Advocacy Update Jaime Capelo, Capelo Law Firm Diana Martinez, Texas Assisted Living Association

1. Advocacy UpdateJaime Capelo, Capelo Law FirmDiana Martinez, Texas Assisted Living Association April 3, 2019

2. Out and About with TALA TALA is committed to raising awareness of assisted living issues, especially at the Texas Capitol and at the Health and Human Services Commission.

3. TALA Advocacy Day 2019 TALA Advocacy Day was March 5th at the Texas Capitol “TALA always has a great showing at the Capitol. I thoroughly enjoyed spending part of your advocacy day with you. Keep up the good work.” Representative Richard Pena Raymond

4. TALA Advocacy Day at the Texas Capitol • “Our United strength thru TALA was pivotal to this year’s success at Advocacy Day 2019!” • Michelle Neumann • Administrator  • Silverado Onion Creek

5. TALA Advocacy Day at the Texas Capitol During the TALA Advocacy Day, we got to share with legislators what we do and our legislative agenda (which everyone we spoke with seemed to think made common sense, once they learned what we actually do!). It was a productive, informative, and fun experience! Thank you Diana, Jamie, and TALA for helping us give a voice to the residents we serve every day.   Helen Hunsinger Manager, Strategic Relations  Belmont Village

6. TALA Advocacy Day at the Texas Capitol • “Advocacy Day at the Capital was a great experience to learn about the various types of legislation that impact senior living operations and the residents we serve. I’m grateful to TALA for the leadership they provide and for the opportunity to open channels of communication with our legislators.” • Anthony Ormsbee-Hale • VP, People Operations • Civitas Senior Living

7. TALA Advocacy Day at the Texas Capitol • A special thanks to • Civitas Senior Living for showing up in force!

8. Community Tours October 22, 2018 A special thanks to Arbor House Assisted Living, a Veritas community, in Wichita Falls for hosting Rep. James Frank!

9. Community Tours October 30, 2018 A special thanks to Atria Westchase in Houston who hosted Representative Gene Wu for a tour!

10. 86th Legislative Session Key Leaders and the Legislative Process

11. The Trifecta • Governor Greg Abbott Speaker Dennis Bonnen • Lt. Governor Dan Patrick

12. 86th Texas Legislature Texas Senate – 31 Members • 19 Republicans – 12 Democrats • Health and Human Services Committee Chair Lois Kolkhorst Texas House of Representatives – 150 Members • 83 Republicans – 67 Democrats • Human Services Committee Chair James Frank

13. The Legislative Process Simplified Process Starts Over in Opposite Chamber Governor can sign, do nothing, or veto

14. How busy is the 86th Legislative Session? Began January 8th // Lasts 140 days 83rd Legislative Session • 5868 bills were filed • 1457 passed outright (24.8%) 84th Legislative Session • 6,276 bills were filed • 1282 passed outright (20.4%) 85th Legislative Session • 6,631 bills filed • 1,211 passed outright / Governor vetoed 50 (17.5%) 86th Legislative Session • 7,105 bills filed

15. 86th Legislative SessionTALA’s Legislative Agenda

16. Safer Assisted Living Communities Through Heightened Background Checks SB 898 by Senator Charles Perry HB 2392 by Representative Stephanie Klick Issue • The current background checks process for potential employees does a great job of screening for people who have resided in Texas. • However, the workforce is becoming increasing mobile. Texas’ great economy draws hundreds of new people to the state every day. • The current required background check system required by HHSC does not require employers to do an out of state screen on applicants who have moved to Texas.

17. Safer Assisted Living Communities Through Heightened Background Checks SB 898 // HB 2392 • For all perspective applicants who have moved to Texas within 5 years of the date employment application, require assisted living communities conduct a name-based criminal background check in each state that the applicant resided. • Require all applicants deny in a statement that no disqualifying crimes have occurred. • A facility may employ a person pending an out-of-state criminal history check; however, the facility shall ensure that the person has no direct care contact with a resident until the facility obtains the person's criminal history record information and verifies the person's employability.

18. Clarify the Types of Services Permitted in Assisted Living Communities SB 1406 by Senator Dawn Buckingham HB 3329 by Representative James Frank Issue • Communities around the state have been cited for performing task that are routine maintenance health task. Examples: minor wound dressing changes; changing catheter bags; and Bolus tube feedings. • Current statute is ambiguous on some of the types of services permitted in communities. • This creates inconsistency in interpretation by both providers and the Health and Human Services Commission.

19. Clarify the Types of Services Permitted in Assisted Living Communities SB 1406 // HB 3329 The legislation defines an assisted living community as an establishment that may provide Health Maintenance Activities as defined by the Texas Board of Nursing. HMAs are tasks that may be exempt from RN delegation based on a RN assessment that enables a resident to remain in an independent living environment and go beyond ADLs because of the higher skill level required to perform.

20. Budget • Advocate for additional HHSC funding for licensing specialist. • HHSC is asking for 17 new FTEs in Licensing / 12 Specialist. • Advocate that the Assisted Living Ombudsman’s maintain funding • ALF ombudsman funds were impacted by general appropriation reductions to HHSC – loss of $90,000/year. • As a result of the loss in funding, facility visits will be reduced. In previous years, ombudsmen were required to visit between 4-10 times a year, depending on the facility type and size. Ombudsman are now required to visit anywhere between 4-7 times a year. This results in approximately 1,600 fewer visits.

21. 86th Legislative SessionLegislation Impacting Assisted Living

22. Legislation Impacting Assisted Living HB 284by Rep. Mary Ann Perez Relating to disclosure requirements of certain facilities that provide care for persons with Alzheimer's disease and related disorders. • An AL must disclosure whether a community is Alz. Certified or is not • Must provide disclosure to residents, those applying for services, and those requesting • Must keep a record of all provided disclosure to • Must post disclosure regardless if certified

23. Legislation Impacting Assisted Living HB 823by Yvonne Davis Relating to an expedited on-site health inspection process for assisted living facility license applicants. • Allows for an expedited life safety inspection or an expedited health inspection

24. Legislation Impacting Assisted Living HB 1423by Bobby Guerra and HB 1361 by Wu Relating to an immunization rate tracking system for employees and residents of certain long-term care facilities. • Requires a community to track the immunization rates of the facility’s employees and residents. Must include: (1) aggregate immunization rates of the facility ’ s employees and residents; and (2) changes to the aggregate immunization rates • Requires that the rate data be provided on request. • Data provided may not in any manner identify an employee or resident.

25. Legislation Impacting Assisted Living HB 1715by Yvonne Davis Relating to registration of certain establishments providing assisted living services. • Requires registration of “Similar Assisted Living Services Establishments”. • Establishments serving 1 to 3 people not related to the owner and provides personal care services or medication administration. • Uses the same definition as an assisted living facilitiy. • Subject to enforcement action.

26. Legislation Impacting Assisted Living HB 1848by Stephanie Klick and HB 1360 by Wu Relating to prevention of communicable diseases in certain long-term care facilities Each facility’s infection prevention and control program must include: • monitoring of key infectious agents, including multidrug-resistant organisms • procedures for communicating the presence of multidrug-resistant organism infections when admitting a resident to or transferring a resident from the facility • procedures for making rapid influenza diagnostic tests available to facility residents.

27. Legislation Impacting Assisted Living HB 1848by Stephanie Klick and HB 1360 by Wu • Requires each facility’s infection prevention and control program have a provision for reporting to the health authority or the department when two or more confirmed cases of influenza occur among facility residents within a 72-hour period. • Establishes Antimicrobial Stewardship Regional Advisory Committees.

28. Legislation Impacting Assisted Living HB 1915by John Zerwas Relating to a state plan for education on and treatment of Alzheimer's disease and related disorders. HHSC shall develop and implement a state plan for education on and treatment of Alzheimer ’ s disease and related disorders. The plan must include strategies for: • improving early detection of, reducing disease onset risks for, and improving treatment of Alzheimer ’ s disease and related disorders for specific demographic groups; • educating health care professionals, caregivers, and the public to increase awareness; • providing caregiver support; • advancing basic science and applied research; and • collecting and evaluating information on efforts to prevent and treat Alzheimer ’ s disease and related disorders.

29. Legislation Impacting Assisted Living HB 1878by Sarah Davis Relating to a report on the quality of care provided to and quality of life of assisted living facility residents • HHSC shall conduct a study of not less than 30% ALs, to assess the quality of care provided to and quality of life of residents. • In conducting the study, HHSC shall: (1) conduct on-site case reviews of the care provided to residents (2) review the disclosure statements and policies, including policies related to residents’ rights, and (3) conduct interviews with residents, representatives of residents, personnel; and any ombudsman that investigates and reviews the facility.

30. Legislation Impacting Assisted Living HB 1922by Shawn Thierry Relating to emergency power sources in nursing facilities and assisted living facilities Requires each assisted living facility to ensure the facility is equipped with an emergency power source. 2059 by Cesar Blanco Relating to required human trafficking prevention training for health care practitioners and certain employees of health care facilities. Requires ALs to require each health care practitioner who is employed by the facility to successfully complete a training course on identifying and assisting victims of human trafficking

31. Legislation Impacting Assisted Living HB 1952by John Zerwas Relating to community homes for persons with disabilities; creating a criminal offense. • A HOA may not “effectively prohibit” a Chapter 123 home. • Can’t have more cars than bedrooms in the home. • Creates a criminal offense if exceed car allotment. • A HOA or property owner can file a complaint with HHSC. • A HOA can enforce a restrictive covenant against an AL to the same extent as any other property owner.

32. Legislation Impacting Assisted Living HB 2067by Bobby Guerra Relating to influenza information for residents of assisted living facilities. • Requires ALs to provide educational information regarding influenza to each resident not later than September 1st of each year. • Material must include: (1) the risks associated with influenza; (2) the latest influenza vaccination recommendations from the CDC; (3) the availability, effectiveness, and known contraindications of the flu vaccine; (4) the causes and symptoms; and (5) the means by which the flu is spread. • HHSC can’t require AL to provide or pay for vaccine.

33. Legislation Impacting Assisted Living HB 2205by Travis Clardy Relating to the informal dispute resolution process for certain disputes between the Health and Human Services Commission and long-term care facilities. The IDR process for the statement of violations must require: (1) the surveyor who conducted the survey to be available to testify or be examined during any proceeding of the IDR process; and (2) the commission’s review of the institution’s or facility’s informal dispute resolution request to be conducted by a registered nurse with long-term care experience for a standard of care violation.

34. Legislation Impacting Assisted Living HB 2873by Yvonne Davis Relating to the room placement of individuals with Alzheimer's disease or dementia in health care facilities and correctional facilities. Prohibits a health care facility from requiring a resident with Alzheimer’s disease or dementia to reside in the same room as a resident with mental illness and a history of violence.

35. Legislation Impacting Assisted Living HB 3170by Jeff Leach Relating to the establishment of an interim registry for certain persons who have been accused of employee misconduct who are employed by a facility that provides care to individuals with an intellectual disability. • Creates an interim registry for employees who have requested a hearing on a finding or determination. • Name, address, SSN, name and address of the facility or individual employer of the employee, date on which the reportable conduct occurred, and description of the conduct. • Provider participating in the HCS or TxHmL waiver programs may have to take actions regarding an employee who is on the interim registry based on seriousness of conduct. Actions could include: additional monitoring; reassignment; or suspension.

36. Legislation Impacting Assisted Living HB 3400by Bill Zedler Relating to required criminal history checks for nurse aides; authorizing a fee. • A health care facility may not employ a nurse aide or contract for nurse aide services with a nurse aide unless the facility or practitioner obtains the HHSC ’s verification of employability for the nurse aide. • Nurse aide means an individual who provides nursing or nursing-related services under the delegated authority of a nurse. • To determine employability HHSC shall consider info from DPS or the FBI • HHSC may charge a fee to verify employability.

37. Legislation Impacting Assisted Living HB 3428 by Giovanni Capriglione Relating to training on Alzheimer's disease and dementia for certain Department of Family and Protective Services employees and area agencies on aging employees and volunteers. • HHSC shall develop training for Adult Protective Services employees on identifying and interacting with individuals who have Alzheimer ’ s disease or dementia. • The APS training must include an initial four-hour training requirement and an annual two hour continuing education requirement • An area agency on aging must ensure that the agency’s employees or volunteers who provide services directly to an elderly individual or the individual ’ s family members or caregivers receive training on Alzheimer’s disease and dementia.

38. Legislation Impacting Assisted Living HB 3611 by Yvonne Davis Relating to the number of persons authorized to reside in certain homes and facilities for persons with disabilities. This legislation specifies that the limitation on the number of persons who may reside in a Chapter 123 community home at the same time does not apply to an assisted living facility licensed under Chapter 247, Health and Safety Code, unless the assisted living facility qualifies as a community home in accordance with Section 123.004

39. Legislation Impacting Assisted Living HB 3774 by Yvonne Davis Relating to investigations of abuse or exploitation of an elderly person or person with a disability. Removes the requirement that an individual, other than a family member or caretaker, have an ongoing relationship with the individual in order for there to be abuse or exploitation. B 3857 by Tony Tinderholt Relating to discrimination by a health care provider based on immunization status. Prohibits a health care provider from refusing to provide health care services to a patient solely because a patient has or has not received immunization for a particular communicable disease.

40. Legislation Impacting Assisted Living HB 4057 by Yvonne Davis Relating to the amount of an administrative penalty that may be assessed against an assisted living facility. • This legislation changes the maximum administrative penalty for communities with 16 or fewer beds from $5,000 to $1,000. • The violation must represents a pattern of violation that results in actual harm or is widespread in scope and results in actual harm; or constitutes an immediate threat to the health or safety of a resident;

41. Legislation Impacting Assisted Living HB 4224 by Ron Reynolds Relating to a study to evaluate state and local regulation of group homes. Requires HHSC to conduct a study on state and local regulation of group homes. The study must: • identify and evaluate state laws relating to the regulation of group homes, including: assisted living facilities; boarding home facilities; and Chapter 123 community homes • analyze the procedures for filing complaints against group homes and make recommendations to expedite complaint processes • analyze complaints filed against group homes after 2009 • analyze the enforcement authority over group homes granted to state and local governmental agencies, including the authority of counties and municipalities to enforce boarding home regulations

42. Legislation Impacting Assisted Living HB 4476 by Yvonne Davis Relating to civil liability for abuse or exploitation of an elderly person or person with a disability. • The legislation creates a civil cause of action for abuse or exploitation of an elderly person or person with a disability. • A claimant who prevails in a suit under this section may recover actual damages, including damages for mental anguish even if an injury other than mental anguish is not shown. • a claimant who prevails in a suit may recover exemplary damages and reasonable attorney fees.

43. Legislation Impacting Assisted Living SB 763 by Jose Menendez Relating to a creditor's remedies with respect to certain delinquent payments owed by an elderly person who has an agent appointed under a durable power of attorney. • A creditor to whom an elderly person owes a payment that is delinquent and arose out of a purchase or lease agreement or other contractual arrangement that secures the elderly person’s living quarters must comply with these requirements before taking an adverse action against the elderly person, including commencing an eviction proceeding, if the creditor knows or has reason to know that the elderly principal executed a durable power of attorney that grants authority to an agent that would allow the agent to make the payment that is delinquent.

44. Legislation Impacting Assisted Living SB 763 by Jose Menendez The creditor must: 1) submit a written request to the agent by certified mail, return receipt requested, that the delinquent payment be made on or before the 30th day after the date the agent receives the request; and 2) if the creditor does not receive payment on or before the 30th day after the date the agent received the written request, bring an action requesting a court to review the agent ’ s conduct and grant appropriate relief. • A creditor who files an action with a court may not take an adverse action against the elderly person until the court enters an order on the action.

45. Legislation Impacting Assisted Living SB 1519 by Lois Kolkhorst Relating to a council on long-term care facilities. • Requires the executive commissioner to establish a Long-Term Care Facilities Council as a permanent advisory committee to the commission. • The council shall study and make recommendations regarding best practices and protocols to make survey, inspection, and informal dispute resolution processes more efficient and less burdensome on long-term care facilities; recommend uniform standards for those processes; and study and make recommendations regarding Medicaid quality-based payment systems for long-term care facilities.

46. Legislation Impacting Assisted Living SB 1897by Judith Zaffirini Relating to a bill of rights for home health care attendants employed at certain long-term care facilities. HHSC, in collaboration with the Texas Workforce Commission, shall prepare and publish on the HHSC’s Internet website a bill of rights for home health care attendants employed by a long-term care facility licensed under Chapter 103, Human Resources Code, or Chapter 242, 247, 248A, or 252, Health and Safety Code.

47. Legislation Impacting Assisted Living SB 2279by Royce West Relating to creating the criminal offense of financial abuse of an elderly individual. • Creates a criminal offense if a person knowingly engages in the financial abuse of an elderly individual • "Financial abuse" means the wrongful taking, appropriation, obtaining, retention, or use of, or assisting in the wrongful taking, appropriation, obtaining, retention, or use of, money or other property of another person by any means, including by exerting undue influence. The term includes financial exploitation. • "Financial exploitation" includes: breach of a fiduciary relationship, including the misuse of a durable power of attorney or the abuse of guardianship powers, that results in the unauthorized appropriation, sale, or transfer of another person’s property; knowing or intentional failure to effectively use another person’s income and assets for the necessities required for the person’s support and maintenance.

48. Life after SessionDealing with the Aftermath

49. When do the laws of the 86th take effect? • Almost all laws passed during the 86th will take effect on 9/1/2019. • However, most of the laws that impact ALFs have to have changes made to the Texas Administration Code. • That process takes time. First, the agency has to develop the new regulations and present them to the HHSC Executive Council. Then the suggested change is posted to the Texas Registry for public comment. The change is finally signed off on by the HHSC commissioner. • Expect regulation changes to start happening in early spring of 2020. • TALA will monitor implementation of significant legislation from the 86th – We will participate in various work groups to provide input, submit testimony, and testify as needed.

50. Grass Roots AdvocacyHelp others see the future! • After the legislative session is over TALA will be working to get members of the legislature and key staff out to assisted living communities. • Having people at the Capitol informed about assisted living issues gives us an edge during the legislative session. • If you are interested in inviting a legislator to your community please contact Diana Martinez.