1-1 By: Moncrief S.B. No. 527
1-2 (In the Senate - Filed February 2, 2001; February 5, 2001,
1-3 read first time and referred to Committee on Health and Human
1-4 Services; April 30, 2001, reported adversely, with favorable
1-5 Committee Substitute by the following vote: Yeas 6, Nays 0;
1-6 April 30, 2001, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 527 By: Moncrief
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to taking regulatory action against assisted living
1-11 facilities, including the imposition of administrative penalties.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Section 247.002, Health and Safety Code, is
1-14 amended by adding Subdivision (7) to read as follows:
1-15 (7) "Commissioner" means the commissioner of human
1-16 services.
1-17 SECTION 2. Subchapter A, Chapter 247, Health and Safety
1-18 Code, is amended by adding Section 247.0025 to read as follows:
1-19 Sec. 247.0025. IMMEDIATE THREAT OF HARM. For purposes of
1-20 this chapter, there is considered to be an immediate threat to the
1-21 health or safety of a resident, or a situation is considered to put
1-22 the health or safety of a resident in immediate jeopardy, if there
1-23 is a high probability that serious harm or injury to the resident
1-24 could occur at any time or has already occurred and may occur again
1-25 if the resident is not protected from the harm or if the threat is
1-26 not removed.
1-27 SECTION 3. The section heading to Section 247.0272, Health
1-28 and Safety Code, is amended to read as follows:
1-29 Sec. 247.0272. INSPECTOR TRAINING; REQUIRED EXAMINATION.
1-30 SECTION 4. Section 247.0272, Health and Safety Code, is
1-31 amended by adding Subsections (c) and (d) to read as follows:
1-32 (c) The department shall examine department employees who
1-33 inspect or otherwise survey assisted living facilities under this
1-34 chapter. In developing the examination, the department shall
1-35 consult with operators of assisted living facilities or their
1-36 representatives and with consumers of personal care services
1-37 provided by assisted living facilities or representatives of
1-38 consumers.
1-39 (d) A department employee may not independently inspect,
1-40 survey, or take administrative action against an assisted living
1-41 facility unless the employee has passed the examination
1-42 administered under Subsection (c).
1-43 SECTION 5. Section 247.041, Health and Safety Code, is
1-44 amended to read as follows:
1-45 Sec. 247.041. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE.
1-46 (a) The department, after providing notice and opportunity for a
1-47 hearing to the applicant or license holder, may deny, suspend, or
1-48 revoke a license if the department finds that the applicant,
1-49 license holder, or a controlling person has:
1-50 (1) violated [for a violation of] this chapter or a
1-51 rule, standard, or order adopted or license issued under this
1-52 chapter in either a repeated or substantial manner; or
1-53 (2) committed any act described by Sections
1-54 247.0451(a)(2)-(6).
1-55 (b) The denial, suspension, or revocation of a license by
1-56 the department and the appeal from that action are governed by the
1-57 procedures for a contested case hearing under Chapter 2001,
1-58 Government Code.
1-59 (c) The status of a person as an applicant for a license or
1-60 as a license holder is preserved until final disposition of the
1-61 contested matter, except as the court having jurisdiction of a
1-62 judicial review of the matter may order in the public interest for
1-63 the welfare and safety of the residents.
1-64 (d) A court having jurisdiction of a judicial review of the
2-1 matter may not order arbitration, whether on motion of any party or
2-2 on the court's own motion, to resolve a dispute involving the
2-3 denial, suspension, or revocation of a license under this section
2-4 or the conduct with respect to which the denial, suspension, or
2-5 revocation of the license is sought.
2-6 SECTION 6. Section 247.042, Health and Safety Code, is
2-7 amended by amending Subsection (a) and adding Subsection (e) to
2-8 read as follows:
2-9 (a) If the department finds an assisted living facility
2-10 operating in violation of the standards prescribed by [under] this
2-11 chapter and the violations create an immediate threat to the health
2-12 and safety of a resident in the facility, the department shall
2-13 suspend the license or order immediate closing of [all or] part of
2-14 the facility.
2-15 (e) The department and the State Office of Administrative
2-16 Hearings shall expedite any hearing or decision involving an
2-17 emergency suspension or closing order issued under this section.
2-18 SECTION 7. Section 247.0455, Health and Safety Code, is
2-19 redesignated as Section 247.0459, Health and Safety Code, and
2-20 amended to read as follows:
2-21 Sec. 247.0459 [247.0455]. VIOLATION OF LAW RELATING TO
2-22 ADVANCE DIRECTIVES. (a) The department shall assess an
2-23 administrative penalty against an assisted living [a personal care]
2-24 facility that violates Section 166.004.
2-25 (b) A penalty assessed under this section shall be $500.
2-26 (c) The penalty shall be assessed in accordance with
2-27 department rules. The rules must provide for notice and an
2-28 opportunity for a hearing.
2-29 SECTION 8. Subchapter C, Chapter 247, Health and Safety
2-30 Code, is amended by adding Sections 247.0451 through 247.0457 to
2-31 read as follows:
2-32 Sec. 247.0451. ADMINISTRATIVE PENALTY. (a) The department
2-33 may assess an administrative penalty against a person who:
2-34 (1) violates this chapter or a rule, standard, or
2-35 order adopted under this chapter or a term of a license issued
2-36 under this chapter;
2-37 (2) makes a false statement, that the person knows or
2-38 should know is false, of a material fact:
2-39 (A) on an application for issuance or renewal of
2-40 a license or in an attachment to the application; or
2-41 (B) with respect to a matter under investigation
2-42 by the department;
2-43 (3) refuses to allow a representative of the
2-44 department to inspect:
2-45 (A) a book, record, or file required to be
2-46 maintained by an assisted living facility; or
2-47 (B) any portion of the premises of an assisted
2-48 living facility;
2-49 (4) wilfully interferes with the work of a
2-50 representative of the department or the enforcement of this
2-51 chapter;
2-52 (5) wilfully interferes with a representative of the
2-53 department preserving evidence of a violation of this chapter or a
2-54 rule, standard, or order adopted under this chapter or a term of a
2-55 license issued under this chapter; or
2-56 (6) fails to pay a penalty assessed under this chapter
2-57 not later than the 30th day after the date the assessment of the
2-58 penalty becomes final.
2-59 (b) Except as provided by Section 247.0452(c), the penalty
2-60 may not exceed $500 for each violation.
2-61 (c) The board shall establish gradations of penalties in
2-62 accordance with the relative seriousness of the violation.
2-63 (d) In determining the amount of a penalty, the department
2-64 shall consider any matter that justice may require, but must
2-65 consider each of the following and make a record of the extent to
2-66 which each of the following was considered:
2-67 (1) the gradations of penalties established under
2-68 Subsection (c);
2-69 (2) the seriousness of the violation, including the
3-1 nature, circumstances, extent, and gravity of the prohibited act
3-2 and the hazard or potential hazard created by the act to the health
3-3 or safety of the public;
3-4 (3) the history of previous violations;
3-5 (4) deterrence of future violations;
3-6 (5) efforts to correct the violation; and
3-7 (6) the size of the facility and of the business
3-8 entity that owns the facility.
3-9 (e) A penalty assessed under Subsection (a)(6) is in
3-10 addition to the penalty previously assessed and not timely paid.
3-11 Sec. 247.0452. RIGHT TO CORRECT. (a) The department may
3-12 not collect an administrative penalty from an assisted living
3-13 facility under Section 247.0451 if, not later than the 45th day
3-14 after the date the facility receives notice under Section
3-15 247.0453(c), the facility corrects the violation.
3-16 (b) Subsection (a) does not apply:
3-17 (1) to a violation that the department determines
3-18 results in serious harm to or death of a resident;
3-19 (2) to a violation described by Sections
3-20 247.0451(a)(2)-(6);
3-21 (3) to a second or subsequent violation of:
3-22 (A) a right of the same resident under Section
3-23 247.064; or
3-24 (B) the same right of all residents under
3-25 Section 247.064; or
3-26 (4) to a violation described by Section 247.066, which
3-27 contains its own right to correct provisions.
3-28 (c) An assisted living facility that corrects a violation
3-29 must maintain the correction. If the facility fails to maintain
3-30 the correction until at least the first anniversary of the date the
3-31 correction was made, the department may assess and collect an
3-32 administrative penalty for the subsequent violation. An
3-33 administrative penalty assessed under this subsection is equal to
3-34 three times the amount of the original penalty assessed but not
3-35 collected. The department is not required to provide the facility
3-36 with an opportunity under this section to correct the subsequent
3-37 violation.
3-38 Sec. 247.0453. REPORT RECOMMENDING ADMINISTRATIVE PENALTY.
3-39 (a) The department shall issue a preliminary report stating the
3-40 facts on which the department concludes that a violation of this
3-41 chapter or a rule, standard, or order adopted under this chapter or
3-42 a term of a license issued under this chapter has occurred if the
3-43 department has:
3-44 (1) examined the possible violation and facts
3-45 surrounding the possible violation; and
3-46 (2) concluded that a violation has occurred.
3-47 (b) The report may recommend a penalty under Section
3-48 247.0451 and the amount of the penalty.
3-49 (c) The department shall give written notice of the report
3-50 to the person charged with the violation not later than the 10th
3-51 day after the date on which the report is issued. The notice must
3-52 include:
3-53 (1) a brief summary of the charges;
3-54 (2) a statement of the amount of penalty recommended;
3-55 (3) a statement of whether the violation is subject to
3-56 correction under Section 247.0452 and, if the violation is subject
3-57 to correction under that section, a statement of:
3-58 (A) the date on which the assisted living
3-59 facility must file with the department a plan of correction to be
3-60 approved by the department; and
3-61 (B) the date on which the plan of correction
3-62 must be completed to avoid assessment of the penalty; and
3-63 (4) a statement that the person charged has a right to
3-64 a hearing on the occurrence of the violation, the amount of the
3-65 penalty, or both.
3-66 (d) Not later than the 20th day after the date on which the
3-67 notice under Subsection (c) is received, the person charged may:
3-68 (1) give to the department written consent to the
3-69 department's report, including the recommended penalty; or
4-1 (2) make a written request for a hearing.
4-2 (e) If the violation is subject to correction under Section
4-3 247.0452, the assisted living facility shall submit a plan of
4-4 correction to the department for approval not later than the 10th
4-5 day after the date on which the notice under Subsection (c) is
4-6 received.
4-7 (f) If the violation is subject to correction under Section
4-8 247.0452, and the person reports to the department that the
4-9 violation has been corrected, the department shall inspect the
4-10 correction or take any other step necessary to confirm the
4-11 correction and shall notify the person that:
4-12 (1) the correction is satisfactory and a penalty will
4-13 not be assessed; or
4-14 (2) the correction is not satisfactory and a penalty
4-15 is recommended.
4-16 (g) Not later than the 20th day after the date on which a
4-17 notice under Subsection (f)(2) is received, the person charged may:
4-18 (1) give to the department written consent to the
4-19 department's report, including the recommended penalty; or
4-20 (2) make a written request for a hearing.
4-21 (h) If the person charged with the violation consents to the
4-22 penalty recommended by the department or does not timely respond to
4-23 a notice sent under Subsection (c) or (f)(2), the commissioner or
4-24 the commissioner's designee shall assess the penalty recommended by
4-25 the department.
4-26 (i) If the commissioner or the commissioner's designee
4-27 assesses the recommended penalty, the department shall give written
4-28 notice to the person charged of the decision and the person shall
4-29 pay the penalty.
4-30 Sec. 247.0454. HEARING ON ADMINISTRATIVE PENALTY. (a) An
4-31 administrative law judge shall order a hearing and give notice of
4-32 the hearing if a person charged with a violation under Section
4-33 247.0451 timely requests a hearing.
4-34 (b) The hearing shall be held before an administrative law
4-35 judge.
4-36 (c) The administrative law judge shall make findings of fact
4-37 and conclusions of law and promptly issue to the commissioner or
4-38 the commissioner's designee a written decision regarding the
4-39 occurrence of a violation of this chapter or a rule, standard, or
4-40 order adopted under this chapter or a term of a license issued
4-41 under this chapter and a recommendation regarding the amount of the
4-42 proposed penalty if a penalty is warranted.
4-43 (d) Based on the findings of fact and conclusions of law and
4-44 the recommendation of the administrative law judge, the
4-45 commissioner or the commissioner's designee by order may:
4-46 (1) find that a violation has occurred and assess an
4-47 administrative penalty; or
4-48 (2) find that a violation has not occurred.
4-49 (e) If the commissioner or the commissioner's designee finds
4-50 that a violation has not occurred, the commissioner or the
4-51 commissioner's designee shall order that all records reflecting
4-52 that the department found a violation had occurred and attempted to
4-53 impose an administrative penalty shall be expunged except:
4-54 (1) records obtained by the department during its
4-55 investigation; and
4-56 (2) the administrative law judge's findings of fact.
4-57 (f) Proceedings under this section are subject to Chapter
4-58 2001, Government Code.
4-59 Sec. 247.0455. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
4-60 INTEREST; REFUND. (a) The commissioner or the commissioner's
4-61 designee shall give notice of the findings made under Section
4-62 247.0454(d) to the person charged. If the commissioner or the
4-63 commissioner's designee finds that a violation has occurred, the
4-64 commissioner or the commissioner's designee shall give to the
4-65 person charged written notice of:
4-66 (1) the findings;
4-67 (2) the amount of the administrative penalty;
4-68 (3) the rate of interest payable with respect to the
4-69 penalty and the date on which interest begins to accrue;
5-1 (4) whether action under Section 247.0457 is required
5-2 in lieu of payment of all or part of the penalty; and
5-3 (5) the person's right to judicial review of the order
5-4 of the commissioner or the commissioner's designee.
5-5 (b) Not later than the 30th day after the date on which the
5-6 order of the commissioner or the commissioner's designee is final,
5-7 the person charged with the penalty shall:
5-8 (1) pay the full amount of the penalty; or
5-9 (2) file a petition for judicial review contesting the
5-10 occurrence of the violation, the amount of the penalty, the
5-11 department's dissatisfaction with efforts to correct the violation,
5-12 or any combination of these issues.
5-13 (c) Notwithstanding Subsection (b), the department may
5-14 permit the person to pay a penalty in installments or may require
5-15 the person to use all or part of the amount of the penalty in
5-16 accordance with Section 247.0457.
5-17 (d) If the person does not pay the penalty within the period
5-18 provided by Subsection (b) or in accordance with Subsection (c), if
5-19 applicable:
5-20 (1) the penalty is subject to interest; and
5-21 (2) the department may refer the matter to the
5-22 attorney general for collection of the penalty and interest.
5-23 (e) Interest under Subsection (d)(1) accrues:
5-24 (1) at a rate equal to the rate charged on loans to
5-25 depository institutions by the New York Federal Reserve Bank; and
5-26 (2) for the period beginning on the day after the date
5-27 on which the penalty becomes due and ending on the date the penalty
5-28 is paid.
5-29 (f) If the amount of the penalty is reduced or the
5-30 assessment of a penalty is not upheld on judicial review, the
5-31 commissioner shall:
5-32 (1) remit to the person charged the appropriate amount
5-33 of any penalty payment plus accrued interest; or
5-34 (2) execute a release of the supersedeas bond if one
5-35 has been posted.
5-36 (g) Accrued interest on amounts remitted by the commissioner
5-37 under Subsection (f)(1) shall be paid:
5-38 (1) at a rate equal to the rate charged on loans to
5-39 depository institutions by the New York Federal Reserve Bank; and
5-40 (2) for the period beginning on the date the penalty
5-41 is paid and ending on the date the penalty is remitted to the
5-42 person charged.
5-43 Sec. 247.0456. APPLICATION OF OTHER LAW. The department may
5-44 not assess a monetary penalty under this chapter and a monetary
5-45 penalty under Chapter 32, Human Resources Code, for the same act or
5-46 failure to act.
5-47 Sec. 247.0457. AMELIORATION OF VIOLATION. (a) In lieu of
5-48 demanding payment of an administrative penalty assessed under
5-49 Section 247.0451, the commissioner in accordance with this section
5-50 may allow the person to use, under the supervision of the
5-51 department, any portion of the penalty to ameliorate the violation
5-52 or to improve services, other than administrative services, in the
5-53 assisted living facility affected by the violation.
5-54 (b) The department shall offer amelioration to a person for
5-55 a charged violation if the department determines that the violation
5-56 does not constitute immediate jeopardy to the health and safety of
5-57 a resident of the assisted living facility.
5-58 (c) The department shall offer amelioration to a person
5-59 under this section not later than the 10th day after the date the
5-60 person receives from the department a final notification of the
5-61 recommended assessment of an administrative penalty that is sent to
5-62 the person after an informal dispute resolution process but before
5-63 an administrative hearing under Section 247.0454.
5-64 (d) A person to whom amelioration has been offered must file
5-65 a plan for amelioration not later than the 45th day after the date
5-66 the person receives the offer of amelioration from the department.
5-67 In submitting the plan, the person must agree to waive the person's
5-68 right to an administrative hearing under Section 247.0454 if the
5-69 department approves the plan.
6-1 (e) At a minimum, a plan for amelioration must:
6-2 (1) propose changes to the management or operation of
6-3 the assisted living facility that will improve services to or
6-4 quality of care of residents of the assisted living facility;
6-5 (2) identify, through measurable outcomes, the ways in
6-6 which and the extent to which the proposed changes will improve
6-7 services to or quality of care of residents of the assisted living
6-8 facility;
6-9 (3) establish clear goals to be achieved through the
6-10 proposed changes;
6-11 (4) establish a time line for implementing the
6-12 proposed changes; and
6-13 (5) identify specific actions necessary to implement
6-14 the proposed changes.
6-15 (f) A plan for amelioration may include proposed changes to:
6-16 (1) improve staff recruitment and retention;
6-17 (2) offer or improve dental services for residents;
6-18 and
6-19 (3) improve the overall quality of life for residents.
6-20 (g) The department may require that an amelioration plan
6-21 propose changes that would result in conditions that exceed the
6-22 requirements of this chapter or the rules adopted under this
6-23 chapter.
6-24 (h) The department shall approve or deny an amelioration
6-25 plan not later than the 45th day after the date the department
6-26 receives the plan. On approval of a person's plan, the department
6-27 shall deny a pending request for a hearing submitted by the person
6-28 under Section 247.0453.
6-29 (i) The department may not offer amelioration to a person:
6-30 (1) more than three times in a two-year period; or
6-31 (2) more than one time in a two-year period for the
6-32 same or similar violation.
6-33 SECTION 9. Subsection (b), Section 247.049, Health and
6-34 Safety Code, is amended to read as follows:
6-35 (b) Subsection (a) does not:
6-36 (1) bar the admission into evidence of department
6-37 reports or other documents in an enforcement action in which the
6-38 state or an agency or political subdivision of the state is a
6-39 party, including:
6-40 (A) an action seeking injunctive relief under
6-41 Section 247.044;
6-42 (B) an action seeking imposition of a civil
6-43 penalty under Section 247.045; [and]
6-44 (C) a contested case hearing involving denial,
6-45 suspension, or revocation of a license issued under this chapter;
6-46 and
6-47 (D) an action seeking imposition of an
6-48 administrative penalty under this subchapter;
6-49 (2) bar the admission into evidence of department
6-50 reports or other documents that are offered:
6-51 (A) to establish warning or notice to an
6-52 assisted living facility of a relevant department determination; or
6-53 (B) under any rule or evidentiary predicate of
6-54 the Texas Rules of Evidence;
6-55 (3) prohibit or limit the testimony of a department
6-56 employee, in accordance with the Texas Rules of Evidence, as to
6-57 observations, factual findings, conclusions, or determinations that
6-58 an assisted living facility violated a standard prescribed under
6-59 this chapter if the observations, factual findings, conclusions, or
6-60 determinations were made in the discharge of the employee's
6-61 official duties for the department; or
6-62 (4) prohibit or limit the use of department reports or
6-63 other documents in depositions or other forms of discovery
6-64 conducted in connection with a civil action if use of the reports
6-65 or other documents appears reasonably calculated to lead to the
6-66 discovery of admissible evidence.
6-67 SECTION 10. Section 247.051, Health and Safety Code, is
6-68 transferred to Subchapter A, Chapter 247, Health and Safety Code,
6-69 renumbered as Section 247.006, Health and Safety Code, and amended
7-1 to read as follows:
7-2 Sec. 247.006 [247.051]. ADVISORY COMMITTEE. (a) The
7-3 Advisory Committee on Assisted Living Facilities consists of nine
7-4 members appointed by the board. The commissioner of human services
7-5 shall appoint two staff members from the department to serve as
7-6 nonvoting advisory members. In appointing staff members under this
7-7 subsection, the commissioner shall appoint one member as a
7-8 representative of long-term care policy and one member as a
7-9 representative of long-term care regulation.
7-10 (b) The board shall appoint the advisory committee to
7-11 provide for a balanced representation of assisted living [personal
7-12 care] providers and consumers and shall appoint one member who has
7-13 expertise in life safety code regulations. At least one of the
7-14 provider members must be representative of a nonprofit facility,
7-15 and at least one member must be a family member of a resident of a
7-16 facility.
7-17 (c) The committee shall elect the presiding officer from
7-18 among its members.
7-19 (d) The committee shall advise the department on standards
7-20 for licensing assisted living facilities and on the implementation
7-21 of this chapter.
7-22 SECTION 11. The subchapter heading to Subchapter D, Chapter
7-23 247, Health and Safety Code, is repealed.
7-24 SECTION 12. Subchapter E, Chapter 247, Health and Safety
7-25 Code, is redesignated as Subchapter D, Chapter 247, Health and
7-26 Safety Code, and the subchapter heading is amended to read as
7-27 follows:
7-28 SUBCHAPTER D [E]. MISCELLANEOUS PROVISIONS
7-29 SECTION 13. Subchapter C, Chapter 247, Health and Safety
7-30 Code, is amended by adding Section 247.051 to read as follows:
7-31 Sec. 247.051. INFORMAL DISPUTE RESOLUTION. (a) The Health
7-32 and Human Services Commission by rule shall establish an informal
7-33 dispute resolution process in accordance with this section. The
7-34 process must provide for adjudication by an appropriate
7-35 disinterested person of disputes relating to a proposed enforcement
7-36 action or related proceeding under this chapter. The informal
7-37 dispute resolution process must require:
7-38 (1) the assisted living facility to request informal
7-39 dispute resolution not later than the 10th day after the date of
7-40 notification by the department of the violation of a standard or
7-41 standards;
7-42 (2) the Health and Human Services Commission to
7-43 complete the process not later than the 30th day after the date of
7-44 receipt of a request from the assisted living facility for informal
7-45 dispute resolution; and
7-46 (3) any individual representing an assisted living
7-47 facility in an informal dispute resolution process to register with
7-48 the Health and Human Services Commission and disclose the
7-49 following:
7-50 (A) the individual's employment history during
7-51 the preceding five years, including employment in regulatory
7-52 agencies of this state and other states;
7-53 (B) ownership, including the identity of the
7-54 controlling person or persons, of the assisted living facility the
7-55 individual is representing before the Health and Human Services
7-56 Commission; and
7-57 (C) the identity of other entities the
7-58 individual represents or has represented before the Health and
7-59 Human Services Commission during the preceding 24 months.
7-60 (b) The Health and Human Services Commission shall adopt
7-61 rules to adjudicate claims in contested cases.
7-62 (c) The Health and Human Services Commission may not
7-63 delegate its responsibility to administer the informal dispute
7-64 resolution process established by this section to another state
7-65 agency.
7-66 SECTION 14. Section 247.066, Health and Safety Code, is
7-67 amended by adding Subsections (c) and (d) to read as follows:
7-68 (c) If a department inspector determines that a resident is
7-69 inappropriately placed at a facility, the facility is not required
8-1 to move the resident if, not later than the 10th business day after
8-2 the date that the facility is informed of the specific basis of the
8-3 inspector's determination, the facility:
8-4 (1) obtains a written assessment from a physician that
8-5 the resident is appropriately placed;
8-6 (2) obtains a written statement:
8-7 (A) from the resident that the resident wishes
8-8 to remain in the facility; or
8-9 (B) from a family member of the resident that
8-10 the family member wishes for the resident to remain in the
8-11 facility, if the resident lacks capacity to give a statement under
8-12 this subsection; and
8-13 (3) states in writing that the facility wishes for the
8-14 resident to remain in the facility.
8-15 (d) If a department inspector determines that a resident is
8-16 inappropriately placed at a facility and the facility either agrees
8-17 with the determination or does not obtain the written statements
8-18 prescribed by Subsection (c) that would allow the resident to
8-19 remain in the facility notwithstanding the determination of the
8-20 inspector, the department may not assess an administrative penalty
8-21 against the facility because of the inappropriate placement.
8-22 However, the facility shall discharge the resident. The resident
8-23 is allowed 30 days after the date of discharge to move from the
8-24 facility. A discharge required under this subsection must be made
8-25 notwithstanding:
8-26 (1) any other law, including any law relating to the
8-27 rights of residents and any obligations imposed under the Property
8-28 Code; and
8-29 (2) the terms of any contract.
8-30 SECTION 15. Subchapter (d), Section 247.0271, Health and
8-31 Safety Code, is repealed.
8-32 SECTION 16. The Texas Department of Human Services shall
8-33 adopt rules to implement Section 247.0452, Health and Safety Code,
8-34 as added by this Act, and Section 247.066, Health and Safety Code,
8-35 as amended by this Act, not later than January 1, 2002.
8-36 SECTION 17. This Act takes effect September 1, 2001.
8-37 * * * * *