By: Davis of Dallas, Rose H.B. No. 2025
(Senate Sponsor - Schwertner)
(In the Senate - Received from the House May 10, 2017;
May 11, 2017, read first time and referred to Committee on Health &
Human Services; May 19, 2017, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 9, Nays 0;
May 19, 2017, sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR H.B. No. 2025 By: Burton
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of certain long-term care facilities,
including facilities that provide care to persons with Alzheimer's
disease or related disorders; authorizing an administrative
penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 531.058(a) and (a-1), Government Code,
are amended to read as follows:
(a) The executive commissioner by rule shall establish an
informal dispute resolution process in accordance with this
section. The process must provide for adjudication by an
appropriate disinterested person of disputes relating to a proposed
enforcement action or related proceeding of the commission under
Section 32.021(d), Human Resources Code, or the Department of Aging
and Disability Services or its successor agency under Chapter 242,
247, or 252, Health and Safety Code. The informal dispute
resolution process must require:
(1) an institution or facility to request informal
dispute resolution not later than the 10th calendar day after
notification by the commission or department, as applicable, of the
violation of a standard or standards; and
(2) the commission to complete the process not later
than:
(A) the 30th calendar day after receipt of a
request from an institution or facility, other than an assisted
living facility, for informal dispute resolution; or
(B) the 90th calendar day after receipt of a
request from an assisted living facility for informal dispute
resolution.
(a-1) As part of the informal dispute resolution process
established under this section, the commission shall contract with
an appropriate disinterested person [who is a nonprofit
organization] to adjudicate disputes between an institution or
facility licensed under Chapter 242 or 247, Health and Safety Code,
and the Department of Aging and Disability Services or its
successor agency concerning a statement of violations prepared by
the department in connection with a survey conducted by the
department of the institution or facility. Section 2009.053 does
not apply to the selection of an appropriate disinterested person
under this subsection. The person with whom the commission
contracts shall adjudicate all disputes described by this
subsection.
SECTION 2. Subchapter B, Chapter 531, Government Code, is
amended by adding Section 531.0585 to read as follows:
Sec. 531.0585. ISSUANCE OF MATERIALS TO CERTAIN LONG-TERM
CARE FACILITIES. The executive commissioner shall review the
commission's methods for issuing informational letters, policy
updates, policy clarifications, and other related materials to an
entity licensed under Chapter 103, Human Resources Code, or Chapter
242, 247, 248A, or 252, Health and Safety Code, and develop and
implement more efficient methods to issue those materials as
appropriate.
SECTION 3. Section 242.066, Health and Safety Code, is
amended by amending Subsections (a) and (e) and adding Subsection
(i) 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 an 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; 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) deterrence of future violations; and
(5) efforts to correct the violation.
(i) 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
institution 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 4. Section 242.0665, Health and Safety Code, is
amended to read as follows:
Sec. 242.0665. RIGHT TO CORRECT. (a) The commission
[department] may not collect an administrative penalty against an
institution under this subchapter if, not later than the 45th day
after the date the institution receives notice under Section
242.067(c), the institution corrects the violation.
(b) Subsection (a) does not apply:
(1) to a violation that the commission [department]
determines:
(A) represents a pattern of violation that
results in actual [serious] harm [to or death of a resident];
(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) residents' rights;
(ii) treatment of residents;
(iii) resident behavior and institution
practices;
(iv) quality of care;
(v) medication errors;
(vi) standard menus and nutritional
adequacy;
(vii) physician visits;
(viii) infection control;
(ix) life safety from fire; or
(x) emergency preparedness and response;
(D) [(B)] constitutes an immediate [a serious]
threat to the health or safety of a resident; or
(E) [(C)] substantially limits the institution's
capacity to provide care;
(2) to a violation described by Sections
242.066(a)(2)-(7);
(3) to a violation of Section 260A.014 or 260A.015;
[or]
(4) to a violation of a right of a resident adopted
under Subchapter L; or
(5) 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 institution that corrects a violation under
Subsection (a) must maintain the correction. If the institution
fails to maintain the correction until at least the first
anniversary of the date the correction was made, the commission
[department] may assess an administrative penalty under this
subchapter for the subsequent violation. A penalty assessed under
this subsection shall be equal to three times the amount of the
penalty assessed but not collected under Subsection (a). The
commission [department] is not required to provide the institution
an opportunity to correct the subsequent violation under this
section.
(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 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.
(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 institution; or
(B) represents a systemic failure by the
institution that affects or has the potential to affect a large
portion of or all of the residents of the institution.
SECTION 5. Section 247.023, Health and Safety Code, is
amended to read as follows:
Sec. 247.023. ISSUANCE AND RENEWAL OF LICENSE. (a) The
commission [department] shall issue a license if, after inspection
and investigation, it finds that the applicant, the assisted living
facility, and all controlling persons with respect to the applicant
or facility meet the requirements of this chapter and the standards
adopted under this chapter. The license expires on the third
[second] anniversary of the date of its issuance. The executive
commissioner by rule shall [may] adopt a system under which
licenses expire on staggered [various] dates during each three-year
[the 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
during which the license is valid. A license holder shall pay the
total license renewal fee at the time of renewal].
(b) To renew a license, the license holder must submit to
the commission [department] the license renewal fee.
(c) The commission [department] may require participation
in a continuing education program as a condition of renewal of a
license. The executive commissioner shall adopt rules to implement
this subsection.
SECTION 6. Sections 247.024(a), (d), and (e), Health and
Safety Code, are amended to read as follows:
(a) The executive commissioner by rule shall set license
fees imposed by this chapter:
(1) on the basis of the number of beds in assisted
living facilities required to pay the fee; and
(2) in amounts reasonable and necessary to defray the
cost of administering this chapter, but not to exceed $2,250
[$1,500].
(d) Investigation fees or attorney's fees may not be
assessed against or collected from an assisted living facility by
or on behalf of the commission [department] or another state agency
unless the commission [department] or other state agency assesses
and collects a penalty authorized by this chapter from the
facility.
(e) An applicant who submits a 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 7. Section 247.027, Health and Safety Code, is
amended to read as follows:
Sec. 247.027. INSPECTIONS. (a) In addition to the
inspection required under Section 247.023(a), the commission:
(1) shall [department may] inspect each [an] assisted
living facility at least every two years following the initial
inspection required under Section 247.023(a); [annually] and
(2) may inspect a facility at other reasonable times
as necessary to assure compliance with this chapter.
(b) The commission [department] shall establish an
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
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.
(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
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.
(d) In this section:
(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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