BILL ANALYSIS



HUMAN SERVICES
C.S.S.B. 190
By: Zaffirini (Naishtat)
4-17-97
Committee Report (substituted)


BACKGROUND

The regulation of nursing facilities is derived from a combination of
state and federal law.  State law governs the criteria used to determine
the competence, character, financial condition and level of compliance
with standards of care needed to obtain and retain a license to operate a
nursing facility.  Federal law governs the criteria used to be "certified"
or eligible to receive funds through federal programs such as Medicaid.
Nursing facilities must meet all state licensing requirements; otherwise,
they are not eligible to participate in the federally funded programs.  In
this regard, state law is the primary vehicle to assure meaningful
protection of current and future residents of nursing facilities. 

A combination of weaknesses in Texas law limit the effectiveness of
current regulation of nursing facilities, placing our most vulnerable
population of elderly and disabled at risk of abuse, neglect,
exploitation, and inadequate care.  Texas law provides inadequate measures
to assure that only persons with solid credentials may own, operate and
control licensed nursing facilities. Further, Texas law is vague and
ambiguous in its delegation of key regulatory authority, including license
revocation, application of remedies and rulemaking. 


PURPOSE

House Bill 413 is intended to establish effective state licensure
authority over nursing facilities in Texas.  To achieve this goal, the
bill (1) redefines those persons and entities who are subject to the law;
(2) provides the Texas Department of Human Services (the department)
authority to exercise discretion to issue and renew licenses for only
those facilities that meet the new, more stringent licensing requirements;
(3) establishes authority to require relevant background information from
those who own, operate and control nursing facilities as a prerequisite
for licensure; (4) establishes additional resident protections; (5)
establishes a variety of state enforcement measures; (6) clarifies
rulemaking authority granted to the Board of Human Services; (7) clarifies
the law relating to the use of regulatory reports in civil actions and the
use of arbitration proceedings; and (8) enhances the Attorney General's
enforcement capabilities. 


RULEMAKING AUTHORITY
 
House Bill 413 grants rulemaking authority to the Texas Board of Human
Services (Board).  Those sections of the bill that grant rulemaking
authority are intended to provide the board with broad authority to
implement each subsection of Chapter 242 of the Health and Safety Code.
The rules adopted by the board may be more but not less stringent than the
federal laws applicable to nursing facilities.  Further, the board's
authority to establish rules and standards is expanded to expressly
include quality of care standards and residents' rights. 

It is the opinion of the committee that rulemaking authority is expressly
granted to the Texas Board of Human Services in the following sections of
the bill: 
Section 1.06 (Section 242.032(e), Health and Safety Code);
Section 1.09 (Section 242.037(a) and (g), Health and Safety Code);
Section 1.22 (Section 242.1225, Health and Safety Code);
Section 1.23 (Section 242.126(d), Health and Safety Code);
 Section 1.30 (Section 242.501(a), Health and Safety Code); and
Section 1.33.


SECTION BY SECTION ANALYSIS

ARTICLE 1.  REGULATION OF NURSING HOMES AND SIMILAR FACILITIES

SECTION 1.01. Amends Health and Safety Code Section 242.001.  Replaces the
existing purpose statement of Chapter 242 of the Health and Safety Code
applicable to nursing facilities.  The revised section sets forth the
explicit legislative intent that the regulation of nursing facilities in
Texas shall be regulated in a manner that protects residents in four basis
ways: 
1.  providing the highest possible quality of care;
2.  strictly monitoring all factors relating to the health, safety,
welfare and dignity of each resident; 
3. imposing prompt and effective penalties for noncompliance with
licensing standards; and, 
4. providing the public with information concerning the operation of
institutions in this state. 
This section also establishes certain minimum standards for nursing
facilities and authorizes the department to establish rules relating to
licensure requirements which are more stringent than federal certification
regulations.  

SECTION 1.02.  Amends Section 242.002, Health and Safety Code, to define
the terms "Commissioner", "Controlling Person," and other terms used in
the chapter. 

SECTION 1.03.  Amends Section 242.0021 of the Health and Safety Code. This
section defines "controlling person" in order to assure that the licensing
requirements and remedies reach the person or entity in actual or legal
control of the facility. 

Section 1.04.  Amends Section 242.005, Health and Safety Code to require
not only DPS, but also the Office of the Attorney General, to submit an
annual performance report to the governor and legislature by October 1.
The form and content of the reports shall be prescribed jointly by the
Legislative Budget Board and the state auditor. 

SECTION 1.05.  Adds new Sections 242.015 and 242.016 to the Health and
Safety Code. New section 242.015 requires each facility to have a licensed
administrator who: 1) works at least 40 hours per week; and 2) is
responsible for management of the institution and the delivery of quality
care to all residents.  New section 242.016 provides that fees or
penalties collected by the Department of Human Services under this chapter
are to be used by the department to administer and enforce this chapter,
except as expressly provided by this chapter. 

SECTION 1.06.  Amends Section 242.032, Health and Safety Code.  Allows the
department to conduct investigations into the qualifications of all
applicants and existing license holders for the purpose of initial
licensing and renewal of existing licenses, including review of past
compliance or non-compliance with state and federal laws and financial
condition.  Such compliance information will be required of all owners and
other persons who control or manage the facility for at least the past 10
years relating to Texas and all other states.  Such information shall be
made available to the public.  This section places an affirmative burden
on the applicant or license holder to establish their ability to comply
with all state and federal requirements.  This section requires the
department to determine what constitutes a satisfactory compliance history
by rule.  Further, this section authorizes the department to require
historical financial information from the applicant or any person required
to submit background information to the department as part of a license
application or renewal. 

SECTION 1.07.  Amends Section 242.033(a), Health and Safety Code, to place
the issuance or renewal of a nursing home license at the discretion of
DHS, based upon the results of its evaluation of the applicant and those
who control the applicant. 

SECTION 1.08.  Amends Section 242.034, Health and Safety Code.  Authorizes
the Texas Board of Human Services to establish a background examination
fee to be paid by each applicant, including initial licenses, renewals,
change of ownership, and increase in bed space.  Further, this section
increases the license fees for institutions.  Any fee increases must be
reflected in reimbursement  rates. 

SECTION 1.09.  Amends Section 242.037, Health and Safety Code.  Grants the
department rulemaking authority to implement all of chapter 242 and
provides that the rules and standards adopted by the department may be
more stringent than the federal requirements for Medicaid certification,
and shall not be less stringent that current federal regulations.
Further, this section requires the department to coordinate the
development and implementation of licensing standards with the federal
rules to avoid unnecessary duplication and preserve the efforts made by
the department in early 1995 to streamline nursing facility regulations.
This section also requires the Board of Human Services to establish rules
setting forth a system for prioritizing investigation of and action on
complaints relating to institutions. 

SECTION 1.10.  Amends Section 242.042, Health and Safety Code.  This
section adds the requirement that facilities post the availability of
information from the department relating to the facility, including
quality of care, recent investigations, and litigation.  Further, the
section adds the requirement that a notice must be posted on all doors
when a facility is ordered to suspend admissions.  Finally this section
requires each institution to post on all doors that information is
available for public inspection in the institution relating to its
compliance history and current violations of residents rights.   

SECTION 1.11.  Amends Section 242.061, Health and Safety Code, by amending
subsection (a) and adding subsection (c).  Provides the department with
expanded authority to deny, suspend, or revoke a license to operate an
institution. 

SECTION 1.12.  Adds new section 242.0615  which allows the department to
exclude a person from eligibility for a license under this chapter if that
person has substantially failed to comply with this chapter.  The
exclusion may be for a period not less than two years and not more than
ten.  

SECTION 1.13 Amends Section 242.063 (a), (b) and (d), by expanding the
department's capability to seek temporary restraining orders and
injunctions against a person or persons that violate or threaten to
violate a standard imposed under this chapter or any other law affecting
residents; allowing a district court to provide injunctive relief to
prohibit a person or persons from violating or threatening to violate
standards or licensing requirements prescribed by this chapter; and, in
certain instances, allowing a suit for a temporary restraining order or
other injunctive relief to be brought in Travis County or in the county in
which the alleged violation occurs.   

SECTION 1.14 Amends Section 242.065 (a), Health and Safety Code by:
further defining who is liable for a civil penalty and increasing the
minimum and maximum penalty allowed for each act; by adding new subsection
(b) to define what should be considered when determining the amount of a
penalty to be awarded under this section; renaming previous subsection (b)
to (c) and expanding what constitutes a separate ground for recovery to
include each resident who suffers directly because of the violation; and
adding subsection (d) to define "affiliate". 

SECTION 1.15  Amends Section 242.066, Health and Safety Code, by amending
subsections (a) and (b) and adding subsections (f), (g), and (h), revising
the reasons for assessing administrative penalties assessed by the
department. Six reasons are provided for administrative penalties: 

 1)  violation of any department rule, order or standard;
 2)  making a false statement on an application or in an investigation;
 3)  refusing access to the department to inspect records or premises;
 4)  willful interference with department functions;
 5)  willful interference with department representatives; and
 6)  failing to pay a penalty within 10 days of the assessment.

The penalty for these types of offenses may not be less than $500 or more
than $15,000 per day for each violation.  This section permits the penalty
to be assessed against either the applicant, license holder or anyone who
owns or controls the institution. 

This section also establishes a separate level of fines for violations of
resident rights, failure to post  notice of suspension of admissions and
rules requiring the reporting of conduct or conditions resulting in the
exploitation of residents and accidental injury to or hospitalization of
residents.. These types of violations will be limited to $1000 a day for
each violation, unless the violation of a resident's right also violates a
standard of care.  In such cases, the $15,000 limit applies. 

SECTION 1.16.  Amends Subchapter C, Chapter 242, Health and Safety Code,
by adding new section 242.0665.  Allows a facility up to 30 days to
correct certain violations to avoid the assessment of administrative
penalties.  To avoid the penalty, the facility must maintain compliance
for at least one year.  Failure to maintain compliance results in an
increase in the amount of the fine, up to $30,000 a day per violation with
a minimum fine established as $500 per day per violation. Facilities,
however, that have violations that result in serious harm, constitute a
serious threat to the health or safety of a resident, or limit the
institution's capacity to provide care, are excluded from the avoidance of
penalties.    

SECTION 1.17.  Amends Section 242.068(d), Health and Safety Code, to
clarify the distinction between civil penalties and administrative
penalties. 

SECTION 1.18.  This section amends the existing Health and Safety Code
regarding enforcement. Section 242.067 is amended to incorporate
provisions implementing the right to correct violations. Section 242.069
is amended to satisfy constitutional requirements of administrative
penalty adjudication.  Notice must be given to the person charged and the
notice must include the findings, the amount of the penalty, the rate of
interest payable, the date on which interest begins to accrue, whether
payment is required, and the person's right to judicial review.  The
person charged is directed to pay the full amount or file a petition for
judicial review. 

The department, notwithstanding subsection (b), may permit the person to
pay the penalty in installments or to use the penalty to ameliorate the
violation to improve services affected by the violation.  Penalties not
collected within 30 days are subject to interest and in such situations
the department may refer matters to the Attorney General for collection.
Reduced or unassessed penalties will be remitted with interest to charged
persons.  Interest accrued on amounts collected after the 30 day period
will be paid at rate set by the New York Federal Reserve Bank for the
period beginning on the day the order is received by the person and ending
on the date on which the penalty is paid.  Section 242.070 states that a
penalty may not be assessed for the same act under both this chapter and
for violations of Chapter 32, Human Resources Code unless a facility
violates contractual obligations under Chapter 32 of the Human Resources
Code.  Not more than one penalty authorized by this chapter may be
assessed under this subsection. 

SECTION 1.19.  Amends Subchapter C, Chapter 242, Health and Safety Code,
by adding Section 242.071, Amelioration of Violation.  Authorizes the
Commissioner of the department to require a facility to use, under the
supervision of the department, all or part of the dollars fined to enhance
care in lieu of paying the fine to the state.  Section 242.072 is added to
define when the Attorney General and the Department may recover costs and
provides for how the costs shall be appropriated.  New section 242.073
provides authority to immediately suspend admissions to a facility,
coupled with the requirement that a notice of the suspension be posted on
all doors of the facility.  New section 242.074 is added to authorize the
Attorney General to conduct additional investigations and defines under
which circumstances those investigations may be conducted.  New section
242.075 authorizes a demand for a civil investigation and defines the
parameters of such, including disclosure and procedure involved with
documentary material, the delivery of a civil investigation demands, and
the role of the Attorney General.  New section 242.076 prohibits an
institution from using, in any action brought by the department or the
Attorney General, any evidence withheld from the department or the
Attorney General during an inspection or investigation under this chapter,
if the evidence was requested by the department or the attorney general
and is not privileged under the law of this state.   

SECTION 1.20  Amends Section 242.096(e), Health and Safety Code, by
stating that any moneys in the nursing and convalescent home trust fund in
excess of $500,000 at the end of the fiscal year shall be transferred to
the credit of the general revenue fund and may be appropriated only to DHS
for use in administering and enforcing this chapter.   

 SECTION 1.21 Amends Section 242.097, Health and Safety Code.  Subsection
(a) is amended to require the department to adopt, if the amount of the
nursing and convalescent home trust fund is less than $500,000, an annual
fee to be deposited in that fund.  Subsection (b) is amended to require
the department to set a fee of $1 per unit or bed space, or an amount
necessary to provide $500,000 in the trust fund. 

SECTION 1.22.  Amends Subchapter E, Chapter 242, Health and Safety Code,
by adding a  new Section 242.1225.  Directs the board to adopt rules
requiring the reporting of conduct or conditions that result in
exploitation of residents, accidental injury and hospitalization of
residents. 

SECTION 1.23.  Amends Section 242.126, Health and Safety Code, to provide
parameters and time lines for the initiation and completion of
investigations relating to abuse and neglect allegations.  The department
shall begin its investigation within twenty-four hours of the receipt of a
report which alleges any of the following three circumstances: 
1. the health or safety of a resident is in imminent danger;
2. a resident has recently died because of the reported conduct; or
3. a resident has been hospitalized because of reported conduct.

This section further provides a one working day response time for other
complaints of abuse or neglect that could place a resident in imminent
danger.  The department is required to adopt rules governing the conduct
of investigations to ensure that the complainant and resident receive
periodic information regarding the investigation.  If, during an
investigation, immediate removal of a resident is necessary to protect the
resident, the department must file a petition for temporary care and
protection of the resident.  Ultimately, the department or designated
agency must file a final written report with the district attorney and the
appropriate law enforcement agency, if necessary. 

SECTION 1.24.  Amends Section 242.127, Health and Safety Code, to require
the department to maintain the confidentiality of the names of persons
making complaints or reports of abuse and neglect. 

SECTION 1.25.  Amends Section 242.133 (a), Health and Safety Code, to
provide a private cause of action against an institution by a person
(employee) who is retaliated against for making any report of abuse or
neglect or for initiating or cooperating in investigations of the
institution.  Further, this cause of action is broadened to specifically
include retaliation for reporting any complaint to the person's
supervisor. 

SECTION 1.26.  Amends Section 242.1335 (a), Health and Safety Code, to
broaden the protection of residents from retaliation for making any type
of compliant report or grievance or reports made in accordance with this
subchapter. 

SECTION 1.27.  Redesignates Subchapter H, Chapter 242, Health and Safety
Code, to Subchapter J, relating to arbitration. 

SECTION 1.28.  Amends Section 242.253 (c), Health and Safety Code, to
require that the party that elects arbitration to pay the costs of the
arbitration.  Additionally, this section limits fees and expenses to be
paid to an arbitrator to a maximum of $500 per day. 

SECTION 1.29.  Amends Section 242.267, Health and Safety Code, to provide
the department and institutions equal standing to file applications to
vacate an arbitrator's order.  Amends Section 242.268, Health and Safety
Code, to prohibit the use of arbitration in cases involving suspension of
a license, suspension of admissions or closing orders. 

SECTION 1.30.  Amends Chapter 242, Health and Safety Code, by
redesignating Subchapter F to Subchapter N. 

Adds to Chapter 242, Health and Safety Code, a new Subchapter F, entitled
Medical, Nursing, and Dental Services Other Than Administration of
Medication, to provide the statutory authority for requiring institutions
to maintain the following types of services: 

 1. Physician Services. Section 242.151:  Each institution is to have a
state-licensed medical director responsible for residents' assessment and
a comprehensive plan of care.  Specifically stated is the right of each
resident to choose a personal attending physician. 

2.  Physician Services for Residents Younger Than 18 Years of Age, Sec.
242.152:  Each institution shall use pediatric consultative services in
accordance with the assessment and that a pediatrician or other physician
with expertise with children with complex medical needs shall participate
in all aspects of the child's care. 

3.  Director of Nursing Services, Section 242.153:  Each institution shall
have a director who is responsible for coordinating the residents'
comprehensive plan of care and ensuring the proper administration of
medication.  This person must be a registered nurse. 

4.  Nursing Services, Section 242.154:  Each institution shall maintain
sufficient staff to obtain and maintain the physical, mental, and
psychosocial functions of each resident at the highest practicable level. 

5.  Pediatric Nursing Services, Section 242.155:  Each institution must
ensure that nursing services are provided by staff with demonstrated
competence in care of children and must use consultative pediatric nursing
services. 

6.  Required Medical Examination, Section 242.156:  Requires a minimum of
one medical examination each year, the details of which should be
specified by the department, unless other requirements are made by federal
law. 

7.  Dental Examination, Section 242.157:  Requires the facility to ask the
residents or custodians if they desire a dental exam at their own expense. 

Adds a new Subchapter K to Chapter 242, Health and Safety Code, Subchapter
K, which  includes: 

1.  Quality of Life, Section 242.401:  Facilities must provide care in a
way that promotes maintenance or enhancement of the quality of life and to
meet unique needs of those under 18 years of age. 

2.  Quality of Care, Section 242.402:  The care must enable the resident
to attain and maintain the highest practicable level of physical,
emotional and social well-being. 

3.  Standards for Quality of Life and Quality of Care, Section 242.403:
The department shall adopt standards which, at a minimum, address: 
  (1) admissions
  (2) care for residents under 18 years of age
  (3) assessment and comprehensive plan of care
  (4) transfer and discharge
  (5) clinical records
  (6) infection control
  (7) rehabilitation services
  (8) food services
  (9) social services and activities
  (10) prevention of pressure sores
  (11) bladder/bowel retraining
  (12) tube feeding
  (13) relocation of residents
  (14) postmortem procedures
 (15) appropriate use of restraints

The department may also adopt additional standards to implement Sections
242.401 and 242.402. 

4.  Policies, Procedures and Practices for Quality of Care and Quality of
Life, Section 242.404:  This section requires institutions to comply with
the standards and to develop written operating policies  to implement
them.   The content of such policies and procedures will be the subject of
standards adopted by the department, and must be made available to the
public, including physicians, staff resident's next of kin, or anyone
making a request. 

Adds to Chapter 242, Health and Safety Code, Subchapter L, entitled Rights
of Residents, which includes: 

1.  Resident's Rights, Section 242.501: Instructs the department to adopt
a statement of resident rights.  At a minimum, the statement of rights
must contain provisions relating to the 21 specific rights listed in the
statute.  Such rights may only be restricted to protect the rights of
other residents, particularly matters of privacy and confidentiality.  The
department may adopt resident rights in addition to those required. 

2.  Rights Cumulative, Section 242.502:  Assures that the resident rights
are cumulative with all other rights established by this chapter or any
other law. 

3.  Duties of Institution, Section 242.503:  Requires institutions to
develop and implement policies to protect resident rights and determines
that these rights may not be violated. 

4.  Information About Resident's Rights and Violations, Section 242.504:
Establishes the duty on the institution to explain the resident's rights
to residents and next of kin, and to provide a written statement of
rights, any policies of the facility related to implementing the rights
and the duty to post written statements.  Further, as part of the proposed
enforcement of rights, any time the institution has been cited for
violation of resident rights by the department, the institution must
include a notice of the citation in the informational materials required
by 242.042(a)(8).  Also, the institution must include its written
statement of rights in this informational material. 

Adds to Chapter 242, Health and Safety Code, Subchapter M entitled
Complaint Inspections which includes: 

1.  Complaint Requesting Inspection, Section 242.551:  Any person may
request the department to conduct an inspection of an institution by
making a complaint when there is an alleged violation of law in the
institution.  All such complaints are encouraged to be in writing. 

2.  Disclosure of Substance of Complaint, Section 242.552:  The department
is prohibited from providing the institution with information about the
substance of the complaint until it makes an on-site inspection. 

3.  Confidentiality, Section 242.553:  The name of the person making the
complaint is confidential, unless the person requests their name to be
released. 

4.  Preliminary Review of Complaint: Inspection, Section 242.554:
Requires the department to inspect or otherwise respond within a
reasonable time unless they determine that the complaint is made to harass
the institution or has no reasonable basis or they find corrective action
by the institution.  The department shall notify the person making the
complaint of the proposed course of action. 


Adds to Chapter 242, Health and Safety Code, Subchapter N entitled
Administration of Medication which includes: 

1.  Medication Administration, Section 242.601:  Requires institutions to
set up procedures which comply with all department rules. 

2.  Pharmacist Services, Section 242.602:  Requires certain services to be
performed by licensed pharmacist, and establishes right of resident to
choose their pharmacy provider. 

3.  Storage and Disposal of Medications, 242.603:  Establishes standards
for storage and disposal. 

 4.  Reports of Medication Errors and Adverse Reactions, Section 242.604:
Establishes reporting requirements for errors and adverse reactions. 

5.  Medication Reference Sources, Section 242.605:  Requires facilities to
maintain proper reference books, including pediatric medications if they
have children in the institution. 

6. Sections 242.606 through 242.610:  Conforming amendments. 

7. Section 242.611.  Amended to allow the department greater flexibility
in the use of medication permit fees by removing the requirement that fees
received under this section may only be appropriated to the department to
defray costs incurred under this section. 

8. Section 242.612 through 242.615.  Conforming amendments.  Existing
requirements under Section 242.159 (regarding medical examinations) and
Section 242.160 (regarding dental examinations) are deleted. 


SECTION 1.31.  Amends section 222.0255 of the Health and Safety Code to
clarify that the licensing standards must be adopted by rule in accordance
with Chapter 242, including the provisions of 242.037 providing that the
rules and standards may be more stringent than the standards imposed by
federal law for certification for participation in the state Medicaid
program, but may not be less stringent than the Medicaid certification
standards and regulations imposed under the Omnibus Budget Reconciliation
Act of 1987 (OBRA), Pub. L. No. 100-203. 

SECTION 1.32.  This section repeals the existing "rights of residents"
provision (242.012).  The repeal is to take effect January 1, 1998. 

SECTION 1.33.  Requires the Board of Human Services to adopt rules
necessary to implement this law not later than January 1, 1998. 

SECTION 1.34.  Specifies that the additional license fee set forth in
section 1.21 applies only to fees due on or after the effective date on
this Act. 

SECTION 1.35  Applies the new law to conduct occurring on and after
January 1, 1998. 


ARTICLE 2.  GOVERNMENT FUNDING OF NURSING SERVICES

SECTION 2.01  Amends section 32.021, Human Resources Code, to eliminate
the sanctions advisory committee, to remove the restriction on state
rulemaking being tied to federal certification standards, and provide that
certification standards adopted by the department for participation in the
state Medicaid program must comply with the more stringent of state or
federal law.  This section also bolsters authority to impose appropriate
remedies. This section also clarifies the procedure for admissibility of
surveys, complaint investigations, incident investigations and other
documents in civil actions; and prohibits any reimbursement for penalties
paid.  Also, the "3-strikes" rule promulgated by the department is
codified. 


ARTICLE 3. EFFECTIVE DATE; EMERGENCY

SECTION 3.01  Effective date is September 1, 1997.

SECTION 3.02  Emergency clause.






 COMPARISON OF ORIGINAL TO SUBSTITUTE


 
C.S.S.B. 190
C.S.H.B. 413
Article 1.   Regulation of Nursing Homes    and Similar Facilities

SECT. 1.01:  Establishes minimum quality of care standards for nursing
homes and similar institutions. 
SECT. 1.01:  Same, except states that a violation of standard or rule is
forbidden by law and that standards are developed to protect consumers,
and a class of persons. Establishes criteria for consumers and providers
to assess the quality of care in an institution. 
SECT. 1.02:  Define facilities which are included as institutions under
this chapter. Adds other definitions, including new definition of person. 
SECT. 1.02:  Same, but also defines controlling person.
SECT. 1.03:  Defines "controlling person" for determining if a person has
influence over the operations of an institution. 
SECT. 1.03:  Same.  
SECT. 1.04:  Requires the Department of Human Services (DHS) and the
Attorney General (AG) to prepare an annual report on their
responsibilities, as prescribed by the Legislative Budget Board and State
Auditor. 
SECT. 1.04:  Same.
SECT. 1.05:  Establishes that certain DHS documents are public
information.  Requires facilities to have a licensed nursing home facility
administrator and establishes administrator's requirements.  Requires fees
or penalties to be deposited in general revenue fund and restricts
appropriation on to DHS to administer this chapter.  Prohibits collection
of investigation and attorney's fees unless penalties are also collected. 
SECT. 1.05:  Same provision for licensed nursing facility administrator.
No similar provision on DHS documents being public information on
prohibition against collection of investigation and attorney's fees. 
SECT. 1.06:  Establishes license renewal application requirements for
institutions, including information required to substantiate 10 years of
satisfactory compliance history. 
SECT. 1.06:  Same, but also requires DHS to determine by rule what
constitutes a satisfactory compliance history. 
SECT. 1.07:  Changes language from mandatory to permissive on DHS issuing
a license. 
SECT. 1.07:  Same.
SECT. 1.08:  Authorizes the DHS board to establish a fee for background
examinations. Deletes the requirement that all license fees be deposited
in the state treasury to credit of DHS. 
SECT. 1.08:  Same, but also increases base license fee from $150 to $250
and increases the per bed rate from $5 to $10. 
SECT. 1.09:  Requires DHS to create and enforce rules and minimum
standards at least as stringent as federal Medicaid standards and federal
regulations.  Changes permissive language to mandatory on minimum
standards the DHS board must also adopt. Changes dietary to nutritional. 
SECT. 1.09:  Same, but also says these rules and standards are expressly
created to protect a class of persons to which residents of the
institution belong.  Leaves reference to dietary.  Adds similar language
on surveys for provider certification.  Requires DHS board to adopt a
system for prioritizing complaint investigations. 
 SECT. 1.10:  Requires each institution to post, in a public area, notice
that various reports on its performance are available, as well as notice
that DHS and Texas Board of Nursing Facility Administrators can provide
other reports. 
SECT. 1.10:  Similar, but also requires informational materials containing
a statement of the institution's record of compliance updated at least
monthly to be maintained for public inspection in a well-lighted
accessible location. 
SECT. 1.11:  Authorizes DHS to deny, suspend, or revoke and institution's
license for a violation of this chapter, rule, standard, order, of
license.  Further authorizes DHS to deny, suspend, or revoke the license
if any person has been excluded from holding a license under section
242.0615. (SECT. 1.12 of this bill) 
SECT. 1.11:  Same, but requires that the violation must have occurred in
either a repeated or substantial manner. 
SECT. 1.12:  Authorizes DHS to exclude a person from eligibility for a
license for substantially failing to comply with the chapter and rules for
a period of 2 to 10 years. 
SECT. 1.12:  Same, but adds additional description of a person and states
DHS's authority is in addition to other DHS authority to deny a license. 
SECT. 1.13:  Authorizes DHS to seek a temporary restraining order for a
violation or threatened violation if DHS reasonably agrees that it creates
an immediate threat to the health and safety of a resident.  Authorizes
DHS to seek an injunction to restrain a person from a violation or
threatened violation if it reasonably believes that the violation or
threatened violation creates a threat to a resident's health and safety. 
SECT. 1.13:  Same, but the injunction is authorized only to restrain a
person from continuing a violation.  Authorizes a district court, on
petition, to prohibit a person from violating standards or licensing
requirements by injunction or grant the injunctive relief that a person is
threatening to violate standards. Allows the restraining order or
injunctive relief to be brought in Travis County. 
SECT. 1.14:  Increases the civil penalty to not less than $1,000 or more
that $25,000.  Adds criteria for determining the amount of the penalty.
Specifies that each resident who suffers directly constitutes a separate
ground for recovery.  Allows any party to a suit the ability to request a
jury.  Allows the state to seek satisfaction from any owner, controlling
person, or affiliate if a person who is liable fails to pay any amount.
Provides that penalties are not an allowable cost for reimbursement by
Medicaid.  States that civil penalties awarded constitute a fine to a
government unit and are not compensation for actual pecuniary loss. 
SECT. 1.14:  Increases the civil penalty to not less than $2,00 or more
than $15,000.  Adds that penalty may be assessed for a violation of any
requirement for participation in the state Medicaid program.  Uses same
criteria as C.S.S.B. 190 for determining penalty amount. Defines
"affiliate".  
SECT. 1.15:  Authorizes DHS to assess an administrative penalty, instead
of a civil penalty, of up to $10,000 a day, except for certain violations
for which a penalty of up to $1,000 a day is charged.  Adds conditions
under which penalties can be assessed and specifies persons against whom
penalties can be assessed. 
SECT. 1.15:  Same, except that administrative penalties may not be less
than $500 or more than $15,000  a day, except for certain violations or
for any person not reporting abuse or neglect which result in a penalty of
up to $1,000 a day. 
 SECT. 1.16:  Prohibits DHS from assessing administrative penalty if the
institution corrects certain violations within 60 days.  If the
institution fails to maintain the correction for the year, an
administrative penalty of up to $30,000 per day may be assessed for each
violation, with no requirement that the institution be given an
opportunity to correct. 
SECT. 1.16:  Same, but allows the institution 30 days to correct
violations before an administrative penalty is assessed.  Adds
non-reporting of abuse or neglect as a violation which is not correctable.
If the institution fails to maintain correction for the year, an
administrative penalty of between $500 and $30,000 may be assessed, with
no requirement that the institution be given an opportunity to correct. 
SECT. 1.17:  Establishes additional guidelines for DHS in reports
recommending administrative penalties and in inspecting corrections to
confirm that violations have been corrected.  Requires the use of an
administrative law judge if requested, who must levy an administrative
penalty for any confirmed violation.  Requires person charged with the
penalty to either pay, pay and file a petition, or file a petition within
10 days.  Interest accrues after 10 days.  Prohibits DHS from assessing
more than one monetary penalty except as provided for correctable
violations and penalties under the Human Resources Code. 
SECT. 1.17 and SECT. 1.18:  Same guidelines, except requires DHS
commissioner to assess penalty if the person fails to correct the
violation to DHS's satisfaction.  Requires person charged with the penalty
to either pay or file a petition within 30 days.  Interest on the penalty
accrues after 30 days.  Prohibits DHS from assessing more than one
monetary penalty except for penalties under the Human Resources Code. 
SECT. 1.18:  Authorizes DHS commissioner to require the use of
administrative penalty to ameliorate violation.  Also authorizes the
commissioner to suspend admissions. Requires institutions to post notice
of suspension.  Requires AG to work with DHS on cases, and requires
commissioner to approve all settlements. 
SECT. 1.19:  Authorizes DHS commissioner to require the use of
administrative penalty to ameliorate violation and to suspend admissions,
subject to appeal.  Requires institutions to post notice of suspension.
Authorizes AG to investigate institutions and obtain certain information
through a civil investigative demand.  Defines civil investigative demand,
uses of information obtained, and penalties for non-compliance. Prohibits
use of most requested information which was with held by the institution
in any action brought be DHS or the AG.  Allows AG to recover certain
costs.  
SECT. 1.19:  Transfers unencumbered balance in the nursing and
convalescent home trust fund in excess of $500,000.  Previous transfer
occurred at $100,000. 
SECT. 1.20:  Same.

SECT. 1.20:  Authorizes DHS to charge an additional fee in order if the
nursing and convalescent home trust fund is less that $500,000. 
SECT. 1.21:  Same.
SECT. 1.21:  Requires DHS board to adopt rules requiring person who must
report abuse or neglect, and to also report other conduct or conditions. 
SECT. 1.22:  Same.
SECT, 1.22:  Establishes procedures for DHS to follow in investigating a
report of abuse or neglect.  Prohibits use of resident's name unless
expressly authorized and others as specified. 
SECT. 1.23:  Same, except prohibits use of resident's name and others as
specified. 
 SECT. 1.23:  Requires the name of a person making a report to be held
confidential, but deletes requirement for a record or working paper
developed in an investigation to be held confidential. 
SECT. 1.24:  Requires all information developed in an investigation to be
held confidential and the name of a person making a report. 
SECT. 1.24:  Establishes a cause of action if an employer retaliates
against a person for reporting  abuse or neglect, or cooperating in an
investigation. 
SECT. 1.25:  Same.
SECT. 1.25:  Prohibits an institution from retaliating or discriminating
against a resident for making a complaint or filing a grievance. 
SECT. 1.26:  Same.
SECT. 1.26:  Designates Subchapter J as Arbitration of Certain Disputes.
SECT. 1.27:  Same.
SECT. 1.27:  Stipulates that the party which elects arbitration to resolve
certain disputes shall pay the costs of arbitration. 
SECT. 1.28:  Same.
SECT. 1.28:  Adds criteria under which a court can vacate an arbitrator's
order. Prohibits institution or DHS from electing arbitration in case of
emergency or closing order.  Requires certification by DHS commissioner
and AG in order to pursue arbitration of a civil penalty. 
SECT. 1.29:  Establishes criteria under which a court can vacate an
arbitrator's order. Prohibits institution or DHS from electing arbitration
in case if emergency or closing order, or where admissions are suspended. 
SECT. 1.29:  Requires institutions to have medical director and director
of nursing services and adds responsibilities of attending physician
(allows responsibilities to be performed by physician assistant or nurse
practitioner).  Provides option of granting waiver for director of nursing
services which allows director not to be a registered nurse, outlines
required nursing services, and sets required medical and dental
examinations. Establishes quality of life and quality of care standards
(special section on nutrition), rights of residents, complaint
inspections, medication administration, pharmacist services and
legislative oversight by the long-term care legislative oversight
committee.  Allows physician assistants to administer medications in
addition to nurse practitioner. 
SECT. 1.30:  Holds medical director responsible for duties of attending
physician in C.S.S.B. 190, with no language on delegating
responsibilities.  No waiver for director of nursing services, but other
services and examinations are the same.  Establishes quality of life and
quality of care standards which are similar.  Requires institution to
provide individual accommodations and the right to be free form the use of
restraints except to extent that it endangers the resident or other
residents.  Institutions which have been cited for violating any rights
must post these citations.  No language on legislative oversight.  Allows
nurse practitioner to administer medications. 
SECT. 1.30:  Provides that Chapter 242 establishes the minimum licensing
standards for an institution and that licensing standards adopted by DHS
must be adopted as specified and comply with other statutory provisions. 
SECT. 1.31:  Same.  
SECT. 1.31:  Repeals Section 242.012 of the Health and Safety Code.
SECT. 1.32:  Same.

SECT. 1.32:  Requires DHS board to adopt rules to implement changes by
January 1, 1998. 
SECT. 1.33:  Same.
 SECT. 1.33:  Makes article applicable to conduct on or after January 1,
1998. 
SECT. 1.34 and SECT. 1.35:  Makes certain change in article applicable to
license fee originally due on or after September 1, 1997. Otherwise, makes
article applicable to conduct on or after January 1, 1998. 
Article 2. Government Funding of Nursing Services

SECT. 2.01:  Requires DHS to include provisions for monetary penalties in
certain contracts.  Establishes criteria relating to the informal dispute
resolution process.  Requires Medicaid nursing facilities to comply with
state licensure rules, which may be more stringent than certification
requirements.  Establishes criteria for the admissibility or
inadmissibility of certain evidence in a civil action.  Requires DHS to
terminate a facility's provider agreement if the department has imposed
three Category II or III remedies on the facility within a 24 month
period.  Deletes language on assessment of monetary penalties as subject
to arbitration. 
SECT. 2.01:  Similar provisions.  No new criteria on informal dispute
resolution process and requires Medicaid nursing facilities to comply with
the more stringent of state or federal law.  Same language on termination
of provider agreement, but does not delete arbitration language. 
SECT. 2.02:  Provided that section 32.034 does not apply if federal
matching funds are not available to pay the facility whose contract is
being canceled.  Prohibits use of state funds to pay the facility whose
contract is being canceled if federal matching funds cannot be used. 
Nothing comparable.
Article 3.  Effective Date; Emergency
Same
SECT 3.01:  Act takes effect September 1, 1997.
SECT. 3.01:  Same.
SECT. 3.02:  Emergency Clause.
SECT. 3.02:  Same.