1-1 By: Moncrief S.B. No. 1376
1-2 (In the Senate - Filed March 8, 2001; March 13, 2001, read
1-3 first time and referred to Committee on Health and Human Services;
1-4 April 2, 2001, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 9, Nays 0; April 2, 2001,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1376 By: Moncrief
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to amelioration of convalescent and nursing home and
1-11 intermediate care facility violations; waiving the right to an
1-12 administrative hearing.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. Section 242.071, Health and Safety Code, is
1-15 amended to read as follows:
1-16 Sec. 242.071. AMELIORATION OF VIOLATION. (a) In lieu of
1-17 demanding [ordering] payment of an [the] administrative penalty
1-18 assessed under Section 242.066 [242.069], the commissioner may, in
1-19 accordance with this section, allow [require] the person to use,
1-20 under the supervision of the department, any portion of the penalty
1-21 to ameliorate the violation or to improve services, other than
1-22 administrative services, in the institution affected by the
1-23 violation.
1-24 (b) The department shall offer amelioration to a person for
1-25 a charged violation if the department determines that the violation
1-26 does not constitute immediate jeopardy to the health and safety of
1-27 an institution resident.
1-28 (c) The department may not offer amelioration to a person
1-29 if:
1-30 (1) the person has been charged with a violation which
1-31 is subject to correction under Section 242.0665; or
1-32 (2) the department determines that the charged
1-33 violation constitutes immediate jeopardy to the health and safety
1-34 of an institution resident.
1-35 (d) The department shall offer amelioration to a person
1-36 under this section not later than the 10th day after the date the
1-37 person receives from the department a final notification of
1-38 assessment of administrative penalty that is sent to the person
1-39 after an informal dispute resolution process but before an
1-40 administrative hearing under Section 242.068.
1-41 (e) A person to whom amelioration has been offered must file
1-42 a plan for amelioration not later than the 45th day after the date
1-43 the person receives the offer of amelioration from the department.
1-44 In submitting the plan, the person must agree to waive the person's
1-45 right to an administrative hearing under Section 242.068 if the
1-46 department approves the plan.
1-47 (f) At a minimum, a plan for amelioration must:
1-48 (1) propose changes to the management or operation of
1-49 the institution that will improve services to or quality of care of
1-50 residents of the institution;
1-51 (2) identify, through measurable outcomes, the ways in
1-52 which and the extent to which the proposed changes will improve
1-53 services to or quality of care of residents of the institution;
1-54 (3) establish clear goals to be achieved through the
1-55 proposed changes;
1-56 (4) establish a timeline for implementing the proposed
1-57 changes; and
1-58 (5) identify specific actions necessary to implement
1-59 the proposed changes.
1-60 (g) A plan for amelioration may include proposed changes to:
1-61 (1) improve staff recruitment and retention;
1-62 (2) offer or improve dental services for residents;
1-63 and
1-64 (3) improve the overall quality of life for residents.
2-1 (h) The department may require that an amelioration plan
2-2 propose changes that would result in conditions that exceed the
2-3 requirements of this chapter or the rules adopted under this
2-4 chapter.
2-5 (i) The department shall approve or deny an amelioration
2-6 plan not later than the 45th day after the date the department
2-7 receives the plan. On approval of a person's plan, the department
2-8 shall deny a pending request for a hearing submitted by the person
2-9 under Section 242.067(d).
2-10 (j) The department may not offer amelioration to a person:
2-11 (1) more than three times in a two-year period; or
2-12 (2) more than one time in a two-year period for the
2-13 same or similar violation.
2-14 (k) In this section, "immediate jeopardy to health and
2-15 safety" means a situation in which there is a high probability that
2-16 serious harm or injury to a resident could occur at any time or
2-17 already has occurred and may occur again if the resident is not
2-18 protected from the harm or if the threat is not removed.
2-19 SECTION 2. Section 252.071, Health and Safety Code, is
2-20 amended to read as follows:
2-21 Sec. 252.071. AMELIORATION OF VIOLATION. (a) In lieu of
2-22 demanding [ordering] payment of an administrative penalty
2-23 authorized by this subchapter, the department may allow [require] a
2-24 person subject to the penalty to use, under the supervision of the
2-25 department, all or part of the amount of the penalty to ameliorate
2-26 the violation or to improve services, other than administrative
2-27 services, in the facility affected by the violation.
2-28 (b) The department shall offer amelioration to a person for
2-29 a charged violation if the department determines that the violation
2-30 does not constitute immediate jeopardy to the health and safety of
2-31 a facility resident.
2-32 (c) The department may not offer amelioration to a person if
2-33 the department determines that the charged violation constitutes
2-34 immediate jeopardy to the health and safety of a facility resident.
2-35 (d) The department shall offer amelioration to a person
2-36 under this section not later than the 10th day after the date the
2-37 person receives from the department a final notification of
2-38 assessment of administrative penalty that is sent to the person
2-39 after an informal dispute resolution process but before an
2-40 administrative hearing under Section 252.067.
2-41 (e) A person to whom amelioration has been offered must file
2-42 a plan for amelioration not later than the 45th day after the date
2-43 the person receives the offer of amelioration from the department.
2-44 In submitting the plan, the person must agree to waive the person's
2-45 right to an administrative hearing under Section 252.067 if the
2-46 department approves the plan.
2-47 (f) At a minimum, a plan for amelioration must:
2-48 (1) propose changes to the management or operation of
2-49 the facility that will improve services to or quality of care of
2-50 residents of the facility;
2-51 (2) identify, through measurable outcomes, the ways in
2-52 which and the extent to which the proposed changes will improve
2-53 services to or quality of care of residents of the facility;
2-54 (3) establish clear goals to be achieved through the
2-55 proposed changes;
2-56 (4) establish a timeline for implementing the proposed
2-57 changes; and
2-58 (5) identify specific actions necessary to implement
2-59 the proposed changes.
2-60 (g) A plan for amelioration may include proposed changes to:
2-61 (1) improve staff recruitment and retention;
2-62 (2) offer or improve dental services for residents;
2-63 and
2-64 (3) improve the overall quality of life for residents.
2-65 (h) The department may require that an amelioration plan
2-66 propose changes that would result in conditions that exceed the
2-67 requirements of this chapter or the rules adopted under this
2-68 chapter.
2-69 (i) The department shall approve or deny an amelioration
3-1 plan not later than the 45th day after the date the department
3-2 receives the plan. On approval of a person's plan, the department
3-3 shall deny a pending request for a hearing submitted by the person
3-4 under Section 252.066(b).
3-5 (j) The department may not offer amelioration to a person:
3-6 (1) more than three times in a two-year period; or
3-7 (2) more than one time in a two-year period for the
3-8 same or similar violation.
3-9 (k) In this section, "immediate jeopardy to health and
3-10 safety" means a situation in which there is a high probability that
3-11 serious harm or injury to a resident could occur at any time or
3-12 already has occurred and may occur again if the resident is not
3-13 protected from the harm or if the threat is not removed.
3-14 SECTION 3. This Act takes effect September 1, 2001, and
3-15 applies only to a violation that occurs on or after that date. A
3-16 violation that occurs before the effective date of this Act is
3-17 covered by the law in effect on the date the violation occurred,
3-18 and the former law is continued in effect for that purpose.
3-19 * * * * *