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.