80R9563 UM-D

By: Kolkhorst H.B. No. 2555

A BILL TO BE ENTITLED

AN ACT

relating to licensing, regulation, and reporting regarding certain facilities providing personal care to persons with disabilities; providing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 252.033(a), Health and Safety Code, is amended to read as follows:

(a) After receiving the application, the department shall:

(1) provide public notice and provide an opportunity for a hearing on the application in accordance with Section 252.0331; and

(2) issue a license if, after inspection, [and] investigation, and consideration of any comments received at a public hearing, it finds that the applicant and facility meet the requirements established under this chapter.

SECTION 2. Subchapter B, Chapter 252, Health and Safety Code, is amended by adding Section 252.0331 to read as follows:

Sec. 252.0331. PUBLIC NOTICE OF APPLICATION AND HEARING. (a) On receipt of an application for a license under this chapter, the department shall issue public notice of the application in the county in which the facility would be licensed.

(b) Except as provided by Subsection (d), the department shall hold a public hearing on the application and give any interested person an opportunity to appear, present evidence, and be heard for or against licensing the facility.

(c) A hearing officer designated by the department shall hold the hearing.

(d) A hearing is not required if before the 11th day after the date the notice of the application is published, no person has notified the department in writing that the person intends to appear and present evidence at the hearing.

(e) The public notice provided under this section must include:

(1) the name, including any trade name, of the person applying for the license to operate the facility;

(2) the address of the proposed facility; and

(3) the number of residents for which the facility would be licensed.

SECTION 3. Section 252.039, Health and Safety Code, is amended to read as follows:

Sec. 252.039. POSTING. Each facility shall prominently and conspicuously post for display in a public area of the facility that is readily available to residents, employees, and visitors:

(1) the license issued under this chapter;

(2) a sign prescribed by the department that specifies complaint procedures established under this chapter or rules adopted under this chapter and that specifies how complaints may be registered with the department;

(3) a notice in a form prescribed by the department stating that inspection and related reports are available at the facility and on the Internet for public inspection and providing the department's toll-free telephone number and Internet site address that may be used to obtain information concerning the facility;

(4) a concise summary of the most recent inspection report relating to the facility; and

(5) notice that employees, other staff, residents, volunteers, and family members and guardians of residents are protected from discrimination or retaliation as provided by Sections 252.132 and 252.133.

SECTION 4. Section 252.044, Health and Safety Code, is amended by adding Subsection (d) to read as follows:

(d) Not later than the 30th day after the date the facility receives the final statement of violations, the facility shall provide written notice of each violation and the facility's plan of correction to each resident and the resident's legally authorized representative.

SECTION 5. Subchapter B, Chapter 252, Health and Safety Code, is amended by adding Section 252.046 to read as follows:

Sec. 252.046. INFORMATION REGARDING FACILITIES. (a) Not later than the 30th day after the date the department provides a final statement of violations to a facility licensed under this chapter, the department shall publish and provide information regarding each final enforcement action taken by the department under this chapter against a person or facility in which any kind of sanction is imposed, including:

(1) the imposition of a reprimand, a period of probation, a monetary penalty, or a condition on a person's continued practice or a facility's continued operation; and

(2) the refusal to renew or the suspension, probation, or revocation of a license.

(b) Except to the extent that the information is specifically made confidential under other law, the department shall, in a way that does not serve to identify a complainant, publish and provide:

(1) the name, including any trade name, of the person or facility against which an enforcement action was taken;

(2) the address of the facility against which an enforcement action was taken; and

(3) the violation that the person or facility was found to have committed, and the sanction imposed.

(c) The department shall publish the information on its Internet site. The department also shall provide the information through a toll-free number to members of the public. The department shall appropriately publicize the toll-free number and the Internet site address.

(d) The executive commissioner of the Health and Human Services Commission shall adopt rules governing information published under this section.

SECTION 6. Subtitle B, Title 4, Health and Safety Code, is amended by adding Chapter 254 to read as follows: CHAPTER 254. GROUP HOME FACILITIES SERVING PERSONS WITH DISABILITIES SUBCHAPTER A. GENERAL PROVISIONS

Sec. 254.001. DEFINITIONS. In this chapter:

(1) "Department" means the Department of Aging and Disability Services.

(2) "Disabled person" has the meaning assigned by Section 48.002, Human Resources Code.

(3) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission.

(4) "Facility" means an establishment that:

(A) is not required to be licensed under Chapter 242, 246, 247, 250, or 252; and

(B) provides services, including community meals, light housework, meal preparation, transportation, grocery shopping, money management, or laundry services to three or more disabled persons.

(5) "Person" means an individual, firm, partnership, corporation, association, or joint stock company and includes a legal successor of those entities.

(6) "Resident" means an individual who is residing in a facility licensed under this chapter.

Sec. 254.002. RULES GENERALLY. The executive commissioner shall adopt rules related to the administration and implementation of this chapter.

Sec. 254.003. REPORT OF REFERRALS TO DEPARTMENT. (a) A state agency, a political subdivision, or a public or private provider of health care services shall report to the department the referral to a facility of a disabled person.

(b) A state agency, a political subdivision, or a public or private provider of health care services may not refer a disabled person to a facility that is not licensed by the state as provided by this chapter or licensed under other state law. [Sections 254.004-254.030 reserved for expansion] SUBCHAPTER B. LICENSING, FEES, AND INSPECTIONS

Sec. 254.031. LICENSE REQUIRED. A person, acting severally or jointly with any other person, may not establish, conduct, or maintain in this state a facility without a license issued under this chapter.

Sec. 254.032. LICENSE APPLICATION. (a) An application for a license is made to the department on a form provided by the department and must be accompanied by the license fee adopted under Section 254.035.

(b) The application must contain information that the department requires. The department may require affirmative evidence of ability to comply with the standards and rules adopted under this chapter.

Sec. 254.033. ISSUANCE AND RENEWAL OF LICENSE. (a) After receiving the application, the department shall:

(1) provide public notice and provide an opportunity for a hearing on the application in accordance with Section 254.034; and

(2) issue a license if, after inspection, investigation, and consideration of any comments received at a public hearing, it finds that the applicant and facility meet the requirements established under this chapter.

(b) The department may issue a license only for the premises and persons named in the application.

(c) A license may not be transferred or assigned.

(d) A license is renewable on the second anniversary of issuance or renewal of the license after:

(1) an inspection; and

(2) payment of the renewal fee.

(e) The executive commissioner by rule shall define specific, appropriate, and objective criteria on which the department may deny an initial license application or license renewal or revoke a license.

Sec. 254.034. PUBLIC NOTICE OF APPLICATION AND HEARING. (a) On receipt of an application for a license under this chapter, the department shall issue public notice of the application in the county in which the facility would be licensed.

(b) Except as provided by Subsection (d), the department shall hold a public hearing on the application and give any interested person an opportunity to appear, present evidence, and be heard for or against licensing the facility.

(c) A hearing officer designated by the department shall hold the hearing.

(d) A hearing is not required if before the 11th day after the date the notice of the application is published, no person has notified the department in writing that the person intends to appear and present evidence at the hearing.

(e) The public notice provided under this section must include:

(1) the name, including any trade name, of the person applying for the license to operate the facility;

(2) the address of the proposed facility; and

(3) the number of residents for which the facility would be licensed.

Sec. 254.035. LICENSE FEES. (a) The executive commissioner by rule may adopt a fee for a license issued under this chapter in an amount reasonable and necessary to recover the costs of administering this chapter.

(b) The license fee must be paid with each application for an initial license or for a renewal or change of ownership of a license.

Sec. 254.036. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE. The department, after providing notice and opportunity for a hearing to the applicant or license holder, may deny, suspend, or revoke a license if the department finds that the applicant or license holder has substantially failed to comply with the requirements established under this chapter or under department rules.

Sec. 254.037. MINIMUM STANDARDS. (a) The executive commissioner may adopt, publish, and enforce minimum standards to ensure the residents' health, safety, and comfort.

(b) The standards must be consistent with and at least as stringent as the standards applicable to a facility licensed under Chapter 252, except that the executive commissioner may waive a standard that is inappropriate due to the size of the facility.

Sec. 254.038. REASONABLE TIME TO COMPLY. The executive commissioner by rule shall give a facility that is in operation when a rule or standard is adopted under this chapter a reasonable time to comply with the rule or standard.

Sec. 254.039. POSTING. Each facility shall prominently and conspicuously post for display in a public area of the facility that is readily available to residents, the operator, any employees, and visitors:

(1) the license issued under this chapter;

(2) a sign prescribed by the executive commissioner that specifies complaint procedures established under this chapter or rules adopted under this chapter and that specifies how complaints, including anonymous complaints, may be registered with the department;

(3) a notice in a form prescribed by the executive commissioner stating that inspection and related reports are available at the facility and on the Internet for public inspection and providing the department's toll-free telephone number and Internet site address that may be used to obtain information concerning the facility;

(4) a concise summary of the most recent inspection report relating to the facility; and

(5) notice that the operator, any employees, other staff, residents, volunteers, and family members and guardians of residents are protected from retaliation as provided by Section 254.122.

Sec. 254.040. INSPECTIONS. (a) The department may make any inspection, survey, or investigation that it considers necessary and may enter the premises of a facility at reasonable times to make an inspection, survey, or investigation in accordance with rules of the executive commissioner.

(b) The department is entitled to access books, records, and other documents maintained by or on behalf of a facility to the extent necessary to enforce this chapter and the rules adopted under this chapter.

(c) A license holder or an applicant for a license is considered to have consented to entry and inspection of the facility by a representative of the department in accordance with this chapter.

(d) The department shall establish procedures to preserve all relevant evidence of conditions the department finds during an inspection, survey, or investigation that the department reasonably believes threaten the health and safety of a resident. The procedures may include photography or photocopying of relevant documents, such as license holder's notes, physician's orders, and pharmacy records, for use in any legal proceeding.

(e) When photographing a resident, the department:

(1) shall respect the privacy of the resident to the greatest extent possible; and

(2) may not make public the identity of the resident.

(f) A facility, the operator, an employee of a facility, and a resident's attending physician are not civilly liable for surrendering confidential or private material under this section, including physician's orders, pharmacy records, notes and memoranda of a state office, and resident files.

(g) The department shall establish in clear and concise language a form to summarize each inspection report and complaint investigation report.

(h) The department shall establish proper procedures to ensure that copies of all forms and reports under this section are made available to consumers, residents, and the relatives of residents as the department considers proper.

(i) The department shall have specialized staff conduct inspections, surveys, or investigations of facilities under this section.

Sec. 254.041. UNANNOUNCED INSPECTIONS. (a) Each licensing period, the department shall conduct at least two unannounced inspections of each facility.

(b) In order to ensure continuous compliance, the department shall randomly select a sufficient percentage of facilities for unannounced inspections to be conducted between 5 p.m. and 8 a.m. Those inspections must be cursory to avoid to the greatest extent feasible any disruption of the residents.

(c) The department may require additional inspections.

Sec. 254.042. DISCLOSURE OF UNANNOUNCED INSPECTIONS; CRIMINAL PENALTY. (a) Except as expressly provided by this chapter, a person commits an offense if the person intentionally, knowingly, or recklessly discloses to an unauthorized person the date, time, or any other fact about an unannounced inspection of a facility before the inspection occurs.

(b) In this section, "unauthorized person" does not include:

(1) the department;

(2) the office of the attorney general; or

(3) any other person or entity authorized by law to make an inspection or to accompany an inspector.

(c) An offense under this section is a Class B misdemeanor.

(d) A person convicted under this section is not eligible for state employment.

Sec. 254.043. REPORTING VIOLATIONS. (a) The department or the department's representative conducting an inspection, survey, or investigation under this chapter shall:

(1) list each violation of a law or rule on a form designed by the department for inspections; and

(2) identify the specific law or rule the facility violates.

(b) At the conclusion of an inspection, survey, or investigation under this chapter, the department or the department's representative conducting the inspection, survey, or investigation shall discuss the violations with the facility's management in an exit conference. The department or the department's representative shall leave a written list of the violations with the facility and the person designated by the facility to receive notice of the imposition of an administrative penalty at the time of the exit conference. If the department or the department's representative discovers any additional violations during the review of field notes or preparation of the official final list, the department or the department's representative shall give the facility an additional exit conference regarding the additional violations.

(c) The facility shall submit a plan to correct the violations to the department not later than the 10th day after the date the facility receives the final statement of violations.

(d) Not later than the 30th day after the date the facility receives the final statement of violations, the facility shall provide written notice of each violation and the facility's plan of correction to each resident and the resident's legally authorized representative. [Sections 254.044-254.060 reserved for expansion] SUBCHAPTER C. GENERAL ENFORCEMENT

Sec. 254.061. EMERGENCY SUSPENSION OR CLOSING ORDER. (a) The department shall suspend a facility's license or order an immediate closing of part of the facility if:

(1) the department finds the facility is operating in violation of the standards prescribed by this chapter; and

(2) the violation creates an immediate threat to the health and safety of a resident.

(b) The executive commissioner by rule shall provide for the placement of residents during the facility's suspension or closing to ensure their health and safety.

(c) An order suspending a license or closing a part of a facility under this section is immediately effective on the date on which the license holder receives written notice or a later date specified in the order.

(d) An order suspending a license or ordering an immediate closing of a part of a facility is valid for 10 days after the effective date of the order.

Sec. 254.062. INJUNCTION. (a) The department may petition a district court for a temporary restraining order to 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.

(b) A district court, on petition of the department, may by injunction:

(1) prohibit a person from continuing a violation of the standards or licensing requirements prescribed by this chapter;

(2) restrain or prevent the establishment, 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.

(c) The attorney general, on request by the department, shall bring and conduct on behalf of the state a suit authorized by this section.

(d) A suit for a temporary restraining order or other injunctive relief must be brought in Travis County or the county in which the alleged violation occurs.

Sec. 254.063. LICENSE REQUIREMENTS; CRIMINAL PENALTY. (a) A person commits an offense if the person violates Section 254.031.

(b) An offense under this section is punishable by a fine of not more than $1,000 for the first offense and not more than $500 for each subsequent offense.

(c) Each day of a continuing violation after conviction is a separate offense.

Sec. 254.064. CIVIL PENALTY. (a) A person who violates this chapter or a rule adopted or order issued under this chapter is liable for a civil penalty of not less than $100 or more than $10,000 for each violation if the department determines the violation threatens the health and safety of a resident.

(b) Each day of a continuing violation constitutes a separate ground for recovery.

(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.

Sec. 254.065. ADMINISTRATIVE PENALTY. (a) The department may impose an administrative penalty against a facility that violates this chapter or a rule adopted or order issued under this chapter.

(b) The penalty for a facility may not be less than $100 or more than $1,000 for each violation. The total amount of the penalty assessed for a violation continuing or occurring on separate days under this subsection may not exceed $5,000. Each day a violation occurs and each day of a continuing violation is a separate violation for purposes of imposing a penalty.

(c) The executive commissioner by rule shall specify each violation for which an administrative penalty may be assessed. In determining which violations warrant penalties, the department shall consider:

(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and the hazard of the violation to the health or safety of residents; and

(2) whether the affected facility had identified the violation as a part of its internal quality assurance process and had made appropriate progress on correction.

(d) The executive commissioner by rule shall establish a specific and detailed schedule of appropriate and graduated penalties for each violation based on:

(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and the hazard of the violation to the health or safety of residents;

(2) the history of previous violations;

(3) whether the affected facility had identified the violation as a part of its internal quality assurance process and had made appropriate progress on correction;

(4) the amount necessary to deter future violations;

(5) efforts made to correct the violation;

(6) the size of the facility; and

(7) any other matters that justice may require.

(e) The executive commissioner by rule shall provide the facility with a reasonable period of time, not less than 45 days, following the first day of a violation to correct the violation before assessing an administrative penalty if a plan of correction has been implemented. This subsection does not apply to a violation that the department determines has resulted in serious harm to or the death of a resident or constitutes a serious threat to the health or safety of a resident.

(f) The department may not assess an administrative penalty for a minor violation if the person corrects the violation not later than the 46th day after the date the person receives notice of the violation.

(g) The department shall establish a system to ensure standard and consistent application of penalties regardless of the facility location.

(h) All proceedings for the assessment of an administrative penalty under this chapter are subject to Chapter 2001, Government Code.

(i) Notwithstanding any other provision of this section, an administrative penalty ceases to be incurred on the date a violation is corrected. The administrative penalty ceases to be incurred only if the facility:

(1) notifies the department in writing of the correction of the violation and of the date the violation was corrected; and

(2) shows later that the violation was corrected.

(j) Rules adopted under this section shall include specific, appropriate, and objective criteria that describe the scope and severity of a violation that results in a recommendation for each specific penalty. [Sections 254.066-254.090 reserved for expansion] SUBCHAPTER D. NOTIFICATION OF CLOSURE

Sec. 254.091. NOTIFICATION OF CLOSURE. (a) A facility that is closing temporarily or permanently, voluntarily or involuntarily, shall notify the residents of the closing and make reasonable efforts to notify in writing each resident's nearest relative or the person responsible for the resident's support within a reasonable time before the facility closes.

(b) If the department orders a facility to close or the facility's closure is in any other way involuntary, the facility shall make the notification, orally or in writing, immediately on receiving notice of the closing.

(c) If the facility's closure is voluntary, the facility shall make the notification not later than one week after the date on which the decision to close is made.

Sec. 254.092. CRIMINAL PENALTY FOR FAILURE TO NOTIFY. (a) A facility commits an offense if the facility knowingly fails to comply with Section 254.091.

(b) An offense under this section is a Class A misdemeanor. [Sections 254.093-254.120 reserved for expansion] SUBCHAPTER E. REPORTS OF ABUSE, NEGLECT, OR EXPLOITATION

Sec. 254.121. REPORTING OF ABUSE, NEGLECT, OR EXPLOITATION; PENALTY. (a) A person, including an owner, operator, or employee of a facility, who has cause to believe that a resident has been abused, neglected, or exploited or may be adversely affected by abuse, neglect, or exploitation caused by another person shall report the abuse, neglect, or exploitation in the same manner required by Section 48.051, Human Resources Code.

(b) A person commits an offense if the person has cause to believe that a resident of a facility licensed under this chapter has been abused, neglected, or exploited or is in the state of abuse, neglect, or exploitation and knowingly fails to report in accordance with this section. An offense under this subsection is a Class A misdemeanor.

(c) Each facility shall require each employee of the facility, as a condition of employment with the facility, to sign a statement that the employee realizes that the employee may be criminally liable under this section for failure to report abuse, neglect, or exploitation.

Sec. 254.122. RETALIATION PROHIBITED. (a) A facility may not retaliate against a person for filing a report or providing information in good faith relating to the possible abuse, neglect, or exploitation of a resident.

(b) This section does not prohibit a facility from terminating an employee for a reason other than retaliation.

Sec. 254.123. ANONYMOUS REPORTS OF ABUSE, NEGLECT, OR EXPLOITATION. (a) The department shall provide a method for the receipt of anonymous complaints regarding the possible abuse, neglect, or exploitation of a resident.

(b) The department shall receive and act on an anonymous report of abuse, neglect, or exploitation at a facility in accordance with rules adopted by the executive commissioner. [Sections 254.124-254.150 reserved for expansion] SUBCHAPTER F. REPORTING

Sec. 254.151. INFORMATION REGARDING FACILITIES. (a) Not later than the 30th day after the date the department provides a final statement of violations to a facility licensed under this chapter, the department shall publish and provide information regarding each final enforcement action taken by the department under this chapter against a person or facility in which any kind of sanction is imposed, including:

(1) the imposition of a reprimand, a period of probation, a monetary penalty, or a condition on a person's continued practice or a facility's continued operation; and

(2) the refusal to renew or the suspension, probation, or revocation of a license.

(b) Except to the extent that the information is specifically made confidential under other law, the department shall, in a way that does not serve to identify a complainant, publish and provide:

(1) the name, including any trade name, of the person or facility against which an enforcement action was taken;

(2) the address of the facility against which an enforcement action was taken; and

(3) the violation that the person or facility was found to have committed, and the sanction imposed.

(c) The department shall publish the information on its Internet site. The department also shall provide the information through a toll-free number to members of the public. The department shall appropriately publicize the toll-free number and the Internet site address.

(d) The executive commissioner shall adopt rules governing information published under this section.

Sec. 254.152. REPORTS RELATING TO RESIDENT DEATHS; STATISTICAL INFORMATION. (a) A facility licensed under this chapter shall submit a report to the department concerning the death of:

(1) a facility resident; and

(2) a former resident that occurs 24 hours or less after the former resident is transferred from the facility to a hospital.

(b) The report must be submitted not later than the 10th working day after the last day of each month in which a resident dies. The facility must make the report on a form prescribed by the department. The report must contain the name and social security number of the deceased.

(c) The department shall correlate reports under this section with death certificate information to develop data relating to the:

(1) name and age of the deceased;

(2) official cause of death listed on the death certificate;

(3) date, time, and place of death; and

(4) name and address of the facility in which the deceased resided.

(d) Unless specified by executive commissioner rule, a record under this section is confidential and not subject to the provisions of Chapter 552, Government Code.

(e) The department shall develop statistical information on official causes of death to determine patterns and trends of incidents of death among disabled persons in specific facilities. Information developed under this subsection is not confidential.

(f) A licensed facility shall make available on the request of an applicant or an applicant's representative historical statistics on all required information.

SECTION 7. The changes to Chapter 252, Health and Safety Code, as amended by this Act, apply to a facility that receives a license or renews a license under that chapter on or after the effective date of this Act.

SECTION 8. Notwithstanding Sections 254.031 and 254.063, Health and Safety Code, as added by this Act, a facility is not required to be licensed under Chapter 254, Health and Safety Code, as added by this Act, before January 1, 2008.

SECTION 9. This Act takes effect September 1, 2007.