HBA-JRA S.B. 93 76(R)BILL ANALYSIS Office of House Bill AnalysisS.B. 93 By: Moncrief Public Health 4/21/1999 Committee Report (Amended) BACKGROUND AND PURPOSE Currently, Texas law requires assisted living facilities to be licensed and regulated by the Texas Department of Human Services (DHS). Assisted living facilities provide support services in a residential setting that maximize a resident's independence, and are an alternative to medical or institutional care. The purpose of this bill is to ensure that an assisted living facility delivers the best quality of life and care by promoting policies of dignity, autonomy, independence, and consumer protection, and to increase the efforts of DHS in identifying unlicensed assisted living facilities. S.B. 93 revises the current personal care facility statute to regulate assisted living facilities; adopts the standards relating to a "controlling person" introduced in nursing home reform legislation; revises the licensing fees; sets forth procedures for handling home health agency complaints and reports of abuse, exploitation, or neglect; prohibits the removal of an individual from an assisted living facility unless the individual is endangering others or cannot receive adequate care at the present facility; and requires DHS to identify unlicensed facilities in this state and take action to enforce the licensure requirements. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Texas Department of Human Services in SECTION 1 (Sections 247.005 and 247.0261, Health and Safety Code) and in SECTION 9, to the Texas Board of Human Services in SECTION 1 (Sections 247.024, 247.026, and 247.030, Health and Safety Code), and rulemaking authority previously delegated to the Texas Department of Human Services is modified in SECTION 1 (Section 247.026, Health and Safety Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. AMENDMENT. Amends Chapter 247, Health and Safety Code, as follows: CHAPTER. 247. New title: ASSISTED LIVING FACILITIES SUBCHAPTER A. GENERAL PROVISIONS Sec. 247.001. SHORT TITLE: Authorizes this chapter to be cited as the Assisted Living Facility Licensing Act, rather than the Personal Care Facility Licensing Act. Sec. 247.0011. SCOPE, PURPOSE, AND IMPLEMENTATION. Sets forth the purpose of this chapter. Sets forth the components of quality of care for purposes of this chapter. Sec. 247.002. DEFINITIONS. Defines "assisted living facility" and "controlling person" and redefines "personal care services." Deletes the definition of "personal care facility." Redesignates existing Subdivisions (2)-(5) to Subdivisions (4)-(6). Makes conforming changes. Sec. 247.003. APPLICATION OF OTHER LAW. Makes conforming changes. Sec. 247.004. EXEMPTIONS. Provides that this chapter does not apply to a boarding facility that has rooms for rent and that may offer light housework, meal preparation, transportation, grocery shopping, money management or laundry services, but that does not provide personal care services; or to a facility that provides personal care services only to persons enrolled in a program that is funded in whole or in part by the Texas Department of Mental Health and Mental Retardation (TDMHMR) and that is monitored by TDMHMR or its designated local authority in accordance with standards set by TDMHMR. Sec. 247.005. CONTROLLING PERSON. (a) Provides that a controlling person is one who acts alone or in conjunction with others and has the ability to directly or indirectly influence, direct, or cause the direction of management, expenditure of money, or policies of an assisted living facility (facility) or other person. (b) Provides that for this chapter, "controlling person" includes a management company or business entity that operates or contracts with others for the operation of a facility; a person who is a controlling person of a management company or business entity that operates a facility or that contracts with another person for the operation of a facility; and 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, whether or not the individual is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility. (c) Provides that a controlling person in a position of actual control or authority with respect to the agency, 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. (d) Authorizes the Texas Department of Human Services (DHS) to adopt rules that specify the ownership interests and other relationships that qualify a person as a controlling person. SUBCHAPTER B. LICENSING, FEES, AND INSPECTIONS Sec. 247.021. LICENSE REQUIRED. Prohibits a person establishing or operating a facility that is not required to be licensed under this chapter from using the term "assisted living" in referring to the facility or the services provided at the facility. Authorizes a person establishing or operating a facility that is not required to be licensed, but elects to be licensed under this chapter, to use the term "assisted living" in referring to the facility or the services provided at the facility. Authorizes DHS to issue a provisional license only if the facility meets certain requirements. Redesignates existing Subsections (b)-(c) to Subsection (d)-(e). Sec. 247.022. LICENSE APPLICATION. Makes conforming changes. Sec. 247.023. ISSUANCE AND RENEWAL OF LICENSE. Requires DHS to issue a license if it finds that the applicant, the assisted living facility, and all controlling persons with respect to an applicant or facility meet the requirements and standards of this chapter. Makes conforming changes. Sec. 247.0231. COMPLIANCE RECORD IN OTHER STATES. Authorizes DHS to require an applicant or license holder to provide compliance information relating to the applicant, license holder, or a controlling person with respect to regulatory requirements in another state in which the applicant, license holder, or controlling person operates or operated a facility. Sec. 247.024. FEES; DISPOSITION OF REVENUE. Requires the Texas Board of Human Services (board) to set license fees on the basis of the number of beds in facilities required to pay the fee, but prohibits the fees from exceeding $750, rather than between $300 and $400 depending on the number of beds. Requires the board to establish, by rule, a base fee schedule and a per bed fee schedule. Redesignates existing Subsections (b)-(c) to Subsections (c)-(d). Sec. 247.025. ADOPTION OF RULES. Makes a conforming change. Sec. 247.026. STANDARDS. (a) Makes a conforming change. (b) Provides that the minimum standards the board, by rule, is required to prescribe to protect the health and safety of a facility resident must indicate in all advertisements, solicitations, and promotional materials that the facility is licensed by DHS or that an application for a license is pending, rather than the facility's license number, and provide each prospective resident or the prospective resident's representative with a consumer disclosure statement in a standard form adopted by DHS. Makes conforming changes. (c) Requires the board to require facilities providing brain injury rehabilitation services to include in the consumer disclosure statement a specific statement that licensure as a licensed facility does not indicate state review, approval, or endorsement of the rehabilitation services. (d) Redesignated from existing Subsection (c). Makes a conforming change. (e) Redesignated from existing Subsection (d). Makes conforming changes. (f) Redesignated from existing Subsection (e). Makes conforming changes. (g) Redesignated from existing Subsection (f). Makes a conforming change. (h) Prohibits an individual from serving as the manager of a facility with 17 beds or more, unless the individual has an associate's degree in nursing, health care management, or a related field, a bachelor's degree, or at least one year of experience working in management or in the health care industry. (i) Authorizes the board, by rule, to require each manager of an assisted living facility that has 17 beds or more to complete at least one educational course on the management of assisted living facilities within a year of beginning employment in that capacity. Sec. 247.0261. EARLY COMPLIANCE REVIEW. (a) Requires DHS, by rule, to adopt a procedure for the submission of building plans for the construction or modification of a facility to DHS for review. Requires DHS to set reasonable deadlines for review of submitted plans. (b) Requires DHS to review plans submitted under this section for compliance with DHS architectural requirements and inform the person of the results of the review within 30 days. Prohibits DHS from changing the architectural requirements that comply with DHS plans unless a change is required by federal law or the person fails to complete the project within a reasonable time. (c) Authorizes DHS to charge a fee to conduct a review. (d) Requires DHS to deposit the fee collected in the general revenue fund to the credit of the assisted living account and to be appropriated only to DHS to conduct reviews. (e) Provides that 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 by the Department of Licensing and Regulation. Sec. 247.027. INSPECTIONS. Authorizes DHS to inspect an assisted living facility annually and to inspect a facility at other reasonable times as necessary to assure compliance with this chapter. Sec. 247.0271. INSPECTOR TRAINING. Requires DHS to develop and implement a training program to provide specialized training to DHS employees who inspect facilities. Requires the training to emphasize the distinction between a facility and an institution licensed under Chapter 242 (Convalescent And Nursing Homes And Related Institutions). Requires DHS to consult with operators of facilities and consumers of personal care services provided by living facilities or the consumers' legal representatives to develop and update the training program. Sec. 247.028. ASSISTANCE BY DEPARTMENT. Makes conforming changes. Sec. 247.029. FACILITIES FOR PERSONS WITH ALZHEIMER'S DISEASE. Prohibits an individual from serving as the manager of a facility under this section, unless the individual is at lest 21 years of age and has an associate's degree in nursing, health care management, or a related field; a bachelor's degree in psychology, gerontology, nursing, or a related field; or at least one year of experience working with persons with dementia. Makes a conforming change. Sec. 247.030. FACILITIES FOR SUPERVISION OF MEDICATION AND GENERAL WELFARE. Requires the board, by rule, to establish a classification and license for a facility that provides only medication supervision and general supervision of residents' welfare, but does not provide substantial assistance with the activities of daily living. Requires the board to adopt minimum standards for an assisted living facility classified under this section, including standards imposing adequate requirements relating to medication supervision. Requires the board to modify the standards applied to a facility to reflect the level of services provided by that facility. Requires a facility classified under this section to comply with all requirements imposed by this chapter, except as provided by this section. Sec. 247.031. MUNICIPAL ENFORCEMENT. Redesignated from existing Section 247.029. Makes a conforming change. SUBCHAPTER C. GENERAL ENFORCEMENT Sec. 247.041. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE. Makes no changes. Sec. 247.042. EMERGENCY SUSPENSION OR CLOSING ORDER. Makes conforming changes. Sec. 247.043. INVESTIGATION OF ABUSE, EXPLOITATION, OR NEGLECT. Requires DHS to notify the Department of Protective and Regulatory Services and a health and human services agency that contracts with the facility of the results of an investigation of abuse or neglect and to provide a contracting health and human services agency access to DHS documents or records relating to the investigation. Provides that providing such access does not constitute a waiver of confidentiality. Makes conforming changes. Sec. 247.044. INJUNCTION. Makes conforming changes. Sec. 247.045. CIVIL PENALTIES. Authorizes the attorney general to institute and conduct a suit to collect a penalty and fees under this section at the request of DHS. Deletes text providing civil penalties for unlicensed personal care facilities. Redesignates existing Subsections (c)-(f) to Subsections (d)-(g). Makes conforming changes. Sec. 247.046. COOPERATION AMONG AGENCIES. Makes conforming changes. Sec. 247.047. TRANSITION. Redesignated from existing Section 247.046. Makes a conforming change. Sec. 247.048. REGIONAL TRAINING FOR AGENCIES AND LOCAL GOVERNMENTS. Requires DHS to conduct periodic regional training programs for local government representatives and appropriate state agencies relating to concerns of facilities. Requires training programs to provide participants certain information. Sec. 247.049. USE OF REGULATORY REPORTS AND DOCUMENTS. (a) Provides that a survey report or other document prepared by DHS relating to the regulation of a facility is not admissible as evidence in a civil action to prove that the facility violated a standard prescribed under this chapter. (b) Provides that Subsection (a) does not apply to the admissibility as evidence of such documents in an enforcement action in which the state or an agency or political subdivision of the state is a party; that are offered to establish warning or notice to an agency of a relevant DHS determination or under any rule or evidentiary predicate of the Texas Rules of Evidence; that prohibit or limit the testimony of a DHS employee as to information that an agency violated this chapter; or prohibit or limit the use of DHS survey reports or other documents in depositions or other forms of discovery conducted in connection with a civil action if use of the documents appears reasonably calculated to lead to the discovery of admissible evidence. SUBCHAPTER D. New title: ADVISORY COMMITTEE ON ASSISTED LIVING FACILITIES Sec. 247.051. ADVISORY COMMITTEE. Requires the commissioner of human services (commissioner) to appoint two, rather than one, staff members from DHS to serve as nonvoting advisory members. Requires the commissioner to appoint one such staff member as a representative of long-term care policy and one member as a representative of long-term care regulation. Makes a conforming change. SUBCHAPTER E. MISCELLANEOUS PROVISIONS Sec. 247.061. New title: COORDINATION BETWEEN AGENCIES. Deletes existing Section 247.061 regarding the pilot program to recruit and train ombudsmen to assist in serving the special needs of the mentally ill and the elderly or disabled at a personal care facility. Sec. 247.062. New title: DIRECTORY OF ASSISTED LIVING FACILITIES; CONSUMER'S GUIDE. Makes conforming changes. Sec. 247.063. REFERRALS. Redesignated from existing Section 247.064. Makes conforming changes. Sec. 247.0631. ACCESS. Authorizes an employee of TDMHMR or an employee of a local mental health and mental retardation authority to enter a facility and provide services to a resident of the facility as necessary. Sec. 247.064. RESIDENTS' BILL OF RIGHTS. Redesignated from existing Section 247.065. Makes conforming changes. Sec. 247.065. PROVIDERS' BILL OF RIGHTS. Redesignated from existing Section 247.066. Makes conforming changes. Sec. 247.066. APPROPRIATE PLACEMENT DETERMINATION. Prohibits DHS from requiring the removal and relocation of a resident of an assisted living facility if the resident's presence in the facility does not endanger other residents and the resident can receive adequate care at the facility through services provided by the facility in accordance with its license or services obtained by the resident from other providers. Requires DHS to consider all relevant factors, including the placement preference expressed by the resident with the agreement of the facility operator, the resident's physician, and the resident's family members or other representatives, in assessing whether a resident can receive adequate care at a facility. Sec. 247.067. HEALTH CARE PROFESSIONALS. Defines "health care professional" in this section. Authorizes a health care professional to provides services within the professional's scope of practice to a resident of an assisted living facility at the facility. Provides that this subsection does not authorize a health care professional to provide ongoing services to a chronically ill resident comparable to the services available in an institution licensed under Chapter 242. Requires a health care professional providing services under this subsection to maintain medical records of those services in accordance with the licensing, certification, or other regulatory standards applicable to the health care professional under law. Sec. 247.068. RETALIATION PROHIBITED. Prohibits a licensed person from retaliating against another person for filing a complaint, presenting a grievance, or providing in good faith information relating to personal care services provided by the license holder. Provides that this section does not prohibit a license holder from terminating an employee for a reason other than retaliation. SECTION 2. AMENDMENT. Amends Section 250.001(3), Health and Safety Code, to redefine "facility." Redesignates existing Paragraphs (3)(H)-(I) to Paragraphs (G)-(H). Makes conforming changes. SECTION 3. AMENDMENT. Amends Section 36.002, Human Resources Code, to make a conforming change. SECTION 4. AMENDMENT. Amends Title 6, Human Resources Code, by adding Chapter 105, as follows: CHAPTER 105. RESIDENTIAL FACILITIES FOR THE ELDERLY Sec. 105.001. DEFINITIONS. Defines "establishment," "qualifying adult resident," and "supportive services." Sec. 105.002. EXEMPT FACILITIES. Provides that housing in which all supportive services are arranged directly by the residents themselves and are provided by outside entities, nursing facilities licensed under Chapter 242, Health and Safety Code, and continuing care facilities regulated by the Texas Department of Insurance under Chapter 246, Health and Safety Code, are exempt from the application of this chapter. Sec. 105.003. DISCLOSURE REQUIRED IN CONTRACT. Requires an establishment that is not required to be licensed as an assisted living facility under Chapter 247, Health and Safety Code, to execute a contract with each of its residents that contains, in addition to other required information, certain information about the establishment, its management, its licensure status, any entity providing supporting services, additional services available, the complaint resolution process, the billing and payment procedures and requirements, residents' rights, and the life safety and fire codes the building meets. SECTION 5. AMENDMENT. Amends Section 123.004, Human Resources Code, to make a conforming change. SECTION 6. REFERENCE TO PERSONAL CARE FACILITY. Provides that a reference in law to a personal care facility means an assisted living facility, as defined by Section 247.002, Health and Safety Code, as amended by this Act. Provides that a reference in law to the Advisory Committee on Personal Care Facilities means the Advisory Committee on Assisted Living Facilities established under Section 247.051, Health and Safety Code, as amended by this Act. SECTION 7. ENFORCEMENT OF LICENSURE REQUIREMENT. Requires DHS to identify unlicensed facilities in this state that are required to be licensed under Chapter 247, Health and Safety Code, as amended by this Act and take action to enforce the licensure requirements by January 1, 2000. Requires DHS to submit a report describing the results of DHS's efforts under this section and including the number of facilities identified, the geographical distribution of those facilities, and the results of DHS's efforts to enforce licensure of those facilities to the governor and the legislature by December 1, 2000. Provides that this section takes effect 90 days after adjournment. SECTION 8. WORK GROUP ON TEXAS ACCESSIBILITY STANDARDS. (a) Requires DHS and the Texas Department of Licensing and Regulation (DLR) to form a joint work group to study and make recommendations to agencies concerning the applicability of Texas Accessibility Standards and other architectural requirements to facilities required to be licensed as soon as possible after the effective date of this section but not later than September 1, 2000. (b) Requires the work group to review bathroom accessibility standards and make suggestions regarding any necessary changes to those standards, determine whether the architectural reviews of a facility currently conducted separately by each agency could be consolidated into a single review, develop standard information material that address architectural requirements applicable to construction or modification of a facility, and address any other issue relating to architectural standards applicable to a facility. (c) Requires DHS and DLR to include in the work group representatives of developers and providers of facilities and consumers of personal care services provided by facilities. (d) Requires the members of the work group to elect a presiding officer and any other necessary officers. (e) Requires the work group to meet at the call of the presiding officer. (f) Provides that a member of the work group receives no compensation for serving on the work group. (g) Provides that the work group is not subject to Chapter 2110 (State Agency Advisory Committees), Government Code. (h) Provides that the work group dissolves and this section expires September 1, 2001. (i) Provides that this section takes effect 90 days after adjournment. SECTION 9. COMMUNITY-BASED ALTERNATIVES PROGRAM RATE METHOD. Requires DHS, by rule, to develop and implement a new reimbursement method for personal care services funded through the community-based alternatives program that is based on the type of service provided in addition to the number of clients occupying a room. Provides that this section takes effect 90 days after adjournment. SECTION 10. DEADLINE: CONSUMER DISCLOSURE STATEMENT. Requires DHS to adopt the consumer disclosure statement required by Section 247.026(b), Health and Safety Code, by September 1, 1999. SECTION 11. TRANSITION: REQUIRED EDUCATIONAL COURSE FOR MANAGERS OF CERTAIN FACILITIES. Makes application of Section 247.026(i), Health and Safety Code, as added by this Act, prospective. SECTION 12. LEGISLATIVE INTENT. Provides that Section 247.045(d), Health and Safety Code, as amended by this Act, is intended to emphasize the authority of the attorney general to institute and conduct a suit to collect a penalty and fees. Prohibits the amendment from being construed to mean that the attorney general lacked that authority before the effective date of this Act. SECTION 13. WAIVERS. Requires any state agency to request a waiver or authorization from a federal agency if the state agency determines that such a waiver is needed to implement this Act. Authorizes the state agency to delay implementation of this Act until the waiver or authorization is granted. SECTION 14. CONFLICTS. Provides that to the extent of any conflict, this Act prevails over another Act of the 76th Legislature, Regular Session, 1999, relating to nonsubstantive additions to and corrections in enacted codes. SECTION 15. Effective date: September 1, 1999, except as otherwise provided by this Act. SECTION 16. Emergency clause. EXPLANATION OF AMENDMENTS Committee Amendment #1 SECTION 1. Replaces proposed amendment to Section 247.026(b)(A), Health and Safety Code, to require an assisted living facility to use its license number or a state-issued facility identification number in all advertisements, solicitations, and promotional materials, rather than indicate in such materials that the facility is licensed by DHS or that an application for a license is pending. Committee Amendment #2 SECTION 1. In proposed Section 247.067(a), Health and Safety Code, includes a licensed vocational nurse in the term "health care professional." Committee Amendment #3 SECTION 1. In proposed Section 247.049(b)(1) and (2), Health and Safety Code, provides that Subsection (a) does not apply to the admissibility as evidence of a report or other document prepared by DHS in an enforcement action in which the state or an agency or political subdivision of the state is a party or that is offered to establish warning or notice to an assisted living facility of a relevant DHS determination or under any rule or evidentiary predicate of the Texas Rules of Evidence. Committee Amendment #4 SECTION 1. Deletes proposed Section 247.068(b), Health and Safety Code, and adds new Subsections (b) and (c), as follows: (b) Authorizes a health care professional to provide services within the professional scope of practice to a resident of an assisted living facility at the facility. Provides that this subsection does not authorize a facility to provide ongoing services comparable to the services available in an institution licensed under Chapter 242. Requires a health care professional providing services under this subsection to maintain medical records of those services in accordance with the applicable licensing, certification, or other regulatory standards. (c) Provides that a resident of an assisted living facility has the right to contract with a home and community support service agency licensed under Chapter 142 or with an independent health professional for health care services. Committee Amendment #5 SECTION 1. In Section 247.021, Health and Safety Code, adds a new Subsection (f) to prohibit a provisional license from being issued after December 31, 1999.