H.B. No. 1023 1-1 AN ACT 1-2 relating to regulation of end stage renal disease facilities; 1-3 providing penalties. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Subtitle B, Title 4, Health and Safety Code, is 1-6 amended by adding Chapter 251 to read as follows: 1-7 CHAPTER 251. END STAGE RENAL DISEASE FACILITIES 1-8 SUBCHAPTER A. GENERAL PROVISIONS 1-9 Sec. 251.001. DEFINITIONS. In this chapter: 1-10 (1) "Board" means the Texas Board of Health. 1-11 (2) "Commissioner" means the commissioner of public 1-12 health. 1-13 (3) "Department" means the Texas Department of Health. 1-14 (4) "Dialysis" means a process by which dissolved 1-15 substances are removed from a patient's body by diffusion from one 1-16 fluid compartment to another across a semipermeable membrane. 1-17 (5) "Dialysis technician" means an individual who is 1-18 not a registered nurse or physician and who provides dialysis care 1-19 under the supervision of a registered nurse or physician. 1-20 (6) "End stage renal disease" means that stage of 1-21 renal impairment that appears irreversible and permanent and that 1-22 requires a regular course of dialysis or kidney transplantation to 1-23 maintain life. 1-24 (7) "End stage renal disease facility" means a 2-1 facility that provides dialysis treatment or dialysis training to 2-2 individuals with end stage renal disease. 2-3 (8) "Medical review board" means a medical review 2-4 board that: 2-5 (A) is appointed by a renal disease network 2-6 organization which includes this state; and 2-7 (B) has a contract with the Health Care 2-8 Financing Administration of the United States Department of Health 2-9 and Human Services under Section 1881, Title XVIII, Social Security 2-10 Act (42 U.S.C. Section 1395rr). 2-11 (9) "Physician" means an individual who is licensed to 2-12 practice medicine under the Medical Practice Act (Article 4495b, 2-13 Vernon's Texas Civil Statutes). 2-14 Sec. 251.002. FEES. (a) The board shall set fees imposed 2-15 by this chapter in amounts reasonable and necessary to defray the 2-16 cost of administering this chapter. 2-17 (b) In setting fees under this section, the board shall 2-18 consider setting a range of license and renewal fees based on the 2-19 number of dialysis stations at each end stage renal disease 2-20 facility and the patient census. 2-21 (c) An end stage renal disease facility owned or operated by 2-22 a state agency is not required to pay fees imposed under this 2-23 chapter. 2-24 Sec. 251.003. ADOPTION OF RULES. The board shall adopt 2-25 rules to implement this chapter, including requirements for the 2-26 issuance, renewal, denial, suspension, and revocation of a license 2-27 to operate an end stage renal disease facility. 3-1 (Sections 251.004-251.010 reserved for expansion 3-2 SUBCHAPTER B. LICENSING OF END STAGE RENAL DISEASE FACILITIES 3-3 Sec. 251.011. LICENSE REQUIRED. Except as provided by 3-4 Section 251.012, a person may not operate an end stage renal 3-5 disease facility without a license issued under this chapter. 3-6 Sec. 251.012. EXEMPTIONS FROM LICENSING REQUIREMENT. The 3-7 following facilities are not required to be licensed under this 3-8 chapter: 3-9 (1) a home and community support services agency 3-10 licensed under Chapter 142 with a home dialysis designation; 3-11 (2) a hospital licensed under Chapter 241 that 3-12 provides dialysis only to individuals receiving inpatient services 3-13 from the hospital; or 3-14 (3) the office of a physician unless the office is 3-15 used primarily as an end stage renal disease facility. 3-16 Sec. 251.013. ISSUANCE AND RENEWAL OF LICENSE. (a) An 3-17 applicant for a license under this chapter must submit an 3-18 application to the department on a form prescribed by the board. 3-19 (b) Each application must be accompanied by a nonrefundable 3-20 license fee. 3-21 (c) Each application must contain evidence that there is at 3-22 least one qualified physician on the staff of the facility and 3-23 that each dialysis technician on staff has completed the training 3-24 program required by this chapter. 3-25 (d) The department may grant a temporary initial license to 3-26 an applicant. The temporary initial license expires on the earlier 3-27 of: 4-1 (1) the date the department issues or denies the 4-2 license; or 4-3 (2) the date six months after the date the temporary 4-4 initial license was issued. 4-5 (e) The department shall issue a license if, after 4-6 inspection and investigation, it finds the applicant meets the 4-7 requirements of this chapter and the standards adopted under this 4-8 chapter. 4-9 (f) The license is renewable annually after submission of: 4-10 (1) the renewal application and fee; and 4-11 (2) an annual report on a form prescribed by the 4-12 board. 4-13 (g) The annual report required under Subsection (f) must 4-14 include information related to the quality of care at the end stage 4-15 renal disease facility. The report must be in the form and 4-16 documented by evidence as required by board rule. 4-17 Sec. 251.014. MINIMUM STANDARDS. (a) The rules adopted 4-18 under Section 251.003 must contain minimum standards to protect the 4-19 health and safety of a patient of an end stage renal disease 4-20 facility, including standards for: 4-21 (1) the qualifications and supervision of the 4-22 professional staff, including physicians, and other personnel; 4-23 (2) the equipment used by the facility is compatible 4-24 with the health and safety of the patients; 4-25 (3) the sanitary and hygienic conditions in the 4-26 facility; 4-27 (4) quality assurance for patient care; 5-1 (5) the provision and coordination of treatment and 5-2 services by the facility; 5-3 (6) clinical records maintained by the facility; 5-4 (7) design and space requirements for the facility for 5-5 safe access by patients and personnel and for ensuring patient 5-6 privacy; 5-7 (8) indicators of the quality of care provided by the 5-8 facility; and 5-9 (9) water treatment and reuse by the facility. 5-10 (b) The standards described in Subsection (a)(7) of this 5-11 section shall apply only: 5-12 (1) to a facility which initiates the provision of end 5-13 stage renal disease services on or after September 1, 1996; or 5-14 (2) to the area of a facility affected by design and 5-15 space modifications or renovations completed after September 1, 5-16 1996. 5-17 Sec. 251.015. MEDICAL REVIEW BOARD. (a) A medical review 5-18 board shall advise the board on minimum standards and rules to be 5-19 adopted under this chapter. 5-20 (b) The medical review board shall review the information on 5-21 quality of care provided in the annual report filed under Section 5-22 251.013(f) and other appropriate information provided to or 5-23 compiled by the department with respect to an end stage renal 5-24 disease facility. Based on the review, the medical review board 5-25 may advise the department about the quality of care provided by a 5-26 facility and recommend an appropriate corrective action plan under 5-27 Section 251.061 or other enforcement proceedings against the 6-1 facility. 6-2 (c) Information concerning quality of care provided to or 6-3 compiled by the department or medical review board and a 6-4 recommendation of the medical review board are confidential. The 6-5 information or recommendation may not be made available for public 6-6 inspection, is not subject to disclosure under Chapter 552, 6-7 Government Code, and is not subject to discovery, subpoena, or 6-8 other compulsory legal process. 6-9 (d) The department, in its discretion, may release to a 6-10 facility information relating to that facility that is made 6-11 confidential under Subsection (c). Release of information to a 6-12 facility under this subsection does not waive the confidentiality 6-13 of that information or the privilege from compulsory legal process. 6-14 (Sections 251.016-251.030 reserved for expansion 6-15 SUBCHAPTER C. DIALYSIS TECHNICIANS 6-16 Sec. 251.031. TRAINING REQUIRED. An individual may not act 6-17 as a dialysis technician employed by or working in an end stage 6-18 renal disease facility unless that individual is trained and 6-19 competent under this subchapter. 6-20 Sec. 251.032. MINIMUM REQUIREMENTS; TRAINING. The rules 6-21 adopted by the board under Section 251.003 shall establish: 6-22 (1) minimum standards for the curricula and 6-23 instructors used to train individuals to act as dialysis 6-24 technicians; 6-25 (2) minimum standards for the determination of the 6-26 competency of individuals who have been trained as dialysis 6-27 technicians; 7-1 (3) minimum requirements for documentation that an 7-2 individual has been trained and determined to be competent as a 7-3 dialysis technician and the acceptance of that documentation by 7-4 another end stage renal disease facility that may later employ the 7-5 individual; and 7-6 (4) the acts and practices that are allowed or 7-7 prohibited for dialysis technicians. 7-8 (Sections 251.033-251.050 reserved for expansion 7-9 SUBCHAPTER D. INSPECTIONS 7-10 Sec. 251.051. INSPECTIONS. (a) The department may conduct 7-11 an inspection of an end stage renal disease facility to verify 7-12 compliance with this chapter, rules adopted under this chapter, or 7-13 a corrective action plan under Section 251.061. 7-14 (b) An inspection conducted under this section may be 7-15 unannounced. 7-16 Sec. 251.052. DISCLOSURE OF UNANNOUNCED INSPECTION; CRIMINAL 7-17 PENALTY. (a) A person commits an offense if the person 7-18 intentionally, knowingly, or recklessly discloses to an 7-19 unauthorized person the date or time of or any other fact about an 7-20 unannounced inspection of an end stage renal disease facility 7-21 before the inspection occurs. 7-22 (b) In this section, "unauthorized person" does not include: 7-23 (1) the department; 7-24 (2) the office of the attorney general; or 7-25 (3) any other person authorized by law to make an 7-26 inspection or to accompany an inspector. 7-27 (c) An offense under this section is a Class B misdemeanor. 8-1 (d) A person convicted under this section is not eligible 8-2 for state employment. 8-3 (Sections 251.053-251.060 reserved for expansion 8-4 SUBCHAPTER E. ENFORCEMENT 8-5 Sec. 251.061. CORRECTIVE ACTION PLAN. (a) The department 8-6 may use a corrective action plan as an alternative to enforcement 8-7 action under this subchapter. 8-8 (b) Before taking enforcement action under this subchapter, 8-9 the department shall consider whether the use of a corrective 8-10 action plan under this section is appropriate. In determining 8-11 whether to use a corrective action plan, the department shall 8-12 consider whether: 8-13 (1) the end stage renal disease facility has violated 8-14 this chapter or a rule adopted under this chapter and the violation 8-15 has resulted in an adverse patient result; 8-16 (2) the facility has a previous history of lack of 8-17 compliance with this chapter, rules adopted under this chapter, or 8-18 a corrective action plan; or 8-19 (3) the facility fails to agree to a corrective action 8-20 plan. 8-21 (c) The department may use a level one, level two, or level 8-22 three corrective action plan, as determined by the department in 8-23 accordance with this section, after inspection of the end stage 8-24 renal disease facility. 8-25 (d) A level one corrective action plan is appropriate if the 8-26 department finds that the end stage renal disease facility is not 8-27 in compliance with this chapter or rules adopted under this 9-1 chapter, but the circumstances are not serious or life-threatening. 9-2 Under a level one corrective action plan, the department shall 9-3 require the facility to develop and implement a corrective action 9-4 plan approved by the department. The department or a monitor may 9-5 supervise the implementation of the plan. 9-6 (e) A level two corrective action plan is appropriate if the 9-7 department finds that the end stage renal disease facility is not 9-8 in compliance with this chapter or rules adopted under this chapter 9-9 and the circumstances are potentially serious or life-threatening 9-10 or if the department finds that the facility failed to implement or 9-11 comply with a level one corrective action plan. Under a level two 9-12 corrective action plan, the department shall require the facility 9-13 to develop and implement a corrective action plan approved by the 9-14 department. The department or a monitor shall supervise the 9-15 implementation of the plan. Supervision of the implementation of 9-16 the plan may include on-site supervision, observation, and 9-17 direction. 9-18 (f) A level three corrective action plan is appropriate if 9-19 the department finds that the end stage renal disease facility is 9-20 not in compliance with this chapter or rules adopted under this 9-21 chapter and the circumstances are serious or life-threatening or if 9-22 the department finds that the facility failed to comply with a 9-23 level two corrective action plan or to cooperate with the 9-24 department in connection with that plan. Under a level three 9-25 corrective action plan, the department shall require the facility 9-26 to develop and implement a corrective action plan approved by the 9-27 department. In connection with requiring a level three corrective 10-1 action plan, the department may seek the appointment of a temporary 10-2 manager under Subchapter F. 10-3 (g) A corrective action plan is not confidential. 10-4 Information contained in the plan may be excepted from required 10-5 disclosure under Chapter 552, Government Code, in accordance with 10-6 that chapter or other applicable law. 10-7 (h) The department shall select the monitor for a corrective 10-8 action plan. The monitor shall be an individual or team of 10-9 individuals and may include a professional with end stage renal 10-10 disease experience or a member of the medical review board. The 10-11 monitor may not be or include individuals who are current or former 10-12 employees of the facility that is the subject of the corrective 10-13 action plan or of an affiliated facility. The purpose of the 10-14 monitor is to observe, supervise, consult, and educate the facility 10-15 and the employees of the facility under a corrective action plan. 10-16 The facility shall pay the cost of the monitor. 10-17 Sec. 251.062. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE. 10-18 (a) The department may deny, suspend, or revoke a license issued 10-19 under this chapter for a violation of this chapter or a rule 10-20 adopted under this chapter. 10-21 (b) The denial, suspension, or revocation of a license by 10-22 the department and the appeal from that action are governed by the 10-23 procedures for a contested case hearing under Chapter 2001, 10-24 Government Code. 10-25 Sec. 251.063. INJUNCTION. (a) The department may petition 10-26 a district court for a temporary restraining order to restrain a 10-27 continuing violation of this chapter or a rule adopted under this 11-1 chapter if the department finds that the violation creates an 11-2 immediate threat to the health and safety of patients of an end 11-3 stage renal disease facility. 11-4 (b) A district court, on petition of the department and on a 11-5 finding that a person is violating this chapter or a rule adopted 11-6 under this chapter, may by injunction: 11-7 (1) prohibit a person from continuing the violation; 11-8 (2) restrain or prevent the operation of an end stage 11-9 renal disease facility without a license issued under this chapter; 11-10 or 11-11 (3) grant other injunctive relief warranted by the 11-12 facts. 11-13 (c) The attorney general may institute and conduct a suit 11-14 authorized by this section at the request of the department. 11-15 (d) Venue for a suit brought under this section is in the 11-16 county in which the end stage renal disease facility is located or 11-17 in Travis County. 11-18 Sec. 251.064. CRIMINAL PENALTY. (a) A person commits an 11-19 offense if the person violates Section 251.011 or 251.031. 11-20 (b) An offense under this section is a Class C misdemeanor. 11-21 (c) Each day of a continuing violation constitutes a 11-22 separate offense. 11-23 Sec. 251.065. CIVIL PENALTY. (a) A person who knowingly 11-24 violates this chapter or who knowingly fails to comply with a rule 11-25 adopted under this chapter is liable for a civil penalty of not 11-26 more than $1,000 for each violation if the department finds that 11-27 the violation threatens the health and safety of a patient of an 12-1 end stage renal disease facility. 12-2 (b) Each day of a continuing violation constitutes a 12-3 separate ground for recovery. 12-4 Sec. 251.066. ADMINISTRATIVE PENALTY. (a) The department 12-5 may assess an administrative penalty against a person who violates 12-6 this chapter or a rule adopted under this chapter. 12-7 (b) The penalty may not exceed $1,000 for each violation. 12-8 Each day of a continuing violation constitutes a separate 12-9 violation. 12-10 (c) In determining the amount of an administrative penalty 12-11 assessed under this section, the department shall consider: 12-12 (1) the seriousness of the violation; 12-13 (2) the history of previous violations; 12-14 (3) the amount necessary to deter future violations; 12-15 (4) efforts made to correct the violation; and 12-16 (5) any other matters that justice may require. 12-17 (d) All proceedings for the assessment of an administrative 12-18 penalty under this chapter are subject to Chapter 2001, Government 12-19 Code. 12-20 Sec. 251.067. REPORT RECOMMENDING ADMINISTRATIVE PENALTY. 12-21 (a) If after investigation of a possible violation and the facts 12-22 surrounding that possible violation the department determines that 12-23 a violation has occurred, the department shall give written notice 12-24 of the violation to the person alleged to have committed the 12-25 violation. The notice shall include: 12-26 (1) a brief summary of the alleged violation; 12-27 (2) a statement of the amount of the proposed penalty, 13-1 based on the factors listed in Section 251.066(c); and 13-2 (3) a statement of the person's right to a hearing on 13-3 the occurrence of the violation, the amount of the penalty, or both 13-4 the occurrence of the violation and the amount of the penalty. 13-5 (b) Not later than the 20th day after the date the notice is 13-6 received, the person notified may accept the determination of the 13-7 department made under this section, including the recommended 13-8 penalty, or make a written request for a hearing on that 13-9 determination. 13-10 (c) If the person notified of the violation accepts the 13-11 determination of the department, the commissioner or the 13-12 commissioner's designee shall issue an order approving the 13-13 determination and ordering that the person pay the recommended 13-14 penalty. 13-15 Sec. 251.068. HEARING; ORDER. (a) If the person notified 13-16 fails to respond in a timely manner to the notice under Section 13-17 251.067(b) or if the person requests a hearing, the commissioner or 13-18 the commissioner's designee shall: 13-19 (1) set a hearing; 13-20 (2) give written notice of the hearing to the person; 13-21 and 13-22 (3) designate a hearings examiner to conduct the 13-23 hearing. 13-24 (b) The hearings examiner shall make findings of fact and 13-25 conclusions of law and shall promptly issue to the commissioner a 13-26 proposal for decision as to the occurrence of the violation and a 13-27 recommendation as to the amount of the proposed penalty if a 14-1 penalty is determined to be warranted. 14-2 (c) Based on the findings of fact and conclusions of law and 14-3 the recommendations of the hearings examiner, the commissioner by 14-4 order may find that a violation has occurred and may assess a 14-5 penalty, or may find that no violation has occurred. 14-6 Sec. 251.069. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY; 14-7 JUDICIAL REVIEW; REFUND. (a) The commissioner or the 14-8 commissioner's designee shall give notice of the commissioner's 14-9 order under Section 251.068(c) to the person notified. The notice 14-10 must include: 14-11 (1) separate statements of the findings of fact and 14-12 conclusions of law; 14-13 (2) the amount of any penalty assessed; and 14-14 (3) a statement of the right of the person to judicial 14-15 review of the commissioner's order. 14-16 (b) Not later than the 30th day after the date the decision 14-17 is final as provided by Chapter 2001, Government Code, the person 14-18 shall: 14-19 (1) pay the penalty in full; 14-20 (2) pay the amount of the penalty and file a petition 14-21 for judicial review contesting the occurrence of the violation, the 14-22 amount of the penalty, or both the occurrence of the violation and 14-23 the amount of the penalty; or 14-24 (3) without paying the amount of the penalty, file a 14-25 petition for judicial review contesting the occurrence of the 14-26 violation, the amount of the penalty, or both the occurrence of the 14-27 violation and the amount of the penalty. 15-1 (c) Within the 30-day period, a person who acts under 15-2 Subsection (b)(3) may: 15-3 (1) stay enforcement of the penalty by: 15-4 (A) paying the amount of the penalty to the 15-5 court for placement in an escrow account; or 15-6 (B) giving to the court a supersedeas bond that 15-7 is approved by the court for the amount of the penalty and that is 15-8 effective until all judicial review of the board's order is final; 15-9 or 15-10 (2) request the court to stay enforcement of the 15-11 penalty by: 15-12 (A) filing with the court a sworn affidavit of 15-13 the person stating that the person is financially unable to pay the 15-14 amount of the penalty and is financially unable to give the 15-15 supersedeas bond; and 15-16 (B) giving a copy of the affidavit to the 15-17 department by certified mail. 15-18 (d) If the department receives a copy of an affidavit under 15-19 Subsection (c)(2), the department may file with the court, within 15-20 five days after the date the copy is received, a contest to the 15-21 affidavit. The court shall hold a hearing on the facts alleged in 15-22 the affidavit as soon as practicable and shall stay the enforcement 15-23 of the penalty on finding that the alleged facts are true. The 15-24 person who files an affidavit has the burden of proving that the 15-25 person is financially unable to pay the amount of the penalty and 15-26 to give a supersedeas bond. 15-27 (e) If the person does not pay the amount of the penalty and 16-1 the enforcement of the penalty is not stayed, the department may 16-2 refer the matter to the attorney general for collection of the 16-3 amount of the penalty. 16-4 (f) Judicial review of the order of the board: 16-5 (1) is instituted by filing a petition as provided by 16-6 Subchapter G, Chapter 2001, Government Code; and 16-7 (2) is under the substantial evidence rule. 16-8 (g) If the court sustains the occurrence of the violation, 16-9 the court may uphold or reduce the amount of the penalty and order 16-10 the person to pay the full or reduced amount of the penalty. If 16-11 the court does not sustain the occurrence of the violation, the 16-12 court shall order that no penalty is owed. 16-13 (h) When the judgment of the court becomes final, the court 16-14 shall proceed under this subsection. If the person paid the amount 16-15 of the penalty and if that amount is reduced or is not upheld by 16-16 the court, the court shall order that the appropriate amount plus 16-17 accrued interest be remitted to the person. The rate of the 16-18 interest is the rate charged on loans to depository institutions by 16-19 the New York Federal Reserve Bank, and the interest shall be paid 16-20 for the period beginning on the date the penalty was paid and 16-21 ending on the date the penalty is remitted. If the person gave a 16-22 supersedeas bond and if the amount of the penalty is not upheld by 16-23 the court, the court shall order the release of the bond. If the 16-24 person gave a supersedeas bond and if the amount of the penalty is 16-25 reduced, the court shall order the release of the bond after the 16-26 person pays the amount. 16-27 Sec. 251.070. PENALTY DEPOSITED TO STATE TREASURY. A civil 17-1 or administrative penalty collected under this chapter shall be 17-2 deposited in the state treasury to the credit of the general 17-3 revenue fund. 17-4 Sec. 251.071. RECOVERY OF COSTS. (a) The department may 17-5 assess reasonable expenses and costs against a person in an 17-6 administrative hearing if, as a result of the hearing, the person's 17-7 license is denied, suspended, or revoked or if administrative 17-8 penalties are assessed against the person. The person shall pay 17-9 expenses and costs assessed under this subsection not later than 17-10 the 30th day after the date of a board order requiring the payment 17-11 of expenses and costs is final. The department may refer the 17-12 matter to the attorney general for collection of the expenses and 17-13 costs. 17-14 (b) If the attorney general brings an action against a 17-15 person under Section 251.063 or 251.065 or to enforce an 17-16 administrative penalty assessed under Section 251.066, and an 17-17 injunction is granted against the person or the person is found 17-18 liable for a civil or administrative penalty, the attorney general 17-19 may recover, on behalf of the attorney general and the department, 17-20 reasonable expenses and costs. 17-21 (c) For purposes of this section, "reasonable expenses and 17-22 costs" include expenses incurred by the department and the attorney 17-23 general in the investigation, initiation, or prosecution of an 17-24 action, including reasonable investigative costs, court costs, 17-25 attorney's fees, witness fees, and deposition expenses. 17-26 (Sections 251.072-251.090 reserved for expansion) 17-27 SUBCHAPTER F. TEMPORARY MANAGER 18-1 Sec. 251.091. APPOINTMENT BY AGREEMENT. (a) A person 18-2 holding a controlling interest in an end stage renal disease 18-3 facility may, at any time, request the department to assume the 18-4 management of the facility through the appointment of a temporary 18-5 manager under this subchapter. 18-6 (b) After receiving the request, the department may enter 18-7 into an agreement providing for the appointment of a temporary 18-8 manager to manage the facility under conditions considered 18-9 appropriate by both parties if the department considers the 18-10 appointment desirable. 18-11 (c) An agreement under this section must: 18-12 (1) specify all terms and conditions of the temporary 18-13 manager's appointment and authority; and 18-14 (2) preserve all rights of the individuals served by 18-15 the facility granted by law. 18-16 (d) The primary duty of the temporary manager is to ensure 18-17 that adequate and safe services are provided to patients until 18-18 temporary management ceases. 18-19 (e) The appointment terminates at the time specified by the 18-20 agreement. 18-21 Sec. 251.092. INVOLUNTARY APPOINTMENT. (a) The department 18-22 may request the attorney general to bring an action in the name and 18-23 on behalf of the state for the appointment of a temporary manager 18-24 to manage an end stage renal disease facility if: 18-25 (1) the facility is operating without a license; 18-26 (2) the department has denied, suspended, or revoked 18-27 the facility's license but the facility continues to operate; 19-1 (3) license denial, suspension, or revocation 19-2 proceedings against the facility are pending and the department 19-3 determines that an imminent or reasonably foreseeable threat to the 19-4 health and safety of a patient of the facility exists; 19-5 (4) the department determines that an emergency exists 19-6 that presents an immediate threat to the health and safety of a 19-7 patient of the facility; 19-8 (5) the facility is closing and arrangements for the 19-9 care of patients by other licensed facilities have not been made 19-10 before closure; or 19-11 (6) the department determines a level three corrective 19-12 action plan under Section 251.061 that includes appointment of a 19-13 temporary manager is necessary to address serious or 19-14 life-threatening conditions at the facility. 19-15 (b) After a hearing, a court shall appoint a temporary 19-16 manager to manage a facility if the court finds that the 19-17 appointment of the manager is necessary. 19-18 (c) The court order shall address the duties and authority 19-19 of the temporary manager, which may include management of the 19-20 facility and the provision of dialysis services to facility 19-21 patients until specified circumstances occur, such as new ownership 19-22 of the facility, compliance with this chapter and rules adopted 19-23 under this chapter, or closure of the facility. 19-24 (d) If possible, the court shall appoint as temporary 19-25 manager an individual whose background includes administration of 19-26 end stage renal disease facilities or similar facilities. 19-27 (e) Venue for an action under this section is in Travis 20-1 County. 20-2 Sec. 251.093. FEE; RELEASE OF FUNDS. (a) A temporary 20-3 manager appointed under Section 251.092 is entitled to a reasonable 20-4 fee as determined by the court. The fee shall be paid by the 20-5 facility. 20-6 (b) The temporary manager may petition the court to order 20-7 the release to the manager of any payment owed the manager for care 20-8 and services provided to patients of the facility if the payment 20-9 has been withheld. 20-10 (c) Withheld payments that may be released under Subsection 20-11 (b) may include payments withheld by a governmental agency or other 20-12 entity before or during the appointment of the temporary manager, 20-13 including: 20-14 (1) Medicaid, Medicare, or insurance payments; or 20-15 (2) payments from another third party. 20-16 SECTION 2. (a) Except as provided by Subsection (b) of this 20-17 section and Section 3, this Act takes effect September 1, 1995. 20-18 (b) Sections 251.011 and 251.031 and Subchapter E, Chapter 20-19 251, Health and Safety Code, as added by this Act, take effect 20-20 September 1, 1996. 20-21 SECTION 3. A person is not required to obtain a license 20-22 under Subchapter B, Chapter 251, Health and Safety Code, as added 20-23 by this Act, and an individual is not required to be trained and 20-24 competent under Subchapter C, Chapter 251, Health and Safety Code, 20-25 as added by this Act, until September 1, 1996. 20-26 SECTION 4. The importance of this legislation and the 20-27 crowded condition of the calendars in both houses create an 21-1 emergency and an imperative public necessity that the 21-2 constitutional rule requiring bills to be read on three several 21-3 days in each house be suspended, and this rule is hereby suspended.