By: Moncrief S.B. No. 1376
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to amelioration of convalescent and nursing home and
1-3 intermediate care facility violations; waiving the right to an
1-4 administrative hearing.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 242.071, Health and Safety Code, is
1-7 amended to read as follows:
1-8 Sec. 242.071. AMELIORATION OF VIOLATION. (a) In lieu of
1-9 demanding [ordering] payment of an [the] administrative penalty
1-10 assessed under Section 242.066 [242.069], the commissioner may, in
1-11 accordance with this section, allow [require] the person to use,
1-12 under the supervision of the department, any portion of the penalty
1-13 to ameliorate the violation or to improve services, other than
1-14 administrative services, in the institution affected by the
1-15 violation.
1-16 (b) The department shall offer amelioration to a person for
1-17 a charged violation if the department determines that the violation
1-18 does not constitute immediate jeopardy to the health and safety of
1-19 an institution resident.
1-20 (c) The department may not offer amelioration to a person
1-21 if:
1-22 (1) the person has been charged with a violation which
1-23 is subject to correction under Section 242.0665; or
1-24 (2) the department determines that the charged
1-25 violation constitutes immediate jeopardy to the health and safety
2-1 of an institution resident.
2-2 (d) The department shall offer amelioration to a person
2-3 under this section not later than the 10th day after the date the
2-4 person receives from the department a final notification of
2-5 assessment of administrative penalty that is sent to the person
2-6 after an informal dispute resolution process but before an
2-7 administrative hearing under Section 242.068.
2-8 (e) A person to whom amelioration has been offered must file
2-9 a plan for amelioration not later than the 45th day after the date
2-10 the person receives the offer of amelioration from the department.
2-11 In submitting the plan, the person must agree to waive the person's
2-12 right to an administrative hearing under Section 242.068 if the
2-13 department approves the plan.
2-14 (f) At a minimum, a plan for amelioration must:
2-15 (1) propose changes to the management or operation of
2-16 the institution that will improve services to or quality of care of
2-17 residents of the institution;
2-18 (2) identify, through measurable outcomes, the ways in
2-19 which and the extent to which the proposed changes will improve
2-20 services to or quality of care of residents of the institution;
2-21 (3) establish clear goals to be achieved through the
2-22 proposed changes;
2-23 (4) establish a timeline for implementing the proposed
2-24 changes; and
2-25 (5) identify specific actions necessary to implement
2-26 the proposed changes.
3-1 (g) A plan for amelioration may include proposed changes to:
3-2 (1) improve staff recruitment and retention;
3-3 (2) offer or improve dental services for residents;
3-4 and
3-5 (3) improve the overall quality of life for residents.
3-6 (h) The department may require that an amelioration plan
3-7 propose changes that would result in conditions that exceed the
3-8 requirements of this chapter or the rules adopted under this
3-9 chapter.
3-10 (i) The department shall approve or deny an amelioration
3-11 plan not later than the 45th day after the date the department
3-12 receives the plan. On approval of a person's plan, the department
3-13 shall deny a pending request for a hearing submitted by the person
3-14 under Section 242.067(d).
3-15 (j) The department may not offer amelioration to a person:
3-16 (1) more than three times in a two-year period; or
3-17 (2) more than one time in a two-year period for the
3-18 same or similar violation.
3-19 (k) In this section, "immediate jeopardy to health and
3-20 safety" means a situation in which there is a high probability that
3-21 serious harm or injury to a resident could occur at any time or
3-22 already has occurred and may occur again if the resident is not
3-23 protected from the harm or if the threat is not removed.
3-24 SECTION 2. Section 252.071, Health and Safety Code, is
3-25 amended to read as follows:
3-26 Sec. 252.071. AMELIORATION OF VIOLATION. (a) In lieu of
4-1 demanding [ordering] payment of an administrative penalty
4-2 authorized by this subchapter, the department may allow [require] a
4-3 person subject to the penalty to use, under the supervision of the
4-4 department, all or part of the amount of the penalty to ameliorate
4-5 the violation or to improve services, other than administrative
4-6 services, in the facility affected by the violation.
4-7 (b) The department shall offer amelioration to a person for
4-8 a charged violation if the department determines that the violation
4-9 does not constitute immediate jeopardy to the health and safety of
4-10 a facility resident.
4-11 (c) The department may not offer amelioration to a person if
4-12 the department determines that the charged violation constitutes
4-13 immediate jeopardy to the health and safety of a facility resident.
4-14 (d) The department shall offer amelioration to a person
4-15 under this section not later than the 10th day after the date the
4-16 person receives from the department a final notification of
4-17 assessment of administrative penalty that is sent to the person
4-18 after an informal dispute resolution process but before an
4-19 administrative hearing under Section 252.067.
4-20 (e) A person to whom amelioration has been offered must file
4-21 a plan for amelioration not later than the 45th day after the date
4-22 the person receives the offer of amelioration from the department.
4-23 In submitting the plan, the person must agree to waive the person's
4-24 right to an administrative hearing under Section 252.067 if the
4-25 department approves the plan.
4-26 (f) At a minimum, a plan for amelioration must:
5-1 (1) propose changes to the management or operation of
5-2 the facility that will improve services to or quality of care of
5-3 residents of the facility;
5-4 (2) identify, through measurable outcomes, the ways in
5-5 which and the extent to which the proposed changes will improve
5-6 services to or quality of care of residents of the facility;
5-7 (3) establish clear goals to be achieved through the
5-8 proposed changes;
5-9 (4) establish a timeline for implementing the proposed
5-10 changes; and
5-11 (5) identify specific actions necessary to implement
5-12 the proposed changes.
5-13 (g) A plan for amelioration may include proposed changes to:
5-14 (1) improve staff recruitment and retention;
5-15 (2) offer or improve dental services for residents;
5-16 and
5-17 (3) improve the overall quality of life for residents.
5-18 (h) The department may require that an amelioration plan
5-19 propose changes that would result in conditions that exceed the
5-20 requirements of this chapter or the rules adopted under this
5-21 chapter.
5-22 (i) The department shall approve or deny an amelioration
5-23 plan not later than the 45th day after the date the department
5-24 receives the plan. On approval of a person's plan, the department
5-25 shall deny a pending request for a hearing submitted by the person
5-26 under Section 252.066(b).
6-1 (j) The department may not offer amelioration to a person:
6-2 (1) more than three times in a two-year period; or
6-3 (2) more than one time in a two-year period for the
6-4 same or similar violation.
6-5 (k) In this section, "immediate jeopardy to health and
6-6 safety" means a situation in which there is a high probability that
6-7 serious harm or injury to a resident could occur at any time or
6-8 already has occurred and may occur again if the resident is not
6-9 protected from the harm or if the threat is not removed.
6-10 SECTION 3. This Act takes effect September 1, 2001, and
6-11 applies only to a violation that occurs on or after that date. A
6-12 violation that occurs before the effective date of this Act is
6-13 covered by the law in effect on the date the violation occurred,
6-14 and the former law is continued in effect for that purpose.