SRC-TJG S.B. 1204 78(R)   BILL ANALYSIS


Senate Research Center   S.B. 1204
78R3290 MCK-FBy: Lindsay
Health & Human Services
4/2/2003
As Filed


DIGEST AND PURPOSE 

Current law governing the inspection of nursing homes and intermediate
care facilities provides for enforcement by the state attorney general
only, and contains no express provision allowing for a temporary
restraining order if access to an institution for inspection purposes is
denied to Texas Department of Human Services (DHS) employees.  As
proposed, S.B. 1204 adds the availability of a temporary restraining order
to prevent any person from denying access for inspection purposes to
employees of DHS.  This bill also allows the county attorney in counties
with a population of 3.4 million or more to institute enforcement
proceedings against certain non-compliant entities, upon request from DHS
and deferral by the attorney general. 

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to
a state officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 242A, Health and Safety Code, by amending
Section 242.016 and adding Section 242.017, as follows: 

Sec. 242.016.  FEES AND PENALTIES.  (a) Defines "reasonable expenses and
costs." 

(b) Created from existing text.  Makes conforming change. 

(c) Requires a penalty collected in an enforcement action by a county
attorney in accordance with Section 242.017 to be divided equally between
the county and the Texas Department of Human Services (DHS). 

(d) Prohibits investigation and attorney's fees from being assessed or
collected by or on behalf of DHS or other state agency unless DHS or other
state agency assesses and collects a penalty described under this chapter,
except as provided by Subsection (a). 

(e) Authorizes the attorney general or county court to recover attorney's
fees and reasonable expenses and costs if the attorney general or a county
attorney brings an action to enforce this chapter under Section 242.063 or
242.094, and the court grants an injunction or temporary restraining order
or appoints a trustee to operate the home.  Authorizes the county attorney
to retain attorney's fees and reasonable expenses and costs recovered by
the county attorney under this section. 

Sec. 242.017.  ENFORCEMENT BY COUNTY ATTORNEY.  (a) Authorizes the county
attorney in a county with a population of 3.4 million or more to bring an
action to enforce this chapter under Section 242.063, 242.065, or 242.094,
if the attorney general defers to the county attorney with respect to the
action. 

(b) Provides that a county attorney that accepts a deferral under
Subsection (a) has all the rights and obligations of the attorney general
for enforcing this chapter. 

 SECTION 2.  Amends Section 242.045(b), Health and Safety Code, to make
conforming changes. 

SECTION 3.  Amends Sections 242.063(a) and (b), Health and Safety Code, as
follows: 

(a) Authorizes DHS to petition a district court for a temporary
restraining order to restrain a person from denying DHS access to the
institution for inspection purposes if DHS reasonably believes that the
institution is required to be licensed and that it is operating without a
license.  Makes nonsubstantive changes. 

(b) Authorizes a district court, on petition of DHS, to by injunction or
temporary restraining order restrain a person from denying DHS access to
the institution if DHS reasonably believes that the institution is
required to be licensed and that it is operating without a license. 

SECTION 4.  Amends the heading to Section 242.073, Health and Safety Code,
to read as follows: 

Sec. 242.073.  LEGAL ACTION BY THE ATTORNEY GENERAL OR CERTAIN COUNTY
ATTORNEYS. 

SECTION 5.  Amends Section 242.073(a), Health and Safety Code, to make a
conforming change. 

SECTION 6.  Amends Section 242.094(e), Health and Safety Code, to make a
conforming and nonsubstantive changes. 

SECTION 7.  Amends Section 242.252(b), Health and Safety Code, to
authorize an affected institution to elect arbitration under this
subchapter by filing the election with the court in which the lawsuit is
pending and sending notice of the election to DHS and to the office of the
attorney general or the county attorney if a county attorney filed an
enforcement action under Section 242.065 against the affected institution
in accordance with Section 242.017.   

SECTION 8.  Amends Sections 242.319 and 242.320, Health and Safety Code,
as added by Section 1.01, Chapter 1280, Acts of the 75th Legislature,
Regular Session, 1997, and effective until the federal government issues a
ruling that that system for licensure of nursing facility administrators
does not comply with federal regulations, as follows: 

Sec. 242.319. CIVIL PENALTY.  Makes a conforming change.

Sec. 242.320.  New heading: ASSISTANCE OF ATTORNEY GENERAL OR CERTAIN
COUNTY ATTORNEYS.  Requires the attorney general or the county attorney,
if the attorney general has deferred to the county attorney for
prosecution of an action under this subchapter, to provide legal
assistance as necessary in enforcing the provisions of this subchapter. 

SECTION 9.  Amends Sections 242.324 and 242.325, Health and Safety Code,
as added by Section 2.01, Chapter 1280, Acts of the 75th Legislature,
Regular Session, 1997, and effective until the federal government issues a
ruling that that system for licensure of nursing facility administrators
does not comply with federal regulations, as follows: 

Sec. 242.324.  CIVIL PENALTY.  Makes a conforming change.  

Sec. 242.325.  New heading: ASSISTANCE OF ATTORNEY GENERAL OR CERTAIN
COUNTY ATTORNEYS.  Makes a conforming change. 

SECTION 10.  Amends Chapter 252A, Health and Safety Code, by adding
Section 252.012, as follows: 

 Sec. 252.012.  ENFORCEMENT BY COUNTY ATTORNEY.  (a) Authorizes the county
attorney in a county with a population of 3.4 million or more to bring an
action to enforce this chapter under Section 252.062, 252.064, or 22.093
if the attorney general defers to the county attorney with respect to the
action. 

(b) Provides that a county attorney that accepts a deferral under
Subsection (a) has all the rights and obligations of the attorney general
for enforcing this chapter under Section 252.063, 252.064, and 252.093. 

SECTION 11.  Amends Section 242.042(b), Health and Safety Code, to make
conforming and nonsubstantive changes. 

SECTION 12.  Amends Sections 252.062(a) and (b) to make conforming and
nonsubstantive changes. 

SECTION 13.  Amends Section 252.064(c), Health and Safety Code, to require
the civil penalty to be divided equally between the county attorney and
DHS, if the action is instituted by a county attorney under Section
252.012. 

SECTION 14.  Amends Section 252.070, Health and Safety Code, as follows:

(a) Authorizes the attorney general or the county attorney to recover
reasonable expenses and costs if the attorney general or county attorney
brings an action against a person under Section 252.062 or 252.064 and an
injunction is granted against certain persons, or the attorney general
brings an action to enforce an administrative penalty assessed under
Section 252.065 and the person is found liable for an administrative
penalty.  Deletes existing text related to recovering reasonable costs on
behalf of the attorney general and DHS. 

(b) Includes expenses incurred by the county attorney, including court
costs, in the definition of reasonable expenses and costs, for the
purposes of this section.  Deletes attorney's fees as a reasonable expense
and cost. 

SECTION 15.  Effective date: September 1, 2003.