IML S.B. 1247 75(R)BILL ANALYSIS 


PUBLIC HEALTH
S.B. 1247
By: Madla (Berlanga)
5-8-97
Committee Report (Unamended)


BACKGROUND

Currently, the Licensed Home and Community Support Services Agencies
(HCSSA) provide home health, hospice, and personal assistance services in
the homes of their clients as an alternative to more costly institutional
care in hospitals and nursing homes.  The only major requirements for a
temporary initial HCSSA license are a completed application, an affidavit
attesting that the application has adequate financial resources to provide
the services required by licensure, and an $875 application fee.  New
HCSSA licenses are issued at a rate of 115 per month.  The growth in this
industry has resulted in documented evidence of exploitation, abuses, and
misconduct by the agencies against their employees, clients, and
taxpayers. Legislation is needed to allow the Texas Department of Health
(TDH) to perform criminal background checks on the owner, administrator
and chief financial officer of an HCSSA prior to licensure, and to assess
administrative penalties against chronic violators of the Health and
Safety Code. 

PURPOSE

SB 1247 authorizes the Texas Department of Health (TDH) to perform
criminal background checks on the owner, administrator, and chief
financial officer of a home and community support services agency prior to
licensure by TDH.  Additionally, this bill authorizes TDH to assess
administrative penalties against violators of the Health and Safety Code
to ensure compliance.   

RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is granted to the
Board of Health in SECTION 2 (Section 142.004(c), Health and Safety Code),
to the Texas Department of Health in SECTION 5 (Sections 142.017(c) and
(d), Health and Safety Code) of this bill. 
  
SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 142.001, Health and Safety Code, by adding
Subdivision (8), defining "Chief financial officer," and renumbering
existing Subdivisions (8) through (28) to make conforming changes.  

SECTION 2. Amends Section 142.004, Health and Safety Code, by amending
Subsections (a) and (c) and adding Subsections (e) and (f), as follows: 

Subsection (a) deletes text in reference to certain application
requirements for a license to provide home health, hospice, or personal
assistance services.   

Subsection (c) deletes  a clause exempting an application for a renewal or
branch office or alternate delivery site license from compliance with
required rulemaking authority granted to the Board of Health (board).
Requires the board, by rule, to require that an applicant must provide to
the Department of Health (TDH), among other requirements, identifying
information on the home and community support services agency owner,
administrator, and chief financial officer to enable TDH to conduct
criminal background checks on those persons.   

Subsection (e) exempts a home and community support services agency owned
or operated by a state agency from the requirements of  Subsections (c)(1)
and (5).   
 
Subsection (f) requires TDH to evaluate and consider all information
collected during the application process. 

SECTION 3. Amends Section 142.010(a), Health and Safety Code, to require
the board to set license fees for home and community support agencies in
amounts that are not less than $300, rather than $200. 

SECTION 4. Amends Section 142.015(c), Health and Safety Code, to require
TDH, at each meeting of the Home and Community Support Services Advisory
Council (council), to provide an analysis of enforcement actions taken
under this chapter.  Allows the council to advise TDH on its
implementation of the enforcement provisions of this chapter. 

SECTION 5. Amends Subchapter A, Chapter 142, Health and Safety Code, by
adding Sections 142.017 through 142.0175, as follows:  

Sec. 142.017.  ADMINISTRATIVE PENALTY.  Allows TDH to impose an
administrative penalty, of no less than $100 or more than $1,000, for
violation of this chapter or rules adopted under this chapter.  Sets forth
the requirements regarding separate violations. Requires TDH, by rule, to
establish a schedule of penalties as specified.  Requires TDH, by rule, to
specify violations constituting grounds for a penalty, and sets forth the
requisite considerations.  Prohibits administrative penalties for minor
violations.  Requires TDH to establish a system to ensure standard and
consistent application of penalties regardless of location.  Provides that
all proceedings for the assessment of an administrative penalty under this
chapter are subject to Chapter 2001, Government Code. 

Sec. 142.0171.  NOTICE; REQUEST FOR HEARING.  Requires TDH, upon
determining that a violation has occurred, to give written notice of the
violation to the person alleged to have committed the violation.  Requires
the notice to include a brief summary of the alleged violation; a
statement of the amount of the proposed penalty based on the factors
listed in Subsection 142.017(d); and a statement of the person's right to
a hearing on the occurrence of the violation, the amount of the penalty,
or both.  Allows the person notified to either accept the determination of
TDH or make a written request for a hearing on that determination.
Requires the commissioner of health (commissioner) or the commissioner's
designee to issue an order approving the determination and ordering that a
person pay the proposed penalty if the person notified of the violation
accepts the determination of TDH or if the person fails to respond in a
timely manner to the notice. 

Sec. 142.0172.  HEARING; ORDER.  Requires TDH to set a hearing, give
written notice, and designate a hearing examiner upon a request for a
hearing.  Requires the hearing examiner to make findings of fact and
conclusions of law and to promptly issue to the commissioner or the
commissioner's designee a proposal for decision as to the occurrence of
the violation and a recommendation as to the amount of the proposed
penalty.  Allows the commissioner or the commissioner's designee, based on
the findings of fact and conclusions of law and the recommendations of the
hearing examiner, by order, to find that a violation has occurred and to
assess a penalty or to find that no violation has occurred. 

Sec. 142.0173.  NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL
REVIEW; REFUND.  (a)  Requires TDH to give notice of the order under
Section 142.0172(c) to the person alleged to have committed the violation.
Sets forth the required contents of the notice.   

(b)  Requires the person to pay the penalty; pay the amount of the penalty
and file a petition for judicial review contesting the occurrence of the
violation, the amount of the penalty, or both the occurrence of the
violation and the amount of the penalty; or, without paying the penalty,
file a petition for judicial review contesting the occurrence of the
violation, the amount of the penalty, or both the occurrence of the
violation and the amount of the penalty.          

(c)  Allows a person who acts under Subsection (b)(3), within the 30-day
period, to stay  enforcement of the penalty by use of an escrow account or
a supersedeas bond; or to request the court to stay enforcement of the
penalty by filing a sworn affidavit.   

(d)  Allows TDH, if TDH receives a copy of an affidavit under Subsection
(c)(2), to file with the court a contest to the affidavit.  Requires the
court to hold a hearing on the facts alleged in the affidavit and to stay
the enforcement of the penalty on finding that the alleged facts are true.
Sets forth the burden of proof for the hearing.   

(e)  Allows TDH to refer the matter to the attorney general for collection
of the penalty if the person does not pay the penalty and the enforcement
of the penalty is not stayed. 

(f)  Provides that judicial review of the order is instituted by filing a
petition as provided by Chapter 2001G, Government Code; and is under the
substantial evidence rule.  

(g)  Allows the court to uphold or reduce the amount of the penalty and
order the person to pay the full or reduced amount of the penalty.
Requires the court, if the court does not sustain the occurrence of the
violation, to order that no penalty is owed.   

(h)  Requires the court to proceed under the provisions of this Subsection
when the judgment of the court becomes final.  

Sec. 142.0174.  PENALTY DEPOSITED TO STATE TREASURY.  Requires an
administrative penalty collected under this subchapter to be deposited in
the state treasury to the credit of the general revenue fund.   

Sec. 142.0175.  EXPENSES AND COSTS FOR COLLECTION OF CIVIL OR
ADMINISTRATIVE PENALTY.  Allows the attorney general  to recover
reasonable expenses and costs under certain circumstances.  Defines
"reasonable expenses and costs" for purposes of this section.    

SECTION 6. Amends Section 142.021, Health and Safety Code, to prohibit a
person from administering medication to a client of a home and community
support services agency unless the person, among other requirements, acts
under the delegated authority of a physician; deletes "performs duties as
a qualified dialysis technician within the scope authorized by board
rules."   

SECTION 7. Effective date is September 1, 1997.

SECTION 8. Emergency clause.