By: Madla, Moncrief S.B. No. 1247
A BILL TO BE ENTITLED
AN ACT
1-1 relating to regulation of a home and community support services
1-2 agency; providing an administrative penalty.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 142.001, Health and Safety Code, is
1-5 amended by adding a new Subdivision (8) and renumbering existing
1-6 Subdivisions (8) through (28) to read as follows:
1-7 (8) "Chief financial officer" means an individual who
1-8 is responsible for supervising and managing all financial
1-9 activities for a home and community support services agency.
1-10 (9) "Council" means the Home and Community Support
1-11 Services Advisory Council.
1-12 (10) [(9)] "Counselor" means an individual qualified
1-13 under Medicare standards to provide counseling services, including
1-14 bereavement, dietary, spiritual, and other counseling services, to
1-15 both the client and the family.
1-16 (11) [(10)] "Home and community support services
1-17 agency" means a person who provides home health, hospice, or
1-18 personal assistance services for pay or other consideration in a
1-19 client's residence, an independent living environment, or another
1-20 appropriate location.
1-21 (12) [(11)] "Home health service" means the provision
1-22 of one or more of the following health services required by an
1-23 individual in a residence or independent living environment:
2-1 (A) nursing;
2-2 (B) physical, occupational, speech, or
2-3 respiratory therapy;
2-4 (C) medical social service;
2-5 (D) intravenous therapy;
2-6 (E) dialysis;
2-7 (F) service provided by unlicensed personnel
2-8 under the delegation of a licensed health professional;
2-9 (G) the furnishing of medical equipment and
2-10 supplies, excluding drugs and medicines; or
2-11 (H) nutritional counseling.
2-12 (13) [(12)] "Hospice" means a person licensed under
2-13 this chapter to provide hospice services, including a person who
2-14 owns or operates a residential unit or an inpatient unit.
2-15 (14) [(13)] "Hospice services" means services,
2-16 including services provided by unlicensed personnel under the
2-17 delegation of a registered nurse or physical therapist, provided to
2-18 a client or a client's family as part of a coordinated program
2-19 consistent with the standards and rules adopted under this chapter.
2-20 These services include palliative care for terminally ill clients
2-21 and support services for clients and their families that:
2-22 (A) are available 24 hours a day, seven days a
2-23 week, during the last stages of illness, during death, and during
2-24 bereavement;
2-25 (B) are provided by a medically directed
3-1 interdisciplinary team; and
3-2 (C) may be provided in a home, nursing home,
3-3 residential unit, or inpatient unit according to need. These
3-4 services do not include inpatient care normally provided in a
3-5 licensed hospital to a terminally ill person who has not elected to
3-6 be a hospice client.
3-7 (15) [(14)] "Inpatient unit" means a facility that
3-8 provides a continuum of medical or nursing care and other hospice
3-9 services to clients admitted into the unit and that is in
3-10 compliance with:
3-11 (A) the conditions of participation for
3-12 inpatient units adopted under Title XVIII, Social Security Act (42
3-13 U.S.C. Section 1395 et seq.); and
3-14 (B) standards adopted under this chapter.
3-15 (16) [(15)] "Independent living environment" means:
3-16 (A) a client's individual residence, which may
3-17 include a group home or foster home; or
3-18 (B) other settings where a client participates
3-19 in activities, including school, work, or church.
3-20 (17) [(16)] "Interdisciplinary team" means a group of
3-21 individuals who work together in a coordinated manner to provide
3-22 hospice services and must include a physician, registered nurse,
3-23 social worker, and counselor.
3-24 (18) [(17)] "Investigation" means an inspection or
3-25 survey conducted by a representative of the department to determine
4-1 if a licensee is in compliance with this chapter.
4-2 (19) [(18)] "Palliative care" means intervention
4-3 services that focus primarily on the reduction or abatement of
4-4 physical, psychosocial, and spiritual symptoms of a terminal
4-5 illness.
4-6 (20) [(19)] "Person" means an individual, corporation,
4-7 or association.
4-8 (21) [(20)] "Personal assistance service" means
4-9 routine ongoing care or services required by an individual in a
4-10 residence or independent living environment that enable the
4-11 individual to engage in the activities of daily living or to
4-12 perform the physical functions required for independent living,
4-13 including respite services. The term includes health-related
4-14 services performed under circumstances that are defined as not
4-15 constituting the practice of professional nursing by the Board of
4-16 Nurse Examiners through a memorandum of understanding with the
4-17 department in accordance with Section 142.016 and health-related
4-18 tasks provided by unlicensed personnel under the delegation of a
4-19 registered nurse.
4-20 (22) [(21)] "Place of business" means an office of a
4-21 home and community support services agency that maintains client
4-22 records or directs home health, hospice, or personal assistance
4-23 services. The term does not include an administrative support
4-24 site.
4-25 (23) [(22)] "Residence" means a place where a person
5-1 resides and includes a home, a nursing home, a convalescent home,
5-2 or a residential unit.
5-3 (24) [(23)] "Residential unit" means a facility that
5-4 provides living quarters and hospice services to clients admitted
5-5 into the unit and that is in compliance with standards adopted
5-6 under this chapter.
5-7 (25) [(24)] "Respite services" means support options
5-8 that are provided temporarily for the purpose of relief for a
5-9 primary caregiver in providing care to individuals of all ages with
5-10 disabilities or at risk of abuse or neglect.
5-11 (26) [(25)] "Social worker" means an individual
5-12 certified as a social worker under Chapter 50, Human Resources
5-13 Code.
5-14 (27) [(26)] "Support services" means social,
5-15 spiritual, and emotional care provided to a client and a client's
5-16 family by a hospice.
5-17 (28) [(27)] "Terminal illness" means an illness for
5-18 which there is a limited prognosis if the illness runs its usual
5-19 course.
5-20 (29) [(28)] "Volunteer" means an individual who
5-21 provides assistance to a home and community support services agency
5-22 without compensation other than reimbursement for actual expenses.
5-23 SECTION 2. Section 142.004, Health and Safety Code, is
5-24 amended by amending Subsections (a) and (c) and adding Subsections
5-25 (e) and (f) to read as follows:
6-1 (a) An applicant for a license to provide home health,
6-2 hospice, or personal assistance services must:
6-3 (1) file a written application on a form prescribed by
6-4 the department indicating the type of service the applicant wishes
6-5 to provide;
6-6 (2) [file with the application:]
6-7 [(A) the name of the owner of the applicant or a
6-8 list of the names of persons who own at least a 10 percent interest
6-9 in the applicant; and]
6-10 [(B) a list of any businesses with which the
6-11 applicant subcontracts and in which the owner or owners of the
6-12 applicant hold at least five percent of the ownership; or]
6-13 [(C) if the applicant is a direct or indirect
6-14 subsidiary of a publicly held corporation, the name of that
6-15 publicly held corporation and the names of each subsidiary of the
6-16 publicly held corporation that owns an interest in the applicant;]
6-17 [(3)] cooperate with any surveys required by the
6-18 department for a license; and
6-19 (3) [(4)] pay the license fee prescribed by this
6-20 chapter.
6-21 (c) The board by rule shall require that, at a minimum,
6-22 before the department may approve a license application, [other
6-23 than an application for a renewal or branch office or alternate
6-24 delivery site license,] the applicant must provide to the
6-25 department:
7-1 (1) documentation establishing that, at a minimum, the
7-2 applicant has sufficient financial resources to provide the
7-3 services required by this chapter and by the department during the
7-4 term of the license;
7-5 (2) a list of the management personnel for the
7-6 proposed home and community support services agency, a description
7-7 of personnel qualifications, and a plan for providing continuing
7-8 training and education for the personnel during the term of the
7-9 license;
7-10 (3) documentation establishing that the applicant is
7-11 capable of meeting the minimum standards established by the board
7-12 relating to the quality of care; [and]
7-13 (4) a plan that provides for the orderly transfer of
7-14 care of the applicant's clients if the applicant cannot maintain or
7-15 deliver home health, hospice, or personal assistance services under
7-16 the license; and
7-17 (5) identifying information on the home and community
7-18 support services agency owner, administrator, and chief financial
7-19 officer to enable the department to conduct criminal background
7-20 checks on those persons.
7-21 (e) A home and community support services agency owned or
7-22 operated by a state agency directly providing services is not
7-23 required to provide the information described in Subsections (c)(1)
7-24 and (5).
7-25 (f) The department shall evaluate and consider all
8-1 information collected during the application process.
8-2 SECTION 3. Subsection (a), Section 142.010, Health and
8-3 Safety Code, is amended to read as follows:
8-4 (a) The board shall set license fees for home and community
8-5 support services agencies in amounts that are reasonable to meet
8-6 the costs of administering this chapter, except that the fees may
8-7 not be less than $300 [$200] or more than $1,000 for a license to
8-8 provide home health, hospice, or personal assistance services.
8-9 SECTION 4. Subsection (c), Section 142.015, Health and
8-10 Safety Code, is amended to read as follows:
8-11 (c) The council shall advise the department on licensing
8-12 standards and on the implementation of this chapter. At each
8-13 meeting of the council, the department shall provide an analysis of
8-14 enforcement actions taken under this chapter, including the type of
8-15 enforcement action, the results of the action, and the basis for
8-16 the action. The council may advise the department on its
8-17 implementation of the enforcement provisions of this chapter.
8-18 SECTION 5. Subchapter A, Chapter 142, Health and Safety
8-19 Code, is amended by adding Sections 142.017 through 142.0175 to
8-20 read as follows:
8-21 Sec. 142.017. ADMINISTRATIVE PENALTY. (a) The department
8-22 may assess an administrative penalty against a person who violates
8-23 this chapter or a rule adopted under this chapter.
8-24 (b) The penalty shall be not less than $100 or more than
8-25 $1,000 for each violation. Each day of a violation that occurs
9-1 before the day on which the person receives written notice of the
9-2 violation from the department does not constitute a separate
9-3 violation and shall be considered as one violation. Each day of a
9-4 continuing violation that occurs after the day on which the person
9-5 receives written notice of the violation from the department
9-6 constitutes a separate violation.
9-7 (c) The department by rule shall establish a schedule of
9-8 penalties for each possible violation that is appropriate and
9-9 graduated according to the seriousness of the violation. The
9-10 schedule shall include a period of time for correction by the home
9-11 and community support services agency of violations which did not
9-12 adversely affect patient health and safety.
9-13 (d) In determining the amount of an administrative penalty
9-14 assessed under this section, the department shall by rule specify
9-15 violations constituting grounds for an administrative penalty. In
9-16 establishing rules under this section, the department shall
9-17 consider:
9-18 (1) the seriousness of the violation, including the
9-19 nature, circumstances, extent, and gravity of the violation and the
9-20 hazard or potential hazard of the violation to the health or safety
9-21 of clients;
9-22 (2) the history of previous violations;
9-23 (3) the amount necessary to deter future violations;
9-24 (4) efforts made to correct the violation; and
9-25 (5) any other matters that justice may require.
10-1 (e) An administrative penalty may not be assessed for minor
10-2 violations unless those violations are of a continuing nature or
10-3 were not corrected.
10-4 (f) The department shall establish a system to ensure
10-5 standard and consistent application of penalties regardless of the
10-6 home and community support services agency location.
10-7 (g) All proceedings for the assessment of an administrative
10-8 penalty under this chapter are subject to Chapter 2001, Government
10-9 Code.
10-10 Sec. 142.0171. NOTICE; REQUEST FOR HEARING. (a) If, after
10-11 investigation of a possible violation and the facts surrounding
10-12 that possible violation, the department determines that a violation
10-13 has occurred, the department shall give written notice of the
10-14 violation to the person alleged to have committed the violation.
10-15 The notice shall include:
10-16 (1) a brief summary of the alleged violation;
10-17 (2) a statement of the amount of the proposed penalty
10-18 based on the factors listed in Section 142.017(d); and
10-19 (3) a statement of the person's right to a hearing on
10-20 the occurrence of the violation, the amount of the penalty, or both
10-21 the occurrence of the violation and the amount of the penalty.
10-22 (b) Not later than the 20th day after the date on which the
10-23 notice is received, the person notified may accept the
10-24 determination of the department made under this section, including
10-25 the proposed penalty, or may make a written request for a hearing
11-1 on that determination.
11-2 (c) If the person notified of the violation accepts the
11-3 determination of the department or if the person fails to respond
11-4 in a timely manner to the notice, the commissioner or the
11-5 commissioner's designee shall issue an order approving the
11-6 determination and ordering that the person pay the proposed
11-7 penalty.
11-8 Sec. 142.0172. HEARING; ORDER. (a) If the person notified
11-9 requests a hearing, the department shall:
11-10 (1) set a hearing;
11-11 (2) give written notice of the hearing to the person;
11-12 and
11-13 (3) designate a hearings examiner to conduct the
11-14 hearing.
11-15 (b) The hearings examiner shall make findings of fact and
11-16 conclusions of law and shall promptly issue to the commissioner or
11-17 the commissioner's designee a proposal for decision as to the
11-18 occurrence of the violation and a recommendation as to the amount
11-19 of the proposed penalty if a penalty is determined to be warranted.
11-20 (c) Based on the findings of fact and conclusions of law and
11-21 the recommendations of the hearings examiner, the commissioner or
11-22 the commission's designee by order may find that a violation has
11-23 occurred and may assess a penalty or may find that no violation has
11-24 occurred.
11-25 Sec. 142.0173. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
12-1 JUDICIAL REVIEW; REFUND. (a) The department shall give notice of
12-2 the order under Section 142.0172(c) to the person alleged to have
12-3 committed the violation. The notice must include:
12-4 (1) separate statements of the findings of fact and
12-5 conclusions of law;
12-6 (2) the amount of any penalty assessed; and
12-7 (3) a statement of the right of the person to judicial
12-8 review of the order.
12-9 (b) Not later than the 30th day after the date on which the
12-10 decision is final as provided by Chapter 2001, Government Code, the
12-11 person shall:
12-12 (1) pay the penalty;
12-13 (2) pay the amount of the penalty and file a petition
12-14 for judicial review contesting the occurrence of the violation, the
12-15 amount of the penalty, or both the occurrence of the violation and
12-16 the amount of the penalty; or
12-17 (3) without paying the penalty, file a petition for
12-18 judicial review contesting the occurrence of the violation, the
12-19 amount of the penalty, or both the occurrence of the violation and
12-20 the amount of the penalty.
12-21 (c) Within the 30-day period, a person who acts under
12-22 Subsection (b)(3) may:
12-23 (1) stay enforcement of the penalty by:
12-24 (A) paying the penalty to the court for
12-25 placement in an escrow account; or
13-1 (B) giving to the court a supersedeas bond that
13-2 is approved by the court for the amount of the penalty and that is
13-3 effective until all judicial review of the order is final; or
13-4 (2) request the court to stay enforcement of the
13-5 penalty by:
13-6 (A) filing with the court a sworn affidavit of
13-7 the person stating that the person is financially unable to pay the
13-8 amount of the penalty and is financially unable to give the
13-9 supersedeas bond; and
13-10 (B) giving a copy of the affidavit to the
13-11 department by certified mail.
13-12 (d) If the department receives a copy of an affidavit under
13-13 Subsection (c)(2), the department may file with the court, within
13-14 10 days after the date the copy is received, a contest to the
13-15 affidavit. The court shall hold a hearing on the facts alleged in
13-16 the affidavit as soon as practicable and shall stay the enforcement
13-17 of the penalty on finding that the alleged facts are true. The
13-18 person who files an affidavit has the burden of proving that the
13-19 person is financially unable to pay the penalty and to give a
13-20 supersedeas bond.
13-21 (e) If the person does not pay the penalty and the
13-22 enforcement of the penalty is not stayed, the department may refer
13-23 the matter to the attorney general for collection of the penalty.
13-24 (f) Judicial review of the order:
13-25 (1) is instituted by filing a petition as provided by
14-1 Subchapter G, Chapter 2001, Government Code; and
14-2 (2) is under the substantial evidence rule.
14-3 (g) If the court sustains the occurrence of the violation,
14-4 the court may uphold or reduce the amount of the penalty and order
14-5 the person to pay the full or reduced amount of the penalty. If
14-6 the court does not sustain the occurrence of the violation, the
14-7 court shall order that no penalty is owed.
14-8 (h) When the judgment of the court becomes final, the court
14-9 shall proceed under this subsection. If the person paid the amount
14-10 of the penalty under Subsection (b)(2) and if that amount is
14-11 reduced or is not upheld by the court, the court shall order that
14-12 the department pay the appropriate amount plus accrued interest to
14-13 the person. The rate of the interest is the rate charged on loans
14-14 to depository institutions by the New York Federal Reserve Bank,
14-15 and the interest shall be paid for the period beginning on the date
14-16 the penalty was paid and ending on the date the penalty is
14-17 remitted. If the person paid the penalty under Subsection
14-18 (c)(1)(A), or gave a supersedeas bond, and if the amount of the
14-19 penalty is not upheld by the court, the court shall order the
14-20 release of the escrow account or bond. If the person paid the
14-21 penalty under Subsection (c)(1)(A) and the amount of the penalty is
14-22 reduced, the court shall order that the amount of the penalty be
14-23 paid to the department from the escrow account and that the
14-24 remainder of the account be released. If the person gave a
14-25 supersedeas bond and if the amount of the penalty is reduced, the
15-1 court shall order the release of the bond after the person pays the
15-2 amount.
15-3 Sec. 142.0174. PENALTY DEPOSITED TO STATE TREASURY. An
15-4 administrative penalty collected under this subchapter shall be
15-5 deposited in the state treasury to the credit of the general
15-6 revenue fund.
15-7 Sec. 142.0175. EXPENSES AND COSTS FOR COLLECTION OF CIVIL OR
15-8 ADMINISTRATIVE PENALTY. (a) If the attorney general brings an
15-9 action against a person under Section 142.013 or 142.014 or to
15-10 enforce an administrative penalty assessed under Section 142.0173
15-11 and an injunction is granted against the person or the person is
15-12 found liable for a civil or administrative penalty, the attorney
15-13 general may recover, on behalf of the attorney general and the
15-14 department, reasonable expenses and costs.
15-15 (b) For purposes of this section, reasonable expenses and
15-16 costs include expenses incurred by the department and the attorney
15-17 general in the investigation, initiation, and prosecution of an
15-18 action, including reasonable investigative costs, attorney's fees,
15-19 witness fees, and deposition expenses.
15-20 SECTION 6. Section 142.021, Health and Safety Code, is
15-21 amended to read as follows:
15-22 Sec. 142.021. ADMINISTRATION OF MEDICATION. A person may
15-23 not administer medication to a client of a home and community
15-24 support services agency unless the person:
15-25 (1) holds a license under state law that authorizes
16-1 the person to administer medication;
16-2 (2) holds a permit issued under Section 142.025 and
16-3 acts under the delegated authority of a person who holds a license
16-4 under state law that authorizes the person to administer
16-5 medication;
16-6 (3) acts under the delegated authority of a physician
16-7 [performs duties as a qualified dialysis technician within the
16-8 scope authorized by board rules];
16-9 (4) administers a medication to a client of a home and
16-10 community support service agency in accordance with rules of the
16-11 Board of Nurse Examiners that permit delegation of the
16-12 administration of medication to a person not holding a permit under
16-13 Section 142.025; or
16-14 (5) administers noninjectable medication under
16-15 circumstances authorized by the memorandum of understanding adopted
16-16 under Section 142.016.
16-17 SECTION 7. This Act takes effect September 1, 1997.
16-18 SECTION 8. The importance of this legislation and the
16-19 crowded condition of the calendars in both houses create an
16-20 emergency and an imperative public necessity that the
16-21 constitutional rule requiring bills to be read on three several
16-22 days in each house be suspended, and this rule is hereby suspended.