Texas 2017 - 85th Regular

Texas Senate Bill SB932 Compare Versions

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1	1	By: Schwertner S.B. No. 932
2	2	(Price)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the licensing of, the executive commissioner of the
8	8	Health and Human Services Commission's duties with respect to, and
9	9	the administrative penalties for certain long-term care
10	10	facilities.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Sections 531.058(a) and (a-1), Government Code,
13	13	are amended to read as follows:
14	14	(a) The executive commissioner by rule shall establish an
15	15	informal dispute resolution process in accordance with this
16	16	section. The process must provide for adjudication by an
17	17	appropriate disinterested person of disputes relating to a proposed
18	18	enforcement action or related proceeding of the commission under
19	19	Section 32.021(d), Human Resources Code, or the Department of Aging
20	20	and Disability Services or its successor agency under Chapter 242,
21	21	247, or 252, Health and Safety Code. The informal dispute
22	22	resolution process must require:
23	23	(1) an institution or facility to request informal
24	24	dispute resolution not later than the 10th calendar day after
25	25	notification by the commission or department, as applicable, of the
26	26	violation of a standard or standards; and
27	27	(2) the commission to complete the process not later
28	28	than:
29	29	(A) the 30th calendar day after receipt of a
30	30	request from an institution or facility, other than an assisted
31	31	living facility, for informal dispute resolution; or
32	32	(B) the 90th calendar day after receipt of a
33	33	request from an assisted living facility for informal dispute
34	34	resolution.
35	35	(a-1) As part of the informal dispute resolution process
36	36	established under this section, the commission shall contract with
37	37	an appropriate disinterested person [who is a nonprofit
38	38	organization] to adjudicate disputes between an institution or
39	39	facility licensed under Chapter 242 or 247, Health and Safety Code,
40	40	and the Department of Aging and Disability Services or its
41	41	successor agency concerning a statement of violations prepared by
42	42	the department in connection with a survey conducted by the
43	43	department of the institution or facility. Section 2009.053 does
44	44	not apply to the selection of an appropriate disinterested person
45	45	under this subsection. The person with whom the commission
46	46	contracts shall adjudicate all disputes described by this
47	47	subsection.
48	48	SECTION 2. Subchapter B, Chapter 531, Government Code, is
49	49	amended by adding Section 531.0585 to read as follows:
50	50	Sec. 531.0585. ISSUANCE OF MATERIALS TO CERTAIN LONG-TERM
51	51	CARE FACILITIES. The executive commissioner shall review the
52	52	commission's methods for issuing informational letters, policy
53	53	updates, policy clarifications, and other related materials to an
54	54	entity licensed under Chapter 103, Human Resources Code, or Chapter
55	55	242, 247, 248A, or 252, Health and Safety Code, and develop and
56	56	implement more efficient methods to issue those materials as
57	57	appropriate.
58	58	SECTION 3. Section 242.066, Health and Safety Code, is
59	59	amended by amending Subsections (a) and (e) and adding Subsection
60	60	(i) to read as follows:
61	61	(a) The commission [department] may assess an
62	62	administrative penalty against a person who:
63	63	(1) violates this chapter or a rule, standard, or
64	64	order adopted or license issued under this chapter;
65	65	(2) makes a false statement, that the person knows or
66	66	should know is false, of a material fact:
67	67	(A) on an application for issuance or renewal of
68	68	a license or in an attachment to the application; or
69	69	(B) with respect to a matter under investigation
70	70	by the commission [department];
71	71	(3) refuses to allow a representative of the
72	72	commission [department] to inspect:
73	73	(A) a book, record, or file required to be
74	74	maintained by an institution; or
75	75	(B) any portion of the premises of an
76	76	institution;
77	77	(4) wilfully interferes with the work of a
78	78	representative of the commission [department] or the enforcement of
79	79	this chapter;
80	80	(5) wilfully interferes with a representative of the
81	81	commission [department] preserving evidence of a violation of this
82	82	chapter or a rule, standard, or order adopted or license issued
83	83	under this chapter;
84	84	(6) fails to pay a penalty assessed by the commission
85	85	[department] under this chapter not later than the 10th day after
86	86	the date the assessment of the penalty becomes final; or
87	87	(7) fails to notify the commission [department] of a
88	88	change of ownership before the effective date of the change of
89	89	ownership.
90	90	(e) In determining the amount of a penalty, the commission
91	91	[department] shall consider any matter that justice may require,
92	92	including:
93	93	(1) the gradations of penalties established under
94	94	Subsection (d);
95	95	(2) the seriousness of the violation, including the
96	96	nature, circumstances, extent, and gravity of the prohibited act
97	97	and the hazard or potential hazard created by the act to the health
98	98	or safety of the public;
99	99	(3) the history of previous violations;
100	100	(4) deterrence of future violations; and
101	101	(5) efforts to correct the violation.
102	102	(i) The commission shall develop and use a system to record
103	103	and track the scope and severity of each violation of this chapter
104	104	or a rule, standard, or order adopted under this chapter for the
105	105	purpose of assessing an administrative penalty for the violation or
106	106	taking some other enforcement action against the appropriate
107	107	institution to deter future violations. The system:
108	108	(1) must be comparable to the system used by the
109	109	Centers for Medicare and Medicaid Services to categorize the scope
110	110	and severity of violations for nursing homes; and
111	111	(2) may be modified, as appropriate, to reflect
112	112	changes in industry practice or changes made to the system used by
113	113	the Centers for Medicare and Medicaid Services.
114	114	SECTION 4. Section 242.0665, Health and Safety Code, is
115	115	amended to read as follows:
116	116	Sec. 242.0665. RIGHT TO CORRECT. (a) The commission
117	117	[department] may not collect an administrative penalty against an
118	118	institution under this subchapter if, not later than the 45th day
119	119	after the date the institution receives notice under Section
120	120	242.067(c), the institution corrects the violation.
121	121	(b) Subsection (a) does not apply:
122	122	(1) to a violation that the commission [department]
123	123	determines:
124	124	(A) represents a pattern of violation that
125	125	results in actual [serious] harm [to or death of a resident];
126	126	(B) is widespread in scope and results in actual
127	127	harm;
128	128	(C) is widespread in scope, constitutes a
129	129	potential for actual harm, and relates to:
130	130	(i) residents' rights;
131	131	(ii) treatment of residents;
132	132	(iii) resident behavior and institution
133	133	practices;
134	134	(iv) quality of care;
135	135	(v) medication errors;
136	136	(vi) standard menus and nutritional
137	137	adequacy;
138	138	(vii) physician visits;
139	139	(viii) infection control;
140	140	(ix) life safety from fire; or
141	141	(x) emergency preparedness and response;
142	142	(D) [(B)] constitutes an immediate [a serious]
143	143	threat to the health or safety of a resident; or
144	144	(E) [(C)] substantially limits the institution's
145	145	capacity to provide care;
146	146	(2) to a violation described by Sections
147	147	242.066(a)(2)-(7);
148	148	(3) to a violation of Section 260A.014 or 260A.015; or
149	149	(4) to a violation of a right of a resident adopted
150	150	under Subchapter L.
151	151	(c) An institution that corrects a violation under
152	152	Subsection (a) must maintain the correction. If the institution
153	153	fails to maintain the correction until at least the first
154	154	anniversary of the date the correction was made, the commission
155	155	[department] may assess an administrative penalty under this
156	156	subchapter for the subsequent violation. A penalty assessed under
157	157	this subsection shall be equal to three times the amount of the
158	158	penalty assessed but not collected under Subsection (a). The
159	159	commission [department] is not required to provide the institution
160	160	an opportunity to correct the subsequent violation under this
161	161	section.
162	162	(d) In this section:
163	163	(1) "Actual harm" means a negative outcome that
164	164	compromises a resident's physical, mental, or emotional
165	165	well-being.
166	166	(2) "Immediate threat to the health or safety of a
167	167	resident" means a situation that causes, or is likely to cause,
168	168	serious injury, harm, or impairment to or the death of a resident.
169	169	(3) "Pattern of violation" means repeated, but not
170	170	pervasive, failures of an institution to comply with this chapter
171	171	or a rule, standard, or order adopted under this chapter that:
172	172	(A) result in a violation; and
173	173	(B) are found throughout the services provided by
174	174	the institution or that affect or involve the same residents or
175	175	institution employees.
176	176	(4) "Widespread in scope" means a violation of this
177	177	chapter or a rule, standard, or order adopted under this chapter
178	178	that:
179	179	(A) is pervasive throughout the services
180	180	provided by the institution; or
181	181	(B) represents a systemic failure by the
182	182	institution that affects or has the potential to affect a large
183	183	portion of or all of the residents of the institution.
184	184	SECTION 5. Section 247.023, Health and Safety Code, is
185	185	amended to read as follows:
186	186	Sec. 247.023. ISSUANCE AND RENEWAL OF LICENSE. (a) The
187	187	commission [department] shall issue a license if, after inspection
188	188	and investigation, it finds that the applicant, the assisted living
189	189	facility, and all controlling persons with respect to the applicant
190	190	or facility meet the requirements of this chapter and the standards
191	191	adopted under this chapter. The license expires on the third
192	192	[second] anniversary of the date of its issuance. The executive
193	193	commissioner by rule shall [may] adopt a system under which
194	194	licenses expire on staggered [various] dates during each [the]
195	195	three-year [two-year] period. The commission shall prorate the
196	196	license fee as appropriate if the expiration date of a license
197	197	changes as a result of this subsection [For the year in which a
198	198	license expiration date is changed, the department shall prorate
199	199	the license fee on a monthly basis. Each license holder shall pay
200	200	only that portion of the license fee allocable to the number of
201	201	months during which the license is valid. A license holder shall
202	202	pay the total license renewal fee at the time of renewal].
203	203	(b) To renew a license, the license holder must submit to
204	204	the commission [department] the license renewal fee.
205	205	(c) The commission [department] may require participation
206	206	in a continuing education program as a condition of renewal of a
207	207	license. The executive commissioner shall adopt rules to implement
208	208	this subsection.
209	209	SECTION 6. Sections 247.024(a), (d), and (e), Health and
210	210	Safety Code, are amended to read as follows:
211	211	(a) The executive commissioner by rule shall set license
212	212	fees imposed by this chapter:
213	213	(1) on the basis of the number of beds in assisted
214	214	living facilities required to pay the fee; and
215	215	(2) in amounts reasonable and necessary to defray the
216	216	cost of administering this chapter, but not to exceed $2,250
217	217	[$1,500].
218	218	(d) Investigation fees or attorney's fees may not be
219	219	assessed against or collected from an assisted living facility by
220	220	or on behalf of the commission [department] or another state agency
221	221	unless the commission [department] or other state agency assesses
222	222	and collects a penalty authorized by this chapter from the
223	223	facility.
224	224	(e) An applicant who submits a license renewal later than
225	225	the 45th day before the expiration date of a current license is
226	226	subject to a late fee in accordance with commission [department]
227	227	rules.
228	228	SECTION 7. Section 247.027, Health and Safety Code, is
229	229	amended to read as follows:
230	230	Sec. 247.027. INSPECTIONS. (a) In addition to the
231	231	inspection required under Section 247.023(a), the commission:
232	232	(1) shall [department may] inspect each [an] assisted
233	233	living facility at least every two years following the initial
234	234	inspection required under Section 247.023(a); [annually] and
235	235	(2) may inspect a facility at other reasonable times
236	236	as necessary to assure compliance with this chapter.
237	237	(b) The commission [department] shall establish an
238	238	inspection checklist based on the minimum standards that describes
239	239	the matters subject to inspection. The commission [department]
240	240	shall use the inspection checklist in conducting inspections under
241	241	this section and Section 247.023(a).
242	242	SECTION 8. Section 247.0451, Health and Safety Code, is
243	243	amended by amending Subsections (a), (b), (d), and (f) and adding
244	244	Subsections (g) and (h) to read as follows:
245	245	(a) The commission [department] may assess an
246	246	administrative penalty against a person who:
247	247	(1) violates this chapter or a rule, standard, or
248	248	order adopted under this chapter or a term of a license issued under
249	249	this chapter;
250	250	(2) makes a false statement, that the person knows or
251	251	should know is false, of a material fact:
252	252	(A) on an application for issuance or renewal of
253	253	a license or in an attachment to the application; or
254	254	(B) with respect to a matter under investigation
255	255	by the commission [department];
256	256	(3) refuses to allow a representative of the
257	257	commission [department] to inspect:
258	258	(A) a book, record, or file required to be
259	259	maintained by an assisted living facility; or
260	260	(B) any portion of the premises of an assisted
261	261	living facility;
262	262	(4) wilfully interferes with the work of a
263	263	representative of the commission [department] or the enforcement of
264	264	this chapter;
265	265	(5) wilfully interferes with a representative of the
266	266	commission [department] preserving evidence of a violation of this
267	267	chapter or a rule, standard, or order adopted under this chapter or
268	268	a term of a license issued under this chapter;
269	269	(6) fails to pay a penalty assessed under this chapter
270	270	not later than the 30th day after the date the assessment of the
271	271	penalty becomes final; or
272	272	(7) fails to notify the commission [department] of a
273	273	change of ownership before the effective date of the change of
274	274	ownership.
275	275	(b) Except as provided by Section 247.0452(c), the penalty
276	276	may not exceed:
277	277	(1) $5,000 for each violation that:
278	278	(A) represents a pattern of violation that
279	279	results in actual harm or is widespread in scope and results in
280	280	actual harm; or
281	281	(B) constitutes an immediate threat to the health
282	282	or safety of a resident; or
283	283	(2) $1,000 for each other violation.
284	284	(d) In determining the amount of a penalty, the commission
285	285	[department] shall consider any matter that justice may require,
286	286	but must consider each of the following and make a record of the
287	287	extent to which each of the following was considered:
288	288	(1) the gradations of penalties established under
289	289	Subsection (c);
290	290	(2) the seriousness of the violation, including the
291	291	nature, circumstances, extent, and gravity of the prohibited act
292	292	and the hazard or potential hazard created by the act to the health
293	293	or safety of the public;
294	294	(3) the history of previous violations;
295	295	(4) deterrence of future violations;
296	296	(5) efforts to correct the violation; and
297	297	(6) the size of the facility and of the business entity
298	298	that owns the facility.
299	299	(f) The commission [department] may not assess a penalty
300	300	under this section against a resident of an assisted living
301	301	facility unless the resident is also an employee of the facility or
302	302	a controlling person.
303	303	(g) The commission shall develop and use a system to record
304	304	and track the scope and severity of each violation of this chapter
305	305	or a rule, standard, or order adopted under this chapter for the
306	306	purpose of assessing an administrative penalty for the violation or
307	307	taking some other enforcement action against the appropriate
308	308	assisted living facility to deter future violations. The system:
309	309	(1) must be comparable to the system used by the
310	310	Centers for Medicare and Medicaid Services to categorize the scope
311	311	and severity of violations for nursing homes; and
312	312	(2) may be modified, as appropriate, to reflect
313	313	changes in industry practice or changes made to the system used by
314	314	the Centers for Medicare and Medicaid Services.
315	315	(h) In this section, "actual harm," "immediate threat to the
316	316	health or safety of a resident," "pattern of violation," and
317	317	"widespread in scope" have the meanings assigned by Section
318	318	247.0452.
319	319	SECTION 9. Section 247.0452, Health and Safety Code, is
320	320	amended to read as follows:
321	321	Sec. 247.0452. RIGHT TO CORRECT. (a) The commission
322	322	[department] may not collect an administrative penalty from an
323	323	assisted living facility under Section 247.0451 if, not later than
324	324	the 45th day after the date the facility receives notice under
325	325	Section 247.0453(c), the facility corrects the violation.
326	326	(b) Subsection (a) does not apply:
327	327	(1) to a violation that the commission [department]
328	328	determines represents a pattern of violation that results in actual
329	329	[serious] harm [to or death of a resident];
330	330	(2) to a violation that the commission determines is
331	331	widespread in scope and results in actual harm;
332	332	(3) to a violation that the commission determines is
333	333	widespread in scope, constitutes a potential for actual harm, and
334	334	relates to:
335	335	(A) resident assessment;
336	336	(B) staffing, including staff training;
337	337	(C) administration of medication;
338	338	(D) infection control;
339	339	(E) restraints; or
340	340	(F) emergency preparedness and response;
341	341	(4) to a violation that the commission determines
342	342	constitutes an immediate threat to the health or safety of a
343	343	resident;
344	344	(5) [(2)] to a violation described by Sections
345	345	247.0451(a)(2)-(7) or a violation of Section 260A.014 or 260A.015;
346	346	(6) [(3)] to a second or subsequent violation of:
347	347	(A) a right of the same resident under Section
348	348	247.064; or
349	349	(B) the same right of all residents under Section
350	350	247.064; or
351	351	(7) [(4)] to a violation described by Section 247.066,
352	352	which contains its own right to correct provisions.
353	353	(c) An assisted living facility that corrects a violation
354	354	must maintain the correction. If the facility fails to maintain the
355	355	correction until at least the first anniversary of the date the
356	356	correction was made, the commission [department] may assess and
357	357	collect an administrative penalty for the subsequent violation. An
358	358	administrative penalty assessed under this subsection is equal to
359	359	three times the amount of the original penalty assessed but not
360	360	collected. The commission [department] is not required to provide
361	361	the facility with an opportunity under this section to correct the
362	362	subsequent violation.
363	363	(d) In this section:
364	364	(1) "Actual harm" means a negative outcome that
365	365	compromises a resident's physical, mental, or emotional
366	366	well-being.
367	367	(2) "Immediate threat to the health or safety of a
368	368	resident" means a situation that causes, or is likely to cause,
369	369	serious injury, harm, or impairment to or the death of a resident.
370	370	(3) "Pattern of violation" means repeated, but not
371	371	pervasive, failures of an assisted living facility to comply with
372	372	this chapter or a rule, standard, or order adopted under this
373	373	chapter that:
374	374	(A) result in a violation; and
375	375	(B) are found throughout the services provided by
376	376	the facility or that affect or involve the same residents or
377	377	facility employees.
378	378	(4) "Widespread in scope" means a violation of this
379	379	chapter or a rule, standard, or order adopted under this chapter
380	380	that:
381	381	(A) is pervasive throughout the services
382	382	provided by the assisted living facility; or
383	383	(B) represents a systemic failure by the assisted
384	384	living facility that affects or has the potential to affect a large
385	385	portion of or all of the residents of the facility.
386	386	SECTION 10. Section 248A.053, Health and Safety Code, is
387	387	amended to read as follows:
388	388	Sec. 248A.053. INITIAL OR RENEWAL LICENSE TERM; RENEWAL;
389	389	NOTIFICATION. (a) An initial or renewal license issued under this
390	390	chapter expires on the third [second] anniversary of the date of
391	391	issuance. The executive commissioner by rule shall adopt a system
392	392	under which licenses expire on staggered dates during each
393	393	three-year period. The commission shall prorate the license fee as
394	394	appropriate if the expiration date of a license changes as a result
395	395	of this subsection.
396	396	(b) A person applying to renew a center license shall:
397	397	(1) submit a renewal application to the commission
398	398	[department] on a [the form] prescribed form [by the department] at
399	399	least 60 days but not more than 120 days before expiration of the
400	400	license;
401	401	(2) submit the renewal fee in the amount required by
402	402	agency [department] rule; and
403	403	(3) comply with any other requirements specified by
404	404	agency [department] rule.
405	405	(c) The commission [department] shall assess a $50 per day
406	406	late fee to a license holder who submits a renewal application after
407	407	the date required by Subsection (b)(1), except that the total
408	408	amount of a late fee may not exceed the lesser of 50 percent of the
409	409	license renewal fee or $500.
410	410	(d) At least 120 days before expiration of a center license,
411	411	the commission [department] shall notify the owner or operator of
412	412	the center of the license expiration.
413	413	SECTION 11. Subchapter F, Chapter 248A, Health and Safety
414	414	Code, is amended by adding Section 248A.2515 to read as follows:
415	415	Sec. 248A.2515. SYSTEM FOR ASSESSMENT OF PENALTY. The
416	416	commission shall develop and use a system to record and track the
417	417	scope and severity of each violation of this chapter or a rule or
418	418	standard adopted or order issued under this chapter for the purpose
419	419	of assessing an administrative penalty for the violation or taking
420	420	some other enforcement action against the appropriate center to
421	421	deter future violations. The system:
422	422	(1) must be comparable to the system used by the
423	423	Centers for Medicare and Medicaid Services to categorize the scope
424	424	and severity of violations for nursing homes; and
425	425	(2) may be modified, as appropriate, to reflect
426	426	changes in industry practice or changes made to the system used by
427	427	the Centers for Medicare and Medicaid Services.
428	428	SECTION 12. Sections 252.033(a), (b), (d), (f), and (h),
429	429	Health and Safety Code, are amended to read as follows:
430	430	(a) After receiving the application, the commission
431	431	[department] shall issue a license if, after inspection and
432	432	investigation, it finds that the applicant and facility meet the
433	433	requirements established under this chapter.
434	434	(b) The commission [department] may issue a license only
435	435	for:
436	436	(1) the premises and persons or governmental unit
437	437	named in the application; and
438	438	(2) the maximum number of beds specified in the
439	439	application.
440	440	(d) A license is renewable on the third [second] anniversary
441	441	of issuance or renewal of the license after:
442	442	(1) an inspection;
443	443	(2) filing and approval of a renewal report; and
444	444	(3) payment of the renewal fee.
445	445	(f) The commission [department] may not issue a license for
446	446	new beds or an expansion of an existing facility under this chapter
447	447	unless the addition of new beds or the expansion is included in the
448	448	plan approved by the commission in accordance with Section
449	449	533A.062.
450	450	(h) The executive commissioner by rule shall:
451	451	(1) define specific, appropriate, and objective
452	452	criteria on which the commission [department] may deny an initial
453	453	license application or license renewal or revoke a license; and
454	454	(2) adopt a system under which:
455	455	(A) licenses expire on staggered dates during
456	456	each three-year period; and
457	457	(B) the commission prorates the license fee as
458	458	appropriate if the expiration date of a license changes as a result
459	459	of the system adopted under Paragraph (A).
460	460	SECTION 13. Sections 252.034(a), (e), and (f), Health and
461	461	Safety Code, are amended to read as follows:
462	462	(a) The executive commissioner by rule may adopt a fee for a
463	463	license issued under this chapter. The fee may not exceed $225
464	464	[$150] plus $7.50 [$5] for each unit of capacity or bed space for
465	465	which the license is sought.
466	466	(e) All license fees collected under this section shall be
467	467	deposited in the state treasury to the credit of the commission
468	468	[department] and may be appropriated to the commission [department]
469	469	to administer and enforce this chapter.
470	470	(f) An applicant who submits an application for license
471	471	renewal later than the 45th day before the expiration date of a
472	472	current license is subject to a late fee in accordance with
473	473	commission [department] rules.
474	474	SECTION 14. Section 252.041, Health and Safety Code, is
475	475	amended to read as follows:
476	476	Sec. 252.041. UNANNOUNCED INSPECTIONS. (a) Each
477	477	licensing period, the commission [department] shall conduct at
478	478	least three [two] unannounced inspections of each facility.
479	479	(b) In order to ensure continuous compliance, the
480	480	commission [department] shall randomly select a sufficient
481	481	percentage of facilities for unannounced inspections to be
482	482	conducted between 5 p.m. and 8 a.m. Those inspections must be
483	483	cursory to avoid to the greatest extent feasible any disruption of
484	484	the residents.
485	485	(c) The commission [department] may require additional
486	486	inspections.
487	487	(d) As considered appropriate and necessary by the
488	488	commission [department], the commission [department] may invite at
489	489	least one person as a citizen advocate to participate in
490	490	inspections. The invited advocate must be an individual who has an
491	491	interest in or who is employed by or affiliated with an organization
492	492	or entity that represents, advocates for, or serves individuals
493	493	with an intellectual disability or a related condition.
494	494	SECTION 15. Section 252.065, Health and Safety Code, is
495	495	amended by amending Subsections (a), (b), (e), (f), (i), and (j) and
496	496	adding Subsections (l) and (m) to read as follows:
497	497	(a) The commission [department] may assess an
498	498	administrative penalty against a person who:
499	499	(1) violates this chapter or a rule, standard, or
500	500	order adopted or license issued under this chapter;
501	501	(2) makes a false statement, that the person knows or
502	502	should know is false, of a material fact:
503	503	(A) on an application for issuance or renewal of
504	504	a license or in an attachment to the application; or
505	505	(B) with respect to a matter under investigation
506	506	by the commission [department];
507	507	(3) refuses to allow a representative of the
508	508	commission [department] to inspect:
509	509	(A) a book, record, or file required to be
510	510	maintained by the institution; or
511	511	(B) any portion of the premises of an
512	512	institution;
513	513	(4) wilfully interferes with the work of a
514	514	representative of the commission [department] or the enforcement of
515	515	this chapter;
516	516	(5) wilfully interferes with a representative of the
517	517	commission [department] preserving evidence of a violation of this
518	518	chapter or a rule, standard, or order adopted or license issued
519	519	under this chapter;
520	520	(6) fails to pay a penalty assessed by the commission
521	521	[department] under this chapter not later than the 10th day after
522	522	the date the assessment of the penalty becomes final;
523	523	(7) fails to submit a plan of correction within 10 days
524	524	after receiving a statement of licensing violations; or
525	525	(8) fails to notify the commission [department] of a
526	526	change in ownership before the effective date of that change of
527	527	ownership.
528	528	(b) The penalty for a facility with fewer than 60 beds shall
529	529	be not less than $100 or more than $1,000 for each violation. The
530	530	penalty for a facility with 60 beds or more shall be not less than
531	531	$100 or more than $5,000 for each violation. [The total amount of
532	532	the penalty assessed for a violation continuing or occurring on
533	533	separate days under this subsection may not exceed $5,000 for a
534	534	facility with fewer than 60 beds or $25,000 for a facility with 60
535	535	beds or more.] Each day a violation occurs or continues is a
536	536	separate violation for purposes of imposing a penalty.
537	537	(e) The executive commissioner by rule shall provide the
538	538	facility with a reasonable period of time, not less than 45 days,
539	539	following the first day of a violation to correct the violation
540	540	before the commission [department] may assess an administrative
541	541	penalty if a plan of correction has been implemented. This
542	542	subsection does not apply to a violation described by Subsections
543	543	(a)(2)-(8) or to a violation that the commission [department]
544	544	determines:
545	545	(1) represents a pattern of violation that results
546	546	[has resulted] in actual [serious] harm [to or the death of a
547	547	resident];
548	548	(2) is widespread in scope and results in actual harm;
549	549	(3) is widespread in scope, constitutes a potential
550	550	for actual harm, and relates to:
551	551	(A) staff treatment of a resident;
552	552	(B) active treatment;
553	553	(C) client behavior and facility practices;
554	554	(D) health care services;
555	555	(E) drug administration;
556	556	(F) infection control;
557	557	(G) food and nutrition services; or
558	558	(H) emergency preparedness and response;
559	559	(4) [(2)] constitutes an immediate [a serious] threat
560	560	to the health or safety of a resident; or
561	561	(5) [(3)] substantially limits the facility's
562	562	[institution's] capacity to provide care.
563	563	(f) The commission [department] may not assess an
564	564	administrative penalty for a minor violation if the person corrects
565	565	the violation not later than the 46th day after the date the person
566	566	receives notice of the violation.
567	567	(i) The commission [department] may not assess an
568	568	administrative penalty against a state agency.
569	569	(j) Notwithstanding any other provision of this section, an
570	570	administrative penalty ceases to be incurred on the date a
571	571	violation is corrected. The administrative penalty ceases to be
572	572	incurred only if the facility:
573	573	(1) notifies the commission [department] in writing of
574	574	the correction of the violation and of the date the violation was
575	575	corrected; and
576	576	(2) shows later that the violation was corrected.
577	577	(l) The commission shall develop and use a system to record
578	578	and track the scope and severity of each violation of this chapter
579	579	or a rule, standard, or order adopted under this chapter for the
580	580	purpose of assessing an administrative penalty for the violation or
581	581	taking some other enforcement action against the appropriate
582	582	facility to deter future violations. The system:
583	583	(1) must be comparable to the system used by the
584	584	Centers for Medicare and Medicaid Services to categorize the scope
585	585	and severity of violations for nursing homes; and
586	586	(2) may be modified, as appropriate, to reflect
587	587	changes in industry practice or changes made to the system used by
588	588	the Centers for Medicare and Medicaid Services.
589	589	(m) In this section:
590	590	(1) "Actual harm" means a negative outcome that
591	591	compromises a resident's physical, mental, or emotional
592	592	well-being.
593	593	(2) "Immediate threat to the health or safety of a
594	594	resident" means a situation that causes, or is likely to cause,
595	595	serious injury, harm, or impairment to or the death of a resident.
596	596	(3) "Pattern of violation" means repeated, but not
597	597	pervasive, failures of a facility to comply with this chapter or a
598	598	rule, standard, or order adopted under this chapter that:
599	599	(A) result in a violation; and
600	600	(B) are found throughout the services provided by
601	601	the facility or that affect or involve the same residents or
602	602	facility employees.
603	603	(4) "Widespread in scope" means a violation of this
604	604	chapter or a rule, standard, or order adopted under this chapter
605	605	that:
606	606	(A) is pervasive throughout the services
607	607	provided by the facility; or
608	608	(B) that affects or has the potential to affect a
609	609	large portion of or all of the residents of the facility.
610	610	SECTION 16. Section 103.003, Human Resources Code, is
611	611	amended by amending Subdivision (1) and adding Subdivisions (1-a)
612	612	and (4-b) to read as follows:
613	613	(1) "Commission" means the Health and Human Services
614	614	Commission.
615	615	(1-a) "Day activity and health services facility"
616	616	means a facility that provides services under a day activity and
617	617	health services program on a daily or regular basis but not
618	618	overnight to four or more elderly persons or persons with
619	619	disabilities who are not related by blood, marriage, or adoption to
620	620	the owner of the facility.
621	621	(4-b) "Facility" means a day activity and health
622	622	services facility.
623	623	SECTION 17. Sections 103.006(a) and (b), Human Resources
624	624	Code, are amended to read as follows:
625	625	(a) The commission [department] shall issue a license to
626	626	operate a day activity and health services facility to a person who
627	627	has met the application requirements and received approval after an
628	628	on-site inspection.
629	629	(b) The license expires three [two] years from the date of
630	630	its issuance. The executive commissioner by rule shall [may] adopt
631	631	a system under which licenses expire on staggered [various] dates
632	632	during the three-year [two-year] period. The commission shall
633	633	prorate the license fee as appropriate if the expiration date of a
634	634	license changes as a result of this subsection [For the year in
635	635	which a license expiration date is changed, the department shall
636	636	prorate the license fee on a monthly basis. Each license holder
637	637	shall pay only that portion of the license fee allocable to the
638	638	number of months for which the license is valid. A license holder
639	639	shall pay the total license renewal fee at the time of renewal].
640	640	SECTION 18. Section 103.007, Human Resources Code, is
641	641	amended to read as follows:
642	642	Sec. 103.007. LICENSE APPLICATION. (a) An applicant for a
643	643	license to operate a day activity and health services facility must
644	644	file an application on a form prescribed by the commission
645	645	[department] together with a license fee of $75 [$50].
646	646	(b) The applicant must provide evidence of:
647	647	(1) the ability to comply with the requirements of the
648	648	commission [department];
649	649	(2) responsible management; and
650	650	(3) qualified professional staff and personnel.
651	651	(c) A person who operates a facility that is licensed under
652	652	this chapter must file an application for a renewal license not
653	653	later than the 45th day before the expiration date of the current
654	654	license on a form prescribed by the commission [department]
655	655	together with a renewal fee of $50.
656	656	(d) An applicant for a license renewal who submits an
657	657	application later than the 45th day before the expiration date of
658	658	the license is subject to a late fee in accordance with commission
659	659	[department] rules.
660	660	SECTION 19. Section 103.008, Human Resources Code, is
661	661	amended to read as follows:
662	662	Sec. 103.008. INSPECTIONS. (a) In addition to the
663	663	inspection required under Section 103.006(a), the commission:
664	664	(1) shall inspect each facility every two years
665	665	following the initial inspection required under Section
666	666	103.006(a); and
667	667	(2) [The department] may inspect [enter the premises
668	668	of] a facility at other reasonable times as [and make an inspection]
669	669	necessary to ensure compliance with this chapter [issue a license
670	670	or renew a license].
671	671	(b) Any person may request an inspection of a facility by
672	672	notifying the commission [department] in writing of an alleged
673	673	violation of a licensing requirement. The complaint shall be as
674	674	detailed as possible and signed by the complainant. The commission
675	675	[department] shall perform an on-site inspection as soon as
676	676	feasible but no later than 30 days after receiving the complaint
677	677	unless after an investigation the complaint is found to be
678	678	frivolous. The commission [department] shall respond to a
679	679	complainant in writing. The commission [department] shall also
680	680	receive and investigate anonymous complaints.
681	681	SECTION 20. Section 103.012, Human Resources Code, is
682	682	amended by amending Subsections (a) and (e) and adding Subsection
683	683	(g) to read as follows:
684	684	(a) The commission [department] may assess an
685	685	administrative penalty against a person who:
686	686	(1) violates this chapter, a rule, standard, or order
687	687	adopted under this chapter, or a term of a license issued under this
688	688	chapter;
689	689	(2) makes a false statement of a material fact that the
690	690	person knows or should know is false:
691	691	(A) on an application for issuance or renewal of
692	692	a license or in an attachment to the application; or
693	693	(B) with respect to a matter under investigation
694	694	by the commission [department];
695	695	(3) refuses to allow a representative of the
696	696	commission [department] to inspect:
697	697	(A) a book, record, or file required to be
698	698	maintained by a day activity and health services facility; or
699	699	(B) any portion of the premises of a day activity
700	700	and health services facility;
701	701	(4) wilfully interferes with the work of a
702	702	representative of the commission [department] or the enforcement of
703	703	this chapter;
704	704	(5) wilfully interferes with a representative of the
705	705	commission [department] preserving evidence of a violation of this
706	706	chapter, a rule, standard, or order adopted under this chapter, or a
707	707	term of a license issued under this chapter;
708	708	(6) fails to pay a penalty assessed under this chapter
709	709	not later than the 30th day after the date the assessment of the
710	710	penalty becomes final; or
711	711	(7) fails to notify the commission [department] of a
712	712	change of ownership before the effective date of the change of
713	713	ownership.
714	714	(e) In determining the amount of a penalty, the commission
715	715	[department] shall consider any matter that justice may require,
716	716	including:
717	717	(1) the gradations of penalties established under
718	718	Subsection (d);
719	719	(2) the seriousness of the violation, including the
720	720	nature, circumstances, extent, and gravity of the prohibited act
721	721	and the hazard or potential hazard created by the act to the health
722	722	or safety of the public;
723	723	(3) the history of previous violations;
724	724	(4) the deterrence of future violations; and
725	725	(5) the efforts to correct the violation.
726	726	(g) The commission shall develop and use a system to record
727	727	and track the scope and severity of each violation of this chapter
728	728	or a rule, standard, or order adopted under this chapter for the
729	729	purpose of assessing an administrative penalty for the violation or
730	730	taking some other enforcement action against the appropriate
731	731	facility to deter future violations. The system:
732	732	(1) must be comparable to the system used by the
733	733	Centers for Medicare and Medicaid Services to categorize the scope
734	734	and severity of violations for nursing homes; and
735	735	(2) may be modified, as appropriate, to reflect
736	736	changes in industry practice or changes made to the system used by
737	737	the Centers for Medicare and Medicaid Services.
738	738	SECTION 21. Section 103.013, Human Resources Code, is
739	739	amended to read as follows:
740	740	Sec. 103.013. RIGHT TO CORRECT BEFORE IMPOSITION OF
741	741	ADMINISTRATIVE PENALTY. (a) The commission [department] may not
742	742	collect an administrative penalty from a day activity and health
743	743	services facility under Section 103.012 if, not later than the 45th
744	744	day after the date the facility receives notice under Section
745	745	103.014(c), the facility corrects the violation.
746	746	(b) Subsection (a) does not apply to:
747	747	(1) a violation that the commission [department]
748	748	determines:
749	749	(A) represents a pattern of violation that
750	750	results in actual [serious] harm [to or death of a person attending
751	751	the facility];
752	752	(B) is widespread in scope and results in actual
753	753	harm;
754	754	(C) is widespread in scope, constitutes a
755	755	potential for actual harm, and relates to:
756	756	(i) staffing, including staff training,
757	757	ratio, and health;
758	758	(ii) administration of medication; or
759	759	(iii) emergency preparedness and response;
760	760	(D) [(B)] constitutes an immediate [a serious]
761	761	threat to the health or [and] safety of an elderly person or a
762	762	person with a disability receiving services at a [a person
763	763	attending the] facility; or
764	764	(E) [(C)] substantially limits the facility's
765	765	capacity to provide care;
766	766	(2) a violation described by Sections
767	767	103.012(a)(2)-(7); or
768	768	(3) a violation of Section 103.011.
769	769	(c) A day activity and health services facility that
770	770	corrects a violation must maintain the correction. If the facility
771	771	fails to maintain the correction until at least the first
772	772	anniversary after the date the correction was made, the commission
773	773	[department] may assess and collect an administrative penalty for
774	774	the subsequent violation. An administrative penalty assessed under
775	775	this subsection is equal to three times the amount of the original
776	776	penalty assessed but not collected. The commission [department] is
777	777	not required to provide the facility with an opportunity under this
778	778	section to correct the subsequent violation.
779	779	(d) In this section:
780	780	(1) "Actual harm" means a negative outcome that
781	781	compromises the physical, mental, or emotional well-being of an
782	782	elderly person or a person with a disability receiving services at a
783	783	facility.
784	784	(2) "Immediate threat to the health or safety of an
785	785	elderly person or a person with a disability" means a situation that
786	786	causes, or is likely to cause, serious injury, harm, or impairment
787	787	to or the death of an elderly person or a person with a disability
788	788	receiving services at a facility.
789	789	(3) "Pattern of violation" means repeated, but not
790	790	pervasive, failures of a facility to comply with this chapter or a
791	791	rule, standard, or order adopted under this chapter that:
792	792	(A) result in a violation; and
793	793	(B) are found throughout the services provided by
794	794	the facility or that affect or involve the same elderly persons or
795	795	persons with disabilities receiving services at the facility or the
796	796	same facility employees.
797	797	(4) "Widespread in scope" means a violation of this
798	798	chapter or a rule, standard, or order adopted under this chapter
799	799	that:
800	800	(A) is pervasive throughout the services
801	801	provided by the facility; or
802	802	(B) represents a systemic failure by the facility
803	803	that affects or has the potential to affect a large portion of or
804	804	all of the elderly persons or persons with disabilities receiving
805	805	services at the facility.
806	806	SECTION 22. Section 247.0025, Health and Safety Code, is
807	807	repealed.
808	808	SECTION 23. The changes in law made by this Act apply only
809	809	to actions taken by the Health and Human Services Commission and
810	810	license holders under Chapter 103, Human Resources Code, and
811	811	Chapters 242, 247, 248A, and 252, Health and Safety Code, on or
812	812	after the effective date of this Act. An action taken before the
813	813	effective date of this Act is governed by the law in effect at that
814	814	time, and the former law is continued in effect for that purpose.
815	815	SECTION 24. This Act takes effect September 1, 2017.