) food;
20-14 (2) medication;
20-15 (3) sanitation services;
20-16 (4) minor repairs;
20-17 (5) supplies necessary for personal hygiene; or
20-18 (6) services necessary for the personal care, health,
20-19 and safety of the residents.
20-20 (c) A court may order the department to disburse emergency
20-21 assistance funds to an assisted living facility if the court finds
20-22 that:
20-23 (1) the assisted living facility has inadequate funds
20-24 accessible to the trustee for the operation of the assisted living
20-25 facility;
20-26 (2) an emergency exists that presents an immediate
20-27 threat to the health and safety of the residents; and
21-1 (3) it is in the best interests of the health and
21-2 safety of the residents that funds are immediately available.
21-3 (d) The department shall disburse money from the assisted
21-4 living facility trust fund as ordered by the court in accordance
21-5 with board rules.
21-6 (e) Any unencumbered amount in the assisted living facility
21-7 trust fund in excess of $500,000 at the end of each fiscal year
21-8 shall be transferred to the credit of the general revenue fund and
21-9 may be appropriated only to the department for its use in
21-10 administering and enforcing Chapter 247.
21-11 Sec. 242.0975. ADDITIONAL LICENSE FEE--ASSISTED LIVING
21-12 FACILITIES. (a) In addition to the license fee provided by Section
21-13 247.024, the department shall adopt an annual fee to be charged and
21-14 collected if the amount of the assisted living facility trust fund
21-15 is less than $500,000. The fee shall be deposited to the credit of
21-16 the assisted living facility trust fund created by this subchapter.
21-17 (b) The department may charge and collect a fee under this
21-18 section more than once each year only if necessary to ensure that
21-19 the amount in the assisted living facility trust fund is sufficient
21-20 to make the disbursements required under Section 242.0965. If the
21-21 department makes a second or subsequent assessment under this
21-22 subsection in any year, the department shall notify the governor
21-23 and the Legislative Budget Board.
21-24 (c) The department shall set the fee on the basis of the
21-25 number of beds in assisted living facilities required to pay the
21-26 fee and in an amount necessary to provide not more than $500,000 in
21-27 the fund.
22-1 SECTION 16. The section heading of Section 242.097, Health
22-2 and Safety Code, is amended to read as follows:
22-3 Sec. 242.097. ADDITIONAL LICENSE FEE--NURSING AND
22-4 CONVALESCENT HOMES.
22-5 SECTION 17. Subsection (d), Section 247.0271, Health and
22-6 Safety Code, is repealed.
22-7 SECTION 18. The Texas Department of Human Services shall
22-8 adopt rules to implement Section 247.0452, Health and Safety Code,
22-9 as added by this Act, and Section 247.066, Health and Safety Code,
22-10 as amended by this Act, not later than January 1, 2002.
22-11 SECTION 19. This Act takes effect September 1, 2001.