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.