SRC-JFA S.B. 1247 75(R)   BILL ANALYSIS


Senate Research Center   S.B. 1247
By: Madla
Health & Human Services
4-1-97
As Filed


DIGEST 

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.  This bill would authorize 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.  Additionally,
this bill would authorize TDH to assess administrative penalties against
chronic violators of the Health and Safety Code to encourage a correction
of their deficiencies on a permanent basis. 

PURPOSE

As proposed, S.B. 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

Rulemaking authority is granted to the Texas Department of Health in
SECTION 5 (Sections 142.017(c) and (d), Health and Safety Code), and to
the commissioner of health or the commissioner's designee in SECTION 5
(Section 142.0172(c), Health and Safety Code) of this bill.  
SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 142.001, Health and Safety Code, to define
"chief financial officer." Makes conforming changes.  

SECTION 2. Amends Section 142.004, Health and Safety Code, by amending
Subsections (a) and (c) and by adding Subsections (e) and (f), to delete
text in reference to certain file application requirements for a license
to provide home health, hospice, or personal assistance services.  Deletes
clause exempting an application for a renewal or branch officer or
alternative delivery site license from certain 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 items, 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.  Provides that a home and community support services agency
owned or operated by a state agency directly providing services is not
required to provide the information described in Subsections (c)(1) and
(5).  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.  Authorizes the council to advise TDH on its
implementation of the enforcement provisions of this chapter. 

SECTION 5. Amends Chapter 142A, Health and Safety Code, by adding Sections
142.017142.0175, as follows:  

Sec. 142.017.  ADMINISTRATIVE PENALTY.  Sets forth the guidelines
authorizing TDH to impose administrative penalties for violation of this
chapter or rules adopted under this chapter.  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.  Sets
forth the required contents of the notice.  Authorizes 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 by the person notified. 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.  Authorizes 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,
to 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)  Authorizes a person who acts under Subsection (b)(3), within the
30-day period, to stay enforcement of the penalty via an escrow account or
a supersedeas bond; or to request the court to stay enforcement of the
penalty via a sworn affidavit.   

(d)  Authorizes 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)  Requires TDH, if the person does not pay the penalty and the
enforcement of the penalty is not stayed, to refer the matter to the
attorney general for collection of the penalty.   

(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)  Authorizes the court, if the court sustains the occurrence of the
violation, 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)  Sets forth the guidelines for the court 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.  (a)  Authorizes the attorney general, if the
attorney general brings an action against a person under Section 142.013
or 142.014 or to enforce an administrative penalty assessed under Section
142.0173, and an injunction is granted against the person or the person is
found liable for a civil or administrative penalty, to recover reasonable
expenses and costs.   

(c)  Defines "reasonable expenses and costs."  

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 items, acts under
the delegated authority of a physician, rather than performs duties as a
qualified dialysis technician within the scope authorized by board rules.

SECTION 7. Effective date: September 1, 1997.

SECTION 8. Emergency clause.