82R20654 ALB-F
 
  By: Truitt H.B. No. 2109
 
  Substitute the following for H.B. No. 2109:
 
  By:  Laubenberg C.S.H.B. No. 2109
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to agency action concerning assisted living facilities,
  including regulation of inappropriate placement of residents at
  facilities.
         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.