74R9956 DLF-F
By Coleman, et al. H.B. No. 1023
Substitute the following for H.B. No. 1023:
By Coleman C.S.H.B. No. 1023
A BILL TO BE ENTITLED
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, including 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. The rules adopted under
4-18 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 that is
4-24 essential to 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 and business records maintained by the
5-4 facility;
5-5 (7) design and space requirements for the facility for
5-6 safe access by patients and personnel and for ensuring patient
5-7 privacy;
5-8 (8) the management, ownership, and organizational
5-9 structure of the facility, including lines of authority and
5-10 delegation of responsibility;
5-11 (9) indicators of the quality of care provided by the
5-12 facility;
5-13 (10) water treatment and reuse by the facility; and
5-14 (11) any other aspect of end stage renal disease
5-15 services necessary to protect the public.
5-16 Sec. 251.015. MEDICAL REVIEW BOARD. (a) A medical review
5-17 board shall advise the board on minimum standards and rules to be
5-18 adopted under this chapter.
5-19 (b) The medical review board shall review the information on
5-20 quality of care provided in the annual report filed under Section
5-21 251.013(f) and other appropriate information provided to or
5-22 compiled by the department with respect to an end stage renal
5-23 disease facility. Based on the review, the medical review board
5-24 may advise the department about the quality of care provided by a
5-25 facility and recommend an appropriate corrective action plan under
5-26 Section 251.061 or other enforcement proceedings against the
5-27 facility.
6-1 (c) Information concerning quality of care provided to or
6-2 compiled by the department or medical review board and a
6-3 recommendation of the medical review board are confidential. The
6-4 information or recommendation may not be made available for public
6-5 inspection, is not subject to disclosure under Chapter 552,
6-6 Government Code, and is not subject to discovery, subpoena, or
6-7 other compulsory legal process.
6-8 (d) The department, in its discretion, may release to a
6-9 facility information relating to that facility that is made
6-10 confidential under Subsection (c). Release of information to a
6-11 facility under this subsection does not waive the confidentiality
6-12 of that information or the privilege from compulsory legal process.
6-13 (Sections 251.016-251.030 reserved for expansion
6-14 SUBCHAPTER C. DIALYSIS TECHNICIANS
6-15 Sec. 251.031. TRAINING REQUIRED. An individual may not act
6-16 as a dialysis technician employed by or working in an end stage
6-17 renal disease facility unless that individual is trained and
6-18 competent under this subchapter.
6-19 Sec. 251.032. MINIMUM REQUIREMENTS; TRAINING. The rules
6-20 adopted by the board under Section 251.003 shall establish:
6-21 (1) minimum standards for the curricula and
6-22 instructors used to train individuals to act as dialysis
6-23 technicians;
6-24 (2) minimum standards for the determination of the
6-25 competency of individuals who have been trained as dialysis
6-26 technicians;
6-27 (3) minimum requirements for documentation that an
7-1 individual has been trained and determined to be competent as a
7-2 dialysis technician and the acceptance of that documentation by
7-3 another end stage renal disease facility that may later employ the
7-4 individual; and
7-5 (4) the acts and practices that are allowed or
7-6 prohibited for dialysis technicians.
7-7 (Sections 251.033-251.050 reserved for expansion
7-8 SUBCHAPTER D. INSPECTIONS
7-9 Sec. 251.051. INSPECTIONS. (a) The department may conduct
7-10 an inspection of an end stage renal disease facility to verify
7-11 compliance with this chapter, rules adopted under this chapter, or
7-12 a corrective action plan under Section 251.061.
7-13 (b) An inspection conducted under this section may be
7-14 unannounced.
7-15 Sec. 251.052. DISCLOSURE OF UNANNOUNCED INSPECTION; CRIMINAL
7-16 PENALTY. (a) A person commits an offense if the person
7-17 intentionally, knowingly, or recklessly discloses to an
7-18 unauthorized person the date or time of or any other fact about an
7-19 unannounced inspection of an end stage renal disease facility
7-20 before the inspection occurs.
7-21 (b) In this section, "unauthorized person" does not include:
7-22 (1) the department;
7-23 (2) the office of the attorney general; or
7-24 (3) any other person authorized by law to make an
7-25 inspection or to accompany an inspector.
7-26 (c) An offense under this section is a Class B misdemeanor.
7-27 (d) A person convicted under this section is not eligible
8-1 for state employment.
8-2 (Sections 251.053-251.060 reserved for expansion
8-3 SUBCHAPTER E. ENFORCEMENT
8-4 Sec. 251.061. CORRECTIVE ACTION PLAN. (a) The department
8-5 may use a corrective action plan as an alternative to enforcement
8-6 action under this subchapter.
8-7 (b) Before taking enforcement action under this subchapter,
8-8 the department shall consider whether the use of a corrective
8-9 action plan under this section is appropriate. In determining
8-10 whether to use a corrective action plan, the department shall
8-11 consider whether:
8-12 (1) the end stage renal disease facility has violated
8-13 this chapter or a rule adopted under this chapter and the violation
8-14 has resulted in an adverse patient result;
8-15 (2) the facility has a previous history of lack of
8-16 compliance with this chapter, rules adopted under this chapter, or
8-17 a corrective action plan; or
8-18 (3) the facility fails to agree to a corrective action
8-19 plan.
8-20 (c) The department may use a level one, level two, or level
8-21 three corrective action plan, as determined by the department in
8-22 accordance with this section, after inspection of the end stage
8-23 renal disease facility.
8-24 (d) A level one corrective action plan is appropriate if the
8-25 department finds that the end stage renal disease facility is not
8-26 in compliance with this chapter or rules adopted under this
8-27 chapter, but the circumstances are not serious or life-threatening.
9-1 Under a level one corrective action plan, the department shall
9-2 require the facility to develop and implement a corrective action
9-3 plan approved by the department. The department or a monitor may
9-4 supervise the implementation of the plan.
9-5 (e) A level two corrective action plan is appropriate if the
9-6 department finds that the end stage renal disease facility is not
9-7 in compliance with this chapter or rules adopted under this chapter
9-8 and the circumstances are potentially serious or life-threatening
9-9 or if the department finds that the facility failed to implement or
9-10 comply with a level one corrective action plan. Under a level two
9-11 corrective action plan, the department shall require the facility
9-12 to develop and implement a corrective action plan approved by the
9-13 department. The department or a monitor shall supervise the
9-14 implementation of the plan. Supervision of the implementation of
9-15 the plan may include on-site supervision, observation, and
9-16 direction.
9-17 (f) A level three corrective action plan is appropriate if
9-18 the department finds that the end stage renal disease facility is
9-19 not in compliance with this chapter or rules adopted under this
9-20 chapter and the circumstances are serious or life-threatening or if
9-21 the department finds that the facility failed to comply with a
9-22 level two corrective action plan or to cooperate with the
9-23 department in connection with that plan. Under a level three
9-24 corrective action plan, the department shall require the facility
9-25 to develop and implement a corrective action plan approved by the
9-26 department. In connection with requiring a level three corrective
9-27 action plan, the department may seek the appointment of a temporary
10-1 manager under Subchapter F.
10-2 (g) A corrective action plan is not confidential.
10-3 Information contained in the plan may be excepted from required
10-4 disclosure under Chapter 552, Government Code, in accordance with
10-5 that chapter or other applicable law.
10-6 (h) The department shall select the monitor for a corrective
10-7 action plan. The monitor shall be an individual or team of
10-8 individuals and may include a professional with end stage renal
10-9 disease experience or a member of the medical review board. The
10-10 monitor may not be or include individuals who are current or former
10-11 employees of the facility that is the subject of the corrective
10-12 action plan or of an affiliated facility. The purpose of the
10-13 monitor is to observe, supervise, consult, and educate the facility
10-14 and the employees of the facility under a corrective action plan.
10-15 The facility shall pay the cost of the monitor.
10-16 Sec. 251.062. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE.
10-17 (a) The department may deny, suspend, or revoke a license issued
10-18 under this chapter for a violation of this chapter or a rule
10-19 adopted under this chapter.
10-20 (b) The denial, suspension, or revocation of a license by
10-21 the department and the appeal from that action are governed by the
10-22 procedures for a contested case hearing under Chapter 2001,
10-23 Government Code.
10-24 Sec. 251.063. INJUNCTION. (a) The department may petition
10-25 a district court for a temporary restraining order to restrain a
10-26 continuing violation of this chapter or a rule adopted under this
10-27 chapter if the department finds that the violation creates an
11-1 immediate threat to the health and safety of patients of an end
11-2 stage renal disease facility.
11-3 (b) A district court, on petition of the department and on a
11-4 finding that a person is violating this chapter or a rule adopted
11-5 under this chapter, may by injunction:
11-6 (1) prohibit a person from continuing the violation;
11-7 (2) restrain or prevent the operation of an end stage
11-8 renal disease facility without a license issued under this chapter;
11-9 or
11-10 (3) grant other injunctive relief warranted by the
11-11 facts.
11-12 (c) The attorney general may institute and conduct a suit
11-13 authorized by this section at the request of the department.
11-14 (d) Venue for a suit brought under this section is in the
11-15 county in which the end stage renal disease facility is located or
11-16 in Travis County.
11-17 Sec. 251.064. CRIMINAL PENALTY. (a) A person commits an
11-18 offense if the person violates Section 251.011 or 251.031.
11-19 (b) An offense under this section is a Class C misdemeanor.
11-20 (c) Each day of a continuing violation constitutes a
11-21 separate offense.
11-22 Sec. 251.065. CIVIL PENALTY. (a) A person who knowingly
11-23 violates this chapter or who knowingly fails to comply with a rule
11-24 adopted under this chapter is liable for a civil penalty of not
11-25 more than $1,000 for each violation if the department finds that
11-26 the violation threatens the health and safety of a patient of an
11-27 end stage renal disease facility.
12-1 (b) Each day of a continuing violation constitutes a
12-2 separate ground for recovery.
12-3 Sec. 251.066. ADMINISTRATIVE PENALTY. (a) The department
12-4 may assess an administrative penalty against a person who violates
12-5 this chapter or a rule adopted under this chapter.
12-6 (b) The penalty may not exceed $1,000 for each violation.
12-7 Each day of a continuing violation constitutes a separate
12-8 violation.
12-9 (c) In determining the amount of an administrative penalty
12-10 assessed under this section, the department shall consider:
12-11 (1) the seriousness of the violation;
12-12 (2) the history of previous violations;
12-13 (3) the amount necessary to deter future violations;
12-14 (4) efforts made to correct the violation; and
12-15 (5) any other matters that justice may require.
12-16 (d) All proceedings for the assessment of an administrative
12-17 penalty under this chapter are subject to Chapter 2001, Government
12-18 Code.
12-19 Sec. 251.067. REPORT RECOMMENDING ADMINISTRATIVE PENALTY.
12-20 (a) If after investigation of a possible violation and the facts
12-21 surrounding that possible violation the department determines that
12-22 a violation has occurred, the department shall give written notice
12-23 of the violation to the person alleged to have committed the
12-24 violation. The notice shall include:
12-25 (1) a brief summary of the alleged violation;
12-26 (2) a statement of the amount of the proposed penalty,
12-27 based on the factors listed in Section 251.066(c); and
13-1 (3) a statement of the person's right to a hearing on
13-2 the occurrence of the violation, the amount of the penalty, or both
13-3 the occurrence of the violation and the amount of the penalty.
13-4 (b) Not later than the 20th day after the date the notice is
13-5 received, the person notified may accept the determination of the
13-6 department made under this section, including the recommended
13-7 penalty, or make a written request for a hearing on that
13-8 determination.
13-9 (c) If the person notified of the violation accepts the
13-10 determination of the department, the commissioner or the
13-11 commissioner's designee shall issue an order approving the
13-12 determination and ordering that the person pay the recommended
13-13 penalty.
13-14 Sec. 251.068. HEARING; ORDER. (a) If the person notified
13-15 fails to respond in a timely manner to the notice under Section
13-16 251.067(b) or if the person requests a hearing, the commissioner or
13-17 the commissioner's designee shall:
13-18 (1) set a hearing;
13-19 (2) give written notice of the hearing to the person;
13-20 and
13-21 (3) designate a hearings examiner to conduct the
13-22 hearing.
13-23 (b) The hearings examiner shall make findings of fact and
13-24 conclusions of law and shall promptly issue to the commissioner a
13-25 proposal for decision as to the occurrence of the violation and a
13-26 recommendation as to the amount of the proposed penalty if a
13-27 penalty is determined to be warranted.
14-1 (c) Based on the findings of fact and conclusions of law and
14-2 the recommendations of the hearings examiner, the commissioner by
14-3 order may find that a violation has occurred and may assess a
14-4 penalty, or may find that no violation has occurred.
14-5 Sec. 251.069. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
14-6 JUDICIAL REVIEW; REFUND. (a) The commissioner or the
14-7 commissioner's designee shall give notice of the commissioner's
14-8 order under Section 251.068(c) to the person notified. The notice
14-9 must include:
14-10 (1) separate statements of the findings of fact and
14-11 conclusions of law;
14-12 (2) the amount of any penalty assessed; and
14-13 (3) a statement of the right of the person to judicial
14-14 review of the commissioner's order.
14-15 (b) Not later than the 30th day after the date the decision
14-16 is final as provided by Chapter 2001, Government Code, the person
14-17 shall:
14-18 (1) pay the penalty in full;
14-19 (2) pay the amount of the penalty and file a petition
14-20 for judicial review contesting the occurrence of the violation, the
14-21 amount of the penalty, or both the occurrence of the violation and
14-22 the amount of the penalty; or
14-23 (3) without paying the amount of the penalty, file a
14-24 petition for judicial review contesting the occurrence of the
14-25 violation, the amount of the penalty, or both the occurrence of the
14-26 violation and the amount of the penalty.
14-27 (c) Within the 30-day period, a person who acts under
15-1 Subsection (b)(3) may:
15-2 (1) stay enforcement of the penalty by:
15-3 (A) paying the amount of the penalty to the
15-4 court for placement in an escrow account; or
15-5 (B) giving to the court a supersedeas bond that
15-6 is approved by the court for the amount of the penalty and that is
15-7 effective until all judicial review of the board's order is final;
15-8 or
15-9 (2) request the court to stay enforcement of the
15-10 penalty by:
15-11 (A) filing with the court a sworn affidavit of
15-12 the person stating that the person is financially unable to pay the
15-13 amount of the penalty and is financially unable to give the
15-14 supersedeas bond; and
15-15 (B) giving a copy of the affidavit to the
15-16 department by certified mail.
15-17 (d) If the department receives a copy of an affidavit under
15-18 Subsection (c)(2), the department may file with the court, within
15-19 five days after the date the copy is received, a contest to the
15-20 affidavit. The court shall hold a hearing on the facts alleged in
15-21 the affidavit as soon as practicable and shall stay the enforcement
15-22 of the penalty on finding that the alleged facts are true. The
15-23 person who files an affidavit has the burden of proving that the
15-24 person is financially unable to pay the amount of the penalty and
15-25 to give a supersedeas bond.
15-26 (e) If the person does not pay the amount of the penalty and
15-27 the enforcement of the penalty is not stayed, the department may
16-1 refer the matter to the attorney general for collection of the
16-2 amount of the penalty.
16-3 (f) Judicial review of the order of the board:
16-4 (1) is instituted by filing a petition as provided by
16-5 Subchapter G, Chapter 2001, Government Code; and
16-6 (2) is under the substantial evidence rule.
16-7 (g) If the court sustains the occurrence of the violation,
16-8 the court may uphold or reduce the amount of the penalty and order
16-9 the person to pay the full or reduced amount of the penalty. If
16-10 the court does not sustain the occurrence of the violation, the
16-11 court shall order that no penalty is owed.
16-12 (h) When the judgment of the court becomes final, the court
16-13 shall proceed under this subsection. If the person paid the amount
16-14 of the penalty and if that amount is reduced or is not upheld by
16-15 the court, the court shall order that the appropriate amount plus
16-16 accrued interest be remitted to the person. The rate of the
16-17 interest is the rate charged on loans to depository institutions by
16-18 the New York Federal Reserve Bank, and the interest shall be paid
16-19 for the period beginning on the date the penalty was paid and
16-20 ending on the date the penalty is remitted. If the person gave a
16-21 supersedeas bond and if the amount of the penalty is not upheld by
16-22 the court, the court shall order the release of the bond. If the
16-23 person gave a supersedeas bond and if the amount of the penalty is
16-24 reduced, the court shall order the release of the bond after the
16-25 person pays the amount.
16-26 Sec. 251.070. PENALTY DEPOSITED TO STATE TREASURY. A civil
16-27 or administrative penalty collected under this chapter shall be
17-1 deposited in the state treasury to the credit of the general
17-2 revenue fund.
17-3 Sec. 251.071. RECOVERY OF COSTS. (a) The department may
17-4 assess reasonable expenses and costs against a person in an
17-5 administrative hearing if, as a result of the hearing, the person's
17-6 license is denied, suspended, or revoked or if administrative
17-7 penalties are assessed against the person. The person shall pay
17-8 expenses and costs assessed under this subsection not later than
17-9 the 30th day after the date of a board order requiring the payment
17-10 of expenses and costs is final. The department may refer the
17-11 matter to the attorney general for collection of the expenses and
17-12 costs.
17-13 (b) If the attorney general brings an action against a
17-14 person under Section 251.063 or 251.065 or to enforce an
17-15 administrative penalty assessed under Section 251.066, and an
17-16 injunction is granted against the person or the person is found
17-17 liable for a civil or administrative penalty, the attorney general
17-18 may recover, on behalf of the attorney general and the department,
17-19 reasonable expenses and costs.
17-20 (c) For purposes of this section, "reasonable expenses and
17-21 costs" include expenses incurred by the department and the attorney
17-22 general in the investigation, initiation, or prosecution of an
17-23 action, including reasonable investigative costs, court costs,
17-24 attorney's fees, witness fees, and deposition expenses.
17-25 (Sections 251.072-251.090 reserved for expansion)
17-26 SUBCHAPTER F. TEMPORARY MANAGER
17-27 Sec. 251.091. APPOINTMENT BY AGREEMENT. (a) A person
18-1 holding a controlling interest in an end stage renal disease
18-2 facility may, at any time, request the department to assume the
18-3 management of the facility through the appointment of a temporary
18-4 manager under this subchapter.
18-5 (b) After receiving the request, the department may enter
18-6 into an agreement providing for the appointment of a temporary
18-7 manager to manage the facility under conditions considered
18-8 appropriate by both parties if the department considers the
18-9 appointment desirable.
18-10 (c) An agreement under this section must:
18-11 (1) specify all terms and conditions of the temporary
18-12 manager's appointment and authority; and
18-13 (2) preserve all rights of the individuals served by
18-14 the facility granted by law.
18-15 (d) The primary duty of the temporary manager is to ensure
18-16 that adequate and safe services are provided to patients until
18-17 temporary management ceases.
18-18 (e) The appointment terminates at the time specified by the
18-19 agreement.
18-20 Sec. 251.092. INVOLUNTARY APPOINTMENT. (a) The department
18-21 may request the attorney general to bring an action in the name and
18-22 on behalf of the state for the appointment of a temporary manager
18-23 to manage an end stage renal disease facility if:
18-24 (1) the facility is operating without a license;
18-25 (2) the department has denied, suspended, or revoked
18-26 the facility's license but the facility continues to operate;
18-27 (3) license denial, suspension, or revocation
19-1 proceedings against the facility are pending and the department
19-2 determines that an imminent or reasonably foreseeable threat to the
19-3 health and safety of a patient of the facility exists;
19-4 (4) the department determines that an emergency exists
19-5 that presents an immediate threat to the health and safety of a
19-6 patient of the facility;
19-7 (5) the facility is closing and arrangements for the
19-8 care of patients by other licensed facilities have not been made
19-9 before closure; or
19-10 (6) the department determines a level three corrective
19-11 action plan under Section 251.061 that includes appointment of a
19-12 temporary manager is necessary to address serious or
19-13 life-threatening conditions at the facility.
19-14 (b) After a hearing, a court shall appoint a temporary
19-15 manager to manage a facility if the court finds that the
19-16 appointment of the manager is necessary.
19-17 (c) The court order shall address the duties and authority
19-18 of the temporary manager, which may include management of the
19-19 facility and the provision of dialysis services to facility
19-20 patients until specified circumstances occur, such as new ownership
19-21 of the facility, compliance with this chapter and rules adopted
19-22 under this chapter, or closure of the facility.
19-23 (d) If possible, the court shall appoint as temporary
19-24 manager an individual whose background includes administration of
19-25 end stage renal disease facilities or similar facilities.
19-26 (e) Venue for an action under this section is in Travis
19-27 County.
20-1 Sec. 251.093. FEE; RELEASE OF FUNDS. (a) A temporary
20-2 manager appointed under Section 251.092 is entitled to a reasonable
20-3 fee as determined by the court. The fee shall be paid by the
20-4 facility.
20-5 (b) The temporary manager may petition the court to order
20-6 the release to the manager of any payment owed the manager for care
20-7 and services provided to patients of the facility if the payment
20-8 has been withheld.
20-9 (c) Withheld payments that may be released under Subsection
20-10 (b) may include payments withheld by a governmental agency or other
20-11 entity before or during the appointment of the temporary manager,
20-12 including:
20-13 (1) Medicaid, Medicare, or insurance payments; or
20-14 (2) payments from another third party.
20-15 SECTION 2. (a) Except as provided by Subsection (b) of this
20-16 section and Section 3, this Act takes effect September 1, 1995.
20-17 (b) Sections 251.011 and 251.031 and Subchapter E, Chapter
20-18 251, Health and Safety Code, as added by this Act, take effect
20-19 September 1, 1996.
20-20 SECTION 3. A person is not required to obtain a license
20-21 under Subchapter B, Chapter 251, Health and Safety Code, as added
20-22 by this Act, and an individual is not required to be trained and
20-23 competent under Subchapter C, Chapter 251, Health and Safety Code,
20-24 as added by this Act, until September 1, 1996.
20-25 SECTION 4. The importance of this legislation and the
20-26 crowded condition of the calendars in both houses create an
20-27 emergency and an imperative public necessity that the
21-1 constitutional rule requiring bills to be read on three several
21-2 days in each house be suspended, and this rule is hereby suspended.