85R9048 JG-D     By: Schwertner S.B. No. 932       A BILL TO BE ENTITLED   AN ACT   relating to the licensing of, the executive commissioner of the   Health and Human Services Commission's duties with respect to, and   the administrative penalties for certain long-term care   facilities.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Sections 531.058(a) and (a-1), Government Code,   are amended to read as follows:          (a)  The executive commissioner by rule shall establish an   informal dispute resolution process in accordance with this   section.  The process must provide for adjudication by an   appropriate disinterested person of disputes relating to a proposed   enforcement action or related proceeding of the commission under   Section 32.021(d), Human Resources Code, or the Department of Aging   and Disability Services or its successor agency under Chapter 242,   247, or 252, Health and Safety Code. The informal dispute   resolution process must require:                (1)  an institution or facility to request informal   dispute resolution not later than the 10th calendar day after   notification by the commission or department, as applicable, of the   violation of a standard or standards; and                (2)  the commission to complete the process not later   than:                      (A)  the 30th calendar day after receipt of a   request from an institution or facility, other than an assisted   living facility, for informal dispute resolution; or                      (B)  the 90th calendar day after receipt of a   request from an assisted living facility for informal dispute   resolution.          (a-1)  As part of the informal dispute resolution process   established under this section, the commission shall contract with   an appropriate disinterested person who is a nonprofit organization   to adjudicate disputes between an institution or facility licensed   under Chapter 242 or 247, Health and Safety Code, and the Department   of Aging and Disability Services or its successor agency concerning   a statement of violations prepared by the department in connection   with a survey conducted by the department of the institution or   facility. Section 2009.053 does not apply to the selection of an   appropriate disinterested person under this subsection. The person   with whom the commission contracts shall adjudicate all disputes   described by this subsection.          SECTION 2.  Subchapter B, Chapter 531, Government Code, is   amended by adding Section 531.0585 to read as follows:          Sec. 531.0585.  ISSUANCE OF MATERIALS TO CERTAIN LONG-TERM   CARE FACILITIES. The executive commissioner shall review the   commission's methods for issuing informational letters, policy   updates, policy clarifications, and other related materials to an   entity licensed under Chapter 103, Human Resources Code, or Chapter   242, 247, 248A, or 252, Health and Safety Code, and develop and   implement more efficient methods to issue those materials as   appropriate.          SECTION 3.  Section 242.066, Health and Safety Code, is   amended by amending Subsections (a) and (e) and adding Subsection   (i) to read as follows:          (a)  The commission [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 commission [department];                (3)  refuses to allow a representative of the   commission [department] to inspect:                      (A)  a book, record, or file required to be   maintained by an institution; or                      (B)  any portion of the premises of an   institution;                (4)  wilfully interferes with the work of a   representative of the commission [department] or the enforcement of   this chapter;                (5)  wilfully interferes with a representative of the   commission [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 commission   [department] under this chapter not later than the 10th day after   the date the assessment of the penalty becomes final; or                (7)  fails to notify the commission [department] of a   change of ownership before the effective date of the change of   ownership.          (e)  In determining the amount of a penalty, the commission   [department] shall consider any matter that justice may require,   including:                (1)  the gradations of penalties established under   Subsection (d);                (2)  the seriousness of the violation, including the   nature, circumstances, extent, and gravity of the prohibited act   and the hazard or potential hazard created by the act to the health   or safety of the public;                (3)  the history of previous violations;                (4)  deterrence of future violations; and                (5)  efforts to correct the violation.          (i)  The commission shall develop and use a system to record   and track the scope and severity of each violation of this chapter   or a rule, standard, or order adopted under this chapter for the   purpose of assessing an administrative penalty for the violation or   taking some other enforcement action against the appropriate   institution to deter future violations. The system:                (1)  must be comparable to the system used by the   Centers for Medicare and Medicaid Services to categorize the scope   and severity of violations for nursing homes; and                (2)  may be modified, as appropriate, to reflect   changes in industry practice or changes made to the system used by   the Centers for Medicare and Medicaid Services.          SECTION 4.  Section 242.0665, Health and Safety Code, is   amended to read as follows:          Sec. 242.0665.  RIGHT TO CORRECT. (a) The commission   [department] may not collect an administrative penalty against an   institution under this subchapter if, not later than the 45th day   after the date the institution receives notice under Section   242.067(c), the institution corrects the violation.          (b)  Subsection (a) does not apply:                (1)  to a violation that the commission [department]   determines:                      (A)  represents a pattern of violations that   results in actual [serious] harm [to or death of a resident];                      (B)  results in actual harm that is pervasive   throughout the services provided by the institution or that   represents a systemic failure by the institution that affects or   has the potential to affect a large number of or all of the   residents of the institution;                      (C)  constitutes the potential for actual harm   that is pervasive throughout the services provided by the   institution or that represents a systemic failure by the   institution that affects or has the potential to affect a large   number of or all of the residents of the institution and is a   violation of this chapter or a rule, standard, or order adopted   under this chapter relating to:                            (i)  residents' rights;                            (ii)  treatment of residents;                            (iii)  resident behavior and institution   practices;                            (iv)  quality of care;                            (v)  medication errors;                            (vi)  standard menus and nutritional   adequacy;                            (vii)  physician visits;                            (viii)  infection control;                            (ix)  life safety from fire; or                            (x)  emergency preparedness and response;                      (D) [(B)]  constitutes an immediate [a serious]   threat to the health or safety of a resident; or                      (E) [(C)]  substantially limits the institution's   capacity to provide care;                (2)  to a violation described by Sections   242.066(a)(2)-(7);                (3)  to a violation of Section 260A.014 or 260A.015; or                (4)  to a violation of a right of a resident adopted   under Subchapter L.          (c)  An institution that corrects a violation under   Subsection (a) must maintain the correction. If the institution   fails to maintain the correction until at least the first   anniversary of the date the correction was made, the commission    [department] may assess an administrative penalty under this   subchapter for the subsequent violation. A penalty assessed under   this subsection shall be equal to three times the amount of the   penalty assessed but not collected under Subsection (a). The   commission [department] is not required to provide the institution   an opportunity to correct the subsequent violation under this   section.          (d)  In this section:                (1)  "Actual harm" means a negative outcome that   compromises a resident's physical, mental, or emotional   well-being.                (2)  "Immediate threat to the health or safety of a   resident" means a situation that causes, or is likely to cause,   serious injury, harm, or impairment to or the death of a resident.                (3)  "Pattern of violations" means the repeated, but   not pervasive, occurrence of violations that are found throughout   the services provided by an institution or that affect or involve   the same residents or institution employees.          SECTION 5.  Section 247.023, Health and Safety Code, is   amended to read as follows:          Sec. 247.023.  ISSUANCE AND RENEWAL OF LICENSE.  (a)  The   commission [department] shall issue a license if, after inspection   and investigation, it finds that the applicant, the assisted living   facility, and all controlling persons with respect to the applicant   or facility meet the requirements of this chapter and the standards   adopted under this chapter.  The license expires on the third   [second] anniversary of the date of its issuance.  The executive   commissioner by rule shall [may] adopt a system under which   licenses expire on staggered [various] dates during each [the]   three-year [two-year] period.  The commission shall prorate the   license fee as appropriate if the expiration date of a license   changes as a result of this subsection [For the year in which a   license expiration date is changed, the department shall prorate   the license fee on a monthly basis.   Each license holder shall pay   only that portion of the license fee allocable to the number of   months during which the license is valid.   A license holder shall   pay the total license renewal fee at the time of renewal].          (b)  To renew a license, the license holder must submit to   the commission [department] the license renewal fee.          (c)  The commission [department] may require participation   in a continuing education program as a condition of renewal of a   license.  The executive commissioner shall adopt rules to implement   this subsection.          SECTION 6.  Section 247.027, Health and Safety Code, is   amended to read as follows:          Sec. 247.027.  INSPECTIONS. (a) In addition to the   inspection required under Section 247.023(a), the commission:                (1)  shall [department may] inspect each [an] assisted   living facility every two years following the initial inspection   required under Section 247.023(a); [annually] and                (2)  may inspect a facility at other reasonable times   as necessary to assure compliance with this chapter.          (b)  The commission [department] shall establish an   inspection checklist based on the minimum standards that describes   the matters subject to inspection. The commission [department]   shall use the inspection checklist in conducting inspections under   this section and Section 247.023(a).          SECTION 7.  Section 247.0451, Health and Safety Code, is   amended by amending Subsections (a), (b), (d), and (f) and adding   Subsections (g) and (h) to read as follows:          (a)  The commission [department] may assess an   administrative penalty against a person who:                (1)  violates this chapter or a rule, standard, or   order adopted under this chapter or a term of a 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 commission [department];                (3)  refuses to allow a representative of the   commission [department] to inspect:                      (A)  a book, record, or file required to be   maintained by an assisted living facility; or                      (B)  any portion of the premises of an assisted   living facility;                (4)  wilfully interferes with the work of a   representative of the commission [department] or the enforcement of   this chapter;                (5)  wilfully interferes with a representative of the   commission [department] preserving evidence of a violation of this   chapter or a rule, standard, or order adopted under this chapter or   a term of a license issued under this chapter;                (6)  fails to pay a penalty assessed under this chapter   not later than the 30th day after the date the assessment of the   penalty becomes final; or                (7)  fails to notify the commission [department] of a   change of ownership before the effective date of the change of   ownership.          (b)  Except as provided by Section 247.0452(c), the penalty   may not exceed:                (1)  $5,000 for each violation that results in actual   harm or that constitutes an immediate threat to the health or safety   of a resident; or                (2)  $1,000 for each other violation.          (d)  In determining the amount of a penalty, the commission   [department] shall consider any matter that justice may require,   but must consider each of the following and make a record of the   extent to which each of the following was considered:                (1)  the gradations of penalties established under   Subsection (c);                (2)  the seriousness of the violation, including the   nature, circumstances, extent, and gravity of the prohibited act   and the hazard or potential hazard created by the act to the health   or safety of the public;                (3)  the history of previous violations;                (4)  deterrence of future violations;                (5)  efforts to correct the violation; and                (6)  the size of the facility and of the business entity   that owns the facility.          (f)  The commission [department] may not assess a penalty   under this section against a resident of an assisted living   facility unless the resident is also an employee of the facility or   a controlling person.          (g)  The commission shall develop and use a system to record   and track the scope and severity of each violation of this chapter   or a rule, standard, or order adopted under this chapter for the   purpose of assessing an administrative penalty for the violation or   taking some other enforcement action against the appropriate   assisted living facility to deter future violations. The system:                (1)  must be comparable to the system used by the   Centers for Medicare and Medicaid Services to categorize the scope   and severity of violations for nursing homes; and                (2)  may be modified, as appropriate, to reflect   changes in industry practice or changes made to the system used by   the Centers for Medicare and Medicaid Services.          (h)  In this section:                (1)  "Actual harm" has the meaning assigned by Section   247.0452.                (2)  "Immediate threat to the health or safety of a   resident" has the meaning assigned by Section 247.0452.          SECTION 8.  Section 247.0452, Health and Safety Code, is   amended to read as follows:          Sec. 247.0452.  RIGHT TO CORRECT.  (a)  The commission   [department] may not collect an administrative penalty from an   assisted living facility under Section 247.0451 if, not later than   the 45th day after the date the facility receives notice under   Section 247.0453(c), the facility corrects the violation.          (b)  Subsection (a) does not apply:                (1)  to a violation that the commission [department]   determines represents a pattern of violations that results in   actual [serious] harm [to or death of a resident];                (2)  to a violation that the commission determines   results in actual harm that is pervasive throughout the services   provided by the assisted living facility or that represents a   systemic failure by the assisted living facility that affects or   has the potential to affect a large number of or all of the   residents of the facility;                (3)  to a violation that the commission determines   constitutes the potential for actual harm that is pervasive   throughout the services provided by the assisted living facility or   that represents a systemic failure by the assisted living facility   that affects or has the potential to affect a large number of or all   of the residents of the facility and is a violation of this chapter   or a rule, standard, or order adopted under this chapter relating   to:                      (A)  resident assessment;                      (B)  staffing, including staff training;                      (C)  resident policies, including residents'   rights;                      (D)  administration of medication;                      (E)  activities;                      (F)  infection control;                      (G)  restraints; or                      (H)  emergency preparedness and response;                (4)  to a violation that the commission determines   constitutes an immediate threat to the health or safety of a   resident;                (5) [(2)]  to a violation described by Sections   247.0451(a)(2)-(7) or a violation of Section 260A.014 or 260A.015;                (6) [(3)]  to a second or subsequent violation of:                      (A)  a right of the same resident under Section   247.064; or                      (B)  the same right of all residents under Section   247.064; or                (7) [(4)]  to a violation described by Section 247.066,   which contains its own right to correct provisions.          (c)  An assisted living facility that corrects a violation   must maintain the correction. If the facility fails to maintain the   correction until at least the first anniversary of the date the   correction was made, the commission [department] may assess and   collect an administrative penalty for the subsequent violation. An   administrative penalty assessed under this subsection is equal to   three times the amount of the original penalty assessed but not   collected. The commission [department] is not required to provide   the facility with an opportunity under this section to correct the   subsequent violation.          (d)  In this section:                (1)  "Actual harm" means a negative outcome that   compromises a resident's physical, mental, or emotional   well-being.                (2)  "Immediate threat to the health or safety of a   resident" means a situation that causes, or is likely to cause,   serious injury, harm, or impairment to or the death of a resident.                (3)  "Pattern of violations" means the repeated, but   not pervasive, occurrence of violations that are found throughout   the services provided by an assisted living facility or that affect   or involve the same residents or facility employees.          SECTION 9.  Section 248A.053, Health and Safety Code, is   amended to read as follows:          Sec. 248A.053.  INITIAL OR RENEWAL LICENSE TERM; RENEWAL;   NOTIFICATION.  (a)  An initial or renewal license issued under this   chapter expires on the third [second] anniversary of the date of   issuance.  The executive commissioner by rule shall adopt a system   under which licenses expire on staggered dates during each   three-year period.  The commission shall prorate the license fee as   appropriate if the expiration date of a license changes as a result   of this subsection.          (b)  A person applying to renew a center license shall:                (1)  submit a renewal application to the commission   [department] on a [the form] prescribed form [by the department] at   least 60 days but not more than 120 days before expiration of the   license;                (2)  submit the renewal fee in the amount required by   agency [department] rule; and                (3)  comply with any other requirements specified by   agency [department] rule.          (c)  The commission [department] shall assess a $50 per day   late fee to a license holder who submits a renewal application after   the date required by Subsection (b)(1), except that the total   amount of a late fee may not exceed the lesser of 50 percent of the   license renewal fee or $500.          (d)  At least 120 days before expiration of a center license,   the commission [department] shall notify the owner or operator of   the center of the license expiration.          SECTION 10.  Subchapter F, Chapter 248A, Health and Safety   Code, is amended by adding Section 248A.2515 to read as follows:          Sec. 248A.2515.  SYSTEM FOR ASSESSMENT OF PENALTY. The   commission shall develop and use a system to record and track the   scope and severity of each violation of this chapter or a rule or   standard adopted or order issued under this chapter for the purpose   of assessing an administrative penalty for the violation or taking   some other enforcement action against the appropriate center to   deter future violations.  The system:                (1)  must be comparable to the system used by the   Centers for Medicare and Medicaid Services to categorize the scope   and severity of violations for nursing homes; and                (2)  may be modified, as appropriate, to reflect   changes in industry practice or changes made to the system used by   the Centers for Medicare and Medicaid Services.          SECTION 11.  Sections 252.033(a), (b), (d), (f), and (h),   Health and Safety Code, are amended to read as follows:          (a)  After receiving the application, the commission   [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 commission [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 third [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.          (f)  The commission [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 commission in accordance with Section   533A.062.          (h)  The executive commissioner by rule shall:                (1)  define specific, appropriate, and objective   criteria on which the commission [department] may deny an initial   license application or license renewal or revoke a license; and                (2)  adopt a system under which:                      (A)  licenses expire on staggered dates during   each three-year period; and                      (B)  the commission prorates the license fee as   appropriate if the expiration date of a license changes as a result   of the system adopted under Paragraph (A).          SECTION 12.  Section 252.041, Health and Safety Code, is   amended to read as follows:          Sec. 252.041.  UNANNOUNCED INSPECTIONS. (a) Each licensing   period, the commission [department] shall conduct at least three   [two] unannounced inspections of each facility.          (b)  In order to ensure continuous compliance, the   commission [department] shall randomly select a sufficient   percentage of facilities for unannounced inspections to be   conducted between 5 p.m. and 8 a.m. Those inspections must be   cursory to avoid to the greatest extent feasible any disruption of   the residents.          (c)  The commission [department] may require additional   inspections.          (d)  As considered appropriate and necessary by the   commission [department], the commission [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 an intellectual disability or a related condition.          SECTION 13.  Section 252.065, Health and Safety Code, is   amended by amending Subsections (a), (b), (e), (f), (i), and (j) and   adding Subsections (l) and (m) to read as follows:          (a)  The commission [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 commission [department];                (3)  refuses to allow a representative of the   commission [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 commission [department] or the enforcement of   this chapter;                (5)  wilfully interferes with a representative of the   commission [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 commission   [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 commission [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.          (e)  The executive commissioner 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 the commission [department] may assess 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 commission [department]   determines:                (1)  represents a pattern of violations that results   [has resulted] in actual [serious] harm [to or the death of a   resident];                (2)  results in actual harm that is pervasive   throughout the services provided by the facility or that represents   a systemic failure by the facility that affects or has the potential   to affect a large number of or all of the residents of the facility;                (3)  constitutes the potential for actual harm that is   pervasive throughout the services provided by the facility or that   represents a systemic failure by the facility that affects or has   the potential to affect a large number of or all of the residents of   the facility and is a violation of this chapter or a rule, standard,   or order adopted under this chapter relating to:                      (A)  staff treatment of a resident;                      (B)  active treatment;                      (C)  client behavior and facility practices;                      (D)  health care services;                      (E)  drug administration;                      (F)  infection control;                      (G)  food and nutrition services; or                      (H)  emergency preparedness and response;                (4) [(2)]  constitutes an immediate [a serious] threat   to the health or safety of a resident; or                (5) [(3)]  substantially limits the facility's   [institution's] capacity to provide care.          (f)  The commission [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.          (i)  The commission [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 commission [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.          (l)  The commission shall develop and use a system to record   and track the scope and severity of each violation of this chapter   or a rule, standard, or order adopted under this chapter for the   purpose of assessing an administrative penalty for the violation or   taking some other enforcement action against the appropriate   facility to deter future violations. The system:                (1)  must be comparable to the system used by the   Centers for Medicare and Medicaid Services to categorize the scope   and severity of violations for nursing homes; and                (2)  may be modified, as appropriate, to reflect   changes in industry practice or changes made to the system used by   the Centers for Medicare and Medicaid Services.          (m)  In this section:                (1)  "Actual harm" means a negative outcome that   compromises a resident's physical, mental, or emotional   well-being.                (2)  "Immediate threat to the health or safety of a   resident" means a situation that causes, or is likely to cause,   serious injury, harm, or impairment to or the death of a resident.                (3)  "Pattern of violations" means the repeated, but   not pervasive, occurrence of violations that are found throughout   the services provided by a facility or that affect or involve the   same residents or facility employees.          SECTION 14.  Section 103.003, Human Resources Code, is   amended by amending Subdivision (1) and adding Subdivisions (1-a)   and (4-b) to read as follows:                (1)  "Commission" means the Health and Human Services   Commission.                (1-a)  "Day activity and health services facility"   means a facility that provides services under a day activity and   health services program on a daily or regular basis but not   overnight to four or more elderly persons or persons with   disabilities who are not related by blood, marriage, or adoption to   the owner of the facility.                (4-b)  "Facility" means a day activity and health   services facility.          SECTION 15.  Sections 103.006(a) and (b), Human Resources   Code, are amended to read as follows:          (a)  The commission [department] shall issue a license to   operate a day activity and health services facility to a person who   has met the application requirements and received approval after an   on-site inspection.          (b)  The license expires three [two] years from the date of   its issuance. The executive commissioner by rule shall [may] adopt   a system under which licenses expire on staggered [various] dates   during the three-year [two-year] period. The commission shall   prorate the license fee as appropriate if the expiration date of a   license changes as a result of this subsection [For the year in   which a license expiration date is changed, the department shall   prorate the license fee on a monthly basis. Each license holder   shall pay only that portion of the license fee allocable to the   number of months for which the license is valid. A license holder   shall pay the total license renewal fee at the time of renewal].          SECTION 16.  Section 103.008, Human Resources Code, is   amended to read as follows:          Sec. 103.008.  INSPECTIONS. (a) In addition to the   inspection required under Section 103.006(a), the commission:                (1)  shall inspect each facility every two years   following the initial inspection required under Section   103.006(a); and                (2)  [The department] may inspect [enter the premises   of] a facility at other reasonable times as [and make an inspection]   necessary to ensure compliance with this chapter [issue a license   or renew a license].          (b)  Any person may request an inspection of a facility by   notifying the commission [department] in writing of an alleged   violation of a licensing requirement. The complaint shall be as   detailed as possible and signed by the complainant. The commission   [department] shall perform an on-site inspection as soon as   feasible but no later than 30 days after receiving the complaint   unless after an investigation the complaint is found to be   frivolous. The commission [department] shall respond to a   complainant in writing. The commission [department] shall also   receive and investigate anonymous complaints.          SECTION 17.  Section 103.012, Human Resources Code, is   amended by amending Subsections (a) and (e) and adding Subsection   (g) to read as follows:          (a)  The commission [department] may assess an   administrative penalty against a person who:                (1)  violates this chapter, a rule, standard, or order   adopted under this chapter, or a term of a license issued under this   chapter;                (2)  makes a false statement of a material fact that the   person knows or should know is false:                      (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 commission [department];                (3)  refuses to allow a representative of the   commission [department] to inspect:                      (A)  a book, record, or file required to be   maintained by a day activity and health services facility; or                      (B)  any portion of the premises of a day activity   and health services facility;                (4)  wilfully interferes with the work of a   representative of the commission [department] or the enforcement of   this chapter;                (5)  wilfully interferes with a representative of the   commission [department] preserving evidence of a violation of this   chapter, a rule, standard, or order adopted under this chapter, or a   term of a license issued under this chapter;                (6)  fails to pay a penalty assessed under this chapter   not later than the 30th day after the date the assessment of the   penalty becomes final; or                (7)  fails to notify the commission [department] of a   change of ownership before the effective date of the change of   ownership.          (e)  In determining the amount of a penalty, the commission   [department] shall consider any matter that justice may require,   including:                (1)  the gradations of penalties established under   Subsection (d);                (2)  the seriousness of the violation, including the   nature, circumstances, extent, and gravity of the prohibited act   and the hazard or potential hazard created by the act to the health   or safety of the public;                (3)  the history of previous violations;                (4)  the deterrence of future violations; and                (5)  the efforts to correct the violation.          (g)  The commission shall develop and use a system to record   and track the scope and severity of each violation of this chapter   or a rule, standard, or order adopted under this chapter for the   purpose of assessing an administrative penalty for the violation or   taking some other enforcement action against the appropriate   facility to deter future violations. The system:                (1)  must be comparable to the system used by the   Centers for Medicare and Medicaid Services to categorize the scope   and severity of violations for nursing homes; and                (2)  may be modified, as appropriate, to reflect   changes in industry practice or changes made to the system used by   the Centers for Medicare and Medicaid Services.          SECTION 18.  Section 103.013, Human Resources Code, is   amended to read as follows:          Sec. 103.013.  RIGHT TO CORRECT BEFORE IMPOSITION OF   ADMINISTRATIVE PENALTY. (a) The commission [department] may not   collect an administrative penalty from a day activity and health   services facility under Section 103.012 if, not later than the 45th   day after the date the facility receives notice under Section   103.014(c), the facility corrects the violation.          (b)  Subsection (a) does not apply to:                (1)  a violation that the commission [department]   determines:                      (A)  represents a pattern of violations that   results in actual [serious] harm [to or death of a person attending   the facility];                      (B)  results in actual harm that is pervasive   throughout the services provided by the facility or that represents   a systemic failure by the facility that affects or has the potential   to affect a large number of or all of the elderly persons and   persons with disabilities receiving services at the facility;                      (C)  constitutes the potential for actual harm and   is a violation of this chapter or a rule, standard, or order adopted   under this chapter relating to:                            (i)  staffing, including staff training,   ratio, and health;                            (ii)  administration of medication; or                            (iii)  emergency preparedness and response;                      (D) [(B)]  constitutes an immediate [a serious]   threat to the health or [and] safety of an elderly person or a   person with a disability receiving services at a [a person   attending the] facility; or                      (E) [(C)]  substantially limits the facility's   capacity to provide care;                (2)  a violation described by Sections   103.012(a)(2)-(7); or                (3)  a violation of Section 103.011.          (c)  A day activity and health services facility that   corrects a violation must maintain the correction. If the facility   fails to maintain the correction until at least the first   anniversary after the date the correction was made, the commission   [department] may assess and collect an administrative penalty for   the subsequent violation. An administrative penalty assessed under   this subsection is equal to three times the amount of the original   penalty assessed but not collected. The commission [department] is   not required to provide the facility with an opportunity under this   section to correct the subsequent violation.          (d)  In this section:                (1)  "Actual harm" means a negative outcome that   compromises the physical, mental, or emotional well-being of an   elderly person or a person with a disability receiving services at a   facility.                (2)  "Immediate threat to the health or safety of an   elderly person or a person with a disability" means a situation that   causes, or is likely to cause, serious injury, harm, or impairment   to or the death of an elderly person or a person with a disability   receiving services at a facility.                (3)  "Pattern of violations" means the repeated, but   not pervasive, occurrence of violations that are found throughout   the services provided by a facility or that affect or involve the   same elderly persons or persons with disabilities receiving   services at the facility or the same facility employees.          SECTION 19.  Section 247.0025, Health and Safety Code, is   repealed.          SECTION 20.  The changes in law made by this Act apply only   to actions taken by the Health and Human Services Commission and   license holders under Chapter 103, Human Resources Code, and   Chapters 242, 247, 248A, and 252, Health and Safety Code, on or   after the effective date of this Act.  An action taken before the   effective date of this Act is governed by the law in effect at that   time, and the former law is continued in effect for that purpose.          SECTION 21.  This Act takes effect September 1, 2017.