By: Truitt (Senate Sponsor - Uresti) H.B. No. 2109
(In the Senate - Received from the House May 6, 2011;
May 9, 2011, read first time and referred to Committee on Health
and Human Services; May 18, 2011, reported favorably by the
following vote: Yeas 9, Nays 0; May 18, 2011, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to agency action concerning assisted living facilities,
including regulation of inappropriate placement of residents at
facilities; providing a penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 247.066, Health and Safety Code, is
amended by adding Subsections (b-1), (d-1), (d-2), (f), (g), and
(h) and amending Subsections (c), (d), and (e) to read as follows:
(b-1) If a facility identifies a resident who the facility
believes is inappropriately placed at the facility, the facility is
not required to move the resident if the facility obtains the
written statements and waiver prescribed by Subsection (c).
(c) If [a department inspector determines that] a resident
is inappropriately placed at a facility, the facility is not
required to move the resident if, not later than the 10th business
day after the date that the facility determines or is informed of
the department's [of the specific basis of the inspector's]
determination that a resident is inappropriately placed at the
facility, the facility:
(1) obtains a written assessment from a physician that
the resident is appropriately placed;
(2) obtains a written statement:
(A) from the resident that the resident wishes to
remain in the facility; or
(B) from a family member of the resident that the
family member wishes for the resident to remain in the facility, if
the resident lacks capacity to give a statement under this
subsection;
(3) states in writing that the facility wishes for the
resident to remain in the facility; and
(4) applies for and obtains a waiver from the
department of all applicable requirements for evacuation that the
facility does not meet with respect to the resident, if the facility
does not meet all requirements for the evacuation of residents with
respect to the resident.
(d) If the [a] department [inspector] determines that a
resident is inappropriately placed at a facility and the facility
either agrees with the determination or does not obtain the written
statements and waiver prescribed by Subsection (c) that would allow
the resident to remain in the facility [notwithstanding the
determination of the inspector, the department may not assess an
administrative penalty against the facility because of the
inappropriate placement. However], the facility shall discharge
the resident. The resident is allowed 30 days after the date of
discharge to move from the facility. A discharge required under
this subsection must be made notwithstanding:
(1) any other law, including any law relating to the
rights of residents and any obligations imposed under the Property
Code; and
(2) the terms of any contract.
(d-1) If a facility is required to discharge the resident
because the facility has not obtained the written statements
prescribed by Subsection (c) or the department does not approve a
waiver based on the written statements submitted, the department
may:
(1) assess an administrative penalty against the
facility if the facility intentionally or repeatedly disregards
department criteria for obtaining a waiver for inappropriate
placement of a resident;
(2) seek an emergency suspension or closing order
against the facility under Section 247.042 if the department
determines there is a significant risk to the residents of the
facility and an immediate threat to the health and safety of the
residents; or
(3) seek other sanctions against the facility under
Subchapter C in lieu of an emergency suspension or closing order if
the department determines there is a significant risk to a resident
of the facility and an immediate threat to the health and safety of
a resident.
(d-2) The executive commissioner by rule shall develop
criteria under which the department may determine when a facility
has intentionally or repeatedly disregarded the waiver process.
(e) To facilitate obtaining the written statements required
under Subsections (b-1) and (c)(1)-(3), the department shall
develop standard forms that must be used under Subsections (b-1) or
(c)(1)-(3), as appropriate. The department shall develop criteria
under which the department will determine, based on a resident's
specific situation, whether it will grant or deny a request for a
waiver under Subsection (b-1) or (c)(4).
(f) The department shall ensure that each facility and
resident is aware of the waiver process described by Subsection (c)
for aging in place. A facility must include with the facility
disclosure statement required under Section 247.026(b)(4)(B)
information regarding the policies and procedures for aging in
place described by this section.
(g) The department, in cooperation with assisted living
service providers, shall develop cost-effective training regarding
aging in place, retaliation, and other issues determined by the
department.
(h) The department shall require surveyors, facility
supervisors, and other staff, as appropriate, to complete the
training described by Subsection (g) annually.
SECTION 2. Section 247.068, Health and Safety Code, is
amended by adding Subsection (c) to read as follows:
(c) A department employee may not retaliate against an
assisted living facility, an employee of an assisted living
facility, or a person in control of an assisted living facility for:
(1) complaining about the conduct of a department
employee;
(2) disagreeing with a department employee about the
existence of a violation of this chapter or a rule adopted under
this chapter; or
(3) asserting a right under state or federal law.
SECTION 3. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2011.
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