81R1626 UM-F
By: Menendez H.B. No. 216
A BILL TO BE ENTITLED
AN ACT
relating to licensing and regulation of certain facilities
providing personal care to elderly or disabled persons; 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. GROUP HOME FACILITIES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 254.001. DEFINITIONS. In this chapter:
(1) "Department" means the Department of Aging and
Disability Services.
(2) "Designee" means a state agency or entity with
which the department contracts to perform specific, identified
duties related to the fulfillment of a responsibility prescribed by
this chapter.
(3) "Disabled person" has the meaning assigned by
Section 48.002, Human Resources Code.
(4) "Elderly person" has the meaning assigned by
Section 48.002, Human Resources Code.
(5) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(6) "Facility" means an establishment that provides
services, including community meals, light housework, meal
preparation, transportation, grocery shopping, money management,
or laundry services to three or more elderly persons or disabled
persons residing in the facility who are unrelated to the owner or
proprietor of the establishment and that is not required to be
licensed under Chapter 142, 242, 246, 247, or 252.
(7) "Governmental unit" means the state or a political
subdivision of the state, including a county or municipality.
(8) "Person" means an individual, firm, partnership,
corporation, association, or joint stock company and includes a
legal successor of those entities.
(9) "Resident" means an individual who is residing in
a facility licensed under this chapter.
Sec. 254.002. RIGHTS OF RESIDENTS. Each facility shall
implement and enforce Chapter 102, Human Resources Code.
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) Whenever
possible, the department shall:
(1) use the services of and consult with state and
local agencies in carrying out the department's functions under
this chapter; and
(2) use the facilities of the department or a designee
of the department, particularly in establishing and maintaining
standards relating to the humane treatment of residents.
(b) 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.
(c) 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 decides to supplement the state program with additional
rules required to meet local conditions.
Sec. 254.005. PROHIBITION OF REMUNERATION. (a) A facility
may not receive monetary or other remuneration from a person or
agency that furnishes services or materials to the facility or
residents for a fee.
(b) The department may revoke the license of a facility that
violates Subsection (a).
Sec. 254.006. REPORT OF REFERRALS TO DEPARTMENT. (a) A
state agency, political subdivision, or a public or private
provider of health care services shall report to the department the
referral of an elderly person or disabled person to a facility.
(b) A state agency, political subdivision, or a public or
private provider of health care services or behavioral health care
services may not refer an elderly person or disabled person to a
facility that is not licensed by the state as provided by this
chapter or licensed under other state law.
Sec. 254.007. ELDERLY AND DISABLED PERSONS ACCOUNT. (a)
The elderly and disabled persons account is established as an
account in the general revenue fund.
(b) The following amounts shall be deposited in the account:
(1) appropriations for the implementation and
administration of this subchapter;
(2) interest paid on money in the account;
(3) fees charged under this chapter; and
(4) penalties charged under this chapter.
(c) Money in the account may be appropriated only:
(1) for the enforcement of this chapter;
(2) to provide programs and services for elderly
persons or disabled persons; or
(3) for transitional housing and case management
services.
(d) Section 403.095, Government Code, does not apply to the
account.
[Sections 254.008-254.030 reserved for expansion]
SUBCHAPTER B. LICENSING, FEES, AND INSPECTIONS
Sec. 254.031. LICENSE REQUIRED. A person, acting severally
or jointly with any other person, may not establish, conduct, or
maintain in this state a facility without a license issued under
this chapter.
Sec. 254.032. LICENSE APPLICATION. (a) An application for
a license is made to the department on a form provided by the
department and must be accompanied by the license fee adopted under
Section 254.034.
(b) The application must contain information that the
department requires. The department may require affirmative
evidence of ability to comply with the standards and rules adopted
under this chapter.
Sec. 254.033. ISSUANCE AND RENEWAL OF LICENSE. (a) After
receiving the application, the department shall issue a license if,
after inspection and investigation, it finds that the applicant and
facility meet the requirements established under this chapter.
(b) The department may issue a license only for:
(1) the premises and persons named in the application;
and
(2) the maximum number of residents specified in the
application.
(c) A license may not be transferred or assigned.
(d) A license is renewable on the second anniversary of
issuance or renewal of the license after:
(1) an inspection;
(2) filing and approval of a renewal report; and
(3) payment of the renewal fee.
(e) The renewal report required under Subsection (d)(2)
must be filed in accordance with rules adopted by the executive
commissioner that specify the form of the report, the date it must
be submitted, and the information it must contain.
(f) The executive commissioner by rule shall define
specific, appropriate, and objective criteria on which the
department may deny an initial license application or license
renewal or revoke a license.
Sec. 254.034. LICENSE FEES. (a) The executive
commissioner by rule may adopt a fee for a license issued under this
chapter in an amount reasonable and necessary to recover the costs
of administering this chapter.
(b) The license fee must be paid with each application for
an initial license or for a renewal or change of ownership of a
license.
(c) The executive commissioner may adopt an additional fee
for the approval of an increase in number of residents.
Sec. 254.035. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE.
(a) The department, after providing notice and opportunity for a
hearing to the applicant or license holder, may deny, suspend, or
revoke a license if the department finds that the applicant or
license holder has substantially failed to comply with the
requirements established under this chapter.
(b) The status of an applicant for a license or of a license
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. 254.036. MINIMUM STANDARDS. The executive
commissioner may adopt, publish, and enforce minimum standards
relating to:
(1) the construction or remodeling of a facility,
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 facility 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 resident 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 and qualifications of
operators and employees responsible for providing any part of a
service to residents; and
(9) the quality of life.
Sec. 254.037. REASONABLE TIME TO COMPLY. The executive
commissioner by rule shall give a facility that is in operation when
a rule or standard is adopted under this chapter a reasonable time
to comply with the rule or standard, not to exceed 12 months after
the date the rule or standard is adopted.
Sec. 254.038. EARLY COMPLIANCE REVIEW. (a) The executive
commissioner by rule shall adopt a procedure under which a person
proposing to construct or modify a facility may submit building
plans to the department for review for compliance with
architectural requirements before beginning construction or
modification. In adopting the procedure, the department shall set
reasonable deadlines by which the department must complete review
of submitted plans.
(b) The department shall, within 30 days, review plans
submitted under this section for compliance with architectural
requirements and inform the person in writing of the results of the
review. If the plans comply with the architectural requirements,
the architectural requirements applicable to the project may not
subsequently be changed unless:
(1) the change is required by federal law; or
(2) the person fails to complete the project within a
reasonable time.
(c) The department may charge a reasonable fee for
conducting a review under this section.
(d) A fee collected under this section shall be deposited in
the elderly and disabled persons account under Section 254.007 and
may be appropriated only to the department to conduct reviews under
this section.
(e) The review procedure provided by this section must
include a review of building plans for compliance with the Texas
Accessibility Standards as administered and enforced.
Sec. 254.039. FIRE SAFETY REQUIREMENTS. (a) A facility
shall comply with fire safety requirements established under this
section.
(b) The executive commissioner by rule shall adopt the fire
safety standards applicable to the facility. The fire safety
standards must be the same as the fire safety standards established
by an edition of the Life Safety Code of the National Fire
Protection Association. If required by federal law or regulation,
the edition selected may be different for facilities or portions of
facilities operated or approved for construction at different
times.
(c) The rules adopted under this section do not prevent a
facility licensed under this chapter from voluntarily conforming to
fire safety standards that are compatible with, equal to, or more
stringent than those adopted by the executive commissioner.
(d) Notwithstanding any other provision of this section, a
municipality may enact additional and more stringent fire safety
standards applicable to new construction begun on or after
September 1, 2009.
Sec. 254.040. POSTING. Each facility shall prominently and
conspicuously post for display in a public area of the facility that
is readily available to residents, the operator, any employees, and
visitors:
(1) the license issued under this chapter;
(2) a sign prescribed by the executive commissioner
that specifies complaint procedures established under this chapter
or rules adopted under this chapter and that specifies how
complaints may be registered with the department;
(3) a notice in a form prescribed by the executive
commissioner stating that inspection and related reports are
available at the facility for public inspection and providing the
department's toll-free telephone number that may be used to obtain
information concerning the facility;
(4) a concise summary of the most recent inspection
report relating to the facility;
(5) a notice that the operator, any employees, other
staff, residents, volunteers, and family members and guardians of
residents are protected from discrimination or retaliation as
provided by Sections 254.131 and 254.132; and
(6) a notice in a form prescribed by the executive
commissioner that lists the name, location, and contact information
for:
(A) the closest local public health services
agency in the proximity of the facility; and
(B) a local organization or entity that
represents, advocates, or serves elderly persons or disabled
persons, including any related toll-free contact information for
reporting emergencies to the organization or entity.
Sec. 254.041. INSPECTIONS. (a) The department or the
department's designee may make any inspection, survey, or
investigation that it considers necessary and may enter the
premises of a facility at reasonable times to make an inspection,
survey, or investigation in accordance with rules of the executive
commissioner.
(b) The department is entitled to access to books, records,
and other documents maintained by or on behalf of a facility to the
extent necessary to enforce this chapter and the rules adopted
under this chapter.
(c) A license holder or an applicant for a license is
considered to have consented to entry and inspection of the
facility by a representative of the department in accordance with
this chapter.
(d) The department shall establish procedures to preserve
all relevant evidence of conditions the department finds during an
inspection, survey, or investigation that the department
reasonably believes threaten the health and safety of a resident.
The procedures may include photography or photocopying of relevant
documents, such as license holder's notes, physician's orders, and
pharmacy records, for use in any legal proceeding.
(e) When photographing a resident, the department:
(1) shall respect the privacy of the resident to the
greatest extent possible;
(2) shall obtain the resident's permission to the
greatest extent possible before taking a photograph that will allow
the resident to be identified; and
(3) may not make public the identity of the resident.
(f) A facility, the operator, an employee of a facility, and
a resident's attending physician are not civilly liable for
surrendering confidential or private material under this section,
including physician's orders, pharmacy records, notes and
memoranda of a state office, and resident files.
(g) The department shall establish in clear and concise
language a form to summarize each inspection report and complaint
investigation report.
(h) The department shall establish proper procedures to
ensure that copies of all forms and reports under this section are
made available to consumers, residents, and the relatives of
residents as the department considers proper.
(i) The department shall have specialized staff conduct
inspections, surveys, or investigations of facilities under this
section.
Sec. 254.042. UNANNOUNCED INSPECTIONS. (a) Each licensing
period, the department shall conduct at least two unannounced
inspections of each facility.
(b) In order to ensure continuous compliance, the
department shall randomly select a sufficient percentage of
facilities for unannounced inspections to be conducted between 5
p.m. and 8 a.m. Those inspections must be cursory to avoid to the
greatest extent feasible any disruption of the residents.
(c) The department may require additional unannounced
inspections.
(d) As considered appropriate and necessary by the
department, the department may invite a citizen advocate to
participate in inspections. An 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 elderly persons or disabled persons.
Sec. 254.043. DISCLOSURE OF UNANNOUNCED INSPECTIONS;
CRIMINAL PENALTY. (a) Except as expressly provided by this
chapter, a person commits an offense if the person intentionally,
knowingly, or recklessly discloses to an unauthorized person the
date, time, or any other fact about an unannounced inspection of a
facility before the inspection occurs.
(b) In this section, "unauthorized person" does not
include:
(1) the department;
(2) the office of the attorney general; or
(3) any other person or entity authorized by law to
make an inspection or to accompany an inspector.
(c) An offense under this section is a Class B misdemeanor.
(d) A person convicted under this section is not eligible
for state employment.
Sec. 254.044. LICENSING SURVEYS. The department shall
provide a team to conduct surveys to validate findings of licensing
surveys. The purpose of a validation survey is to assure that
survey teams throughout the state survey in a fair and consistent
manner. A facility subjected to a validation survey must correct
deficiencies cited by the validation team but is not subject to
punitive action for those deficiencies.
Sec. 254.045. REPORTING VIOLATIONS. (a) The department or
the department's representative conducting an inspection, survey,
or investigation under this chapter shall:
(1) list each violation of a law or rule on a form
designed by the department for inspections; and
(2) identify the specific law or rule the facility
violates.
(b) At the conclusion of an inspection, survey, or
investigation under this chapter, the department or the
department's representative conducting the inspection, survey, or
investigation shall discuss the violations with the facility's
management in an exit conference. The department or the
department's representative shall leave a written list of the
violations with the facility and the person designated by the
facility to receive notice of the imposition of an administrative
penalty at the time of the exit conference. If the department or
the department's representative discovers any additional
violations during the review of field notes or preparation of the
official final list, the department or the department's
representative shall give the facility an additional exit
conference regarding the additional violations.
(c) The facility shall submit a plan to correct the
violations to the department not later than the 10th day after the
date the facility receives the final statement of violations.
[Sections 254.046-254.060 reserved for expansion]
SUBCHAPTER C. GENERAL ENFORCEMENT
Sec. 254.061. EMERGENCY SUSPENSION OR CLOSING ORDER. (a)
The department shall suspend a facility's license or order an
immediate closing of part of the facility if:
(1) the department finds the facility is operating in
violation of the standards prescribed by this chapter; and
(2) the violation creates an immediate threat to the
health and safety of a resident.
(b) The executive commissioner by rule shall provide for the
placement of residents during the facility's suspension or closing
to ensure their health and safety.
(c) To ensure the availability of emergency placements
under Subsection (b), the executive commissioner shall develop a
memorandum of understanding with appropriate counties or municipal
agencies that:
(1) establishes an emergency placement capability for
the area served by the county or municipal agency; and
(2) may provide for partial or full remuneration by
the facility of the costs associated with emergency placements
provided by the county or municipal agency if the emergency
placements resulted from a department order suspending the
facility's license or closing the facility.
(d) An order suspending a license or closing a part of a
facility under this section is immediately effective on the date on
which the license holder receives written notice or a later date
specified in the order.
(e) An order suspending a license or ordering an immediate
closing of a part of a facility is valid for 10 days after the
effective date of the order.
Sec. 254.062. INJUNCTION. (a) The department may petition
a district court for a temporary restraining order to restrain a
person from continuing a violation of the standards prescribed by
this chapter if the department finds that the violation creates an
immediate threat to the health and safety of the facility's
residents.
(b) A district court, on petition of the department, may by
injunction:
(1) prohibit a person from continuing a violation of
the standards or licensing requirements prescribed by this chapter;
(2) restrain or prevent the establishment, conduct,
management, or operation of a facility without a license issued
under this chapter; or
(3) grant the injunctive relief warranted by the facts
on a finding by the court that a person is violating the standards
or licensing requirements prescribed by this chapter.
(c) The attorney general, on request by the department,
shall bring and conduct on behalf of the state a suit authorized by
this section.
(d) A suit for a temporary restraining order or other
injunctive relief must be brought in the county in which the alleged
violation occurs or in Travis County.
Sec. 254.063. LICENSE REQUIREMENTS; CRIMINAL PENALTY. (a)
A person commits an offense if the person violates Section 254.031.
(b) An offense under this section is punishable by a fine of
not more than $1,000 for the first offense and not more than $500
for each subsequent offense.
(c) Each day of a continuing violation after conviction is a
separate offense.
Sec. 254.064. CIVIL PENALTY. (a) A person who violates
this chapter or a rule adopted or order issued under this chapter is
liable for a civil penalty of not less than $100 or more than
$10,000 for each violation if the department determines the
violation threatens the health and safety of a resident.
(b) Each day of a continuing violation constitutes a
separate ground for recovery.
(c) On request of the department, the attorney general may
institute an action in a district court to collect a civil penalty
under this section. Any amount collected shall be remitted to the
comptroller for deposit to the credit of the elderly and disabled
persons account.
Sec. 254.065. ADMINISTRATIVE PENALTY. (a) The department
may impose an administrative penalty against a facility that
violates this chapter or a rule adopted or order issued under this
chapter.
(b) The penalty for a facility may not be less than $100 or
more than $1,000 for each violation. The total amount of the
penalty assessed for a violation continuing or occurring on
separate days under this subsection may not exceed $5,000. Each day
a violation occurs and each day of a continuing violation is a
separate violation for purposes of imposing a penalty.
(c) The executive commissioner by rule shall specify each
violation for which an administrative penalty may be assessed. In
determining which violations warrant penalties, the department
shall consider:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation and the
hazard of the violation to the health or safety of residents; and
(2) whether the affected facility had identified the
violation as a part of its internal quality assurance process and
had made appropriate progress on correction.
(d) The executive commissioner by rule shall establish a
specific and detailed schedule of appropriate and graduated
penalties for each violation based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation and the
hazard of the violation to the health or safety of residents;
(2) the history of previous violations;
(3) whether the affected facility had identified the
violation as a part of its internal quality assurance process and
had made appropriate progress on correction;
(4) the amount necessary to deter future violations;
(5) efforts made to correct the violation;
(6) the size of the facility; and
(7) any other matters that justice may require.
(e) The executive commissioner by rule shall provide the
facility with a reasonable period of time, not less than 45 days,
following the first day of a violation to correct the violation
before assessing an administrative penalty if a plan of correction
has been implemented. This subsection does not apply to a violation
that the department determines has resulted in serious harm to or
the death of a resident or constitutes a serious threat to the
health or safety of a resident.
(f) The department may not assess an administrative penalty
for a minor violation if the person corrects the violation not later
than the 46th day after the date the person receives notice of the
violation.
(g) The department shall establish a system to ensure
standard and consistent application of penalties regardless of the
facility location.
(h) All proceedings for the assessment of an administrative
penalty under this chapter are subject to Chapter 2001, Government
Code.
(i) Notwithstanding any other provision of this section, an
administrative penalty ceases to be incurred on the date a
violation is corrected. The administrative penalty ceases to be
incurred only if the facility:
(1) notifies the department in writing of the
correction of the violation and of the date the violation was
corrected; and
(2) shows later that the violation was corrected.
(j) Rules adopted under this section shall include
specific, appropriate, and objective criteria that describe the
scope and severity of a violation that results in a recommendation
for each specific penalty.
(k) Sections 252.0651, 252.066, 252.067, 252.068, and
252.070, Health and Safety Code, apply to an administrative penalty
imposed under this section.
Sec. 254.066. AMELIORATION OF VIOLATION. (a) In this
section, "immediate jeopardy to health and 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) In lieu of demanding payment of an administrative
penalty authorized by this subchapter, the department may allow a
person subject to the penalty to use, under the supervision of the
department, all or part of the amount of the penalty to ameliorate
the violation or to improve services, other than administrative
services, in the facility affected by the violation.
(c) The department shall offer amelioration to a person for
a charged violation if the department determines that the violation
does not result in an immediate jeopardy to the health and safety of
a facility resident.
(d) The department may not offer amelioration to a person if
the department determines that the charged violation constitutes
immediate jeopardy to the health and safety of a facility resident.
(e) The department shall offer amelioration to a person
under this section not later than the 10th day after the date the
person receives from the department a final notification of
assessment of administrative penalty that is sent to the person
after an informal dispute resolution process but before an
administrative hearing under Section 254.065.
(f) A person to whom amelioration has been offered must file
a plan for amelioration not later than the 45th day after the date
the person receives the offer of amelioration from the department.
In submitting the plan, the person must agree to waive the person's
right to an administrative hearing under Section 254.065 if the
department approves the plan.
(g) At a minimum, a plan for amelioration must:
(1) propose changes to the management or operation of
the facility that will improve services to or quality of care of
residents of the facility;
(2) identify, through measurable outcomes, the ways in
which and the extent to which the proposed changes will improve
services to or quality of care of residents of the facility;
(3) establish clear goals to be achieved through the
proposed changes;
(4) establish a timeline for implementing the proposed
changes; and
(5) identify specific actions necessary to implement
the proposed changes.
(h) A plan for amelioration may include proposed changes to
improve the overall quality of life for residents.
(i) The department may require that an amelioration plan
propose changes that would result in conditions that exceed the
requirements of this chapter or the rules adopted under this
chapter.
(j) The department shall approve or deny an amelioration
plan not later than the 45th day after the date the department
receives the plan. On approval of a person's plan, the department
shall deny a pending request for a hearing submitted by the person
on the occurrence of the violation, the amount of the penalty, or
both the occurrence of the violation and the amount of the penalty.
(k) The department may not offer amelioration to a person:
(1) more than three times in a two-year period; or
(2) more than one time in a two-year period for the
same or similar violation.
[Sections 254.067-254.090 reserved for expansion]
SUBCHAPTER D. NOTIFICATION OF CLOSURE
Sec. 254.091. NOTIFICATION OF CLOSURE. (a) A facility that
is closing temporarily or permanently, voluntarily or
involuntarily, shall:
(1) provide written notice of the closure of the
facility to each resident, the local mental health authority, and
the department; and
(2) make reasonable efforts to provide the same
written notice, within a reasonable time before closure, to the
nearest relative of each resident or to a person responsible for the
resident's support.
(b) If the closure of the facility is for a temporary
period, the notice required by Subsection (a) must include:
(1) the date that the facility is estimated to reopen;
and
(2) the name and contact information of the person
responsible for the reopening of the facility.
(c) If the department orders a facility to close or the
facility's closure is in any other way involuntary, the facility
shall make the notification, orally or in writing, immediately on
receiving notice of the closing.
(d) If the facility's closure is voluntary, the facility
shall make the notification not later than one week after the date
on which the decision to close is made.
(e) On or after the date on which a facility ceases to
provide services to a resident, a facility may not continue to:
(1) charge a fee, other than a fee for services
previously provided to the resident; or
(2) collect money from a former resident under a
financial assignment agreement.
Sec. 254.092. CRIMINAL PENALTY FOR FAILURE TO NOTIFY. (a)
A facility commits an offense if the facility knowingly fails to
comply with Section 254.091.
(b) An offense under this section is a Class A misdemeanor.
Sec. 254.093. CLOSURE REPORT. (a) A facility required to
provide notice of the facility's closure under Section 254.091(a)
also shall provide a closure report regarding each resident to the
department in accordance with this section.
(b) The report must include a summary of the actions taken
by the facility to:
(1) relocate the resident, including the name,
address, and contact information of a licensed facility or other
location to which the resident was transferred;
(2) secure the personal property of the resident if
the resident's personal property did not accompany the resident to
the resident's new location; and
(3) finalize any outstanding financial arrangements
with the resident, including presenting the resident with a final
statement of account with the facility containing all charges and
fees for services, discontinuing any financial assignment
arrangement, and refunding any excess fees or charges.
[Sections 254.094-254.120 reserved for expansion]
SUBCHAPTER E. REPORTS OF ABUSE, NEGLECT, OR EXPLOITATION
Sec. 254.121. REPORTING OF ABUSE, NEGLECT, OR EXPLOITATION.
(a) A person, including an owner, operator, or employee of a
facility, who has cause to believe that a resident has been abused,
neglected, or exploited or may be adversely affected by abuse,
neglect, or exploitation caused by another person shall report the
abuse, neglect, or exploitation as required by Section 48.051,
Human Resources Code.
(b) Each facility shall require each employee of the
facility, as a condition of employment with the facility, to sign a
statement that the employee realizes that the employee may be
criminally liable under Section 48.052, Human Resources Code, for
failure to report abuse, neglect, or exploitation.
[Sections 254.122-254.130 reserved for expansion]
SUBCHAPTER F. PROHIBITION OF RETALIATION
Sec. 254.131. SUIT FOR RETALIATION. (a) In this section,
"employee" means a person who is an employee of a facility or any
other person who provides services for a facility for compensation,
including a contract laborer for the facility.
(b) An employee has a cause of action against a facility,
the owner or operator of the facility, or another employee of the
facility that suspends or terminates the employment of the employee
or otherwise disciplines, discriminates against, or retaliates
against the employee for:
(1) reporting to the employee's supervisor, the
facility owner or operator, a state regulatory agency, or a law
enforcement agency a violation of law, including a violation of
this chapter or a rule adopted under this chapter; or
(2) initiating or cooperating in any investigation or
proceeding of a governmental entity relating to the services or
conditions at the facility.
(c) A plaintiff who prevails in a suit under this section
may recover:
(1) the greater of $1,000 or actual damages, including
damages for:
(A) mental anguish, even if an injury other than
mental anguish is not shown; and
(B) lost wages, if the petitioner's employment
was suspended or terminated;
(2) exemplary damages;
(3) court costs; and
(4) reasonable attorney's fees.
(d) In addition to the amounts that may be recovered under
Subsection (c), a person whose employment is suspended or
terminated is entitled to appropriate injunctive relief,
including, if applicable:
(1) reinstatement in the person's former position; and
(2) reinstatement of lost fringe benefits or seniority
rights.
(e) The petitioner, not later than the 90th day after the
date on which the person's employment is suspended or terminated,
must bring suit or notify the Texas Workforce Commission of the
petitioner's intent to sue under this section. A petitioner who
notifies the Texas Workforce Commission under this subsection must
bring suit not later than the 90th day after the date of the
delivery of the notice to the commission. On receipt of the notice,
the commission shall notify the facility of the petitioner's intent
to bring suit under this section.
(f) The petitioner has the burden of proof, except that
there is a rebuttable presumption that the person's employment was
suspended or terminated for reporting abuse or neglect if the
person is suspended or terminated within 60 days after the date on
which the person reported in good faith.
(g) A suit under this section may be brought in the district
court of the county in which:
(1) the plaintiff resides;
(2) the plaintiff was employed by the defendant; or
(3) the defendant conducts business.
(h) Each facility shall require each employee of the
facility, as a condition of employment with the facility, to sign a
statement that the employee understands the employee's rights under
this section. The statement must be part of the statement required
under Section 254.121(b).
Sec. 254.132. SUIT FOR RETALIATION AGAINST VOLUNTEER,
RESIDENT, OR FAMILY MEMBER OR GUARDIAN OF RESIDENT. (a) A facility
may not retaliate or discriminate against a volunteer, a resident,
or a family member or guardian of a resident because the volunteer,
the resident, the resident's family member or guardian, or any
other person:
(1) makes a complaint or files a grievance concerning
the facility;
(2) reports a violation of law, including a violation
of this chapter or a rule adopted under this chapter; or
(3) initiates or cooperates in an investigation or
proceeding of a governmental entity relating to the services or
conditions at the facility.
(b) A volunteer, a resident, or a family member or guardian
of a resident against whom a facility retaliates or discriminates
in violation of Subsection (a) is entitled to sue for:
(1) injunctive relief;
(2) the greater of $1,000 or actual damages, including
damages for mental anguish, even if an injury other than mental
anguish is not shown;
(3) exemplary damages;
(4) court costs; and
(5) reasonable attorney's fees.
(c) A volunteer, a resident, or a family member or guardian
of a resident who seeks relief under this section must report the
alleged violation not later than the 180th day after the date on
which the alleged violation of this section occurred or was
discovered by the volunteer, the resident, or the family member or
guardian of the resident through reasonable diligence.
(d) A suit under this section may be brought in the district
court of the county in which the facility is located or in a
district court of Travis County.
[Sections 254.133-254.150 reserved for expansion]
SUBCHAPTER G. REPORTING RESIDENT DEATHS
Sec. 254.151. REPORTS RELATING TO RESIDENT DEATHS;
STATISTICAL INFORMATION. (a) A facility licensed under this
chapter shall submit a report to the department concerning the
death of:
(1) a facility resident; and
(2) a former resident that occurs 24 hours or less
after the former resident is transferred from the facility to a
hospital.
(b) The report must be submitted not later than the 10th
working day after the last day of each month in which a resident
dies. The facility must make the report on a form prescribed by the
department. The report must contain the name and social security
number of the deceased.
(c) The department shall correlate reports under this
section with death certificate information to develop data relating
to the:
(1) name and age of the deceased;
(2) official cause of death listed on the death
certificate;
(3) date, time, and place of death; and
(4) name and address of the facility in which the
deceased resided.
(d) Unless specified by executive commissioner rule, a
record under this section is confidential and not subject to the
provisions of Chapter 552, Government Code.
(e) The department shall develop statistical information on
official causes of death to determine patterns and trends of
incidents of death among elderly persons and disabled persons and
related conditions and in specific facilities. Information
developed under this subsection is not confidential.
(f) A licensed facility shall make available on the request
of an applicant or an applicant's representative historical
statistics on all required information.
[Sections 254.152-254.170 reserved for expansion]
SUBCHAPTER H. MEDICAL CARE
Sec. 254.171. ADMINISTRATION OF MEDICATION. (a) A
facility may not administer medication to a resident of the
facility, except that a facility may provide assistance to a
resident in self-administering medication, including the provision
of:
(1) a secure and safe means of storage for the
medication;
(2) scheduled times and doses for self-administration
of medication; and
(3) assistance in requesting and obtaining new or
refilled prescriptions from an authorized health care provider.
(b) As a part of the facility's initial and renewal license
application, the facility shall submit a description of the type of
assistance with self-administration of medication provided by the
facility to residents. A facility may not provide any assistance
with self-administration of medication that has not been approved
by the department during the licensing or renewal process.
(c) The facility shall provide the description of the type
of assistance with self-administration of medication provided by
the facility to residents to a person performing an inspection of
the facility under this chapter.
[Sections 254.172-254.180 reserved for expansion]
SUBCHAPTER I. REQUIRED REPORTING
Sec. 254.181. LEGISLATIVE REPORT. The department shall
include in the department's biennial report to the legislature
information regarding:
(1) the number of:
(A) license applications received under this
chapter;
(B) license applications granted under this
chapter;
(C) facility closures, including closures
required by the department because of violations of this chapter
and voluntary closures; and
(D) investigations of facilities licensed under
this chapter related to alleged abuse, neglect, or exploitation of
a resident; and
(2) a description of any penalties against a facility
licensed under this chapter resulting from a department
investigation.
SECTION 2. This Act takes effect September 1, 2009.
SECTION 3. Notwithstanding Sections 254.031 and 254.063,
Health and Safety Code, as added by this Act, a facility is not
required to be licensed under Chapter 254, Health and Safety Code,
as added by this Act, before January 1, 2010.