81R11647 YDB-D
By: Shapleigh S.B. No. 1521
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of certain boarding houses and assisted
living facilities; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle B, Title 4, Health and Safety Code, is
amended by adding Chapter 254 to read as follows:
CHAPTER 254. BOARDING HOUSES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 254.001. DEFINITIONS. In this chapter:
(1) "Boarding house" means an establishment that has
rooms for rent to four or more persons who are unrelated to the
owner by blood or consanguinity and that may offer community meals,
light housework, meal preparation, transportation, grocery
shopping, money management, or laundry services but that does not
provide personal care services.
(2) "Department" means the Department of State Health
Services.
(3) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(4) "Resident" means an individual who is residing in
a boarding house that holds a certificate of registration under
this chapter.
Sec. 254.002. EXEMPTIONS. This chapter does not apply to:
(1) a facility that is required to be licensed under
Chapter 142, 242, 246, 247, or 252;
(2) a facility that is exempt from licensing under
Section 142.003(a)(19) or 247.004(4);
(3) a hotel as defined by Section 156.001, Tax Code;
(4) a retirement community;
(5) a monastery or convent;
(6) a child-care facility;
(7) a facility that provides shelter to victims of
domestic violence; or
(8) a sorority or fraternity house or other dormitory
affiliated with an institution of higher education.
Sec. 254.003. RULES GENERALLY. The executive commissioner
shall adopt rules related to the administration and implementation
of this chapter.
Sec. 254.004. CONSULTATION AND COORDINATION. (a) The
department may cooperate with local public health officials of a
municipality or county in carrying out this chapter and may
delegate to those officials the power to make inspections and
recommendations to the department under this chapter.
(b) The department may coordinate its personnel and
facilities with a local agency of a municipality or county and may
provide advice to the municipality or county if the municipality or
county supplements the state regulatory program established under
this chapter with additional rules required to meet local
conditions.
[Sections 254.005-254.050 reserved for expansion]
SUBCHAPTER B. REGISTRATION, FEES, AND INSPECTIONS
Sec. 254.051. REGISTRATION REQUIRED. A person, acting
severally or jointly with any other person, may not establish,
conduct, or maintain in this state a boarding house unless the
person holds a certificate of registration issued under this
chapter.
Sec. 254.052. APPLICATION. (a) A person may apply for
registration under this chapter by submitting an application to the
department on a form prescribed by the department and the required
registration fee.
(b) The application must contain information that the
department requires. The department may require affirmative
evidence of ability to comply with the standards and rules adopted
under this chapter.
Sec. 254.053. ISSUANCE AND RENEWAL OF CERTIFICATE OF
REGISTRATION. (a) After receiving the application, the department
shall issue a certificate of registration to the applicant if,
after inspection and investigation, it finds that the applicant and
boarding house meet the requirements established under this chapter
and department rule.
(b) The department may issue a certificate of registration
only for:
(1) the premises and persons named in the application;
and
(2) the maximum number of residents specified in the
application.
(c) A certificate of registration may not be transferred or
assigned.
(d) A person may renew a certificate of registration by:
(1) submitting a renewal application on the form
prescribed by the department; and
(2) paying the renewal fee.
(e) The executive commissioner by rule shall define
specific, appropriate, and objective criteria on which the
department may deny an initial certificate of registration
application or certificate of registration renewal or revoke a
certificate of registration.
Sec. 254.054. FEES. (a) The executive commissioner by rule
may adopt a fee for a certificate of registration issued under this
chapter in an amount reasonable and necessary to recover the costs
of administering this chapter.
(b) The certificate of registration fee must be paid with
each application for an initial certificate of registration or for
a renewal or change of ownership of a certificate of registration.
(c) The executive commissioner may adopt an additional fee
for the approval of an increase in number of residents.
Sec. 254.055. REGISTRY. The department shall establish a
registry of boarding houses registered under this chapter and make
the registry available to the public, certificate of registration
holders, and appropriate state agencies.
Sec. 254.056. MINIMUM STANDARDS. The executive
commissioner may adopt, publish, and enforce minimum standards
relating to:
(1) the construction or remodeling of a boarding
house, including plumbing, heating, lighting, ventilation, and
other housing conditions, to ensure the residents' health, safety,
comfort, and protection from fire hazard;
(2) sanitary and related conditions in a boarding
house and its surroundings, including water supply, sewage
disposal, food handling, and general hygiene to ensure the
residents' health, safety, and comfort;
(3) equipment essential to the residents' health and
welfare;
(4) the reporting and investigation of injuries,
incidents, and unusual accidents and the establishment of other
policies and procedures necessary to ensure the residents' safety;
(5) policies and procedures for the control of
communicable diseases;
(6) specialized nutrition support;
(7) requirements for in-service education of the
operator and each employee who has any contact with residents;
(8) the regulation of the number of employees and the
qualifications of the operator and each employee responsible for
providing any part of a service to residents; and
(9) the quality of life.
Sec. 254.057. POSTING. Each boarding house shall
prominently and conspicuously post for display in a public area of
the boarding house that is readily available to residents, the
operator, any employees, and visitors:
(1) the certificate of registration issued under this
chapter;
(2) a sign prescribed by the executive commissioner
that specifies complaint procedures established under this chapter
or rules adopted under this chapter and that specifies how
complaints may be registered with the department;
(3) a notice in a form prescribed by the executive
commissioner stating that inspection and related reports are
available at the boarding house for public inspection and providing
the department's toll-free telephone number that may be used to
obtain information concerning the boarding house; and
(4) a concise summary of the most recent inspection
report relating to the boarding house.
Sec. 254.058. INSPECTIONS. (a) The department or the
department's representative may make any inspection, survey, or
investigation that it considers necessary and may enter the
premises of a boarding house at reasonable times to make an
inspection, survey, or investigation in accordance with rules of
the executive commissioner.
(b) The department is entitled to access to books, records,
and other documents maintained by or on behalf of a boarding house
to the extent necessary to enforce this chapter and the rules
adopted under this chapter.
(c) A certificate of registration holder or an applicant for
a certificate of registration is considered to have consented to
entry and inspection of the boarding house by a representative of
the department in accordance with this chapter.
(d) The department shall establish procedures to preserve
all relevant evidence of conditions the department finds during an
inspection, survey, or investigation that the department
reasonably believes threaten the health and safety of a resident.
The procedures may include photography or photocopying of relevant
documents, such as a certificate of registration holder's notes,
for use in any legal proceeding.
Sec. 254.059. UNANNOUNCED INSPECTIONS. (a) Each
registration period, the department shall conduct at least two
unannounced inspections of each boarding house.
(b) The department may require additional inspections.
Sec. 254.060. EDUCATION AND OUTREACH. The department and
the Health and Human Services Commission shall provide to the owner
or operator of a boarding house information on:
(1) the circumstances, including the provision of
personal care, that require the facility to be licensed under
Chapter 247 and the requirements for licensing under that chapter;
(2) the services the boarding house may provide;
(3) registration under this chapter; and
(4) health and safety requirements and staff training
requirements.
Sec. 254.061. REPORTING VIOLATIONS. (a) The department or
the department's representative conducting an inspection or
investigation under this chapter shall:
(1) list each violation of a law or rule on a form
designed by the department for inspections; and
(2) identify the specific law or rule the boarding
house violates.
(b) At the conclusion of an inspection or investigation
under this chapter, the department or the department's
representative conducting the inspection or investigation shall
discuss the violations with the boarding house's management in an
exit conference. The department or the department's representative
shall leave a written list of the violations with the boarding house
and the person designated by the boarding house to receive notice of
the imposition of an administrative penalty at the time of the exit
conference. If the department or the department's representative
discovers any additional violations during the review of field
notes or preparation of the official final list, the department or
the department's representative shall give the boarding house an
additional exit conference regarding the additional violations.
(c) The boarding house shall submit a plan to correct the
violations to the department not later than the 10th day after the
date the boarding house receives the final statement of violations.
Sec. 254.062. REPORTING OF ABUSE, NEGLECT, OR EXPLOITATION.
(a) A person, including an owner, operator, or employee of a
boarding house, who has cause to believe that a resident has been
abused, neglected, or exploited or may be adversely affected by
abuse, neglect, or exploitation caused by another person shall
report the abuse, neglect, or exploitation as required by Section
48.051, Human Resources Code, or other applicable law.
(b) Each boarding house shall require each employee of the
boarding house, as a condition of employment with the boarding
house, to sign a statement that the employee realizes that the
employee may be criminally liable under Section 48.052, Human
Resources Code, for failure to report abuse, neglect, or
exploitation.
Sec. 254.063. NOTIFICATION OF CLOSURE. (a) A boarding
house that is closing temporarily or permanently, voluntarily or
involuntarily, shall notify the residents of the closing, if
applicable, within a reasonable time before the boarding house
closes.
(b) If the department orders a boarding house to close or
the boarding house's closure is in any other way involuntary, the
boarding house shall make the notification, orally or in writing,
immediately on receiving notice of the closing.
(c) If the boarding house's closure is voluntary, the
boarding house shall make the notification not later than one week
after the date on which the decision to close is made.
[Sections 254.064-254.100 reserved for expansion]
SUBCHAPTER C. GENERAL ENFORCEMENT
Sec. 254.101. DENIAL, SUSPENSION, OR REVOCATION OF
CERTIFICATE OF REGISTRATION. (a) The department, after providing
notice and opportunity for a hearing to an applicant for a
certificate of registration or a certificate of registration
holder, may deny, suspend, or revoke a certificate of registration
if the department finds that the applicant or certificate holder
has substantially failed to comply with the requirements
established under this chapter.
(b) The status of an applicant for a certificate of
registration or of a certificate of registration holder is
preserved until final disposition of the contested matter, except
as the court having jurisdiction of a judicial review of the matter
may order in the public interest for the welfare and safety of the
residents.
Sec. 254.102. EMERGENCY SUSPENSION OR CLOSING ORDER. (a)
The department shall suspend a boarding house's certificate of
registration or order an immediate closing of part of the boarding
house if:
(1) the department finds the boarding house is
operating in violation of the standards prescribed by this chapter;
and
(2) the violation creates an immediate threat to the
health and safety of a resident.
(b) The executive commissioner by rule shall provide for the
placement of residents during the boarding house's suspension or
closing to ensure their health and safety.
(c) An order suspending a certificate of registration or
closing a part of a boarding house under this section is immediately
effective on the date on which the certificate of registration
holder receives written notice or a later date specified in the
order.
(d) An order suspending a certificate of registration or
ordering an immediate closing of a part of a boarding house is valid
for 10 days after the effective date of the order.
Sec. 254.103. INJUNCTION. (a) The department may petition
a district court for a temporary restraining order to restrain a
person from continuing a violation of the standards prescribed by
this chapter if the department finds that the violation creates an
immediate threat to the health and safety of the boarding house's
residents.
(b) A district court, on petition of the department, may by
injunction:
(1) prohibit a person from continuing a violation of
the standards or registration requirements prescribed by this
chapter;
(2) restrain or prevent the establishment, conduct,
management, or operation of a boarding house without a certificate
of registration issued under this chapter; or
(3) grant the injunctive relief warranted by the facts
on a finding by the court that a person is violating the standards
or registration requirements prescribed by this chapter.
(c) The attorney general, on request by the department,
shall bring and conduct on behalf of the state a suit authorized by
this section.
(d) A suit for a temporary restraining order or other
injunctive relief must be brought in the county in which the alleged
violation occurs or in Travis County.
Sec. 254.104. CRIMINAL PENALTY. (a) In this section,
"immediate threat to the health or safety" means a situation in
which there is a high probability that serious harm or injury to a
resident could occur at any time or already has occurred and may
occur again if the resident is not protected from the harm or if the
threat is not removed.
(b) A person who knowingly operates a boarding house that is
required to be registered under this chapter in a manner that
creates an immediate threat to the health or safety of a resident of
the boarding house commits an offense.
(c) An offense under this section is a Class B misdemeanor.
Sec. 254.105. CIVIL PENALTY. (a) A person who violates
this chapter or a rule adopted or order issued under this chapter is
liable for a civil penalty of not less than $200 for each violation
if the department determines the violation threatens the health or
safety of a resident.
(b) Each day of a violation constitutes a separate ground
for recovery.
(c) On request of the department, the attorney general may
institute an action in a district court to collect a civil penalty
under this section. Any amount collected shall be remitted to the
comptroller for deposit in the general revenue fund.
Sec. 254.106. ADMINISTRATIVE PENALTY. (a) The department
may impose an administrative penalty against a boarding house that
violates this chapter or a rule adopted or order issued under this
chapter.
(b) The penalty for a boarding house may not be less than
$200 for each violation. Each day a violation occurs is a separate
violation for purposes of imposing a penalty.
(c) The executive commissioner by rule shall specify each
violation for which an administrative penalty may be assessed. In
determining which violations warrant penalties, the department
shall consider:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation and the
hazard of the violation to the health or safety of residents; and
(2) whether the affected boarding house had identified
the violation as a part of its internal quality assurance process
and had made appropriate progress on correction.
(d) The executive commissioner by rule shall establish a
specific and detailed schedule of appropriate and graduated
penalties for each violation based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation and the
hazard of the violation to the health or safety of residents;
(2) the history of previous violations;
(3) whether the affected boarding house had identified
the violation as a part of its internal quality assurance process
and had made appropriate progress on correction;
(4) the amount necessary to deter future violations;
(5) efforts made to correct the violation;
(6) the size of the boarding house; and
(7) any other matters that justice may require.
(e) The executive commissioner by rule shall provide the
boarding house with a reasonable period of time, not less than 45
days, following the first day of a violation to correct the
violation before assessing an administrative penalty if a plan of
correction has been implemented. This subsection does not apply to
a violation that the department determines has resulted in serious
harm to or the death of a resident or constitutes a serious threat
to the health or safety of a resident.
(f) The department may not assess an administrative penalty
for a minor violation if the person corrects the violation not later
than the 46th day after the date the person receives notice of the
violation.
(g) The department shall establish a system to ensure
standard and consistent application of penalties regardless of the
boarding house location.
(h) All proceedings for the assessment of an administrative
penalty under this chapter are subject to Chapter 2001, Government
Code.
(i) Notwithstanding any other provision of this section, an
administrative penalty ceases to be incurred on the date a
violation is corrected. The administrative penalty ceases to be
incurred only if the boarding house:
(1) notifies the department in writing of the
correction of the violation and of the date the violation was
corrected; and
(2) shows later that the violation was corrected.
(j) Rules adopted under this section shall include
specific, appropriate, and objective criteria that describe the
scope and severity of a violation that results in a recommendation
for each specific penalty.
(k) The imposition and collection of an administrative
penalty imposed under this section shall be conducted in the manner
provided by Sections 252.0651, 252.066, 252.067, 252.068, and
252.070.
SECTION 2. Section 247.004, Health and Safety Code, is
amended to read as follows:
Sec. 247.004. EXEMPTIONS. This chapter does not apply to:
(1) a boarding house registered under Chapter 254 [a
boarding facility that has rooms for rent and that may offer
community meals, light housework, meal preparation,
transportation, grocery shopping, money management, or laundry
services but that does not provide personal care services];
(2) an establishment conducted by or for the adherents
of the Church of Christ, Scientist, for the purpose of providing
facilities for the care or treatment of the sick who depend
exclusively on prayer or spiritual means for healing without the
use of any drug or material remedy if the establishment complies
with local safety, sanitary, and quarantine ordinances and
regulations;
(3) a facility conducted by or for the adherents of a
qualified religious society classified as a tax-exempt
organization under an Internal Revenue Service group exemption
ruling for the purpose of providing personal care services without
charge solely for the society's professed members or ministers in
retirement, if the facility complies with local safety, sanitation,
and quarantine ordinances and regulations; or
(4) a facility that provides personal care services
only to persons enrolled in a program that is funded in whole or in
part by the [Texas] Department of State [Mental] Health Services or
the Department of Aging and Disability Services [and Mental
Retardation] and that is monitored by the [Texas] Department of
State [Mental] Health Services or the Department of Aging and
Disability Services [and Mental Retardation] or its designated
local authority, as applicable, in accordance with standards set by
the applicable department [Texas Department of Mental Health and
Mental Retardation].
SECTION 3. Section 247.025, Health and Safety Code, is
amended to read as follows:
Sec. 247.025. ADOPTION OF RULES. The executive
commissioner of the Health and Human Services Commission [board]
shall adopt rules necessary to implement this chapter, including:
(1) requirements for the issuance, renewal, denial,
suspension, and revocation of a license to operate an assisted
living facility; and
(2) rules to require local mental health authorities
to work with clients to secure safe, appropriate housing to assist
clients in achieving their treatment goals by directing clients to
available assisted living facilities licensed under this chapter
and other establishments that are not required to be licensed under
this chapter that may be an appropriate referral option.
SECTION 4. Section 247.031, Health and Safety Code, is
amended to read as follows:
Sec. 247.031. MUNICIPAL ENFORCEMENT. (a) The governing
body of a municipality by ordinance may:
(1) prohibit a person who does not hold a license
issued under this chapter from establishing or operating an
assisted living facility within the municipality; and
(2) establish a procedure for emergency closure of a
facility in circumstances in which:
(A) the facility is established or operating in
violation of Section 247.021; and
(B) the continued operation of the facility
creates an immediate threat to the health and safety of a resident
of the facility.
(b) The department shall:
(1) develop a communications plan, which may include
regional meetings, to educate municipalities about this section;
and
(2) create outreach and training materials and
distribute the materials in accordance with the communications
plan.
SECTION 5. Chapter 247, Health and Safety Code, is amended
by adding Subchapter E to read as follows:
SUBCHAPTER E. CRIMINAL PENALTY
Sec. 247.101. CRIMINAL PENALTY. (a) In this section,
"immediate threat to the health or safety" means a situation in
which there is a high probability that serious harm or injury to a
resident could occur at any time or already has occurred and may
occur again if the resident is not protected from the harm or if the
threat is not removed.
(b) A person who knowingly operates without a license an
assisted living facility that is required to be licensed under this
chapter in a manner that creates an immediate threat to the health
or safety of a resident of the facility commits an offense.
(c) An offense under this section is a Class B misdemeanor.
SECTION 6. The heading to Title 4, Health and Safety Code,
is amended to read as follows:
TITLE 4. CERTAIN RESIDENTIAL AND HEALTH FACILITIES
SECTION 7. The heading to Subtitle B, Title 4, Health and
Safety Code, is amended to read as follows:
SUBTITLE B. LICENSING OF [HEALTH] FACILITIES
SECTION 8. (a) Not later than October 1, 2009, the Health
and Human Services Commission, or a health and human services
agency designated by the commission, shall establish a stakeholder
workgroup to solicit input and make recommendations for revision of
the existing rules on Type E facilities as defined by rules of the
Department of Aging and Disability Services. Members of the
workgroup must include:
(1) currently licensed Type E facility operators;
(2) unlicensed boarding house operators;
(3) local mental health authority staff;
(4) area agencies on aging representatives;
(5) regional staff of the Department of Aging and
Disability Services;
(6) staff of the Department of State Health Services
with responsibility for mental health services; and
(7) mental health advocates.
(b) The workgroup shall:
(1) examine basic supervision, resident well-being,
nutritional quality, and medication monitoring related to Type E
facilities;
(2) recommend rules to encourage more boarding house
operators to be licensed as Type E facilities; and
(3) examine regulatory oversight of Type E facilities
and recommend either the Department of Aging and Disability
Services, or the Department of State Health Services to regulate
facilities considering the purpose for which the Type E
classification was created, the services currently regulated by
each agency, and cost.
(c) Not later than January 1, 2011, based on the
recommendations of the workgroup, the executive commissioner of the
Health and Human Services Commission shall adopt rules relating to
the licensing of Type E assisted living facilities.
(d) Not later than March 1, 2011, the Health and Human
Services Commission, or a health and human services agency
designated by the commission, shall:
(1) provide copies of the rules adopted under
Subsection (c) of this section to the members of the workgroup and
other interested parties;
(2) provide training and information to regional state
regulatory staff and local staff on the adopted rules; and
(3) provide information on the adopted rules to
boarding houses, state and regional staff employed by the
Department of Aging and Disability Services, state and regional
staff employed by the Department of State Health Services, and
local mental health authorities.
SECTION 9. Not later than September 1, 2010, the Health and
Human Services Commission shall evaluate the Section 1915(i) state
plan amendment option of the Social Security Act (42 U.S.C. Section
1396n(i)) available under the Deficit Reduction Act of 2005 (Pub.
L. No. 109-171) and the waiver program under Section 1915(c),
Social Security Act (42 U.S.C. Section 1396n(c)), to determine if
either would provide a feasible means for funding personal care
services for people with mental illness under the state Medicaid
program.
SECTION 10. (a) Not later than January 1, 2011, the
executive commissioner of the Health and Human Services Commission
shall adopt the rules necessary to implement Chapter 254, Health
and Safety Code, as added by this Act, and Chapter 247, Health and
Safety Code, as amended by this Act.
(b) Not later than June 1, 2011, the Department of State
Health Services shall develop the registry and provide the
education and outreach as required under Chapter 254, Health and
Safety Code, as added by this Act.
(c) Notwithstanding Chapter 254, Health and Safety Code, as
added by this Act, a person who owns or operates a boarding house is
not required to hold a certificate of registration on the effective
date of this Act but must hold a certificate of registration under
that chapter not later than September 1, 2011.
SECTION 11. (a) Except as provided by Subsection (b), this
Act takes effect September 1, 2009.
(b) Subchapter C, Chapter 254, Health and Safety Code, as
added by this Act, takes effect September 1, 2011.