40 TAC §72.103
The Texas Department of Human Services (DHS) adopts new §72.103,
with changes to the proposed text published in the June 18, 1999, issue of
the
Texas Register
(24 TexReg 4541).
The new section is a memorandum of understanding (MOU) among DHS, the Texas
Department of Protective and Regulatory Services (TDPRS), and the Office of
the Attorney General (OAG). The MOU is required under the Health and Safety
Code, §§247.046 and 247.062. This MOU sets forth the agreement and
the process whereby the above noted agencies will cooperate in correcting
violations or deficiencies in assisted living facilities.
The new section will function by removing uncertified facilities from business
and requiring certified facilities to adhere to standards of the agency.
The department has initiated a minor editorial change to the text of §72.103(c)
by replacing "incompetent" with "incapacitated" to clarify and improve the
accuracy of the section.
The department has also replaced all references to "personal care" with
"assisted living" to reflect the change in terminology as a result of Senate
Bill 93 from the 76th Legislative session.
The department received a written comment from the Texas Association for
the Mentally Ill. A summary of the comment and the department's response follows.
Comment: DHS should involve the Texas Department of Mental Health and Mental
Retardation when finding new placement for individuals displaced by the closure
of a facility. DHS should add to §72.103(b)(2) "DHS will inquire whether
a resident is receiving services from a mental health authority (MHA) and
will contact the MHA accordingly to ensure continuation of service and placement
assistance."
Response: The department concurs and has made the requested change.
The new section is adopted under the Human Resources Code, Title
2, Chapter 22, which authorizes the department to administer public assistance
programs.
The new section implements the Human Resources Code, §§22.001-22.030.
§72.103.Assisted Living Facilities
(a)
Basis. The Texas Department of Human Services, hereinafter
referred to as DHS, the Texas Office of the Attorney General, hereinafter
referred to as OAG, and the Texas Department of Protective and Regulatory
Services, hereinafter referred to as TDPRS are required under the provisions
of Health and Safety Code §§247.046 and 247.062 to enter into a
memorandum of understanding (MOU) regarding their respective responsibilities,
procedures, enforcement needs, and plans for correcting violations or deficiencies
in assisted living facilities. This MOU implements those requirements.
(b)
DHS responsibilities.
(1)
DHS accepts applications and issues licenses in accordance
with the requirements of Chapter 247, and DHS rules and standards adopted
to implement the law.
(2)
If DHS finds a licensed assisted living facility operating
in violation of minimum standards or licensing requirements and the violation
creates an immediate threat to the health and safety of a resident in the
facility, DHS may suspend the license or order the immediate closing of all
or part of the facility. DHS shall retain primary responsibility for assisting
families in finding new placements for individuals displaced when facilities
licensed by or subject to licensure by DHS are closed. DHS will inquire whether
a resident is receiving services from a mental health authority (MHA) and
will contact the MHA accordingly to ensure continuation of service and placement
assistance.
(3)
DHS shall investigate each allegation of abuse, exploitation,
or neglect of a resident of a assisted living facility in accordance with
Chapter 247 of the Health and Safety Code, Chapter 48 of the Human Resources
Code, and DHS rules. If the investigation reveals abuse, exploitation, or
neglect, DHS shall implement enforcement measures, including closing the facility,
revoking the facility's license, relocating residents, and making referrals
to law enforcement agencies (including the OAG) as appropriate.
(4)
DHS may refer a facility to the OAG or a local prosecuting
attorney for the purpose of petitioning a district court for a temporary restraining
order to restrain a continuing violation of standards or licensing requirements
for assisted living facilities. If DHS finds that the violation creates an
immediate threat to the health and safety of the assisted living facility
residents, the referral is made to the OAG along with all affidavits necessary
to prosecute the case. If the violation does not create an immediate threat
to the health and safety of assisted living facility residents, the referral
is to a local prosecuting attorney. DHS, through the OAG or a local prosecuting
attorney, may petition a district court for a restraining order to inspect
a facility that is operating without a license when admission to the facility
cannot be obtained. In these inspection situations, DHS shall first contact
the local prosecuting attorney for assistance.
(5)
DHS shall cooperate with the OAG and/or the local
prosecuting attorney in the preparation and prosecution of injunctive actions
against assisted living facilities against which DHS has requested legal proceedings.
(6)
DHS may refer persons who do not possess a license,
or assisted living facilities that violate the Personal Care Facility Licensing
Act (Chapter 247 of the Health and Safety Code) or a rule adopted under that
act, whose violation threatens the health and safety of a resident of a assisted
living facility, to the OAG for the purpose of petitioning a district court
for civil penalties under section 247.045 of the Health and Safety Code. DHS
will refer civil penalty cases to the local district attorney, county attorney,
or city attorney if the OAG does not take action within 30 days of the referral.
DHS shall cooperate with the OAG and the local prosecuting attorneys in the
preparation for and prosecution of civil penalty actions.
(c)
TDPRS responsibilities. TDPRS will assist DHS, upon request,
in finding suitable placement for incapacitated individuals who have no family
willing to assist and who must be relocated due to the closing of a assisted
living facility licensed or subject to licensure by DHS.
(d)
OAG responsibilities.
(1)
The OAG will work in close cooperation with DHS throughout
any legal proceeding requested by DHS under Chapter 247 of the Health and
Safety Code.
(2)
The OAG will keep DHS informed of the status of all
cases referred to the OAG under Chapter 247 of the Health and Safety Code
upon the request of DHS.
(3)
The OAG will represent DHS to the full extent of the
law in Chapter 247 actions.
(4)
When the OAG chooses not to prosecute a Chapter 247
case referred by DHS, it will immediately inform DHS so that alternative action
can be taken.
(e)
Complaint investigations and opportunities for corrective
action.
(1)
When a complaint is received about a licensed or a unlicensed
assisted living facility, DHS will do a complaint investigation of the facility.
If the owner of an unlicensed facility denies DHS investigators access to
a facility, DHS may, through the OAG or a local prosecutor's office, petition
a district court for a temporary restraining order to inspect the facility.
(2)
If the investigation indicates that there is a violation
of minimum standards and the violation creates an immediate threat to the
health and safety of a facility resident, DHS will suspend the license and
order closing of the facility for a ten day period.
(3)
If the investigation indicates that there is a violation
of minimum standards or licensing requirements and the violation is a threat
to resident health and safety, DHS immediately makes a referral to the Attorney
General's office to enjoin the facility's operation, enjoin the facility from
violating standards or licensing requirements, and/or for assessment of civil
monetary penalties.
(4)
If the OAG does not take action on a civil penalty
referral within 30 days of the referral, DHS will refer the case to the local
prosecuting attorney.
(5)
If the investigation indicates a violation of minimum
standards or licensing requirements but the violation is not a threat to resident
health and safety, DHS may notify the owner that he is in violation and make
a referral to the local prosecuting attorney or the OAG only after the facility
owner is given an opportunity to take appropriate action to come into compliance
within a reasonable time.
(6)
If the local prosecuting attorney refuses to prosecute
a case, DHS may seek the assistance of the OAG.
(7)
DHS may deny, suspend, or revoke the license of a
licensed facility for violating the Personal Care Facility Licensing Act or
rules adopted under that act.
(8)
If further investigation or monitoring of a facility
that has previously indicated that it will come into compliance, indicates
that violations have continued, DHS may immediately seek injunctive or other
appropriate relief in coordination and cooperation with the OAG or the local
prosecuting attorney.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of the Secretary of State on July
29, 1999.
TRD-9904588
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: August 18, 1999
Proposal publication date: June 18, 1999
For further information, please call: (512) 438-3765