By: Lindsay S.B. No. 1204
A BILL TO BE ENTITLED
AN ACT
relating to the inspection of, and enforcement of laws relating to,
nursing homes and intermediate care facilities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter A, Chapter 242, Health and Safety
Code, is amended by amending Section 242.016 and adding Section
242.017 to read as follows:
Sec. 242.016. FEES AND PENALTIES. (a) In this section,
"reasonable expenses and costs" include expenses incurred by the
department, the attorney general, or a county attorney to
investigate, initiate, and prosecute an action, including
reasonable investigative costs, witness fees, deposition expenses,
and court costs.
(b) Except as expressly provided by Subsection (c) or this
chapter, a fee or penalty collected by or on behalf of the
department under this chapter must be deposited to the credit of the
general revenue fund and may be appropriated only to the department
to administer and enforce this chapter.
(c) A penalty collected in an enforcement action by a county
attorney in accordance with Section 242.017 shall be divided
equally between the county attorney and the department.
(d) Except as provided by Subsection (e), investigation
[Investigation] and attorney's fees may not be assessed or
collected by or on behalf of the department or other state agency
unless the department or other state agency assesses and collects a
penalty described under this chapter. A county attorney may
collect and retain attorney's fees and reasonable expenses and
costs in an action brought by the county attorney if the court
assesses a civil penalty.
(e) 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, the attorney general or
county attorney may recover attorney's fees and reasonable expenses
and costs. The county attorney may retain attorney's fees and
reasonable expenses and costs recovered by the county attorney
under this subsection.
Sec. 242.017. ENFORCEMENT BY COUNTY ATTORNEY. (a) The
county attorney in a county with a population of 3.4 million or more
may 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) 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. Subsection (b), Section 242.045, Health and
Safety Code, is amended to read as follows:
(b) In this section, "unauthorized person" does not
include:
(1) the department;
(2) the office of the attorney general;
(3) a statewide organization for the elderly,
including the American Association of Retired Persons, the Texas
Senior Citizen Association, and the Texas Retired Federal
Employees;
(4) an ombudsman or representative of the Texas
Department on Aging;
(5) a representative of an agency or organization when
a Medicare or Medicaid survey is made concurrently with a licensing
inspection; [or]
(6) any other person or entity authorized by law to
make an inspection or to accompany an inspector; or
(7) the county attorney in a county with a population
of 3.4 million or more.
SECTION 3. Subsections (a) and (b), Section 242.063, Health
and Safety Code, are amended to read as follows:
(a) The department may petition a district court for:
(1) a temporary restraining order to restrain a person
from a violation or threatened violation of the standards imposed
under this chapter or any other law affecting residents if the
department reasonably believes that the violation or threatened
violation creates an immediate threat to the health and safety of a
resident; [and]
(2) an injunction to restrain a person from a
violation or threatened violation of the standards imposed under
this chapter or by any other law affecting residents if the
department reasonably believes that the violation or threatened
violation creates a threat to the health and safety of a resident;
and
(3) a temporary restraining order to restrain a person
from denying the department access to the institution for
inspection purposes if the department reasonably believes that the
institution is required to be licensed and that it is operating
without a license.
(b) A district court, on petition of the department, may by
injunction or temporary restraining order:
(1) prohibit a person from violating the standards or
licensing requirements prescribed by this chapter;
(2) restrain or prevent the establishment, conduct,
management, or operation of an institution without a license issued
under this chapter; [or]
(3) grant the injunctive relief warranted by the facts
on a finding by the court that a person is violating or threatening
to violate the standards or licensing requirements prescribed by
this chapter; or
(4) restrain a person from denying the department
access to the institution if the department reasonably believes
that the institution is required to be licensed and that it is
operating without a license.
SECTION 4. The heading to Section 242.073, Health and
Safety Code, is amended to read as follows:
Sec. 242.073. LEGAL ACTION BY THE ATTORNEY GENERAL OR
CERTAIN COUNTY ATTORNEYS.
SECTION 5. Subsection (a), Section 242.073, Health and
Safety Code, is amended to read as follows:
(a) The department and the attorney general or the county
attorney in a county with a population of 3.4 million or more shall
work in close cooperation throughout any legal proceedings
requested by the department.
SECTION 6. Subsection (e), Section 242.094, Health and
Safety Code, as added by Chapters 583 and 815, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
(e) Venue for an action brought under this section is:
(1) in Travis County; or
(2) in a county with a population of 3.4 million or
more if the county attorney of the county brings the action under
Section 242.017 in that county.
SECTION 7. Subsection (b), Section 242.252, Health and
Safety Code, is amended to read as follows:
(b) An affected institution may 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 the
department 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. The election must be filed not later than the 10th
day after the date on which the answer is due or the date on which
the answer is filed, whichever is sooner. If a civil penalty is
requested after the initial filing of a Section 242.094 lawsuit
through the filing of an amended or supplemental pleading, an
affected institution must elect arbitration not later than the 10th
day after the date on which the amended or supplemental pleading is
served on the affected institution or its counsel.
SECTION 8. 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, are amended to read as follows:
Sec. 242.319. CIVIL PENALTY. A person who violates this
subchapter is liable to the state for a civil penalty of $1,000 for
each day of violation. At the request of the department, the
attorney general shall bring an action to recover a civil penalty
established by this section. The county attorney in a county with a
population of 3.4 million or more may bring an action to collect a
civil penalty for a violation of this subchapter if the attorney
general defers to the county attorney with respect to the action.
Sec. 242.320. ASSISTANCE OF ATTORNEY GENERAL OR CERTAIN
COUNTY ATTORNEYS. 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, shall provide legal
assistance as necessary in enforcing the provisions of this
subchapter. This requirement does not relieve a local prosecuting
officer of any of the prosecuting officer's duties under the law.
SECTION 9. 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 on issuance by
the federal government of a ruling that that system for licensure of
nursing facility administrators does not comply with federal
regulations, are amended to read as follows:
Sec. 242.324. CIVIL PENALTY. A person who violates this
subchapter is liable to the state for a civil penalty of $1,000 for
each day of violation. At the request of the department, the
attorney general shall bring an action to recover a civil penalty
established by this section. The county attorney in a county with a
population of 3.4 million or more may bring an action to collect a
civil penalty for a violation of this subchapter if the attorney
general defers to the county attorney with respect to the action.
Sec. 242.325. ASSISTANCE OF ATTORNEY GENERAL OR CERTAIN
COUNTY ATTORNEYS. 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, shall provide legal
assistance as necessary in enforcing the provisions of this
subchapter. This requirement does not relieve a local prosecuting
officer of any of the prosecuting officer's duties under the law.
SECTION 10. Subchapter A, Chapter 252, Health and Safety
Code, is amended by adding Section 252.012 to read as follows:
Sec. 252.012. ENFORCEMENT BY COUNTY ATTORNEY. (a) The
county attorney in a county with a population of 3.4 million or more
may bring an action to enforce this chapter under Section 252.062,
252.064, or 252.093 if the attorney general defers to the county
attorney with respect to the action.
(b) 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 Sections 252.062, 252.064,
and 252.093.
SECTION 11. Subsection (b), Section 252.042, Health and
Safety Code, is amended to read as follows:
(b) In this section, "unauthorized person" does not
include:
(1) the department;
(2) the office of the attorney general;
(3) a representative of an agency or organization when
a Medicaid survey is made concurrently with a licensing inspection;
[or]
(4) any other person or entity authorized by law to
make an inspection or to accompany an inspector; or
(5) the county attorney in a county with a population
of 3.4 million or more.
SECTION 12. Subsections (a) and (b), Section 252.062,
Health and Safety Code, are amended to read as follows:
(a) The department may petition a district court for a
temporary restraining order to:
(1) restrain a person from continuing a violation of
the standards prescribed by this chapter if the department finds
that the violation creates an immediate threat to the health and
safety of the facility's residents; or
(2) restrain a person from denying the department
access to the facility for inspection purposes if the department
reasonably believes that the facility is required to be licensed
and that it is operating without a license.
(b) A district court, on petition of the department, may by
injunction or temporary restraining order:
(1) prohibit a person from continuing a violation of
the standards or licensing requirements prescribed by this chapter;
(2) restrain or prevent the establishment, conduct,
management, or operation of a facility without a license issued
under this chapter; [or]
(3) grant the injunctive relief warranted by the facts
on a finding by the court that a person is violating the standards
or licensing requirements prescribed by this chapter; or
(4) restrain a person from denying the department
access to the facility if the department reasonably believes that
the facility is required to be licensed and that it is operating
without a license.
SECTION 13. Subsection (c), Section 252.064, Health and
Safety Code, is amended to read as follows:
(c) On request of the department, the attorney general may
institute an action in a district court to collect a civil penalty
under this section. Any amount collected shall be remitted to the
comptroller for deposit to the credit of the general revenue fund.
If the action is instituted by a county attorney under Section
252.012, the civil penalty shall be divided equally between the
county attorney and the department.
SECTION 14. Section 252.070, Health and Safety Code, is
amended to read as follows:
Sec. 252.070. EXPENSES AND COSTS FOR COLLECTION OF CIVIL OR
ADMINISTRATIVE PENALTY. (a) If the attorney general or a county
attorney brings an action against a person under Section 252.062 or
252.064 [or to enforce an administrative penalty assessed under
Section 252.065] and an injunction is granted against the person or
the person is found liable for a civil penalty, 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, the attorney general or the county attorney
may recover[, on behalf of the attorney general and the
department,] reasonable expenses and costs.
(b) For purposes of this section, reasonable expenses and
costs include expenses incurred by the department, [and] the
attorney general, or the county attorney in the investigation,
initiation, and prosecution of an action, including reasonable
investigative costs, [attorney's fees,] witness fees, court costs,
and deposition expenses.
SECTION 15. This Act takes effect September 1, 2003.
COMMITTEE AMENDMENT NO. 1
Amend the proposed SB 1204 by inserting the following new
SECTION, appropriately numbered, and renumbering subsequent
sections of the article accordingly:
SECTION ___. (a) Section 242.047, Health and Safety Code,
is amended to read as follows:
Sec. 242.047. ACCREDITATION REVIEW TO SATISFY [INSTEAD OF]
INSPECTION OR CERTIFICATION REQUIREMENTS. (a) The department
shall accept an annual accreditation review from the Joint
Commission on Accreditation of Health Organizations for a nursing
home instead of an inspection for renewal of a license under Section
242.033 and in satisfaction of the requirements for certification
by the department for participation in the medical assistance
program under Chapter 32, Human Resources Code, and the federal
Medicare program, but only if:
(1) the nursing home is accredited by the commission
under the commission's long-term care standards;
(2) the commission maintains an annual inspection or
review program that, for each nursing home, meets the department's
applicable minimum standards as confirmed by the board;
(3) the commission conducts an annual on-site
inspection or review of the home; [and]
(4) the nursing home submits to the department a copy
of its annual accreditation review from the commission in addition
to the application, fee, and any report required for renewal of a
license or for certification, as applicable; and
(5) the department has:
(A) determined whether a waiver or authorization
from a federal agency is necessary under federal law, including for
federal funding purposes, before the department accepts an annual
accreditation review from the joint commission:
(i) instead of an inspection for license
renewal purposes;
(ii) as satisfying the requirements for
certification by the department for participation in the medical
assistance program; or
(iii) as satisfying the requirements for
certification by the department for participation in the federal
Medicare program; and
(B) obtained any necessary federal waivers or
authorizations.
(b) The department shall coordinate its licensing and
certification activities with the commission.
(c) The department and the commission shall sign a
memorandum of agreement to implement this section. The memorandum
must provide that if all parties to the memorandum do not agree in
the development, interpretation, and implementation of the
memorandum, any area of dispute is to be resolved by the board.
(d) Except as specifically provided by this section, this
[This] section does not limit the department in performing any
duties and inspections authorized by this chapter or under any
contract relating to the medical assistance program under Chapter
32, Human Resources Code, and Titles XVIII and XIX of the Social
Security Act (42 U.S.C. Sections 1395 et seq. and 1396 et seq.),
including authority to take appropriate action relating to an
institution, such as closing the institution.
(e) This section does not require a nursing home to obtain
accreditation from the commission.
(b) Not later than October 1, 2003, the Texas Department of
Human Services shall:
(1) determine whether a waiver or authorization from a
federal agency is necessary under federal law, including for
federal funding purposes, before the department may accept an
annual accreditation review from the Joint Commission on
Accreditation of Health Organizations for a nursing home:
(A) instead of an inspection for purposes of
renewing a nursing home license under Chapter 242, Health and
Safety Code;
(B) as satisfying the requirements for
certification by the department for participation in the medical
assistance program under Chapter 32, Human Resources Code; and
(C) as satisfying the requirements for
certification by the department for participation in the federal
Medicare program; and
(2) if the department determines that a waiver or
authorization is necessary, request any required waivers or
authorizations that the department may possibly obtain under
federal law.
(c) Not later than December 1, 2003, the Texas Department of
Human Services shall report its progress under Subsection (b) of
this section to the governor and to the presiding officer of each
house of the legislature.
Wohlgemuth