1-1 By: Coleman, et al. (Senate Sponsor - Ellis) H.B. No. 1023 1-2 (In the Senate - Received from the House May 11, 1995; 1-3 May 12, 1995, read first time and referred to Committee on Health 1-4 and Human Services; May 23, 1995, reported adversely, with 1-5 favorable Committee Substitute by the following vote: Yeas 6, Nays 1-6 0; May 23, 1995, sent to printer.) 1-7 COMMITTEE SUBSTITUTE FOR H.B. No. 1023 By: Madla 1-8 A BILL TO BE ENTITLED 1-9 AN ACT 1-10 relating to regulation of end stage renal disease facilities; 1-11 providing penalties. 1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-13 SECTION 1. Subtitle B, Title 4, Health and Safety Code, is 1-14 amended by adding Chapter 251 to read as follows: 1-15 CHAPTER 251. END STAGE RENAL DISEASE FACILITIES 1-16 SUBCHAPTER A. GENERAL PROVISIONS 1-17 Sec. 251.001. DEFINITIONS. In this chapter: 1-18 (1) "Board" means the Texas Board of Health. 1-19 (2) "Commissioner" means the commissioner of public 1-20 health. 1-21 (3) "Department" means the Texas Department of Health. 1-22 (4) "Dialysis" means a process by which dissolved 1-23 substances are removed from a patient's body by diffusion from one 1-24 fluid compartment to another across a semipermeable membrane. 1-25 (5) "Dialysis technician" means an individual who is 1-26 not a registered nurse or physician and who provides dialysis care 1-27 under the supervision of a registered nurse or physician. 1-28 (6) "End stage renal disease" means that stage of 1-29 renal impairment that appears irreversible and permanent and that 1-30 requires a regular course of dialysis or kidney transplantation to 1-31 maintain life. 1-32 (7) "End stage renal disease facility" means a 1-33 facility that provides dialysis treatment or dialysis training to 1-34 individuals with end stage renal disease. 1-35 (8) "Medical review board" means a medical review 1-36 board that: 1-37 (A) is appointed by a renal disease network 1-38 organization which includes this state; and 1-39 (B) has a contract with the Health Care 1-40 Financing Administration of the United States Department of Health 1-41 and Human Services under Section 1881, Title XVIII, Social Security 1-42 Act (42 U.S.C. Section 1395rr). 1-43 (9) "Physician" means an individual who is licensed to 1-44 practice medicine under the Medical Practice Act (Article 4495b, 1-45 Vernon's Texas Civil Statutes). 1-46 Sec. 251.002. FEES. (a) The board shall set fees imposed 1-47 by this chapter in amounts reasonable and necessary to defray the 1-48 cost of administering this chapter. 1-49 (b) In setting fees under this section, the board shall 1-50 consider setting a range of license and renewal fees based on the 1-51 number of dialysis stations at each end stage renal disease 1-52 facility and the patient census. 1-53 (c) An end stage renal disease facility owned or operated by 1-54 a state agency is not required to pay fees imposed under this 1-55 chapter. 1-56 Sec. 251.003. ADOPTION OF RULES. The board shall adopt 1-57 rules to implement this chapter, including requirements for the 1-58 issuance, renewal, denial, suspension, and revocation of a license 1-59 to operate an end stage renal disease facility. 1-60 (Sections 251.004-251.010 reserved for expansion 1-61 SUBCHAPTER B. LICENSING OF END STAGE RENAL DISEASE FACILITIES 1-62 Sec. 251.011. LICENSE REQUIRED. Except as provided by 1-63 Section 251.012, a person may not operate an end stage renal 1-64 disease facility without a license issued under this chapter. 1-65 Sec. 251.012. EXEMPTIONS FROM LICENSING REQUIREMENT. The 1-66 following facilities are not required to be licensed under this 1-67 chapter: 1-68 (1) a home and community support services agency 2-1 licensed under Chapter 142 with a home dialysis designation; 2-2 (2) a hospital licensed under Chapter 241 that 2-3 provides dialysis only to individuals receiving inpatient services 2-4 from the hospital; or 2-5 (3) the office of a physician unless the office is 2-6 used primarily as an end stage renal disease facility. 2-7 Sec. 251.013. ISSUANCE AND RENEWAL OF LICENSE. (a) An 2-8 applicant for a license under this chapter must submit an 2-9 application to the department on a form prescribed by the board. 2-10 (b) Each application must be accompanied by a nonrefundable 2-11 license fee. 2-12 (c) Each application must contain evidence that there is at 2-13 least one qualified physician on the staff of the facility and 2-14 that each dialysis technician on staff has completed the training 2-15 program required by this chapter. 2-16 (d) The department may grant a temporary initial license to 2-17 an applicant. The temporary initial license expires on the earlier 2-18 of: 2-19 (1) the date the department issues or denies the 2-20 license; or 2-21 (2) the date six months after the date the temporary 2-22 initial license was issued. 2-23 (e) The department shall issue a license if, after 2-24 inspection and investigation, it finds the applicant meets the 2-25 requirements of this chapter and the standards adopted under this 2-26 chapter. 2-27 (f) The license is renewable annually after submission of: 2-28 (1) the renewal application and fee; and 2-29 (2) an annual report on a form prescribed by the 2-30 board. 2-31 (g) The annual report required under Subsection (f) must 2-32 include information related to the quality of care at the end stage 2-33 renal disease facility. The report must be in the form and 2-34 documented by evidence as required by board rule. 2-35 Sec. 251.014. MINIMUM STANDARDS. (a) The rules adopted 2-36 under Section 251.003 must contain minimum standards to protect the 2-37 health and safety of a patient of an end stage renal disease 2-38 facility, including standards for: 2-39 (1) the qualifications and supervision of the 2-40 professional staff, including physicians, and other personnel; 2-41 (2) the equipment used by the facility is compatible 2-42 with the health and safety of the patients; 2-43 (3) the sanitary and hygienic conditions in the 2-44 facility; 2-45 (4) quality assurance for patient care; 2-46 (5) the provision and coordination of treatment and 2-47 services by the facility; 2-48 (6) clinical records maintained by the facility; 2-49 (7) design and space requirements for the facility for 2-50 safe access by patients and personnel and for ensuring patient 2-51 privacy; 2-52 (8) indicators of the quality of care provided by the 2-53 facility; and 2-54 (9) water treatment and reuse by the facility. 2-55 (b) The standards described in Subsection (a)(7) of this 2-56 section shall apply only: 2-57 (1) to a facility which initiates the provision of end 2-58 stage renal disease services on or after September 1, 1996; or 2-59 (2) to the area of a facility affected by design and 2-60 space modifications or renovations completed after September 1, 2-61 1996. 2-62 Sec. 251.015. MEDICAL REVIEW BOARD. (a) A medical review 2-63 board shall advise the board on minimum standards and rules to be 2-64 adopted under this chapter. 2-65 (b) The medical review board shall review the information on 2-66 quality of care provided in the annual report filed under Section 2-67 251.013(f) and other appropriate information provided to or 2-68 compiled by the department with respect to an end stage renal 2-69 disease facility. Based on the review, the medical review board 2-70 may advise the department about the quality of care provided by a 3-1 facility and recommend an appropriate corrective action plan under 3-2 Section 251.061 or other enforcement proceedings against the 3-3 facility. 3-4 (c) Information concerning quality of care provided to or 3-5 compiled by the department or medical review board and a 3-6 recommendation of the medical review board are confidential. The 3-7 information or recommendation may not be made available for public 3-8 inspection, is not subject to disclosure under Chapter 552, 3-9 Government Code, and is not subject to discovery, subpoena, or 3-10 other compulsory legal process. 3-11 (d) The department, in its discretion, may release to a 3-12 facility information relating to that facility that is made 3-13 confidential under Subsection (c). Release of information to a 3-14 facility under this subsection does not waive the confidentiality 3-15 of that information or the privilege from compulsory legal process. 3-16 (Sections 251.016-251.030 reserved for expansion 3-17 SUBCHAPTER C. DIALYSIS TECHNICIANS 3-18 Sec. 251.031. TRAINING REQUIRED. An individual may not act 3-19 as a dialysis technician employed by or working in an end stage 3-20 renal disease facility unless that individual is trained and 3-21 competent under this subchapter. 3-22 Sec. 251.032. MINIMUM REQUIREMENTS; TRAINING. The rules 3-23 adopted by the board under Section 251.003 shall establish: 3-24 (1) minimum standards for the curricula and 3-25 instructors used to train individuals to act as dialysis 3-26 technicians; 3-27 (2) minimum standards for the determination of the 3-28 competency of individuals who have been trained as dialysis 3-29 technicians; 3-30 (3) minimum requirements for documentation that an 3-31 individual has been trained and determined to be competent as a 3-32 dialysis technician and the acceptance of that documentation by 3-33 another end stage renal disease facility that may later employ the 3-34 individual; and 3-35 (4) the acts and practices that are allowed or 3-36 prohibited for dialysis technicians. 3-37 (Sections 251.033-251.050 reserved for expansion 3-38 SUBCHAPTER D. INSPECTIONS 3-39 Sec. 251.051. INSPECTIONS. (a) The department may conduct 3-40 an inspection of an end stage renal disease facility to verify 3-41 compliance with this chapter, rules adopted under this chapter, or 3-42 a corrective action plan under Section 251.061. 3-43 (b) An inspection conducted under this section may be 3-44 unannounced. 3-45 Sec. 251.052. DISCLOSURE OF UNANNOUNCED INSPECTION; CRIMINAL 3-46 PENALTY. (a) A person commits an offense if the person 3-47 intentionally, knowingly, or recklessly discloses to an 3-48 unauthorized person the date or time of or any other fact about an 3-49 unannounced inspection of an end stage renal disease facility 3-50 before the inspection occurs. 3-51 (b) In this section, "unauthorized person" does not include: 3-52 (1) the department; 3-53 (2) the office of the attorney general; or 3-54 (3) any other person authorized by law to make an 3-55 inspection or to accompany an inspector. 3-56 (c) An offense under this section is a Class B misdemeanor. 3-57 (d) A person convicted under this section is not eligible 3-58 for state employment. 3-59 (Sections 251.053-251.060 reserved for expansion 3-60 SUBCHAPTER E. ENFORCEMENT 3-61 Sec. 251.061. CORRECTIVE ACTION PLAN. (a) The department 3-62 may use a corrective action plan as an alternative to enforcement 3-63 action under this subchapter. 3-64 (b) Before taking enforcement action under this subchapter, 3-65 the department shall consider whether the use of a corrective 3-66 action plan under this section is appropriate. In determining 3-67 whether to use a corrective action plan, the department shall 3-68 consider whether: 3-69 (1) the end stage renal disease facility has violated 3-70 this chapter or a rule adopted under this chapter and the violation 4-1 has resulted in an adverse patient result; 4-2 (2) the facility has a previous history of lack of 4-3 compliance with this chapter, rules adopted under this chapter, or 4-4 a corrective action plan; or 4-5 (3) the facility fails to agree to a corrective action 4-6 plan. 4-7 (c) The department may use a level one, level two, or level 4-8 three corrective action plan, as determined by the department in 4-9 accordance with this section, after inspection of the end stage 4-10 renal disease facility. 4-11 (d) A level one corrective action plan is appropriate if the 4-12 department finds that the end stage renal disease facility is not 4-13 in compliance with this chapter or rules adopted under this 4-14 chapter, but the circumstances are not serious or life-threatening. 4-15 Under a level one corrective action plan, the department shall 4-16 require the facility to develop and implement a corrective action 4-17 plan approved by the department. The department or a monitor may 4-18 supervise the implementation of the plan. 4-19 (e) A level two corrective action plan is appropriate if the 4-20 department finds that the end stage renal disease facility is not 4-21 in compliance with this chapter or rules adopted under this chapter 4-22 and the circumstances are potentially serious or life-threatening 4-23 or if the department finds that the facility failed to implement or 4-24 comply with a level one corrective action plan. Under a level two 4-25 corrective action plan, the department shall require the facility 4-26 to develop and implement a corrective action plan approved by the 4-27 department. The department or a monitor shall supervise the 4-28 implementation of the plan. Supervision of the implementation of 4-29 the plan may include on-site supervision, observation, and 4-30 direction. 4-31 (f) A level three corrective action plan is appropriate if 4-32 the department finds that the end stage renal disease facility is 4-33 not in compliance with this chapter or rules adopted under this 4-34 chapter and the circumstances are serious or life-threatening or if 4-35 the department finds that the facility failed to comply with a 4-36 level two corrective action plan or to cooperate with the 4-37 department in connection with that plan. Under a level three 4-38 corrective action plan, the department shall require the facility 4-39 to develop and implement a corrective action plan approved by the 4-40 department. In connection with requiring a level three corrective 4-41 action plan, the department may seek the appointment of a temporary 4-42 manager under Subchapter F. 4-43 (g) A corrective action plan is not confidential. 4-44 Information contained in the plan may be excepted from required 4-45 disclosure under Chapter 552, Government Code, in accordance with 4-46 that chapter or other applicable law. 4-47 (h) The department shall select the monitor for a corrective 4-48 action plan. The monitor shall be an individual or team of 4-49 individuals and may include a professional with end stage renal 4-50 disease experience or a member of the medical review board. The 4-51 monitor may not be or include individuals who are current or former 4-52 employees of the facility that is the subject of the corrective 4-53 action plan or of an affiliated facility. The purpose of the 4-54 monitor is to observe, supervise, consult, and educate the facility 4-55 and the employees of the facility under a corrective action plan. 4-56 The facility shall pay the cost of the monitor. 4-57 Sec. 251.062. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE. 4-58 (a) The department may deny, suspend, or revoke a license issued 4-59 under this chapter for a violation of this chapter or a rule 4-60 adopted under this chapter. 4-61 (b) The denial, suspension, or revocation of a license by 4-62 the department and the appeal from that action are governed by the 4-63 procedures for a contested case hearing under Chapter 2001, 4-64 Government Code. 4-65 Sec. 251.063. INJUNCTION. (a) The department may petition 4-66 a district court for a temporary restraining order to restrain a 4-67 continuing violation of this chapter or a rule adopted under this 4-68 chapter if the department finds that the violation creates an 4-69 immediate threat to the health and safety of patients of an end 4-70 stage renal disease facility. 5-1 (b) A district court, on petition of the department and on a 5-2 finding that a person is violating this chapter or a rule adopted 5-3 under this chapter, may by injunction: 5-4 (1) prohibit a person from continuing the violation; 5-5 (2) restrain or prevent the operation of an end stage 5-6 renal disease facility without a license issued under this chapter; 5-7 or 5-8 (3) grant other injunctive relief warranted by the 5-9 facts. 5-10 (c) The attorney general may institute and conduct a suit 5-11 authorized by this section at the request of the department. 5-12 (d) Venue for a suit brought under this section is in the 5-13 county in which the end stage renal disease facility is located or 5-14 in Travis County. 5-15 Sec. 251.064. CRIMINAL PENALTY. (a) A person commits an 5-16 offense if the person violates Section 251.011 or 251.031. 5-17 (b) An offense under this section is a Class C misdemeanor. 5-18 (c) Each day of a continuing violation constitutes a 5-19 separate offense. 5-20 Sec. 251.065. CIVIL PENALTY. (a) A person who knowingly 5-21 violates this chapter or who knowingly fails to comply with a rule 5-22 adopted under this chapter is liable for a civil penalty of not 5-23 more than $1,000 for each violation if the department finds that 5-24 the violation threatens the health and safety of a patient of an 5-25 end stage renal disease facility. 5-26 (b) Each day of a continuing violation constitutes a 5-27 separate ground for recovery. 5-28 Sec. 251.066. ADMINISTRATIVE PENALTY. (a) The department 5-29 may assess an administrative penalty against a person who violates 5-30 this chapter or a rule adopted under this chapter. 5-31 (b) The penalty may not exceed $1,000 for each violation. 5-32 Each day of a continuing violation constitutes a separate 5-33 violation. 5-34 (c) In determining the amount of an administrative penalty 5-35 assessed under this section, the department shall consider: 5-36 (1) the seriousness of the violation; 5-37 (2) the history of previous violations; 5-38 (3) the amount necessary to deter future violations; 5-39 (4) efforts made to correct the violation; and 5-40 (5) any other matters that justice may require. 5-41 (d) All proceedings for the assessment of an administrative 5-42 penalty under this chapter are subject to Chapter 2001, Government 5-43 Code. 5-44 Sec. 251.067. REPORT RECOMMENDING ADMINISTRATIVE PENALTY. 5-45 (a) If after investigation of a possible violation and the facts 5-46 surrounding that possible violation the department determines that 5-47 a violation has occurred, the department shall give written notice 5-48 of the violation to the person alleged to have committed the 5-49 violation. The notice shall include: 5-50 (1) a brief summary of the alleged violation; 5-51 (2) a statement of the amount of the proposed penalty, 5-52 based on the factors listed in Section 251.066(c); and 5-53 (3) a statement of the person's right to a hearing on 5-54 the occurrence of the violation, the amount of the penalty, or both 5-55 the occurrence of the violation and the amount of the penalty. 5-56 (b) Not later than the 20th day after the date the notice is 5-57 received, the person notified may accept the determination of the 5-58 department made under this section, including the recommended 5-59 penalty, or make a written request for a hearing on that 5-60 determination. 5-61 (c) If the person notified of the violation accepts the 5-62 determination of the department, the commissioner or the 5-63 commissioner's designee shall issue an order approving the 5-64 determination and ordering that the person pay the recommended 5-65 penalty. 5-66 Sec. 251.068. HEARING; ORDER. (a) If the person notified 5-67 fails to respond in a timely manner to the notice under Section 5-68 251.067(b) or if the person requests a hearing, the commissioner or 5-69 the commissioner's designee shall: 5-70 (1) set a hearing; 6-1 (2) give written notice of the hearing to the person; 6-2 and 6-3 (3) designate a hearings examiner to conduct the 6-4 hearing. 6-5 (b) The hearings examiner shall make findings of fact and 6-6 conclusions of law and shall promptly issue to the commissioner a 6-7 proposal for decision as to the occurrence of the violation and a 6-8 recommendation as to the amount of the proposed penalty if a 6-9 penalty is determined to be warranted. 6-10 (c) Based on the findings of fact and conclusions of law and 6-11 the recommendations of the hearings examiner, the commissioner by 6-12 order may find that a violation has occurred and may assess a 6-13 penalty, or may find that no violation has occurred. 6-14 Sec. 251.069. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY; 6-15 JUDICIAL REVIEW; REFUND. (a) The commissioner or the 6-16 commissioner's designee shall give notice of the commissioner's 6-17 order under Section 251.068(c) to the person notified. The notice 6-18 must include: 6-19 (1) separate statements of the findings of fact and 6-20 conclusions of law; 6-21 (2) the amount of any penalty assessed; and 6-22 (3) a statement of the right of the person to judicial 6-23 review of the commissioner's order. 6-24 (b) Not later than the 30th day after the date the decision 6-25 is final as provided by Chapter 2001, Government Code, the person 6-26 shall: 6-27 (1) pay the penalty in full; 6-28 (2) pay the amount of the penalty and file a petition 6-29 for judicial review contesting the occurrence of the violation, the 6-30 amount of the penalty, or both the occurrence of the violation and 6-31 the amount of the penalty; or 6-32 (3) without paying the amount of the penalty, file a 6-33 petition for judicial review contesting the occurrence of the 6-34 violation, the amount of the penalty, or both the occurrence of the 6-35 violation and the amount of the penalty. 6-36 (c) Within the 30-day period, a person who acts under 6-37 Subsection (b)(3) may: 6-38 (1) stay enforcement of the penalty by: 6-39 (A) paying the amount of the penalty to the 6-40 court for placement in an escrow account; or 6-41 (B) giving to the court a supersedeas bond that 6-42 is approved by the court for the amount of the penalty and that is 6-43 effective until all judicial review of the board's order is final; 6-44 or 6-45 (2) request the court to stay enforcement of the 6-46 penalty by: 6-47 (A) filing with the court a sworn affidavit of 6-48 the person stating that the person is financially unable to pay the 6-49 amount of the penalty and is financially unable to give the 6-50 supersedeas bond; and 6-51 (B) giving a copy of the affidavit to the 6-52 department by certified mail. 6-53 (d) If the department receives a copy of an affidavit under 6-54 Subsection (c)(2), the department may file with the court, within 6-55 five days after the date the copy is received, a contest to the 6-56 affidavit. The court shall hold a hearing on the facts alleged in 6-57 the affidavit as soon as practicable and shall stay the enforcement 6-58 of the penalty on finding that the alleged facts are true. The 6-59 person who files an affidavit has the burden of proving that the 6-60 person is financially unable to pay the amount of the penalty and 6-61 to give a supersedeas bond. 6-62 (e) If the person does not pay the amount of the penalty and 6-63 the enforcement of the penalty is not stayed, the department may 6-64 refer the matter to the attorney general for collection of the 6-65 amount of the penalty. 6-66 (f) Judicial review of the order of the board: 6-67 (1) is instituted by filing a petition as provided by 6-68 Subchapter G, Chapter 2001, Government Code; and 6-69 (2) is under the substantial evidence rule. 6-70 (g) If the court sustains the occurrence of the violation, 7-1 the court may uphold or reduce the amount of the penalty and order 7-2 the person to pay the full or reduced amount of the penalty. If 7-3 the court does not sustain the occurrence of the violation, the 7-4 court shall order that no penalty is owed. 7-5 (h) When the judgment of the court becomes final, the court 7-6 shall proceed under this subsection. If the person paid the amount 7-7 of the penalty and if that amount is reduced or is not upheld by 7-8 the court, the court shall order that the appropriate amount plus 7-9 accrued interest be remitted to the person. The rate of the 7-10 interest is the rate charged on loans to depository institutions by 7-11 the New York Federal Reserve Bank, and the interest shall be paid 7-12 for the period beginning on the date the penalty was paid and 7-13 ending on the date the penalty is remitted. If the person gave a 7-14 supersedeas bond and if the amount of the penalty is not upheld by 7-15 the court, the court shall order the release of the bond. If the 7-16 person gave a supersedeas bond and if the amount of the penalty is 7-17 reduced, the court shall order the release of the bond after the 7-18 person pays the amount. 7-19 Sec. 251.070. PENALTY DEPOSITED TO STATE TREASURY. A civil 7-20 or administrative penalty collected under this chapter shall be 7-21 deposited in the state treasury to the credit of the general 7-22 revenue fund. 7-23 Sec. 251.071. RECOVERY OF COSTS. (a) The department may 7-24 assess reasonable expenses and costs against a person in an 7-25 administrative hearing if, as a result of the hearing, the person's 7-26 license is denied, suspended, or revoked or if administrative 7-27 penalties are assessed against the person. The person shall pay 7-28 expenses and costs assessed under this subsection not later than 7-29 the 30th day after the date of a board order requiring the payment 7-30 of expenses and costs is final. The department may refer the 7-31 matter to the attorney general for collection of the expenses and 7-32 costs. 7-33 (b) If the attorney general brings an action against a 7-34 person under Section 251.063 or 251.065 or to enforce an 7-35 administrative penalty assessed under Section 251.066, and an 7-36 injunction is granted against the person or the person is found 7-37 liable for a civil or administrative penalty, the attorney general 7-38 may recover, on behalf of the attorney general and the department, 7-39 reasonable expenses and costs. 7-40 (c) For purposes of this section, "reasonable expenses and 7-41 costs" include expenses incurred by the department and the attorney 7-42 general in the investigation, initiation, or prosecution of an 7-43 action, including reasonable investigative costs, court costs, 7-44 attorney's fees, witness fees, and deposition expenses. 7-45 (Sections 251.072-251.090 reserved for expansion) 7-46 SUBCHAPTER F. TEMPORARY MANAGER 7-47 Sec. 251.091. APPOINTMENT BY AGREEMENT. (a) A person 7-48 holding a controlling interest in an end stage renal disease 7-49 facility may, at any time, request the department to assume the 7-50 management of the facility through the appointment of a temporary 7-51 manager under this subchapter. 7-52 (b) After receiving the request, the department may enter 7-53 into an agreement providing for the appointment of a temporary 7-54 manager to manage the facility under conditions considered 7-55 appropriate by both parties if the department considers the 7-56 appointment desirable. 7-57 (c) An agreement under this section must: 7-58 (1) specify all terms and conditions of the temporary 7-59 manager's appointment and authority; and 7-60 (2) preserve all rights of the individuals served by 7-61 the facility granted by law. 7-62 (d) The primary duty of the temporary manager is to ensure 7-63 that adequate and safe services are provided to patients until 7-64 temporary management ceases. 7-65 (e) The appointment terminates at the time specified by the 7-66 agreement. 7-67 Sec. 251.092. INVOLUNTARY APPOINTMENT. (a) The department 7-68 may request the attorney general to bring an action in the name and 7-69 on behalf of the state for the appointment of a temporary manager 7-70 to manage an end stage renal disease facility if: 8-1 (1) the facility is operating without a license; 8-2 (2) the department has denied, suspended, or revoked 8-3 the facility's license but the facility continues to operate; 8-4 (3) license denial, suspension, or revocation 8-5 proceedings against the facility are pending and the department 8-6 determines that an imminent or reasonably foreseeable threat to the 8-7 health and safety of a patient of the facility exists; 8-8 (4) the department determines that an emergency exists 8-9 that presents an immediate threat to the health and safety of a 8-10 patient of the facility; 8-11 (5) the facility is closing and arrangements for the 8-12 care of patients by other licensed facilities have not been made 8-13 before closure; or 8-14 (6) the department determines a level three corrective 8-15 action plan under Section 251.061 that includes appointment of a 8-16 temporary manager is necessary to address serious or 8-17 life-threatening conditions at the facility. 8-18 (b) After a hearing, a court shall appoint a temporary 8-19 manager to manage a facility if the court finds that the 8-20 appointment of the manager is necessary. 8-21 (c) The court order shall address the duties and authority 8-22 of the temporary manager, which may include management of the 8-23 facility and the provision of dialysis services to facility 8-24 patients until specified circumstances occur, such as new ownership 8-25 of the facility, compliance with this chapter and rules adopted 8-26 under this chapter, or closure of the facility. 8-27 (d) If possible, the court shall appoint as temporary 8-28 manager an individual whose background includes administration of 8-29 end stage renal disease facilities or similar facilities. 8-30 (e) Venue for an action under this section is in Travis 8-31 County. 8-32 Sec. 251.093. FEE; RELEASE OF FUNDS. (a) A temporary 8-33 manager appointed under Section 251.092 is entitled to a reasonable 8-34 fee as determined by the court. The fee shall be paid by the 8-35 facility. 8-36 (b) The temporary manager may petition the court to order 8-37 the release to the manager of any payment owed the manager for care 8-38 and services provided to patients of the facility if the payment 8-39 has been withheld. 8-40 (c) Withheld payments that may be released under Subsection 8-41 (b) may include payments withheld by a governmental agency or other 8-42 entity before or during the appointment of the temporary manager, 8-43 including: 8-44 (1) Medicaid, Medicare, or insurance payments; or 8-45 (2) payments from another third party. 8-46 SECTION 2. (a) Except as provided by Subsection (b) of this 8-47 section and Section 3, this Act takes effect September 1, 1995. 8-48 (b) Sections 251.011 and 251.031 and Subchapter E, Chapter 8-49 251, Health and Safety Code, as added by this Act, take effect 8-50 September 1, 1996. 8-51 SECTION 3. A person is not required to obtain a license 8-52 under Subchapter B, Chapter 251, Health and Safety Code, as added 8-53 by this Act, and an individual is not required to be trained and 8-54 competent under Subchapter C, Chapter 251, Health and Safety Code, 8-55 as added by this Act, until September 1, 1996. 8-56 SECTION 4. The importance of this legislation and the 8-57 crowded condition of the calendars in both houses create an 8-58 emergency and an imperative public necessity that the 8-59 constitutional rule requiring bills to be read on three several 8-60 days in each house be suspended, and this rule is hereby suspended. 8-61 * * * * *