| (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.
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| Source Note: The provisions of this §3.3 adopted to be effective August 18, 1999, 24 TexReg 6315; transferred effective November 29, 2024, as published in the November 8, 2024, issue of the Texas Register, 49 TexReg 9027 |
