(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 §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 an 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.
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