By: Maxey H.B. No. 2552
73R5682 DLF-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the establishment, powers, and duties of the State
1-3 Health Resources Planning and Cost Containment Commission;
1-4 providing penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subtitle A, Title 4, Health and Safety Code, is
1-7 amended by adding Chapter 230 to read as follows:
1-8 CHAPTER 230. HEALTH RESOURCES PLANNING AND COST CONTAINMENT
1-9 SUBCHAPTER A. GENERAL PROVISIONS
1-10 Sec. 230.001. DEFINITIONS. In this chapter:
1-11 (1) "Commission" means the State Health Resources
1-12 Planning and Cost Containment Commission appointed under this
1-13 chapter.
1-14 (2) "Executive director" means the executive director
1-15 of the commission.
1-16 (3) "Regional committee" means a regional advisory
1-17 planning committee appointed under this chapter.
1-18 (4) "Health care facility" means any facility at which
1-19 health services are offered to the public, including:
1-20 (A) a public or private hospital;
1-21 (B) a skilled nursing facility;
1-22 (C) an intermediate care facility;
1-23 (D) an ambulatory surgical facility and any
1-24 other facility that performs ambulatory surgical procedures;
2-1 (E) a rural or urban health initiative clinic;
2-2 (F) a kidney disease treatment facility;
2-3 (G) an inpatient rehabilitation facility;
2-4 (H) an institution licensed under Chapter 242;
2-5 (I) a home health care agency, including a
2-6 hospice;
2-7 (J) a clinic or other facility operated by a
2-8 preferred provider arrangement or health maintenance organization;
2-9 (K) the office of one or more physicians,
2-10 podiatrists, or dentists; or
2-11 (L) any other facility designated as a health
2-12 care facility by federal law.
2-13 (5) "Health service region" means a region designated
2-14 by the board under Section 230.041.
2-15 (6) "State plan" means the comprehensive state health
2-16 care plan developed under Section 230.029.
2-17 SUBCHAPTER B. STATE HEALTH RESOURCES PLANNING
2-18 AND COST CONTAINMENT COMMISSION
2-19 Sec. 230.021. COMMISSION ESTABLISHED. The State Health
2-20 Resources Planning and Cost Containment Commission is an
2-21 independent commission in the department.
2-22 Sec. 230.022. MEMBERSHIP. (a) The commission is composed
2-23 of 13 members. Twelve of the members are appointed by the governor
2-24 with the advice and consent of the senate as follows:
2-25 (1) five consumers of health care services
2-26 representing regional committees;
2-27 (2) two consumers of health care services representing
3-1 the public at large; and
3-2 (3) five health care providers, at least three of whom
3-3 shall represent health care facilities.
3-4 (b) Each appointed member of the commission must have
3-5 demonstrated interest or experience in addressing health care
3-6 problems.
3-7 (c) The commissioner shall serve as an ex officio member of
3-8 the commission and, except as provided by Section 230.023, may vote
3-9 on matters before the commission.
3-10 (d) The appointed members of the commission serve staggered
3-11 six-year terms, with the terms of four members expiring on February
3-12 1 of each odd-numbered year.
3-13 (e) In the event of a vacancy during a term, the governor
3-14 shall fill the vacancy with a person who meets the qualifications
3-15 of the vacated position.
3-16 Sec. 230.023. LIMITATION ON DUTIES OF COMMISSIONER. The
3-17 commissioner may not participate in the commission's consideration
3-18 of:
3-19 (1) an application for a permit of approval under
3-20 Subchapter D; or
3-21 (2) personnel matters involving commission staff.
3-22 Sec. 230.024. COMPENSATION; EXPENSES. An appointed member
3-23 of the commission is entitled to:
3-24 (1) compensation as provided in the General
3-25 Appropriations Act; and
3-26 (2) reimbursement for expenses incurred in performing
3-27 the member's duties at the rate provided in the General
4-1 Appropriations Act.
4-2 Sec. 230.025. PRESIDING OFFICER; ASSISTANT PRESIDING
4-3 OFFICER. Annually, the governor shall designate an appointed
4-4 member of the commission to serve as presiding officer. The
4-5 presiding officer shall designate an appointed member of the
4-6 commission to serve as assistant presiding officer.
4-7 Sec. 230.026. EXECUTIVE DIRECTOR; STAFF. (a) The
4-8 commission shall employ an executive director, who is responsible
4-9 for administering the functions of the commission.
4-10 (b) The executive director may employ staff as necessary to
4-11 carry out the functions of the commission. The commission shall
4-12 compensate staff as provided in the General Appropriations Act.
4-13 Sec. 230.027. MEETINGS; APPLICABILITY OF OPEN MEETINGS AND
4-14 OPEN RECORDS LAWS. (a) The commission shall meet as prescribed by
4-15 the rules of the commission and at the call of the presiding
4-16 officer.
4-17 (b) The commission is subject to the open meetings law,
4-18 Chapter 271, Acts of the 60th Legislature, Regular Session, 1967
4-19 (Article 6252-17, Vernon's Texas Civil Statutes), and the open
4-20 records law, Chapter 424, Acts of the 63rd Legislature, Regular
4-21 Session, 1973 (Article 6252-17a, Vernon's Texas Civil Statutes).
4-22 Sec. 230.028. GENERAL POWERS. The commission may:
4-23 (1) adopt rules to implement this chapter;
4-24 (2) establish subcommittees from among its members;
4-25 (3) appoint advisory committees;
4-26 (4) apply for and accept federal funds and private
4-27 grants to implement this chapter;
5-1 (5) contract with any person for studies, development
5-2 of information, and provision of services to implement this
5-3 chapter; and
5-4 (6) conduct hearings.
5-5 Sec. 230.029. COMPREHENSIVE STATE HEALTH PLAN; REPORT. (a)
5-6 The commission shall study the service capacity of health care
5-7 facilities in this state on a continuing basis and shall develop a
5-8 comprehensive state health plan. The goal of the plan is to ensure
5-9 the development and maintenance of health care facilities to
5-10 provide comprehensive health care services for all health service
5-11 regions in an equitable manner.
5-12 (b) The state plan must address:
5-13 (1) the education of health care professionals;
5-14 (2) research needs;
5-15 (3) the introduction and placement of high-technology
5-16 equipment and new health care facilities;
5-17 (4) the addition of new beds in existing health care
5-18 facilities;
5-19 (5) the appropriate number of various types of health
5-20 care professionals located in particular health care facilities and
5-21 health service regions;
5-22 (6) the establishment of regional trauma and tertiary
5-23 care systems; and
5-24 (7) the needs of underserved regions and
5-25 recommendations for addressing those needs, including the
5-26 establishment of incentive programs.
5-27 (c) To develop the state plan, the commission may study:
6-1 (1) the adequacy of health care services and financial
6-2 resources to meet the needs of the population;
6-3 (2) the allocation and distribution of health care
6-4 resources;
6-5 (3) the cost of health care in relationship to
6-6 financial resources; and
6-7 (4) any other appropriate matter.
6-8 (d) In developing the state plan, the commission shall
6-9 consider the input of regional committees.
6-10 (e) Not later than February 1 of each odd-numbered year, the
6-11 commission shall file the state plan with the governor and the
6-12 presiding officer of each house of the legislature.
6-13 Sec. 230.030. INFORMATION FROM HEALTH CARE FACILITIES;
6-14 ADMINISTRATIVE PENALTY. (a) The commission may request, collect,
6-15 and report any statistical or other information that is needed by
6-16 the commission to perform its duties under this chapter. The
6-17 information must be described by rule adopted by the commission.
6-18 The commission may not require information that is confidential by
6-19 law, except that the commission may require summaries of
6-20 confidential information that do not identify individual patients
6-21 or health care professionals.
6-22 (b) A person that refuses to provide the information commits
6-23 an administrative violation and the commission may assess an
6-24 administrative penalty against the person as provided by this
6-25 section.
6-26 (c) The penalty for each violation may not exceed $100.
6-27 Each day a violation continues or occurs may be considered a
7-1 separate violation for purposes of penalty assessments.
7-2 (d) In determining the amount of the penalty, the executive
7-3 director shall consider:
7-4 (1) the seriousness of the violation;
7-5 (2) the history of previous violations;
7-6 (3) the amount necessary to deter future violations;
7-7 (4) efforts to correct the violation; and
7-8 (5) any other matter that justice may require.
7-9 (e) If, after investigation of a possible violation and the
7-10 facts surrounding that possible violation, the executive director
7-11 determines that a violation has occurred, the executive director
7-12 may issue a violation report stating the facts on which the
7-13 conclusion that a violation occurred is based, recommending that an
7-14 administrative penalty under this section be imposed on the person
7-15 charged, and recommending the amount of that proposed penalty. The
7-16 executive director shall base the recommended amount of the
7-17 proposed penalty on the seriousness of the violation determined by
7-18 consideration of the factors set forth in Subsection (d).
7-19 (f) Not later than the 14th day after the date on which the
7-20 report is issued, the executive director shall give written notice
7-21 of the report to the person charged. The notice shall include a
7-22 brief summary of the charges, a statement of the amount of the
7-23 penalty recommended, and a statement of the right of the person
7-24 charged to a hearing on the occurrence of the violation, the amount
7-25 of the penalty, or both.
7-26 (g) Not later than the 20th day after the date on which
7-27 notice is received, the person charged may accept the determination
8-1 of the executive director made under Subsection (e), including the
8-2 recommended penalty, or make a written request for a hearing on the
8-3 determination.
8-4 (h) If the person charged with the violation accepts the
8-5 determination of the executive director, the commission shall issue
8-6 an order approving the determination and ordering the payment of
8-7 the recommended penalty.
8-8 (i) If the person charged requests a hearing or fails to
8-9 timely respond to the notice, the executive director shall set a
8-10 hearing and give notice of the hearing. The hearing shall be held
8-11 by the State Office of Administrative Hearings. The State Office
8-12 of Administrative Hearings shall make findings of fact and
8-13 conclusions of law and promptly issue to the commission a proposal
8-14 for decision as to the occurrence of the violation, including a
8-15 recommendation as to the amount of the penalty. Based on the
8-16 findings of fact, conclusions of law, and recommendations of the
8-17 administrative law judge, the commission by order may find a
8-18 violation has occurred and may assess a penalty or may find that no
8-19 violation has occurred. All proceedings under this subsection are
8-20 subject to the Administrative Procedure and Texas Register Act
8-21 (Article 6252-13a, Vernon's Texas Civil Statutes).
8-22 (j) The executive director shall give notice of the
8-23 commission's order to the person charged. The notice shall
8-24 include:
8-25 (1) the findings of fact and conclusions of law
8-26 separately stated;
8-27 (2) the amount of the penalty ordered, if any;
9-1 (3) a statement of the right of the person charged to
9-2 judicial review of the commission's order, if any; and
9-3 (4) other information required by law.
9-4 (k) Within the 30-day period immediately following the day
9-5 on which the order becomes final as provided by Section 16(c),
9-6 Administrative Procedure and Texas Register Act (Article 6252-13a,
9-7 Vernon's Texas Civil Statutes), the person charged with the penalty
9-8 shall:
9-9 (1) pay the penalty in full; or
9-10 (2) if the person files a petition for judicial review
9-11 contesting either the amount of the penalty or the fact of the
9-12 violation or contesting both the fact of the violation and the
9-13 amount of the penalty:
9-14 (A) forward the amount to the executive director
9-15 for placement in an escrow account; or
9-16 (B) in lieu of payment into escrow, post with
9-17 the executive director a supersedeas bond in a form approved by the
9-18 executive director for the amount of the penalty, the bond to be
9-19 effective until all judicial review of the order or decision is
9-20 final.
9-21 (l) If a person charged is financially unable to either
9-22 forward the amount of the penalty for placement in an escrow
9-23 account or post a supersedeas bond for the amount of the penalty,
9-24 the person may satisfy the requirements of Subsection (k)(2) by
9-25 filing with the executive director an affidavit sworn by the person
9-26 charged, stating that the person is financially unable to either
9-27 forward the amount of the penalty or post a bond.
10-1 (m) Failure to forward the money to or to post the bond or
10-2 file the affidavit with the executive director within the time
10-3 provided by Subsection (k) results in a waiver of all legal rights
10-4 to judicial review. Also, if the person charged fails to pay the
10-5 penalty in full as provided under Subsection (k)(1) or forward the
10-6 money, post the bond, or file the affidavit as provided by
10-7 Subsection (k) or (l), the executive director may forward the
10-8 matter to the attorney general for enforcement.
10-9 (n) Judicial review of the order or decision of the
10-10 commission assessing the penalty shall be under the substantial
10-11 evidence rule and shall be instituted by filing a petition with a
10-12 district court in Travis County, as provided by Section 19,
10-13 Administrative Procedure and Texas Register Act (Article 6252-13a,
10-14 Vernon's Texas Civil Statutes).
10-15 (o) If the penalty is reduced or not assessed by the court,
10-16 the executive director shall remit to the person charged the
10-17 appropriate amount plus accrued interest if the penalty has been
10-18 paid or shall execute a release of the bond if a supersedeas bond
10-19 has been posted. The accrued interest on amounts remitted by the
10-20 executive director under this section shall be paid at a rate equal
10-21 to the rate charged on loans to depository institutions by the New
10-22 York Federal Reserve Bank and shall be paid for the period
10-23 beginning on the date the penalty is paid to the executive director
10-24 under Subsection (k) and ending on the date the penalty is
10-25 remitted.
10-26 (p) A penalty collected under this section shall be
10-27 deposited in the state general revenue fund.
11-1 Sec. 230.031. APPLICABILITY OF SUNSET ACT. The commission
11-2 is subject to Chapter 325, Government Code (Texas Sunset Act).
11-3 Unless continued in existence as provided by that chapter, the
11-4 commission is abolished September 1, 2005.
11-5 SUBCHAPTER C. HEALTH SERVICE REGIONS AND
11-6 REGIONAL ADVISORY PLANNING COMMITTEES
11-7 Sec. 230.041. HEALTH SERVICE REGIONS. The board shall
11-8 divide the state into health service regions.
11-9 Sec. 230.042. REGIONAL ADVISORY PLANNING COMMITTEES. (a)
11-10 The board shall provide for the appointment of a regional advisory
11-11 planning committee for each health service region.
11-12 (b) Each regional committee is composed of nine members as
11-13 follows:
11-14 (1) five representatives of consumers, including two
11-15 representatives of employers; and
11-16 (2) four representatives of health care facilities.
11-17 (c) Members of each regional committee shall serve two-year
11-18 terms expiring March 1 of each odd-numbered year. Members may not
11-19 serve more than two complete consecutive terms.
11-20 (d) In the event of a vacancy during a term, including a
11-21 vacancy under Section 230.045(b), the vacancy shall be filled in
11-22 the same manner as the original appointment was made.
11-23 Sec. 230.043. PRESIDING OFFICER. Each regional committee
11-24 shall elect a presiding officer from among its members.
11-25 Sec. 230.044. COMMITTEE PROCEDURES. The board shall adopt
11-26 rules and procedures for the regional committees and shall
11-27 establish deadlines for committee activities to ensure the
12-1 committee's input in the development and revision of the state
12-2 plan.
12-3 Sec. 230.045. PUBLIC TESTIMONY. (a) Each regional
12-4 committee shall meet not less than four times each year to take
12-5 public testimony relating to the state plan and the health care
12-6 needs of the health service region.
12-7 (b) A member who is absent for more than two of the meetings
12-8 required by this section during the member's two-year term is
12-9 ineligible to continue to serve on the committee.
12-10 Sec. 230.046. MEETINGS. A regional committee may hold
12-11 meetings in addition to those required under Section 230.045 at the
12-12 call of the chair.
12-13 SUBCHAPTER D. PERMIT OF APPROVAL
12-14 Sec. 230.061. APPLICATION FOR PERMIT OF APPROVAL; RULES;
12-15 FEE. (a) The commission shall adopt rules for application for a
12-16 permit of approval under this subchapter.
12-17 (b) The commission shall set a reasonable fee to accompany
12-18 an application for a permit of approval.
12-19 Sec. 230.062. ISSUANCE OF PERMIT; RULES AND STANDARDS. (a)
12-20 The commission shall adopt rules and standards for issuance of a
12-21 permit of approval under this subchapter. The standards for
12-22 issuance of a permit of approval must reflect the needs of the
12-23 health service regions as identified in the state plan.
12-24 (b) The commission may adopt rules waiving the requirement
12-25 of a permit of approval in specific circumstances delineated by
12-26 rule. Rules adopted under this subsection may relate to:
12-27 (1) the cost of the activity that would otherwise
13-1 require a certificate of approval;
13-2 (2) the type of medical services provided;
13-3 (3) the impact of the activity on the affected health
13-4 service region; and
13-5 (4) any other relevant matter.
13-6 Sec. 230.063. NEW HEALTH CARE FACILITY. A person may not
13-7 develop, construct, or establish a new health care facility unless
13-8 a permit of approval for that facility has been issued under this
13-9 chapter.
13-10 Sec. 230.064. RELOCATION OF HEALTH CARE FACILITY. A person
13-11 may not relocate an existing health care facility to a new site
13-12 unless a permit of approval for the relocation has been issued
13-13 under this chapter.
13-14 Sec. 230.065. INCREASE IN BED CAPACITY. (a) Except as
13-15 provided by Subsection (b), a person may not increase or decrease
13-16 the bed capacity of an existing health care facility unless a
13-17 permit of approval for the increase or decrease has been issued
13-18 under this chapter.
13-19 (b) The commission shall adopt rules relating to minimum
13-20 increases and decreases in bed capacity that do not require a
13-21 permit of approval under this section.
13-22 Sec. 230.066. CHANGE IN SERVICES. A person may not change
13-23 the type of services provided by a facility unless a permit of
13-24 approval for the change has been issued under this chapter.
13-25 Sec. 230.067. CAPITAL EXPENDITURES; PURCHASE OF CAPITAL
13-26 EQUIPMENT. (a) A person may not make an expenditure for or on
13-27 behalf of a health care facility without a permit of approval if
14-1 the expenditure is not properly chargeable as an operating or
14-2 maintenance expense of the facility and:
14-3 (1) the expenditure exceeds $900,000 and is made as
14-4 part of an improvement to or expansion of the facility; or
14-5 (2) the expenditure exceeds $500,000 and is made to
14-6 replace or purchase equipment for the facility.
14-7 (b) The commission may adopt rules adjusting the minimum
14-8 limits of this section for inflation.
14-9 (c) The commission shall adopt rules prohibiting a health
14-10 facility from avoiding the requirements of this section by
14-11 accounting for expenditures for a single project as separate costs.
14-12 Sec. 230.068. EXCEPTION: CERTAIN PRIVATE PHYSICIANS. This
14-13 subchapter does not apply to a health care facility used only by
14-14 one private physician or a group of private physicians practicing a
14-15 single specialty if the expenditures related to the activity that
14-16 would otherwise require a permit of approval are less than $1
14-17 million.
14-18 SECTION 2. (a) Chapter 225, Health and Safety Code, is
14-19 repealed.
14-20 (b) This section takes effect September 1, 1994.
14-21 SECTION 3. In making the initial appointments to the State
14-22 Health Resources Planning and Cost Containment Commission, the
14-23 governor shall appoint four members for terms expiring February 1,
14-24 1995, four members for terms expiring February 1, 1997, and four
14-25 members for terms expiring February 1, 1999.
14-26 SECTION 4. The State Board of Health shall provide for the
14-27 appointment of members of the regional advisory planning committees
15-1 established under Chapter 230, Health and Safety Code, as added by
15-2 this Act, not later than January 1, 1994.
15-3 SECTION 5. The State Health Resources Planning and Cost
15-4 Containment Commission shall adopt rules as required under Chapter
15-5 230, Health and Safety Code, as added by this Act, not later than
15-6 September 1, 1994.
15-7 SECTION 6. The State Health Resources Planning and Cost
15-8 Containment Commission may not require a person to hold a permit of
15-9 approval, as required by Chapter 230, Health and Safety Code, as
15-10 added by this Act, for any act or expenditure on behalf of a health
15-11 care facility that is made or contracted for before September 1,
15-12 1994.
15-13 SECTION 7. Except as provided by Section 2(b) of this Act,
15-14 this Act takes effect September 1, 1993.
15-15 SECTION 8. The importance of this legislation and the
15-16 crowded condition of the calendars in both houses create an
15-17 emergency and an imperative public necessity that the
15-18 constitutional rule requiring bills to be read on three several
15-19 days in each house be suspended, and this rule is hereby suspended.