Health and Safety Code
CHAPTER 242. CONVALESCENT AND NURSING HOMES AND RELATED
INSTITUTIONS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 242.001. Scope, Purpose, and Implementation. .
(a) It is the goal of this chapter to ensure that institutions
in this state deliver the highest possible quality of care. This
chapter, and the rules and standards adopted under this chapter,
establish minimum acceptable levels of care. A violation of a
minimum acceptable level of care established under this chapter
or a rule or standard adopted under this chapter is forbidden by
law. Each institution licensed under this chapter shall, at a
minimum, provide quality care in accordance with this chapter and
the rules and standards. Components of quality of care addressed
by these rules and standards include:
(1) quality of life;
(2) access to care;
(3) continuity of care;
(4) comprehensiveness of care;
(5) coordination of services;
(6) humaneness of treatment;
(7) conservatism in intervention;
(8) safety of the environment;
(9) professionalism of caregivers; and
(10) participation in useful studies.
(b) The rules and standards adopted under this chapter may be
more stringent than the standards imposed by federal law for
certification for participation in the state Medicaid program.
The rules and standards may not be less stringent than the
Medicaid certification standards imposed under the Omnibus Budget
Reconciliation Act of 1987 (OBRA), Pub.L. No. 100-203.
(c) The rules and standards adopted under this chapter apply to
each licensed institution. The rules and standards are intended
for use in state surveys of the facilities and any investigation
and enforcement action and are designed to be useful to consumers
and providers in assessing the quality of care provided in an
institution.
(d) The legislature finds that the construction, maintenance,
and operation of institutions shall be regulated in a manner that
protects the residents of the institutions by:
(1) providing the highest possible quality of care;
(2) strictly monitoring all factors relating to the health,
safety, welfare, and dignity of each resident;
(3) imposing prompt and effective remedies for noncompliance
with licensing standards; and
(4) providing the public with information concerning the
operation of institutions in this state.
(e) It is the legislature's intent that this chapter accomplish
the goals listed in Subsection (d).
(f) This chapter shall be construed broadly to accomplish the
purposes set forth in this section.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.01, eff. Sept.
1, 1997.
Sec. 242.002. Definitions.
In this chapter:
(1) "Board" means the Texas Board of Human Services.
(2) "Commissioner" means the commissioner of human services.
(3) "Controlling person" means a person who controls an
institution or other person as described by Section 242.0021.
(4) "Department" means the Texas Department of Human
Services.
(5) "Elderly person" means an individual who is 65 years of
age or older.
Text of subd. (6) as amended by Acts 1997, 75th Leg., ch. 693,
Sec. 2
(6) "Institution" means an establishment that:
(A) furnishes, in one or more facilities, food and
shelter to four or more persons who are unrelated to the
proprietor of the establishment; and
(B) provides minor treatment under the direction and
supervision of a physician licensed by the Texas State Board
of Medical Examiners, or other services that meet some need
beyond the basic provision of food, shelter, and laundry.
Text of subd. (6) as amended by Acts 1997, 75th Leg., ch. 1159,
Sec. 1.02
(6) "Facility" means an institution.
(7) "Governmental unit" means the state or a political
subdivision of the state, including a county or municipality.
(8) "Home" means an institution.
(9) "Hospital" has the meaning assigned by Chapter 241
(Texas Hospital Licensing Law).
(10) "Institution" means:
(A) an establishment that:
(i) furnishes, in one or more facilities,
food and shelter to four or more persons who are unrelated to the
proprietor of the establishment; and
(ii) provides minor treatment under the
direction and supervision of a physician licensed by the Texas
State Board of Medical Examiners, or other services that meet
some need beyond the basic provision of food, shelter, and
laundry; or
(B) a foster care type residential facility that
provides room and board to fewer than five persons who:
(i) are not related within the second degree
of consanguinity or affinity, as determined under Chapter 573,
Government Code, to the proprietor; and
(ii) because of their physical or mental
limitation, or both, require a level of care and services
suitable to their needs that contributes to their health,
comfort, and welfare.
(11) "Person" means an individual, firm, partnership,
corporation, association, joint stock company, limited
partnership, limited liability company, or any other legal
entity and includes a legal successor of those entities.
(12) "Resident" means an individual, including a patient,
who resides in an institution.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., ch. 561, Sec. 30, eff. Aug. 26,
1991.
Amended by Acts 1993, 73rd Leg., ch. 747, Sec. 23, eff. Sept. 1,
1993; Acts 1995, 74th Leg., ch. 76, Secs. 5.95(27), 8.084, eff.
Sept. 1, 1995; Acts 1997, 75th Leg., ch. 693, Sec. 2, eff. Jan.
1, 1998; Acts 1997, 75th Leg., ch. 1159, Sec. 1.02, eff. Sept. 1,
1997.
Sec. 242.0021. Controlling Person.
(a) A person is a controlling person if the person has the
ability, acting alone or in concert with others, to directly or
indirectly influence, direct, or cause the direction of the
management, expenditure of money, or policies of an institution
or other person.
(b) For purposes of this chapter, "controlling person"
includes:
(1) a management company, landlord, or other business entity
that operates or contracts with others for the operation of an
institution;
(2) any person who is a controlling person of a management
company or other business entity that operates an institution
or that contracts with another person for the operation of an
institution; and
(3) any other individual who, because of a personal,
familial, or other relationship with the owner, manager,
landlord, tenant, or provider of an institution, is in a
position of actual control or authority with respect to the
institution, without regard to whether the individual is
formally named as an owner, manager, director, officer,
provider, consultant, contractor, or employee of the facility.
(c) A controlling person described by Subsection (b)(3) does
not include a person, such as an employee, lender, secured
creditor, or landlord, who does not exercise any influence or
control, whether formal or actual, over the operation of an
institution.
(d) The department may adopt rules that define the ownership
interests and other relationships that qualify a person as a
controlling person.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.03, eff. Sept. 1,
1997.
Sec. 242.003. Exemptions.
Except as otherwise provided, this chapter does not apply to:
(1) a hotel or other similar place that furnishes only food,
lodging, or both, to its guests;
(2) a hospital;
(3) an establishment conducted by or for the adherents of a
well-recognized church or religious denomination for the
purpose of providing facilities for the care or treatment of
the sick who depend exclusively on prayer or spiritual means
for healing, without the use of any drug or material remedy, if
the establishment complies with safety, sanitary, and
quarantine laws and rules;
(4) an establishment that furnishes, in addition to food,
shelter, and laundry, only baths and massages;
(5) an institution operated by a person licensed by the
Texas Board of Chiropractic Examiners;
(6) a facility that:
(A) primarily engages in training, habilitation,
rehabilitation, or education of clients or residents;
(B) is operated under the jurisdiction of a state or
federal agency, including the Texas Rehabilitation
Commission, Texas Department of Mental Health and Mental
Retardation, Texas Department of Human Services, Texas
Commission for the Blind, Texas Commission on Alcohol and
Drug Abuse, institutional division of the Texas Department
of Criminal Justice, and the Veteran's Administration; and
(C) is certified through inspection or evaluation as
meeting the standards established by the state or federal
agency;
(7) a foster care type residential facility that serves
fewer than five persons and operates under rules adopted by the
Texas Department of Human Services; and
(8) a facility licensed under Chapter 252 or exempt from
licensure under Section 252.003.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 88, eff. Sept. 1,
1991.
Amended by Acts 1997, 75th Leg., ch. 693, Sec. 3, eff. Sept. 1,
1997.
Sec. 242.004. Simultaneous Care for Pregnant Women and Other Women.
This chapter does not prohibit an institution defined by
Section 242.002(6)(B) from simultaneously caring for pregnant
women and other women younger than 50 years of age.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.005. Performance Reports.
(a) The department and the attorney general each shall prepare
annually a full report of the operation and administration of
their respective responsibilities under this chapter, including
recommendations and suggestions considered advisable.
(b) The Legislative Budget Board and the state auditor shall
jointly prescribe the form and content of reports required under
this section.
(c) The department and the attorney general shall submit the
required reports to the governor and the legislature not later
than October 1 of each year.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.04, eff. Sept.
1, 1997.
Sec. 242.006. Directory of Licensed Institutions.
(a) The department shall prepare and publish annually a
directory of all licensed institutions.
(b) The directory must contain:
(1) the name and address of the institution;
(2) the name of the proprietor or sponsoring organization;
and
(3) other pertinent data that the department considers
useful and beneficial to those persons interested in
institutions operated in accordance with this chapter.
(c) The department shall make copies of the directory available
to the public.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.007. Consultation and Cooperation.
(a) Whenever possible, the department shall use the services of
and consult with state and local agencies in carrying out its
responsibility under this chapter.
(b) The department may cooperate with local public health
officials of a county or municipality in carrying out this
chapter and may delegate to those officials the power to make
inspections and recommendations to the department in accordance
with this chapter.
(c) The department may coordinate its personnel and facilities
with a local agency of a municipality or county and may provide
advice to the municipality or county if the municipality or
county decides to supplement the state program with additional
rules required to meet local conditions.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 8.085, eff. Sept.
1, 1995.
Sec. 242.008. Employment of Personnel.
The department may employ the personnel necessary to administer
this chapter properly.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.009. Federal Funds.
The department may accept and use any funds allocated by the
federal government to the department for administrative expenses.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.010. Change of Administrators.
An institution that hires a new administrator or person
designated as chief manager shall:
(1) notify the department in writing not later than the 30th
day after the date on which the change becomes effective; and
(2) pay a $20 administrative fee to the department.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.011. Language Requirements Prohibited.
An institution may not prohibit a resident or employee from
communicating in the person's native language with another
resident or employee for the purpose of acquiring or providing
medical treatment, nursing care, or institutional services.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.013. Paperwork Reduction Rules.
(a) The department shall:
(1) adopt rules to reduce the amount of paperwork an
institution must complete and retain; and
(2) attempt to reduce the amount of paperwork to the minimum
amount required by state and federal law unless the reduction
would jeopardize resident safety.
(b) The department, the contracting agency, and providers shall
work together to review rules and propose changes in paperwork
requirements so that additional time is available for direct
resident care.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 8.086, eff. Sept.
1, 1995.
Sec. 242.014. Prohibition of Remuneration.
(a) An institution may not receive monetary or other
remuneration from a person or agency that furnishes services or
materials to the institution or its occupants for a fee.
(b) The department may revoke the license of an institution
that violates Subsection (a).
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.015. Licensed Administrator.
(a) Each institution must have a licensed nursing facility
administrator.
(b) The administrator shall:
(1) manage the institution;
(2) be responsible for:
(A) delivery of quality care to all residents; and
(B) implementation of the policies and procedures of the
institution; and
(3) work at least 40 hours per week on administrative
duties.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.05, eff. Sept. 1,
1997.
Sec. 242.016. Fees and Penalties.
Except as expressly provided by this chapter, a fee or penalty
collected by or on behalf of the department under this chapter
must be deposited to the credit of the general revenue fund and
may be appropriated only to the department to administer and
enforce this chapter. Investigation and attorney's fees may not
be assessed or collected by or on behalf of the department or
other state agency unless the department or other state agency
assesses and collects a penalty described under this chapter.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.05, eff. Sept. 1,
1997.
SUBCHAPTER B. LICENSING, FEES, AND INSPECTIONS
Sec. 242.031. License Required.
A person or governmental unit, acting severally or jointly with
any other person or governmental unit, may not establish,
conduct, or maintain an institution in this state without a
license issued under this chapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.032. License or Renewal Application.
(a) An application for a license or renewal of a license is
made to the department on a form provided by the department and
must be accompanied by the license fee.
(b) The application must contain information that the
department requires.
(c) The applicant or license holder must furnish evidence to
affirmatively establish the applicant's or license holder's
ability to comply with:
(1) minimum standards of medical care, nursing care, and
financial condition; and
(2) any other applicable state or federal standard.
(d) The department shall consider the background and
qualifications of:
(1) the applicant or license holder;
(2) a partner, officer, director, or managing employee of
the applicant or license holder;
(3) a person who owns or who controls the owner of the
physical plant of a facility in which the institution operates
or is to operate; and
(4) a controlling person with respect to the institution for
which a license or license renewal is requested.
(e) In making the evaluation required by Subsection (d), the
department shall require the applicant or license holder to file
a sworn affidavit of a satisfactory compliance history and any
other information required by the department to substantiate a
satisfactory compliance history relating to each state or other
jurisdiction in which the applicant or license holder and any
other person described by Subsection (d) operated an institution
at any time during the five-year period preceding the date on
which the application is made. The department by rule shall
determine what constitutes a satisfactory compliance history.
The department may also require the applicant or license holder
to file information relating to the history of the financial
condition of the applicant or license holder and any other person
described by Subsection (d) with respect to an institution
operated in another state or jurisdiction at any time during the
five-year period preceding the date on which the application is
made.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.06, eff. Sept.
1, 1997.
Sec. 242.033. Issuance and Renewal of License.
(a) After receiving an application for a license, the
department shall issue the license if, after inspection and
investigation, it finds that the applicant or license holder, and
any other person described by Section 242.032(d), meet the
requirements established under each provision of this chapter and
any rule or standard adopted under this chapter.
(b) The 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.
(c) A license may not be transferred or assigned.
(d) A license is renewable every two years after:
(1) an inspection, unless an inspection is not required as
provided by Section 242.047;
(2) payment of the license fee; and
(3) department approval of the report filed every two years
by the licensee.
(e) The report required for license renewal under Subsection
(d)(3) must comply with rules adopted by the board that specify
the date of submission of the report, the information it must
contain, and its form.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 815, Sec. 1(a), eff. Sept.
1, 1993; Acts 1997, 75th Leg., ch. 1159, Sec. 1.07, eff. Sept. 1,
1997.
Sec. 242.034. License Fees.
(a) The board may establish by rule license fees for
institutions licensed by the department under this chapter. The
license fee may not exceed $250 plus:
(1) $10 for each unit of capacity or bed space for which a
license is sought; and
(2) a background examination fee imposed under Subsection
(c).
(b) An additional license fee may be charged as provided by
Section 242.097.
(c) The board may establish a background examination fee in an
amount necessary to defray the department's expenses in
administering its duties under Sections 242.032(d) and (e).
(d) The license fee must be paid with each application for an
initial license, a renewal license, or a change of ownership
license.
(e) The state is not required to pay the license fee.
(f) An approved increase in bed space is subject to an
additional fee.
(g) The license fees established under this chapter are an
allowable cost for reimbursement under the medical assistance
program administered by the Texas Department of Human Services
under Chapter 32, Human Resources Code. Any fee increases shall
be reflected in reimbursement rates prospectively.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 815, Sec. 1(b), eff. Sept.
1, 1993; Acts 1997, 75th Leg., ch. 1159, Sec. 1.08, eff. Sept. 1,
1997.
Sec. 242.035. Licensing Categories.
(a) The department shall determine the rank of licensing
categories.
(b) Unless prohibited by another state or federal requirement,
the department shall allow a licensed institution to operate a
portion of the institution under the standards of a lower
licensing category. The board shall establish procedures and
standards to accommodate an institution's operation under the
lower category.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.036. Grading.
(a) The board may adopt, publish, and enforce minimum standards
relating to the grading of an institution, other than an
institution that provides maternity care, in order to recognize
those institutions that provide more than the minimum level of
services and personnel as established by the board.
(b) An institution that has a superior grade shall prominently
display the grade for public view.
(c) As an incentive to attain the superior grade, an
institution may advertise its grade, except that it may not
advertise a superior grade that has been canceled.
(d) The department may not award a superior grade to an
institution that, during the year preceding the grading
inspection, violated state or federal law, rules, or regulations
relating to:
(1) the health, safety, or welfare of its residents;
(2) resident funds;
(3) the confidentiality of a resident's records;
(4) the financial practices of the institution; or
(5) the control of medication in the institution.
(e) The department shall cancel an institution's superior grade
if the institution:
(1) does not meet the criteria established for a superior
grade; or
(2) violates a state or federal law, rule, or regulation
described by Subsection (d).
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.037. Rules; Minimum Standards.
(a) The department shall make and enforce rules and minimum
standards to implement this chapter, including rules and minimum
standards relating to quality of life, quality of care, and
residents' rights.
(b) The rules and standards adopted under this chapter may be
more stringent than the standards imposed by federal law for
certification for participation in the state Medicaid program.
(c) The rules and standards adopted by the department may not
be less stringent than the Medicaid certification standards and
regulations imposed under the Omnibus Budget Reconciliation Act
of 1987 (OBRA), Pub.L. No. 100-203.
(d) To implement Sections 242.032(d) and (e), the department by
rule shall adopt minimum standards for the background and
qualifications of any person described by Section 242.032(d).
The department may not issue or renew a license if a person
described by Section 242.032 does not meet the minimum standards
adopted under this section.
(e) In addition to standards or rules required by other
provisions of this chapter, the board shall adopt, publish, and
enforce minimum standards relating to:
(1) the construction of an institution, including plumbing,
heating, lighting, ventilation, and other housing conditions,
to ensure the residents' health, safety, comfort, and
protection from fire hazard;
(2) the regulation of the number and qualification of all
personnel, including management and nursing personnel,
responsible for any part of the care given to the residents;
(3) requirements for in-service education of all employees
who have any contact with the residents;
(4) training on the care of persons with Alzheimer's disease
and related disorders for employees who work with those
persons;
(5) sanitary and related conditions in an institution and
its surroundings, including water supply, sewage disposal, food
handling, and general hygiene in order to ensure the residents'
health, safety, and comfort;
(6) the nutritional needs of each resident according to good
nutritional practice or the recommendations of the physician
attending the resident;
(7) equipment essential to the residents' health and
welfare;
(8) the use and administration of medication in conformity
with applicable law and rules;
(9) care and treatment of residents and any other matter
related to resident health, safety, and welfare;
(10) licensure of institutions; and
(11) implementation of this chapter.
(f) The board shall adopt, publish, and enforce minimum
standards requiring appropriate training in geriatric care for
each individual who provides services to geriatric residents in
an institution and who holds a license or certificate issued by
an agency of this state that authorizes the person to provide the
services. The minimum standards may require that each licensed
or certified individual complete an appropriate program of
continuing education or in-service training, as determined by
board rule, on a schedule determined by board rule.
(g) To administer the surveys for provider certification
provided for by federal law and regulation, the department must
identify each area of care that is subject to both state
licensing requirements and federal certification requirements.
For each area of care that is subject to the same standard under
both federal certification and state licensing requirements, an
institution that is in compliance with the federal certification
standard is considered to be in compliance with the same state
licensing requirement.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 583, Sec. 1, eff. Aug. 28,
1995; Acts 1995, 74th Leg., ch. 1049, Sec. 2, eff. Sept. 1, 1995;
Acts 1997, 75th Leg., ch. 165, Sec. 31.01(54), eff. Sept. 1,
1997; Acts 1997, 75th Leg., ch. 1159, Sec. 1.09, eff. Sept. 1,
1997.
Sec. 242.038. Reasonable Time to Comply.
The board by rule shall give an institution that is in
operation when a rule or standard is adopted under this chapter a
reasonable time to comply with the rule or standard.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.039. Fire Safety Requirements.
(a) The board shall adopt rules necessary to specify the
edition of the Life Safety Code of the National Fire Protection
Association that will be used to establish the life safety
requirements for an institution licensed under this chapter.
(b) The board shall adopt the edition of the Life Safety Code
of the National Fire Protection Association for fire safety as
designated by federal law and regulations for an institution or
portion of an institution that is constructed after September 1,
1993, and for an institution or portion of an institution that
was operating or approved for construction on or before September
1, 1993.
(c) The board may not require more stringent fire safety
standards than those required by federal law and regulation. The
rules adopted under this section may not prevent an institution
licensed under this chapter from voluntarily conforming to fire
safety standards that are compatible with, equal to, or more
stringent than those adopted by the board.
(d) Licensed health care facilities in existence at the time of
the effective date of this subsection may have their existing use
or occupancy continued if such facilities comply with fire safety
standards and ordinances in existence at the time of the
effective date of this subsection.
(e) Notwithstanding any other provision of this section, a
municipality shall have the authority to enact additional and
higher fire safety standards applicable to new construction
beginning on or after the effective date of this subsection.
(f)(1) An advisory committee is created to propose rules for
adoption by the department concerning the applicability of
municipal ordinances and regulations to the remodeling and
renovation of existing structures to be used as health care
facilities licensed under this chapter.
(2) The advisory committee shall be appointed by the board
and composed as follows:
(A) two municipal fire marshals;
(B) four individuals representing the nursing home
industry;
(C) the commissioner of human services or a designee;
(D) one building official from a municipality that has
adopted the Uniform Building Code;
(E) one building official from a municipality that has
adopted the Standard Building Code;
(F) one architect licensed under state law;
(G) one member of the Texas Board of Human Services; and
(H) one state Medicaid director or designee.
(3) The advisory committee shall serve without compensation
or remuneration of any kind.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 583, Sec. 1, eff. Sept. 1,
1993.
Sec. 242.040. Certification of Institutions That Care for Persons With
Alzheimer's Disease and Related Disorders.
(a) The department shall establish a system for certifying
institutions that meet standards adopted by the board concerning
the specialized care and treatment of persons with Alzheimer's
disease and related disorders.
(b) An institution is not required to be certified under this
section in order to provide care and treatment of persons with
Alzheimer's disease and related disorders.
(c) The board by rule may adopt standards for the specialized
care and treatment of persons with Alzheimer's disease and
related disorders and provide procedures for institutions
applying for certification under this section. The rules must
provide for annual certification.
(d) The board may establish and charge fees for the
certification in an amount necessary to administer this section.
(e) An institution may not advertise or otherwise communicate
that the institution is certified by the department to provide
specialized care for persons with Alzheimer's disease or related
disorders unless the institution is certified under this section.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.041. False Communication Concerning Certification; Criminal
Penalty.
(a) An institution commits an offense if the institution
violates Section 242.040(e).
(b) An offense under this section is a Class C misdemeanor.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.042. Posting.
(a) Each institution shall prominently and conspicuously post
for display in a public area of the institution that is readily
available to residents, employees, and visitors:
(1) the license issued under this chapter;
(2) a sign prescribed by the department that specifies
complaint procedures established under this chapter or rules
adopted under this chapter and that specifies how complaints
may be registered with the department;
(3) a notice in a form prescribed by the department stating
that licensing inspection reports and other related reports
which show deficiencies cited by the department are available
at the institution for public inspection and providing the
department's toll-free telephone number that may be used to
obtain information concerning the institution;
(4) a concise summary of the most recent inspection report
relating to the institution;
(5) notice that the department can provide summary reports
relating to the quality of care, recent investigations,
litigation, and other aspects of the operation of the
institution;
(6) notice that the Texas Board of Nursing Facility
Administrators can provide information about the nursing
facility administrator;
(7) any notice or written statement required to be posted
under Section 242.072(c); and
(8) notice that informational materials relating to the
compliance history of the institution are available for
inspection at a location in the institution specified by the
sign.
(b) The notice required by Subsection (a)(8) must also be
posted at each door providing ingress to and egress from the
institution.
(c) The informational materials required to be maintained for
public inspection by an institution under Subsection (a)(8) must
be maintained in a well-lighted accessible location and must
include:
(1) any information required to be included under Section
242.504; and
(2) a statement of the institution's record of compliance
with this chapter and the rules and standards adopted under
this chapter that is updated not less frequently than
bi-monthly and that reflects the record of compliance during
the period beginning one year before the date the statement is
last updated, in the form required by the department.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.10, eff. Sept.
1, 1997.
Sec. 242.043. Inspections.
(a) The department or the department's representative may make
any inspection, survey, or investigation that it considers
necessary and may enter the premises of an institution at
reasonable times to make an inspection, survey, or investigation
in accordance with board rules.
(b) The department is entitled to access to books, records, and
other documents maintained by or on behalf of an institution to
the extent necessary to enforce this chapter and the rules
adopted under this chapter.
(c) A license holder or an applicant for a license is
considered to have consented to entry and inspection of the
institution by a representative of the department in accordance
with this chapter.
(d) The department shall establish procedures to preserve all
relevant evidence of conditions found during an inspection,
survey, or investigation that the department reasonably believes
threaten the health and safety of a resident, including
photography and photocopying of relevant documents, such as a
license holder's notes, a physician's orders, and pharmacy
records, for use in any legal proceeding.
(e) When photographing a resident, the department:
(1) shall respect the privacy of the resident to the
greatest extent possible; and
(2) may not make public the identity of the resident.
(f) An institution, an officer or employee of an institution,
and a resident's attending physician are not civilly liable for
surrendering confidential or private material under this section,
including physician's orders, pharmacy records, notes and
memoranda of a state office, and resident files.
(g) The department shall establish in clear and concise
language a form to summarize each inspection report and complaint
investigation report.
(h) The department shall establish proper procedures to ensure
that copies of all forms and reports under this section are made
available to consumers, service recipients, and the relatives of
service recipients as the department considers proper.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.044. Unannounced Inspections.
(a) Each licensing period, the department shall conduct at
least two unannounced inspections of each institution.
(b) For at least two unannounced inspections each licensing
period of an institution other than one that provides maternity
care, the department shall invite at least one person as a
citizen advocate from:
(1) the American Association of Retired Persons;
(2) the Texas Senior Citizen Association;
(3) the Texas Retired Federal Employees;
(4) the Texas Department on Aging Certified Long Term Care
Ombudsman; or
(5) another statewide organization for the elderly.
(c) In order to ensure continuous compliance, the department
shall randomly select a sufficient percentage of institutions 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.
(d) The department may require additional inspections.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 815, Sec. 1(c), eff. Sept.
1, 1993.
Sec. 242.045. Disclosure of Unannounced Inspections; Criminal Penalty.
(a) Except as expressly provided by this chapter, a person
commits an offense if the person intentionally, knowingly, or
recklessly discloses to an unauthorized person the date, time, or
any other fact about an unannounced inspection of an institution
before the inspection occurs.
(b) In this section, "unauthorized person" does not include:
(1) the department;
(2) the office of the attorney general;
(3) a statewide organization for the elderly, including the
American Association of Retired Persons, the Texas Senior
Citizen Association, and the Texas Retired Federal Employees;
(4) an ombudsman or representative of the Texas Department
on Aging;
(5) a representative of an agency or organization when a
Medicare or Medicaid survey is made concurrently with a
licensing inspection; or
(6) any other person or entity authorized by law to make an
inspection or to accompany an inspector.
(c) An offense under this section is a third degree felony.
(d) A person convicted under this section is not eligible for
state employment.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.11, eff. Sept.
1, 1997.
Sec. 242.046. Open Hearing.
(a) The department shall hold an open hearing in a licensed
institution, other than an institution that provides maternity
care, if the department has taken a punitive action against the
institution in the preceding 12 months or if the department
receives a complaint from an ombudsman, advocate, resident, or
relative of a resident relating to a serious or potentially
serious problem in the institution and the department has
reasonable cause to believe the complaint is valid. The
department is not required to hold more than one open meeting in
a particular institution in each year.
(b) The department shall give notice of the time, place, and
date of the hearing to:
(1) the institution;
(2) the designated closest living relative or legal guardian
of each resident; and
(3) appropriate state or federal agencies that work with the
institution.
(c) The department may exclude an institution's administrators
and personnel from the hearing.
(d) The department shall notify the institution of any
complaints received at the hearing and, without identifying the
source of the complaints, provide a summary of them to the
institution.
(e) The department shall determine and implement a mechanism to
notify confidentially a complainant of the results of the
investigation of the complaint.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 89, eff. Sept. 1,
1991.
Sec. 242.047. Accreditation Review Instead of Inspection.
(a) The department shall accept an annual accreditation review
from the Joint Commission on Accreditation of Health
Organizations for a nursing home instead of an inspection for
renewal of a license under Section 242.033 only if:
(1) the nursing home is accredited by the commission under
the commission's long-term care standards;
(2) the commission maintains an annual inspection or review
program that, for each nursing home, meets the department's
minimum standards as confirmed by the board;
(3) the commission conducts an annual on-site inspection or
review of the home; and
(4) the nursing home submits to the department a copy of its
annual accreditation review from the commission in addition to
the application, fee, and report required for renewal of a
license.
(b) The department shall coordinate its licensing activities
with the commission.
(c) The department and the commission shall sign a memorandum
of agreement to implement this section. The memorandum must
provide that if all parties to the memorandum do not agree in the
development, interpretation, and implementation of the
memorandum, any area of dispute is to be resolved by the board.
(d) This section does not limit the department in performing
any duties and inspections authorized by this chapter or under
any contract relating to the medical assistance program under
Chapter 32, Human Resources Code, and Titles XVIII and XIX of the
Social Security Act (42 U.S.C. Sections 1395 et seq. and 1396 et
seq.), including authority to take appropriate action relating to
an institution, such as closing the institution.
(e) This section does not require a nursing home to obtain
accreditation from the commission.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.048. Licensing Surveys.
The department shall provide a team to conduct surveys to
validate findings of licensing surveys. The purpose of
validation surveys is to assure that survey teams throughout the
state survey in a fair and consistent manner. A facility
subjected to a validation survey must correct deficiencies cited
by the validation team but is not subject to punitive action for
those deficiencies.
Added by Acts 1991, 72nd Leg., ch. 14, Sec. 90, eff. Sept. 1,
1991.
Sec. 242.049. Quality Improvement.
(a) The department may evaluate data for quality of care in
nursing homes.
(b) The department may gather data on a form or forms to be
provided by the department to improve the quality of care in
nursing homes and may provide information to nursing homes which
will allow them to improve and maintain the quality of care which
they provide. Data referred to in this section can include
information compiled from documents otherwise available under
Chapter 552, Government Code, including but not limited to
individual survey reports and investigation reports.
(c) All licensed nursing homes in the state may be required to
submit information designated by the department as necessary to
improve the quality of care in nursing homes.
(d) The collection, compilation, and analysis of the
information and any reports produced from these sources shall be
done in a manner that protects the privacy of any individual
about whom information is given and is explicitly confidential.
The department shall protect and maintain the confidentiality of
the information. The information received by the department, any
information compiled as a result of review of internal agency
documents, and any reports, compilations, and analyses produced
from these sources shall not be available for public inspection
or disclosure, nor are these sources public records within the
meaning of Chapter 552, Government Code. The information and any
compilations, reports, or analyses produced from the information
shall not be subject to discovery, subpoena, or other means of
legal compulsion for release to any person or entity except as
provided in this section and shall not be admissible in any
civil, administrative, or criminal proceeding. This privilege
shall be recognized by Rules 501 and 502 of the Texas Rules of
Civil Evidence and the Texas Rules of Criminal Evidence.
(e) The information and reports, compilations, and analyses
developed by the department for quality improvement shall be used
only for the evaluation and improvement of quality care in
nursing homes. No department proceeding or record shall be
subject to discovery, subpoena, or other means of legal
compulsion for release to any person or entity, and shall not be
admissible in any civil, administrative, or criminal proceeding.
This privilege shall be recognized by Rules 501 and 502 of the
Texas Rules of Civil Evidence and the Texas Rules of Criminal
Evidence.
(f) Notwithstanding Subsection (d), the department shall
transmit reports, compilations, and analyses of the information
provided by a nursing home to that nursing home, and such
disclosure shall not be violative of this section nor shall it
constitute a waiver of confidentiality.
(g) A member, agent, or employee of the department may not
disclose or be required to disclose a communication made to the
department or a record or proceeding of the department required
to be submitted under this section except to the nursing home in
question or its agents or employees.
(h) Nothing in this section is intended to abridge the
department's enforcement responsibilities under this chapter or
under any other law.
(i) Any information, reports, and other documents produced
which are subject to any means of legal compulsion or which are
considered to be public information under Subchapter E and the
rules adopted under that subchapter shall continue to be subject
to legal compulsion and be treated as public information under
Subchapter E after the effective date of this Act, even though
such information, reports, and other documents may be used in the
collection, compilation, and analysis described in Subsections
(b) and (d).
Added by Acts 1993, 73rd Leg., ch. 815, Sec. 2, eff. Sept. 1,
1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(88),
eff. Sept. 1, 1995.
SUBCHAPTER C. GENERAL ENFORCEMENT
Sec. 242.061. Denial, Suspension, or Revocation of License.
(a) The department, after providing notice and opportunity for a
hearing to the applicant or license holder, may deny, suspend, or
revoke a license if the department finds that the applicant, the
license holder, or any other person described by Section
242.032(d) has:
(1) violated this chapter or a rule, standard, or order adopted
or license issued under this chapter in either a repeated or
substantial manner; or
(2) committed any act described by Sections 242.066(a)(2)-(6).
(b) The status of a person as an applicant for a license or a
license holder is preserved until final disposition of the
contested matter, except as the court having jurisdiction of a
judicial review of the matter may order in the public interest
for the welfare and safety of the residents.
(c) The department may deny, suspend, or revoke the license of an
institution if any person described by Section 242.032(d) has
been excluded from holding a license under Section 242.0615.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.12, eff. Sept.
1, 1997.
Sec. 242.0615. Exclusion.
(a) The department, after providing notice and opportunity for
a hearing, may exclude a person from eligibility for a license
under this chapter if the person or any person described by
Section 242.032(d) has substantially failed to comply with this
chapter and the rules adopted under this chapter. The authority
granted by this subsection is in addition to the authority to
deny issuance of a license under Section 242.061(a).
(b) Exclusion of a person under this section must extend for a
period of at least two years, but may not exceed a period of 10
years.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.13, eff. Sept. 1,
1997.
Sec. 242.062. Emergency Suspension or Closing Order.
(a) The department shall suspend an institution's license or
order an immediate closing of part of the institution if:
(1) the department finds the institution is operating in
violation of the standards prescribed by this chapter; and
(2) the violation creates an immediate threat to the health
and safety of a resident.
(b) The board by rule shall provide for the placement of
residents during the institution's suspension or closing to
ensure their health and safety.
(c) An order suspending a license or closing a part of an
institution under this section is immediately effective on the
date on which the license holder receives written notice or a
later date specified in the order.
(d) An order suspending a license or ordering an immediate
closing of a part of an institution is valid for 10 days after
the effective date of the order.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.063. Injunction.
(a) The department may petition a district court for:
(1) a temporary restraining order to restrain a person from
a violation or threatened violation of the standards imposed
under this chapter or any other law affecting residents if the
department reasonably believes that the violation or threatened
violation creates an immediate threat to the health and safety
of a resident; and
(2) an injunction to restrain a person from a violation or
threatened violation of the standards imposed under this
chapter or by any other law affecting residents if the
department reasonably believes that the violation or threatened
violation creates a threat to the health and safety of a
resident.
(b) A district court, on petition of the department, may by
injunction:
(1) prohibit a person from violating the standards or
licensing requirements prescribed by this chapter;
(2) restrain or prevent the establishment, conduct,
management, or operation of an institution without a license
issued under this chapter; or
(3) grant the injunctive relief warranted by the facts on a
finding by the court that a person is violating or threatening
to violate the standards or licensing requirements prescribed
by this chapter.
(c) The attorney general, on request by the department, shall
institute and conduct in the name of the state a suit authorized
by this section or Subchapter D.
(d) Notwithstanding Chapter 15, Civil Practice and Remedies
Code, or Section 65.023, Civil Practice and Remedies Code, a suit
for a temporary restraining order or other injunctive relief may
be brought in Travis County or in the county in which the alleged
violation occurs.
(e) The department by rule shall define "threatened violation"
for the purpose of this section.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.14, eff. Sept.
1, 1997.
Sec. 242.064. License Requirement; Criminal Penalty.
(a) A person commits an offense if the person violates Section
242.031.
(b) An offense under this section is punishable by a fine of
not more than $1,000 for the first offense and not more than $500
for each subsequent offense.
(c) Each day of a continuing violation after conviction is a
separate offense.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.065. Civil Penalty.
(a) A person who violates or causes a violation of this chapter
or a rule adopted under this chapter is liable for a civil
penalty of not less than $1,000 or more than $20,000 for each act
of violation if the department determines the violation threatens
the health and safety of a resident.
(b) In determining the amount of a penalty to be awarded under
this section, the trier of fact shall consider:
(1) the seriousness of the violation, including the nature,
circumstances, extent, and gravity of the violation and the
hazard or potential hazard created by the violation to the
health or safety of a resident;
(2) the history of violations committed by the person or the
person's affiliate, employee, or controlling person;
(3) the amount necessary to deter future violations;
(4) the efforts made to correct the violation;
(5) any misrepresentation made to the department or to
another person regarding:
(A) the quality of services rendered or to be rendered
to residents;
(B) the compliance history of the institution or any
institutions owned or controlled by an owner or controlling
person of the institution; or
(C) the identity of an owner or controlling person of
the institution;
(6) the culpability of the individual who committed the
violation; and
(7) any other matter that should, as a matter of justice or
equity, be considered.
(c) Each day of a continuing violation constitutes a separate
ground for recovery.
(d) Any party to a suit under this section may request a jury.
(e) If a person who is liable under this section fails to pay
any amount the person is obligated to pay under this section, the
state may seek satisfaction from any owner, other controlling
person, or affiliate of the person found liable. The owner,
other controlling person, or affiliate may be found liable in the
same suit or in another suit on a showing by the state that the
amount to be paid has not been paid or otherwise legally
discharged. The department by rule may establish a method for
satisfying an obligation imposed under this section from an
insurance policy, letter of credit, or other contingency fund.
(f) A payment made to satisfy an obligation under this section
is not an allowable cost for reimbursement under the state
Medicaid program.
(g) A civil penalty awarded under this section constitutes a
fine, penalty, or forfeiture payable to and for the benefit of a
government unit and is not compensation for actual pecuniary
loss.
(h) In this section, "affiliate" means:
(1) with respect to a partnership other than a limited
partnership, each partner of the partnership;
(2) with respect to a corporation:
(A) an officer;
(B) a director;
(C) a stockholder who owns, holds, or has the power to
vote at least 10 percent of any class of securities issued
by the corporation, regardless of whether the power is of
record or beneficial; and
(D) a controlling individual;
(3) with respect to an individual:
(A) each partnership and each partner in the partnership
in which the individual or any other affiliate of the
individual is a partner; and
(B) each corporation or other business entity in which
the individual or another affiliate of the individual is:
(i) an officer;
(ii) a director;
(iii) a stockholder who owns, holds, or has
the power to vote at least 10 percent of any class of securities
issued by the corporation, regardless of whether the power is of
record or beneficial; and
(iv) a controlling individual;
(4) with respect to a limited partnership:
(A) a general partner; and
(B) a limited partner who is a controlling individual;
(5) with respect to a limited liability company:
(A) an owner who is a manager as described by the Texas
Limited Liability Company Act (Article 1528n, Vernon's Texas
Civil Statutes); and
(B) each owner who is a controlling individual; and
(6) with respect to any other business entity, a controlling
individual.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.15, eff. Sept.
1, 1997.
Sec. 242.066. Administrative Penalty.
(a) The 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
department;
(3) refuses to allow a representative of the 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 department or the enforcement of this chapter;
(5) wilfully interferes with a representative of the
department preserving evidence of a violation of this chapter
or a rule, standard, or order adopted or license issued under
this chapter; or
(6) fails to pay a penalty assessed by the department under
this chapter not later than the 10th day after the date the
assessment of the penalty becomes final.
(b) Except as provided by Subsection (f) and Section
242.0665(c), the penalty may not exceed $10,000 a day for each
violation.
(c) Each day of a continuing violation constitutes a separate
violation.
(d) The board shall establish gradations of penalties in
accordance with the relative seriousness of the violation.
(e) In determining the amount of a penalty, the 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.
(f) The penalty for a violation of Section 242.072(c), a rule
adopted under Section 242.1225, or a right of a resident adopted
under Subchapter L may not exceed $1,000 a day for each
violation. This subsection does not apply to conduct that
violates both Subchapter K or a standard adopted under Subchapter
K and a right of a resident adopted under Subchapter L.
(g) The persons against whom an administrative penalty may be
assessed under Subsection (a) include:
(1) an applicant for a license under this chapter;
(2) a license holder;
(3) a partner, officer, director, or managing employee of a
license holder or applicant; and
(4) a person who controls an institution.
(h) A penalty assessed under Subsection (a)(6) is in addition
to the penalty previously assessed and not timely paid.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.16, eff. Sept.
1, 1997.
Sec. 242.0665. Right to Correct.
(a) The 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 department determines:
(A) results in serious harm to or death of a resident;
(B) constitutes a serious threat to the health or safety
of a resident; or
(C) substantially limits the institution's capacity to
provide care;
(2) to a violation described by Sections 242.066(a)(2)-(6);
(3) to a violation of a rule adopted under Section 242.1225
or of Section 242.133 or 242.1335; or
(4) to a violation of a right of a resident adopted under
Subchapter L.
(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 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 department is not required
to provide the institution an opportunity to correct the
subsequent violation under this section.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.17, eff. Sept. 1,
1997.
Sec. 242.067. Report Recommending Administrative Penalty.
(a) The department may issue a preliminary report stating the
facts on which it concludes that a violation of this chapter or a
rule, standard, or order adopted or license issued under this
chapter has occurred if it has:
(1) examined the possible violation and facts surrounding
the possible violation; and
(2) concluded that a violation has occurred.
(b) The report may recommend a penalty under Section 242.069
and the amount of the penalty.
(c) The department shall give written notice of the report to
the person charged with the violation not later than the 10th day
after the date on which the report is issued. The notice must
include:
(1) a brief summary of the charges;
(2) a statement of the amount of penalty recommended;
(3) a statement of whether the violation is subject to
correction under Section 242.0665 and, if the violation is
subject to correction under that section, a statement of:
(A) the date on which the institution must file with the
department a plan of correction to be approved by the
department; and
(B) the date on which the plan of correction must be
completed to avoid assessment of the penalty; and
(4) a statement that the person charged has a right to a
hearing on the occurrence of the violation, the amount of the
penalty, or both.
(d) Not later than the 20th day after the date on which the
notice under Subsection (c) is sent, the person charged may:
(1) give to the department written consent to the
department's report, including the recommended penalty;
(2) make a written request for a hearing; or
(3) if the violation is subject to correction under Section
242.0665, submit a plan of correction to the department for
approval.
(e) If the violation is subject to correction under Section
242.0665, and the person reports to the department that the
violation has been corrected, the department shall inspect the
correction or take any other step necessary to confirm that the
violation has been corrected and shall notify the person that:
(1) the correction is satisfactory and that a penalty is not
assessed; or
(2) the correction is not satisfactory and that a penalty is
recommended.
(f) Not later than the 20th day after the date on which a
notice under Subsection (e)(2) is sent, the person charged may:
(1) give to the department written consent to the
department's report, including the recommended penalty; or
(2) make a written request for a hearing.
(g) If the person charged with the violation consents to the
administrative penalty recommended by the department, does not
timely respond to a notice sent under Subsection (c) or (e), or
fails to correct the violation to the department's satisfaction,
the commissioner or the commissioner's designee shall assess the
administrative penalty recommended by the department
(h) If the commissioner or the commissioner's designee assesses
the recommended penalty, the department shall give written notice
to the person charged of the decision and the person shall pay
the penalty.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 8.087, eff. Sept.
1, 1995; Acts 1997, 75th Leg., ch. 1159, Sec. 1.18, eff. Sept. 1,
1997.
Sec. 242.068. Hearings on Administrative Penalties.
(a) An administrative law judge shall order a hearing and give
notice of the hearing if a person charged under Section
242.067(c) requests a hearing.
(b) The hearing shall be held before an administrative law
judge.
(c) The administrative law judge shall make findings of fact
and conclusions of law regarding the occurrence of a violation of
this chapter or a rule or order adopted or license issued under
this chapter.
(d) Based on the findings of fact and conclusions of law, the
administrative law judge by order shall find:
(1) a violation has occurred and assess an administrative
penalty; or
(2) a violation has not occurred.
(e) Proceedings under this section are subject to Chapter 2001,
Government Code.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Secs. 5.95(49), 8.088,
eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1159, Sec. 1.18,
eff. Sept. 1, 1997.
Sec. 242.069. Notice and Payment of Administrative Penalty; Interest;
Refund.
(a) The commissioner shall give notice of the decision taken
under Section 242.068(d) to the person charged. If the
commissioner finds that a violation has occurred and has assessed
an administrative penalty, the commissioner shall give written
notice to the person charged of:
(1) the findings;
(2) the amount of the penalty;
(3) the rate of interest payable with respect to the penalty
and the date on which interest begins to accrue;
(4) whether payment of the penalty or other action under
Section 242.071 is required; and
(5) the person's right to judicial review of the order.
(b) Not later than the 30th day after the date on which the
commissioner's order is final, the person charged with the
penalty shall:
(1) pay the full amount of the penalty; or
(2) file a petition for judicial review contesting the
occurrence of the violation, the amount of the penalty, the
failure to correct the violation to the department's
satisfaction, or all of the above.
(c) Notwithstanding Subsection (b), the department may permit
the person to pay the penalty in installments or may require the
person to use the amount of the penalty under the department's
supervision in accordance with Section 242.071.
(d) If the person does not pay the penalty within the 30-day
period:
(1) the penalty is subject to interest; and
(2) the department may refer the matter to the attorney
general for collection of the penalty and interest.
(e) If a penalty is reduced or not assessed, the commissioner
shall:
(1) remit to the person charged the appropriate amount of
any penalty payment plus accrued interest; or
(2) execute a release of the supersedeas bond if one has
been posted.
(f) Accrued interest on amounts remitted by the commissioner
under Subsection (e)(1) shall be paid:
(1) at a rate equal to the rate charged on loans to
depository institutions by the New York Federal Reserve Bank;
and
(2) for the period beginning on the date the penalty is paid
under Subsection (b) and ending on the date the penalty is
remitted.
(g) Interest under Subsection (d) shall be paid:
(1) at a rate equal to the rate charged on loans to
depository institutions by the New York Federal Reserve Bank;
and
(2) for the period beginning on the date the notice of the
commissioner's order is received by the person and ending on
the date the penalty is paid.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 8.089, eff. Sept.
1, 1995; Acts 1995, 74th Leg., ch. 1049, Sec. 3, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 1159, Sec. 1.18, eff. Sept. 1,
1997.
Sec. 242.070. Application of Other Law.
The department may not assess more than one monetary penalty
under this chapter for a violation arising out of the same act or
failure to act, except as provided by Section 242.0665(c). This
section does not prohibit the department from assessing a
monetary penalty under this chapter and a monetary penalty under
Chapter 32, Human Resources Code, for the same act or failure to
act.
Added by Acts 1995, 74th Leg., ch. 1049, Sec. 4, eff. Sept. 1,
1995. Amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.18, eff.
Sept. 1, 1997.
Sec. 242.071. Amelioration of Violation.
In lieu of ordering payment of the administrative penalty under
Section 242.069, the commissioner may require the person to use,
under the supervision of the department, any portion of the
penalty to ameliorate the violation or to improve services, other
than administrative services, in the institution affected by the
violation.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.19, eff. Sept. 1,
1997.
Sec. 242.072. Other Remedies.
(a) If the commissioner finds that an institution has committed
an act for which a civil penalty may be imposed under Section
242.065, the commissioner may, as appropriate under the
circumstances, order the institution to immediately suspend
admissions.
(b) A suspension of admissions ordered under Subsection (a) is
effective on the date a representative of the institution
receives notice of the order and of the manner in which the order
may be appealed. The department must provide an opportunity for
a hearing with respect to an appeal of the order not later than
the 14th day after the date the suspension becomes effective.
(c) During the period that an institution is ordered to suspend
admissions, the institution shall post a notice of the suspension
on all doors providing ingress to and egress from the
institution. The notice shall be posted in the form required by
the department.
(d) A person commits an offense if the person knowingly:
(1) violates Subsection (c); or
(2) removes a notice posted under Subsection (c) before the
facility is allowed to admit residents.
(e) An offense under Subsection (d) is a Class C misdemeanor.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.19, eff. Sept. 1,
1997.
Sec. 242.073. Legal Action by the Attorney General.
(a) The department and the attorney general shall work in close
cooperation throughout any legal proceedings requested by the
department.
(b) The commissioner must approve any settlement agreement to a
suit brought under this chapter or any other law relating to the
health and safety of residents in institutions.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.19, eff. Sept. 1,
1997.
SUBCHAPTER D. TRUSTEES FOR NURSING OR CONVALESCENT HOMES
Sec. 242.091. Findings and Purpose.
(a) The legislature finds that the closing of a nursing or
convalescent home for violations of laws and rules may:
(1) in certain circumstances, have an adverse effect on both the
home's residents and their families; and
(2) in some cases, result in a lack of readily available funds to
meet the basic needs of the residents for food, shelter,
medication, and personal services.
(b) The purpose of this subchapter is to provide for:
(1) the appointment of a trustee to assume the operations of the
home in a manner that emphasizes resident care and reduces
resident trauma; and
(2) a fund to assist a court-appointed trustee in meeting the
basic needs of the residents.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.092. Definition.
In this subchapter, "home" means a nursing or convalescent
home.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.093. Appointment by Agreement.
(a) A person holding a controlling interest in a home may, at
any time, request the department to assume the operation of the
home through the appointment of a trustee under this subchapter.
(b) After receiving the request, the department may enter into
an agreement providing for the appointment of a trustee to take
charge of the home under conditions considered appropriate by
both parties if the department considers the appointment
desirable.
(c) An agreement under this section must:
(1) specify all terms and conditions of the trustee's
appointment and authority; and
(2) preserve all rights of the residents as granted by law.
(d) The agreement terminates at the time specified by the
parties or when either party notifies the other in writing that
the party wishes to terminate the appointment agreement.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.094. Involuntary Appointment.
(a) The department may request the attorney general to bring an
action in the name and on behalf of the state for the appointment
of a trustee to operate a home if:
(1) the home is operating without a license;
(2) the department has suspended or revoked the home's
license;
(3) license suspension or revocation procedures against the
home are pending and the department determines that an imminent
threat to the health and safety of the residents exists;
(4) the department determines that an emergency exists that
presents an immediate threat to the health and safety of the
residents; or
(5) the home is closing and arrangements for relocation of
the residents to other licensed institutions have not been made
before closure.
(b) A trustee appointed under Subsection (a)(5) may only ensure
an orderly and safe relocation of the home's residents as quickly
as possible.
(c) After a hearing, a court shall appoint a trustee to take
charge of a home if the court finds that involuntary appointment
of a trustee is necessary.
(d) If possible, the court shall appoint as trustee an
individual whose background includes institutional medical
administration.
Text of subsection (e) as added by Acts 1993, 73rd Leg., ch. 583,
Sec. 2
(e) Venue for an action brought under this section is in Travis
County.
Text of subsection (e) as added by Acts 1993, 73rd Leg., ch. 815,
Sec. 3
(e) Venue for actions brought under this section shall be in
Travis County.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 583, Sec. 2, eff. Sept. 1,
1993; Acts 1993, 73rd Leg., ch. 815, Sec. 3, eff. Sept. 1, 1993.
Sec. 242.095. Fee; Release of Funds.
(a) A trustee appointed under this subchapter is entitled to a
reasonable fee as determined by the court.
(b) The trustee may petition the court to order the release to
the trustee of any payment owed the trustee for care and services
provided to the residents if the payment has been withheld,
including a payment withheld by the Texas Department of Human
Services at the recommendation of the department.
(c) Withheld payments may include payments withheld by a
governmental agency or other entity during the appointment of the
trustee, such as payments:
(1) for Medicaid, Medicare, or insurance;
(2) by another third party; or
(3) for medical expenses borne by the resident.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.096. Nursing and Convalescent Home Trust Fund and Emergency
Assistance Funds.
(a) The nursing and convalescent home trust fund is with the
comptroller and shall be made available to the department for
expenditures without legislative appropriation to make emergency
assistance funds available to a home.
(b) A trustee of a home may use the emergency assistance funds
only to alleviate an immediate threat to the health or safety of
the residents. The use may include payments for:
(1) food;
(2) medication;
(3) sanitation services;
(4) minor repairs;
(5) supplies necessary for personal hygiene; or
(6) services necessary for the personal care, health, and
safety of the residents.
(c) A court may order the department to disburse emergency
assistance funds to a home if the court finds that:
(1) the home has inadequate funds accessible to the trustee
for the operation of the home;
(2) there exists an emergency that presents an immediate
threat to the health and safety of the residents; and
(3) it is in the best interests of the health and safety of
the residents that funds are immediately available.
(d) The department shall disburse money from the nursing and
convalescent home trust fund as ordered by the court in
accordance with board rules.
(e) Any unencumbered amount in the nursing and convalescent
home trust fund in excess of $500,000 at the end of each fiscal
year shall be transferred to the credit of the general revenue
fund and may be appropriated only to the department for its use
in administering and enforcing this chapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.20, eff. Sept.
1, 1997; Acts 1997, 75th Leg., ch. 1423, Sec. 10.04, eff. Sept.
1, 1997.
Sec. 242.097. Additional License Fee.
(a) In addition to the license fee provided by Section 242.034,
the department shall adopt an annual fee to be charged and
collected if the amount of the nursing and convalescent home
trust fund is less than $500,000. The fee shall be deposited to
the credit of the nursing and convalescent home trust fund
created by this subchapter.
(b) The department shall set the fee for each nursing and
convalescent home at $1 for each licensed unit of capacity or bed
space in that home or in an amount necessary to provide $500,000
in the fund.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.21, eff. Sept.
1, 1997.
Sec. 242.098. Reimbursement.
(a) A home that receives emergency assistance funds under this
subchapter shall reimburse the department for the amounts
received, including interest.
(b) Interest on unreimbursed amounts begins to accrue on the
date on which the funds were disbursed to the home. The rate of
interest is the rate determined under Article 1E.003, Title 79,
Revised Statutes, to be applicable to judgments rendered during
the month in which the money was disbursed to the home.
(c) The owner of the home when the trustee was appointed is
responsible for the reimbursement.
(d) The amount that remains unreimbursed on the expiration of
one year after the date on which the funds were received is
delinquent and the Texas Department of Human Services may
determine that the home is ineligible for a Medicaid provider
contract.
(e) The department shall deposit the reimbursement and interest
received under this section to the credit of the nursing and
convalescent home trust fund.
(f) The attorney general shall institute an action to collect
the funds due under this section at the request of the
department. Venue for an action brought under this section is in
Travis County.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1396, Sec. 35, eff. Sept. 1,
1997.
Sec. 242.099. Applicability of Other Law.
Subtitle D, Title 10, Government Code does not apply to any
payments made by a trustee under this subchapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 165, Sec. 17.19(13), eff.
Sept. 1, 1997.
Sec. 242.100. Notification of Closing.
(a) A home that is closing temporarily or permanently, or
voluntarily or involuntarily, shall notify the residents of the
closing and make reasonable efforts to notify in writing each
resident's nearest relative or the person responsible for the
resident's support within a reasonable time before the closing.
(b) If the closing of a home is ordered by the department or is
in any other way involuntary, the home shall make the
notification, orally or in writing, immediately on receiving
notice of the closing.
(c) If the closing of a home is voluntary, the home shall make
the notification not later than one week after the date on which
the decision to close is made.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.101. Criminal Penalty.
(a) A home commits an offense if the home fails or refuses to
comply with Section 242.100.
(b) An offense under this section is a Class A misdemeanor.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
SUBCHAPTER E. REPORTS OF ABUSE AND NEGLECT
Sec. 242.121. Definition.
In this subchapter, "designated agency" means an agency
designated by a court to be responsible for the protection of a
resident who is the subject of a report of abuse or neglect.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.122. Reporting of Abuse and Neglect.
(a) A person, including an owner or employee of an institution,
who has cause to believe that the physical or mental health or
welfare of a resident has been or may be adversely affected by
abuse or neglect caused by another person shall report the abuse
or neglect in accordance with this subchapter.
(b) Each institution shall require each employee of the
institution, as a condition of employment with the institution,
to sign a statement that the employee realizes that the employee
may be criminally liable for failure to report those abuses.
(c) A person shall make an oral report immediately on learning
of the abuse or neglect and shall make a written report to the
same agency not later than the fifth day after the oral report is
made.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.1225. Additional Reporting Requirement.
(a) The board shall adopt rules requiring any person required
to report abuse or neglect under Section 242.122 to report other
conduct or conditions specified by the rules. The rules must
require reporting of conduct or conditions resulting in
exploitation of residents and accidental injury to or
hospitalization of residents.
(b) A report made under this section must be made in the manner
specified by board rule.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.22, eff. Sept. 1,
1997.
Sec. 242.123. Contents of Report.
(a) A report of abuse or neglect is nonaccusatory and reflects
the reporting person's belief that a resident has been or will be
abused or neglected or has died of abuse or neglect.
(b) The report must contain:
(1) the name and address of the resident;
(2) the name and address of the person responsible for the
care of the resident, if available; and
(3) other relevant information.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.124. Anonymous Reports of Abuse or Neglect.
(a) An anonymous report of abuse or neglect, although not
encouraged, shall be received and acted on in the same manner as
an acknowledged report.
(b) An anonymous report about a specific individual that
accuses the individual of abuse or neglect need not be
investigated.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.125. Processing of Reports.
(a) A report of abuse or neglect shall be made to the
department or a local or state law enforcement agency.
(b) A local or state law enforcement agency that receives a
report of abuse or neglect shall refer the report to the
department or the designated agency.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.126. Investigation and Report of Department or Designated Agency.
(a) The department or the designated agency shall make a
thorough investigation after receiving an oral or written report
of abuse or neglect under Section 242.122 or another complaint
alleging abuse or neglect.
(b) The primary purpose of the investigation is the protection
of the resident.
(c) The agency shall begin the investigation:
(1) within 24 hours of receipt of the report or other
allegation, if the report of abuse or neglect or other
complaint alleges that:
(A) a resident's health or safety is in imminent danger;
(B) a resident has recently died because of conduct
alleged in the report of abuse or neglect or other
complaint; or
(C) a resident has been hospitalized or been treated in
an emergency room because of conduct alleged in the report
of abuse or neglect or other complaint; or
(2) before the end of the next working day after the date of
receipt of the report of abuse or neglect or other complaint,
if the report or complaint alleges the existence of
circumstances that could result in abuse or neglect and that
could place a resident's health or safety in imminent danger.
(d) The department shall adopt rules governing the conduct of
investigations, including procedures to ensure that the
complainant and the resident, the resident's next of kin, and any
person designated to receive information concerning the resident
receive periodic information regarding the investigation.
(e) In investigating the report of abuse or neglect or other
complaint, the investigator for the investigating agency shall:
(1) make an unannounced visit to the institution to
determine the nature and cause of the alleged abuse or neglect
of the resident;
(2) interview each available witness identified by any
source as having personal knowledge relevant to the report of
abuse or neglect or other complaint;
(3) personally inspect any physical circumstance that is
relevant and material to the report of abuse or neglect or
other complaint and that may be objectively observed; and
(4) write an investigation report that includes:
(A) the investigator's personal observations;
(B) a review of relevant documents and records;
(C) a summary of each witness statement; and
(D) a statement of the factual basis for the findings
for each incident or problem alleged in the report or other
allegation.
(f) An investigator for an investigating agency shall conduct
an interview under Subsection (e)(2) in private unless the
witness expressly requests that the interview not be private.
(g) Not later than the 30th day after the date the
investigation is complete, the investigator shall prepare the
written report required by Subsection (e). The department shall
make the investigation report available to the public on request
after the date the department's letter of determination is
complete. The department shall delete from any copy made
available to the public the name of:
(1) any resident, unless the department receives written
authorization from a resident or the resident's legal
representative requesting the resident's name be left in the
report;
(2) the person making the report of abuse or neglect or
other complaint; and
(3) an individual interviewed in the investigation.
(h) In the investigation, the department or the designated
agency shall determine:
(1) the nature, extent, and cause of the abuse or neglect;
(2) the identity of the person responsible for the abuse or
neglect;
(3) the names and conditions of the other residents;
(4) an evaluation of the persons responsible for the care of
the residents;
(5) the adequacy of the institution environment; and
(6) any other information required by the department.
(i) If the department attempts to carry out an on-site
investigation and it is shown that admission to the institution,
or any place where the resident is located, cannot be obtained, a
probate or county court shall order the person responsible for
the care of the resident or the person in charge of a place where
the resident is located to allow entrance for the interview and
investigation.
(j) Before the completion of the investigation the department
shall file a petition for temporary care and protection of the
resident if the department determines that immediate removal is
necessary to protect the resident from further abuse or neglect.
(k) The department or the designated agency shall make a
complete final written report of the investigation and submit the
report and its recommendations to the district attorney and, if a
law enforcement agency has not investigated the report of abuse
or neglect or other complaint, to the appropriate law enforcement
agency.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 815, Sec. 4, eff. Sept. 1,
1993; Acts 1995, 74th Leg., ch. 76, Sec. 8.090, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 1159, Sec. 1.23, eff. Sept. 1,
1997.
Sec. 242.127. Confidentiality.
A report, record, or working paper used or developed in an
investigation made under this subchapter and the name of any
person making a report under this subchapter are confidential and
may be disclosed only for purposes consistent with the rules
adopted by the board or the designated agency.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.24, eff. Sept.
1, 1997.
Sec. 242.128. Immunity.
(a) A person who reports as provided by this subchapter is
immune from civil or criminal liability that, in the absence of
the immunity, might result from making the report.
(b) The immunity provided by this section extends to
participation in any judicial proceeding that results from the
report.
(c) This section does not apply to a person who reports in bad
faith or with malice.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.129. Privileged Communications.
In a proceeding regarding the abuse or neglect of a resident or
the cause of any abuse or neglect, evidence may not be excluded
on the ground of privileged communication except in the case of a
communication between an attorney and client.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.130. Central Registry.
(a) The department shall maintain in the city of Austin a
central registry of reported cases of resident abuse or neglect.
(b) The board may adopt rules necessary to carry out this
section.
(c) The rules shall provide for cooperation with hospitals and
clinics in the exchange of reports of resident abuse or neglect.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.131. Failure to Report; Criminal Penalty.
(a) A person commits an offense if the person has cause to
believe that a resident's physical or mental health or welfare
has been or may be further adversely affected by abuse or neglect
and knowingly fails to report in accordance with Section 242.122.
(b) An offense under this section is a Class A misdemeanor.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.132. Bad Faith, Malicious, or Reckless Reporting; Criminal
Penalty.
(a) A person commits an offense if the person reports under
this subchapter in bad faith, maliciously, or recklessly.
(b) An offense under this section is a Class A misdemeanor.
(c) The criminal penalty provided by this section is in
addition to any civil penalties for which the person may be
liable.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.133. Suit for Retaliation.
(a) A person has a cause of action against an institution, or
the owner or employee of the institution, that suspends or
terminates the employment of the person or otherwise disciplines
or discriminates or retaliates against the person for making a
report or complaint under this chapter to the department or a law
enforcement agency, for reporting the abuse or neglect or other
complaint to the person's supervisors, or for initiating or
cooperating in any investigation or proceeding of a governmental
entity relating to care, services, or conditions at the
institution.
(b) The petitioner may recover:
(1) the greater of $1,000 or actual damages, including
damages for mental anguish even if an injury other than mental
anguish is not shown and damages for lost wages if the
petitioner's employment was suspended or terminated;
(2) exemplary damages;
(3) court costs; and
(4) reasonable attorney's fees.
(c) In addition to the amounts that may be recovered under
Subsection (b), a person whose employment is suspended or
terminated is entitled to reinstatement in the person's former
position.
(d) The petitioner, not later than the 90th day after the date
on which the person's employment is suspended or terminated, must
bring suit or notify the Texas Employment Commission of the
petitioner's intent to sue under this section. A petitioner who
notifies the Texas Employment Commission under this subsection
must bring suit not later than the 90th day after the date of the
delivery of the notice to the commission. On receipt of the
notice, the commission shall notify the institution of the
petitioner's intent to bring suit under this section.
(e) The petitioner has the burden of proof, except that there
is a rebuttable presumption that the person's employment was
suspended or terminated for reporting abuse or neglect if the
person is suspended or terminated within 60 days after the date
on which the person reported in good faith.
(f) A suit under this section may be brought in the district
court of the county in which:
(1) the plaintiff resides;
(2) the plaintiff was employed by the defendant; or
(3) the defendant conducts business.
(g) Each institution shall require each employee of the
institution, as a condition of employment with the institution,
to sign a statement that the employee understands the employee's
rights under this section. The statement must be part of the
statement required under Section 242.122. If an institution does
not require an employee to read and sign the statement, the
periods under Subsection (d) do not apply, and the petitioner
must bring suit not later than the second anniversary of the date
on which the person's employment is suspended or terminated.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 91, eff. Sept. 1,
1991.
Amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.25, eff. Sept.
1, 1997.
Sec. 242.1335. Suit for Retaliation Against Resident.
(a) An institution may not retaliate or discriminate against a
resident if the resident, the resident's guardian, or any other
person makes a complaint or files a grievance concerning the
facility or reports in accordance with this chapter.
(b) A resident who is retaliated or discriminated against in
violation of Subsection (a) is entitled to sue for:
(1) injunctive relief;
(2) actual damages;
(3) exemplary damages;
(4) court costs; and
(5) reasonable attorney's fees.
(c) A resident who seeks relief under this section must report
the alleged violation not later than the 180th day after the date
on which the alleged violation of this section occurred or was
discovered by the resident through reasonable diligence.
(d) A suit under this section may be brought in the district
court of the county in which the institution is located or in a
district court of Travis County.
Added by Acts 1995, 74th Leg., ch. 864, Sec. 1, eff. June 16,
1995. Amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.26, eff.
Sept. 1, 1997.
Sec. 242.134. Reports Relating to Resident Deaths.
(a) An institution licensed under this chapter shall submit a
report to the department concerning deaths of residents of the
institution. The report must be submitted within 10 working days
after the last day of each month in which a resident of the
institution dies. The report must also include the death of a
resident occurring within 24 hours after the resident is
transferred from the institution to a hospital.
(b) The institution must make the report on a form prescribed
by the department. The report must contain the name and social
security number of the deceased.
(c) The department shall correlate reports under this section
with death certificate information to develop data relating to
the:
(1) name and age of the deceased;
(2) official cause of death listed on the death certificate;
(3) date, time, and place of death; and
(4) name and address of the institution in which the
deceased resided.
(d) Except as provided by Subsection (e), a record under this
section is confidential and not subject to the provisions of
Chapter 552, Government Code.
(e) The department shall develop statistical information on
official causes of death to determine patterns and trends of
incidents of death among the elderly and in specific
institutions. Information developed under this subsection is
public.
(f) A licensed institution shall make available historical
statistics on all required information on request of an applicant
or applicant's representative.
Added by Acts 1991, 72nd Leg., ch. 14, Sec. 92, eff. Sept. 1,
1991. Amended by Acts 1991, 72nd Leg., ch. 437, Sec. 1, eff.
Sept. 1, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(88), eff.
Sept. 1, 1995.
SUBCHAPTER F. MEDICAL, NURSING, AND DENTAL SERVICES OTHER THAN
ADMINISTRATION OF MEDICATION
Sec. 242.151. Physician Services.
(a) An institution shall have at least one medical director who
is licensed as a physician in this state.
(b) The attending physician is responsible for a resident's
assessment and comprehensive plan of care and shall review,
revise, and sign orders relating to any medication or treatment
in the plan of care. The responsibilities imposed on the
attending physician by this subsection may be performed by an
advanced practice nurse or a physician assistant pursuant to
protocols jointly developed with the attending physician.
(c) Each resident has the right to choose a personal attending
physician.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
Sec. 242.152. Physician Services for Residents Younger Than 18 Years of
Age.
(a) An institution shall use appropriate pediatric consultative
services for a resident younger than 18 years of age, in
accordance with the resident's assessment and comprehensive plan
of care.
(b) A pediatrician or other physician with training or
expertise in the clinical care of children with complex medical
needs shall participate in all aspects of the resident's medical
care.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
Sec. 242.153. Director of Nursing Services.
An institution shall have a director of nursing services who
shall be a registered nurse. The director of nursing services is
responsible for:
(1) coordinating each resident's comprehensive plan of care;
and
(2) ensuring that only personnel with an appropriate license
or permit administer medication.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
Sec. 242.154. Nursing Services.
(a) An institution shall provide the nursing care required to
allow each resident to achieve and maintain the highest possible
degree of function and independence medically possible.
(b) The institution shall maintain sufficient staff to provide
nursing and related services:
(1) in accordance with each resident's plan of care; and
(2) to obtain and maintain the physical, mental, and
psychosocial functions of each resident at the highest
practicable level, as determined by the resident's assessment
and plan of care.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
Sec. 242.155. Pediatric Nursing Services.
An institution shall ensure that:
(1) nursing services for a resident younger than 18 years of
age are provided by a staff member who has been instructed and
has demonstrated competence in the care of children; and
(2) consultative pediatric nursing services are available to
the staff if the institution has a resident younger than 18
years of age.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
Sec. 242.156. Required Medical Examination.
(a) Except as required by federal law, the department shall
require that each resident be given at least one medical
examination each year.
(b) The department shall specify the details of the
examination.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
Sec. 242.157. Dental Examination.
(a) The department shall require that each resident of an
institution or the resident's custodian be asked at least once
each year if the resident desires a dental examination and
possible treatment at the resident's own expense.
(b) Each institution shall be encouraged to use all reasonable
efforts to arrange for a dental examination for each resident who
desires one.
(c) The institution is not liable for any costs relating to a
dental examination under this section.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
SUBCHAPTER G. RESPITE CARE
Sec. 242.181. Definitions.
In this subchapter:
(1) "Handicapped person" means a person whose physical or mental
functioning is impaired to the extent that the person needs
medical attention, counseling, physical therapy, therapeutic or
corrective equipment, or another person's attendance and
supervision.
(2) "Plan of care" means a written description of the medical
care or the supervision and nonmedical care needed by a person
during respite care.
(3) "Respite care" means the provision by an institution to a
person, for not more than two weeks for each stay in the
institution, of:
(A) room and board; and
(B) care at the level ordinarily provided for permanent
residents.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.182. Respite Care.
(a) An institution licensed under this chapter may provide
respite care for an elderly or handicapped person according to a
plan of care.
(b) The board may adopt rules for the regulation of respite
care provided by an institution licensed under this chapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.183. Plan of Care.
(a) The institution and the person arranging the care must
agree on the plan of care and the plan must be filed at the
institution before the institution admits the person for the
care.
(b) The plan of care must be signed by:
(1) a licensed physician if the person for whom the care is
arranged needs medical care or treatment; or
(2) the person arranging for the respite care if medical
care or treatment is not needed.
(c) The institution may keep an agreed plan of care for a
person for not longer than six months from the date on which it
is received. During that period, the institution may admit the
person as frequently as is needed and as accommodations are
available.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.184. Notification.
An institution that offers respite care shall notify the
department in writing that it offers respite care.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.185. Inspections.
The department, at the time of an ordinary licensing inspection
or at other times determined necessary by the department, shall
inspect an institution's records of respite care services,
physical accommodations available for respite care, and the plan
of care records to ensure that the respite care services comply
with the licensing standards of this chapter and with any rules
the board may adopt to regulate respite care services.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 242.186. Suspension.
(a) The department may require an institution to cease
providing respite care if the department determines that the
respite care does not meet the standards required by this chapter
and that the institution cannot comply with those standards in
the respite care it provides.
(b) The department may suspend the license of an institution
that continues to provide respite care after receiving a written
order from the department to cease.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
SUBCHAPTER H. CARE FOR RESIDENTS WITH ALZHEIMER'S DISEASE AND
RELATED
DISORDERS
Sec. 242.201. Scope of Subchapter.
This subchapter applies only to an institution that advertises,
markets, or otherwise promotes that the institution provides
services to residents with Alzheimer's disease and related
disorders.
Added by Acts 1995, 74th Leg., ch. 38, Sec. 1, eff. May 5, 1995.
Sec. 242.202. Disclosure Required.
(a) An institution covered by this subchapter shall provide a
disclosure statement disclosing the nature of its care or
treatment of residents with Alzheimer's disease and related
disorders to:
(1) an individual seeking placement as a resident with
Alzheimer's disease or a related disorder;
(2) an individual attempting to place another individual as
a resident with Alzheimer's disease or a related disorder; or
(3) a person seeking information about the institution's
care or treatment of residents with Alzheimer's disease and
related disorders.
(b) The disclosure statement must be displayed with the
institution's license as it is posted under Section 242.042.
(c) The institution must file the disclosure statement with the
department as part of the report filed under Section 242.033(d).
The department shall verify contents of the disclosure statement
as part of the license renewal process.
(d) The disclosure statement must contain the following
categories of information:
(1) the institution's philosophy of care;
(2) the preadmission, admission, and discharge process;
(3) resident assessment, care planning, and implementation
of the care plan;
(4) staffing patterns, such as resident-to-staff ratios, and
staff training;
(5) the physical environment of the institution;
(6) resident activities;
(7) program costs;
(8) systems for evaluation of the institution's programs for
residents;
(9) family involvement in resident care; and
(10) the toll-free telephone number maintained by the
department for acceptance of complaints against the
institution.
(e) The institution must update the disclosure statement as
needed to reflect changes in the operation of the institution.
Added by Acts 1995, 74th Leg., ch. 38, Sec. 1, eff. May 5, 1995.
Sec. 242.203. Violation.
(a) An institution that violates this subchapter is subject to
an administrative penalty under Subchapter C.
(b) The department may not revoke or suspend the license of an
institution for a violation of this subchapter.
Added by Acts 1995, 74th Leg., ch. 38, Sec. 1, eff. May 5, 1995.
Sec. 242.204. Rules.
The board shall adopt rules governing:
(1) the content of the disclosure statement required by this
subchapter, consistent with the information categories required
by Section 242.202(d); and
(2) the amount of an administrative penalty to be assessed
for a violation of this subchapter.
Added by Acts 1995, 74th Leg., ch. 38, Sec. 1, eff. May 5, 1995.
SUBCHAPTER I. AUTOMATED MEDICAID PATIENT CARE AND REIMBURSEMENT
SYSTEM
Sec. 242.221. Automated System for Medicaid Patient Care and
Reimbursement.
(a) The department shall acquire and develop an automated system
for providing reimbursements to nursing facilities under the
state Medicaid program, subject to the availability of funds
appropriated for that purpose.
(b) The department shall select an automated system that will
allow the addition of other components of the state Medicaid
program, including components administered by other state
agencies.
(c) The department and the Health and Human Services Commission
shall work together to apply for all available federal funds to
help pay for the automated system.
(d) To the extent possible, the department shall assist nursing
facilities to make systems compatible with the automated system
selected by the department.
(e) The department shall charge a fee to nursing facilities that
do not receive their Medicaid reimbursements electronically. The
department shall set the fee in an amount necessary to cover the
costs of manually processing and sending the reimbursements.
Added by Acts 1995, 74th Leg., ch. 189, Sec. 1, eff. Aug. 28,
1995. Renumbered from V.T.C.A., Health and Safety Code Sec.
242.201 by Acts 1997, 75th Leg., ch. 165, Sec. 31.01(55), eff.
Sept. 1, 1997; amended by Acts 1997, 75th Leg., ch. 530, Sec. 1,
eff. Sept. 1, 1997.
Sec. 242.222. Data Used by System.
The automated patient care and reimbursement system must use a
form designed by the United States Health Care Financing
Administration for nursing facility use.
Added by Acts 1995, 74th Leg., ch. 189, Sec. 1, eff. Aug. 28,
1995. Renumbered from V.T.C.A., Health and Safety Code Sec.
242.202 by Acts 1997, 75th Leg., ch. 165, Sec. 31.01(55), eff.
Sept. 1, 1997; amended by Acts 1997, 75th Leg., ch. 530, Sec. 1,
eff. Sept. 1, 1997.
Sec. 242.223. Frequency of Data Submission.
Nursing facilities must complete and electronically submit the
designated form to the department at least quarterly for
reimbursement.
Added by Acts 1997, 75th Leg., ch. 530, Sec. 1, eff. Sept. 1,
1997.
Sec. 242.224. Electronic Claims for Reimbursement.
The automated reimbursement system must be able to link the
department electronically with nursing facilities making claims
for reimbursement. When the system is operational, each nursing
facility shall make claims electronically.
Added by Acts 1995, 74th Leg., ch. 189, Sec. 1, eff. Aug. 28,
1995. Renumbered from V.T.C.A., Health and Safety Code Sec.
242.203 by Acts 1997, 75th Leg., ch. 165, Sec. 31.01(55), eff.
Sept. 1, 1997; amended by Acts 1997, 75th Leg., ch. 530, Sec. 1,
eff. Sept. 1, 1997.
Sec. 242.225. Date of Reimbursement.
The department shall pay Medicaid nursing facility
reimbursement claims that are made electronically not later than
the 30th day after the date the claim is made.
Added by Acts 1995, 74th Leg., ch. 189, Sec. 1, eff. Aug. 28,
1995. Renumbered from V.T.C.A., Health and Safety Code Sec.
242.204 by Acts 1997, 75th Leg., ch. 165, Sec. 31.01(55), eff.
Sept. 1, 1997; amended by Acts 1997, 75th Leg., ch. 530, Sec. 1,
eff. Sept. 1, 1997.
Sec. 242.226. Rules.
The department shall adopt rules and make policy changes as
necessary to improve the efficiency of the reimbursement process
and to maximize the automated reimbursement system's
capabilities.
Added by Acts 1995, 74th Leg., ch. 189, Sec. 1, eff. Aug. 28,
1995. Renumbered from V.T.C.A., Health and Safety Code Sec.
242.205 by Acts 1997, 75th Leg., ch. 165, Sec. 31.01(55), eff.
Sept. 1, 1997; amended by Acts 1997, 75th Leg., ch. 530, Sec. 1,
eff. Sept. 1, 1997.
SUBCHAPTER J. ARBITRATION OF CERTAIN DISPUTES
Sec. 242.251. Scope of Subchapter.
This subchapter applies to any dispute between an institution
licensed under this chapter and the department relating to:
(1) renewal of a license under Section 242.033;
(2) suspension or revocation of a license under Section 242.061;
(3) assessment of a civil penalty under Section 242.065;
(4) assessment of a monetary penalty under Section 242.066; or
(5) assessment of a penalty as described by Section 32.021(k),
Human Resources Code.
Added by Acts 1995, 74th Leg., ch. 1049, Sec. 5, eff. Sept. 1,
1995.
Sec. 242.252. Election of Arbitration.
(a) An affected institution may elect binding arbitration of
any dispute to which this subchapter applies. Arbitration under
this subchapter is an alternative to a contested case hearing or
to a judicial proceeding relating to the assessment of a civil
penalty.
(b) An affected institution may elect arbitration under this
subchapter by filing the election with the department not later
than the 10th day after a notice of hearing relating to any
dispute described by Section 242.251 is received by the
institution.
(c) The department may elect arbitration under this subchapter
by notifying the institution of the election not later than the
date that the institution may elect arbitration under Subsection
(b).
(d) An election to engage in arbitration under this subchapter
is irrevocable and binding on the institution and the department.
Added by Acts 1995, 74th Leg., ch. 1049, Sec. 5, eff. Sept. 1,
1995.
Sec. 242.253. Arbitration Procedures.
(a) The arbitration shall be conducted by an arbitrator.
(b) The arbitration and the appointment of the arbitrator shall
be conducted in accordance with rules adopted by the chief
administrative law judge of the State Office of Administrative
Hearings. Before adopting rules under this subsection, the chief
administrative law judge shall consult with the department and
shall consider appropriate rules developed by any nationally
recognized association that performs arbitration services.
(c) The party that elects arbitration shall pay the cost of the
arbitration. The total fees and expenses paid for an arbitrator
for a day may not exceed $500.
(d) The State Office of Administrative Hearings may designate a
nationally recognized association that performs arbitration
services to conduct arbitrations under this subchapter and may,
after consultation with the department, contract with that
association for the arbitrations.
Added by Acts 1995, 74th Leg., ch. 1049, Sec. 5, eff. Sept. 1,
1995. Amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.28, eff.
Sept. 1, 1997.
Sec. 242.254. Arbitrator; Qualifications.
Each arbitrator must be on an approved list of a nationally
recognized association that performs arbitration services or be
otherwise qualified as provided in the rules adopted under
Section 242.253(b).
Added by Acts 1995, 74th Leg., ch. 1049, Sec. 5, eff. Sept. 1,
1995.
Sec. 242.255. Arbitrator; Selection.
The arbitrator shall be appointed in accordance with the rules
adopted under Section 242.253(b).
Added by Acts 1995, 74th Leg., ch. 1049, Sec. 5, eff. Sept. 1,
1995.
Sec. 242.256. Duties of Arbitrator.
The arbitrator shall:
(1) protect the interests of the department and the
institution;
(2) ensure that all relevant evidence has been disclosed to
the arbitrator, department, and institution; and
(3) render an order consistent with this chapter and the
rules adopted under this chapter.
Added by Acts 1995, 74th Leg., ch. 1049, Sec. 5, eff. Sept. 1,
1995.
Sec. 242.257. Scheduling of Arbitration.
(a) The arbitrator conducting the arbitration shall schedule
arbitration to be held not later than the 90th day after the date
the arbitrator is selected and shall notify the department and
the institution of the scheduled date.
(b) The arbitrator may grant a continuance of the arbitration
at the request of the department or institution. The arbitrator
may not unreasonably deny a request for a continuance.
Added by Acts 1995, 74th Leg., ch. 1049, Sec. 5, eff. Sept. 1,
1995.
Sec. 242.258. Exchange and Filing of Information.
Not later than the seventh day before the first day of
arbitration, the department and the institution shall exchange
and file with the arbitrator:
(1) all documentary evidence not previously exchanged and
filed that is relevant to the dispute; and
(2) information relating to a proposed resolution of the
dispute.
Added by Acts 1995, 74th Leg., ch. 1049, Sec. 5, eff. Sept. 1,
1995.
Sec. 242.259. Attendance Required.
(a) The arbitrator may proceed in the absence of any party or
representative of a party who, after notice of the proceeding,
fails to be present or to obtain a postponement.
(b) An arbitrator may not make an order solely on the default
of a party and shall require the party who is present to submit
evidence, as required by the arbitrator, before making an award.
Added by Acts 1995, 74th Leg., ch. 1049, Sec. 5, eff. Sept. 1,
1995.
Sec. 242.260. Testimony; Record.
(a) The arbitrator may require witnesses to testify under oath
and shall require testimony under oath if requested by the
department or the institution.
(b) The department shall make an electronic recording of the
proceeding.
(c) An official stenographic record of the proceeding is not
required, but the department or the institution may make a
stenographic record. The party that makes the stenographic
record shall pay the expense of having the record made.
Added by Acts 1995, 74th Leg., ch. 1049, Sec. 5, eff. Sept. 1,
1995.
Sec. 242.261. Evidence.
(a) The department or the institution may offer evidence as
they desire and shall produce additional evidence as the
arbitrator considers necessary to understand and resolve the
dispute.
(b) The arbitrator is the judge of the relevance and
materiality of the evidence offered. Strict conformity to rules
applicable to judicial proceedings is not required.
Added by Acts 1995, 74th Leg., ch. 1049, Sec. 5, eff. Sept. 1,
1995.
Sec. 242.262. Closing Statements; Briefs.
The department and the institution may present closing
statements as they desire, but the record may not remain open for
written briefs unless requested by the arbitrator.
Added by Acts 1995, 74th Leg., ch. 1049, Sec. 5, eff. Sept. 1,
1995.
Sec. 242.263. Ex Parte Contacts Prohibited.
(a) Except as provided by Subsection (b), the department and
the institution may not communicate with an arbitrator other than
at an oral hearing unless the parties and the arbitrator agree
otherwise.
(b) Any oral or written communication, other than a
communication authorized under Subsection (a), from the parties
to an arbitrator shall be directed to the association that is
conducting the arbitration or, if there is no association
conducting the arbitration, to the State Office of Administrative
Hearings, for transmittal to the arbitrator.
Added by Acts 1995, 74th Leg., ch. 1049, Sec. 5, eff. Sept. 1,
1995.
Sec. 242.264. Order.
(a) The arbitrator may enter any order that may be entered by
the department, board, commissioner, or court under this chapter
in relation to a dispute described by Section 242.251.
(b) The arbitrator shall enter the order not later than the
60th day after the last day of the arbitration.
(c) The arbitrator shall base the order on the facts
established at arbitration, including stipulations of the
parties, and on the law as properly applied to those facts.
(d) The order must:
(1) be in writing;
(2) be signed and dated by the arbitrator; and
(3) include a statement of the arbitrator's decision on the
contested issues and the department's and institution's
stipulations on uncontested issues.
(e) The arbitrator shall file a copy of the order with the
department and shall notify the department and the institution in
writing of the decision.
Added by Acts 1995, 74th Leg., ch. 1049, Sec. 5, eff. Sept. 1,
1995.
Sec. 242.265. Effect of Order.
An order of an arbitrator under this subchapter is final and
binding on all parties. Except as provided by Section 242.267,
there is no right to appeal.
Added by Acts 1995, 74th Leg., ch. 1049, Sec. 5, eff. Sept. 1,
1995.
Sec. 242.266. Clerical Error.
For the purpose of correcting a clerical error, an arbitrator
retains jurisdiction of the award for 20 days after the date of
the award.
Added by Acts 1995, 74th Leg., ch. 1049, Sec. 5, eff. Sept. 1,
1995.
Sec. 242.267. Court Vacating Order.
(a) On a finding described by Subsection (b), a court shall:
(1) on application of an institution, vacate an arbitrator's
order with respect to an arbitration conducted at the election
of the department; or
(2) on application of the department, vacate an arbitrator's
order with respect to an arbitration conducted at the election
of an institution.
(b) A court shall vacate an arbitrator's order under Subsection
(a) only on a finding that:
(1) the order was procured by corruption, fraud, or
misrepresentation;
(2) the decision of the arbitrator was arbitrary or
capricious and against the weight of the evidence; or
(3) the order exceeded the jurisdiction of the arbitrator
under Section 242.264(a).
(c) If the order is vacated, the dispute shall be remanded to
the department for another arbitration proceeding.
(d) A suit to vacate an arbitrator's order must be filed not
later than the 30th day after:
(1) the date of the award; or
(2) the date the institution or department knew or should
have known of a basis for suit under this section, but in no
event later than the first anniversary of the date of the
order.
(e) Venue for a suit to vacate an arbitrator's order is in the
county in which the arbitration was conducted.
Added by Acts 1995, 74th Leg., ch. 1049, Sec. 5, eff. Sept. 1,
1995. Amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.29, eff.
Sept. 1, 1997.
Sec. 242.268. No Arbitration in Case of Emergency Order or Closing Order.
This subchapter does not apply to an order issued under Section
242.062 or 242.072, and neither the department nor the
institution may elect to arbitrate a dispute if the subject
matter of the dispute is part of the basis for:
(1) revocation, denial, or suspension of an institution's
license;
(2) issuance of a closing order under Section 242.062; or
(3) suspension of admissions under Section 242.072.
Added by Acts 1995, 74th Leg., ch. 1049, Sec. 5, eff. Sept. 1,
1995. Amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.29, eff.
Sept. 1, 1997.
SUBCHAPTER I. NURSING FACILITY ADMINISTRATION
Sec. 242.301. Definitions.
Text of section effective until federal determination of failure
to comply with federal regulations
In this subchapter:
(1) "Nursing facility" means an institution or facility that
is licensed as a nursing home, nursing facility, or skilled
nursing facility by the department under this chapter.
(2) "Nursing facility administrator" or "administrator"
means a person who engages in the practice of nursing facility
administration, without regard to whether the person has an
ownership interest in the facility or whether the functions and
duties are shared with any other person.
(3) "Practice of nursing facility administration" means the
performance of the acts of administering, managing,
supervising, or being in general administrative charge of a
nursing facility.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1,
1997.
Sec. 242.302. Powers and Duties of Department.
Text of section effective until federal determination of failure
to comply with federal regulations
(a) The board may adopt rules consistent with this subchapter.
(b) The department shall:
(1) adopt and publish a code of ethics for nursing facility
administrators;
(2) establish the qualifications of applicants for licenses
and the renewal of licenses issued under this subchapter;
(3) spend funds necessary for the proper administration of
the department's assigned duties under this subchapter;
(4) establish reasonable and necessary fees for the
administration and implementation of this subchapter; and
(5) establish a minimum number of hours of continuing
education required to renew a license issued under this
subchapter and periodically assess the continuing education
needs of license holders to determine whether specific course
content should be required.
(c) The department is the licensing agency for the healing
arts, as provided by 42 U.S.C. Section 1396g.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1,
1997.
Sec. 242.303. Nursing Facility Administrators Advisory Committee.
Text of section effective until federal determination of failure
to comply with federal regulations
(a) The Nursing Facility Administrators Advisory Committee is
appointed by the governor.
(b) Members of the committee serve for staggered terms of six
years, with the terms of three members expiring on February 1 of
each odd-numbered year.
(c) The committee shall consist of:
(1) three licensed nursing facility administrators, at least
one of whom shall represent a not-for-profit nursing facility;
(2) one physician with experience in geriatrics who is not
employed by a nursing facility;
(3) one registered nurse with experience in geriatrics who
is not employed by a nursing facility;
(4) one social worker with experience in geriatrics who is
not employed by a nursing facility; and
(5) three public members with experience working with the
chronically ill and infirm as provided by 42 U.S.C. Section
1396g.
(d) The committee shall advise the board on the licensing of
nursing facility administrators, including the content of
applications for licensure and of the examination administered to
license applicants under Section 242.306. The committee shall
review and recommend rules and minimum standards of conduct for
the practice of nursing facility administration. The committee
shall review all complaints against administrators and make
recommendations to the department regarding disciplinary actions.
Failure of the committee to review complaints and make
recommendations in a timely manner shall not prevent the
department from taking disciplinary action.
(e) Appointments to the committee shall be made without regard
to the race, color, disability, sex, religion, or national origin
of the person appointed.
(f) A member of the committee receives no compensation but is
entitled to reimbursement for actual and necessary expenses
incurred in performing the member's duties under this section.
(g) The department shall pay the expenses of the committee and
shall supply necessary personnel and supplies.
(h) A vacancy in a position on the committee shall be filled in
the same manner in which the position was originally filled and
shall be filled by a person who meets the qualifications of the
vacated position.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1,
1997.
Sec. 242.304. Fees; Funds.
Text of section effective until federal determination of failure
to comply with federal regulations
(a) The board by rule shall set reasonable and necessary fees
in amounts necessary to cover the cost of administering this
subchapter. The board by rule may set different licensing fees
for different categories of licenses.
(b) The department shall receive and account for funds received
under this subchapter. The funds shall be deposited in the state
treasury to the credit of the general revenue fund.
(c) The department may receive and disburse funds received from
any federal source for the furtherance of the department's
functions under this subchapter.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1,
1997.
Sec. 242.305. Practicing Without a License.
Text of section effective until federal determination of failure
to comply with federal regulations
A person may not act as a nursing facility administrator or
represent to others that the person is a nursing facility
administrator unless the person is licensed under this
subchapter.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1,
1997.
Sec. 242.306. License Application; Qualifications.
Text of section effective until federal determination of failure
to comply with federal regulations
(a) An applicant for a nursing facility administrator's license
must submit a sworn application that is accompanied by the
application fee.
(b) The board shall prescribe the form of the application and
may by rule establish dates by which applications and fees must
be received.
(c) An applicant for a nursing facility administrator's license
must take a licensing examination under this subchapter. To
qualify for the licensing examination, the applicant must have
satisfactorily completed a course of instruction and training
prescribed by the board that is conducted by or in cooperation
with an accredited postsecondary educational institution and that
is designed and administered to provide sufficient knowledge of:
(1) the needs served by nursing facilities;
(2) the laws governing the operation of nursing facilities
and the protection of the interests of facility residents; and
(3) the elements of nursing facility administration.
(d) An applicant who has not completed the course of
instruction and training described by Subsection (c) must present
evidence satisfactory to the department of having completed
sufficient education, training, and experience in the fields
described by Subsection (c) to enable the applicant to engage in
the practice of nursing facility administration.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1,
1997.
Sec. 242.307. Examination.
Text of section effective until federal determination of failure
to comply with federal regulations
(a) The licensing examination shall be prepared or approved by
the department and shall be administered by the department to
qualified applicants at least twice each calendar year. The
department shall have the written portion of the examination, if
any, validated by a testing professional.
(b) Not later than the 30th day after the date on which a
licensing examination is administered under this subchapter, the
department shall notify each examinee of the results of the
examination. If an examination is graded or reviewed by a
national or state testing service, the department shall notify
examinees of the results of the examination not later than two
weeks after the date the department receives the results from the
testing service. If the notice of the examination results will
be delayed for more than 90 days after the examination date, the
department shall notify the examinee of the reason for the delay
before the 90th day.
(c) If requested in writing by a person who fails the licensing
examination, the department shall furnish the person with an
analysis of the person's performance on the examination.
(d) The board may establish by rule additional educational
requirements to be met by an applicant who fails the examination
three times.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1,
1997.
Sec. 242.308. Licenses; Temporary License; Inactive Status.
Text of section effective until federal determination of failure
to comply with federal regulations
(a) A person who meets the requirements for licensing under
this subchapter is entitled to receive a license. A nursing
facility administrator's license is not transferable.
(b) A person licensed under this subchapter must notify the
department of the license holder's correct mailing address.
(c) A license is valid for two years. The board by rule may
adopt a system under which licenses expire on various dates
during the two-year period. For the year in which a license
expiration date is changed, license fees payable on the original
expiration date shall be prorated on a monthly basis so that each
license holder shall pay only that portion of the license fee
that is allocable to the number of months during which the
license is valid. On renewal of the license on the new
expiration date, the total license renewal fee is payable.
(d) The board by rule may provide for the issuance of a
temporary license. Rules adopted under this section shall
include a time limit for a licensee to practice under a temporary
license.
(e) The board by rule may provide for a license holder to be
placed on inactive status.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1,
1997.
Sec. 242.309. Provisional License.
Text of section effective until federal determination of failure
to comply with federal regulations
(a) On application, the department shall grant a provisional
license under this subchapter. An applicant for a provisional
license under this section must:
(1) be licensed in good standing as a nursing facility
administrator in another state, the District of Columbia, or a
territory of the United States that has licensing requirements
that are substantially equivalent to the requirements of this
subchapter;
(2) have passed a national or other examination recognized
by the board relating to the practice of nursing facility
administration; and
(3) be sponsored by a person licensed under this subchapter
with whom the provisional license holder may practice under
this section.
(b) An applicant for a provisional license may be excused from
the requirement of Subsection (a)(3) if the department determines
that compliance with that subsection constitutes a hardship to
the applicant.
(c) A provisional license is valid until the date the
department approves or denies the provisional license holder's
application for a license. The department shall issue a license
under this subchapter to the holder of a provisional license
under this section if:
(1) the provisional license holder passes the examination
required by Section 242.306(c);
(2) the department verifies that the provisional license
holder has the academic and experience requirements for a
license under this subchapter; and
(3) the provisional license holder satisfies all other
license requirements under this subchapter.
(d) The department shall complete the processing of a
provisional license holder's application for a license not later
than the 180th day after the date the provisional license is
issued. The department may extend this time in order to receive
the results of a national examination or other examination
administered or graded by an outside organization recognized by
the department.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1,
1997.
Sec. 242.310. License Renewal.
Text of section effective until federal determination of failure
to comply with federal regulations
(a) A person may renew an unexpired license by paying to the
department before the expiration of the license the required
renewal fee.
(b) If a person's license has been expired for 90 days or less,
the person may renew the license by paying to the department the
required renewal fee and a fee that is one-half of the
examination fee for the license.
(c) If a person's license has been expired for longer than 90
days but less than one year, the person may renew the license by
paying to the department all unpaid renewal fees and a fee that
is equal to the examination fee for the license.
(d) If a person's license has been expired for one year or
longer, the person may not renew the license. The person may
obtain a new license by complying with the requirements and
procedures for obtaining an original license. However, the
department may renew without reexamination an expired license of
a person who was licensed in this state, moved to another state,
and is currently licensed and has been in practice in the other
state for the two years preceding application. Such person must
pay to the department a fee that is equal to the examination fee
for the license.
(e) At least 30 days before the expiration of a person's
license, the department shall send written notice of the
impending license expiration to the person at the license
holder's last known address according to the records of the
department.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1,
1997.
Sec. 242.311. Mandatory Continuing Education.
Text of section effective until federal determination of failure
to comply with federal regulations
(a) The board by rule shall establish a minimum number of hours
of continuing education required to renew a license under this
subchapter. The department may assess the continuing education
needs of license holders and may require license holders to
attend continuing education courses specified by the board.
(b) The board shall identify the key factors for the competent
performance by a license holder of the license holder's
professional duties. The department shall adopt a procedure to
assess a license holder's participation in continuing education
programs.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1,
1997.
Sec. 242.312. Complaint Receipt, Investigation, and Disposition.
Text of section effective until federal determination of failure
to comply with federal regulations
(a) The department shall keep an information file concerning
each complaint filed with the department regarding a person
licensed under this subchapter. The department's information
file shall be kept current and shall contain a record for each
complaint of:
(1) all persons contacted in relation to the complaint;
(2) a summary of findings made at each step of the complaint
process;
(3) an explanation of the legal basis and reason for a
complaint that is dismissed; and
(4) other relevant information.
(b) If a written complaint is filed with the department that
the department has authority to resolve, the department, at least
quarterly and until final disposition of the complaint, shall
notify the parties to the complaint of the status of the
complaint unless the notice would jeopardize an undercover
investigation.
(c) The board by rule shall adopt a form to standardize
information concerning complaints made to the department. The
board by rule shall prescribe information to be provided to a
person when the person files a complaint with the department.
(d) The department shall provide reasonable assistance to a
person who wishes to file a complaint with the department.
(e) The board shall adopt rules concerning the investigation of
complaints filed with the department. The rules adopted under
this subsection shall:
(1) distinguish between categories of complaints;
(2) ensure that complaints are not dismissed without
appropriate consideration;
(3) require that the board be advised at least quarterly of
complaints that have been dismissed and require that a letter
be sent to each person who has filed a complaint that is
dismissed explaining the action taken on the complaint;
(4) ensure that the person who filed the complaint has an
opportunity to explain the allegations made in the complaint;
and
(5) prescribe guidelines concerning the categories of
complaints that may require the use of a private investigator
and the procedures to be followed by the department in
obtaining the services of a private investigator.
(f) The department shall dispose of all complaints in a timely
manner. The board by rule shall establish a schedule for
initiating a complaint investigation that is under the control of
the department not later than the 30th day after the date the
complaint is received by the department. The schedule shall be
kept in the information file for the complaint, and all parties
shall be notified of the projected time requirements for pursuing
the complaint. A change in the schedule must be noted in the
complaint information file and all parties to the complaint must
be notified not later than the seventh day after the date the
change is made.
(g) The commissioner shall notify the board at least quarterly
of complaints that have extended beyond the time prescribed by
the board for resolving complaints so that the department may
take any necessary corrective actions on the processing of
complaints.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1,
1997.
Sec. 242.313. Sanctions.
Text of section effective until federal determination of failure
to comply with federal regulations
(a) The department may revoke, suspend, or refuse to renew a
nursing facility administrator's license, assess an
administrative penalty, issue a written reprimand, require
participation in continuing education, or place an administrator
on probation, after due notice and hearing, on proof of any of
the following grounds:
(1) the license holder has wilfully or repeatedly violated a
provision of this subchapter or a rule adopted under this
subchapter;
(2) the license holder has wilfully or repeatedly acted in a
manner inconsistent with the health and safety of the residents
of a facility of which the license holder is an administrator;
(3) the license holder obtained or attempted to obtain a
license through misrepresentation or deceit or by making a
material misstatement of fact on a license application;
(4) the license holder's use of alcohol or drugs creates a
hazard to the residents of a facility;
(5) a judgment of a court of competent jurisdiction finds
that the license holder is mentally incapacitated;
(6) the license holder has been convicted in a court of
competent jurisdiction of a misdemeanor or felony involving
moral turpitude; or
(7) the license holder has been negligent or incompetent in
the license holder's duties as a nursing facility
administrator.
(b) If a license sanction is probated, the department may
require the license holder to:
(1) report regularly to the department on matters that are
the basis of the probation;
(2) limit practice to the areas prescribed by the
department; or
(3) continue or review continuing professional education
until the license holder attains a degree of skill satisfactory
to the department in those areas that are the basis of the
probation.
(c) A license holder is entitled to a hearing in accordance
with rules promulgated by the board before a sanction is imposed
under this section.
(d) The board by rule shall adopt a broad schedule of sanctions
for violations under this subchapter. The department shall use
the schedule for any sanction imposed as the result of a hearing
conducted in accordance with the rules.
(e) The department shall by rule establish criteria to
determine whether deficiencies from a facility's survey warrant
action against an administrator. The criteria shall include a
determination of whether the survey indicates substandard quality
of care related to an act or failure to act by the administrator,
and whether a deficiency is related to an act or failure to act
by the administrator. If a deficiency on which a disciplinary
action against an administrator is initiated or completed is not
substantiated, the disciplinary action shall be reversed.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1,
1997.
Sec. 242.314. Written Reprimand and Continuing Education as Sanctions.
Text of section effective until federal determination of failure
to comply with federal regulations
In addition to the other disciplinary actions authorized under
this subchapter, the department may issue a written reprimand to
a license holder who violates this subchapter or may require that
a license holder who violates this subchapter participate in
continuing education programs. The department shall specify the
continuing education programs that may be attended and the number
of hours that must be completed by a license holder to fulfill
the requirements of this section.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1,
1997.
Sec. 242.315. Administrative Penalty as Sanction.
Text of section effective until federal determination of failure
to comply with federal regulations
(a) The department may impose an administrative penalty against
a person licensed or regulated under this subchapter who violates
this subchapter or a rule adopted by the board under this
subchapter.
(b) The penalty for a violation may be in an amount not to
exceed $1,000. Each day a violation occurs or continues is a
separate violation for purposes of imposing a penalty.
(c) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including the nature,
circumstances, extent, and gravity of any prohibited acts, and
the hazard or potential hazard created to the health, safety,
or economic welfare of the public;
(2) the economic harm to property or the environment caused
by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter future violations;
(5) efforts to correct the violations; and
(6) any other matter that justice may require.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1,
1997.
Sec. 242.316. Notice and Hearing.
Text of section effective until federal determination of failure
to comply with federal regulations
(a) If the department determines that a violation has occurred,
the department shall give written notice of the determination to
the person alleged to have committed the violation. The notice
may be given by certified mail. The notice must include a brief
summary of the alleged violation and a statement of the amount of
the recommended penalty and must inform the person that the
person has a right to a hearing on the occurrence of the
violation, the amount of the penalty, or both the occurrence of
the violation and the amount of the penalty.
(b) Within 20 days after the date the person receives the
notice, the person in writing may accept the determination and
the penalty recommended by the department or may make a written
request for a hearing on the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation
and the amount of the penalty.
(c) If the person accepts the determination and the penalty
recommended by the department, the department shall impose the
recommended penalty.
(d) If the person requests a hearing or fails to respond timely
to the notice, the department shall set a hearing and give notice
of the hearing to the person. The hearing shall be held in
accordance with the department's rules on contested case
hearings.
(e) The notice of the hearing decision given to the person
under Chapter 2001, Government Code, must include a statement of
the right of the person to judicial review of the decision.
(f) Within 30 days after the date the department's decision is
final as provided by Section 2001.144, Government Code, the
person shall:
(1) pay the amount of the penalty;
(2) pay the amount of the penalty and file a petition for
judicial review contesting the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation
and the amount of the penalty; or
(3) without paying the amount of the penalty, file a
petition for judicial review contesting the occurrence of the
violation, the amount of the penalty, or both the occurrence of
the violation and the amount of the penalty.
(g) Within the 30-day period, a person who acts under
Subsection (f)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the amount of the penalty to the court for
placement in an escrow account; or
(B) giving to the court a supersedeas bond that is
approved by the court for the amount of the penalty and that
is effective until all judicial review of the department's
decision is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the
person stating that the person is financially unable to pay
the amount of the penalty and is financially unable to give
the supersedeas bond; and
(B) sending a copy of the affidavit to the department by
certified mail.
(h) If the department receives a copy of an affidavit under
Subsection (g)(2), the department may file with the court, within
five days after the date the copy is received, a contest to the
affidavit. The court shall hold a hearing on the facts alleged
in the affidavit as soon as practicable and shall stay the
enforcement of the penalty on finding that the alleged facts are
true. The person who files an affidavit has the burden of
proving that the person is financially unable to pay the amount
of the penalty and to give a supersedeas bond.
(i) If the person does not pay the amount of the penalty and
the enforcement of the penalty is not stayed, the department may
refer the matter to the attorney general for collection of the
amount of the penalty.
(j) Judicial review of the decision of the department:
(1) is instituted by filing a petition as provided by
Section 2001.176, Government Code; and
(2) is under the substantial evidence rule.
(k) If the court sustains the occurrence of the violation, the
court may uphold or reduce the amount of the penalty and order
the person to pay the full or reduced amount of the penalty. If
the court does not sustain the occurrence of the violation, the
court shall order that no penalty is owed.
(l) When the judgment of the court becomes final, the court
shall proceed under this subsection. If the person paid the
amount of the penalty and if that amount is reduced or is not
upheld by the court, the court shall order that the appropriate
amount plus accrued interest be remitted to the person. The rate
of the interest is the rate charged on loans to depository
institutions by the New York Federal Reserve Bank, and the
interest shall be paid for the period beginning on the date the
penalty was paid and ending on the date the penalty is remitted.
If the person gave a supersedeas bond and if the amount of the
penalty is not upheld by the court, the court shall order the
release of the bond. If the person gave a supersedeas bond and
if the amount of the penalty is reduced, the court shall order
the release of the bond after the person pays the amount.
(m) A penalty collected under this section shall be remitted to
the comptroller for deposit in the general revenue fund.
(n) All proceedings under this section are subject to Chapter
2001, Government Code.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1,
1997.
Sec. 242.317. Informal Proceedings.
Text of section effective until federal determination of failure
to comply with federal regulations
(a) The department by rule shall adopt procedures governing:
(1) informal disposition of a contested case under Section
2001.056, Government Code; and
(2) informal proceedings held in compliance with Section
2001.054, Government Code.
(b) Rules adopted under this section must provide the
complainant and the license holder an opportunity to be heard.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1,
1997.
Sec. 242.318. Monitoring of License Holder.
Text of section effective until federal determination of failure
to comply with federal regulations
The department by rule shall develop a system for monitoring a
license holder's compliance with the requirements of this
subchapter. Rules adopted under this section shall include
procedures for monitoring a license holder who is required by the
department to perform certain acts to ascertain that the license
holder performs the required acts and to identify and monitor
license holders who represent a risk to the public.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1,
1997.
Sec. 242.319. Civil Penalty.
Text of section effective until federal determination of failure
to comply with federal regulations
A person who violates this subchapter is liable to the state
for a civil penalty of $1,000 for each day of violation. At the
request of the department, the attorney general shall bring an
action to recover a civil penalty established by this section.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1,
1997.
Sec. 242.320. Assistance of Attorney General.
Text of section effective until federal determination of failure
to comply with federal regulations
The attorney general shall provide legal assistance as
necessary in enforcing the provisions of this subchapter. This
requirement does not relieve a local prosecuting officer of any
of the prosecuting officer's duties under the law.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1,
1997.
Sec. 242.321. Offense.
Text of section effective until federal determination of failure
to comply with federal regulations
(a) A person commits an offense if the person knowingly or
intentionally violates Section 242.305.
(b) An offense under this section is a Class B misdemeanor.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1,
1997.
Sec. 242.322. Protection for Refusal to Engage in Certain Conduct.
Text of section effective until federal determination of failure
to comply with federal regulations
(a) A person may not suspend, terminate, or otherwise
discipline or discriminate against a licensed nursing facility
administrator who refuses to engage in an act or omission
relating to the administrator's job duties or responsibilities
that would constitute a violation of this subchapter or of a rule
adopted under this subchapter, if the administrator notifies the
person at the time of the refusal that the reason for refusing is
that the act or omission constitutes a violation of this
subchapter or of a rule adopted under this subchapter.
(b) An act by a person under Subsection (a) does not constitute
a violation of this section if:
(1) the act or omission the administrator refused to commit
was not conduct that constitutes a violation of this subchapter
or of a rule adopted under this subchapter; or
(2) the act or omission the administrator refused to commit
was conduct that constitutes a violation of this subchapter or
of a rule adopted under this subchapter, and the person
rescinds any disciplinary or discriminatory action taken
against the administrator, compensates the administrator for
lost wages, and restores any lost benefits to the
administrator.
(c) A violation of this section is an unlawful employment
practice, and a civil action may be brought by a licensed nursing
facility administrator against a person for the violation. The
relief available in a civil action shall be the same as the
relief available to complainants in a civil action for violations
of Chapter 21, Labor Code. In no event may any action be brought
pursuant to this section more than two years after the date of
the administrator's refusal to engage in an act or omission that
would constitute a violation of this subchapter or of a rule
adopted under this subchapter.
(d) In this section, "person" includes an individual,
organization, corporation, agency, facility, or other entity.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 1.01, eff. Sept. 1,
1997.
SUBCHAPTER I. NURSING FACILITY ADMINISTRATION
Sec. 242.301. Definitions.
Text of section effective upon federal determination of failure
to comply with federal regulations
In this subchapter:
(1) "Board" means the Texas Board of Nursing Facility
Administrators.
(2) "Nursing facility" means an institution or facility that
is licensed as a nursing home, nursing facility, or skilled
nursing facility by the department under this chapter.
(3) "Nursing facility administrator" or "administrator"
means a person who engages in the practice of nursing facility
administration, without regard to whether the person has an
ownership interest in the facility or whether the functions and
duties are shared with any other person.
(4) "Practice of nursing facility administration" means the
performance of the acts of administering, managing,
supervising, or being in general administrative charge of a
nursing facility.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.302. Texas Board of Nursing Facility Administrators.
Text of section effective upon federal determination of failure
to comply with federal regulations
(a) The Texas Board of Nursing Facility Administrators is
within the department.
(b) The board is composed of nine members appointed by the
governor as follows:
(1) three licensed nursing facility administrators, at least
one of whom shall represent a not-for-profit nursing facility;
(2) one physician with experience in geriatrics who is not
employed by a nursing facility;
(3) one registered nurse with experience in geriatrics who
is not employed by a nursing facility;
(4) one social worker with experience in geriatrics who is
not employed by a nursing facility; and
(5) three public members with experience working with the
chronically ill and infirm as provided by 42 U.S.C. Section
1396g.
(c) Members of the board serve staggered six-year terms, with
the terms of three members expiring on February 1 of each
odd-numbered year. A person appointed to fill a vacancy on the
board shall serve for the unexpired portion of the term for which
the person is appointed.
(d) Appointments to the board shall be made without regard to
the race, color, disability, sex, religion, or national origin of
the person appointed.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.303. Membership Requirements.
Text of section effective upon federal determination of failure
to comply with federal regulations
(a) A member of the board who is an administrator must:
(1) be a resident of this state and a citizen of the United
States;
(2) be licensed under this subchapter and currently serving
as a nursing facility administrator or have direct supervisory
responsibility on a daily basis over an administrator who works
in a nursing facility; and
(3) hold a degree from an accredited four-year college or
university.
(b) An administrator who does not have a degree as required by
Subsection (a)(3) may be qualified to serve as a member of the
board if the administrator has two years of practical experience
as an administrator for every year less than four that the
administrator has completed at a four-year college or university.
(c) A member or employee of the board may not:
(1) be an officer, employee, or paid consultant of a trade
association in the nursing facility industry; or
(2) be related within the second degree by affinity or
within the third degree by consanguinity to an officer,
employee, or paid consultant of a trade association in the
nursing facility industry.
(d) A member of the board who represents the general public may
not have a financial interest, other than as a consumer, in a
nursing facility as an officer, director, partner, owner,
employee, attorney, or paid consultant or be related within the
second degree by affinity or within the third degree by
consanguinity to a person who has a financial interest, other
than as a consumer, in a nursing facility as an officer,
director, partner, owner, employee, attorney, or paid consultant.
(e) A person who is required to register as a lobbyist under
Chapter 305, Government Code, because of the person's activities
for compensation on behalf of a profession related to the
operation of the board may not serve on the board.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.304. Grounds for Removal.
Text of section effective upon federal determination of failure
to comply with federal regulations
It is a ground for removal from the board if a member:
(1) does not have at the time of appointment the
qualifications required by Section 242.303 for appointment to
the board;
(2) does not maintain during service on the board the
qualifications required by Section 242.303 for appointment to
the board;
(3) violates a prohibition established by Section 242.303;
(4) cannot discharge the member's duties for a substantial
part of the term for which the member is appointed because of
illness or disability; or
(5) is absent from more than half of the regularly scheduled
board meetings that the member is eligible to attend during a
calendar year.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.305. Board Officers; Meetings; Quorum; Expenses.
Text of section effective upon federal determination of failure
to comply with federal regulations
(a) The board shall elect from its members a presiding officer
and assistant presiding officer who serve according to rules
adopted by the board.
(b) The board shall hold at least two regular meetings each
year as provided by rules adopted by the board.
(c) A majority of the members constitutes a quorum.
(d) Each member of the board is entitled to compensation for
transportation expenses as provided by the General Appropriations
Act.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.306. Application of Open Meetings and Administrative Procedure
Act.
Text of section effective upon federal determination of failure
to comply with federal regulations
The board is subject to Chapters 551 and 2001, Government Code.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.307. Powers and Duties of the Board.
Text of section effective upon federal determination of failure
to comply with federal regulations
(a) The board may adopt rules consistent with this subchapter.
(b) The board shall:
(1) adopt and publish a code of ethics for nursing facility
administrators;
(2) establish the qualifications of applicants for licenses
and the renewal of licenses issued under this subchapter;
(3) spend funds necessary for the proper administration of
the department's assigned duties under this subchapter;
(4) establish reasonable and necessary fees for the
administration and implementation of this subchapter; and
(5) establish a minimum number of hours of continuing
education required to renew a license issued under this
subchapter and periodically assess the continuing education
needs of license holders to determine whether specific course
content should be required.
(c) The board is the licensing authority for the healing arts,
as provided by 42 U.S.C. Section 1396g, and shall meet the
requirements of a state licensing agency for nursing facility
practitioners, as provided by 42 C.F.R. Part 431, Subpart N.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.308. Administrative Functions.
Text of section effective upon federal determination of failure
to comply with federal regulations
The department shall serve as the administrator of the
licensing activities under this subchapter and shall provide
staff as necessary for the licensing and regulation of nursing
facility administrators under this subchapter. If necessary to
the administration of this subchapter, the department may secure
and provide for compensation for services that the department
considers necessary and may employ and compensate within
available appropriations professional consultants, technical
assistants, and employees on a full-time or part-time basis.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.309. Fees; Funds.
Text of section effective upon federal determination of failure
to comply with federal regulations
(a) The board by rule shall set reasonable and necessary fees
in amounts necessary to cover the cost of administering this
subchapter. The board by rule may set different licensing fees
for different categories of licenses.
(b) The department shall receive and account for funds received
under this subchapter. The funds shall be deposited in the state
treasury to the credit of the general revenue fund.
(c) The department may receive and disburse funds received from
any federal source for the furtherance of the department's
functions under this subchapter.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.310. Practicing Without a License.
Text of section effective upon federal determination of failure
to comply with federal regulations
A person may not act as a nursing facility administrator or
represent to others that the person is a nursing facility
administrator unless the person is licensed under this
subchapter.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.311. License Application; Qualifications.
Text of section effective upon federal determination of failure
to comply with federal regulations
(a) An applicant for a nursing facility administrator's license
must submit a sworn application that is accompanied by the
application fee.
(b) The board shall prescribe the form of the application and
may by rule establish dates by which applications and fees must
be received.
(c) An applicant for a nursing facility administrator's license
must take a licensing examination under this subchapter. To
qualify for the licensing examination, the applicant must have
satisfactorily completed a course of instruction and training
prescribed by the board that is conducted by or in cooperation
with an accredited postsecondary educational institution and that
is designed and administered to provide sufficient knowledge of:
(1) the needs served by nursing facilities;
(2) the laws governing the operation of nursing facilities
and the protection of the interests of facility residents; and
(3) the elements of nursing facility administration.
(d) An applicant who has not completed the course of
instruction and training described by Subsection (c) must present
evidence satisfactory to the board of having completed sufficient
education, training, and experience in the fields described by
Subsection (c) to enable the applicant to engage in the practice
of nursing facility administration.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.312. Examination.
Text of section effective upon federal determination of failure
to comply with federal regulations
(a) The licensing examination shall be prepared or approved by
the board and shall be administered by the board to qualified
applicants at least twice each calendar year. The board shall
have the written portion of the examination, if any, validated by
a testing professional.
(b) Not later than the 30th day after the date on which a
licensing examination is administered under this subchapter, the
board shall notify each examinee of the results of the
examination. If an examination is graded or reviewed by a
national or state testing service, the board shall notify
examinees of the results of the examination not later than two
weeks after the date the board receives the results from the
testing service. If the notice of the examination results will
be delayed for more than 90 days after the examination date, the
board shall notify the examinee of the reason for the delay
before the 90th day.
(c) If requested in writing by a person who fails the licensing
examination, the board shall furnish the person with an analysis
of the person's performance on the examination.
(d) The board may establish by rule additional educational
requirements to be met by an applicant who fails the examination
three times.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.313. Licenses; Temporary License; Inactive Status.
Text of section effective upon federal determination of failure
to comply with federal regulations
(a) A person who meets the requirements for licensing under
this subchapter is entitled to receive a license. A nursing
facility administrator's license is not transferable.
(b) A person licensed under this subchapter must notify the
board of the license holder's correct mailing address.
(c) A license is valid for two years. The board by rule may
adopt a system under which licenses expire on various dates
during the two-year period. For the year in which a license
expiration date is changed, license fees payable on the original
expiration date shall be prorated on a monthly basis so that each
license holder shall pay only that portion of the license fee
that is allocable to the number of months during which the
license is valid. On renewal of the license on the new
expiration date, the total license renewal fee is payable.
(d) The board by rule may provide for the issuance of a
temporary license. Rules adopted under this section shall
include a time limit for a licensee to practice under a temporary
license.
(e) The board by rule may provide for a license holder to be
placed on inactive status.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.314. Provisional License.
Text of section effective upon federal determination of failure
to comply with federal regulations
(a) On application, the board shall grant a provisional license
under this subchapter. An applicant for a provisional license
under this section must:
(1) be licensed in good standing as a nursing facility
administrator in another state, the District of Columbia, or a
territory of the United States that has licensing requirements
that are substantially equivalent to the requirements of this
subchapter;
(2) have passed a national or other examination recognized
by the board relating to the practice of nursing facility
administration; and
(3) be sponsored by a person licensed under this subchapter
with whom the provisional license holder may practice under
this section.
(b) An applicant for a provisional license may be excused from
the requirement of Subsection (a)(3) if the board determines that
compliance with that subsection constitutes a hardship to the
applicant.
(c) A provisional license is valid until the date the board
approves or denies the provisional license holder's application
for a license. The board shall issue a license under this
subchapter to the holder of a provisional license under this
section if:
(1) the provisional license holder passes the examination
required by Section 242.311(c);
(2) the board verifies that the provisional license holder
has the academic and experience requirements for a license
under this subchapter; and
(3) the provisional license holder satisfies any other
license requirements under this subchapter.
(d) The board shall complete the processing of a provisional
license holder's application for a license not later than the
180th day after the date the provisional license is issued. The
board may extend this time in order to receive the results of a
national examination or other examination administered or graded
by an outside organization recognized by the board.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.315. License Renewal.
Text of section effective upon federal determination of failure
to comply with federal regulations
(a) A person may renew an unexpired license by paying to the
board before the expiration of the license the required renewal
fee.
(b) If a person's license has been expired for 90 days or less,
the person may renew the license by paying to the board the
required renewal fee and a fee that is one-half of the
examination fee for the license.
(c) If a person's license has been expired for longer than 90
days but less than one year, the person may renew the license by
paying to the board all unpaid renewal fees and a fee that is
equal to the examination fee for the license.
(d) If a person's license has been expired for one year or
longer, the person may not renew the license. The person may
obtain a new license by complying with the requirements and
procedures for obtaining an original license. However, the board
may renew without reexamination an expired license of a person
who was licensed in this state, moved to another state, and is
currently licensed and has been in practice in the other state
for the two years preceding application. The person must pay to
the board a fee that is equal to the examination fee for the
license.
(e) At least 30 days before the expiration of a person's
license, the board shall send written notice of the impending
license expiration to the person at the license holder's last
known address according to the records of the board.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.316. Mandatory Continuing Education.
Text of section effective upon federal determination of failure
to comply with federal regulations
(a) The board by rule shall establish a minimum number of hours
of continuing education required to renew a license under this
subchapter. The board may assess the continuing education needs
of license holders and may require license holders to attend
continuing education courses specified by the board.
(b) The board shall identify the key factors for the competent
performance by a license holder of the license holder's
professional duties. The board shall adopt a procedure to assess
a license holder's participation in continuing education
programs.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.317. Complaint Receipt, Investigation, and Disposition.
Text of section effective upon federal determination of failure
to comply with federal regulations
(a) The board shall keep an information file about each
complaint filed with the board regarding a person licensed under
this subchapter. The board's information file shall be kept
current and contain a record for each complaint of:
(1) all persons contacted in relation to the complaint;
(2) a summary of findings made at each step of the complaint
process;
(3) an explanation of the legal basis and reason for a
complaint that is dismissed; and
(4) other relevant information.
(b) If a written complaint is filed with the board that the
board has authority to resolve, the board, at least as frequently
as quarterly and until final disposition of the complaint, shall
notify the parties to the complaint of the status of the
complaint unless the notice would jeopardize an undercover
investigation.
(c) The board by rule shall adopt a form to standardize
information concerning complaints made to the board. The board
by rule shall prescribe information to be provided to a person
when the person files a complaint with the board.
(d) The board shall provide reasonable assistance to a person
who wishes to file a complaint with the board.
(e) The board shall adopt rules concerning the investigation of
complaints filed with the board. The rules adopted under this
subsection shall:
(1) distinguish between categories of complaints;
(2) ensure that complaints are not dismissed without
appropriate consideration;
(3) require that the board be advised at least quarterly of
complaints that have been dismissed and require that a letter
be sent to each person who has filed a complaint that is
dismissed explaining the action taken on the complaint;
(4) ensure that the person who filed the complaint has an
opportunity to explain the allegations made in the complaint;
and
(5) prescribe guidelines concerning the categories of
complaints that may require the use of a private investigator
and the procedures for the board to obtain the services of a
private investigator.
(f) The board shall dispose of all complaints in a timely
manner. The board by rule shall establish a schedule for
initiating a complaint investigation that is under the control of
the board not later than the 30th day after the date the
complaint is received by the board. The schedule shall be kept
in the information file for the complaint, and all parties shall
be notified of the projected time requirements for pursuing the
complaint. A change in the schedule must be noted in the
complaint information file and all parties to the complaint must
be notified not later than the seventh day after the date the
change is made.
(g) The department shall notify the board at least quarterly of
complaints that have extended beyond the time prescribed by the
board for resolving complaints so that the department may take
any necessary corrective actions on the processing of complaints.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.318. Sanctions.
Text of section effective upon federal determination of failure
to comply with federal regulations
(a) The board may revoke, suspend, or refuse to renew a nursing
facility administrator's license, assess an administrative
penalty, issue a written reprimand, require participation in
continuing education, or place an administrator on probation,
after due notice and hearing, on proof of any of the following
grounds:
(1) the license holder has wilfully or repeatedly violated a
provision of this subchapter or a rule adopted under this
subchapter;
(2) the license holder has wilfully or repeatedly acted in a
manner inconsistent with the health and safety of the residents
of a facility of which the license holder is an administrator;
(3) the license holder obtained or attempted to obtain a
license through misrepresentation or deceit or by making a
material misstatement of fact on a license application;
(4) the license holder's use of alcohol or drugs creates a
hazard to the residents of a facility;
(5) a judgment of a court of competent jurisdiction finds
that the license holder is mentally incapacitated;
(6) the license holder has been convicted in a court of
competent jurisdiction of a misdemeanor or felony involving
moral turpitude; or
(7) the license holder has been negligent or incompetent in
the license holder's duties as a nursing facility
administrator.
(b) If a license sanction is probated, the board may require
the license holder to:
(1) report regularly to the board on matters that are the
basis of the probation;
(2) limit practice to the areas prescribed by the
department; or
(3) continue or review continuing professional education
until the license holder attains a degree of skill satisfactory
to the department in those areas that are the basis of the
probation.
(c) A license holder is entitled to a hearing in accordance
with rules promulgated by the board before a sanction is imposed
under this section.
(d) The board by rule shall adopt a broad schedule of sanctions
for violations under this subchapter. The board shall use the
schedule for any sanction imposed as the result of a hearing
conducted in accordance with the rules.
(e) The department shall by rule establish criteria to
determine whether deficiencies from a facility's survey warrant
action against an administrator. The criteria shall include a
determination of whether the survey indicates substandard quality
of care and whether a deficiency is related to an act or failure
to act by the administrator. If a deficiency on which a
disciplinary action against an administrator is initiated or
completed is not substantiated, the disciplinary action shall be
reversed.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.319. Written Reprimand and Continuing Education as Sanctions.
Text of section effective upon federal determination of failure
to comply with federal regulations
In addition to the other disciplinary actions authorized under
this subchapter, the board may issue a written reprimand to a
license holder who violates this subchapter or require that a
license holder who violates this subchapter participate in
continuing education programs. The board shall specify the
continuing education programs that may be attended and the number
of hours that must be completed by a license holder to fulfill
the requirements of this section.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.320. Administrative Penalty as Sanction.
Text of section effective upon federal determination of failure
to comply with federal regulations
(a) The department may impose an administrative penalty against
a person licensed or regulated under this subchapter who violates
this subchapter or a rule adopted by the board under this
subchapter.
(b) The penalty for a violation may be in an amount not to
exceed $1,000. Each day a violation occurs or continues is a
separate violation for purposes of imposing a penalty.
(c) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including the nature,
circumstances, extent, and gravity of any prohibited acts, and
the hazard or potential hazard created to the health, safety,
or economic welfare of the public;
(2) the economic harm to property or the environment caused
by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter future violations;
(5) efforts to correct the violations; and
(6) any other matter that justice may require.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.321. Notice and Hearing.
Text of section effective upon federal determination of failure
to comply with federal regulations
(a) If the department determines that a violation has occurred,
the department shall give written notice of the determination to
the person alleged to have committed the violation. The notice
may be given by certified mail. The notice must include a brief
summary of the alleged violation and a statement of the amount of
the recommended penalty and must inform the person that the
person has a right to a hearing on the occurrence of the
violation, the amount of the penalty, or both the occurrence of
the violation and the amount of the penalty.
(b) Within 20 days after the date the person receives the
notice, the person in writing may accept the determination and
the penalty recommended by the department or may make a written
request for a hearing on the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation
and the amount of the penalty.
(c) If the person accepts the determination and the penalty
recommended by the department, the department shall impose the
recommended penalty.
(d) If the person requests a hearing or fails to respond timely
to the notice, the department shall set a hearing and give notice
of the hearing to the person. The hearing shall be held in
accordance with the department's rules on contested case
hearings.
(e) The notice of the hearing decision given to the person
under Chapter 2001, Government Code, must include a statement of
the right of the person to judicial review of the decision.
(f) Within 30 days after the date the department's decision is
final as provided by Section 2001.144, Government Code, the
person shall:
(1) pay the amount of the penalty;
(2) pay the amount of the penalty and file a petition for
judicial review contesting the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation
and the amount of the penalty; or
(3) without paying the amount of the penalty, file a
petition for judicial review contesting the occurrence of the
violation, the amount of the penalty, or both the occurrence of
the violation and the amount of the penalty.
(g) Within the 30-day period, a person who acts under
Subsection (f)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the amount of the penalty to the court for
placement in an escrow account; or
(B) giving to the court a supersedeas bond that is
approved by the court for the amount of the penalty and that
is effective until all judicial review of the department's
decision is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the
person stating that the person is financially unable to pay
the amount of the penalty and is financially unable to give
the supersedeas bond; and
(B) giving a copy of the affidavit to the department by
certified mail.
(h) If the department receives a copy of an affidavit under
Subsection (g)(2), the department may file with the court, within
five days after the date the copy is received, a contest to the
affidavit. The court shall hold a hearing on the facts alleged
in the affidavit as soon as practicable and shall stay the
enforcement of the penalty on finding that the alleged facts are
true. The person who files an affidavit has the burden of
proving that the person is financially unable to pay the amount
of the penalty and to give a supersedeas bond.
(i) If the person does not pay the amount of the penalty and
the enforcement of the penalty is not stayed, the department may
refer the matter to the attorney general for collection of the
amount of the penalty.
(j) Judicial review of the decision of the department:
(1) is instituted by filing a petition as provided by
Section 2001.176, Government Code; and
(2) is under the substantial evidence rule.
(k) If the court sustains the occurrence of the violation, the
court may uphold or reduce the amount of the penalty and order
the person to pay the full or reduced amount of the penalty. If
the court does not sustain the occurrence of the violation, the
court shall order that no penalty is owed.
(l) When the judgment of the court becomes final, the court
shall proceed under this subsection. If the person paid the
amount of the penalty and if that amount is reduced or is not
upheld by the court, the court shall order that the appropriate
amount plus accrued interest be remitted to the person. The rate
of the interest is the rate charged on loans to depository
institutions by the New York Federal Reserve Bank, and the
interest shall be paid for the period beginning on the date the
penalty was paid and ending on the date the penalty is remitted.
If the person gave a supersedeas bond and if the amount of the
penalty is not upheld by the court, the court shall order the
release of the bond. If the person gave a supersedeas bond and
if the amount of the penalty is reduced, the court shall order
the release of the bond after the person pays the amount.
(m) A penalty collected under this section shall be remitted to
the comptroller for deposit in the general revenue fund.
(n) All proceedings under this section are subject to Chapter
2001, Government Code.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.322. Informal Proceedings.
Text of section effective upon federal determination of failure
to comply with federal regulations
(a) The department by rule shall adopt procedures governing:
(1) informal disposition of a contested case under Section
2001.056, Government Code; and
(2) informal proceedings held in compliance with Section
2001.054, Government Code.
(b) Rules adopted under this section must provide the
complainant and the license holder an opportunity to be heard.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.323. Monitoring of License Holder.
Text of section effective upon federal determination of failure
to comply with federal regulations
The board by rule shall develop a system for monitoring a
license holder's compliance with the requirements of this
subchapter. Rules adopted under this section shall include
procedures for monitoring a license holder who is required by the
board to perform certain acts to ascertain that the license
holder performs the required acts and to identify and monitor
license holders who represent a risk to the public.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.324. Civil Penalty.
Text of section effective upon federal determination of failure
to comply with federal regulations
A person who violates this subchapter is liable to the state
for a civil penalty of $1,000 for each day of violation. At the
request of the department, the attorney general shall bring an
action to recover a civil penalty established by this section.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.325. Assistance of Attorney General.
Text of section effective upon federal determination of failure
to comply with federal regulations
The attorney general shall provide legal assistance as
necessary in enforcing the provisions of this subchapter. This
requirement does not relieve a local prosecuting officer of any
of the prosecuting officer's duties under the law.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.326. Offense.
Text of section effective upon federal determination of failure
to comply with federal regulations
(a) A person commits an offense if the person knowingly or
intentionally violates Section 242.310.
(b) An offense under this section is a Class B misdemeanor.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
Sec. 242.327. Protection for Refusal to Engage in Certain Conduct.
Text of section effective upon federal determination of failure
to comply with federal regulations
(a) A person may not suspend, terminate, or otherwise
discipline or discriminate against a licensed nursing facility
administrator who refuses to engage in an act or omission
relating to the administrator's job duties or responsibilities
that would constitute a violation of this subchapter or of a rule
adopted under this subchapter, if the administrator notifies the
person at the time of the refusal that the reason for refusing is
that the act or omission constitutes a violation of this
subchapter or of a rule adopted under this subchapter.
(b) An act by a person under Subsection (a) does not constitute
a violation of this section if:
(1) the act or omission the administrator refused to commit
was not conduct that constitutes a violation of this subchapter
or of a rule adopted under this subchapter; or
(2) the act or omission the administrator refused to commit
was conduct that constitutes a violation of this subchapter or
of a rule adopted under this subchapter, and the person
rescinds any disciplinary or discriminatory action taken
against the administrator, compensates the administrator for
lost wages, and restores any lost benefits to the
administrator.
(c) A violation of this section is an unlawful employment
practice, and a civil action may be brought by a licensed nursing
facility administrator against a person for the violation. The
relief available in a civil action shall be the same as the
relief available to complainants in a civil action for violations
of Chapter 21, Labor Code. In no event may any action be brought
pursuant to this section more than two years after the date of
the administrator's refusal to engage in an act or omission that
would constitute a violation of this subchapter or of a rule
adopted under this subchapter.
(d) In this section, "person" includes an individual,
organization, corporation, agency, facility, or other entity.
Added by Acts 1997, 75th Leg., ch. 1280, Sec. 2.01.
SUBCHAPTER K. QUALITY OF CARE
Sec. 242.401. Quality of Life.
(a) An institution shall care for its residents in a manner and
in an environment that promotes maintenance or enhancement of
each resident's quality of life and dignity. An institution that
admits a resident who is younger than 18 years of age must
provide care to meet the resident's unique medical and
developmental needs.
(b) A resident of an institution has the right to reside and
receive services in the institution with reasonable accommodation
of individual needs, except to the extent the health or safety of
the resident or other residents would be endangered.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
Sec. 242.402. Quality of Care.
An institution shall provide to each resident the necessary
care or service needed to enable the resident to attain and
maintain the highest practicable level of physical, emotional,
and social well-being, in accordance with:
(1) each resident's individual assessment and comprehensive
plan of care; and
(2) the rules and standards relating to quality of care
adopted under this chapter.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
Sec. 242.403. Standards for Quality of Life and Quality of Care.
(a) The department shall adopt standards to implement Sections
242.401 and 242.402. Those standards must, at a minimum,
address:
(1) admission of residents;
(2) care of residents younger than 18 years of age;
(3) an initial assessment and comprehensive plan of care for
residents;
(4) transfer or discharge of residents;
(5) clinical records;
(6) infection control at the institution;
(7) rehabilitative services;
(8) food services;
(9) nutrition services provided by a director of food
services who is licensed by the Texas State Board of Examiners
of Dietitians or, if not so licensed, who is in scheduled
consultation with a person who is so licensed as frequently and
for such time as the department shall determine necessary to
assure each resident a diet that meets the daily nutritional
and special dietary needs of each resident;
(10) social services and activities;
(11) prevention of pressure sores;
(12) bladder and bowel retraining programs for residents;
(13) prevention of complications from nasogastric or
gastrotomy tube feedings;
(14) relocation of residents within an institution;
(15) postmortem procedures; and
(16) appropriate use of chemical and physical restraints.
(b) The department may adopt standards in addition to those
required by Subsection (a) to implement Sections 242.401 and
242.402.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
Sec. 242.404. Policies, Procedures, and Practices for Quality of Care and
Quality of Life.
(a) Each institution shall comply with the standards adopted
under this subchapter and shall develop written operating
policies to implement those standards.
(b) The policies and procedures must be available to each
physician, staff member, resident, and resident's next of kin or
guardian and to the public.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
SUBCHAPTER L. RIGHTS OF RESIDENTS
Sec. 242.501. Resident's Rights.
(a) The department by rule shall adopt a statement of the rights
of a resident. The statement must be consistent with Chapter
102, Human Resources Code, but shall reflect the unique
circumstances of a resident at an institution. At a minimum, the
statement of the rights of a resident must address the resident's
constitutional, civil, and legal rights and the resident's right:
(1) to be free from abuse and exploitation;
(2) to safe, decent, and clean conditions;
(3) to be treated with courtesy, consideration, and respect;
(4) to not be subjected to discrimination based on age, race,
religion, sex, nationality, or disability and to practice the
resident's own religious beliefs;
(5) to privacy, including privacy during visits and telephone
calls;
(6) to complain about the institution and to organize or
participate in any program that presents residents' concerns to
the administrator of the institution;
(7) to have information about the resident in the possession of
the institution maintained as confidential;
(8) to retain the services of a physician the resident chooses,
at the resident's own expense or through a health care plan, and
to have a physician explain to the resident, in language that the
resident understands, the resident's complete medical condition,
the recommended treatment, and the expected results of the
treatment;
(9) to participate in developing a plan of care, to refuse
treatment, and to refuse to participate in experimental research;
(10) to a written statement or admission agreement describing the
services provided by the institution and the related charges;
(11) to manage the resident's own finances or to delegate that
responsibility to another person;
(12) to access money and property that the resident has deposited
with the institution and to an accounting of the resident's money
and property that are deposited with the institution and of all
financial transactions made with or on behalf of the resident;
(13) to keep and use personal property, secure from theft or
loss;
(14) to not be relocated within the institution, except in
accordance with standards adopted by the department under Section
242.403;
(15) to receive visitors;
(16) to receive unopened mail and to receive assistance in
reading or writing correspondence;
(17) to participate in activities inside and outside the
institution;
(18) to wear the resident's own clothes;
(19) to discharge himself or herself from the institution unless
the resident is an adjudicated mental incompetent;
(20) to not be discharged from the institution except as provided
in the standards adopted by the department under Section 242.403;
and
(21) to be free from any physical or chemical restraints imposed
for the purposes of discipline or convenience, and not required
to treat the resident's medical symptoms.
(b) A right of a resident may be restricted only to the extent
necessary to protect:
(1) a right of another resident, particularly a right of the
other resident relating to privacy and confidentiality; or
(2) the resident or another person from danger or harm.
(c) The department may adopt rights of residents in addition to
those required by Subsection (a) and may consider additional
rights applicable to residents in other jurisdictions.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
Sec. 242.502. Rights Cumulative.
The rights established under this subchapter are cumulative of
the rights established under any other law.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
Sec. 242.503. Duties of Institution.
(a) An institution shall develop and implement policies to
protect resident rights.
(b) An institution and the staff of an institution may not
violate a right adopted under this subchapter.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
Sec. 242.504. Information About Resident's Rights and Violations.
(a) An institution shall inform each resident and the
resident's next of kin or guardian of the rights adopted under
this subchapter and shall explain the rights to the resident and
the resident's next of kin or guardian. The institution shall
provide a written statement of:
(1) all of the resident's rights; and
(2) any additional rules adopted by the institution
involving resident rights and responsibilities.
(b) The institution shall provide a copy of the written
statement to:
(1) each resident;
(2) the next of kin or guardian of each resident; and
(3) each member of the staff of the institution.
(c) The institution shall maintain a copy of the statement,
signed by the resident or the resident's next of kin or guardian,
in the institution's records.
(d) The institution shall post the written statement in the
manner required by Section 242.042.
(e) An institution that has been cited by the department for a
violation of any right adopted under this subchapter shall
include a notice of the citation in the informational materials
required by Section 242.042(a)(8). The notice of citation must
continue to be included in the informational materials until any
regulatory action or proceeding with respect to the violation is
complete and the department has determined that the institution
is in full compliance with the applicable requirement.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
SUBCHAPTER M. COMPLAINT INSPECTIONS
Sec. 242.551. Complaint Requesting Inspection.
(a) A person may request an inspection of an institution in
accordance with this chapter by making a complaint notifying the
department of an alleged violation of law and requesting an
inspection.
(b) The department shall encourage a person who makes an oral
complaint under Subsection (a) to submit a written, signed
complaint.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
Sec. 242.552. Disclosure of Substance of Complaint.
The department may not provide information to the institution
relating to the substance of a complaint made under this
subchapter before an on-site inspection is begun in accordance
with this subchapter.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
Sec. 242.553. Confidentiality.
The name of the person making the complaint is confidential and
may not be released to the institution or any other person,
unless the person making the complaint specifically requests that
the person's name be released.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
Sec. 242.554. Preliminary Review of Complaint; Inspection.
(a) On receipt of a complaint under this subchapter, the
department shall make a preliminary review of the complaint.
(b) Within a reasonable time after receipt of the complaint,
the department shall make an on-site inspection or otherwise
respond to the complaint unless the department determines that:
(1) the person making the complaint made the complaint to
harass the institution;
(2) the complaint is without any reasonable basis; or
(3) sufficient information in the possession of the
department indicates that corrective action has been taken.
(c) The department shall promptly notify the person making the
complaint of the department's proposed course of action under
Subsection (b) and the reasons for that action.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
SUBCHAPTER N. ADMINISTRATION OF MEDICATION
Sec. 242.601. Medication Administration.
(a) An institution must establish medication administration
procedures to ensure that:
(1) medications to be administered are checked against the order
of a physician, advanced practice nurse, or physician assistant
pursuant to protocols jointly developed with a physician;
(2) the resident is identified before the administration of a
medication;
(3) each resident's clinical record includes an individual
medication record in which the dose of medication administered is
properly recorded by the person who administered the medication;
(4) medications and biologicals are prepared and administered to
a resident by the same individual, except under unit-of-use
package distribution systems; and
(5) a medication prescribed for one resident is not administered
to any other person.
(b) The medication administration procedures must comply with
this subchapter and the rules adopted by the board under Section
242.608.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
Sec. 242.602. Pharmacist Services.
(a) An institution shall:
(1) employ a licensed pharmacist responsible for operating
the institution's pharmacy; or
(2) contract, in writing, with a licensed pharmacist to
advise the institution on ordering, storage, administration,
and disposal of medications and biologicals and related
recordkeeping.
(b) The institution shall allow residents to choose their
pharmacy provider from any pharmacy that is qualified to perform
the services.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
Sec. 242.603. Storage and Disposal of Medications.
(a) An institution shall store medications under appropriate
conditions of sanitation, temperature, light, moisture,
ventilation, segregation, and security. Poisons, medications
used externally, and medications taken internally shall be stored
on separate shelves or in separate cabinets. Medication stored
in a refrigerator containing other items shall be kept in a
separate compartment with appropriate security. The institution
shall store a medication in a locked area that must remain locked
unless an individual authorized to distribute the medication is
present.
(b) The institution shall properly dispose of:
(1) any medication that is discontinued or outdated, except
as provided by Subsection (c); and
(2) any medication in a container with a worn or illegible
label or missing a label.
(c) A discontinued medication that has not been destroyed must
be reinstated if reordered.
(d) An institution shall release the medications of a resident
who is transferred directly to another institution or who is
discharged to home to the new institution or to the resident or
resident's next of kin or guardian, as appropriate. The
institution may release a medication to a resident only on the
written or verbal authorization of the attending physician.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
Sec. 242.604. Reports of Medication Errors and Adverse Reactions.
An institution's nursing staff must report medication errors
and adverse reactions to the resident's physician in a timely
manner, as warranted by an assessment of the resident's
condition, and record the errors and reactions in the resident's
clinical record.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
Sec. 242.605. Medication Reference Sources.
An institution shall maintain updated medication reference
texts or sources. If the institution has a resident younger than
18 years of age, these texts or sources must include information
on pediatric medications, dosages, sites, routes, techniques of
administration of medications, desired effects, and possible side
effects.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept. 1,
1997.
Sec. 242.606. Permits to Administer Medication.
A person may not administer medication to a resident unless the
person:
(1) holds a license under state law that authorizes the
person to administer medication; or
(2) holds a permit issued under Section 242.610 and acts
under the authority of a person who holds a license under state
law that authorizes the person to administer medication.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Redesignated from V.T.C.A, Health and Safety Code Sec. 242.151
and amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff.
Sept. 1, 1997.
Sec. 242.607. Exemptions for Nursing Students and Medication Aide
Trainees.
(a) Sections 242.606 and 242.614 do not apply to:
(1) a graduate nurse holding a temporary permit issued by
the Board of Nurse Examiners;
(2) a student enrolled in an accredited school of nursing or
program for the education of registered nurses who is
administering medications as part of the student's clinical
experience;
(3) a graduate vocational nurse holding a temporary permit
issued by the Board of Vocational Nurse Examiners;
(4) a student enrolled in an accredited school of vocational
nursing or program for the education of vocational nurses who
is administering medications as part of the student's clinical
experience; or
(5) a trainee in a medication aide training program approved
by the department under this subchapter who is administering
medications as part of the trainee's clinical experience.
(b) The administration of medications by persons exempted under
Subdivisions (1) through (4) of Subsection (a) is governed by the
terms of the memorandum of understanding executed by the
department and the Board of Nurse Examiners or the department and
the Board of Vocational Nurse Examiners, as appropriate.
Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, Sec. 1, eff.
June 19, 1990. Redesignated from V.T.C.A., Health and Safety
Code Sec. 242.1511 and amended by Acts 1997, 75th Leg., ch. 1159,
Sec. 1.30, eff. Sept. 1, 1997.
Sec. 242.608. Rules for Administration of Medication.
The board by rule shall establish:
(1) minimum requirements for the issuance, denial, renewal,
suspension, emergency suspension, and revocation of a permit to
administer medication to a resident;
(2) curricula to train persons to administer medication to a
resident;
(3) minimum standards for the approval of programs to train
persons to administer medication to a resident and for
rescinding approval; and
(4) the acts and practices that are allowed or prohibited to
a permit holder.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Redesignated from V.T.C.A, Health and Safety Code Sec. 242.152
and amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff.
Sept. 1, 1997.
Sec. 242.609. Training Programs to Administer Medication.
(a) An application for the approval of a training program must
be made to the department on a form and under rules prescribed by
the board.
(b) The department shall approve a training program that meets
the minimum standards adopted under Section 242.608. The
department may review the approval annually.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Redesignated from V.T.C.A, Health and Safety Code Sec. 242.153
and amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff.
Sept. 1, 1997.
Sec. 242.610. Issuance and Renewal of Permit to Administer Medication.
(a) To be issued or to have renewed a permit to administer
medication, a person shall apply to the department on a form
prescribed and under rules adopted by the board.
(b) The department shall prepare and conduct, at the site of
the training program, an examination for the issuance of a
permit.
(c) The department shall require a permit holder to
satisfactorily complete a continuing education course approved by
the department for renewal of the permit.
(d) The department shall issue a permit or renew a permit to an
applicant who:
(1) meets the minimum requirements adopted under Section
242.608 ;
(2) successfully completes the examination or the continuing
education requirements; and
(3) pays a nonrefundable application fee determined by the
board.
(e) A permit is valid for one year and is not transferable.
(f) The department may issue a permit to an employee of a state
or federal agency listed in Section 242.003(a)(6)(B).
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 93, eff. Sept. 1,
1991. Redesignated from V.T.C.A, Health and Safety Code Sec.
242.154 and amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30,
eff. Sept. 1, 1997.
Sec. 242.611. Fees for Issuance and Renewal of Permit to Administer
Medication.
The board shall set the fees in amounts reasonable and
necessary to recover the amount projected by the department as
required to administer its functions. The fees may not exceed:
(1) $25 for a combined permit application and examination
fee; and
(2) $15 for a renewal permit application fee.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Redesignated from V.T.C.A, Health and Safety Code Sec. 242.155
and amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff.
Sept. 1, 1997.
Sec. 242.612. Violation of Permits to Administer Medication.
(a) For the violation of this subchapter or a rule adopted
under this subchapter, the department may:
(1) suspend, revoke, or refuse to renew a permit;
(2) suspend a permit in an emergency; or
(3) rescind training program approval.
(b) Except as provided by Section 242.613, the procedure by
which the department takes a disciplinary action and the
procedure by which a disciplinary action is appealed are governed
by the department's rules for a formal hearing and by Chapter
2001, Government Code.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49), eff.
Sept. 1, 1995. Redesignated from V.T.C.A, Health and Safety Code
Sec. 242.156 and amended by Acts 1997, 75th Leg., ch. 1159, Sec.
1.30, eff. Sept. 1, 1997.
Sec. 242.613. Emergency Suspension of Permits to Administer Medication.
(a) The department shall issue an order to suspend a permit
issued under this subchapter if the department has reasonable
cause to believe that the conduct of the permit holder creates an
imminent danger to the public health or safety.
(b) An emergency suspension is effective immediately without a
hearing on notice to the permit holder.
(c) If requested in writing by a permit holder whose permit is
suspended, the department shall conduct a hearing to continue,
modify, or rescind the emergency suspension.
(d) The hearing must be held not earlier than the 10th day or
later than the 30th day after the date on which the hearing
request is received.
(e) The hearing and an appeal from a disciplinary action
related to the hearing are governed by the department's rules for
a formal hearing and Chapter 2001, Government Code.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49), eff.
Sept. 1, 1995. Redesignated from V.T.C.A, Health and Safety Code
Sec. 242.157 and amended by Acts 1997, 75th Leg., ch. 1159, Sec.
1.30, eff. Sept. 1, 1997.
Sec. 242.614. Administration of Medication; Criminal Penalty.
(a) A person commits an offense if the person knowingly
administers medication to a resident and the person:
(1) does not hold a license under state law that authorizes
the person to administer medication; or
(2) does not hold a permit issued by the department under
this subchapter.
(b) An offense under this section is a Class B misdemeanor.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Renumbered from V.T.C.A, Health and Safety Code Sec. 242.158 and
amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30, eff. Sept.
1, 1997.
Sec. 242.615. Emergency Medication Kit.
(a) An institution licensed under this chapter is entitled to
maintain a supply of controlled substances in an emergency
medication kit for a resident's emergency medication needs.
(b) The controlled substances shall be labeled in accordance
with all applicable state and federal food and drug laws,
including Chapter 481 (Texas Controlled Substances Act).
(c) The board shall adopt rules governing the amount, type, and
procedure for use of the controlled substances in the emergency
medication kit. The storage of the controlled substances in the
kit is under the supervision of the consultant pharmacist.
(d) The administration of the controlled substances in the
emergency medication kit shall comply with all applicable laws.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 8.091, eff. Sept.
1, 1995. Redesignated from V.T.C.A, Health and Safety Code Sec.
242.615 and amended by Acts 1997, 75th Leg., ch. 1159, Sec. 1.30,
eff. Sept. 1, 1997.
SUBCHAPTER O. LEGISLATIVE OVERSIGHT
Sec. 242.651. Definition.
In this subchapter, "committee" means the long-term care
legislative oversight committee.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.31, eff. Sept. 1,
1997.
Sec. 242.652. Composition of Committee; Presiding Officer.
(a) The committee is composed of:
(1) two members of the senate and one public member
appointed by the lieutenant governor; and
(2) two members of the house of representatives and one
public member appointed by the speaker of the house of
representatives.
(b) A member of the committee serves at the pleasure of the
appointing official.
(c) The lieutenant governor and the speaker of the house of
representatives shall appoint the presiding officer of the
committee on an alternating basis. The presiding officer shall
serve a two-year term expiring February 1 of each odd-numbered
year.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.31, eff. Sept. 1,
1997.
Sec. 242.653. Committee Powers and Duties.
(a) The committee shall:
(1) meet at the call of the presiding officer;
(2) receive information about rules proposed or adopted by
the department; and
(3) review specific recommendations for legislation proposed
by the department or the attorney general relating to nursing
facility rules and regulations and other long-term care issues.
(b) The committee may issue process, in accordance with Section
301.024, Government Code, to compel the attendance of witnesses
and the production of books, records, documents, and instruments
required by the committee.
(c) The committee shall monitor the effectiveness and
efficiency of the nursing facility regulatory system of this
state.
(d) The committee may request reports and other information
from the department and the attorney general relating to the
nursing facility regulatory system of this state and other
long-term care issues.
(e) The committee shall use the existing staff resources of the
senate and the house of representatives to assist the committee
in performing its duties under this section.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.31, eff. Sept. 1,
1997.
Sec. 242.654. Report.
(a) The committee shall report to the governor, lieutenant
governor, and speaker of the house of representatives not later
than November 15 of each even-numbered year.
(b) The report must include:
(1) identification of significant problems in the nursing
facility regulatory system, with recommendations for action;
(2) the effectiveness and efficiency of the nursing facility
regulatory system of this state, with recommendations for any
necessary research;
(3) an analysis of the continuum of care of long-term
services available to citizens of this state; and
(4) recommendations for legislative action.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.31, eff. Sept. 1,
1997.
Sec. 242.655. Rights of Employees; Retaliation Prohibited.
(a) An employee of the department may cooperate with the
committee in the performance of its functions.
(b) The department may not suspend or terminate the employment
of, or take another adverse personnel action against, an employee
of the department solely because the employee cooperates with the
committee in good faith.
(c) In this section, "personnel action" has the meaning
assigned by Section 554.001, Government Code.
Added by Acts 1997, 75th Leg., ch. 1159, Sec. 1.31, eff. Sept. 1,
1997.
SUBCHAPTER O. PLACEMENT OF CERTAIN CHILDREN IN INSTITUTION
Sec. 242.801. Definitions.
In this subchapter:
(1) "Child" means a person younger than 22 years of age.
(2) "Community resource coordination group" means a coordination
group established under the memorandum of understanding adopted
under Section 264.003, Family Code.
(3) "Institution" means:
(A) an establishment that:
(i) furnishes, in one or more facilities, food and shelter to
four or more persons who are unrelated to the proprietor of the
establishment; and
(ii) provides minor treatment under the direction and supervision
of a physician licensed by the Texas State Board of Medical
Examiners, or other services that meet some need beyond the basic
provision of food, shelter, and laundry; or
(B) a foster care type residential facility that provides room
and board to fewer than five persons who:
(i) are not related within the second degree of consanguinity or
affinity, as determined under Chapter 573, Government Code, to
the proprietor; and
(ii) because of their physical or mental limitation, or both,
require a level of care and services suitable to their needs that
contributes to their health, comfort, and welfare.
(4) "Permanency planning" means a philosophy and planning process
that focuses on the outcome of family support by facilitating a
permanent living arrangement in which the primary feature is an
enduring and nurturing parental relationship.
Added by Acts 1997, 75th Leg., ch. 913, Sec. 1, eff. Sept. 1,
1997.
Sec. 242.802. Notification Required.
(a) Not later than the third day after the date a child with a
developmental disability is initially placed in an institution,
the state agency requesting the placement shall notify the
community resource coordination group in the county of residence
of a parent or guardian of the child.
(b) If the person or organization requesting placement is not a
state agency or a representative of a state agency, the
institution shall notify the department and the department shall
notify the community resource coordination group described by
Subsection (a).
(c) Not later than the third day after the date a child with a
developmental disability is initially placed in an institution,
the institution shall notify:
(1) the community resource coordination group for the
community in which the institution is located, if any;
(2) if the child is at least three years of age, the school
district for the area in which the institution is located; and
(3) if the child is less than three years of age, the local
early intervention program for the area in which the
institution is located.
Added by Acts 1997, 75th Leg., ch. 913, Sec. 1, eff. Sept. 1,
1997.
Sec. 242.803. Offer of Services.
Each entity receiving notice of the initial placement of a
child in an institution under Section 242.802 may contact the
person making the placement to ensure that family members of the
child are aware of:
(1) services and support that could provide alternatives to
placement of the child in the institution;
(2) available placement options; and
(3) opportunities for permanency planning.
Added by Acts 1997, 75th Leg., ch. 913, Sec. 1, eff. Sept. 1,
1997.
Sec. 242.804. Effect on Other Law.
This subchapter does not affect responsibilities imposed by
federal or other state law on a physician or other professional.
Added by Acts 1997, 75th Leg., ch. 913, Sec. 1, eff. Sept. 1,
1997