HBA-GUM H.B. 3302 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 3302 By: Coleman Public Health 4/26/1999 Introduced BACKGROUND AND PURPOSE Currently, private community health centers (CMHCs) are not licensed by this state. Instead, each CMHC signs an attestation statement for the Health Care Financing Administration (HCFA) stating that they are providing the services required under the Public Health Services Act (42 U.S.C., 300x-2) and the Social Security Act (42 U.S.C., 1395x(ff)). The required services include outpatient services, including specialized outpatient services for certain persons, 24-hour emergency care services, partial hospitalization services or psychological rehabilitation services, and screening for patients being considered for admission to state mental health facilities. Because these centers are not licensed, HCFA may choose to close them, and the centers are able only to subcontract with local mental health authorities for partial hospitalization services which are reimbursable under Medicare Part B. In 1996, CMCHs were accused of fraud and abuse. The Texas Association for Behavioral Healthcare and the Texas Association for Ambulatory Behavioral Healthcare were established in 1997 to deal with the allegations. H.B. 3302 requires CMCHs to be licensed by the Texas Health Department. This bill requires the Texas Board of Health to adopt rules necessary for the issuance, renewal, denial, suspension, and revocation of a license to operate a CMHC. This bill also sets forth the standards and requirements for a license, and provides civil, criminal, and administrative penalties for operating without a license. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Texas Board of Health in SECTION 1 (Sections 253.004 and 253.017, Health and Safety Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Subtitle B, Title 4, Health and Safety Code, by adding Chapter 253, as follows: CHAPTER 253. BEHAVIORAL HEALTH CARE CENTERS SUBCHAPTER A. GENERAL PROVISIONS Sec. 253.001. DEFINITIONS. Defines "board," "center," and "department." Sec. 253.002. APPLICABILITY. Provides that this chapter does not apply to a community center established under Subchapter A (Community Centers), Chapter 534, a mental health facility operated by the Texas Department of Mental Health and Mental Retardation (MHMR) or a federal agency, or an individual provider of behavioral or mental health care services. Sec. 253.003. APPLICABILITY OF OTHER LAW. Provides that Subchapter A, Chapter 534, does not apply to a center licensed under this chapter. Sec. 253.004. RULES. Requires the Texas Board of Health (board) to adopt rules necessary to implement this chapter. Authorizes the board to adopt rules for the issuance of a temporary or probationary license to operate a center. SUBCHAPTER B. LICENSING, FEES, AND INSPECTION Sec. 253.011. LICENSE REQUIRED. Prohibits a person from operating a facility that provides a service described by Subchapter D unless the person holds a license issued under this chapter. Sec. 253.012. LICENSE APPLICATION. Provides that an applicant for a license under this chapter must submit an application in accordance with board rules, and a nonrefundable license fee in an amount set by the board to the Texas Department of Health (TDH). Sec. 253.013. ISSUANCE OF LICENSE. Requires TDH to issue a license to an applicant if it finds that the applicant and the center meet the requirements and rules adopted under this chapter. Provides that a license issued under this chapter is not transferable or assignable and is valid only for operation of the center for which it is issued. Provides that if the holder of a license transfers a majority of ownership interest or responsibility for the operation of the center to another person, the license is void. Sec. 253.014. LICENSE POSTING. Requires a person who holds a license issued under this chapter to post the license in a conspicuous place at the center for which it is issued. Sec. 253.015. LICENSE FEES. Requires the board to impose fees for licensure under this chapter in amounts reasonable and necessary to defray the cost of administering this chapter. Sec. 253.016. INSPECTIONS. Authorizes TDH to inspect a center and its records to ensure compliance with this chapter and rules adopted under this chapter. Sec. 253.017. STANDARDS. Requires the board by rule to adopt standards applicable to a center as enumerated by this section. Provides that this section does not authorize the board to establish the qualifications of a licensed practitioner, or permit a person who is not authorized to provide mental health services to provide those services in this state. SUBCHAPTER C. ENFORCEMENT Sec. 253.031. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE. Authorizes TDH to deny, suspend, or revoke a license for a violation of this chapter or a rule adopted under this chapter. Provides that except as provided by Section 253.032, the denial, suspension, or revocation of a license and an appeal from that action are governed by the procedures for a contested case hearing under Chapter 2001 (Administrative Procedure), Government Code. Sec. 253.032. EMERGENCY SUSPENSION ORDER. (a) Authorizes TDH to issue an emergency order to suspend a license without a hearing, if TDH has reasonable cause to believe that the conduct of a license holder creates an immediate danger to the health and safety of a client or the public. (b) Provides that an emergency suspension is effective immediately on notice to the license holder. (c) Requires TDH, on written request of the holder of a license suspended under this section, to conduct a hearing to determine whether there is cause to continue the suspension. Provides that the hearing must be held between the 10th day and the 30th day after the date the request is received. Sec. 253.033. INJUNCTION. (a) Authorizes TDH to petition a district court for a temporary restraining order to restrain a continuing violation of the standards or licensing requirements under this chapter, if TDH finds that the violation creates an immediate threat to the health and safety of the public or of a client of a center. (b) Authorizes a district court, on petition of TDH and on finding that a violation of Subchapter B is being committed, to prohibit a person from continuing the violation; restrain or prevent the establishment or operation of a center without a license under this chapter; or grant other injunctive relief warranted by the facts. (c) Requires the attorney general to institute and conduct a suit authorized by this section at the request of TDH. (d) Provides that venue for a suit brought under this section is in the county in which the center is located or in Travis County. Sec. 253.034. CIVIL PENALTY. (a) Provides that a person who violates this chapter or a rule adopted under this chapter is liable for a civil penalty between $100 and $500 for each violation if TDH determines that the violation threatens the health and safety of a client or the public. Provides that each day of a continuing violation constitutes a separate ground for recovery. Authorizes the attorney general to sue to collect the penalty. Sec. 253.035. CRIMINAL PENALTY. Provides that a person commits a Class C misdemeanor if the person operates a facility under Subchapter D without a license. Provides that each day of a continuing violation constitutes a separate offense. Sec. 253.036. ADMINISTRATIVE PENALTY. Authorizes the board to impose an administrative penalty in an amount not to exceed $5,000 against a person who violates this chapter or a rule adopted under this chapter. Provides that each day a violation continues or occurs is a separate violation for the purpose of imposing a penalty. Requires the board to impose a penalty subject to the limitation provided by this section and in accordance to Section 241.060 (Administrative Penalty for Mental Health, Chemical Dependency, or Rehabilitation Services) as if the person had violated Chapter 241 (Hospitals) or a rule adopted under that chapter. SUBCHAPTER D. SERVICES Sec. 253.051. PARTIAL HOSPITALIZATION SERVICES. (a) Authorizes a center for which a license is issued under this chapter to provide partial hospitalization services to a client who exhibits an acute psychiatric or psychological condition, or an acute exacerbation of a severe and persistent mental disorder. (b) Provides that the services provided must be reasonable and necessary for the diagnosis or active treatment of the client's condition, and reasonably expected to improve or maintain the client's condition and functional level to prevent relapse or hospitalization. (c) Provides that the services may include certain specified therapy services, diagnostic services, the administration of drugs or biologicals, or education or training. (d) Authorizes a client to be admitted for partial hospitalization services only by a physician's order following the physician's evaluation of the client in person and furnished under the supervision of a physician. Sec. 253.052. OTHER SERVICES. Authorizes a center to provide outpatient services for a client, including specialized services for certain specified persons, psychosocial rehabilitation services, emergency mental health services available 24 hours a day, or screening services for a person being considered for admission to an MHMR facility. SECTION 2. Amends Section 250.001(3), Health and Safety Code, to include a center that provides behavioral or mental health care services and licensed under Chapter 253 in the definition of "facility." SECTION 3. Provides that a private behavioral or mental health care center is not required to be licensed under Chapter 253, Health and Safety Code, before January 1, 2000. Requires the board to adopt rules as necessary to implement Chapter 253, Health and Safety Code, on or before January 1, 2000. SECTION 4. Effective date: September 1, 1999. SECTION 5. Emergency clause.