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A BILL TO BE ENTITLED
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AN ACT
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relating to the regulation of certain long-term care facilities, |
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including facilities that provide care to persons with Alzheimer's |
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disease or related disorders; authorizing an administrative |
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penalty. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Sections 531.058(a) and (a-1), Government Code, |
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are amended to read as follows: |
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(a) The executive commissioner by rule shall establish an |
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informal dispute resolution process in accordance with this |
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section. The process must provide for adjudication by an |
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appropriate disinterested person of disputes relating to a proposed |
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enforcement action or related proceeding of the commission under |
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Section 32.021(d), Human Resources Code, or the Department of Aging |
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and Disability Services or its successor agency under Chapter 242, |
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247, or 252, Health and Safety Code. The informal dispute |
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resolution process must require: |
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(1) an institution or facility to request informal |
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dispute resolution not later than the 10th calendar day after |
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notification by the commission or department, as applicable, of the |
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violation of a standard or standards; and |
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(2) the commission to complete the process not later |
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than: |
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(A) the 30th calendar day after receipt of a |
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request from an institution or facility, other than an assisted |
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living facility, for informal dispute resolution; or |
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(B) the 90th calendar day after receipt of a |
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request from an assisted living facility for informal dispute |
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resolution. |
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(a-1) As part of the informal dispute resolution process |
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established under this section, the commission shall contract with |
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an appropriate disinterested person [who is a nonprofit
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organization] to adjudicate disputes between an institution or |
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facility licensed under Chapter 242 or 247, Health and Safety Code, |
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and the Department of Aging and Disability Services or its |
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successor agency concerning a statement of violations prepared by |
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the department in connection with a survey conducted by the |
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department of the institution or facility. Section 2009.053 does |
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not apply to the selection of an appropriate disinterested person |
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under this subsection. The person with whom the commission |
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contracts shall adjudicate all disputes described by this |
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subsection. |
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SECTION 2. Subchapter B, Chapter 531, Government Code, is |
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amended by adding Section 531.0585 to read as follows: |
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Sec. 531.0585. ISSUANCE OF MATERIALS TO CERTAIN LONG-TERM |
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CARE FACILITIES. The executive commissioner shall review the |
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commission's methods for issuing informational letters, policy |
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updates, policy clarifications, and other related materials to an |
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entity licensed under Chapter 103, Human Resources Code, or Chapter |
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242, 247, 248A, or 252, Health and Safety Code, and develop and |
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implement more efficient methods to issue those materials as |
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appropriate. |
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SECTION 3. Section 242.066, Health and Safety Code, is |
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amended by amending Subsections (a) and (e) and adding Subsection |
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(i) to read as follows: |
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(a) The commission [department] may assess an |
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administrative penalty against a person who: |
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(1) violates this chapter or a rule, standard, or |
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order adopted or license issued under this chapter; |
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(2) makes a false statement, that the person knows or |
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should know is false, of a material fact: |
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(A) on an application for issuance or renewal of |
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a license or in an attachment to the application; or |
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(B) with respect to a matter under investigation |
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by the commission [department]; |
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(3) refuses to allow a representative of the |
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commission [department] to inspect: |
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(A) a book, record, or file required to be |
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maintained by an institution; or |
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(B) any portion of the premises of an |
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institution; |
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(4) wilfully interferes with the work of a |
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representative of the commission [department] or the enforcement of |
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this chapter; |
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(5) wilfully interferes with a representative of the |
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commission [department] preserving evidence of a violation of this |
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chapter or a rule, standard, or order adopted or license issued |
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under this chapter; |
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(6) fails to pay a penalty assessed by the commission |
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[department] under this chapter not later than the 10th day after |
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the date the assessment of the penalty becomes final; or |
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(7) fails to notify the commission [department] of a |
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change of ownership before the effective date of the change of |
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ownership. |
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(e) In determining the amount of a penalty, the commission |
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[department] shall consider any matter that justice may require, |
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including: |
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(1) the gradations of penalties established under |
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Subsection (d); |
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(2) the seriousness of the violation, including the |
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nature, circumstances, extent, and gravity of the prohibited act |
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and the hazard or potential hazard created by the act to the health |
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or safety of the public; |
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(3) the history of previous violations; |
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(4) deterrence of future violations; and |
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(5) efforts to correct the violation. |
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(i) The commission shall develop and use a system to record |
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and track the scope and severity of each violation of this chapter |
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or a rule, standard, or order adopted under this chapter for the |
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purpose of assessing an administrative penalty for the violation or |
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|
taking some other enforcement action against the appropriate |
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institution to deter future violations. The system: |
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(1) must be comparable to the system used by the |
|
|
Centers for Medicare and Medicaid Services to categorize the scope |
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and severity of violations for nursing homes; and |
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(2) may be modified, as appropriate, to reflect |
|
|
changes in industry practice or changes made to the system used by |
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the Centers for Medicare and Medicaid Services. |
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SECTION 4. Section 242.0665, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 242.0665. RIGHT TO CORRECT. (a) The commission |
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[department] may not collect an administrative penalty against an |
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institution under this subchapter if, not later than the 45th day |
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after the date the institution receives notice under Section |
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242.067(c), the institution corrects the violation. |
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(b) Subsection (a) does not apply: |
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(1) to a violation that the commission [department] |
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determines: |
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(A) represents a pattern of violation that |
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results in actual [serious] harm [to or death of a resident]; |
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(B) is widespread in scope and results in actual |
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harm; |
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(C) is widespread in scope, constitutes a |
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potential for actual harm, and relates to: |
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(i) residents' rights; |
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(ii) treatment of residents; |
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(iii) resident behavior and institution |
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practices; |
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(iv) quality of care; |
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(v) medication errors; |
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(vi) standard menus and nutritional |
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adequacy; |
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(vii) physician visits; |
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(viii) infection control; |
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(ix) life safety from fire; or |
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(x) emergency preparedness and response; |
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(D) [(B)] constitutes an immediate [a serious] |
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threat to the health or safety of a resident; or |
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(E) [(C)] substantially limits the institution's |
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capacity to provide care; |
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(2) to a violation described by Sections |
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242.066(a)(2)-(7); |
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(3) to a violation of Section 260A.014 or 260A.015; |
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[or] |
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(4) to a violation of a right of a resident adopted |
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under Subchapter L; or |
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(5) to a second or subsequent violation of Section |
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326.002 that occurs before the second anniversary of the date of the |
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first violation. |
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(c) An institution that corrects a violation under |
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Subsection (a) must maintain the correction. If the institution |
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fails to maintain the correction until at least the first |
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anniversary of the date the correction was made, the commission |
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[department] may assess an administrative penalty under this |
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subchapter for the subsequent violation. A penalty assessed under |
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this subsection shall be equal to three times the amount of the |
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penalty assessed but not collected under Subsection (a). The |
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commission [department] is not required to provide the institution |
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an opportunity to correct the subsequent violation under this |
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section. |
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(d) In this section: |
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(1) "Actual harm" means a negative outcome that |
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|
compromises a resident's physical, mental, or emotional |
|
|
well-being. |
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(2) "Immediate threat to the health or safety of a |
|
|
resident" means a situation that causes, or is likely to cause, |
|
|
serious injury, harm, or impairment to or the death of a resident. |
|
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(3) "Pattern of violation" means repeated, but not |
|
|
pervasive, failures of an institution to comply with this chapter |
|
|
or a rule, standard, or order adopted under this chapter that: |
|
|
(A) result in a violation; and |
|
|
(B) are found throughout the services provided by |
|
|
the institution or that affect or involve the same residents or |
|
|
institution employees. |
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(4) "Widespread in scope" means a violation of this |
|
|
chapter or a rule, standard, or order adopted under this chapter |
|
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that: |
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(A) is pervasive throughout the services |
|
|
provided by the institution; or |
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(B) represents a systemic failure by the |
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institution that affects or has the potential to affect a large |
|
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portion of or all of the residents of the institution. |
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SECTION 5. Section 247.023, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 247.023. ISSUANCE AND RENEWAL OF LICENSE. (a) The |
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commission [department] shall issue a license if, after inspection |
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and investigation, it finds that the applicant, the assisted living |
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facility, and all controlling persons with respect to the applicant |
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or facility meet the requirements of this chapter and the standards |
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adopted under this chapter. The license expires on the third |
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[second] anniversary of the date of its issuance. The executive |
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commissioner by rule shall [may] adopt a system under which |
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licenses expire on staggered [various] dates during each three-year |
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[the two-year] period. The commission shall prorate the license |
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fee as appropriate if the expiration date of a license changes as a |
|
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result of this subsection [For the year in which a license
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expiration date is changed, the department shall prorate the
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license fee on a monthly basis.
Each license holder shall pay only
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that portion of the license fee allocable to the number of months
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during which the license is valid.
A license holder shall pay the
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total license renewal fee at the time of renewal]. |
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(b) To renew a license, the license holder must submit to |
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the commission [department] the license renewal fee. |
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(c) The commission [department] may require participation |
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in a continuing education program as a condition of renewal of a |
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license. The executive commissioner shall adopt rules to implement |
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this subsection. |
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SECTION 6. Sections 247.024(a), (d), and (e), Health and |
|
|
Safety Code, are amended to read as follows: |
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(a) The executive commissioner by rule shall set license |
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fees imposed by this chapter: |
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(1) on the basis of the number of beds in assisted |
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living facilities required to pay the fee; and |
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(2) in amounts reasonable and necessary to defray the |
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cost of administering this chapter, but not to exceed $2,250 |
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[$1,500]. |
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(d) Investigation fees or attorney's fees may not be |
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assessed against or collected from an assisted living facility by |
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or on behalf of the commission [department] or another state agency |
|
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unless the commission [department] or other state agency assesses |
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and collects a penalty authorized by this chapter from the |
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facility. |
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(e) An applicant who submits a license renewal later than |
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the 45th day before the expiration date of a current license is |
|
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subject to a late fee in accordance with commission [department] |
|
|
rules. |
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SECTION 7. Section 247.027, Health and Safety Code, is |
|
|
amended to read as follows: |
|
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Sec. 247.027. INSPECTIONS. (a) In addition to the |
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|
inspection required under Section 247.023(a), the commission: |
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(1) shall [department may] inspect each [an] assisted |
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living facility at least every two years following the initial |
|
|
inspection required under Section 247.023(a); [annually] and |
|
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(2) may inspect a facility at other reasonable times |
|
|
as necessary to assure compliance with this chapter. |
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(b) The commission [department] shall establish an |
|
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inspection checklist based on the minimum standards that describes |
|
|
the matters subject to inspection. The commission [department] |
|
|
shall use the inspection checklist in conducting inspections under |
|
|
this section and Section 247.023(a). |
|
|
SECTION 8. Section 247.0451, Health and Safety Code, is |
|
|
amended by amending Subsections (a), (b), (d), and (f) and adding |
|
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Subsections (g) and (h) to read as follows: |
|
|
(a) The commission [department] may assess an |
|
|
administrative penalty against a person who: |
|
|
(1) violates this chapter or a rule, standard, or |
|
|
order adopted under this chapter or a term of a license issued under |
|
|
this chapter; |
|
|
(2) makes a false statement, that the person knows or |
|
|
should know is false, of a material fact: |
|
|
(A) on an application for issuance or renewal of |
|
|
a license or in an attachment to the application; or |
|
|
(B) with respect to a matter under investigation |
|
|
by the commission [department]; |
|
|
(3) refuses to allow a representative of the |
|
|
commission [department] to inspect: |
|
|
(A) a book, record, or file required to be |
|
|
maintained by an assisted living facility; or |
|
|
(B) any portion of the premises of an assisted |
|
|
living facility; |
|
|
(4) wilfully interferes with the work of a |
|
|
representative of the commission [department] or the enforcement of |
|
|
this chapter; |
|
|
(5) wilfully interferes with a representative of the |
|
|
commission [department] preserving evidence of a violation of this |
|
|
chapter or a rule, standard, or order adopted under this chapter or |
|
|
a term of a license issued under this chapter; |
|
|
(6) fails to pay a penalty assessed under this chapter |
|
|
not later than the 30th day after the date the assessment of the |
|
|
penalty becomes final; or |
|
|
(7) fails to notify the commission [department] of a |
|
|
change of ownership before the effective date of the change of |
|
|
ownership. |
|
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(b) Except as provided by Section 247.0452(c), the penalty |
|
|
may not exceed: |
|
|
(1) $5,000 for each violation that: |
|
|
(A) represents a pattern of violation that |
|
|
results in actual harm or is widespread in scope and results in |
|
|
actual harm; or |
|
|
(B) constitutes an immediate threat to the health |
|
|
or safety of a resident; or |
|
|
(2) $1,000 for each other violation. |
|
|
(d) In determining the amount of a penalty, the commission |
|
|
[department] shall consider any matter that justice may require, |
|
|
but must consider each of the following and make a record of the |
|
|
extent to which each of the following was considered: |
|
|
(1) the gradations of penalties established under |
|
|
Subsection (c); |
|
|
(2) the seriousness of the violation, including the |
|
|
nature, circumstances, extent, and gravity of the prohibited act |
|
|
and the hazard or potential hazard created by the act to the health |
|
|
or safety of the public; |
|
|
(3) the history of previous violations; |
|
|
(4) deterrence of future violations; |
|
|
(5) efforts to correct the violation; and |
|
|
(6) the size of the facility and of the business entity |
|
|
that owns the facility. |
|
|
(f) The commission [department] may not assess a penalty |
|
|
under this section against a resident of an assisted living |
|
|
facility unless the resident is also an employee of the facility or |
|
|
a controlling person. |
|
|
(g) The commission shall develop and use a system to record |
|
|
and track the scope and severity of each violation of this chapter |
|
|
or a rule, standard, or order adopted under this chapter for the |
|
|
purpose of assessing an administrative penalty for the violation or |
|
|
taking some other enforcement action against the appropriate |
|
|
assisted living facility to deter future violations. The system: |
|
|
(1) must be comparable to the system used by the |
|
|
Centers for Medicare and Medicaid Services to categorize the scope |
|
|
and severity of violations for nursing homes; and |
|
|
(2) may be modified, as appropriate, to reflect |
|
|
changes in industry practice or changes made to the system used by |
|
|
the Centers for Medicare and Medicaid Services. |
|
|
(h) In this section, "actual harm," "immediate threat to the |
|
|
health or safety of a resident," "pattern of violation," and |
|
|
"widespread in scope" have the meanings assigned by Section |
|
|
247.0452. |
|
|
SECTION 9. Section 247.0452, Health and Safety Code, is |
|
|
amended to read as follows: |
|
|
Sec. 247.0452. RIGHT TO CORRECT. (a) The commission |
|
|
[department] may not collect an administrative penalty from an |
|
|
assisted living facility under Section 247.0451 if, not later than |
|
|
the 45th day after the date the facility receives notice under |
|
|
Section 247.0453(c), the facility corrects the violation. |
|
|
(b) Subsection (a) does not apply: |
|
|
(1) to a violation that the commission [department] |
|
|
determines represents a pattern of violation that results in actual |
|
|
[serious] harm [to or death of a resident]; |
|
|
(2) to a violation that the commission determines is |
|
|
widespread in scope and results in actual harm; |
|
|
(3) to a violation that the commission determines is |
|
|
widespread in scope, constitutes a potential for actual harm, and |
|
|
relates to: |
|
|
(A) resident assessment; |
|
|
(B) staffing, including staff training; |
|
|
(C) administration of medication; |
|
|
(D) infection control; |
|
|
(E) restraints; or |
|
|
(F) emergency preparedness and response; |
|
|
(4) to a violation that the commission determines |
|
|
constitutes an immediate threat to the health or safety of a |
|
|
resident; |
|
|
(5) [(2)] to a violation described by Sections |
|
|
247.0451(a)(2)-(7) or a violation of Section 260A.014 or 260A.015; |
|
|
(6) [(3)] to a second or subsequent violation of: |
|
|
(A) a right of the same resident under Section |
|
|
247.064; or |
|
|
(B) the same right of all residents under Section |
|
|
247.064; [or] |
|
|
(7) [(4)] to a violation described by Section 247.066, |
|
|
which contains its own right to correct provisions; or |
|
|
(8) to a second or subsequent violation of Section |
|
|
326.002 that occurs before the second anniversary of the date of the |
|
|
first violation. |
|
|
(c) An assisted living facility that corrects a violation |
|
|
must maintain the correction. If the facility fails to maintain the |
|
|
correction until at least the first anniversary of the date the |
|
|
correction was made, the commission [department] may assess and |
|
|
collect an administrative penalty for the subsequent violation. An |
|
|
administrative penalty assessed under this subsection is equal to |
|
|
three times the amount of the original penalty assessed but not |
|
|
collected. The commission [department] is not required to provide |
|
|
the facility with an opportunity under this section to correct the |
|
|
subsequent violation. |
|
|
(d) In this section: |
|
|
(1) "Actual harm" means a negative outcome that |
|
|
compromises a resident's physical, mental, or emotional |
|
|
well-being. |
|
|
(2) "Immediate threat to the health or safety of a |
|
|
resident" means a situation that causes, or is likely to cause, |
|
|
serious injury, harm, or impairment to or the death of a resident. |
|
|
(3) "Pattern of violation" means repeated, but not |
|
|
pervasive, failures of an assisted living facility to comply with |
|
|
this chapter or a rule, standard, or order adopted under this |
|
|
chapter that: |
|
|
(A) result in a violation; and |
|
|
(B) are found throughout the services provided by |
|
|
the facility or that affect or involve the same residents or |
|
|
facility employees. |
|
|
(4) "Widespread in scope" means a violation of this |
|
|
chapter or a rule, standard, or order adopted under this chapter |
|
|
that: |
|
|
(A) is pervasive throughout the services |
|
|
provided by the assisted living facility; or |
|
|
(B) represents a systemic failure by the assisted |
|
|
living facility that affects or has the potential to affect a large |
|
|
portion of or all of the residents of the facility. |
|
|
SECTION 10. Section 248A.053, Health and Safety Code, is |
|
|
amended to read as follows: |
|
|
Sec. 248A.053. INITIAL OR RENEWAL LICENSE TERM; RENEWAL; |
|
|
NOTIFICATION. (a) An initial or renewal license issued under this |
|
|
chapter expires on the third [second] anniversary of the date of |
|
|
issuance. The executive commissioner by rule shall adopt a system |
|
|
under which licenses expire on staggered dates during each |
|
|
three-year period. The commission shall prorate the license fee as |
|
|
appropriate if the expiration date of a license changes as a result |
|
|
of this subsection. |
|
|
(b) A person applying to renew a center license shall: |
|
|
(1) submit a renewal application to the commission |
|
|
[department] on a [the form] prescribed form [by the department] at |
|
|
least 60 days but not more than 120 days before expiration of the |
|
|
license; |
|
|
(2) submit the renewal fee in the amount required by |
|
|
agency [department] rule; and |
|
|
(3) comply with any other requirements specified by |
|
|
agency [department] rule. |
|
|
(c) The commission [department] shall assess a $50 per day |
|
|
late fee to a license holder who submits a renewal application after |
|
|
the date required by Subsection (b)(1), except that the total |
|
|
amount of a late fee may not exceed the lesser of 50 percent of the |
|
|
license renewal fee or $500. |
|
|
(d) At least 120 days before expiration of a center license, |
|
|
the commission [department] shall notify the owner or operator of |
|
|
the center of the license expiration. |
|
|
SECTION 11. Subchapter F, Chapter 248A, Health and Safety |
|
|
Code, is amended by adding Section 248A.2515 to read as follows: |
|
|
Sec. 248A.2515. SYSTEM FOR ASSESSMENT OF PENALTY. The |
|
|
commission shall develop and use a system to record and track the |
|
|
scope and severity of each violation of this chapter or a rule or |
|
|
standard adopted or order issued under this chapter for the purpose |
|
|
of assessing an administrative penalty for the violation or taking |
|
|
some other enforcement action against the appropriate center to |
|
|
deter future violations. The system: |
|
|
(1) must be comparable to the system used by the |
|
|
Centers for Medicare and Medicaid Services to categorize the scope |
|
|
and severity of violations for nursing homes; and |
|
|
(2) may be modified, as appropriate, to reflect |
|
|
changes in industry practice or changes made to the system used by |
|
|
the Centers for Medicare and Medicaid Services. |
|
|
SECTION 12. Sections 252.033(a), (b), (d), (f), and (h), |
|
|
Health and Safety Code, are amended to read as follows: |
|
|
(a) After receiving the application, the commission |
|
|
[department] shall issue a license if, after inspection and |
|
|
investigation, it finds that the applicant and facility meet the |
|
|
requirements established under this chapter. |
|
|
(b) The commission [department] may issue a license only |
|
|
for: |
|
|
(1) the premises and persons or governmental unit |
|
|
named in the application; and |
|
|
(2) the maximum number of beds specified in the |
|
|
application. |
|
|
(d) A license is renewable on the third [second] anniversary |
|
|
of issuance or renewal of the license after: |
|
|
(1) an inspection; |
|
|
(2) filing and approval of a renewal report; and |
|
|
(3) payment of the renewal fee. |
|
|
(f) The commission [department] may not issue a license for |
|
|
new beds or an expansion of an existing facility under this chapter |
|
|
unless the addition of new beds or the expansion is included in the |
|
|
plan approved by the commission in accordance with Section |
|
|
533A.062. |
|
|
(h) The executive commissioner by rule shall: |
|
|
(1) define specific, appropriate, and objective |
|
|
criteria on which the commission [department] may deny an initial |
|
|
license application or license renewal or revoke a license; and |
|
|
(2) adopt a system under which: |
|
|
(A) licenses expire on staggered dates during |
|
|
each three-year period; and |
|
|
(B) the commission prorates the license fee as |
|
|
appropriate if the expiration date of a license changes as a result |
|
|
of the system adopted under Paragraph (A). |
|
|
SECTION 13. Sections 252.034(a), (e), and (f), Health and |
|
|
Safety Code, are amended to read as follows: |
|
|
(a) The executive commissioner by rule may adopt a fee for a |
|
|
license issued under this chapter. The fee may not exceed $225 |
|
|
[$150] plus $7.50 [$5] for each unit of capacity or bed space for |
|
|
which the license is sought. |
|
|
(e) All license fees collected under this section shall be |
|
|
deposited in the state treasury to the credit of the commission |
|
|
[department] and may be appropriated to the commission [department] |
|
|
to administer and enforce this chapter. |
|
|
(f) An applicant who submits an application for license |
|
|
renewal later than the 45th day before the expiration date of a |
|
|
current license is subject to a late fee in accordance with |
|
|
commission [department] rules. |
|
|
SECTION 14. Section 252.041, Health and Safety Code, is |
|
|
amended to read as follows: |
|
|
Sec. 252.041. UNANNOUNCED INSPECTIONS. (a) Each |
|
|
licensing period, the commission [department] shall conduct at |
|
|
least three [two] unannounced inspections of each facility. |
|
|
(b) In order to ensure continuous compliance, the |
|
|
commission [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 commission [department] may require additional |
|
|
inspections. |
|
|
(d) As considered appropriate and necessary by the |
|
|
commission [department], the commission [department] may invite at |
|
|
least one person as a citizen advocate to participate in |
|
|
inspections. The invited advocate must be an individual who has an |
|
|
interest in or who is employed by or affiliated with an organization |
|
|
or entity that represents, advocates for, or serves individuals |
|
|
with an intellectual disability or a related condition. |
|
|
SECTION 15. Section 252.065, Health and Safety Code, is |
|
|
amended by amending Subsections (a), (b), (e), (f), (i), and (j) and |
|
|
adding Subsections (l) and (m) to read as follows: |
|
|
(a) The commission [department] may assess an |
|
|
administrative penalty against a person who: |
|
|
(1) violates this chapter or a rule, standard, or |
|
|
order adopted or license issued under this chapter; |
|
|
(2) makes a false statement, that the person knows or |
|
|
should know is false, of a material fact: |
|
|
(A) on an application for issuance or renewal of |
|
|
a license or in an attachment to the application; or |
|
|
(B) with respect to a matter under investigation |
|
|
by the commission [department]; |
|
|
(3) refuses to allow a representative of the |
|
|
commission [department] to inspect: |
|
|
(A) a book, record, or file required to be |
|
|
maintained by the institution; or |
|
|
(B) any portion of the premises of an |
|
|
institution; |
|
|
(4) wilfully interferes with the work of a |
|
|
representative of the commission [department] or the enforcement of |
|
|
this chapter; |
|
|
(5) wilfully interferes with a representative of the |
|
|
commission [department] preserving evidence of a violation of this |
|
|
chapter or a rule, standard, or order adopted or license issued |
|
|
under this chapter; |
|
|
(6) fails to pay a penalty assessed by the commission |
|
|
[department] under this chapter not later than the 10th day after |
|
|
the date the assessment of the penalty becomes final; |
|
|
(7) fails to submit a plan of correction within 10 days |
|
|
after receiving a statement of licensing violations; or |
|
|
(8) fails to notify the commission [department] of a |
|
|
change in ownership before the effective date of that change of |
|
|
ownership. |
|
|
(b) The penalty for a facility with fewer than 60 beds shall |
|
|
be not less than $100 or more than $1,000 for each violation. The |
|
|
penalty for a facility with 60 beds or more shall be not less than |
|
|
$100 or more than $5,000 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 for a
|
|
|
facility with fewer than 60 beds or $25,000 for a facility with 60
|
|
|
beds or more.] Each day a violation occurs or continues is a |
|
|
separate violation for purposes of imposing a penalty. |
|
|
(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 the commission [department] may assess an administrative |
|
|
penalty if a plan of correction has been implemented. This |
|
|
subsection does not apply to a violation described by Subsections |
|
|
(a)(2)-(8) or to a violation that the commission [department] |
|
|
determines: |
|
|
(1) represents a pattern of violation that results |
|
|
[has resulted] in actual [serious] harm [to or the death of a
|
|
|
resident]; |
|
|
(2) is widespread in scope and results in actual harm; |
|
|
(3) is widespread in scope, constitutes a potential |
|
|
for actual harm, and relates to: |
|
|
(A) staff treatment of a resident; |
|
|
(B) active treatment; |
|
|
(C) client behavior and facility practices; |
|
|
(D) health care services; |
|
|
(E) drug administration; |
|
|
(F) infection control; |
|
|
(G) food and nutrition services; or |
|
|
(H) emergency preparedness and response; |
|
|
(4) [(2)] constitutes an immediate [a serious] threat |
|
|
to the health or safety of a resident; or |
|
|
(5) [(3)] substantially limits the facility's |
|
|
[institution's] capacity to provide care. |
|
|
(f) The commission [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. |
|
|
(i) The commission [department] may not assess an |
|
|
administrative penalty against a state agency. |
|
|
(j) 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 commission [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. |
|
|
(l) The commission shall develop and use a system to record |
|
|
and track the scope and severity of each violation of this chapter |
|
|
or a rule, standard, or order adopted under this chapter for the |
|
|
purpose of assessing an administrative penalty for the violation or |
|
|
taking some other enforcement action against the appropriate |
|
|
facility to deter future violations. The system: |
|
|
(1) must be comparable to the system used by the |
|
|
Centers for Medicare and Medicaid Services to categorize the scope |
|
|
and severity of violations for nursing homes; and |
|
|
(2) may be modified, as appropriate, to reflect |
|
|
changes in industry practice or changes made to the system used by |
|
|
the Centers for Medicare and Medicaid Services. |
|
|
(m) In this section: |
|
|
(1) "Actual harm" means a negative outcome that |
|
|
compromises a resident's physical, mental, or emotional |
|
|
well-being. |
|
|
(2) "Immediate threat to the health or safety of a |
|
|
resident" means a situation that causes, or is likely to cause, |
|
|
serious injury, harm, or impairment to or the death of a resident. |
|
|
(3) "Pattern of violation" means repeated, but not |
|
|
pervasive, failures of a facility to comply with this chapter or a |
|
|
rule, standard, or order adopted under this chapter that: |
|
|
(A) result in a violation; and |
|
|
(B) are found throughout the services provided by |
|
|
the facility or that affect or involve the same residents or |
|
|
facility employees. |
|
|
(4) "Widespread in scope" means a violation of this |
|
|
chapter or a rule, standard, or order adopted under this chapter |
|
|
that: |
|
|
(A) is pervasive throughout the services |
|
|
provided by the facility; or |
|
|
(B) that affects or has the potential to affect a |
|
|
large portion of or all of the residents of the facility. |
|
|
SECTION 16. Subtitle G, Title 4, Health and Safety Code, is |
|
|
amended by adding Chapter 326 to read as follows: |
|
|
CHAPTER 326. STAFFING REQUIREMENTS FOR FACILITIES PROVIDING CARE TO |
|
|
PERSONS WITH ALZHEIMER'S DISEASE OR RELATED DISORDERS |
|
|
Sec. 326.001. DEFINITIONS. In this chapter: |
|
|
(1) "Commission" means the Health and Human Services |
|
|
Commission. |
|
|
(2) "Facility" means: |
|
|
(A) a nursing facility licensed under Chapter |
|
|
242; |
|
|
(B) a continuing care facility regulated under |
|
|
Chapter 246; |
|
|
(C) an assisted living facility licensed under |
|
|
Chapter 247; |
|
|
(D) a day activity and health services facility |
|
|
licensed under Chapter 103, Human Resources Code; |
|
|
(E) an establishment subject to Chapter 105, |
|
|
Human Resources Code; |
|
|
(F) a community home qualified under Chapter 123, |
|
|
Human Resources Code; and |
|
|
(G) an adult foster care provider that contracts |
|
|
with the commission. |
|
|
Sec. 326.002. WRITTEN POLICY REQUIRED. A facility shall |
|
|
adopt, implement, and enforce a written policy that: |
|
|
(1) requires a facility employee who provides direct |
|
|
care to a person with Alzheimer's disease or a related disorder to |
|
|
successfully complete training in the provision of care to persons |
|
|
with Alzheimer's disease and related disorders; and |
|
|
(2) ensures the care and services provided by a |
|
|
facility employee to a person with Alzheimer's disease or a related |
|
|
disorder meet the specific identified needs of the person relating |
|
|
to the person's diagnosis of Alzheimer's disease or a related |
|
|
disorder. |
|
|
Sec. 326.003. ENFORCEMENT. (a) The commission may assess |
|
|
an administrative penalty against a facility for a violation of |
|
|
Section 326.002. |
|
|
(b) The commission is not required to provide a facility an |
|
|
opportunity to correct a second or subsequent violation of Section |
|
|
326.002 that occurs before the second anniversary of the date of the |
|
|
first violation. |
|
|
(c) A violation of Section 326.002 constitutes a violation |
|
|
of the law regulating a facility, and the commission may initiate |
|
|
for the violation any other enforcement action authorized by that |
|
|
law against the facility, including an adult foster care facility |
|
|
with three or fewer beds. |
|
|
Sec. 326.004. RULES. The executive commissioner shall |
|
|
adopt rules related to the administration and implementation of |
|
|
this chapter. |
|
|
SECTION 17. Section 103.003, Human Resources Code, is |
|
|
amended by amending Subdivision (1) and adding Subdivisions (1-a) |
|
|
and (4-b) to read as follows: |
|
|
(1) "Commission" means the Health and Human Services |
|
|
Commission. |
|
|
(1-a) "Day activity and health services facility" |
|
|
means a facility that provides services under a day activity and |
|
|
health services program on a daily or regular basis but not |
|
|
overnight to four or more elderly persons or persons with |
|
|
disabilities who are not related by blood, marriage, or adoption to |
|
|
the owner of the facility. |
|
|
(4-b) "Facility" means a day activity and health |
|
|
services facility. |
|
|
SECTION 18. Sections 103.006(a) and (b), Human Resources |
|
|
Code, are amended to read as follows: |
|
|
(a) The commission [department] shall issue a license to |
|
|
operate a day activity and health services facility to a person who |
|
|
has met the application requirements and received approval after an |
|
|
on-site inspection. |
|
|
(b) The license expires three [two] years from the date of |
|
|
its issuance. The executive commissioner by rule shall [may] adopt |
|
|
a system under which licenses expire on staggered [various] dates |
|
|
during the three-year [two-year] period. The commission shall |
|
|
prorate the license fee as appropriate if the expiration date of a |
|
|
license changes as a result of this subsection [For the year in
|
|
|
which a license expiration date is changed, the department shall
|
|
|
prorate the license fee on a monthly basis. Each license holder
|
|
|
shall pay only that portion of the license fee allocable to the
|
|
|
number of months for which the license is valid. A license holder
|
|
|
shall pay the total license renewal fee at the time of renewal]. |
|
|
SECTION 19. Section 103.007, Human Resources Code, is |
|
|
amended to read as follows: |
|
|
Sec. 103.007. LICENSE APPLICATION. (a) An applicant for a |
|
|
license to operate a day activity and health services facility must |
|
|
file an application on a form prescribed by the commission |
|
|
[department] together with a license fee of $75 [$50]. |
|
|
(b) The applicant must provide evidence of: |
|
|
(1) the ability to comply with the requirements of the |
|
|
commission [department]; |
|
|
(2) responsible management; and |
|
|
(3) qualified professional staff and personnel. |
|
|
(c) A person who operates a facility that is licensed under |
|
|
this chapter must file an application for a renewal license not |
|
|
later than the 45th day before the expiration date of the current |
|
|
license on a form prescribed by the commission [department] |
|
|
together with a renewal fee of $50. |
|
|
(d) An applicant for a license renewal who submits an |
|
|
application later than the 45th day before the expiration date of |
|
|
the license is subject to a late fee in accordance with commission |
|
|
[department] rules. |
|
|
SECTION 20. Section 103.008, Human Resources Code, is |
|
|
amended to read as follows: |
|
|
Sec. 103.008. INSPECTIONS. (a) In addition to the |
|
|
inspection required under Section 103.006(a), the commission: |
|
|
(1) shall inspect each facility every two years |
|
|
following the initial inspection required under Section |
|
|
103.006(a); and |
|
|
(2) [The department] may inspect [enter the premises
|
|
|
of] a facility at other reasonable times as [and make an inspection] |
|
|
necessary to ensure compliance with this chapter [issue a license
|
|
|
or renew a license]. |
|
|
(b) Any person may request an inspection of a facility by |
|
|
notifying the commission [department] in writing of an alleged |
|
|
violation of a licensing requirement. The complaint shall be as |
|
|
detailed as possible and signed by the complainant. The commission |
|
|
[department] shall perform an on-site inspection as soon as |
|
|
feasible but no later than 30 days after receiving the complaint |
|
|
unless after an investigation the complaint is found to be |
|
|
frivolous. The commission [department] shall respond to a |
|
|
complainant in writing. The commission [department] shall also |
|
|
receive and investigate anonymous complaints. |
|
|
SECTION 21. Section 103.012, Human Resources Code, is |
|
|
amended by amending Subsections (a) and (e) and adding Subsection |
|
|
(g) to read as follows: |
|
|
(a) The commission [department] may assess an |
|
|
administrative penalty against a person who: |
|
|
(1) violates this chapter, a rule, standard, or order |
|
|
adopted under this chapter, or a term of a license issued under this |
|
|
chapter; |
|
|
(2) makes a false statement of a material fact that the |
|
|
person knows or should know is false: |
|
|
(A) on an application for issuance or renewal of |
|
|
a license or in an attachment to the application; or |
|
|
(B) with respect to a matter under investigation |
|
|
by the commission [department]; |
|
|
(3) refuses to allow a representative of the |
|
|
commission [department] to inspect: |
|
|
(A) a book, record, or file required to be |
|
|
maintained by a day activity and health services facility; or |
|
|
(B) any portion of the premises of a day activity |
|
|
and health services facility; |
|
|
(4) wilfully interferes with the work of a |
|
|
representative of the commission [department] or the enforcement of |
|
|
this chapter; |
|
|
(5) wilfully interferes with a representative of the |
|
|
commission [department] preserving evidence of a violation of this |
|
|
chapter, a rule, standard, or order adopted under this chapter, or a |
|
|
term of a license issued under this chapter; |
|
|
(6) fails to pay a penalty assessed under this chapter |
|
|
not later than the 30th day after the date the assessment of the |
|
|
penalty becomes final; or |
|
|
(7) fails to notify the commission [department] of a |
|
|
change of ownership before the effective date of the change of |
|
|
ownership. |
|
|
(e) In determining the amount of a penalty, the commission |
|
|
[department] shall consider any matter that justice may require, |
|
|
including: |
|
|
(1) the gradations of penalties established under |
|
|
Subsection (d); |
|
|
(2) the seriousness of the violation, including the |
|
|
nature, circumstances, extent, and gravity of the prohibited act |
|
|
and the hazard or potential hazard created by the act to the health |
|
|
or safety of the public; |
|
|
(3) the history of previous violations; |
|
|
(4) the deterrence of future violations; and |
|
|
(5) the efforts to correct the violation. |
|
|
(g) The commission shall develop and use a system to record |
|
|
and track the scope and severity of each violation of this chapter |
|
|
or a rule, standard, or order adopted under this chapter for the |
|
|
purpose of assessing an administrative penalty for the violation or |
|
|
taking some other enforcement action against the appropriate |
|
|
facility to deter future violations. The system: |
|
|
(1) must be comparable to the system used by the |
|
|
Centers for Medicare and Medicaid Services to categorize the scope |
|
|
and severity of violations for nursing homes; and |
|
|
(2) may be modified, as appropriate, to reflect |
|
|
changes in industry practice or changes made to the system used by |
|
|
the Centers for Medicare and Medicaid Services. |
|
|
SECTION 22. Section 103.013, Human Resources Code, is |
|
|
amended to read as follows: |
|
|
Sec. 103.013. RIGHT TO CORRECT BEFORE IMPOSITION OF |
|
|
ADMINISTRATIVE PENALTY. (a) The commission [department] may not |
|
|
collect an administrative penalty from a day activity and health |
|
|
services facility under Section 103.012 if, not later than the 45th |
|
|
day after the date the facility receives notice under Section |
|
|
103.014(c), the facility corrects the violation. |
|
|
(b) Subsection (a) does not apply to: |
|
|
(1) a violation that the commission [department] |
|
|
determines: |
|
|
(A) represents a pattern of violation that |
|
|
results in actual [serious] harm [to or death of a person attending
|
|
|
the facility]; |
|
|
(B) is widespread in scope and results in actual |
|
|
harm; |
|
|
(C) is widespread in scope, constitutes a |
|
|
potential for actual harm, and relates to: |
|
|
(i) staffing, including staff training, |
|
|
ratio, and health; |
|
|
(ii) administration of medication; or |
|
|
(iii) emergency preparedness and response; |
|
|
(D) [(B)] constitutes an immediate [a serious] |
|
|
threat to the health or [and] safety of an elderly person or a |
|
|
person with a disability receiving services at a [a person
|
|
|
attending the] facility; or |
|
|
(E) [(C)] substantially limits the facility's |
|
|
capacity to provide care; |
|
|
(2) a violation described by Sections |
|
|
103.012(a)(2)-(7); [or] |
|
|
(3) a violation of Section 103.011; or |
|
|
(4) a second or subsequent violation of Section |
|
|
326.002, Health and Safety Code, that occurs before the second |
|
|
anniversary of the date of the first violation. |
|
|
(c) A day activity and health services facility that |
|
|
corrects a violation must maintain the correction. If the facility |
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|
fails to maintain the correction until at least the first |
|
|
anniversary after the date the correction was made, the commission |
|
|
[department] may assess and collect an administrative penalty for |
|
|
the subsequent violation. An administrative penalty assessed under |
|
|
this subsection is equal to three times the amount of the original |
|
|
penalty assessed but not collected. The commission [department] is |
|
|
not required to provide the facility with an opportunity under this |
|
|
section to correct the subsequent violation. |
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|
(d) In this section: |
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|
(1) "Actual harm" means a negative outcome that |
|
|
compromises the physical, mental, or emotional well-being of an |
|
|
elderly person or a person with a disability receiving services at a |
|
|
facility. |
|
|
(2) "Immediate threat to the health or safety of an |
|
|
elderly person or a person with a disability" means a situation that |
|
|
causes, or is likely to cause, serious injury, harm, or impairment |
|
|
to or the death of an elderly person or a person with a disability |
|
|
receiving services at a facility. |
|
|
(3) "Pattern of violation" means repeated, but not |
|
|
pervasive, failures of a facility to comply with this chapter or a |
|
|
rule, standard, or order adopted under this chapter that: |
|
|
(A) result in a violation; and |
|
|
(B) are found throughout the services provided by |
|
|
the facility or that affect or involve the same elderly persons or |
|
|
persons with disabilities receiving services at the facility or the |
|
|
same facility employees. |
|
|
(4) "Widespread in scope" means a violation of this |
|
|
chapter or a rule, standard, or order adopted under this chapter |
|
|
that: |
|
|
(A) is pervasive throughout the services |
|
|
provided by the facility; or |
|
|
(B) represents a systemic failure by the facility |
|
|
that affects or has the potential to affect a large portion of or |
|
|
all of the elderly persons or persons with disabilities receiving |
|
|
services at the facility. |
|
|
SECTION 23. Section 247.0025, Health and Safety Code, is |
|
|
repealed. |
|
|
SECTION 24. The changes in law made by this Act apply only |
|
|
to actions taken by the Health and Human Services Commission and |
|
|
license holders under Chapter 103, Human Resources Code, and |
|
|
Chapters 242, 247, 248A, and 252, Health and Safety Code, on or |
|
|
after the effective date of this Act. An action taken before the |
|
|
effective date of this Act is governed by the law in effect at that |
|
|
time, and the former law is continued in effect for that purpose. |
|
|
SECTION 25. Chapter 326, Health and Safety Code, as added by |
|
|
this Act, does not affect the terms of a contract entered into |
|
|
before the effective date of this Act, except that if the contract |
|
|
is renewed, modified, or extended on or after the effective date of |
|
|
this Act, Chapter 326 applies to the contract beginning on the date |
|
|
of renewal, modification, or extension. |
|
|
SECTION 26. This Act takes effect September 1, 2017. |
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|
|
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|
* * * * * |