Health and Safety Code
CHAPTER 252. INTERMEDIATE CARE FACILITIES FOR THE MENTALLY
RETARDED
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 252.001. Purpose.
The purpose of this chapter is to promote the public health,
safety, and welfare by providing for the development,
establishment, and enforcement of standards for the provision of
services to individuals residing in intermediate care facilities
for the mentally retarded and the establishment, construction,
maintenance, and operation of facilities providing this service
that, in light of advancing knowledge, will promote quality in
the delivery of services and treatment of residents.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.002. Definitions.
In this chapter:
(1) "Board" means the Texas Board of Human Services.
(2) "Department" means the Texas Department of Human
Services.
(3) "Designee" means a state agency or entity with which the
department contracts to perform specific, identified duties
related to the fulfillment of a responsibility prescribed by
this chapter.
(4) "Facility" means a home or an establishment that:
(A) furnishes food, shelter, and treatment or services
to four or more persons unrelated to the owner;
(B) is primarily for the diagnosis, treatment, or
rehabilitation of persons with mental retardation or related
conditions; and
(C) provides in a protected setting continuous
evaluation, planning, 24-hour supervision, coordination, and
integration of health or rehabilitative services to help
each resident function at the resident's greatest ability.
(5) "Governmental unit" means the state or a political
subdivision of the state, including a county or municipality.
(6) "Person" means an individual, firm, partnership,
corporation, association, or joint stock company and includes a
legal successor of those entities.
(7) "Resident" means an individual, including a client, with
mental retardation or a related condition who is residing in a
facility licensed under this chapter.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.003. Exemptions.
Except as otherwise provided by this chapter, this chapter does
not apply to an establishment that:
(1) provides training, habilitation, rehabilitation, or
education to individuals with mental retardation or a related
condition;
(2) is operated under the jurisdiction of a state or federal
agency, including the department, the Texas Rehabilitation
Commission, the Texas Department of Mental Health and Mental
Retardation, the Texas Commission for the Blind, the Texas
Commission on Alcohol and Drug Abuse, the institutional
division of the Texas Department of Criminal Justice, or the
Veterans' Administration;
(3) is certified through inspection or evaluation as meeting
the standards established by the state or federal agency; and
(4) is 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.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.004. Allocated Federal Money.
The department may accept and use any money allocated by the
federal government to the department for administrative expenses.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.005. Language Requirements Prohibited.
A facility 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
care, training, or treatment.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.006. Rights of Residents.
Each facility shall implement and enforce Chapter 102, Human
Resources Code.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.007. Paperwork Reduction Rules.
(a) The department and any designee of the department shall:
(1) adopt rules to reduce the amount of paperwork a facility
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, any designee of the department, and each
facility shall work together to review rules and propose changes
in paperwork requirements so that additional time is available
for direct resident care.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.008. Rules Generally.
The department shall adopt rules related to the administration
and implementation of this chapter.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.009. Consultation and Coordination.
(a) Whenever possible, the department shall:
(1) use the services of and consult with state and local
agencies in carrying out the department's functions under this
chapter; and
(2) use the facilities of the department or a designee of
the department, particularly in establishing and maintaining
standards relating to the humane treatment of residents.
(b) The department may cooperate with local public health
officials of a municipality or county in carrying out this
chapter and may delegate to those officials the power to make
inspections and recommendations to the department under this
chapter.
(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.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.010. Change of Administrators; Fee.
A facility that hires a new administrator or other person
designated as the chief management officer for the facility
shall:
(1) notify the department in writing of the change 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.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.011. Prohibition of Remuneration.
(a) A facility may not receive monetary or other remuneration
from a person or agency that furnishes services or materials to
the facility or residents for a fee.
(b) The department may revoke the license of a facility that
violates Subsection (a).
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
SUBCHAPTER B. LICENSING, FEES, AND INSPECTIONS
Sec. 252.031. License Required.
A person or governmental unit, acting severally or jointly with
any other person or governmental unit, may not establish,
conduct, or maintain a facility in this state without a license
issued under this chapter.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.032. License Application.
(a) An application for a license is made to the department on a
form provided by the department and must be accompanied by the
license fee adopted under Section 252.034.
(b) The application must contain information that the
department requires. The department may require affirmative
evidence of ability to comply with the standards and rules
adopted under this chapter.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.033. Issuance and Renewal of License.
(a) After receiving the application, the department shall issue
a license if, after inspection and investigation, it finds that
the applicant and facility meet the requirements established
under this chapter.
(b) The 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 on the second anniversary of
issuance or renewal of the license after:
(1) an inspection;
(2) filing and approval of a renewal report; and
(3) payment of the renewal fee.
(e) The renewal report required under Subsection (d)(2) must be
filed in accordance with rules adopted by the department that
specify the form of the report, the date it must be submitted,
and the information it must contain.
(f) The department may not issue a license for new beds or an
expansion of an existing facility under this chapter unless the
addition of new beds or the expansion is included in the plan
approved by the Health and Human Services Commission in
accordance with Section 533.062.
(g) A license or renewal fee imposed under this chapter is an
allowable cost for reimbursement under the state Medicaid
program. An increase in the amount of a fee shall be reflected
in reimbursement rates prospectively.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.034. License Fees.
(a) The board by rule may adopt a fee for a license issued
under this chapter. The fee may not exceed $150 plus $5 for each
unit of capacity or bed space for which the license is sought.
(b) The license fee must be paid with each application for an
initial license or for a renewal or change of ownership of a
license.
(c) A facility operated by the state is not required to pay a
license fee.
(d) The board may adopt an additional fee for the approval of
an increase in bed space.
(e) All license fees collected under this section shall be
deposited in the state treasury to the credit of the department
and may be appropriated to the department to administer and
enforce this chapter.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.035. 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 or
license holder has substantially failed to comply with the
requirements established under this chapter.
(b) The status of 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.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.036. Minimum Standards.
The board may adopt, publish, and enforce minimum standards
relating to:
(1) the construction or remodeling of a facility, including
plumbing, heating, lighting, ventilation, and other housing
conditions, to ensure the residents' health, safety, comfort,
and protection from fire hazard;
(2) sanitary and related conditions in a facility and its
surroundings, including water supply, sewage disposal, food
handling, and general hygiene in order to ensure the residents'
health, safety, and comfort;
(3) equipment essential to the residents' health and
welfare;
(4) the reporting and investigation of injuries, incidents,
and unusual accidents and the establishment of other policies
and procedures necessary to ensure resident safety;
(5) behavior management, including use of seclusion and
physical restraints;
(6) policies and procedures for the control of communicable
diseases in employees and residents;
(7) the use and administration of medication in conformity
with applicable law and rules for pharmacy services;
(8) specialized nutrition support such as delivery of
enteral feedings and parenteral nutrients;
(9) requirements for in-service education of each employee
who has any contact with residents;
(10) the regulation of the number and qualification of all
personnel, including management and professional support
personnel, responsible for any part of the care given to
residents; and
(11) the quality of life and the provision of active
treatment to residents.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.037. Reasonable Time to Comply.
The board by rule shall give a facility that is in operation
when a rule or standard is adopted under this chapter a
reasonable time to comply with the rule or standard.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.038. Fire Safety Requirements.
(a) A facility shall comply with fire safety requirements
established under this section.
(b) The board by rule shall adopt the fire safety standards
applicable to the facility. The fire safety standards must be
the same as the fire safety standards established by an edition
of the Life Safety Code of the National Fire Protection
Association. If required by federal law or regulation, the
edition selected may be different for facilities or portions of
facilities operated or approved for construction at different
times.
(c) A facility that is licensed under applicable law on
September 1, 1997, must comply with the fire safety standards,
including fire safety standards imposed by municipal ordinance,
applicable to the facility on that date.
(d) The rules adopted under this section do not prevent a
facility 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.
(e) Notwithstanding any other provision of this section, a
municipality may enact additional and more stringent fire safety
standards applicable to new construction begun on or after
September 1, 1997.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.039. Posting.
Each facility shall prominently and conspicuously post for
display in a public area of the facility 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 inspection and related reports are available at the
facility for public inspection and providing the department's
toll-free telephone number that may be used to obtain
information concerning the facility; and
(4) a concise summary of the most recent inspection report
relating to the facility.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.040. Inspections.
(a) The department or the department's designee may make any
inspection, survey, or investigation that it considers necessary
and may enter the premises of a facility 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 a facility 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
facility by a representative of the department in accordance with
this chapter.
(d) The department shall establish procedures to preserve all
relevant evidence of conditions the department finds during an
inspection, survey, or investigation that the department
reasonably believes threaten the health and safety of a resident.
The procedures may include photography or photocopying of
relevant documents, such as license holder's notes, 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) A facility, an officer or employee of a facility, 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.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.041. Unannounced Inspections.
(a) Each licensing period, the department shall conduct at
least two unannounced inspections of each facility.
(b) In order to ensure continuous compliance, the department
shall randomly select a sufficient percentage of facilities for
unannounced inspections to be conducted between 5 p.m. and 8 a.m.
Those inspections must be cursory to avoid to the greatest extent
feasible any disruption of the residents.
(c) The department may require additional inspections.
(d) As considered appropriate and necessary by the department,
the department may invite at least one person as a citizen
advocate to participate in inspections. The invited advocate
must be an individual who has an interest in or who is employed
by or affiliated with an organization or entity that represents,
advocates for, or serves individuals with mental retardation or a
related condition.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.042. 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 a facility
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 representative of an agency or organization when a
Medicaid survey is made concurrently with a licensing
inspection; or
(4) 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 Class B misdemeanor.
(d) A person convicted under this section is not eligible for
state employment.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.043. Licensing Surveys.
The department shall provide a team to conduct surveys to
validate findings of licensing surveys. The purpose of a
validation survey 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 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
SUBCHAPTER C. GENERAL ENFORCEMENT
Sec. 252.061. Emergency Suspension or Closing Order.
(a) The department shall suspend a facility's license or order an
immediate closing of part of the facility if:
(1) the department finds the facility 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 facility's suspension or closing to ensure
their health and safety.
(c) An order suspending a license or closing a part of a facility
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 a facility is valid for 10 days after the
effective date of the order.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.062. Injunction.
(a) The department may petition a district court for a
temporary restraining order to restrain a person from continuing
a violation of the standards prescribed by this chapter if the
department finds that the violation creates an immediate threat
to the health and safety of the facility's residents.
(b) A district court, on petition of the department, may by
injunction:
(1) prohibit a person from continuing a violation of the
standards or licensing requirements prescribed by this chapter;
(2) restrain or prevent the establishment, conduct,
management, or operation of a facility 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 the standards
or licensing requirements prescribed by this chapter.
(c) The attorney general, on request by the department, shall
bring and conduct on behalf of the state a suit authorized by
this section.
(d) A suit for a temporary restraining order or other
injunctive relief must be brought in the county in which the
alleged violation occurs.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.063. License Requirements; Criminal Penalty.
(a) A person commits an offense if the person violates Section
252.031.
(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.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.064. Civil Penalty.
(a) A person who violates this chapter or a rule adopted under
this chapter is liable for a civil penalty of not less than $100
or more than $10,000 for each violation if the department
determines the violation threatens the health and safety of a
resident.
(b) Each day of a continuing violation constitutes a separate
ground for recovery.
(c) The attorney general, on request of the department, shall
bring and conduct a suit to collect a civil penalty. Any amount
collected shall be remitted to the comptroller for deposit to the
credit of the general revenue fund.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.065. Administrative Penalty.
(a) The department may assess an administrative penalty against
a facility that violates this chapter or a rule adopted under
this chapter as specified by this section.
(b) The department by rule shall establish gradations and
amounts of penalties.
(c) In determining the amount of a penalty, the department
shall consider:
(1) the gradations of penalties established under Subsection
(b);
(2) the seriousness of the violation, including the nature,
circumstances, extent, and gravity of the violation;
(3) the hazard or potential hazard created by the violation
to the public health and safety;
(4) any previous violations;
(5) the amount necessary to deter future violations;
(6) efforts made to correct the violation;
(7) the size of the facility; and
(8) any other matter justice may require.
(d) The penalty may not exceed $5,000 for each violation. Each
day of a continuing violation constitutes a separate violation.
(e) The department may not assess a penalty under both this
subchapter and Section 32.021, Human Resources Code, for a
violation arising out of the same act or failure to act.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.066. Rules Regarding Administrative Penalty.
(a) The board shall adopt rules governing the assessment of
administrative penalties under this chapter, including rules
providing procedures for:
(1) giving notice of a violation to a facility;
(2) payment and refund of a penalty; and
(3) hearings and appeals.
(b) Rules adopted under this section shall include specific and
objective criteria that describe the scope and severity of a
violation that results in a recommendation for each specific
penalty. A penalty must be appropriate to the violation.
(c) The rules must establish a system to ensure standard and
consistent application of penalties by local surveyors and across
different areas of the state.
(d) The department may prescribe a per diem penalty. The per
diem penalty ceases on the date a violation is corrected. The
per diem penalty ceases only if the facility notifies the
department in writing that the violation has been corrected and
of the date of the correction and shows later that the violation
was corrected.
(e) For purposes of this section, "immediate and serious
threat" means a situation in which there is a high probability
that serious harm or injury to residents could occur at any time
or has already occurred and may occur again if residents are not
protected effectively from the harm or if the threat is not
removed.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
SUBCHAPTER D. TRUSTEES FOR FACILITIES
Sec. 252.091. Findings and Purpose.
(a) The legislature finds that, under some circumstances, closing
a facility for a violation of a law or rule may:
(1) have an adverse effect on the facility's residents and their
families; and
(2) result in a lack of readily available financial resources 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
facility 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.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.092. Appointment by Agreement.
(a) A person who holds a controlling interest in a facility may
request the department to assume the operation of the facility
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 facility under conditions both parties consider
appropriate if the department considers the appointment
desirable.
(c) An agreement under this section must:
(1) specify the terms and conditions of the trustee's
appointment and authority; and
(2) preserve the rights of the residents as granted by law.
(d) The agreement terminates at the time:
(1) specified by the parties; or
(2) either party notifies the other in writing that the
party is terminating the appointment agreement.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.093. Involuntary Appointment.
(a) The department may request the attorney general to bring an
action on behalf of the state for the appointment of a trustee to
operate a facility if:
(1) the facility is operating without a license;
(2) the department has suspended or revoked the facility's
license;
(3) license suspension or revocation procedures against the
facility 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 facility is closing and arrangements for relocation
of the residents to other licensed facilities have not been
made before closure.
(b) A trustee appointed under Subsection (a)(5) may only ensure
an orderly and safe relocation of the facility's residents as
quickly as possible.
(c) After a hearing, a court shall appoint a trustee to take
charge of a facility 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 mental retardation service
administration.
(e) An action under this section must be brought in Travis
County.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.094. Fee; Release of Money.
(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 a governmental agency or other
entity during the appointment of the trustee, such as payments:
(1) for Medicaid or insurance;
(2) by a third party; or
(3) for medical expenses borne by the residents.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.095. Emergency Assistance Fee.
(a) In addition to the licensing and renewal fee collected
under Section 252.034, the department may collect an annual fee
to be used to make emergency assistance money available to a
facility licensed under this chapter.
(b) The fee collected under this section shall be in the amount
prescribed by Section 242.097(b) and shall be deposited to the
credit of the nursing and convalescent home trust fund
established under Section 242.096.
(c) The department may disburse money to a trustee for a
facility licensed under this chapter to alleviate an immediate
threat to the health or safety of the facility's residents.
Payments under this section may include payments described by
Section 242.096(b).
(d) A court may order the department to disburse emergency
assistance money to a trustee for a facility licensed under this
chapter if the court makes the findings provided by Section
242.096(c).
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.096. Reimbursement.
(a) A facility that receives emergency assistance money 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 money is disbursed to the facility. The rate
of interest is the rate determined under Section 2, Article 1.05,
Title 79, Revised Statutes (Article 5069-1.05, Vernon's Texas
Civil Statutes), to be applicable to judgments rendered during
the month in which the money is disbursed to the facility.
(c) The owner of the facility when the trustee is appointed is
responsible for the reimbursement.
(d) The amount that remains unreimbursed on the first
anniversary of the date on which the money is received is
delinquent and the Texas Department of Mental Health and Mental
Retardation may determine that the facility 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
money due under this section at the request of the department.
An action under this section must be brought in Travis County.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.097. Notification of Closure.
(a) A facility that is closing temporarily or permanently,
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 facility
closes.
(b) If the department orders a facility to close or the
facility's closure is in any other way involuntary, the facility
shall make the notification, orally or in writing, immediately on
receiving notice of the closing.
(c) If the facility's closure is voluntary, the facility shall
make the notification not later than one week after the date on
which the decision to close is made.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.098. Criminal Penalty for Failure to Notify.
(a) A facility commits an offense if the facility knowingly
fails to comply with Section 252.097.
(b) An offense under this section is a Class A misdemeanor.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
SUBCHAPTER E. REPORTS OF ABUSE AND NEGLECT
Sec. 252.121. 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.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.122. Reporting of Abuse and Neglect.
(a) A person, including an owner or employee of a facility, 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 to the department, to a designated agency, or to both
the department and the designated agency, as specified in
department rules.
(b) Each facility shall require each employee of the facility,
as a condition of employment with the facility, to sign a
statement that the employee realizes that the employee may be
criminally liable for failure to report abuse or neglect.
(c) A person shall make an oral report immediately on learning
of 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.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.123. 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.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.124. 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) 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.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.125. Investigation and Report of Receiving Agency.
(a) The department or the designated agency shall make a
thorough investigation promptly after receiving either the oral
or written report.
(b) The primary purpose of the investigation is the protection
of the resident.
(c) 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 facility environment; and
(6) any other information required by the department.
(d) The investigation may include a visit to the resident's
facility and an interview with the resident, if considered
appropriate by the department.
(e) If the department attempts to carry out an on-site
investigation and it is shown that admission to the facility or
any place where a 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 admission for the investigation
and any interview with the resident.
(f) 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.
(g) The department or the designated agency shall make a
complete written report of the investigation and submit the
report and its recommendations to the district attorney and the
appropriate law enforcement agency and, if necessary, to the
department on the department's request.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.126. Confidentiality.
A report, record, or working paper used or developed in an
investigation made under this subchapter is confidential and may
be disclosed only for purposes consistent with the rules adopted
by the board or the designated agency.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.127. Immunity.
(a) Except as provided by Section 252.131, a person who reports
an act of abuse or neglect 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.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.128. 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.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.129. Central Registry.
(a) The department shall maintain in the city of Austin a
central registry of reported cases of resident abuse or neglect.
The department shall include the registry in the registry
maintained under Section 242.130.
(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.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.130. 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 252.122.
(b) An offense under this section is a Class A misdemeanor.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.131. 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.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.132. Suit for Retaliation.
(a) A facility may not suspend or terminate the employment of,
or discipline or otherwise discriminate against, an employee for
reporting to the employee's supervisor, an administrator of the
facility, a state regulatory agency, or a law enforcement agency
the abuse or neglect of a resident.
(b) A facility that violates Subsection (a) is liable to the
person against whom the facility discriminated. A person against
whom a facility discriminates in violation of Subsection (a) may
sue for injunctive relief, damages, or both.
(c) A plaintiff who prevails in a suit under this section 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.
(d) In addition to the amounts that may be recovered under
Subsection (c), a person whose employment is suspended or
terminated is entitled to reinstatement in the person's former
position.
(e) 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 Workforce Commission of the
petitioner's intent to sue under this section. A petitioner who
notifies the Texas Workforce 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 facility of the
petitioner's intent to bring suit under this section.
(f) 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.
(g) 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.
(h) Each facility shall require each employee of the facility,
as a condition of employment with the facility, 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 252.122(b). If a facility does not
require an employee to read and sign the statement, the periods
prescribed by Subsection (e) 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.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.133. Suit for Retaliation Against Resident.
(a) A facility may not retaliate or discriminate against a
resident if the resident, the resident's guardian, or any other
person reports abuse or neglect in accordance with this
subchapter.
(b) A resident against whom a facility retaliates or
discriminates 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 facility is located or in a
district court of Travis County.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.134. Reports Relating to Resident Deaths; Statistical
Information.
(a) A facility licensed under this chapter shall submit a
report to the department concerning the death of:
(1) a resident of the facility; and
(2) a former resident that occurs 24 hours or less after the
former resident is transferred from the facility to a hospital.
(b) The report must be submitted not later than the 10th
working day after the last day of each month in which a resident
of the facility dies. The facility 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 facility in which the deceased
resided.
(d) Unless specified by board rule, 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 persons with mental retardation and
related conditions and in specific facilities. Information
developed under this subsection is not confidential.
(f) A licensed facility shall make available on the request of
an applicant or an applicant's representative historical
statistics on all required information.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
SUBCHAPTER F. MEDICAL CARE
Sec. 252.151. Administration of Medication.
The department shall adopt rules relating to the administration
of medication in facilities.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.152. Required Medical Examination.
(a) The department shall require each resident to 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. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.153. Emergency Medication Kit.
(a) A facility 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.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
SUBCHAPTER G. RESPITE CARE
Sec. 252.181. Definitions.
In this subchapter:
(1) "Plan of care" means a written description of the care,
training, and treatment needed by a person during respite care.
(2) "Respite care" means the provision by a facility to a person,
for not more than two weeks for each stay in the facility, of:
(A) room and board; and
(B) care at the level ordinarily provided for permanent
residents.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.182. Respite Care.
(a) A facility licensed under this chapter may provide respite
care for an individual who has a diagnosis of mental retardation
or a related condition without regard to whether the individual
is eligible to receive intermediate care services under federal
law.
(b) The board may adopt rules for the regulation of respite
care provided by a facility licensed under this chapter.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.183. Plan of Care.
(a) The facility and the person arranging the care must agree
on the plan of care and the plan must be filed at the facility
before the facility 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 facility may keep an agreed plan of care for a person
for not longer than six months from the date on which it is
received. After each admission, the facility shall review and
update the plan of care. During that period, the facility may
admit the person as frequently as is needed and as accommodations
are available.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.184. Notification.
A facility that offers respite care shall notify the department
in writing that it offers respite care.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.185. Inspections.
The department, at the time of an ordinary licensing inspection
or at other times determined necessary by the department, shall
inspect a facility'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.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Sec. 252.186. Suspension.
(a) The department may require a facility 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
facility cannot comply with those standards in the respite care
it provides.
(b) The department may suspend the license of a facility that
continues to provide respite care after receiving a written order
from the department to cease.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1, 199