CHAPTER 252. INTERMEDIATE CARE FACILITIES FOR THE MENTALLY RETARDED
HEALTH AND SAFETY CODE
TITLE 4. HEALTH FACILITIES
SUBTITLE B. LICENSING OF HEALTH FACILITIES
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 of Assistive and Rehabilitative
Services, Department of Aging and Disability Services, Department
of State Health Services, Health and Human Services Commission,
Texas Department of Criminal Justice, and Department of Veterans
Affairs;
(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.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
87, Sec. 25.094, eff. September 1, 2009.
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. (a) The board shall adopt rules
related to the administration and implementation of this chapter.
(b) The department and the Texas Department of Mental Health and
Mental Retardation shall cooperate in developing proposed rules
under this section. Before the board adopts a rule applicable to
a facility, the board shall present the proposed rule to the
commissioner of mental health and mental retardation for review
of the effects of the proposed rule. Not later than the 31st day
after the date the proposed rule is received, the commissioner of
mental health and mental retardation shall provide the board a
written statement of the effects of the proposed rule. The board
shall consider the statement in adopting a rule under this
section.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997. Amended by Acts 2001, 77th Leg., ch. 160, Sec. 1, eff.
Sept. 1, 2001.
Sec. 252.0085. RESTRAINT AND SECLUSION. A person providing
services to a resident of a facility licensed by the department
under this chapter or operated by the department and exempt under
Section 252.003 from the licensing requirements of this chapter
shall comply with Chapter 322 and the rules adopted under that
chapter.
Added by Acts 2005, 79th Leg., Ch.
698, Sec. 4, eff. September 1, 2005.
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. 252.0311. PERSON INELIGIBLE FOR LICENSE. (a) In this
section, "controlling person" means a person who, acting alone or
with others, has the ability to directly or indirectly influence,
direct, or cause the direction of the management, expenditure of
money, or policies of a facility or a person who operates a
facility. The term includes:
(1) a management company or other business entity that operates
or contracts with others for the operation of a facility;
(2) a person who is a controlling person of a management company
or other business entity that operates a facility or that
contracts with another person for the operation of a facility;
and
(3) any other individual who, because of a personal, familial,
or other relationship with the owner, manager, or provider of a
facility, is in a position of actual control or authority with
respect to the facility, without regard to whether the individual
is formally named as an owner, manager, director, officer,
provider, consultant, contractor, or employee of the facility.
(b) A controlling person described by Subsection (a)(3) does not
include an employee, lender, secured creditor, or other person
who does not exercise formal or actual influence or control over
the operation of a facility.
(c) The executive commissioner of the Health and Human Services
Commission may adopt rules that specify the ownership interests
and other relationships that qualify a person as a controlling
person.
(d) A person is not eligible for a license or to renew a license
if the applicant, a controlling person with respect to the
applicant, or an administrator or chief financial officer of the
applicant has been convicted of an offense that would bar a
person's employment at a facility in accordance with Chapter 250.
Added by Acts 2009, 81st Leg., R.S., Ch.
284, Sec. 10, eff. June 11, 2009.
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.
(h) The department by rule shall define specific, appropriate,
and objective criteria on which it may deny an initial license
application or license renewal or revoke a license.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997. Amended by Acts 1999, 76th Leg., ch. 534, Sec. 1, eff.
Sept. 1, 1999.
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.
(f) An applicant who submits an application for license renewal
later than the 45th day before the expiration date of a current
license is subject to a late fee in accordance with department
rules.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
809, Sec. 19, eff. September 1, 2007.
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. 252.0375. EARLY COMPLIANCE REVIEW. (a) The department by
rule shall adopt a procedure under which a person proposing to
construct or modify a facility may submit building plans to the
department for review for compliance with the department's
architectural requirements before beginning construction or
modification. In adopting the procedure, the department shall set
reasonable deadlines by which the department must complete review
of submitted plans.
(b) The department shall, within 30 days, review plans submitted
under this section for compliance with the department's
architectural requirements and inform the person in writing of
the results of the review. If the plans comply with the
department's architectural requirements, the department may not
subsequently change the architectural requirements applicable to
the project unless:
(1) the change is required by federal law; or
(2) the person fails to complete the project within a reasonable
time.
(c) The department may charge a reasonable fee for conducting a
review under this section.
(d) A fee collected under this section shall be deposited in the
general revenue fund and may be appropriated only to the
department to conduct reviews under this section.
(e) The review procedure provided by this section does not
include review of building plans for compliance with the Texas
Accessibility Standards as administered and enforced.
Added by Acts 2001, 77th Leg., ch. 339, Sec. 3, eff. Sept. 1,
2001.
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;
(4) a concise summary of the most recent inspection report
relating to the facility;
(5) a notice providing instructions for reporting an allegation
of abuse, neglect, or exploitation to the Department of Family
and Protective Services; and
(6) a notice that employees, other staff, residents, volunteers,
and family members and guardians of residents are protected from
discrimination or retaliation as provided by Sections 252.132 and
252.133.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997. Amended by Acts 2001, 77th Leg., ch. 192, Sec. 3, eff.
Sept. 1, 2001.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
284, Sec. 11, eff. June 11, 2009.
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.
(i) The department shall have specialized staff conduct
inspections, surveys, or investigations of facilities under this
section.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997. Amended by Acts 2001, 77th Leg., ch. 160, Sec. 2, eff.
Sept. 1, 2001.
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.
Sec. 252.044. REPORTING VIOLATIONS. (a) The department or the
department's representative conducting an inspection, survey, or
investigation under this chapter shall:
(1) list each violation of a law or rule on a form designed by
the department for inspections; and
(2) identify the specific law or rule the facility violates.
(b) At the conclusion of an inspection, survey, or investigation
under this chapter, the department or the department's
representative conducting the inspection, survey, or
investigation shall discuss the violations with the facility's
management in an exit conference. The department or the
department's representative shall leave a written list of the
violations with the facility and the person designated by the
facility to receive notice under Section 252.066 at the time of
the exit conference. If the department or the department's
representative discovers any additional violations during the
review of field notes or preparation of the official final list,
the department or the department's representative shall give the
facility an additional exit conference regarding the additional
violations. An additional exit conference must be held in person
and may not be held by telephone, e-mail, or facsimile
transmission.
(c) The facility shall submit a plan to correct the violations
to the regional director not later than the 10th working day
after the date the facility receives the final official statement
of violations.
Added by Acts 1999, 76th Leg., ch. 534, Sec. 2, eff. Sept. 1,
1999.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
974, Sec. 6, eff. September 1, 2007.
Sec. 252.045. ADMISSIBILITY OF CERTAIN DOCUMENTS OR TESTIMONY.
Sections 32.021(i) and (k), Human Resources Code, govern the
admissibility in a civil action against a facility of:
(1) a record of the department described by Section 32.021(i),
Human Resources Code; or
(2) the testimony of a department surveyor or investigator
described by Section 32.021(k), Human Resources Code.
Added by Acts 2001, 77th Leg., ch. 1284, Sec. 3.03, eff. June 15,
2001.
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 Travis County or the county in which
the alleged violation occurs.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997. Amended by Acts 1999, 76th Leg., ch. 192, Sec. 1, eff.
Sept. 1, 1999.
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) On request of the department, the attorney general may
institute an action in a district court to collect a civil
penalty under this section. 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. Amended by Acts 1999, 76th Leg., ch. 23, Sec. 1, eff. May
3, 1999.
Sec. 252.065. 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 the
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;
(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;
(7) fails to submit a plan of correction within 10 days after
receiving a statement of licensing violations; or
(8) fails to notify the department of a change in ownership
before the effective date of that change of ownership.
(b) The penalty for a facility with fewer than 60 beds shall be
not less than $100 or more than $1,000 for each violation. The
penalty for a facility with 60 beds or more shall be not less
than $100 or more than $5,000 for each violation. The total
amount of the penalty assessed for a violation continuing or
occurring on separate days under this subsection may not exceed
$5,000 for a facility with fewer than 60 beds or $25,000 for a
facility with 60 beds or more. Each day a violation occurs or
continues is a separate violation for purposes of imposing a
penalty.
(c) The department by rule shall specify each violation for
which an administrative penalty may be assessed. In determining
which violations warrant penalties, the department shall
consider:
(1) the seriousness of the violation, including the nature,
circumstances, extent, and gravity of the violation and the
hazard of the violation to the health or safety of clients; and
(2) whether the affected facility had identified the violation
as a part of its internal quality assurance process and had made
appropriate progress on correction.
(d) The department by rule shall establish a specific and
detailed schedule of appropriate and graduated penalties for each
violation based on:
(1) the seriousness of the violation, including the nature,
circumstances, extent, and gravity of the violation and the
hazard of the violation to the health or safety of clients;
(2) the history of previous violations;
(3) whether the affected facility had identified the violation
as a part of its internal quality assurance process and had made
appropriate progress on correction;
(4) the amount necessary to deter future violations;
(5) efforts made to correct the violation;
(6) the size of the facility; and
(7) any other matters that justice may require.
(e) The department by rule shall provide the facility with a
reasonable period of time, not less than 45 days, following the
first day of a violation to correct the violation before
assessing an administrative penalty if a plan of correction has
been implemented. This subsection does not apply to a violation
described by Subsections (a)(2)-(8) or to a violation that the
department determines:
(1) has resulted in serious harm to or the death of a resident;
(2) constitutes a serious threat to the health or safety of a
resident; or
(3) substantially limits the institution's capacity to provide
care.
(f) The department may not assess an administrative penalty for
a minor violation if the person corrects the violation not later
than the 46th day after the date the person receives notice of
the violation.
(g) The department shall establish a system to ensure standard
and consistent application of penalties regardless of the
facility location.
(h) All proceedings for the assessment of an administrative
penalty under this chapter are subject to Chapter 2001,
Government Code.
(i) The department may not assess an administrative penalty
against a state agency.
(j) Notwithstanding any other provision of this section, an
administrative penalty ceases to be incurred on the date a
violation is corrected. The administrative penalty ceases to be
incurred only if the facility:
(1) notifies the department in writing of the correction of the
violation and of the date the violation was corrected; and
(2) shows later that the violation was corrected.
(k) Rules adopted under this section shall include specific,
appropriate, and objective criteria that describe the scope and
severity of a violation that results in a recommendation for each
specific penalty.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997. Amended by Acts 1999, 76th Leg., ch. 534, Sec. 3, eff.
Sept. 1, 1999.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
809, Sec. 20, eff. September 1, 2007.
Sec. 252.0651. 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.
Added by Acts 1999, 76th Leg., ch. 534, Sec. 4, eff. Sept. 1,
1999.
Sec. 252.066. NOTICE; REQUEST FOR HEARING. (a) If, after
investigation of a possible violation and the facts surrounding
that possible violation, the department determines that a
violation has occurred, the department shall give written notice
of the violation to the person designated by the facility to
receive notice. The notice shall include:
(1) a brief summary of the alleged violation;
(2) a statement of the amount of the proposed penalty based on
the factors listed in Section 252.065(d); and
(3) a statement of the person's 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) Not later than the 20th day after the date on which the
notice is received, the person notified may accept the
determination of the department made under this section,
including the proposed penalty, or may make a written request for
a hearing on that determination.
(c) If the person notified under this section of the violation
accepts the determination of the department or if the person
fails to respond in a timely manner to the notice, the
commissioner of human services or the commissioner's designee
shall issue an order approving the determination and ordering
that the person pay the proposed penalty.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997. Amended by Acts 1999, 76th Leg., ch. 534, Sec. 5, eff.
Sept. 1, 1999.
Sec. 252.067. HEARING; ORDER. (a) If the person notified
requests a hearing, the department shall:
(1) set a hearing;
(2) give written notice of the hearing to the person; and
(3) designate a hearings examiner to conduct the hearing.
(b) The hearings examiner shall make findings of fact and
conclusions of law and shall promptly issue to the commissioner
of human services or the commissioner's designee a proposal for
decision as to the occurrence of the violation and a
recommendation as to the amount of the proposed penalty if a
penalty is determined to be warranted.
(c) Based on the findings of fact and conclusions of law and the
recommendations of the hearings examiner, the commissioner of
human services or the commissioner's designee by order may find
that a violation has occurred and may assess a penalty or may
find that no violation has occurred.
Added by Acts 1999, 76th Leg., ch. 534, Sec. 6, eff. Sept. 1,
1999.
Sec. 252.068. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
JUDICIAL REVIEW; REFUND. (a) The department shall give notice
of the order under Section 252.067(c) to the person alleged to
have committed the violation and the person designated by the
facility to receive notice under Section 252.066. The notice must
include:
(1) separate statements of the findings of fact and conclusions
of law;
(2) the amount of any penalty assessed; and
(3) a statement of the right of the person to judicial review of
the order.
(b) Not later than the 30th day after the date on which the
decision becomes final as provided by Chapter 2001, Government
Code, the person shall:
(1) pay the penalty; or
(2) 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.
(c) Within the 30-day period, a person who acts under Subsection
(b)(2) may:
(1) stay enforcement of the penalty by:
(A) paying 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 order becomes 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.
(d) If the department receives a copy of an affidavit under
Subsection (c)(2), the department may file with the court, within
10 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 penalty and to
give a supersedeas bond.
(e) If the person does not pay 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 penalty.
(f) Judicial review of the order:
(1) is instituted by filing a petition as provided by Subchapter
G, Chapter 2001, Government Code; and
(2) is under the substantial evidence rule.
(g) 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.
(h) When the judgment of the court becomes final, the court
shall proceed under this subsection. If the person paid the
amount of the penalty under Subsection (c)(1)(A) 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 penalty is not upheld by the court,
the court shall order the release of the escrow account or 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.
Added by Acts 1999, 76th Leg., ch. 534, Sec. 6, eff. Sept. 1,
1999.
Sec. 252.069. USE OF ADMINISTRATIVE PENALTY. An administrative
penalty collected under this subchapter may be appropriated for
the purpose of funding the grant program established under
Section 161.074, Human Resources Code.
Added by Acts 1999, 76th Leg., ch. 534, Sec. 6, eff. Sept. 1,
1999.
Amended by:
Acts 2005, 79th Leg., Ch.
786, Sec. 4, eff. September 1, 2005.
Sec. 252.070. EXPENSES AND COSTS FOR COLLECTION OF CIVIL OR
ADMINISTRATIVE PENALTY. (a) If the attorney general brings an
action against a person under Section 252.062 or 252.064 or to
enforce an administrative penalty assessed under Section 252.065
and an injunction is granted against the person or the person is
found liable for a civil or administrative penalty, the attorney
general may recover, on behalf of the attorney general and the
department, reasonable expenses and costs.
(b) For purposes of this section, reasonable expenses and costs
include expenses incurred by the department and the attorney
general in the investigation, initiation, and prosecution of an
action, including reasonable investigative costs, attorney's
fees, witness fees, and deposition expenses.
Added by Acts 1999, 76th Leg., ch. 534, Sec. 6, eff. Sept. 1,
1999.
Text of section as amended by Acts 2001, 77th Leg., ch. 619, Sec.
2
Sec. 252.071. AMELIORATION OF VIOLATION. (a) In lieu of
demanding payment of an administrative penalty authorized by this
subchapter, the department may allow a person subject to the
penalty to use, under the supervision of the department, all or
part of the amount of the penalty to ameliorate the violation or
to improve services, other than administrative services, in the
facility affected by the violation.
(b) The department shall offer amelioration to a person for a
charged violation if the department determines that the violation
does not constitute immediate jeopardy to the health and safety
of a facility resident.
(c) The department may not offer amelioration to a person if the
department determines that the charged violation constitutes
immediate jeopardy to the health and safety of a facility
resident.
(d) The department shall offer amelioration to a person under
this section not later than the 10th day after the date the
person receives from the department a final notification of
assessment of administrative penalty that is sent to the person
after an informal dispute resolution process but before an
administrative hearing under Section 252.067.
(e) A person to whom amelioration has been offered must file a
plan for amelioration not later than the 45th day after the date
the person receives the offer of amelioration from the
department. In submitting the plan, the person must agree to
waive the person's right to an administrative hearing under
Section 252.067 if the department approves the plan.
(f) At a minimum, a plan for amelioration must:
(1) propose changes to the management or operation of the
facility that will improve services to or quality of care of
residents of the facility;
(2) identify, through measurable outcomes, the ways in which and
the extent to which the proposed changes will improve services to
or quality of care of residents of the facility;
(3) establish clear goals to be achieved through the proposed
changes;
(4) establish a timeline for implementing the proposed changes;
and
(5) identify specific actions necessary to implement the
proposed changes.
(g) A plan for amelioration may include proposed changes to:
(1) improve staff recruitment and retention;
(2) offer or improve dental services for residents; and
(3) improve the overall quality of life for residents.
(h) The department may require that an amelioration plan propose
changes that would result in conditions that exceed the
requirements of this chapter or the rules adopted under this
chapter.
(i) The department shall approve or deny an amelioration plan
not later than the 45th day after the date the department
receives the plan. On approval of a person's plan, the department
shall deny a pending request for a hearing submitted by the
person under Section 252.066(b).
(j) The department may not offer amelioration to a person:
(1) more than three times in a two-year period; or
(2) more than one time in a two-year period for the same or
similar violation.
(k) In this section, "immediate jeopardy to health and safety"
means a situation in which there is a high probability that
serious harm or injury to a resident could occur at any time or
already has occurred and may occur again if the resident is not
protected from the harm or if the threat is not removed.
Added by Acts 1999, 76th Leg., ch. 534, Sec. 6, eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 619, Sec. 2, eff.
Sept. 1, 2001.
Text of section as amended by Acts 2001, 77th Leg., ch. 1284,
Sec. 8.02
Sec. 252.071. AMELIORATION OF VIOLATION. (a) In lieu of
demanding payment of an administrative penalty authorized by this
subchapter, the department may allow a person subject to the
penalty to use, under the supervision of the department, all or
part of the amount of the penalty to ameliorate the violation or
to improve services, other than administrative services, in the
facility affected by the violation.
(b) The department shall offer amelioration to a person for a
charged violation if the department determines that the violation
does not constitute immediate jeopardy to the health and safety
of a facility resident.
(c) The department may not offer amelioration to a person if the
department determines that the charged violation constitutes
immediate jeopardy to the health and safety of a facility
resident.
(d) The department shall offer amelioration to a person under
this section not later than the 10th day after the date the
person receives from the department a final notification of
assessment of administrative penalty that is sent to the person
after an informal dispute resolution process but before an
administrative hearing under Section 252.067.
(e) A person to whom amelioration has been offered must file a
plan for amelioration not later than the 45th day after the date
the person receives the offer of amelioration from the
department. In submitting the plan, the person must agree to
waive the person's right to an administrative hearing under
Section 252.067 if the department approves the plan.
(f) At a minimum, a plan for amelioration must:
(1) propose changes to the management or operation of the
facility that will improve services to or quality of care of
residents of the facility;
(2) identify, through measurable outcomes, the ways in which and
the extent to which the proposed changes will improve services to
or quality of care of residents of the facility;
(3) establish clear goals to be achieved through the proposed
changes;
(4) establish a timeline for implementing the proposed changes;
and
(5) identify specific actions necessary to implement the
proposed changes.
(g) The department may require that an amelioration plan propose
changes that would result in conditions that exceed the
requirements of this chapter or the rules adopted under this
chapter.
(h) The department shall approve or deny an amelioration plan
not later than the 45th day after the date the department
receives the plan. On approval of a person's plan, the department
shall deny a pending request for a hearing submitted by the
person under Section 252.066(b).
(i) The department may not offer amelioration to a person:
(1) more than three times in a two-year period; or
(2) more than one time in a two-year period for the same or
similar violation.
(j) In this section, "immediate jeopardy to health and safety"
means a situation in which immediate corrective action is
necessary because the facility's noncompliance with one or more
requirements has caused, or is likely to cause, serious injury,
harm, impairment, or death to a resident receiving care in the
facility.
Added by Acts 1999, 76th Leg., ch. 534, Sec. 6, eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 1284, Sec. 8.02, eff.
June 15, 2001.
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 or the county in which the violation is alleged to have
occurred.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,
1997. Amended by Acts 1999, 76th Leg., ch. 192, Sec. 2, eff.
Sept. 1, 1999.
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.
Sec. 252.099. COOPERATION IN FACILITY CLOSURE. The department
and the Texas Department of Mental Health and Mental Retardation
shall cooperate closely to ensure that the closure and transition
plans for a facility that is closing, and the execution of those
plans, ensure the short-term and long-term well-being of the
clients of the facility.
Added by Acts 2001, 77th Leg., ch. 160, Sec. 3, eff. Sept. 1,
2001.
SUBCHAPTER E. INVESTIGATIONS OF ABUSE,
NEGLECT, AND EXPLOITATION AND REPORTS OF RETALIATION
Sec. 252.121. AUTHORITY TO RECEIVE REPORTS AND INVESTIGATE. (a)
A person, including an owner or employee of a facility, who has
cause to believe that a resident is being or has been subjected
to abuse, neglect, or exploitation shall report the suspected
abuse, neglect, or exploitation to the Department of Family and
Protective Services, as required by Chapter 48, Human Resources
Code, or Chapter 261, Family Code, as appropriate. The
Department of Family and Protective Services shall investigate
the allegation of abuse, neglect, or exploitation in the manner
provided by Chapter 48, Human Resources Code, or Section 261.404,
Family Code, as applicable.
(b) If the department receives a report of suspected abuse,
neglect, or exploitation of a resident of a facility licensed
under this chapter,