By Maxey                                         H.B. No. 755

      75R3285 DLF-F                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to certain administrative penalties assessed against

 1-3     nursing homes and similar institutions.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Subchapter B, Chapter 242, Health and Safety

 1-6     Code, is amended by adding Section 242.0375 to read as follows:

 1-7           Sec. 242.0375.  ADEQUATE STAFF.  An institution shall

 1-8     maintain an adequate number of staff as necessary to comply with

 1-9     this chapter and any rules, standards, or orders adopted under this

1-10     chapter.

1-11           SECTION 2.  Section 242.066, Health and Safety Code, is

1-12     amended to read as follows:

1-13           Sec. 242.066.  ADMINISTRATIVE PENALTY.  (a)  The department

1-14     may assess an administrative [a civil] penalty against a person who

1-15     violates this chapter or a rule, standard, or order adopted or

1-16     license issued under this chapter.

1-17           (b)  The penalty may not exceed $10,000 a day for each

1-18     violation.

1-19           (c)  Each day of a continuing violation constitutes a

1-20     separate violation.

1-21           (d)  In a case in which the department finds that a violation

1-22     of Section 242.0375 is a contributing factor in the violation of

1-23     another provision of this chapter or a rule, standard, or order

1-24     adopted or license issued under this chapter, the violation of

 2-1     Section 242.0375 constitutes a separate violation subject to a

 2-2     separate penalty under this subchapter, and a penalty may be

 2-3     assessed without regard to whether a penalty is assessed for the

 2-4     violation of the other provision, or the rule, standard, order, or

 2-5     license.

 2-6           (e)  The board shall establish gradations of penalties in

 2-7     accordance with the relative seriousness of the violation.

 2-8           (f) [(e)]  In determining the amount of a penalty, the

 2-9     department shall consider any matter that justice may require,

2-10     including:

2-11                 (1)  the gradations of penalties established under

2-12     Subsection (e) [(d)];

2-13                 (2)  the seriousness of the violation, including the

2-14     nature, circumstances, extent, and gravity of the prohibited act

2-15     and the hazard or potential hazard created by the act to the health

2-16     or safety of the public;

2-17                 (3)  the history of previous violations;

2-18                 (4)  deterrence of future violations; and

2-19                 (5)  efforts to correct the violation.

2-20           SECTION 3.  Section 242.068(d), Health and Safety Code, is

2-21     amended to read as follows:

2-22           (d)  Based on the findings of fact and recommendations of the

2-23     hearing examiner, the commissioner by order may find:

2-24                 (1)  a violation has occurred and assess an

2-25     administrative [a civil] penalty; or

2-26                 (2)  a violation has not occurred.

2-27           SECTION 4.  Section 242.069(a), Health and Safety Code, is

 3-1     amended to read as follows:

 3-2           (a)  The commissioner shall give notice of the decision taken

 3-3     under Section 242.068(d) to the person charged.  If the

 3-4     commissioner finds that a violation has occurred and has assessed

 3-5     an administrative [a civil] penalty, the commissioner shall give

 3-6     written notice to the person charged of the findings, the amount of

 3-7     the penalty, and the person's right to judicial review of the

 3-8     order.

 3-9           SECTION 5.  Section 32.021, Human Resources Code, is amended

3-10     by adding Subsection (l) to read as follows:

3-11           (l)  A long-term care provider shall maintain an adequate

3-12     number of staff as necessary to comply with the applicable

3-13     standards for participation in the state Medicaid program. In a

3-14     case in which the department finds that a violation of this

3-15     subsection is a contributing factor in the violation of an

3-16     applicable standard for participation in the state Medicaid

3-17     program, the violation of this subsection constitutes a separate

3-18     violation subject to a separate monetary penalty under this

3-19     section, and a penalty may be assessed without regard to whether a

3-20     penalty is assessed for violation of the standard.

3-21           SECTION 6.  (a) The Texas Department of Human Services shall

3-22     contract with an institution of higher education, as that term is

3-23     defined by Section 61.003, Education Code, to conduct a study

3-24     relating to adequate staff for institutions licensed under Chapter

3-25     242, Health and Safety Code, and appropriate penalties for failure

3-26     to maintain adequate staff.  In conducting the study, the

3-27     institution of higher education shall form a work group to obtain

 4-1     the input of advocates for institution residents, consumer

 4-2     representatives, and representatives of institutions.

 4-3           (b)  Not later than January 1, 1998, the work group shall

 4-4     prepare a report to the Texas Department of Human Services that

 4-5     includes recommendations relating to:

 4-6                 (1)  the feasibility of adopting rules mandating the

 4-7     appropriate number of staff to be maintained by an institution

 4-8     licensed under Chapter 242, Health and Safety Code;

 4-9                 (2)  proposed rules to be adopted, if the work group

4-10     finds that adopting rules is feasible;

4-11                 (3)  administrative penalties or alternative

4-12     appropriate remedies for violations of any proposed rules; and

4-13                 (4)  the effectiveness of the imposition of

4-14     administrative penalties under Chapter 242, Health and Safety Code,

4-15     or Chapter 32, Human Resources Code, in requiring the appropriate

4-16     number of staff at institutions.

4-17           SECTION 7.  This Act takes effect on September 1, 1997, and

4-18     applies only to conduct that occurs on or after that date.  Conduct

4-19     that occurred before the effective date of this Act is governed by

4-20     the law as it existed immediately before the effective date of this

4-21     Act, and that law is continued in effect for this purpose.

4-22           SECTION 8.  The importance of this legislation and the

4-23     crowded condition of the calendars in both houses create an

4-24     emergency and an imperative public necessity that the

4-25     constitutional rule requiring bills to be read on three several

4-26     days in each house be suspended, and this rule is hereby suspended.