Texas Health & Safety Code
CHAPTER 242. CONVALESCENT AND NURSING HOMES AND RELATED INSTITUTIONSCode Resources
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HEALTH & SAFETY CODE CHAPTER 242. CONVALESCENT AND NURSING HOMES AND RELATED INSTITUTIONS SUBCHAPTER A. GENERAL PROVISIONS § 242.001. SCOPE, PURPOSE, AND IMPLEMENTATION. (a) It is the goal of this chapter to ensure that institutions in this state deliver the highest possible quality of care. This chapter, and the rules and standards adopted under this chapter, establish minimum acceptable levels of care. A violation of a minimum acceptable level of care established under this chapter or a rule or standard adopted under this chapter is forbidden by law. Each institution licensed under this chapter shall, at a minimum, provide quality care in accordance with this chapter and the rules and standards. Components of quality of care addressed by these rules and standards include: (1) quality of life; (2) access to care; (3) continuity of care; (4) comprehensiveness of care; (5) coordination of services; (6) humaneness of treatment; (7) conservatism in intervention; (8) safety of the environment; (9) professionalism of caregivers; and (10) participation in useful studies. (b) The rules and standards adopted under this chapter may be more stringent than the standards imposed by federal law for certification for participation in the state Medicaid program. The rules and standards may not be less stringent than the Medicaid certification standards imposed under the Omnibus Budget Reconciliation Act of 1987 (OBRA), Pub.L. No. 100-203. (c) The rules and standards adopted under this chapter apply to each licensed institution. The rules and standards are intended for use in state surveys of the facilities and any investigation and enforcement action and are designed to be useful to consumers and providers in assessing the quality of care provided in an institution. (d) The legislature finds that the construction, maintenance, and operation of institutions shall be regulated in a manner that protects the residents of the institutions by: (1) providing the highest possible quality of care; (2) strictly monitoring all factors relating to the health, safety, welfare, and dignity of each resident; (3) imposing prompt and effective remedies for noncompliance with licensing standards; and (4) providing the public with information concerning the operation of institutions in this state. (e) It is the legislature's intent that this chapter accomplish the goals listed in Subsection (d). (f) This chapter shall be construed broadly to accomplish the purposes set forth in this section. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 1159, § 1.01, eff. Sept. 1, 1997. § 242.002. DEFINITIONS. In this chapter: (1) "Board" means the Texas Board of Human Services. (2) "Commissioner" means the commissioner of human services. (3) "Controlling person" means a person who controls an institution or other person as described by Section 242.0021. (4) "Department" means the Texas Department of Human Services. (5) "Elderly person" means an individual who is 65 years of age or older.Text of subd. (6) as amended by Acts 1997, 75th Leg., ch. 693, § 2 (6) "Institution" means an establishment that: (A) furnishes, in one or more facilities, food and shelter to four or more persons who are unrelated to the proprietor of the establishment; and (B) provides minor treatment under the direction and supervision of a physician licensed by the Texas State Board of Medical Examiners, or other services that meet some need beyond the basic provision of food, shelter, and laundry.Text of subd. (6) as amended by Acts 1997, 75th Leg., ch. 1159, § 1.02 (6) "Facility" means an institution. (7) "Governmental unit" means the state or a political subdivision of the state, including a county or municipality. (8) "Home" means an institution. (9) "Hospital" has the meaning assigned by Chapter 241 (Texas Hospital Licensing Law). (10) "Institution" means: (A) an establishment that: (i) furnishes, in one or more facilities, food and shelter to four or more persons who are unrelated to the proprietor of the establishment; and (ii) provides minor treatment under the direction and supervision of a physician licensed by the Texas State Board of Medical Examiners, or other services that meet some need beyond the basic provision of food, shelter, and laundry; or (B) a foster care type residential facility that provides room and board to fewer than five persons who: (i) are not related within the second degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the proprietor; and (ii) because of their physical or mental limitation, or both, require a level of care and services suitable to their needs that contributes to their health, comfort, and welfare. (11) "Person" means an individual, firm, partnership, corporation, association, joint stock company, limited partnership, limited liability company, or any other legal entity and includes a legal successor of those entities. (12) "Resident" means an individual, including a patient, who resides in an institution. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 561, § 30, eff. Aug. 26, 1991; Acts 1993, 73rd Leg., ch. 747, § 23, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 76, § 5.95(27), 8.084, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 693, § 2, eff. Jan. 1, 1998; Acts 1997, 75th Leg., ch. 1159, § 1.02, eff. Sept. 1, 1997. § 242.0021. CONTROLLING PERSON. (a) A person is a controlling person if the person has the ability, acting alone or in concert with others, to directly or indirectly influence, direct, or cause the direction of the management, expenditure of money, or policies of an institution or other person. (b) For purposes of this chapter, "controlling person" includes: (1) a management company, landlord, or other business entity that operates or contracts with others for the operation of an institution; (2) any person who is a controlling person of a management company or other business entity that operates an institution or that contracts with another person for the operation of an institution; and (3) any other individual who, because of a personal, familial, or other relationship with the owner, manager, landlord, tenant, or provider of an institution, is in a position of actual control or authority with respect to the institution, without regard to whether the individual is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility. (c) A controlling person described by Subsection (b)(3) does not include a person, such as an employee, lender, secured creditor, or landlord, who does not exercise any influence or control, whether formal or actual, over the operation of an institution. (d) The department may adopt rules that define the ownership interests and other relationships that qualify a person as a controlling person. Added by Acts 1997, 75th Leg., ch. 1159, § 1.03, eff. Sept. 1, 1997. § 242.003. EXEMPTIONS. Except as otherwise provided, this chapter does not apply to: (1) a hotel or other similar place that furnishes only food, lodging, or both, to its guests; (2) a hospital; (3) an establishment conducted by or for the adherents of a well-recognized church or religious denomination for the purpose of providing facilities for the care or treatment of the sick who depend exclusively on prayer or spiritual means for healing, without the use of any drug or material remedy, if the establishment complies with safety, sanitary, and quarantine laws and rules; (4) an establishment that furnishes, in addition to food, shelter, and laundry, only baths and massages; (5) an institution operated by a person licensed by the Texas Board of Chiropractic Examiners; (6) a facility that: (A) primarily engages in training, habilitation, rehabilitation, or education of clients or residents; (B) is operated under the jurisdiction of a state or federal agency, including the Texas Rehabilitation Commission, Texas Department of Mental Health and Mental Retardation, Texas Department of Human Services, Texas Commission for the Blind, Texas Commission on Alcohol and Drug Abuse, institutional division of the Texas Department of Criminal Justice, and the Veteran's Administration; and (C) is certified through inspection or evaluation as meeting the standards established by the state or federal agency; (7) a foster care type residential facility that serves fewer than five persons and operates under rules adopted by the Texas Department of Human Services; and (8) a facility licensed under Chapter 252 or exempt from licensure under Section 252.003. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, § 88, eff. Sept. 1, 1991; Acts 1997, 75th Leg., ch. 693, § 3, eff. Sept. 1, 1997. § 242.004. SIMULTANEOUS CARE FOR PREGNANT WOMEN AND OTHER WOMEN. This chapter does not prohibit an institution defined by Section 242.002(6)(B) from simultaneously caring for pregnant women and other women younger than 50 years of age. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.005. PERFORMANCE REPORTS. (a) The department and the attorney general each shall prepare annually a full report of the operation and administration of their respective responsibilities under this chapter, including recommendations and suggestions considered advisable. (b) The Legislative Budget Board and the state auditor shall jointly prescribe the form and content of reports required under this section, provided, however, that the state auditor's participation under this section is subject to approval by the legislative audit committee for inclusion in the audit plan under Section 321.013(c), Government Code. (c) The department and the attorney general shall submit the required reports to the governor and the legislature not later than October 1 of each year. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 1159, § 1.04, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 785, § 68, eff. Sept. 1, 2003. § 242.006. DIRECTORY OF LICENSED INSTITUTIONS. (a) The department shall prepare and publish annually a directory of all licensed institutions. (b) The directory must contain: (1) the name and address of the institution; (2) the name of the proprietor or sponsoring organization; and (3) other pertinent data that the department considers useful and beneficial to those persons interested in institutions operated in accordance with this chapter. (c) The department shall make copies of the directory available to the public. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.007. CONSULTATION AND COOPERATION. (a) Whenever possible, the department shall use the services of and consult with state and local agencies in carrying out its responsibility under this chapter. (b) The department may cooperate with local public health officials of a county or municipality in carrying out this chapter and may delegate to those officials the power to make inspections and recommendations to the department in accordance with this chapter. (c) The department may coordinate its personnel and facilities with a local agency of a municipality or county and may provide advice to the municipality or county if the municipality or county decides to supplement the state program with additional rules required to meet local conditions. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 76, § 8.085, eff. Sept. 1, 1995. § 242.008. EMPLOYMENT OF PERSONNEL. The department may employ the personnel necessary to administer this chapter properly. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.009. FEDERAL FUNDS. The department may accept and use any funds allocated by the federal government to the department for administrative expenses. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.010. CHANGE OF ADMINISTRATORS. An institution that hires a new administrator or person designated as chief manager shall: (1) notify the department in writing not later than the 30th day after the date on which the change becomes effective; and (2) pay a $20 administrative fee to the department. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.011. LANGUAGE REQUIREMENTS PROHIBITED. An institution may not prohibit a resident or employee from communicating in the person's native language with another resident or employee for the purpose of acquiring or providing medical treatment, nursing care, or institutional services. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.013. PAPERWORK REDUCTION RULES. (a) The department shall: (1) adopt rules to reduce the amount of paperwork an institution must complete and retain; and (2) attempt to reduce the amount of paperwork to the minimum amount required by state and federal law unless the reduction would jeopardize resident safety. (b) The department, the contracting agency, and providers shall work together to review rules and propose changes in paperwork requirements so that additional time is available for direct resident care. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 76, § 8.086, eff. Sept. 1, 1995. § 242.014. PROHIBITION OF REMUNERATION. (a) An institution may not receive monetary or other remuneration from a person or agency that furnishes services or materials to the institution or its occupants for a fee. (b) The department may revoke the license of an institution that violates Subsection (a). Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.015. LICENSED ADMINISTRATOR. (a) Each institution must have a licensed nursing facility administrator. (b) The administrator shall: (1) manage the institution; (2) be responsible for: (A) delivery of quality care to all residents; and (B) implementation of the policies and procedures of the institution; and (3) work at least 40 hours per week on administrative duties. Added by Acts 1997, 75th Leg., ch. 1159, § 1.05, eff. Sept. 1, 1997. § 242.016. FEES AND PENALTIES. Except as expressly provided by this chapter, a fee or penalty collected by or on behalf of the department under this chapter must be deposited to the credit of the general revenue fund and may be appropriated only to the department to administer and enforce this chapter. Investigation and attorney's fees may not be assessed or collected by or on behalf of the department or other state agency unless the department or other state agency assesses and collects a penalty described under this chapter. Added by Acts 1997, 75th Leg., ch. 1159, § 1.05, eff. Sept. 1, 1997. § 242.017. ADMISSIBILITY OF CERTAIN EVIDENCE IN CIVIL ACTIONS. (a) The following are not admissible as evidence in a civil action: (1) any finding by the department that an institution has violated this chapter or a rule adopted under this chapter; or (2) the fact of the assessment of a penalty against an institution under this chapter or the payment of the penalty by an institution. (b) This section does not apply in an enforcement action in which the state or an agency or political subdivision of the state is a party. (c) Notwithstanding any other provision of this section, evidence described by Subsection (a) is admissible as evidence in a civil action only if: (1) the evidence relates to a material violation of this chapter or a rule adopted under this chapter or assessment of a monetary penalty with respect to: (A) the particular incident and the particular individual whose personal injury is the basis of the claim being brought in the civil action; or (B) a finding by the department that directly involves substantially similar conduct that occurred at the institution within a period of one year before the particular incident that is the basis of the claim being brought in the civil action; and (2) the evidence of a material violation has been affirmed by the entry of a final adjudicated and unappealable order of the department after formal appeal; and (3) the record is otherwise admissible under the Texas Rules of Evidence. Added by Acts 2003, 78th Leg., ch. 204, § 16.02, eff. Sept. 1, 2003.SUBCHAPTER B. LICENSING, FEES, AND INSPECTIONS § 242.031. LICENSE REQUIRED. A person or governmental unit, acting severally or jointly with any other person or governmental unit, may not establish, conduct, or maintain an institution in this state without a license issued under this chapter. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.032. LICENSE OR RENEWAL APPLICATION. (a) An application for a license or renewal of a license is made to the department on a form provided by the department and must be accompanied by the license fee. (b) The application must contain information that the department requires. (c) The applicant or license holder must furnish evidence to affirmatively establish the applicant's or license holder's ability to comply with: (1) minimum standards of medical care, nursing care, and financial condition; and (2) any other applicable state or federal standard. (d) The department shall consider the background and qualifications of: (1) the applicant or license holder; (2) a partner, officer, director, or managing employee of the applicant or license holder; (3) a person who owns or who controls the owner of the physical plant of a facility in which the institution operates or is to operate; and (4) a controlling person with respect to the institution for which a license or license renewal is requested. (e) In making the evaluation required by Subsection (d), the department shall require the applicant or license holder to file a sworn affidavit of a satisfactory compliance history and any other information required by the department to substantiate a satisfactory compliance history relating to each state or other jurisdiction in which the applicant or license holder and any other person described by Subsection (d) operated an institution at any time during the five-year period preceding the date on which the application is made. The department by rule shall determine what constitutes a satisfactory compliance history. The department may also require the applicant or license holder to file information relating to the history of the financial condition of the applicant or license holder and any other person described by Subsection (d) with respect to an institution operated in another state or jurisdiction at any time during the five-year period preceding the date on which the application is made. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 1159, § 1.06, eff. Sept. 1, 1997. § 242.033. ISSUANCE AND RENEWAL OF LICENSE. (a) After receiving an application for a license, the department shall issue the license if, after inspection and investigation, it finds that the applicant or license holder, and any other person described by Section 242.032(d), meet the requirements established under each provision of this chapter and any rule or standard adopted under this chapter. (b) The department may issue a license only for: (1) the premises and persons or governmental unit named in the application; and (2) the maximum number of beds specified in the application. (c) A license may not be transferred or assigned. (d) Except as provided by Subsection (f), a license is renewable every two years after: (1) an inspection, unless an inspection is not required as provided by Section 242.047; (2) payment of the license fee; and (3) department approval of the report filed every two years by the licensee. (e) The report required for license renewal under Subsection (d)(3) must comply with rules adopted by the board that specify the date of submission of the report, the information it must contain, and its form. (f) The initial license issued to a license holder who has not previously held a license under this subchapter is a probationary license. A probationary license is valid for only one year. At the end of the one-year period, a license under Subsection (a) shall be issued but only after: (1) the department finds that the license holder and any other person described by Section 242.032(d) continue to meet the requirements established under each provision of this chapter and any rule or standard adopted under this chapter; (2) an inspection, unless an inspection is not required as provided by Section 242.047; (3) payment of the license fee; and (4) department approval of the report required for license renewal that complies with rules adopted under Subsection (e). Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 815, § 1(a), eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1159, § 1.07, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 512, § 1, eff. Sept. 1, 1999. § 242.0335. EXPEDITED ISSUANCE OF CHANGE OF OWNERSHIP LICENSE TO CERTAIN CURRENT LICENSE HOLDERS. (a) The department shall maintain, and keep current, a list of license holders that operate an institution in this state and that have excellent operating records according to the information available to the department. The department by rule shall establish specific criteria for designating a license holder as eligible for the list. (b) The department shall establish a procedure under which a listed license holder may be granted expedited approval in obtaining a change of ownership license to operate another existing institution in this state. The procedure may involve allowing a listed license holder to submit an affidavit demonstrating that the license holder continues to meet the criteria for being listed and continues to meet the requirements described by Subsection (c). (c) An applicant for a change of ownership license must meet all applicable requirements that an applicant for renewal of a license must meet under this subchapter, including under Section 242.032(d), and under rules that the department has adopted under this subchapter. Any requirement relating to inspections or to an accreditation review applies only to institutions operated by the license holder at the time the application is made for the change of ownership license. (d) Subsection (c) applies only to a license holder designated as eligible for and placed on the list maintained under Subsection (a). Added by Acts 2001, 77th Leg., ch. 731, § 1, eff. Sept. 1, 2001. Amended by Acts 2001, 77th Leg., ch. 1284, § 7.05(a). § 242.0336. TEMPORARY CHANGE OF OWNERSHIP LICENSE. (a) For purposes of this section, a temporary change of ownership license is a temporary license issued to an applicant who proposes to become the new operator of an institution existing on the date the application is filed. (b) After receiving an application for a temporary change of ownership license, the department shall issue a temporary license to the applicant if, after investigation, the department finds that the applicant and any other person described by Section 242.032(d) meet: (1) the requirements established under Section 242.032(c); and (2) the department's standards for background and qualifications under Sections 242.032(d) and (e). (c) The department shall issue or deny a temporary license not later than the 30th day after the date of receipt of the completed application. (d) After the department issues a temporary change of ownership license to the applicant, the department shall conduct an inspection or survey of the nursing facility under Section 242.043 as soon as reasonably possible. During the period between the issuance of the temporary license and the inspection or survey of the nursing facility, the department may not place a hold on vendor payments to the temporary license holder. (e) After conducting an inspection or survey under Subsection (d), the department shall issue a license under Section 242.033 to the temporary license holder if the nursing facility passes the inspection or survey and meets the requirements of Section 242.033. If the nursing facility fails to pass the inspection or survey or meet the requirements of Section 242.033, the department may: (1) place a hold on vendor payments to the temporary license holder; and (2) take any other action authorized under this chapter. (f) If the applicant meets the requirements of Section 242.033 and passes an initial inspection or a subsequent inspection before the temporary license expires, the license issued under Section 242.033 is considered effective on the date requested in the application for a temporary change of ownership. (g) A temporary license issued under Subsection (b) expires on the 91st day after the date the license was issued. Added by Acts 2001, 77th Leg., ch. 14, § 1, eff. Sept. 1, 2001. Renumbered from V.T.C.A., Health & Safety Code § 242.0335 by Acts 2003, 78th Leg., ch. 1275, § 2(91), eff. Sept. 1, 2003. § 242.034. LICENSE FEES. (a) The board may establish by rule license fees for institutions licensed by the department under this chapter. The license fee may not exceed $250 plus: (1) $10 for each unit of capacity or bed space for which a license is sought; and (2) a background examination fee imposed under Subsection (d). (b) The license fee for a probationary license issued under Section 242.033(f) may not exceed $125 plus: (1) $5 for each unit of capacity or bed space for which the license is sought; and (2) a background examination fee imposed under Subsection (d). (c) An additional license fee may be charged as provided by Section 242.097. (d) The board may establish a background examination fee in an amount necessary to defray the department's expenses in administering its duties under Sections 242.032(d) and (e). (e) The applicable license fee must be paid with each application for a probationary license, an initial license, a renewal license, or a change of ownership license. (f) The state is not required to pay the license fee. (g) An approved increase in bed space is subject to an additional fee. (h) The license fees established under this chapter are an allowable cost for reimbursement under the medical assistance program administered by the Texas Department of Human Services under Chapter 32, Human Resources Code. Any fee increases shall be reflected in reimbursement rates prospectively. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 815, § 1(b), eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1159, § 1.08, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 512, § 2, eff. Sept. 1, 1999. § 242.035. LICENSING CATEGORIES. (a) The department shall determine the rank of licensing categories. (b) Unless prohibited by another state or federal requirement, the department shall allow a licensed institution to operate a portion of the institution under the standards of a lower licensing category. The board shall establish procedures and standards to accommodate an institution's operation under the lower category. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.036. GRADING. (a) The board may adopt, publish, and enforce minimum standards relating to the grading of an institution, other than an institution that provides maternity care, in order to recognize those institutions that provide more than the minimum level of services and personnel as established by the board. (b) An institution that has a superior grade shall prominently display the grade for public view. (c) As an incentive to attain the superior grade, an institution may advertise its grade, except that it may not advertise a superior grade that has been canceled. (d) The department may not award a superior grade to an institution that, during the year preceding the grading inspection, violated state or federal law, rules, or regulations relating to: (1) the health, safety, or welfare of its residents; (2) resident funds; (3) the confidentiality of a resident's records; (4) the financial practices of the institution; or (5) the control of medication in the institution. (e) The department shall cancel an institution's superior grade if the institution: (1) does not meet the criteria established for a superior grade; or (2) violates a state or federal law, rule, or regulation described by Subsection (d). Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.037. RULES; MINIMUM STANDARDS. (a) The department shall make and enforce rules and minimum standards to implement this chapter, including rules and minimum standards relating to quality of life, quality of care, and residents' rights. (b) The rules and standards adopted under this chapter may be more stringent than the standards imposed by federal law for certification for participation in the state Medicaid program. (c) The rules and standards adopted by the department may not be less stringent than the Medicaid certification standards and regulations imposed under the Omnibus Budget Reconciliation Act of 1987 (OBRA), Pub.L. No. 100-203. (d) To implement Sections 242.032(d) and (e), the department by rule shall adopt minimum standards for the background and qualifications of any person described by Section 242.032(d). The department may not issue or renew a license if a person described by Section 242.032 does not meet the minimum standards adopted under this section. (e) In addition to standards or rules required by other provisions of this chapter, the board shall adopt, publish, and enforce minimum standards relating to: (1) the construction of an institution, including plumbing, heating, lighting, ventilation, and other housing conditions, to ensure the residents' health, safety, comfort, and protection from fire hazard; (2) the regulation of the number and qualification of all personnel, including management and nursing personnel, responsible for any part of the care given to the residents; (3) requirements for in-service education of all employees who have any contact with the residents; (4) training on the care of persons with Alzheimer's disease and related disorders for employees who work with those persons; (5) sanitary and related conditions in an institution and its surroundings, including water supply, sewage disposal, food handling, and general hygiene in order to ensure the residents' health, safety, and comfort; (6) the nutritional needs of each resident according to good nutritional practice or the recommendations of the physician attending the resident; (7) equipment essential to the residents' health and welfare; (8) the use and administration of medication in conformity with applicable law and rules; (9) care and treatment of residents and any other matter related to resident health, safety, and welfare; (10) licensure of institutions; and (11) implementation of this chapter. (f) The board shall adopt, publish, and enforce minimum standards requiring appropriate training in geriatric care for each individual who provides services to geriatric residents in an institution and who holds a license or certificate issued by an agency of this state that authorizes the person to provide the services. The minimum standards may require that each licensed or certified individual complete an appropriate program of continuing education or in-service training, as determined by board rule, on a schedule determined by board rule. (g) To administer the surveys for provider certification provided for by federal law and regulation, the department must identify each area of care that is subject to both state licensing requirements and federal certification requirements. For each area of care that is subject to the same standard under both federal certification and state licensing requirements, an institution that is in compliance with the federal certification standard is considered to be in compliance with the same state licensing requirement. (h) The board shall adopt each rule adopted by the Texas Board of Health under Section 161.0051 as part of the rules and standards adopted under this chapter that apply to institutions serving residents who are elderly persons. (i) The minimum standards adopted by the board under this section must require that each institution, as part of an existing training program, provide each registered nurse, licensed vocational nurse, nurse aide, and nursing assistant who provides nursing services in the institution at least one hour of training each year in caring for people with dementia. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 583, § 1, eff. Aug. 28, 1995; Acts 1995, 74th Leg., ch. 1049, § 2, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 165, § 31.01(54), eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1159, § 1.09, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 259, § 2, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1031, § 1, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1239, § 1, eff. Sept. 1, 2003. § 242.0371. NOTICE OF CERTAIN EMPLOYMENT POLICIES. (a) An institution licensed under this chapter shall prepare a written statement describing the institution's policy for: (1) the drug testing of employees who have direct contact with residents; and (2) the conducting of criminal history record checks of employees and applicants for employment in accordance with Chapter 250. (b) The institution shall provide the statement to: (1) each person applying for services from the institution or the person's next of kin or guardian; and (2) any person requesting the information. Added by Acts 1999, 76th Leg., ch. 1020, § 2, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1025, § 1, eff. Sept. 1, 2001. § 242.0373. RESTRAINT AND SECLUSION. A person providing services to a resident of an institution shall comply with Chapter 322 and the rules adopted under that chapter. Added by Acts 2005, 79th Leg., ch. 698, § 2, eff. Sept. 1, 2005. § 242.038. REASONABLE TIME TO COMPLY. The board by rule shall give an institution that is in operation when a rule or standard is adopted under this chapter a reasonable time to comply with the rule or standard. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.0385. EARLY COMPLIANCE REVIEW. (a) The department by rule shall adopt a procedure under which a person proposing to construct or modify an institution 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, § 2, eff. Sept. 1, 2001. § 242.039. FIRE SAFETY REQUIREMENTS. (a) The board shall adopt rules necessary to specify the edition of the Life Safety Code of the National Fire Protection Association that will be used to establish the life safety requirements for an institution licensed under this chapter. (b) The board shall adopt the edition of the Life Safety Code of the National Fire Protection Association for fire safety as designated by federal law and regulations for an institution or portion of an institution that is constructed after September 1, 1993, and for an institution or portion of an institution that was operating or approved for construction on or before September 1, 1993. (c) The board may not require more stringent fire safety standards than those required by federal law and regulation. The rules adopted under this section may not prevent an institution licensed under this chapter from voluntarily conforming to fire safety standards that are compatible with, equal to, or more stringent than those adopted by the board. (d) Licensed health care facilities in existence at the time of the effective date of this subsection may have their existing use or occupancy continued if such facilities comply with fire safety standards and ordinances in existence at the time of the effective date of this subsection. (e) Notwithstanding any other provision of this section, a municipality shall have the authority to enact additional and higher fire safety standards applicable to new construction beginning on or after the effective date of this subsection. (f)(1) An advisory committee is created to propose rules for adoption by the department concerning the applicability of municipal ordinances and regulations to the remodeling and renovation of existing structures to be used as health care facilities licensed under this chapter. (2) The advisory committee shall be appointed by the board and composed as follows: (A) two municipal fire marshals; (B) four individuals representing the nursing home industry; (C) the commissioner of human services or a designee; (D) one building official from a municipality that has adopted the Uniform Building Code; (E) one building official from a municipality that has adopted the Standard Building Code; (F) one architect licensed under state law; (G) one member of the Texas Board of Human Services; and (H) one state Medicaid director or designee. (3) The advisory committee shall serve without compensation or remuneration of any kind. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 583, § 1, eff. Sept. 1, 1993. § 242.040. CERTIFICATION OF INSTITUTIONS THAT CARE FOR PERSONS WITH ALZHEIMER'S DISEASE AND RELATED DISORDERS. (a) The department shall establish a system for certifying institutions that meet standards adopted by the board concerning the specialized care and treatment of persons with Alzheimer's disease and related disorders. (b) An institution is not required to be certified under this section in order to provide care and treatment of persons with Alzheimer's disease and related disorders. (c) The board by rule may adopt standards for the specialized care and treatment of persons with Alzheimer's disease and related disorders and provide procedures for institutions applying for certification under this section. The rules must provide for annual certification. (d) The board may establish and charge fees for the certification in an amount necessary to administer this section. (e) An institution may not advertise or otherwise communicate that the institution is certified by the department to provide specialized care for persons with Alzheimer's disease or related disorders unless the institution is certified under this section. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.041. FALSE COMMUNICATION CONCERNING CERTIFICATION; CRIMINAL PENALTY. (a) An institution commits an offense if the institution violates Section 242.040(e). (b) An offense under this section is a Class C misdemeanor. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.042. POSTING. (a) Each institution shall prominently and conspicuously post for display in a public area of the institution that is readily available to residents, employees, and visitors: (1) the license issued under this chapter; (2) a sign prescribed by the department that specifies complaint procedures established under this chapter or rules adopted under this chapter and that specifies how complaints may be registered with the department; (3) a notice in a form prescribed by the department stating that licensing inspection reports and other related reports which show deficiencies cited by the department are available at the institution for public inspection and providing the department's toll-free telephone number that may be used to obtain information concerning the institution; (4) a concise summary of the most recent inspection report relating to the institution; (5) notice that the department can provide summary reports relating to the quality of care, recent investigations, litigation, and other aspects of the operation of the institution; (6) notice that the Texas Board of Nursing Facility Administrators can provide information about the nursing facility administrator; (7) any notice or written statement required to be posted under Section 242.072(c); (8) notice that informational materials relating to the compliance history of the institution are available for inspection at a location in the institution specified by the sign; and (9) notice that employees, other staff, residents, volunteers, and family members and guardians of residents are protected from discrimination or retaliation as provided by Sections 242.133 and 242.1335. (b) The notice required by Subsection (a)(8) must also be posted at each door providing ingress to and egress from the institution. (c) The informational materials required to be maintained for public inspection by an institution under Subsection (a)(8) must be maintained in a well-lighted accessible location and must include: (1) any information required to be included under Section 242.504; and (2) a statement of the institution's record of compliance with this chapter and the rules and standards adopted under this chapter that is updated not less frequently than bi-monthly and that reflects the record of compliance during the period beginning one year before the date the statement is last updated, in the form required by the department. (d) The notice required by Subsection (a)(9) must be posted in English and a second language as required by department rule. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 1159, § 1.10, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 324, § 3, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 192, § 1, eff. Sept. 1, 2001. § 242.043. INSPECTIONS. (a) The department or the department's representative may make any inspection, survey, or investigation that it considers necessary and may enter the premises of an institution at reasonable times to make an inspection, survey, or investigation in accordance with board rules. (b) The department is entitled to access to books, records, and other documents maintained by or on behalf of an institution to the extent necessary to enforce this chapter and the rules adopted under this chapter. (c) A license holder or an applicant for a license is considered to have consented to entry and inspection of the institution by a representative of the department in accordance with this chapter. (d) The department shall establish procedures to preserve all relevant evidence of conditions found during an inspection, survey, or investigation that the department reasonably believes threaten the health and safety of a resident, including photography and photocopying of relevant documents, such as a license holder's notes, a physician's orders, and pharmacy records, for use in any legal proceeding. (e) When photographing a resident, the department: (1) shall respect the privacy of the resident to the greatest extent possible; and (2) may not make public the identity of the resident. (f) An institution, an officer or employee of an institution, and a resident's attending physician are not civilly liable for surrendering confidential or private material under this section, including physician's orders, pharmacy records, notes and memoranda of a state office, and resident files. (g) The department shall establish in clear and concise language a form to summarize each inspection report and complaint investigation report. (h) The department shall establish proper procedures to ensure that copies of all forms and reports under this section are made available to consumers, service recipients, and the relatives of service recipients as the department considers proper. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.044. UNANNOUNCED INSPECTIONS. (a) Each licensing period, the department shall conduct at least two unannounced inspections of each institution. (b) For at least two unannounced inspections each licensing period of an institution other than one that provides maternity care, the department shall invite at least one person as a citizen advocate from: (1) the American Association of Retired Persons; (2) the Texas Senior Citizen Association; (3) the Texas Retired Federal Employees; (4) the Texas Department on Aging Certified Long Term Care Ombudsman; or (5) another statewide organization for the elderly. (c) In order to ensure continuous compliance, the department shall randomly select a sufficient percentage of institutions for unannounced inspections to be conducted between 5 p.m. and 8 a.m. Those inspections must be cursory to avoid to the greatest extent feasible any disruption of the residents. (d) The department may require additional inspections. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 815, § 1(c), eff. Sept. 1, 1993. § 242.0445. REPORTING OF VIOLATIONS. (a) The department or the department's representative conducting an inspection, survey, or investigation under Section 242.043 or 242.044 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 violated. (b) At the conclusion of an inspection, survey, or investigation under Section 242.043 or 242.044, 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 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. (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 statement of violations. Added by Acts 1999, 76th Leg., ch. 233, § 2, eff. Sept. 1, 1999. § 242.045. DISCLOSURE OF UNANNOUNCED INSPECTIONS; CRIMINAL PENALTY. (a) Except as expressly provided by this chapter, a person commits an offense if the person intentionally, knowingly, or recklessly discloses to an unauthorized person the date, time, or any other fact about an unannounced inspection of an institution before the inspection occurs. (b) In this section, "unauthorized person" does not include: (1) the department; (2) the office of the attorney general; (3) a statewide organization for the elderly, including the American Association of Retired Persons, the Texas Senior Citizen Association, and the Texas Retired Federal Employees; (4) an ombudsman or representative of the Texas Department on Aging; (5) a representative of an agency or organization when a Medicare or Medicaid survey is made concurrently with a licensing inspection; or (6) any other person or entity authorized by law to make an inspection or to accompany an inspector. (c) An offense under this section is a third degree felony. (d) A person convicted under this section is not eligible for state employment. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 1159, § 1.11, eff. Sept. 1, 1997. § 242.046. OPEN HEARING. (a) The department shall hold an open hearing in a licensed institution, other than an institution that provides maternity care, if the department has taken a punitive action against the institution in the preceding 12 months or if the department receives a complaint from an ombudsman, advocate, resident, or relative of a resident relating to a serious or potentially serious problem in the institution and the department has reasonable cause to believe the complaint is valid. The department is not required to hold more than one open meeting in a particular institution in each year. (b) The department shall give notice of the time, place, and date of the hearing to: (1) the institution; (2) the designated closest living relative or legal guardian of each resident; and (3) appropriate state or federal agencies that work with the institution. (c) The department may exclude an institution's administrators and personnel from the hearing. (d) The department shall notify the institution of any complaints received at the hearing and, without identifying the source of the complaints, provide a summary of them to the institution. (e) The department shall determine and implement a mechanism to notify confidentially a complainant of the results of the investigation of the complaint. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, § 89, eff. Sept. 1, 1991. § 242.047. ACCREDITATION REVIEW TO SATISFY INSPECTION OR CERTIFICATION REQUIREMENTS. (a) The department shall accept an annual accreditation review from the Joint Commission on Accreditation of Health Organizations for a nursing home instead of an inspection for renewal of a license under Section 242.033 and in satisfaction of the requirements for certification by the department for participation in the medical assistance program under Chapter 32, Human Resources Code, and the federal Medicare program, but only if: (1) the nursing home is accredited by the commission under the commission's long-term care standards; (2) the commission maintains an annual inspection or review program that, for each nursing home, meets the department's applicable minimum standards as confirmed by the board; (3) the commission conducts an annual on-site inspection or review of the home; (4) the nursing home submits to the department a copy of its annual accreditation review from the commission in addition to the application, fee, and any report required for renewal of a license or for certification, as applicable; and (5) the department has: (A) determined whether a waiver or authorization from a federal agency is necessary under federal law, including for federal funding purposes, before the department accepts an annual accreditation review from the joint commission: (i) instead of an inspection for license renewal purposes; (ii) as satisfying the requirements for certification by the department for participation in the medical assistance program; or (iii) as satisfying the requirements for certification by the department for participation in the federal Medicare program; and (B) obtained any necessary federal waivers or authorizations. (b) The department shall coordinate its licensing and certification activities with the commission. (c) The department and the commission shall sign a memorandum of agreement to implement this section. The memorandum must provide that if all parties to the memorandum do not agree in the development, interpretation, and implementation of the memorandum, any area of dispute is to be resolved by the board. (d) Except as specifically provided by this section, this section does not limit the department in performing any duties and inspections authorized by this chapter or under any contract relating to the medical assistance program under Chapter 32, Human Resources Code, and Titles XVIII and XIX of the Social Security Act (42 U.S.C. Sections 1395 et seq. and 1396 et seq.), including authority to take appropriate action relating to an institution, such as closing the institution. (e) This section does not require a nursing home to obtain accreditation from the commission. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 2003, 78th Leg., ch. 198, § 2.57(a), eff. Sept. 1, 2003. § 242.048. LICENSING SURVEYS. The department shall provide a team to conduct surveys to validate findings of licensing surveys. The purpose of validation surveys is to assure that survey teams throughout the state survey in a fair and consistent manner. A facility subjected to a validation survey must correct deficiencies cited by the validation team but is not subject to punitive action for those deficiencies. Added by Acts 1991, 72nd Leg., ch. 14, § 90, eff. Sept. 1, 1991. § 242.049. QUALITY IMPROVEMENT. (a) The department may evaluate data for quality of care in nursing homes. (b) The department may gather data on a form or forms to be provided by the department to improve the quality of care in nursing homes and may provide information to nursing homes which will allow them to improve and maintain the quality of care which they provide. Data referred to in this section can include information compiled from documents otherwise available under Chapter 552, Government Code, including but not limited to individual survey reports and investigation reports. (c) All licensed nursing homes in the state may be required to submit information designated by the department as necessary to improve the quality of care in nursing homes. (d) The collection, compilation, and analysis of the information and any reports produced from these sources shall be done in a manner that protects the privacy of any individual about whom information is given and is explicitly confidential. The department shall protect and maintain the confidentiality of the information. The information received by the department, any information compiled as a result of review of internal agency documents, and any reports, compilations, and analyses produced from these sources shall not be available for public inspection or disclosure, nor are these sources public records within the meaning of Chapter 552, Government Code. The information and any compilations, reports, or analyses produced from the information shall not be subject to discovery, subpoena, or other means of legal compulsion for release to any person or entity except as provided in this section and shall not be admissible in any civil, administrative, or criminal proceeding. This privilege shall be recognized by Rules 501 and 502 of the Texas Rules of Evidence. (e) The information and reports, compilations, and analyses developed by the department for quality improvement shall be used only for the evaluation and improvement of quality care in nursing homes. No department proceeding or record shall be subject to discovery, subpoena, or other means of legal compulsion for release to any person or entity, and shall not be admissible in any civil, administrative, or criminal proceeding. This privilege shall be recognized by Rules 501 and 502 of the Texas Rules of Evidence. (f) Notwithstanding Subsection (d), the department shall transmit reports, compilations, and analyses of the information provided by a nursing home to that nursing home, and such disclosure shall not be violative of this section nor shall it constitute a waiver of confidentiality. (g) A member, agent, or employee of the department may not disclose or be required to disclose a communication made to the department or a record or proceeding of the department required to be submitted under this section except to the nursing home in question or its agents or employees. (h) Nothing in this section is intended to abridge the department's enforcement responsibilities under this chapter or under any other law. (i) Any information, reports, and other documents produced which are subject to any means of legal compulsion or which are considered to be public information under Subchapter E and the rules adopted under that subchapter shall continue to be subject to legal compulsion and be treated as public information under Subchapter E after the effective date of this Act, even though such information, reports, and other documents may be used in the collection, compilation, and analysis described in Subsections (b) and (d). Added by Acts 1993, 73rd Leg., ch. 815, § 2, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(88), eff. Sept. 1, 1995; Acts 2001, 77th Leg., ch. 1420, § 10.0011, eff. Sept. 1, 2001. § 242.051. NOTIFICATION OF AWARD OF EXEMPLARY DAMAGES. (a) If exemplary damages are awarded under Chapter 41, Civil Practice and Remedies Code, against an institution or an officer, employee, or agent of an institution, the court shall notify the department. (b) If the department receives notice under Subsection (a), the department shall maintain the information contained in the notice in the records of the department relating to the history of the institution. Added by Acts 2001, 77th Leg., ch. 1284, § 2.01, eff. June 15, 2001. § 242.052. DRUG TESTING OF EMPLOYEES. (a) An institution may establish a drug testing policy for employees of the institution. An institution that establishes a drug testing policy under this subsection may adopt the model drug testing policy adopted by the board or may use another drug testing policy. (b) The board by rule shall adopt a model drug testing policy for use by institutions. The model drug testing policy must be designed to ensure the safety of residents through appropriate drug testing and to protect the rights of employees. The model drug testing policy must: (1) require at least one scheduled drug test each year for each employee of an institution that has direct contact with a resident in the institution; and (2) authorize random, unannounced drug testing for employees described by Subdivision (1). Added by Acts 2001, 77th Leg., ch. 1025, § 2, eff. Sept. 1, 2001. Renumbered from V.T.C.A., Health & Safety Code § 242.050 by Acts 2003, 78th Leg., ch. 1275, § 2(92), eff. Sept. 1, 2003.SUBCHAPTER C. GENERAL ENFORCEMENT § 242.061. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE. (a) The department, after providing notice and opportunity for a hearing to the applicant or license holder, may deny, suspend, or revoke a license if the department finds that the applicant, the license holder, or any other person described by Section 242.032(d) has: (1) violated this chapter or a rule, standard, or order adopted or license issued under this chapter in either a repeated or substantial manner; (2) committed any act described by Sections 242.066(a)(2)-(6); or (3) failed to comply with Section 242.074. (b) The status of a person as an applicant for a license or a license holder is preserved until final disposition of the contested matter, except as the court having jurisdiction of a judicial review of the matter may order in the public interest for the welfare and safety of the residents. (c) The department may deny, suspend, or revoke the license of an institution if any person described by Section 242.032(d) has been excluded from holding a license under Section 242.0615. (d) A court having jurisdiction of a judicial review of the matter may not order arbitration, whether on motion of any party or on the court's own motion, to resolve a dispute involving the denial, suspension, or revocation of a license under this section or the conduct with respect to which the denial, suspension, or revocation of the license is sought. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 1159, § 1.12, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 452, § 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1094, § 1, eff. Sept. 1, 1999. § 242.0615. EXCLUSION. (a) The department, after providing notice and opportunity for a hearing, may exclude a person from eligibility for a license under this chapter if the person or any person described by Section 242.032(d) has substantially failed to comply with this chapter and the rules adopted under this chapter. The authority granted by this subsection is in addition to the authority to deny issuance of a license under Section 242.061(a). (b) Exclusion of a person under this section must extend for a period of at least two years, but may not exceed a period of 10 years. Added by Acts 1997, 75th Leg., ch. 1159, § 1.13, eff. Sept. 1, 1997. § 242.062. EMERGENCY SUSPENSION OR CLOSING ORDER. (a) The department shall suspend an institution's license or order an immediate closing of part of the institution if: (1) the department finds the institution is operating in violation of the standards prescribed by this chapter; and (2) the violation creates an immediate threat to the health and safety of a resident. (b) The board by rule shall provide for the placement of residents during the institution's suspension or closing to ensure their health and safety. (c) An order suspending a license or closing a part of an institution under this section is immediately effective on the date on which the license holder receives written notice or a later date specified in the order. (d) An order suspending a license or ordering an immediate closing of a part of an institution is valid for 10 days after the effective date of the order. (e) A court having jurisdiction of a judicial review of the matter may not order arbitration, whether on motion of any party or on the court's own motion, to resolve a dispute involving an emergency suspension or closing order under this section or the conduct with respect to which the emergency suspension or closing order is sought. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 1094, § 2, eff. Sept. 1, 1999. § 242.063. INJUNCTION. (a) The department may petition a district court for: (1) a temporary restraining order to restrain a person from a violation or threatened violation of the standards imposed under this chapter or any other law affecting residents if the department reasonably believes that the violation or threatened violation creates an immediate threat to the health and safety of a resident; and (2) an injunction to restrain a person from a violation or threatened violation of the standards imposed under this chapter or by any other law affecting residents if the department reasonably believes that the violation or threatened violation creates a threat to the health and safety of a resident. (b) A district court, on petition of the department, may by injunction: (1) prohibit a person from violating the standards or licensing requirements prescribed by this chapter; (2) restrain or prevent the establishment, conduct, management, or operation of an institution without a license issued under this chapter; or (3) grant the injunctive relief warranted by the facts on a finding by the court that a person is violating or threatening to violate the standards or licensing requirements prescribed by this chapter. (c) The attorney general, on request by the department, shall institute and conduct in the name of the state a suit authorized by this section or Subchapter D. (d) A suit for a temporary restraining order or other injunctive relief must be brought in the county in which the alleged violation occurs. (e) Repealed by Acts 2003, 78th Leg., ch. 198, § 2.58(b). Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 1159, § 1.14, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 198, § 2.58(a), (b), eff. Sept. 1, 2003. § 242.064. LICENSE REQUIREMENT; CRIMINAL PENALTY. (a) A person commits an offense if the person violates Section 242.031. (b) An offense under this section is punishable by a fine of not more than $1,000 for the first offense and not more than $500 for each subsequent offense. (c) Each day of a continuing violation after conviction is a separate offense. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.065. CIVIL PENALTY. (a) A person who violates or causes a violation of this chapter or a rule adopted under this chapter is liable for a civil penalty of not less than $1,000 or more than $20,000 for each act of violation if the department determines the violation threatens the health and safety of a resident. (b) In determining the amount of a penalty to be awarded under this section, the trier of fact shall consider: (1) the seriousness of the violation; (2) the history of violations committed by the person or the person's affiliate, employee, or controlling person; (3) the amount necessary to deter future violations; (4) the efforts made to correct the violation; (5) any misrepresentation made to the department or to another person regarding: (A) the quality of services rendered or to be rendered to residents; (B) the compliance history of the institution or any institutions owned or controlled by an owner or controlling person of the institution; or (C) the identity of an owner or controlling person of the institution; (6) the culpability of the individual who committed the violation; and (7) any other matter that should, as a matter of justice or equity, be considered. (c) Each day of a continuing violation constitutes a separate ground for recovery. (d) Any party to a suit under this section may request a jury. (e) If a person who is liable under this section fails to pay any amount the person is obligated to pay under this section, the state may seek satisfaction from any owner, other controlling person, or affiliate of the person found liable. The owner, other controlling person, or affiliate may be found liable in the same suit or in another suit on a showing by the state that the amount to be paid has not been paid or otherwise legally discharged. The department by rule may establish a method for satisfying an obligation imposed under this section from an insurance policy, letter of credit, or other contingency fund. (f) On request by the department, the attorney general may institute an action in a district court to collect a civil penalty under this section. (g) A payment made to satisfy an obligation under this section is not an allowable cost for reimbursement under the state Medicaid program. (h) A civil penalty awarded under this section constitutes a fine, penalty, or forfeiture payable to and for the benefit of a government unit and is not compensation for actual pecuniary loss. (i) In this section, "affiliate" means: (1) with respect to a partnership other than a limited partnership, each partner of the partnership; (2) with respect to a corporation: (A) an officer; (B) a director; (C) a stockholder who owns, holds, or has the power to vote at least 10 percent of any class of securities issued by the corporation, regardless of whether the power is of record or beneficial; and (D) a controlling individual; (3) with respect to an individual: (A) each partnership and each partner in the partnership in which the individual or any other affiliate of the individual is a partner; and (B) each corporation or other business entity in which the individual or another affiliate of the individual is: (i) an officer; (ii) a director; (iii) a stockholder who owns, holds, or has the power to vote at least 10 percent of any class of securities issued by the corporation, regardless of whether the power is of record or beneficial; and (iv) a controlling individual; (4) with respect to a limited partnership: (A) a general partner; and (B) a limited partner who is a controlling individual; (5) with respect to a limited liability company: (A) an owner who is a manager as described by the Texas Limited Liability Company Act (Article 1528n, Vernon's Texas Civil Statutes); and (B) each owner who is a controlling individual; and (6) with respect to any other business entity, a controlling individual. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 1159, § 1.15, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 13, § 1, eff. May 3, 1999; Acts 2003, 78th Leg., ch. 198, § 2.59, eff. Sept. 1, 2003. § 242.066. ADMINISTRATIVE PENALTY. (a) The department may assess an administrative penalty against a person who: (1) violates this chapter or a rule, standard, or order adopted or license issued under this chapter; (2) makes a false statement, that the person knows or should know is false, of a material fact: (A) on an application for issuance or renewal of a license or in an attachment to the application; or (B) with respect to a matter under investigation by the department; (3) refuses to allow a representative of the department to inspect: (A) a book, record, or file required to be maintained by an institution; or (B) any portion of the premises of an institution; (4) wilfully interferes with the work of a representative of the department or the enforcement of this chapter; (5) wilfully interferes with a representative of the department preserving evidence of a violation of this chapter or a rule, standard, or order adopted or license issued under this chapter; or (6) fails to pay a penalty assessed by the department under this chapter not later than the 10th day after the date the assessment of the penalty becomes final. (b) Except as provided by Subsection (f) and Section 242.0665(c), the penalty may not exceed $10,000 a day for each violation. (c) Each day of a continuing violation constitutes a separate violation. (d) The board shall establish gradations of penalties in accordance with the relative seriousness of the violation. (e) In determining the amount of a penalty, the department shall consider any matter that justice may require, including: (1) the gradations of penalties established under Subsection (d); (2) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the prohibited act and the hazard or potential hazard created by the act to the health or safety of the public; (3) the history of previous violations; (4) deterrence of future violations; and (5) efforts to correct the violation. (f) The penalty for a violation of Section 242.072(c) or a right of a resident adopted under Subchapter L may not exceed $1,000 a day for each violation. This subsection does not apply to conduct that violates both Subchapter K or a standard adopted under Subchapter K and a right of a resident adopted under Subchapter L. (g) The persons against whom an administrative penalty may be assessed under Subsection (a) include: (1) an applicant for a license under this chapter; (2) a license holder; (3) a partner, officer, director, or managing employee of a license holder or applicant; and (4) a person who controls an institution. (h) A penalty assessed under Subsection (a)(6) is in addition to the penalty previously assessed and not timely paid. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 1159, § 1.16, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 93, § 2, eff. May 17, 1999. § 242.0663. VIOLATION OF LAW RELATING TO ADVANCE DIRECTIVES. (a) The department shall assess an administrative penalty under this subchapter against an institution that violates Section 166.004. (b) Notwithstanding Sections 242.066(b) and (c), a penalty assessed in accordance with this section shall be $500 and a separate penalty may not be assessed for a separate day of a continuing violation. (c) Section 242.0665 does not apply to a penalty assessed in accordance with this section. Added by Acts 1999, 76th Leg., ch. 450, § 2.04, eff. Sept. 1, 1999. § 242.0665. RIGHT TO CORRECT. (a) The department may not collect an administrative penalty against an institution under this subchapter if, not later than the 45th day after the date the institution receives notice under Section 242.067(c), the institution corrects the violation. (b) Subsection (a) does not apply: (1) to a violation that the department determines: (A) results in serious harm to or death of a resident; (B) constitutes a serious threat to the health or safety of a resident; or (C) substantially limits the institution's capacity to provide care; (2) to a violation described by Sections 242.066(a)(2)-(6); (3) to a violation of Section 242.133 or 242.1335; or (4) to a violation of a right of a resident adopted under Subchapter L. (c) An institution that corrects a violation under Subsection (a) must maintain the correction. If the institution fails to maintain the correction until at least the first anniversary of the date the correction was made, the department may assess an administrative penalty under this subchapter for the subsequent violation. A penalty assessed under this subsection shall be equal to three times the amount of the penalty assessed but not collected under Subsection (a). The department is not required to provide the institution an opportunity to correct the subsequent violation under this section. Added by Acts 1997, 75th Leg., ch. 1159, § 1.17, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 93, § 3, eff. May 17, 1999. § 242.067. REPORT RECOMMENDING ADMINISTRATIVE PENALTY. (a) The department may issue a preliminary report stating the facts on which it concludes that a violation of this chapter or a rule, standard, or order adopted or license issued under this chapter has occurred if it has: (1) examined the possible violation and facts surrounding the possible violation; and (2) concluded that a violation has occurred. (b) The report may recommend a penalty under Section 242.069 and the amount of the penalty. (c) The department shall give written notice of the report to the person charged with the violation not later than the 10th day after the date on which the report is issued. The notice must include: (1) a brief summary of the charges; (2) a statement of the amount of penalty recommended; (3) a statement of whether the violation is subject to correction under Section 242.0665 and, if the violation is subject to correction under that section, a statement of: (A) the date on which the institution must file with the department a plan of correction to be approved by the department; and (B) the date on which the plan of correction must be completed to avoid assessment of the penalty; and (4) a statement that the person charged has a right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (d) Not later than the 20th day after the date on which the notice under Subsection (c) is sent, the person charged may: (1) give to the department written consent to the department's report, including the recommended penalty; (2) make a written request for a hearing; or (3) if the violation is subject to correction under Section 242.0665, submit a plan of correction to the department for approval. (e) If the violation is subject to correction under Section 242.0665, and the person reports to the department that the violation has been corrected, the department shall inspect the correction or take any other step necessary to confirm that the violation has been corrected and shall notify the person that: (1) the correction is satisfactory and that a penalty is not assessed; or (2) the correction is not satisfactory and that a penalty is recommended. (f) Not later than the 20th day after the date on which a notice under Subsection (e)(2) is sent, the person charged may: (1) give to the department written consent to the department's report, including the recommended penalty; or (2) make a written request for a hearing. (g) If the person charged with the violation consents to the administrative penalty recommended by the department, does not timely respond to a notice sent under Subsection (c) or (e), or fails to correct the violation to the department's satisfaction, the commissioner or the commissioner's designee shall assess the administrative penalty recommended by the department (h) If the commissioner or the commissioner's designee assesses the recommended penalty, the department shall give written notice to the person charged of the decision and the person shall pay the penalty. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 76, § 8.087, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1159, § 1.18, eff. Sept. 1, 1997. § 242.068. HEARINGS ON ADMINISTRATIVE PENALTIES. (a) An administrative law judge shall order a hearing and give notice of the hearing if a person charged under Section 242.067(c) requests a hearing. (b) The hearing shall be held before an administrative law judge. (c) The administrative law judge shall make findings of fact and conclusions of law regarding the occurrence of a violation of this chapter or a rule or order adopted or license issued under this chapter. (d) Based on the findings of fact and conclusions of law, the administrative law judge by order shall find: (1) a violation has occurred and assess an administrative penalty; or (2) a violation has not occurred. (e) Proceedings under this section are subject to Chapter 2001, Government Code. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), 8.088, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1159, § 1.18, eff. Sept. 1, 1997. § 242.069. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY; INTEREST; REFUND. (a) The commissioner shall give notice of the decision taken under Section 242.068(d) to the person charged. If the commissioner finds that a violation has occurred and has assessed an administrative penalty, the commissioner shall give written notice to the person charged of: (1) the findings; (2) the amount of the penalty; (3) the rate of interest payable with respect to the penalty and the date on which interest begins to accrue; (4) whether payment of the penalty or other action under Section 242.071 is required; and (5) the person's right to judicial review of the order. (b) Not later than the 30th day after the date on which the commissioner's order is final, the person charged with the penalty shall: (1) pay the full amount of the penalty; or (2) file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, the failure to correct the violation to the department's satisfaction, or all of the above. (c) Notwithstanding Subsection (b), the department may permit the person to pay the penalty in installments or may require the person to use the amount of the penalty under the department's supervision in accordance with Section 242.071. (d) If the person does not pay the penalty within the 30-day period: (1) the penalty is subject to interest; and (2) the department may refer the matter to the attorney general for collection of the penalty and interest. (e) If a penalty is reduced or not assessed, the commissioner shall: (1) remit to the person charged the appropriate amount of any penalty payment plus accrued interest; or (2) execute a release of the supersedeas bond if one has been posted. (f) Accrued interest on amounts remitted by the commissioner under Subsection (e)(1) shall be paid: (1) at a rate equal to the rate charged on loans to depository institutions by the New York Federal Reserve Bank; and (2) for the period beginning on the date the penalty is paid under Subsection (b) and ending on the date the penalty is remitted. (g) Interest under Subsection (d) shall be paid: (1) at a rate equal to the rate charged on loans to depository institutions by the New York Federal Reserve Bank; and (2) for the period beginning on the date the notice of the commissioner's order is received by the person and ending on the date the penalty is paid. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 76, § 8.089, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 1049, § 3, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1159, § 1.18, eff. Sept. 1, 1997. § 242.0695. USE OF ADMINISTRATIVE PENALTY. Money from 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 2005, 79th Leg., ch. 786, § 2, eff. Sept. 1, 2005. § 242.070. APPLICATION OF OTHER LAW. The department may not assess more than one monetary penalty under this chapter and Chapter 32, Human Resources Code, for a violation arising out of the same act or failure to act, except as provided by Section 242.0665(c). The department may assess the greater of a monetary penalty under this chapter or a monetary penalty under Chapter 32, Human Resources Code, for the same act or failure to act. Added by Acts 1995, 74th Leg., ch. 1049, § 4, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1159, § 1.18, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 198, § 2.60(a), eff. Sept. 1, 2003. § 242.071. AMELIORATION OF VIOLATION. (a) In lieu of demanding payment of an administrative penalty assessed under Section 242.066, the commissioner may, in accordance with this section, allow the person to use, under the supervision of the department, any portion of the penalty to ameliorate the violation or to improve services, other than administrative services, in the institution affected by the violation. (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 an institution resident. (c) The department may not offer amelioration to a person if: (1) the person has been charged with a violation which is subject to correction under Section 242.0665; or (2) the department determines that the charged violation constitutes immediate jeopardy to the health and safety of an institution 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 242.068. (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 242.068 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 institution that will improve services to or quality of care of residents of the institution; (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 institution; (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 242.067(d). (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 immediate corrective action is necessary because the institution'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 institution. Added by Acts 1997, 75th Leg., ch. 1159, § 1.19, eff. Sept. 1, 1997. Amended by Acts 2001, 77th Leg., ch. 619, § 1, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1284, § 8.01, eff. June 15, 2001; Acts 2003, 78th Leg., ch. 1276, § 10.002, eff. Sept. 1, 2003. § 242.072. OTHER REMEDIES. (a) If the commissioner finds that an institution has committed an act for which a civil penalty may be imposed under Section 242.065, the commissioner may, as appropriate under the circumstances, order the institution to immediately suspend admissions. (b) A suspension of admissions ordered under Subsection (a) is effective on the date a representative of the institution receives notice of the order and of the manner in which the order may be appealed. The department must provide an opportunity for a hearing with respect to an appeal of the order not later than the 14th day after the date the suspension becomes effective. (c) During the period that an institution is ordered to suspend admissions, the institution shall post a notice of the suspension on all doors providing ingress to and egress from the institution. The notice shall be posted in the form required by the department. (d) A person commits an offense if the person knowingly: (1) violates Subsection (c); or (2) removes a notice posted under Subsection (c) before the facility is allowed to admit residents. (e) An offense under Subsection (d) is a Class C misdemeanor. (f) A court having jurisdiction of a judicial review of the matter may not order arbitration, whether on motion of any party or on the court's own motion, to resolve a dispute involving an order suspending admissions under this section or the conduct with respect to which the order suspending admissions is sought. Added by Acts 1997, 75th Leg., ch. 1159, § 1.19, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 1094, § 3, eff. Sept. 1, 1999. § 242.073. LEGAL ACTION BY THE ATTORNEY GENERAL. (a) The department and the attorney general shall work in close cooperation throughout any legal proceedings requested by the department. (b) The commissioner must approve any settlement agreement to a suit brought under this chapter or any other law relating to the health and safety of residents in institutions. Added by Acts 1997, 75th Leg., ch. 1159, § 1.19, eff. Sept. 1, 1997. § 242.074. NOTIFICATION OF CHANGE IN FINANCIAL CONDITION. (a) An institution shall notify the department of a significant change in the institution's financial position, cash flow, or results of operation that could adversely affect the institution's delivery of essential services, including nursing services, dietary services, and utilities, to residents of the institution. (b) The department may verify the financial condition of an institution in order to identify any risk to the institution's ability to deliver essential services. (c) A person that knowingly files false information under this section may be prosecuted under the Penal Code. (d) The department shall adopt rules to implement this section. The rules shall include the conditions that constitute a significant change in an institution's financial condition that are required to be reported under Subsection (a). (e) The information obtained by the department under this section is confidential and is not subject to disclosure under Chapter 552, Government Code. The department may release the information to: (1) the institution; or (2) a person other than the institution if the institution consents in writing to the disclosure. (f) A person who knowingly discloses information in violation of Subsection (e) commits an offense. An offense under this subsection is a Class A misdemeanor. (g) The provisions in Subsection (e) relating to the confidentiality of records do not apply to: (1) an institution whose license has been revoked or suspended; or (2) the use of information in an administrative proceeding initiated by the department or in a judicial proceeding. Added by Acts 1999, 76th Leg., ch. 452, § 2.SUBCHAPTER D. TRUSTEES FOR NURSING OR CONVALESCENT HOMES § 242.091. FINDINGS AND PURPOSE. (a) The legislature finds that the closing of a nursing or convalescent home for violations of laws and rules may: (1) in certain circumstances, have an adverse effect on both the home's residents and their families; and (2) in some cases, result in a lack of readily available funds to meet the basic needs of the residents for food, shelter, medication, and personal services. (b) The purpose of this subchapter is to provide for: (1) the appointment of a trustee to assume the operations of the home in a manner that emphasizes resident care and reduces resident trauma; and (2) a fund to assist a court-appointed trustee in meeting the basic needs of the residents. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.092. DEFINITION. In this subchapter, "home" means a nursing or convalescent home. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.093. APPOINTMENT BY AGREEMENT. (a) A person holding a controlling interest in a home may, at any time, request the department to assume the operation of the home through the appointment of a trustee under this subchapter. (b) After receiving the request, the department may enter into an agreement providing for the appointment of a trustee to take charge of the home under conditions considered appropriate by both parties if the department considers the appointment desirable. (c) An agreement under this section must: (1) specify all terms and conditions of the trustee's appointment and authority; and (2) preserve all rights of the residents as granted by law. (d) The agreement terminates at the time specified by the parties or when either party notifies the other in writing that the party wishes to terminate the appointment agreement. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.094. INVOLUNTARY APPOINTMENT. (a) The department may request the attorney general to bring an action in the name and on behalf of the state for the appointment of a trustee to operate a home if: (1) the home is operating without a license; (2) the department has suspended or revoked the home's license; (3) license suspension or revocation procedures against the home are pending and the department determines that an imminent threat to the health and safety of the residents exists; (4) the department determines that an emergency exists that presents an immediate threat to the health and safety of the residents; or (5) the home is closing and arrangements for relocation of the residents to other licensed institutions have not been made before closure. (b) A trustee appointed under Subsection (a)(5) may only ensure an orderly and safe relocation of the home's residents as quickly as possible. (c) After a hearing, a court shall appoint a trustee to take charge of a home if the court finds that involuntary appointment of a trustee is necessary. (d) If possible, the court shall appoint as trustee an individual whose background includes institutional medical administration.Text of subsection (e) as added by Acts 1993, 73rd Leg., ch. 583, § 2 (e) Venue for an action brought under this section is in Travis County.Text of subsection (e) as added by Acts 1993, 73rd Leg., ch. 815, § 3 (e) Venue for actions brought under this section shall be in Travis County. (f) A court having jurisdiction of a judicial review of the matter may not order arbitration, whether on motion of any party or on the court's own motion, to resolve the legal issues of a dispute involving the: (1) appointment of a trustee under this section; or (2) conduct with respect to which the appointment of trustee is sought. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 583, § 2, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 815, § 3, eff. Sept. 1, 1993; Acts 1999, 76th Leg., ch. 1094, § 4, eff. Sept. 1, 1999. § 242.0945. QUALIFICATIONS OF TRUSTEES. (a) A court may appoint a person to serve as a trustee under this subchapter only if the proposed trustee can demonstrate to the court that the proposed trustee will be: (1) present at the home as required to perform the duties of a trustee; and (2) available on call to appropriate staff at the home, the department, and the court as necessary during the time the trustee is not present at the home. (b) A trustee shall report to the court in the event that the trustee is unable to satisfy the requirements of Subsection (a)(1) or (2). (c) On the motion of any party or on the court's own motion, the court may replace a trustee who is unable to satisfy the requirements of Subsection (a)(1) or (2). (d) A trustee's charges must separately identify personal hours worked for which compensation is claimed. A trustee's claim for personal compensation may include only compensation for activities related to the trusteeship and performed in or on behalf of the home. Added by Acts 1999, 76th Leg., ch. 439, § 1, eff. Sept. 1, 1999. § 242.0946. NEPOTISM PROHIBITION. A person serving as a trustee under this subchapter may not employ or otherwise appoint an individual to work with the trustee in the home who is related to the trustee within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code. Added by Acts 1999, 76th Leg., ch. 439, § 1, eff. Sept. 1, 1999. § 242.095. FEE; RELEASE OF FUNDS. (a) A trustee appointed under this subchapter is entitled to a reasonable fee as determined by the court. In determining the trustee's personal compensation for nursing facility administrator activities, the court shall consider reasonable a rate that is equal to 150 percent of the maximum allowable rate for an owner-administrator under the state's Medicaid reimbursement rules. The court shall determine the reasonableness of the trustee's personal compensation for other duties. On the motion of any party, the court shall review the reasonableness of the trustee's fees. The court shall reduce the amount if the court determines that the fees are not reasonable. (b) The trustee may petition the court to order the release to the trustee of any payment owed the trustee for care and services provided to the residents if the payment has been withheld, including a payment withheld by the Texas Department of Human Services at the recommendation of the department. (c) Withheld payments may include payments withheld by a governmental agency or other entity during the appointment of the trustee, such as payments: (1) for Medicaid, Medicare, or insurance; (2) by another third party; or (3) for medical expenses borne by the resident. (d) If the department appoints a trustee under this subchapter for a veterans home as defined by Section 164.002, Natural Resources Code, the Veterans' Land Board is responsible for the trustee's fee under this section. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 439, § 2, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 166, § 1, eff. May 27, 2003. § 242.096. NURSING AND CONVALESCENT HOME TRUST FUND AND EMERGENCY ASSISTANCE FUNDS. (a) The nursing and convalescent home trust fund is with the comptroller and shall be made available to the department for expenditures without legislative appropriation to make emergency assistance funds available to a home. (b) A trustee of a home may use the emergency assistance funds only to alleviate an immediate threat to the health or safety of the residents. The use may include payments for: (1) food; (2) medication; (3) sanitation services; (4) minor repairs; (5) supplies necessary for personal hygiene; or (6) services necessary for the personal care, health, and safety of the residents. (c) A court may order the department to disburse emergency assistance funds to a home if the court finds that: (1) the home has inadequate funds accessible to the trustee for the operation of the home; (2) there exists an emergency that presents an immediate threat to the health and safety of the residents; and (3) it is in the best interests of the health and safety of the residents that funds are immediately available. (d) The department shall disburse money from the nursing and convalescent home trust fund as ordered by the court in accordance with board rules. (e) Any unencumbered amount in the nursing and convalescent home trust fund in excess of $10,000,000 at the end of each fiscal year shall be transferred to the credit of the general revenue fund and may be appropriated only to the department for its use in administering and enforcing this chapter. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 1159, § 1.20, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1423, § 10.04, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1019, § 1, eff. Aug. 30, 1999. § 242.0965. ASSISTED LIVING FACILITY TRUST FUND AND EMERGENCY ASSISTANCE FUNDS. (a) The assisted living facility trust fund is a trust fund with the comptroller and shall be made available to the department for expenditures without legislative appropriation to make emergency assistance funds available to an assisted living facility. (b) A trustee of an assisted living facility may use the emergency assistance funds only to alleviate an immediate threat to the health or safety of the residents. The use may include payments for: (1) food; (2) medication; (3) sanitation services; (4) minor repairs; (5) supplies necessary for personal hygiene; or (6) services necessary for the personal care, health, and safety of the residents. (c) A court may order the department to disburse emergency assistance funds to an assisted living facility if the court finds that: (1) the assisted living facility has inadequate funds accessible to the trustee for the operation of the assisted living facility; (2) an emergency exists that presents an immediate threat to the health and safety of the residents; and (3) it is in the best interests of the health and safety of the residents that funds are immediately available. (d) The department shall disburse money from the assisted living facility trust fund as ordered by the court in accordance with board rules. (e) Any unencumbered amount in the assisted living facility trust fund in excess of $500,000 at the end of each fiscal year shall be transferred to the credit of the general revenue fund and may be appropriated only to the department for its use in administering and enforcing Chapter 247. Added by Acts 2001, 77th Leg., ch. 723, § 1, eff. June 13, 2001; Acts 2001, 77th Leg., ch. 1248, § 15, eff. Sept. 1, 2001. § 242.097. ADDITIONAL LICENSE FEE--NURSING AND CONVALESCENT HOMES. (a) In addition to the license fee provided by Section 242.034, the department shall adopt an annual fee to be charged and collected if the amount of the nursing and convalescent home trust fund is less than $10,000,000. The fee shall be deposited to the credit of the nursing and convalescent home trust fund created by this subchapter. (b) The department may charge and collect a fee under this section more than once each year only if necessary to ensure that the amount in the nursing and convalescent home trust fund is sufficient to make the disbursements required under Section 242.096. If the department makes a second or subsequent assessment under this subsection in any year, the department shall notify the governor and the members of the Legislative Budget Board. (c) The department shall set the fee for each nursing and convalescent home at $1 for each licensed unit of capacity or bed space in that home or in an amount necessary to provide not more than $10,000,000 in the fund. The total fees assessed in a year may not exceed $20 for each licensed unit of capacity or bed space in a home. (d) This section does not apply to a veterans home as defined by Section 164.002, Natural Resources Code. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 1159, § 1.21, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1019, § 2, eff. Aug. 30, 1999; Acts 2001, 77th Leg., ch. 723, § 2, eff. June 13, 2001; Acts 2001, 77th Leg., ch; 1248, § 16, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 166, § 2, eff. May 27, 2003. § 242.0975. ADDITIONAL LICENSE FEE--ASSISTED LIVING FACILITIES. (a) In addition to the license fee provided by Section 247.024, the department shall adopt an annual fee to be charged and collected if the amount of the assisted living facility trust fund is less than $500,000. The fee shall be deposited to the credit of the assisted living facility trust fund created by this subchapter. (b) The department may charge and collect a fee under this section more than once each year only if necessary to ensure that the amount in the assisted living facility trust fund is sufficient to make the disbursements required under Section 242.0965. If the department makes a second or subsequent assessment under this subsection in any year, the department shall notify the governor and the Legislative Budget Board. (c) The department shall set the fee on the basis of the number of beds in assisted living facilities required to pay the fee and in an amount necessary to provide not more than $500,000 in the assisted living facility trust fund. Added by Acts 2001, 77th Leg., ch. 723, § 1, eff. June 13, 2001; Acts 2001, 77th Leg., ch. 1248, § 15, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 1276, § 10.003, eff. Sept. 1, 2003. § 242.098. REIMBURSEMENT. (a) A home that receives emergency assistance funds under this subchapter shall reimburse the department for the amounts received, including interest. (b) Interest on unreimbursed amounts begins to accrue on the date on which the funds were disbursed to the home. The rate of interest is the rate determined under Section 304.003, Finance Code, to be applicable to judgments rendered during the month in which the money was disbursed to the home. (c) The owner of the home when the trustee was appointed is responsible for the reimbursement. (d) The amount that remains unreimbursed on the expiration of one year after the date on which the funds were received is delinquent and the Texas Department of Human Services may determine that the home is ineligible for a Medicaid provider contract. (e) The department shall deposit the reimbursement and interest received under this section to the credit of the nursing and convalescent home trust fund. (f) The attorney general shall institute an action to collect the funds due under this section at the request of the department. Venue for an action brought under this section is in Travis County. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 1396, § 35, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, § 7.64, eff. Sept. 1, 1999. § 242.099. APPLICABILITY OF OTHER LAW. Subtitle D, Title 10, Government Code does not apply to any payments made by a trustee under this subchapter. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 165, § 17.19(13), eff. Sept. 1, 1997. § 242.100. NOTIFICATION OF CLOSING. (a) A home that is closing temporarily or permanently, or voluntarily or involuntarily, shall notify the residents of the closing and make reasonable efforts to notify in writing each resident's nearest relative or the person responsible for the resident's support within a reasonable time before the closing. (b) If the closing of a home is ordered by the department or is in any other way involuntary, the home shall make the notification, orally or in writing, immediately on receiving notice of the closing. (c) If the closing of a home is voluntary, the home shall make the notification not later than one week after the date on which the decision to close is made. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.101. CRIMINAL PENALTY. (a) A home commits an offense if the home fails or refuses to comply with Section 242.100. (b) An offense under this section is a Class A misdemeanor. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.102. INELIGIBILITY FOR LICENSE. (a) A license holder or controlling person who operates a home for which a trustee is appointed under this subchapter and with respect to which emergency assistance funds, other than funds used to pay the expenses of the trustee, are used under this subchapter is subject to exclusion from eligibility for: (1) issuance of an original license for a home for which the person has not previously held a license; or (2) renewal of the license for the home for which the trustee is appointed. (b) Exclusion under this section is governed by Section 242.0615. Added by Acts 1999, 76th Leg., ch. 439, § 3, eff. Sept. 1, 1999.SUBCHAPTER E. REPORTS OF ABUSE AND NEGLECT § 242.121. DEFINITION. In this subchapter, "designated agency" means an agency designated by a court to be responsible for the protection of a resident who is the subject of a report of abuse or neglect. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.122. REPORTING OF ABUSE AND NEGLECT. (a) A person, including an owner or employee of an institution, who has cause to believe that the physical or mental health or welfare of a resident has been or may be adversely affected by abuse or neglect caused by another person shall report the abuse or neglect in accordance with this subchapter. (b) Each institution shall require each employee of the institution, as a condition of employment with the institution, to sign a statement that the employee realizes that the employee may be criminally liable for failure to report those abuses. (c) A person shall make an oral report immediately on learning of the abuse or neglect and shall make a written report to the same agency not later than the fifth day after the oral report is made. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.123. CONTENTS OF REPORT. (a) A report of abuse or neglect is nonaccusatory and reflects the reporting person's belief that a resident has been or will be abused or neglected or has died of abuse or neglect. (b) The report must contain: (1) the name and address of the resident; (2) the name and address of the person responsible for the care of the resident, if available; and (3) other relevant information. (c) Except for an anonymous report under Section 242.124, a report of abuse or neglect under Section 242.122 or of other conduct or conditions under Section 242.1225 should also include the address or phone number of the person making the report so that an investigator can contact the person for any necessary additional information. The phone number and address as well as the name of the person making the report must be deleted from any copy of any type of report that is released to the public, to the institution, or to an owner or agent of the institution. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 261, § 1, eff. May 28, 1999. § 242.124. ANONYMOUS REPORTS OF ABUSE OR NEGLECT. (a) An anonymous report of abuse or neglect, although not encouraged, shall be received and acted on in the same manner as an acknowledged report. (b) An anonymous report about a specific individual that accuses the individual of abuse or neglect need not be investigated. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 242.125. PROCESSING OF REPORTS. (a) A report of abuse or neglect shall be made to the department or a local or state law enforcement agency. A report made by an owner or employee of an institution relating to abuse or neglect or another complaint described by Section 242.126(c)(1) shall be made to the department and to the law enforcement agency described by Section 242.135(a). (b) Except as provided by Section 242.135, a local or state law enforcement agency that receives a report of abuse or neglect shall refer the report to the department or the designated agency. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 2003, 78th Leg., ch. 1210, § 1, eff. Sept. 1, 2003. § 242.126. INVESTIGATION AND REPORT OF DEPARTMENT OR DESIGNATED AGENCY. (a) The department or the designated agency shall make a thorough investigation after receiving an oral or written report of abuse or neglect under Section 242.122 or another complaint alleging abuse or neglect. (b) The primary purpose of the investigation is the protection of the resident. (c) The agency shall begin the investigation: (1) within 24 hours of receipt of the report or other allegation, if the report of abuse or neglect or other complaint alleges that: (A) a resident's health or safety is in imminent danger; (B) a resident has recently died because of conduct alleged in the report of abuse or neglect or other complaint; (C) a resident has been hospitalized or been treated in an emergency room because of conduct alleged in the report of abuse or neglect or other complaint; (D) a resident has been a victim of any act or attempted act described by Section 21.11, 22.011, or 22.021, Penal Code; or (E) a resident has suffered bodily injury, as that term is defined by Section 1.07, Penal Code, because of conduct alleged in the report of abuse or neglect or other complaint; or (2) before the end of the next working day after the date of receipt of the report of abuse or neglect or other complaint, if the report or complaint alleges the existence of circumstances that could result in abuse or neglect and that could place a resident's health or safety in imminent danger. (d) The department shall adopt rules governing the conduct of investigations, including procedures to ensure that the complainant and the resident, the resident's next of kin, and any person designated to receive information concerning the resident receive periodic information regarding the investigation. (e) In investigating the report of abuse or neglect or other complaint, the investigator for the investigating agency shall: (1) make an unannounced visit to the institution to determine the nature and cause of the alleged abuse or neglect of the resident; (2) interview each available witness, including the resident that suffered the alleged abuse or neglect if the resident is able to communicate or anoth