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 * * * * *