81R11647 YDB-D
 
  By: Shapleigh S.B. No. 1521
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the regulation of certain boarding houses and assisted
  living facilities; providing penalties.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subtitle B, Title 4, Health and Safety Code, is
  amended by adding Chapter 254 to read as follows:
  CHAPTER 254. BOARDING HOUSES
  SUBCHAPTER A. GENERAL PROVISIONS
         Sec. 254.001.  DEFINITIONS. In this chapter:
               (1)  "Boarding house" means an establishment that has
  rooms for rent to four or more persons who are unrelated to the
  owner by blood or consanguinity and that may offer community meals,
  light housework, meal preparation, transportation, grocery
  shopping, money management, or laundry services but that does not
  provide personal care services.
               (2)  "Department" means the Department of State Health
  Services.
               (3)  "Executive commissioner" means the executive
  commissioner of the Health and Human Services Commission.
               (4)  "Resident" means an individual who is residing in
  a boarding house that holds a certificate of registration under
  this chapter.
         Sec. 254.002.  EXEMPTIONS. This chapter does not apply to:
               (1)  a facility that is required to be licensed under
  Chapter 142, 242, 246, 247, or 252;
               (2)  a facility that is exempt from licensing under
  Section 142.003(a)(19) or 247.004(4);
               (3)  a hotel as defined by Section 156.001, Tax Code;
               (4)  a retirement community;
               (5)  a monastery or convent;
               (6)  a child-care facility;
               (7)  a facility that provides shelter to victims of
  domestic violence; or
               (8)  a sorority or fraternity house or other dormitory
  affiliated with an institution of higher education.
         Sec. 254.003.  RULES GENERALLY.  The executive commissioner
  shall adopt rules related to the administration and implementation
  of this chapter.
         Sec. 254.004.  CONSULTATION AND COORDINATION. (a) The
  department may cooperate with local public health officials of a
  municipality or county in carrying out this chapter and may
  delegate to those officials the power to make inspections and
  recommendations to the department under this chapter.
         (b)  The department may coordinate its personnel and
  facilities with a local agency of a municipality or county and may
  provide advice to the municipality or county if the municipality or
  county supplements the state regulatory program established under
  this chapter with additional rules required to meet local
  conditions.
  [Sections 254.005-254.050 reserved for expansion]
  SUBCHAPTER B. REGISTRATION, FEES, AND INSPECTIONS
         Sec. 254.051.  REGISTRATION REQUIRED.  A person, acting
  severally or jointly with any other person, may not establish,
  conduct, or maintain in this state a boarding house unless the
  person holds a certificate of registration issued under this
  chapter.
         Sec. 254.052.  APPLICATION.  (a)  A person may apply for
  registration under this chapter by submitting an application to the
  department on a form prescribed by the department and the required
  registration fee.
         (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. 254.053.  ISSUANCE AND RENEWAL OF CERTIFICATE OF
  REGISTRATION.  (a)  After receiving the application, the department
  shall issue a certificate of registration to the applicant if,
  after inspection and investigation, it finds that the applicant and
  boarding house meet the requirements established under this chapter
  and department rule.
         (b)  The department may issue a certificate of registration
  only for:
               (1)  the premises and persons named in the application;
  and
               (2)  the maximum number of residents specified in the
  application.
         (c)  A certificate of registration may not be transferred or
  assigned.
         (d)  A person may renew a certificate of registration by:
               (1)  submitting a renewal application on the form
  prescribed by the department; and
               (2)  paying the renewal fee.
         (e)  The executive commissioner by rule shall define
  specific, appropriate, and objective criteria on which the
  department may deny an initial certificate of registration
  application or certificate of registration renewal or revoke a
  certificate of registration.
         Sec. 254.054.  FEES. (a) The executive commissioner by rule
  may adopt a fee for a certificate of registration issued under this
  chapter in an amount reasonable and necessary to recover the costs
  of administering this chapter.
         (b)  The certificate of registration fee must be paid with
  each application for an initial certificate of registration or for
  a renewal or change of ownership of a certificate of registration.
         (c)  The executive commissioner may adopt an additional fee
  for the approval of an increase in number of residents.
         Sec. 254.055.  REGISTRY.  The department shall establish a
  registry of boarding houses registered under this chapter and make
  the registry available to the public, certificate of registration
  holders, and appropriate state agencies.
         Sec. 254.056.  MINIMUM STANDARDS.  The executive
  commissioner may adopt, publish, and enforce minimum standards
  relating to:
               (1)  the construction or remodeling of a boarding
  house, including plumbing, heating, lighting, ventilation, and
  other housing conditions, to ensure the residents' health, safety,
  comfort, and protection from fire hazard;
               (2)  sanitary and related conditions in a boarding
  house and its surroundings, including water supply, sewage
  disposal, food handling, and general hygiene to ensure the
  residents' health, safety, and comfort;
               (3)  equipment essential to the residents' health and
  welfare;
               (4)  the reporting and investigation of injuries,
  incidents, and unusual accidents and the establishment of other
  policies and procedures necessary to ensure the residents' safety;
               (5)  policies and procedures for the control of
  communicable diseases;
               (6)  specialized nutrition support;
               (7)  requirements for in-service education of the
  operator and each employee who has any contact with residents;
               (8)  the regulation of the number of employees and the
  qualifications of the operator and each employee responsible for
  providing any part of a service to residents; and
               (9)  the quality of life.
         Sec. 254.057.  POSTING.  Each boarding house shall
  prominently and conspicuously post for display in a public area of
  the boarding house that is readily available to residents, the
  operator, any employees, and visitors:
               (1)  the certificate of registration 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 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 boarding house for public inspection and providing
  the department's toll-free telephone number that may be used to
  obtain information concerning the boarding house; and
               (4)  a concise summary of the most recent inspection
  report relating to the boarding house.
         Sec. 254.058.  INSPECTIONS.  (a)  The department or the
  department's representative may make any inspection, survey, or
  investigation that it considers necessary and may enter the
  premises of a boarding house 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 to books, records,
  and other documents maintained by or on behalf of a boarding house
  to the extent necessary to enforce this chapter and the rules
  adopted under this chapter.
         (c)  A certificate of registration holder or an applicant for
  a certificate of registration is considered to have consented to
  entry and inspection of the boarding house 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 a certificate of registration holder's notes,
  for use in any legal proceeding.
         Sec. 254.059.  UNANNOUNCED INSPECTIONS. (a) Each
  registration period, the department shall conduct at least two
  unannounced inspections of each boarding house.
         (b)  The department may require additional inspections.
         Sec. 254.060.  EDUCATION AND OUTREACH.  The department and
  the Health and Human Services Commission shall provide to the owner
  or operator of a boarding house information on:
               (1)  the circumstances, including the provision of
  personal care, that require the facility to be licensed under
  Chapter 247 and the requirements for licensing under that chapter;
               (2)  the services the boarding house may provide;
               (3)  registration under this chapter; and
               (4)  health and safety requirements and staff training
  requirements.
         Sec. 254.061.  REPORTING VIOLATIONS.  (a)  The department or
  the department's representative conducting an inspection 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 boarding
  house violates.
         (b)  At the conclusion of an inspection or investigation
  under this chapter, the department or the department's
  representative conducting the inspection or investigation shall
  discuss the violations with the boarding house's management in an
  exit conference. The department or the department's representative
  shall leave a written list of the violations with the boarding house
  and the person designated by the boarding house 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 boarding house an
  additional exit conference regarding the additional violations.
         (c)  The boarding house shall submit a plan to correct the
  violations to the department not later than the 10th day after the
  date the boarding house receives the final statement of violations.
         Sec. 254.062.  REPORTING OF ABUSE, NEGLECT, OR EXPLOITATION.  
  (a)  A person, including an owner, operator, or employee of a
  boarding house, 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 as required by Section
  48.051, Human Resources Code, or other applicable law.
         (b)  Each boarding house shall require each employee of the
  boarding house, as a condition of employment with the boarding
  house, to sign a statement that the employee realizes that the
  employee may be criminally liable under Section 48.052, Human
  Resources Code, for failure to report abuse, neglect, or
  exploitation.
         Sec. 254.063.  NOTIFICATION OF CLOSURE.  (a)  A boarding
  house that is closing temporarily or permanently, voluntarily or
  involuntarily, shall notify the residents of the closing, if
  applicable, within a reasonable time before the boarding house
  closes.
         (b)  If the department orders a boarding house to close or
  the boarding house's closure is in any other way involuntary, the
  boarding house shall make the notification, orally or in writing,
  immediately on receiving notice of the closing.
         (c)  If the boarding house's closure is voluntary, the
  boarding house shall make the notification not later than one week
  after the date on which the decision to close is made.
  [Sections 254.064-254.100 reserved for expansion]
  SUBCHAPTER C. GENERAL ENFORCEMENT
         Sec. 254.101.  DENIAL, SUSPENSION, OR REVOCATION OF
  CERTIFICATE OF REGISTRATION.  (a)  The department, after providing
  notice and opportunity for a hearing to an applicant for a
  certificate of registration or a certificate of registration
  holder, may deny, suspend, or revoke a certificate of registration
  if the department finds that the applicant or certificate holder
  has substantially failed to comply with the requirements
  established under this chapter.
         (b)  The status of an applicant for a certificate of
  registration or of a certificate of registration holder is
  preserved until final disposition of the contested matter, except
  as the court having jurisdiction of a judicial review of the matter
  may order in the public interest for the welfare and safety of the
  residents.
         Sec. 254.102.  EMERGENCY SUSPENSION OR CLOSING ORDER. (a)
  The department shall suspend a boarding house's certificate of
  registration or order an immediate closing of part of the boarding
  house if:
               (1)  the department finds the boarding house 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 boarding house's suspension or
  closing to ensure their health and safety.
         (c)  An order suspending a certificate of registration or
  closing a part of a boarding house under this section is immediately
  effective on the date on which the certificate of registration
  holder receives written notice or a later date specified in the
  order.
         (d)  An order suspending a certificate of registration or
  ordering an immediate closing of a part of a boarding house is valid
  for 10 days after the effective date of the order.
         Sec. 254.103.  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 boarding house'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 registration requirements prescribed by this
  chapter;
               (2)  restrain or prevent the establishment, conduct,
  management, or operation of a boarding house without a certificate
  of registration 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 registration 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 the county in which the alleged
  violation occurs or in Travis County.
         Sec. 254.104.  CRIMINAL PENALTY. (a)  In this section,
  "immediate threat to the health or safety" means a situation in
  which there is a high probability that serious harm or injury to a
  resident could occur at any time or already has occurred and may
  occur again if the resident is not protected from the harm or if the
  threat is not removed.
         (b)  A person who knowingly operates a boarding house that is
  required to be registered under this chapter in a manner that
  creates an immediate threat to the health or safety of a resident of
  the boarding house commits an offense.
         (c)  An offense under this section is a Class B misdemeanor.
         Sec. 254.105.  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 $200 for each violation
  if the department determines the violation threatens the health or
  safety of a resident.
         (b)  Each day of a 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 in the general revenue fund.
         Sec. 254.106.  ADMINISTRATIVE PENALTY.  (a)  The department
  may impose an administrative penalty against a boarding house that
  violates this chapter or a rule adopted or order issued under this
  chapter.
         (b)  The penalty for a boarding house may not be less than
  $200 for each violation. Each day a violation occurs 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 boarding house 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 boarding house 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 boarding house; and
               (7)  any other matters that justice may require.
         (e)  The executive commissioner by rule shall provide the
  boarding house 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
  boarding house 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 boarding house:
               (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.
         (k)  The imposition and collection of an administrative
  penalty imposed under this section shall be conducted in the manner
  provided by Sections 252.0651, 252.066, 252.067, 252.068, and
  252.070.
         SECTION 2.  Section 247.004, Health and Safety Code, is
  amended to read as follows:
         Sec. 247.004.  EXEMPTIONS.  This chapter does not apply to:
               (1)  a boarding house registered under Chapter 254 [a
  boarding facility that has rooms for rent and that may offer
  community meals, light housework, meal preparation,
  transportation, grocery shopping, money management, or laundry
  services but that does not provide personal care services];
               (2)  an establishment conducted by or for the adherents
  of the Church of Christ, Scientist, for the purpose of providing
  facilities for the care or treatment of the sick who depend
  exclusively on prayer or spiritual means for healing without the
  use of any drug or material remedy if the establishment complies
  with local safety, sanitary, and quarantine ordinances and
  regulations;
               (3)  a facility conducted by or for the adherents of a
  qualified religious society classified as a tax-exempt
  organization under an Internal Revenue Service group exemption
  ruling for the purpose of providing personal care services without
  charge solely for the society's professed members or ministers in
  retirement, if the facility complies with local safety, sanitation,
  and quarantine ordinances and regulations; or
               (4)  a facility that provides personal care services
  only to persons enrolled in a program that is funded in whole or in
  part by the [Texas] Department of State [Mental] Health Services or
  the Department of Aging and Disability Services [and Mental
  Retardation] and that is monitored by the [Texas] Department of
  State [Mental] Health Services or the Department of Aging and
  Disability Services [and Mental Retardation] or its designated
  local authority, as applicable, in accordance with standards set by
  the applicable department [Texas Department of Mental Health and
  Mental Retardation].
         SECTION 3.  Section 247.025, Health and Safety Code, is
  amended to read as follows:
         Sec. 247.025.  ADOPTION OF RULES.  The executive
  commissioner of the Health and Human Services Commission [board]
  shall adopt rules necessary to implement this chapter, including:
               (1)  requirements for the issuance, renewal, denial,
  suspension, and revocation of a license to operate an assisted
  living facility; and
               (2)  rules to require local mental health authorities
  to work with clients to secure safe, appropriate housing to assist
  clients in achieving their treatment goals by directing clients to
  available assisted living facilities licensed under this chapter
  and other establishments that are not required to be licensed under
  this chapter that may be an appropriate referral option.
         SECTION 4.  Section 247.031, Health and Safety Code, is
  amended to read as follows:
         Sec. 247.031.  MUNICIPAL ENFORCEMENT.  (a)  The governing
  body of a municipality by ordinance may:
               (1)  prohibit a person who does not hold a license
  issued under this chapter from establishing or operating an
  assisted living facility within the municipality; and
               (2)  establish a procedure for emergency closure of a
  facility in circumstances in which:
                     (A)  the facility is established or operating in
  violation of Section 247.021; and
                     (B)  the continued operation of the facility
  creates an immediate threat to the health and safety of a resident
  of the facility.
         (b)  The department shall:
               (1)  develop a communications plan, which may include
  regional meetings, to educate municipalities about this section;
  and
               (2)  create outreach and training materials and
  distribute the materials in accordance with the communications
  plan.
         SECTION 5.  Chapter 247, Health and Safety Code, is amended
  by adding Subchapter E to read as follows:
  SUBCHAPTER E. CRIMINAL PENALTY
         Sec. 247.101.  CRIMINAL PENALTY.  (a)  In this section,
  "immediate threat to the health or safety" means a situation in
  which there is a high probability that serious harm or injury to a
  resident could occur at any time or already has occurred and may
  occur again if the resident is not protected from the harm or if the
  threat is not removed.
         (b)  A person who knowingly operates without a license an
  assisted living facility that is required to be licensed under this
  chapter in a manner that creates an immediate threat to the health
  or safety of a resident of the facility commits an offense.
         (c)  An offense under this section is a Class B misdemeanor.
         SECTION 6.  The heading to Title 4, Health and Safety Code,
  is amended to read as follows:
  TITLE 4.  CERTAIN RESIDENTIAL AND HEALTH FACILITIES
         SECTION 7.  The heading to Subtitle B, Title 4, Health and
  Safety Code, is amended to read as follows:
  SUBTITLE B.  LICENSING OF [HEALTH] FACILITIES
         SECTION 8.  (a)  Not later than October 1, 2009, the Health
  and Human Services Commission, or a health and human services
  agency designated by the commission, shall establish a stakeholder
  workgroup to solicit input and make recommendations for revision of
  the existing rules on Type E facilities as defined by rules of the
  Department of Aging and Disability Services. Members of the
  workgroup must include:
               (1)  currently licensed Type E facility operators;
               (2)  unlicensed boarding house operators;
               (3)  local mental health authority staff;
               (4)  area agencies on aging representatives;
               (5)  regional staff of the Department of Aging and
  Disability Services;
               (6)  staff of the Department of State Health Services
  with responsibility for mental health services; and
               (7)  mental health advocates.
         (b)  The workgroup shall:
               (1)  examine basic supervision, resident well-being,
  nutritional quality, and medication monitoring related to Type E
  facilities;
               (2)  recommend rules to encourage more boarding house
  operators to be licensed as Type E facilities; and
               (3)  examine regulatory oversight of Type E facilities
  and recommend either the Department of Aging and Disability
  Services, or the Department of State Health Services to regulate
  facilities considering the purpose for which the Type E
  classification was created, the services currently regulated by
  each agency, and cost.
         (c)  Not later than January 1, 2011, based on the
  recommendations of the workgroup, the executive commissioner of the
  Health and Human Services Commission shall adopt rules relating to
  the licensing of Type E assisted living facilities.
         (d)  Not later than March 1, 2011, the Health and Human
  Services Commission, or a health and human services agency
  designated by the commission, shall:
               (1)  provide copies of the rules adopted under
  Subsection (c) of this section to the members of the workgroup and
  other interested parties;
               (2)  provide training and information to regional state
  regulatory staff and local staff on the adopted rules; and
               (3)  provide information on the adopted rules to
  boarding houses, state and regional staff employed by the
  Department of Aging and Disability Services, state and regional
  staff employed by the Department of State Health Services, and
  local mental health authorities.
         SECTION 9.  Not later than September 1, 2010, the Health and
  Human Services Commission shall evaluate the Section 1915(i) state
  plan amendment option of the Social Security Act (42 U.S.C. Section
  1396n(i)) available under the Deficit Reduction Act of 2005 (Pub.
  L. No. 109-171) and the waiver program under Section 1915(c),
  Social Security Act (42 U.S.C. Section 1396n(c)), to determine if
  either would provide a feasible means for funding personal care
  services for people with mental illness under the state Medicaid
  program.
         SECTION 10.  (a)  Not later than January 1, 2011, the
  executive commissioner of the Health and Human Services Commission
  shall adopt the rules necessary to implement Chapter 254, Health
  and Safety Code, as added by this Act, and Chapter 247, Health and
  Safety Code, as amended by this Act.
         (b)  Not later than June 1, 2011, the Department of State
  Health Services shall develop the registry and provide the
  education and outreach as required under Chapter 254, Health and
  Safety Code, as added by this Act.
         (c)  Notwithstanding Chapter 254, Health and Safety Code, as
  added by this Act, a person who owns or operates a boarding house is
  not required to hold a certificate of registration on the effective
  date of this Act but must hold a certificate of registration under
  that chapter not later than September 1, 2011.
         SECTION 11.  (a)  Except as provided by Subsection (b), this
  Act takes effect September 1, 2009.
         (b)  Subchapter C, Chapter 254, Health and Safety Code, as
  added by this Act, takes effect September 1, 2011.