1-1 By: Madla, Moncrief S.B. No. 1247
1-2 (In the Senate - Filed March 12, 1997; March 17, 1997, read
1-3 first time and referred to Committee on Health and Human Services;
1-4 April 7, 1997, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 11, Nays 0; April 7, 1997,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1247 By: Madla
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to regulation of a home and community support services
1-11 agency; providing an administrative penalty.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Section 142.001, Health and Safety Code, is
1-14 amended by adding a new Subdivision (8) and renumbering existing
1-15 Subdivisions (8) through (28) to read as follows:
1-16 (8) "Chief financial officer" means an individual who
1-17 is responsible for supervising and managing all financial
1-18 activities for a home and community support services agency.
1-19 (9) "Council" means the Home and Community Support
1-20 Services Advisory Council.
1-21 (10) [(9)] "Counselor" means an individual qualified
1-22 under Medicare standards to provide counseling services, including
1-23 bereavement, dietary, spiritual, and other counseling services, to
1-24 both the client and the family.
1-25 (11) [(10)] "Home and community support services
1-26 agency" means a person who provides home health, hospice, or
1-27 personal assistance services for pay or other consideration in a
1-28 client's residence, an independent living environment, or another
1-29 appropriate location.
1-30 (12) [(11)] "Home health service" means the provision
1-31 of one or more of the following health services required by an
1-32 individual in a residence or independent living environment:
1-33 (A) nursing;
1-34 (B) physical, occupational, speech, or
1-35 respiratory therapy;
1-36 (C) medical social service;
1-37 (D) intravenous therapy;
1-38 (E) dialysis;
1-39 (F) service provided by unlicensed personnel
1-40 under the delegation of a licensed health professional;
1-41 (G) the furnishing of medical equipment and
1-42 supplies, excluding drugs and medicines; or
1-43 (H) nutritional counseling.
1-44 (13) [(12)] "Hospice" means a person licensed under
1-45 this chapter to provide hospice services, including a person who
1-46 owns or operates a residential unit or an inpatient unit.
1-47 (14) [(13)] "Hospice services" means services,
1-48 including services provided by unlicensed personnel under the
1-49 delegation of a registered nurse or physical therapist, provided to
1-50 a client or a client's family as part of a coordinated program
1-51 consistent with the standards and rules adopted under this chapter.
1-52 These services include palliative care for terminally ill clients
1-53 and support services for clients and their families that:
1-54 (A) are available 24 hours a day, seven days a
1-55 week, during the last stages of illness, during death, and during
1-56 bereavement;
1-57 (B) are provided by a medically directed
1-58 interdisciplinary team; and
1-59 (C) may be provided in a home, nursing home,
1-60 residential unit, or inpatient unit according to need. These
1-61 services do not include inpatient care normally provided in a
1-62 licensed hospital to a terminally ill person who has not elected to
1-63 be a hospice client.
1-64 (15) [(14)] "Inpatient unit" means a facility that
2-1 provides a continuum of medical or nursing care and other hospice
2-2 services to clients admitted into the unit and that is in
2-3 compliance with:
2-4 (A) the conditions of participation for
2-5 inpatient units adopted under Title XVIII, Social Security Act (42
2-6 U.S.C. Section 1395 et seq.); and
2-7 (B) standards adopted under this chapter.
2-8 (16) [(15)] "Independent living environment" means:
2-9 (A) a client's individual residence, which may
2-10 include a group home or foster home; or
2-11 (B) other settings where a client participates
2-12 in activities, including school, work, or church.
2-13 (17) [(16)] "Interdisciplinary team" means a group of
2-14 individuals who work together in a coordinated manner to provide
2-15 hospice services and must include a physician, registered nurse,
2-16 social worker, and counselor.
2-17 (18) [(17)] "Investigation" means an inspection or
2-18 survey conducted by a representative of the department to determine
2-19 if a licensee is in compliance with this chapter.
2-20 (19) [(18)] "Palliative care" means intervention
2-21 services that focus primarily on the reduction or abatement of
2-22 physical, psychosocial, and spiritual symptoms of a terminal
2-23 illness.
2-24 (20) [(19)] "Person" means an individual, corporation,
2-25 or association.
2-26 (21) [(20)] "Personal assistance service" means
2-27 routine ongoing care or services required by an individual in a
2-28 residence or independent living environment that enable the
2-29 individual to engage in the activities of daily living or to
2-30 perform the physical functions required for independent living,
2-31 including respite services. The term includes health-related
2-32 services performed under circumstances that are defined as not
2-33 constituting the practice of professional nursing by the Board of
2-34 Nurse Examiners through a memorandum of understanding with the
2-35 department in accordance with Section 142.016 and health-related
2-36 tasks provided by unlicensed personnel under the delegation of a
2-37 registered nurse.
2-38 (22) [(21)] "Place of business" means an office of a
2-39 home and community support services agency that maintains client
2-40 records or directs home health, hospice, or personal assistance
2-41 services. The term does not include an administrative support
2-42 site.
2-43 (23) [(22)] "Residence" means a place where a person
2-44 resides and includes a home, a nursing home, a convalescent home,
2-45 or a residential unit.
2-46 (24) [(23)] "Residential unit" means a facility that
2-47 provides living quarters and hospice services to clients admitted
2-48 into the unit and that is in compliance with standards adopted
2-49 under this chapter.
2-50 (25) [(24)] "Respite services" means support options
2-51 that are provided temporarily for the purpose of relief for a
2-52 primary caregiver in providing care to individuals of all ages with
2-53 disabilities or at risk of abuse or neglect.
2-54 (26) [(25)] "Social worker" means an individual
2-55 certified as a social worker under Chapter 50, Human Resources
2-56 Code.
2-57 (27) [(26)] "Support services" means social,
2-58 spiritual, and emotional care provided to a client and a client's
2-59 family by a hospice.
2-60 (28) [(27)] "Terminal illness" means an illness for
2-61 which there is a limited prognosis if the illness runs its usual
2-62 course.
2-63 (29) [(28)] "Volunteer" means an individual who
2-64 provides assistance to a home and community support services agency
2-65 without compensation other than reimbursement for actual expenses.
2-66 SECTION 2. Section 142.004, Health and Safety Code, is
2-67 amended by amending Subsections (a) and (c) and adding Subsections
2-68 (e) and (f) to read as follows:
2-69 (a) An applicant for a license to provide home health,
3-1 hospice, or personal assistance services must:
3-2 (1) file a written application on a form prescribed by
3-3 the department indicating the type of service the applicant wishes
3-4 to provide;
3-5 (2) [file with the application:]
3-6 [(A) the name of the owner of the applicant or a
3-7 list of the names of persons who own at least a 10 percent interest
3-8 in the applicant; and]
3-9 [(B) a list of any businesses with which the
3-10 applicant subcontracts and in which the owner or owners of the
3-11 applicant hold at least five percent of the ownership; or]
3-12 [(C) if the applicant is a direct or indirect
3-13 subsidiary of a publicly held corporation, the name of that
3-14 publicly held corporation and the names of each subsidiary of the
3-15 publicly held corporation that owns an interest in the applicant;]
3-16 [(3)] cooperate with any surveys required by the
3-17 department for a license; and
3-18 (3) [(4)] pay the license fee prescribed by this
3-19 chapter.
3-20 (c) The board by rule shall require that, at a minimum,
3-21 before the department may approve a license application, [other
3-22 than an application for a renewal or branch office or alternate
3-23 delivery site license,] the applicant must provide to the
3-24 department:
3-25 (1) documentation establishing that, at a minimum, the
3-26 applicant has sufficient financial resources to provide the
3-27 services required by this chapter and by the department during the
3-28 term of the license;
3-29 (2) a list of the management personnel for the
3-30 proposed home and community support services agency, a description
3-31 of personnel qualifications, and a plan for providing continuing
3-32 training and education for the personnel during the term of the
3-33 license;
3-34 (3) documentation establishing that the applicant is
3-35 capable of meeting the minimum standards established by the board
3-36 relating to the quality of care; [and]
3-37 (4) a plan that provides for the orderly transfer of
3-38 care of the applicant's clients if the applicant cannot maintain or
3-39 deliver home health, hospice, or personal assistance services under
3-40 the license; and
3-41 (5) identifying information on the home and community
3-42 support services agency owner, administrator, and chief financial
3-43 officer to enable the department to conduct criminal background
3-44 checks on those persons.
3-45 (e) A home and community support services agency owned or
3-46 operated by a state agency directly providing services is not
3-47 required to provide the information described in Subsections (c)(1)
3-48 and (5).
3-49 (f) The department shall evaluate and consider all
3-50 information collected during the application process.
3-51 SECTION 3. Subsection (a), Section 142.010, Health and
3-52 Safety Code, is amended to read as follows:
3-53 (a) The board shall set license fees for home and community
3-54 support services agencies in amounts that are reasonable to meet
3-55 the costs of administering this chapter, except that the fees may
3-56 not be less than $300 [$200] or more than $1,000 for a license to
3-57 provide home health, hospice, or personal assistance services.
3-58 SECTION 4. Subsection (c), Section 142.015, Health and
3-59 Safety Code, is amended to read as follows:
3-60 (c) The council shall advise the department on licensing
3-61 standards and on the implementation of this chapter. At each
3-62 meeting of the council, the department shall provide an analysis of
3-63 enforcement actions taken under this chapter, including the type of
3-64 enforcement action, the results of the action, and the basis for
3-65 the action. The council may advise the department on its
3-66 implementation of the enforcement provisions of this chapter.
3-67 SECTION 5. Subchapter A, Chapter 142, Health and Safety
3-68 Code, is amended by adding Sections 142.017 through 142.0175 to
3-69 read as follows:
4-1 Sec. 142.017. ADMINISTRATIVE PENALTY. (a) The department
4-2 may assess an administrative penalty against a person who violates
4-3 this chapter or a rule adopted under this chapter.
4-4 (b) The penalty shall be not less than $100 or more than
4-5 $1,000 for each violation. Each day of a violation that occurs
4-6 before the day on which the person receives written notice of the
4-7 violation from the department does not constitute a separate
4-8 violation and shall be considered as one violation. Each day of a
4-9 continuing violation that occurs after the day on which the person
4-10 receives written notice of the violation from the department
4-11 constitutes a separate violation.
4-12 (c) The department by rule shall establish a schedule of
4-13 penalties for each possible violation that is appropriate and
4-14 graduated according to the seriousness of the violation. The
4-15 schedule shall include a period of time for correction by the home
4-16 and community support services agency of violations which did not
4-17 adversely affect patient health and safety.
4-18 (d) In determining the amount of an administrative penalty
4-19 assessed under this section, the department shall by rule specify
4-20 violations constituting grounds for an administrative penalty. In
4-21 establishing rules under this section, the department shall
4-22 consider:
4-23 (1) the seriousness of the violation, including the
4-24 nature, circumstances, extent, and gravity of the violation and the
4-25 hazard or potential hazard of the violation to the health or safety
4-26 of clients;
4-27 (2) the history of previous violations;
4-28 (3) the amount necessary to deter future violations;
4-29 (4) efforts made to correct the violation; and
4-30 (5) any other matters that justice may require.
4-31 (e) An administrative penalty may not be assessed for minor
4-32 violations unless those violations are of a continuing nature or
4-33 were not corrected.
4-34 (f) The department shall establish a system to ensure
4-35 standard and consistent application of penalties regardless of the
4-36 home and community support services agency location.
4-37 (g) All proceedings for the assessment of an administrative
4-38 penalty under this chapter are subject to Chapter 2001, Government
4-39 Code.
4-40 Sec. 142.0171. NOTICE; REQUEST FOR HEARING. (a) If, after
4-41 investigation of a possible violation and the facts surrounding
4-42 that possible violation, the department determines that a violation
4-43 has occurred, the department shall give written notice of the
4-44 violation to the person alleged to have committed the violation.
4-45 The notice shall include:
4-46 (1) a brief summary of the alleged violation;
4-47 (2) a statement of the amount of the proposed penalty
4-48 based on the factors listed in Subsection 142.017(d); and
4-49 (3) a statement of the person's right to a hearing on
4-50 the occurrence of the violation, the amount of the penalty, or both
4-51 the occurrence of the violation and the amount of the penalty.
4-52 (b) Not later than the 20th day after the date on which the
4-53 notice is received, the person notified may accept the
4-54 determination of the department made under this section, including
4-55 the proposed penalty, or may make a written request for a hearing
4-56 on that determination.
4-57 (c) If the person notified of the violation accepts the
4-58 determination of the department or if the person fails to respond
4-59 in a timely manner to the notice, the commissioner or the
4-60 commissioner's designee shall issue an order approving the
4-61 determination and ordering that the person pay the proposed
4-62 penalty.
4-63 Sec. 142.0172. HEARING; ORDER. (a) If the person notified
4-64 requests a hearing, the department shall:
4-65 (1) set a hearing;
4-66 (2) give written notice of the hearing to the person;
4-67 and
4-68 (3) designate a hearings examiner to conduct the
4-69 hearing.
5-1 (b) The hearings examiner shall make findings of fact and
5-2 conclusions of law and shall promptly issue to the commissioner or
5-3 the commissioner's designee a proposal for decision as to the
5-4 occurrence of the violation and a recommendation as to the amount
5-5 of the proposed penalty if a penalty is determined to be warranted.
5-6 (c) Based on the findings of fact and conclusions of law and
5-7 the recommendations of the hearings examiner, the commissioner or
5-8 the commission's designee by order may find that a violation has
5-9 occurred and may assess a penalty or may find that no violation has
5-10 occurred.
5-11 Sec. 142.0173. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
5-12 JUDICIAL REVIEW; REFUND. (a) The department shall give notice of
5-13 the order under Section 142.0172(c) to the person alleged to have
5-14 committed the violation. The notice must include:
5-15 (1) separate statements of the findings of fact and
5-16 conclusions of law;
5-17 (2) the amount of any penalty assessed; and
5-18 (3) a statement of the right of the person to judicial
5-19 review of the order.
5-20 (b) Not later than the 30th day after the date on which the
5-21 decision is final as provided by Chapter 2001, Government Code, the
5-22 person shall:
5-23 (1) pay the penalty;
5-24 (2) pay the amount of the penalty and file a petition
5-25 for judicial review contesting the occurrence of the violation, the
5-26 amount of the penalty, or both the occurrence of the violation and
5-27 the amount of the penalty; or
5-28 (3) without paying the penalty, file a petition for
5-29 judicial review contesting the occurrence of the violation, the
5-30 amount of the penalty, or both the occurrence of the violation and
5-31 the amount of the penalty.
5-32 (c) Within the 30-day period, a person who acts under
5-33 Subsection (b)(3) may:
5-34 (1) stay enforcement of the penalty by:
5-35 (A) paying the penalty to the court for
5-36 placement in an escrow account; or
5-37 (B) giving to the court a supersedeas bond that
5-38 is approved by the court for the amount of the penalty and that is
5-39 effective until all judicial review of the order is final; or
5-40 (2) request the court to stay enforcement of the
5-41 penalty by:
5-42 (A) filing with the court a sworn affidavit of
5-43 the person stating that the person is financially unable to pay the
5-44 amount of the penalty and is financially unable to give the
5-45 supersedeas bond; and
5-46 (B) giving a copy of the affidavit to the
5-47 department by certified mail.
5-48 (d) If the department receives a copy of an affidavit under
5-49 Subsection (c)(2), the department may file with the court, within
5-50 10 days after the date the copy is received, a contest to the
5-51 affidavit. The court shall hold a hearing on the facts alleged in
5-52 the affidavit as soon as practicable and shall stay the enforcement
5-53 of the penalty on finding that the alleged facts are true. The
5-54 person who files an affidavit has the burden of proving that the
5-55 person is financially unable to pay the penalty and to give a
5-56 supersedeas bond.
5-57 (e) If the person does not pay the penalty and the
5-58 enforcement of the penalty is not stayed, the department may refer
5-59 the matter to the attorney general for collection of the penalty.
5-60 (f) Judicial review of the order:
5-61 (1) is instituted by filing a petition as provided by
5-62 Subchapter G, Chapter 2001, Government Code; and
5-63 (2) is under the substantial evidence rule.
5-64 (g) If the court sustains the occurrence of the violation,
5-65 the court may uphold or reduce the amount of the penalty and order
5-66 the person to pay the full or reduced amount of the penalty. If
5-67 the court does not sustain the occurrence of the violation, the
5-68 court shall order that no penalty is owed.
5-69 (h) When the judgment of the court becomes final, the court
6-1 shall proceed under this subsection. If the person paid the amount
6-2 of the penalty under Subsection (b)(2) and if that amount is
6-3 reduced or is not upheld by the court, the court shall order that
6-4 the department pay the appropriate amount plus accrued interest to
6-5 the person. The rate of the interest is the rate charged on loans
6-6 to depository institutions by the New York Federal Reserve Bank,
6-7 and the interest shall be paid for the period beginning on the date
6-8 the penalty was paid and ending on the date the penalty is
6-9 remitted. If the person paid the penalty under Subsection
6-10 (c)(1)(A), or gave a supersedeas bond, and if the amount of the
6-11 penalty is not upheld by the court, the court shall order the
6-12 release of the escrow account or bond. If the person paid the
6-13 penalty under Subsection (c)(1)(A) and the amount of the penalty is
6-14 reduced, the court shall order that the amount of the penalty be
6-15 paid to the department from the escrow account and that the
6-16 remainder of the account be released. If the person gave a
6-17 supersedeas bond and if the amount of the penalty is reduced, the
6-18 court shall order the release of the bond after the person pays the
6-19 amount.
6-20 Sec. 142.0174. PENALTY DEPOSITED TO STATE TREASURY. An
6-21 administrative penalty collected under this subchapter shall be
6-22 deposited in the state treasury to the credit of the general
6-23 revenue fund.
6-24 Sec. 142.0175. EXPENSES AND COSTS FOR COLLECTION OF CIVIL OR
6-25 ADMINISTRATIVE PENALTY. (a) If the attorney general brings an
6-26 action against a person under Section 142.013 or 142.014 or to
6-27 enforce an administrative penalty assessed under Section 142.0173
6-28 and an injunction is granted against the person or the person is
6-29 found liable for a civil or administrative penalty, the attorney
6-30 general may recover, on behalf of the attorney general and the
6-31 department, reasonable expenses and costs.
6-32 (c) For purposes of this section, reasonable expenses and
6-33 costs include expenses incurred by the department and the attorney
6-34 general in the investigation, initiation, and prosecution of an
6-35 action, including reasonable investigative costs, attorney's fees,
6-36 witness fees, and deposition expenses.
6-37 SECTION 6. Section 142.021, Health and Safety Code, is
6-38 amended to read as follows:
6-39 Sec. 142.021. ADMINISTRATION OF MEDICATION. A person may
6-40 not administer medication to a client of a home and community
6-41 support services agency unless the person:
6-42 (1) holds a license under state law that authorizes
6-43 the person to administer medication;
6-44 (2) holds a permit issued under Section 142.025 and
6-45 acts under the delegated authority of a person who holds a license
6-46 under state law that authorizes the person to administer
6-47 medication;
6-48 (3) acts under the delegated authority of a physician
6-49 [performs duties as a qualified dialysis technician within the
6-50 scope authorized by board rules];
6-51 (4) administers a medication to a client of a home and
6-52 community support service agency in accordance with rules of the
6-53 Board of Nurse Examiners that permit delegation of the
6-54 administration of medication to a person not holding a permit under
6-55 Section 142.025; or
6-56 (5) administers noninjectable medication under
6-57 circumstances authorized by the memorandum of understanding adopted
6-58 under Section 142.016.
6-59 SECTION 7. This Act takes effect September 1, 1997.
6-60 SECTION 8. The importance of this legislation and the
6-61 crowded condition of the calendars in both houses create an
6-62 emergency and an imperative public necessity that the
6-63 constitutional rule requiring bills to be read on three several
6-64 days in each house be suspended, and this rule is hereby suspended.
6-65 * * * * *