(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.

Source Note: The provisions of this §702.401 adopted to be effective March 1, 2001, 26 TexReg 1352