CHAPTER 252. INTERMEDIATE CARE FACILITIES FOR THE MENTALLY RETARDED

State Codes and Statutes

Statutes > Texas > Health-and-safety-code > Title-4-health-facilities > Chapter-252-intermediate-care-facilities-for-the-mentally-retarded

HEALTH AND SAFETY CODE

TITLE 4. HEALTH FACILITIES

SUBTITLE B. LICENSING OF HEALTH FACILITIES

CHAPTER 252. INTERMEDIATE CARE FACILITIES FOR THE MENTALLY

RETARDED

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 252.001. PURPOSE. The purpose of this chapter is to

promote the public health, safety, and welfare by providing for

the development, establishment, and enforcement of standards for

the provision of services to individuals residing in intermediate

care facilities for the mentally retarded and the establishment,

construction, maintenance, and operation of facilities providing

this service that, in light of advancing knowledge, will promote

quality in the delivery of services and treatment of residents.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.002. DEFINITIONS. In this chapter:

(1) "Board" means the Texas Board of Human Services.

(2) "Department" means the Texas Department of Human Services.

(3) "Designee" means a state agency or entity with which the

department contracts to perform specific, identified duties

related to the fulfillment of a responsibility prescribed by this

chapter.

(4) "Facility" means a home or an establishment that:

(A) furnishes food, shelter, and treatment or services to four

or more persons unrelated to the owner;

(B) is primarily for the diagnosis, treatment, or rehabilitation

of persons with mental retardation or related conditions; and

planning, 24-hour supervision, coordination, and integration of

health or rehabilitative services to help each resident function

at the resident's greatest ability.

(5) "Governmental unit" means the state or a political

subdivision of the state, including a county or municipality.

(6) "Person" means an individual, firm, partnership,

corporation, association, or joint stock company and includes a

legal successor of those entities.

(7) "Resident" means an individual, including a client, with

mental retardation or a related condition who is residing in a

facility licensed under this chapter.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.003. EXEMPTIONS. Except as otherwise provided by this

chapter, this chapter does not apply to an establishment that:

(1) provides training, habilitation, rehabilitation, or

education to individuals with mental retardation or a related

condition;

(2) is operated under the jurisdiction of a state or federal

agency, including the Department of Assistive and Rehabilitative

Services, Department of Aging and Disability Services, Department

of State Health Services, Health and Human Services Commission,

Texas Department of Criminal Justice, and Department of Veterans

Affairs;

(3) is certified through inspection or evaluation as meeting the

standards established by the state or federal agency; and

(4) is conducted by or for the adherents of a well-recognized

church or religious denomination for the purpose of providing

facilities for the care or treatment of the sick who depend

exclusively on prayer or spiritual means for healing, without the

use of any drug or material remedy, if the establishment complies

with safety, sanitary, and quarantine laws and rules.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

87, Sec. 25.094, eff. September 1, 2009.

Sec. 252.004. ALLOCATED FEDERAL MONEY. The department may

accept and use any money allocated by the federal government to

the department for administrative expenses.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.005. LANGUAGE REQUIREMENTS PROHIBITED. A facility may

not prohibit a resident or employee from communicating in the

person's native language with another resident or employee for

the purpose of acquiring or providing care, training, or

treatment.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.006. RIGHTS OF RESIDENTS. Each facility shall

implement and enforce Chapter 102, Human Resources Code.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.007. PAPERWORK REDUCTION RULES. (a) The department

and any designee of the department shall:

(1) adopt rules to reduce the amount of paperwork a facility

must complete and retain; and

(2) attempt to reduce the amount of paperwork to the minimum

amount required by state and federal law unless the reduction

would jeopardize resident safety.

(b) The department, any designee of the department, and each

facility shall work together to review rules and propose changes

in paperwork requirements so that additional time is available

for direct resident care.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.008. RULES GENERALLY. (a) The board shall adopt rules

related to the administration and implementation of this chapter.

(b) The department and the Texas Department of Mental Health and

Mental Retardation shall cooperate in developing proposed rules

under this section. Before the board adopts a rule applicable to

a facility, the board shall present the proposed rule to the

commissioner of mental health and mental retardation for review

of the effects of the proposed rule. Not later than the 31st day

after the date the proposed rule is received, the commissioner of

mental health and mental retardation shall provide the board a

written statement of the effects of the proposed rule. The board

shall consider the statement in adopting a rule under this

section.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997. Amended by Acts 2001, 77th Leg., ch. 160, Sec. 1, eff.

Sept. 1, 2001.

Sec. 252.0085. RESTRAINT AND SECLUSION. A person providing

services to a resident of a facility licensed by the department

under this chapter or operated by the department and exempt under

Section 252.003 from the licensing requirements of this chapter

shall comply with Chapter 322 and the rules adopted under that

chapter.

Added by Acts 2005, 79th Leg., Ch.

698, Sec. 4, eff. September 1, 2005.

Sec. 252.009. CONSULTATION AND COORDINATION. (a) Whenever

possible, the department shall:

(1) use the services of and consult with state and local

agencies in carrying out the department's functions under this

chapter; and

(2) use the facilities of the department or a designee of the

department, particularly in establishing and maintaining

standards relating to the humane treatment of residents.

(b) The department may cooperate with local public health

officials of a municipality or county in carrying out this

chapter and may delegate to those officials the power to make

inspections and recommendations to the department under this

chapter.

with a local agency of a municipality or county and may provide

advice to the municipality or county if the municipality or

county decides to supplement the state program with additional

rules required to meet local conditions.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.010. CHANGE OF ADMINISTRATORS; FEE. A facility that

hires a new administrator or other person designated as the chief

management officer for the facility shall:

(1) notify the department in writing of the change not later

than the 30th day after the date on which the change becomes

effective; and

(2) pay a $20 administrative fee to the department.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.011. PROHIBITION OF REMUNERATION. (a) A facility may

not receive monetary or other remuneration from a person or

agency that furnishes services or materials to the facility or

residents for a fee.

(b) The department may revoke the license of a facility that

violates Subsection (a).

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

SUBCHAPTER B. LICENSING, FEES, AND INSPECTIONS

Sec. 252.031. LICENSE REQUIRED. A person or governmental unit,

acting severally or jointly with any other person or governmental

unit, may not establish, conduct, or maintain a facility in this

state without a license issued under this chapter.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.0311. PERSON INELIGIBLE FOR LICENSE. (a) In this

section, "controlling person" means a person who, acting alone or

with others, has the ability to directly or indirectly influence,

direct, or cause the direction of the management, expenditure of

money, or policies of a facility or a person who operates a

facility. The term includes:

(1) a management company or other business entity that operates

or contracts with others for the operation of a facility;

(2) a person who is a controlling person of a management company

or other business entity that operates a facility or that

contracts with another person for the operation of a facility;

and

(3) any other individual who, because of a personal, familial,

or other relationship with the owner, manager, or provider of a

facility, is in a position of actual control or authority with

respect to the facility, without regard to whether the individual

is formally named as an owner, manager, director, officer,

provider, consultant, contractor, or employee of the facility.

(b) A controlling person described by Subsection (a)(3) does not

include an employee, lender, secured creditor, or other person

who does not exercise formal or actual influence or control over

the operation of a facility.

Commission may adopt rules that specify the ownership interests

and other relationships that qualify a person as a controlling

person.

(d) A person is not eligible for a license or to renew a license

if the applicant, a controlling person with respect to the

applicant, or an administrator or chief financial officer of the

applicant has been convicted of an offense that would bar a

person's employment at a facility in accordance with Chapter 250.

Added by Acts 2009, 81st Leg., R.S., Ch.

284, Sec. 10, eff. June 11, 2009.

Sec. 252.032. LICENSE APPLICATION. (a) An application for a

license is made to the department on a form provided by the

department and must be accompanied by the license fee adopted

under Section 252.034.

(b) The application must contain information that the department

requires. The department may require affirmative evidence of

ability to comply with the standards and rules adopted under this

chapter.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.033. ISSUANCE AND RENEWAL OF LICENSE. (a) After

receiving the application, the department shall issue a license

if, after inspection and investigation, it finds that the

applicant and facility meet the requirements established under

this chapter.

(b) The department may issue a license only for:

(1) the premises and persons or governmental unit named in the

application; and

(2) the maximum number of beds specified in the application.

(d) A license is renewable on the second anniversary of issuance

or renewal of the license after:

(1) an inspection;

(2) filing and approval of a renewal report; and

(3) payment of the renewal fee.

(e) The renewal report required under Subsection (d)(2) must be

filed in accordance with rules adopted by the department that

specify the form of the report, the date it must be submitted,

and the information it must contain.

(f) The department may not issue a license for new beds or an

expansion of an existing facility under this chapter unless the

addition of new beds or the expansion is included in the plan

approved by the Health and Human Services Commission in

accordance with Section 533.062.

(g) A license or renewal fee imposed under this chapter is an

allowable cost for reimbursement under the state Medicaid

program. An increase in the amount of a fee shall be reflected in

reimbursement rates prospectively.

(h) The department by rule shall define specific, appropriate,

and objective criteria on which it may deny an initial license

application or license renewal or revoke a license.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997. Amended by Acts 1999, 76th Leg., ch. 534, Sec. 1, eff.

Sept. 1, 1999.

Sec. 252.034. LICENSE FEES. (a) The board by rule may adopt a

fee for a license issued under this chapter. The fee may not

exceed $150 plus $5 for each unit of capacity or bed space for

which the license is sought.

(b) The license fee must be paid with each application for an

initial license or for a renewal or change of ownership of a

license.

license fee.

(d) The board may adopt an additional fee for the approval of an

increase in bed space.

(e) All license fees collected under this section shall be

deposited in the state treasury to the credit of the department

and may be appropriated to the department to administer and

enforce this chapter.

(f) An applicant who submits an application for license renewal

later than the 45th day before the expiration date of a current

license is subject to a late fee in accordance with department

rules.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

809, Sec. 19, eff. September 1, 2007.

Sec. 252.035. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE. (a)

The department, after providing notice and opportunity for a

hearing to the applicant or license holder, may deny, suspend, or

revoke a license if the department finds that the applicant or

license holder has substantially failed to comply with the

requirements established under this chapter.

(b) The status of an applicant for a license or a license holder

is preserved until final disposition of the contested matter,

except as the court having jurisdiction of a judicial review of

the matter may order in the public interest for the welfare and

safety of the residents.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.036. MINIMUM STANDARDS. The board may adopt, publish,

and enforce minimum standards relating to:

(1) the construction or remodeling of a facility, including

plumbing, heating, lighting, ventilation, and other housing

conditions, to ensure the residents' health, safety, comfort, and

protection from fire hazard;

(2) sanitary and related conditions in a facility and its

surroundings, including water supply, sewage disposal, food

handling, and general hygiene in order to ensure the residents'

health, safety, and comfort;

(3) equipment essential to the residents' health and welfare;

(4) the reporting and investigation of injuries, incidents, and

unusual accidents and the establishment of other policies and

procedures necessary to ensure resident safety;

(5) behavior management, including use of seclusion and physical

restraints;

(6) policies and procedures for the control of communicable

diseases in employees and residents;

(7) the use and administration of medication in conformity with

applicable law and rules for pharmacy services;

(8) specialized nutrition support such as delivery of enteral

feedings and parenteral nutrients;

(9) requirements for in-service education of each employee who

has any contact with residents;

(10) the regulation of the number and qualification of all

personnel, including management and professional support

personnel, responsible for any part of the care given to

residents; and

(11) the quality of life and the provision of active treatment

to residents.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.037. REASONABLE TIME TO COMPLY. The board by rule

shall give a facility that is in operation when a rule or

standard is adopted under this chapter a reasonable time to

comply with the rule or standard.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.0375. EARLY COMPLIANCE REVIEW. (a) The department by

rule shall adopt a procedure under which a person proposing to

construct or modify a facility may submit building plans to the

department for review for compliance with the department's

architectural requirements before beginning construction or

modification. In adopting the procedure, the department shall set

reasonable deadlines by which the department must complete review

of submitted plans.

(b) The department shall, within 30 days, review plans submitted

under this section for compliance with the department's

architectural requirements and inform the person in writing of

the results of the review. If the plans comply with the

department's architectural requirements, the department may not

subsequently change the architectural requirements applicable to

the project unless:

(1) the change is required by federal law; or

(2) the person fails to complete the project within a reasonable

time.

review under this section.

(d) A fee collected under this section shall be deposited in the

general revenue fund and may be appropriated only to the

department to conduct reviews under this section.

(e) The review procedure provided by this section does not

include review of building plans for compliance with the Texas

Accessibility Standards as administered and enforced.

Added by Acts 2001, 77th Leg., ch. 339, Sec. 3, eff. Sept. 1,

2001.

Sec. 252.038. FIRE SAFETY REQUIREMENTS. (a) A facility shall

comply with fire safety requirements established under this

section.

(b) The board by rule shall adopt the fire safety standards

applicable to the facility. The fire safety standards must be the

same as the fire safety standards established by an edition of

the Life Safety Code of the National Fire Protection Association.

If required by federal law or regulation, the edition selected

may be different for facilities or portions of facilities

operated or approved for construction at different times.

September 1, 1997, must comply with the fire safety standards,

including fire safety standards imposed by municipal ordinance,

applicable to the facility on that date.

(d) The rules adopted under this section do not prevent a

facility licensed under this chapter from voluntarily conforming

to fire safety standards that are compatible with, equal to, or

more stringent than those adopted by the board.

(e) Notwithstanding any other provision of this section, a

municipality may enact additional and more stringent fire safety

standards applicable to new construction begun on or after

September 1, 1997.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.039. POSTING. Each facility shall prominently and

conspicuously post for display in a public area of the facility

that is readily available to residents, employees, and visitors:

(1) the license issued under this chapter;

(2) a sign prescribed by the department that specifies complaint

procedures established under this chapter or rules adopted under

this chapter and that specifies how complaints may be registered

with the department;

(3) a notice in a form prescribed by the department stating that

inspection and related reports are available at the facility for

public inspection and providing the department's toll-free

telephone number that may be used to obtain information

concerning the facility;

(4) a concise summary of the most recent inspection report

relating to the facility;

(5) a notice providing instructions for reporting an allegation

of abuse, neglect, or exploitation to the Department of Family

and Protective Services; and

(6) a notice that employees, other staff, residents, volunteers,

and family members and guardians of residents are protected from

discrimination or retaliation as provided by Sections 252.132 and

252.133.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997. Amended by Acts 2001, 77th Leg., ch. 192, Sec. 3, eff.

Sept. 1, 2001.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

284, Sec. 11, eff. June 11, 2009.

Sec. 252.040. INSPECTIONS. (a) The department or the

department's designee may make any inspection, survey, or

investigation that it considers necessary and may enter the

premises of a facility at reasonable times to make an inspection,

survey, or investigation in accordance with board rules.

(b) The department is entitled to access to books, records, and

other documents maintained by or on behalf of a facility to the

extent necessary to enforce this chapter and the rules adopted

under this chapter.

to have consented to entry and inspection of the facility by a

representative of the department in accordance with this chapter.

(d) The department shall establish procedures to preserve all

relevant evidence of conditions the department finds during an

inspection, survey, or investigation that the department

reasonably believes threaten the health and safety of a resident.

The procedures may include photography or photocopying of

relevant documents, such as license holder's notes, physician's

orders, and pharmacy records, for use in any legal proceeding.

(e) When photographing a resident, the department:

(1) shall respect the privacy of the resident to the greatest

extent possible; and

(2) may not make public the identity of the resident.

(f) A facility, an officer or employee of a facility, and a

resident's attending physician are not civilly liable for

surrendering confidential or private material under this section,

including physician's orders, pharmacy records, notes and

memoranda of a state office, and resident files.

(g) The department shall establish in clear and concise language

a form to summarize each inspection report and complaint

investigation report.

(h) The department shall establish proper procedures to ensure

that copies of all forms and reports under this section are made

available to consumers, service recipients, and the relatives of

service recipients as the department considers proper.

(i) The department shall have specialized staff conduct

inspections, surveys, or investigations of facilities under this

section.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997. Amended by Acts 2001, 77th Leg., ch. 160, Sec. 2, eff.

Sept. 1, 2001.

Sec. 252.041. UNANNOUNCED INSPECTIONS. (a) Each licensing

period, the department shall conduct at least two unannounced

inspections of each facility.

(b) In order to ensure continuous compliance, the department

shall randomly select a sufficient percentage of facilities for

unannounced inspections to be conducted between 5 p.m. and 8 a.m.

Those inspections must be cursory to avoid to the greatest extent

feasible any disruption of the residents.

(d) As considered appropriate and necessary by the department,

the department may invite at least one person as a citizen

advocate to participate in inspections. The invited advocate must

be an individual who has an interest in or who is employed by or

affiliated with an organization or entity that represents,

advocates for, or serves individuals with mental retardation or a

related condition.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.042. DISCLOSURE OF UNANNOUNCED INSPECTIONS; CRIMINAL

PENALTY. (a) Except as expressly provided by this chapter, a

person commits an offense if the person intentionally, knowingly,

or recklessly discloses to an unauthorized person the date, time,

or any other fact about an unannounced inspection of a facility

before the inspection occurs.

(b) In this section, "unauthorized person" does not include:

(1) the department;

(2) the office of the attorney general;

(3) a representative of an agency or organization when a

Medicaid survey is made concurrently with a licensing inspection;

(4) any other person or entity authorized by law to make an

inspection or to accompany an inspector.

(d) A person convicted under this section is not eligible for

state employment.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.043. LICENSING SURVEYS. The department shall provide a

team to conduct surveys to validate findings of licensing

surveys. The purpose of a validation survey is to assure that

survey teams throughout the state survey in a fair and consistent

manner. A facility subjected to a validation survey must correct

deficiencies cited by the validation team but is not subject to

punitive action for those deficiencies.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.044. REPORTING VIOLATIONS. (a) The department or the

department's representative conducting an inspection, survey, or

investigation under this chapter shall:

(1) list each violation of a law or rule on a form designed by

the department for inspections; and

(2) identify the specific law or rule the facility violates.

(b) At the conclusion of an inspection, survey, or investigation

under this chapter, the department or the department's

representative conducting the inspection, survey, or

investigation shall discuss the violations with the facility's

management in an exit conference. The department or the

department's representative shall leave a written list of the

violations with the facility and the person designated by the

facility to receive notice under Section 252.066 at the time of

the exit conference. If the department or the department's

representative discovers any additional violations during the

review of field notes or preparation of the official final list,

the department or the department's representative shall give the

facility an additional exit conference regarding the additional

violations. An additional exit conference must be held in person

and may not be held by telephone, e-mail, or facsimile

transmission.

to the regional director not later than the 10th working day

after the date the facility receives the final official statement

of violations.

Added by Acts 1999, 76th Leg., ch. 534, Sec. 2, eff. Sept. 1,

1999.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

974, Sec. 6, eff. September 1, 2007.

Sec. 252.045. ADMISSIBILITY OF CERTAIN DOCUMENTS OR TESTIMONY.

Sections 32.021(i) and (k), Human Resources Code, govern the

admissibility in a civil action against a facility of:

(1) a record of the department described by Section 32.021(i),

Human Resources Code; or

(2) the testimony of a department surveyor or investigator

described by Section 32.021(k), Human Resources Code.

Added by Acts 2001, 77th Leg., ch. 1284, Sec. 3.03, eff. June 15,

2001.

SUBCHAPTER C. GENERAL ENFORCEMENT

Sec. 252.061. EMERGENCY SUSPENSION OR CLOSING ORDER. (a) The

department shall suspend a facility's license or order an

immediate closing of part of the facility if:

(1) the department finds the facility is operating in violation

of the standards prescribed by this chapter; and

(2) the violation creates an immediate threat to the health and

safety of a resident.

(b) The board by rule shall provide for the placement of

residents during the facility's suspension or closing to ensure

their health and safety.

facility under this section is immediately effective on the date

on which the license holder receives written notice or a later

date specified in the order.

(d) An order suspending a license or ordering an immediate

closing of a part of a facility is valid for 10 days after the

effective date of the order.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.062. INJUNCTION. (a) The department may petition a

district court for a temporary restraining order to restrain a

person from continuing a violation of the standards prescribed by

this chapter if the department finds that the violation creates

an immediate threat to the health and safety of the facility's

residents.

(b) A district court, on petition of the department, may by

injunction:

(1) prohibit a person from continuing a violation of the

standards or licensing requirements prescribed by this chapter;

(2) restrain or prevent the establishment, conduct, management,

or operation of a facility without a license issued under this

chapter; or

(3) grant the injunctive relief warranted by the facts on a

finding by the court that a person is violating the standards or

licensing requirements prescribed by this chapter.

bring and conduct on behalf of the state a suit authorized by

this section.

(d) A suit for a temporary restraining order or other injunctive

relief must be brought in Travis County or the county in which

the alleged violation occurs.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997. Amended by Acts 1999, 76th Leg., ch. 192, Sec. 1, eff.

Sept. 1, 1999.

Sec. 252.063. LICENSE REQUIREMENTS; CRIMINAL PENALTY. (a) A

person commits an offense if the person violates Section 252.031.

(b) An offense under this section is punishable by a fine of not

more than $1,000 for the first offense and not more than $500 for

each subsequent offense.

separate offense.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.064. CIVIL PENALTY. (a) A person who violates this

chapter or a rule adopted under this chapter is liable for a

civil penalty of not less than $100 or more than $10,000 for each

violation if the department determines the violation threatens

the health and safety of a resident.

(b) Each day of a continuing violation constitutes a separate

ground for recovery.

institute an action in a district court to collect a civil

penalty under this section. Any amount collected shall be

remitted to the comptroller for deposit to the credit of the

general revenue fund.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997. Amended by Acts 1999, 76th Leg., ch. 23, Sec. 1, eff. May

3, 1999.

Sec. 252.065. ADMINISTRATIVE PENALTY. (a) The department may

assess an administrative penalty against a person who:

(1) violates this chapter or a rule, standard, or order adopted

or license issued under this chapter;

(2) makes a false statement, that the person knows or should

know is false, of a material fact:

(A) on an application for issuance or renewal of a license or in

an attachment to the application; or

(B) with respect to a matter under investigation by the

department;

(3) refuses to allow a representative of the department to

inspect:

(A) a book, record, or file required to be maintained by the

institution; or

(B) any portion of the premises of an institution;

(4) wilfully interferes with the work of a representative of the

department or the enforcement of this chapter;

(5) wilfully interferes with a representative of the department

preserving evidence of a violation of this chapter or a rule,

standard, or order adopted or license issued under this chapter;

(6) fails to pay a penalty assessed by the department under this

chapter not later than the 10th day after the date the assessment

of the penalty becomes final;

(7) fails to submit a plan of correction within 10 days after

receiving a statement of licensing violations; or

(8) fails to notify the department of a change in ownership

before the effective date of that change of ownership.

(b) The penalty for a facility with fewer than 60 beds shall be

not less than $100 or more than $1,000 for each violation. The

penalty for a facility with 60 beds or more shall be not less

than $100 or more than $5,000 for each violation. The total

amount of the penalty assessed for a violation continuing or

occurring on separate days under this subsection may not exceed

$5,000 for a facility with fewer than 60 beds or $25,000 for a

facility with 60 beds or more. Each day a violation occurs or

continues is a separate violation for purposes of imposing a

penalty.

which an administrative penalty may be assessed. In determining

which violations warrant penalties, the department shall

consider:

(1) the seriousness of the violation, including the nature,

circumstances, extent, and gravity of the violation and the

hazard of the violation to the health or safety of clients; and

(2) whether the affected facility had identified the violation

as a part of its internal quality assurance process and had made

appropriate progress on correction.

(d) The department by rule shall establish a specific and

detailed schedule of appropriate and graduated penalties for each

violation based on:

(1) the seriousness of the violation, including the nature,

circumstances, extent, and gravity of the violation and the

hazard of the violation to the health or safety of clients;

(2) the history of previous violations;

(3) whether the affected facility had identified the violation

as a part of its internal quality assurance process and had made

appropriate progress on correction;

(4) the amount necessary to deter future violations;

(5) efforts made to correct the violation;

(6) the size of the facility; and

(7) any other matters that justice may require.

(e) The department by rule shall provide the facility with a

reasonable period of time, not less than 45 days, following the

first day of a violation to correct the violation before

assessing an administrative penalty if a plan of correction has

been implemented. This subsection does not apply to a violation

described by Subsections (a)(2)-(8) or to a violation that the

department determines:

(1) has resulted in serious harm to or the death of a resident;

(2) constitutes a serious threat to the health or safety of a

resident; or

(3) substantially limits the institution's capacity to provide

care.

(f) The department may not assess an administrative penalty for

a minor violation if the person corrects the violation not later

than the 46th day after the date the person receives notice of

the violation.

(g) The department shall establish a system to ensure standard

and consistent application of penalties regardless of the

facility location.

(h) All proceedings for the assessment of an administrative

penalty under this chapter are subject to Chapter 2001,

Government Code.

(i) The department may not assess an administrative penalty

against a state agency.

(j) Notwithstanding any other provision of this section, an

administrative penalty ceases to be incurred on the date a

violation is corrected. The administrative penalty ceases to be

incurred only if the facility:

(1) notifies the department in writing of the correction of the

violation and of the date the violation was corrected; and

(2) shows later that the violation was corrected.

(k) Rules adopted under this section shall include specific,

appropriate, and objective criteria that describe the scope and

severity of a violation that results in a recommendation for each

specific penalty.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997. Amended by Acts 1999, 76th Leg., ch. 534, Sec. 3, eff.

Sept. 1, 1999.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

809, Sec. 20, eff. September 1, 2007.

Sec. 252.0651. APPLICATION OF OTHER LAW. The department may not

assess more than one monetary penalty under this chapter for a

violation arising out of the same act or failure to act.

Added by Acts 1999, 76th Leg., ch. 534, Sec. 4, eff. Sept. 1,

1999.

Sec. 252.066. NOTICE; REQUEST FOR HEARING. (a) If, after

investigation of a possible violation and the facts surrounding

that possible violation, the department determines that a

violation has occurred, the department shall give written notice

of the violation to the person designated by the facility to

receive notice. The notice shall include:

(1) a brief summary of the alleged violation;

(2) a statement of the amount of the proposed penalty based on

the factors listed in Section 252.065(d); and

(3) a statement of the person's right to a hearing on the

occurrence of the violation, the amount of the penalty, or both

the occurrence of the violation and the amount of the penalty.

(b) Not later than the 20th day after the date on which the

notice is received, the person notified may accept the

determination of the department made under this section,

including the proposed penalty, or may make a written request for

a hearing on that determination.

accepts the determination of the department or if the person

fails to respond in a timely manner to the notice, the

commissioner of human services or the commissioner's designee

shall issue an order approving the determination and ordering

that the person pay the proposed penalty.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997. Amended by Acts 1999, 76th Leg., ch. 534, Sec. 5, eff.

Sept. 1, 1999.

Sec. 252.067. HEARING; ORDER. (a) If the person notified

requests a hearing, the department shall:

(1) set a hearing;

(2) give written notice of the hearing to the person; and

(3) designate a hearings examiner to conduct the hearing.

(b) The hearings examiner shall make findings of fact and

conclusions of law and shall promptly issue to the commissioner

of human services or the commissioner's designee a proposal for

decision as to the occurrence of the violation and a

recommendation as to the amount of the proposed penalty if a

penalty is determined to be warranted.

recommendations of the hearings examiner, the commissioner of

human services or the commissioner's designee by order may find

that a violation has occurred and may assess a penalty or may

find that no violation has occurred.

Added by Acts 1999, 76th Leg., ch. 534, Sec. 6, eff. Sept. 1,

1999.

Sec. 252.068. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;

JUDICIAL REVIEW; REFUND. (a) The department shall give notice

of the order under Section 252.067(c) to the person alleged to

have committed the violation and the person designated by the

facility to receive notice under Section 252.066. The notice must

include:

(1) separate statements of the findings of fact and conclusions

of law;

(2) the amount of any penalty assessed; and

(3) a statement of the right of the person to judicial review of

the order.

(b) Not later than the 30th day after the date on which the

decision becomes final as provided by Chapter 2001, Government

Code, the person shall:

(1) pay the penalty; or

(2) file a petition for judicial review contesting the

occurrence of the violation, the amount of the penalty, or both

the occurrence of the violation and the amount of the penalty.

(b)(2) may:

(1) stay enforcement of the penalty by:

(A) paying the penalty to the court for placement in an escrow

account; or

(B) giving to the court a supersedeas bond that is approved by

the court for the amount of the penalty and that is effective

until all judicial review of the order becomes final; or

(2) request the court to stay enforcement of the penalty by:

(A) filing with the court a sworn affidavit of the person

stating that the person is financially unable to pay the amount

of the penalty and is financially unable to give the supersedeas

bond; and

(B) giving a copy of the affidavit to the department by

certified mail.

(d) If the department receives a copy of an affidavit under

Subsection (c)(2), the department may file with the court, within

10 days after the date the copy is received, a contest to the

affidavit. The court shall hold a hearing on the facts alleged in

the affidavit as soon as practicable and shall stay the

enforcement of the penalty on finding that the alleged facts are

true. The person who files an affidavit has the burden of proving

that the person is financially unable to pay the penalty and to

give a supersedeas bond.

(e) If the person does not pay the penalty and the enforcement

of the penalty is not stayed, the department may refer the matter

to the attorney general for collection of the penalty.

(f) Judicial review of the order:

(1) is instituted by filing a petition as provided by Subchapter

G, Chapter 2001, Government Code; and

(2) is under the substantial evidence rule.

(g) If the court sustains the occurrence of the violation, the

court may uphold or reduce the amount of the penalty and order

the person to pay the full or reduced amount of the penalty. If

the court does not sustain the occurrence of the violation, the

court shall order that no penalty is owed.

(h) When the judgment of the court becomes final, the court

shall proceed under this subsection. If the person paid the

amount of the penalty under Subsection (c)(1)(A) and if that

amount is reduced or is not upheld by the court, the court shall

order that the appropriate amount plus accrued interest be

remitted to the person. The rate of the interest is the rate

charged on loans to depository institutions by the New York

Federal Reserve Bank, and the interest shall be paid for the

period beginning on the date the penalty was paid and ending on

the date the penalty is remitted. If the person gave a

supersedeas bond and if the penalty is not upheld by the court,

the court shall order the release of the escrow account or bond.

If the person gave a supersedeas bond and if the amount of the

penalty is reduced, the court shall order the release of the bond

after the person pays the amount.

Added by Acts 1999, 76th Leg., ch. 534, Sec. 6, eff. Sept. 1,

1999.

Sec. 252.069. USE OF ADMINISTRATIVE PENALTY. An administrative

penalty collected under this subchapter may be appropriated for

the purpose of funding the grant program established under

Section 161.074, Human Resources Code.

Added by Acts 1999, 76th Leg., ch. 534, Sec. 6, eff. Sept. 1,

1999.

Amended by:

Acts 2005, 79th Leg., Ch.

786, Sec. 4, eff. September 1, 2005.

Sec. 252.070. EXPENSES AND COSTS FOR COLLECTION OF CIVIL OR

ADMINISTRATIVE PENALTY. (a) If the attorney general brings an

action against a person under Section 252.062 or 252.064 or to

enforce an administrative penalty assessed under Section 252.065

and an injunction is granted against the person or the person is

found liable for a civil or administrative penalty, the attorney

general may recover, on behalf of the attorney general and the

department, reasonable expenses and costs.

(b) For purposes of this section, reasonable expenses and costs

include expenses incurred by the department and the attorney

general in the investigation, initiation, and prosecution of an

action, including reasonable investigative costs, attorney's

fees, witness fees, and deposition expenses.

Added by Acts 1999, 76th Leg., ch. 534, Sec. 6, eff. Sept. 1,

1999.

Text of section as amended by Acts 2001, 77th Leg., ch. 619, Sec.

Sec. 252.071. AMELIORATION OF VIOLATION. (a) In lieu of

demanding payment of an administrative penalty authorized by this

subchapter, the department may allow a person subject to the

penalty to use, under the supervision of the department, all or

part of the amount of the penalty to ameliorate the violation or

to improve services, other than administrative services, in the

facility affected by the violation.

(b) The department shall offer amelioration to a person for a

charged violation if the department determines that the violation

does not constitute immediate jeopardy to the health and safety

of a facility resident.

department determines that the charged violation constitutes

immediate jeopardy to the health and safety of a facility

resident.

(d) The department shall offer amelioration to a person under

this section not later than the 10th day after the date the

person receives from the department a final notification of

assessment of administrative penalty that is sent to the person

after an informal dispute resolution process but before an

administrative hearing under Section 252.067.

(e) A person to whom amelioration has been offered must file a

plan for amelioration not later than the 45th day after the date

the person receives the offer of amelioration from the

department. In submitting the plan, the person must agree to

waive the person's right to an administrative hearing under

Section 252.067 if the department approves the plan.

(f) At a minimum, a plan for amelioration must:

(1) propose changes to the management or operation of the

facility that will improve services to or quality of care of

residents of the facility;

(2) identify, through measurable outcomes, the ways in which and

the extent to which the proposed changes will improve services to

or quality of care of residents of the facility;

(3) establish clear goals to be achieved through the proposed

changes;

(4) establish a timeline for implementing the proposed changes;

and

(5) identify specific actions necessary to implement the

proposed changes.

(g) A plan for amelioration may include proposed changes to:

(1) improve staff recruitment and retention;

(2) offer or improve dental services for residents; and

(3) improve the overall quality of life for residents.

(h) The department may require that an amelioration plan propose

changes that would result in conditions that exceed the

requirements of this chapter or the rules adopted under this

chapter.

(i) The department shall approve or deny an amelioration plan

not later than the 45th day after the date the department

receives the plan. On approval of a person's plan, the department

shall deny a pending request for a hearing submitted by the

person under Section 252.066(b).

(j) The department may not offer amelioration to a person:

(1) more than three times in a two-year period; or

(2) more than one time in a two-year period for the same or

similar violation.

(k) In this section, "immediate jeopardy to health and safety"

means a situation in which there is a high probability that

serious harm or injury to a resident could occur at any time or

already has occurred and may occur again if the resident is not

protected from the harm or if the threat is not removed.

Added by Acts 1999, 76th Leg., ch. 534, Sec. 6, eff. Sept. 1,

1999. Amended by Acts 2001, 77th Leg., ch. 619, Sec. 2, eff.

Sept. 1, 2001.

Text of section as amended by Acts 2001, 77th Leg., ch. 1284,

Sec. 8.02

Sec. 252.071. AMELIORATION OF VIOLATION. (a) In lieu of

demanding payment of an administrative penalty authorized by this

subchapter, the department may allow a person subject to the

penalty to use, under the supervision of the department, all or

part of the amount of the penalty to ameliorate the violation or

to improve services, other than administrative services, in the

facility affected by the violation.

(b) The department shall offer amelioration to a person for a

charged violation if the department determines that the violation

does not constitute immediate jeopardy to the health and safety

of a facility resident.

department determines that the charged violation constitutes

immediate jeopardy to the health and safety of a facility

resident.

(d) The department shall offer amelioration to a person under

this section not later than the 10th day after the date the

person receives from the department a final notification of

assessment of administrative penalty that is sent to the person

after an informal dispute resolution process but before an

administrative hearing under Section 252.067.

(e) A person to whom amelioration has been offered must file a

plan for amelioration not later than the 45th day after the date

the person receives the offer of amelioration from the

department. In submitting the plan, the person must agree to

waive the person's right to an administrative hearing under

Section 252.067 if the department approves the plan.

(f) At a minimum, a plan for amelioration must:

(1) propose changes to the management or operation of the

facility that will improve services to or quality of care of

residents of the facility;

(2) identify, through measurable outcomes, the ways in which and

the extent to which the proposed changes will improve services to

or quality of care of residents of the facility;

(3) establish clear goals to be achieved through the proposed

changes;

(4) establish a timeline for implementing the proposed changes;

and

(5) identify specific actions necessary to implement the

proposed changes.

(g) The department may require that an amelioration plan propose

changes that would result in conditions that exceed the

requirements of this chapter or the rules adopted under this

chapter.

(h) The department shall approve or deny an amelioration plan

not later than the 45th day after the date the department

receives the plan. On approval of a person's plan, the department

shall deny a pending request for a hearing submitted by the

person under Section 252.066(b).

(i) The department may not offer amelioration to a person:

(1) more than three times in a two-year period; or

(2) more than one time in a two-year period for the same or

similar violation.

(j) In this section, "immediate jeopardy to health and safety"

means a situation in which immediate corrective action is

necessary because the facility's noncompliance with one or more

requirements has caused, or is likely to cause, serious injury,

harm, impairment, or death to a resident receiving care in the

facility.

Added by Acts 1999, 76th Leg., ch. 534, Sec. 6, eff. Sept. 1,

1999. Amended by Acts 2001, 77th Leg., ch. 1284, Sec. 8.02, eff.

June 15, 2001.

SUBCHAPTER D. TRUSTEES FOR FACILITIES

Sec. 252.091. FINDINGS AND PURPOSE. (a) The legislature finds

that, under some circumstances, closing a facility for a

violation of a law or rule may:

(1) have an adverse effect on the facility's residents and their

families; and

(2) result in a lack of readily available financial resources to

meet the basic needs of the residents for food, shelter,

medication, and personal services.

(b) The purpose of this subchapter is to provide for:

(1) the appointment of a trustee to assume the operations of the

facility in a manner that emphasizes resident care and reduces

resident trauma; and

(2) a fund to assist a court-appointed trustee in meeting the

basic needs of the residents.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.092. APPOINTMENT BY AGREEMENT. (a) A person who holds

a controlling interest in a facility may request the department

to assume the operation of the facility through the appointment

of a trustee under this subchapter.

(b) After receiving the request, the department may enter into

an agreement providing for the appointment of a trustee to take

charge of the facility under conditions both parties consider

appropriate if the department considers the appointment

desirable.

(1) specify the terms and conditions of the trustee's

appointment and authority; and

(2) preserve the rights of the residents as granted by law.

(d) The agreement terminates at the time:

(1) specified by the parties; or

(2) either party notifies the other in writing that the party is

terminating the appointment agreement.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.093. INVOLUNTARY APPOINTMENT. (a) The department may

request the attorney general to bring an action on behalf of the

state for the appointment of a trustee to operate a facility if:

(1) the facility is operating without a license;

(2) the department has suspended or revoked the facility's

license;

(3) license suspension or revocation procedures against the

facility are pending and the department determines that an

imminent threat to the health and safety of the residents exists;

(4) the department determines that an emergency exists that

presents an immediate threat to the health and safety of the

residents; or

(5) the facility is closing and arrangements for relocation of

the residents to other licensed facilities have not been made

before closure.

(b) A trustee appointed under Subsection (a)(5) may only ensure

an orderly and safe relocation of the facility's residents as

quickly as possible.

charge of a facility if the court finds that involuntary

appointment of a trustee is necessary.

(d) If possible, the court shall appoint as trustee an

individual whose background includes mental retardation service

administration.

(e) An action under this section must be brought in Travis

County or the county in which the violation is alleged to have

occurred.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997. Amended by Acts 1999, 76th Leg., ch. 192, Sec. 2, eff.

Sept. 1, 1999.

Sec. 252.094. FEE; RELEASE OF MONEY. (a) A trustee appointed

under this subchapter is entitled to a reasonable fee as

determined by the court.

(b) The trustee may petition the court to order the release to

the trustee of any payment owed the trustee for care and services

provided to the residents if the payment has been withheld,

including a payment withheld by a governmental agency or other

entity during the appointment of the trustee, such as payments:

(1) for Medicaid or insurance;

(2) by a third party; or

(3) for medical expenses borne by the residents.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.095. EMERGENCY ASSISTANCE FEE. (a) In addition to the

licensing and renewal fee collected under Section 252.034, the

department may collect an annual fee to be used to make emergency

assistance money available to a facility licensed under this

chapter.

(b) The fee collected under this section shall be in the amount

prescribed by Section 242.097(b) and shall be deposited to the

credit of the nursing and convalescent home trust fund

established under Section 242.096.

facility licensed under this chapter to alleviate an immediate

threat to the health or safety of the facility's residents.

Payments under this section may include payments described by

Section 242.096(b).

(d) A court may order the department to disburse emergency

assistance money to a trustee for a facility licensed under this

chapter if the court makes the findings provided by Section

242.096(c).

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.096. REIMBURSEMENT. (a) A facility that receives

emergency assistance money under this subchapter shall reimburse

the department for the amounts received, including interest.

(b) Interest on unreimbursed amounts begins to accrue on the

date on which the money is disbursed to the facility. The rate of

interest is the rate determined under Section 2, Article 1.05,

Title 79, Revised Statutes (Article 5069-1.05, Vernon's Texas

Civil Statutes), to be applicable to judgments rendered during

the month in which the money is disbursed to the facility.

responsible for the reimbursement.

(d) The amount that remains unreimbursed on the first

anniversary of the date on which the money is received is

delinquent and the Texas Department of Mental Health and Mental

Retardation may determine that the facility is ineligible for a

Medicaid provider contract.

(e) The department shall deposit the reimbursement and interest

received under this section to the credit of the nursing and

convalescent home trust fund.

(f) The attorney general shall institute an action to collect

money due under this section at the request of the department. An

action under this section must be brought in Travis County.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.097. NOTIFICATION OF CLOSURE. (a) A facility that is

closing temporarily or permanently, voluntarily or involuntarily,

shall notify the residents of the closing and make reasonable

efforts to notify in writing each resident's nearest relative or

the person responsible for the resident's support within a

reasonable time before the facility closes.

(b) If the department orders a facility to close or the

facility's closure is in any other way involuntary, the facility

shall make the notification, orally or in writing, immediately on

receiving notice of the closing.

make the notification not later than one week after the date on

which the decision to close is made.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.098. CRIMINAL PENALTY FOR FAILURE TO NOTIFY. (a) A

facility commits an offense if the facility knowingly fails to

comply with Section 252.097.

(b) An offense under this section is a Class A misdemeanor.

Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1,

1997.

Sec. 252.099. COOPERATION IN FACILITY CLOSURE. The department

and the Texas Department of Mental Health and Mental Retardation

shall cooperate closely to ensure that the closure and transition

plans for a facility that is closing, and the execution of those

plans, ensure the short-term and long-term well-being of the

clients of the facility.

Added by Acts 2001, 77th Leg., ch. 160, Sec. 3, eff. Sept. 1,

2001.

SUBCHAPTER E. INVESTIGATIONS OF ABUSE,

NEGLECT, AND EXPLOITATION AND REPORTS OF RETALIATION

Sec. 252.121. AUTHORITY TO RECEIVE REPORTS AND INVESTIGATE. (a)

A person, including an owner or employee of a facility, who has

cause to believe that a resident is being or has been subjected

to abuse, neglect, or exploitation shall report the suspected

abuse, neglect, or exploitation to the Department of Family and

Protective Services, as required by Chapter 48, Human Resources

Code, or Chapter 261, Family Code, as appropriate. The

Department of Family and Protective Services shall investigate

the allegation of abuse, neglect, or exploitation in the manner

provided by Chapter 48, Human Resources Code, or Section 261.404,

Family Code, as applicable.

(b) If the department receives a report of suspected abuse,

neglect, or exploitation of a resident of a facility licensed

under this chapter,

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

Loading..

Loading, Please Wait!