H.B. No. 2109

AN ACT

relating to agency action concerning assisted living facilities, including regulation of inappropriate placement of residents at facilities; providing a penalty.

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

SECTION 1. Section 247.066, Health and Safety Code, is amended by adding Subsections (b-1), (d-1), (d-2), (f), (g), and (h) and amending Subsections (c), (d), and (e) to read as follows:

(b-1) If a facility identifies a resident who the facility believes is inappropriately placed at the facility, the facility is not required to move the resident if the facility obtains the written statements and waiver prescribed by Subsection (c).

(c) If [a department inspector determines that] a resident is inappropriately placed at a facility, the facility is not required to move the resident if, not later than the 10th business day after the date that the facility determines or is informed of the department's [of the specific basis of the inspector's] determination that a resident is inappropriately placed at the facility, the facility:

(1) obtains a written assessment from a physician that the resident is appropriately placed;

(2) obtains a written statement:

(A) from the resident that the resident wishes to remain in the facility; or

(B) from a family member of the resident that the family member wishes for the resident to remain in the facility, if the resident lacks capacity to give a statement under this subsection;

(3) states in writing that the facility wishes for the resident to remain in the facility; and

(4) applies for and obtains a waiver from the department of all applicable requirements for evacuation that the facility does not meet with respect to the resident, if the facility does not meet all requirements for the evacuation of residents with respect to the resident.

(d) If the [a] department [inspector] determines that a resident is inappropriately placed at a facility and the facility either agrees with the determination or does not obtain the written statements and waiver prescribed by Subsection (c) that would allow the resident to remain in the facility [notwithstanding the determination of the inspector, the department may not assess an administrative penalty against the facility because of the inappropriate placement. However], the facility shall discharge the resident. The resident is allowed 30 days after the date of discharge to move from the facility. A discharge required under this subsection must be made notwithstanding:

(1) any other law, including any law relating to the rights of residents and any obligations imposed under the Property Code; and

(2) the terms of any contract.

(d-1) If a facility is required to discharge the resident because the facility has not obtained the written statements prescribed by Subsection (c) or the department does not approve a waiver based on the written statements submitted, the department may:

(1) assess an administrative penalty against the facility if the facility intentionally or repeatedly disregards department criteria for obtaining a waiver for inappropriate placement of a resident;

(2) seek an emergency suspension or closing order against the facility under Section 247.042 if the department determines there is a significant risk to the residents of the facility and an immediate threat to the health and safety of the residents; or

(3) seek other sanctions against the facility under Subchapter C in lieu of an emergency suspension or closing order if the department determines there is a significant risk to a resident of the facility and an immediate threat to the health and safety of a resident.

(d-2) The executive commissioner by rule shall develop criteria under which the department may determine when a facility has intentionally or repeatedly disregarded the waiver process.

(e) To facilitate obtaining the written statements required under Subsections (b-1) and (c)(1)-(3), the department shall develop standard forms that must be used under Subsections (b-1) or (c)(1)-(3), as appropriate. The department shall develop criteria under which the department will determine, based on a resident's specific situation, whether it will grant or deny a request for a waiver under Subsection (b-1) or (c)(4).

(f) The department shall ensure that each facility and resident is aware of the waiver process described by Subsection (c) for aging in place. A facility must include with the facility disclosure statement required under Section 247.026(b)(4)(B) information regarding the policies and procedures for aging in place described by this section.

(g) The department, in cooperation with assisted living service providers, shall develop cost-effective training regarding aging in place, retaliation, and other issues determined by the department.

(h) The department shall require surveyors, facility supervisors, and other staff, as appropriate, to complete the training described by Subsection (g) annually.

SECTION 2. Section 247.068, Health and Safety Code, is amended by adding Subsection (c) to read as follows:

(c) A department employee may not retaliate against an assisted living facility, an employee of an assisted living facility, or a person in control of an assisted living facility for:

(1) complaining about the conduct of a department employee;

(2) disagreeing with a department employee about the existence of a violation of this chapter or a rule adopted under this chapter; or

(3) asserting a right under state or federal law.

SECTION 3. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2011.

______________________________ ______________________________

President of the Senate Speaker of the House

I certify that H.B. No. 2109 was passed by the House on May 5, 2011, by the following vote: Yeas 146, Nays 0, 1 present, not voting.

______________________________ Chief Clerk of the House

I certify that H.B. No. 2109 was passed by the Senate on May 24, 2011, by the following vote: Yeas 31, Nays 0 .

______________________________ Secretary of the Senate APPROVED: _____________________

Date

_____________________

Governor