SRC-CTC S.B. 527 77(R)BILL ANALYSIS


Senate Research CenterS.B. 527
By: Moncrief
Health & Human Services
6/18/2001
Enrolled


DIGEST AND PURPOSE 

Currently, the enforcement remedies in the personal care facility statute
provide questionable protection of residents in assisted living facilities.
Under current law, the state must choose between completely closing down a
facility at the inconvenience of its residents, or letting the facility
continue to operate without any enforcement action.  S.B. 527 creates
legislation regulating procedures for assessing and determining violations
and penalties for personal care facilities to increase the state's
enforcement choices regarding personal care facilities.  

RULEMAKING AUTHORITY

Rulemaking authority is expressly granted to the Health and Human Services
Commission in SECTION 13 (Section 247.051, Health and Safety Code) of this
code. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 247.002, Health and Safety Code, to define
"commissioner." 

SECTION 2.  Amends Chapter 247A, Health and Safety Code, by adding Section
247.0025, as follows: 

Sec. 247.0025.  IMMEDIATE THREAT OF HARM.  Sets forth, for the purposes of
this chapter, the conditions for the health or safety of an assisted living
facility resident to be considered to be immediately threatened or
jeopardized. 

SECTION 3.  Amends the heading to Section 247.0272, Health and Safety Code,
to read as follows: 

 Sec. 247.0272.  INSPECTOR TRAINING; REQUIRED EXAMINATION.

SECTION 4.  Amends Section 247.0272, Health and Safety Code, to require the
Texas Department of Human Services (department) to examine department
employees who inspect or otherwise survey assisted living facilities under
this chapter.  Requires the department, in developing the examination, to
consult with operators of assisted living facilities or their
representatives and with consumers of personal care services provided by
assisted living facilities or representatives of consumers.  Prohibits a
department employee from independently inspecting, surveying, or taking
administrative action against an assisted living facility unless the
employee has passed the examination administered under this section. 

SECTION 5.  Amends Section 247.041, Health and Safety Code, to authorize
the department, after providing notice and opportunity for a hearing to the
applicant or license holder, to deny, suspend, or revoke a license if the
department finds that the applicant, license holder, or controlling person
has taken certain actions.  Provides that the status of a person as an
applicant for a license or as a licensed is preserved until final
disposition of the contested manner, except as the court having
jurisdiction of judicial review of the matter may order in the public
interest for the welfare and safety of the residents. Prohibits a court
having jurisdiction of a judicial review of the matter from ordering
arbitration, whether  on motion of any party or on the court's own motion,
to resolve a dispute involving the denial, suspension, or revocation of a
license under this section or the conduct with respect to which the denial,
suspension, or revocation of the license is sought.   

SECTION 6.  Amends Section 247.042, Health and Safety Code, to authorize,
rather than require, the department to suspend the license or order
immediate closing of all or part of an assisted living facility if the
department finds the facility operating in violation of the standards
prescribed by, rather than under, this chapter.  Requires the department
and the State Office of Administrative Hearings to expedite any hearing or
decision involving an emergency suspension or closing order issued under
this section. 

SECTION 7.  Redesignates Section 247.0455, Health and Safety Code, as
Section 247.0459, Health and Safety Code, and amends to require the
department to assess an administrative penalty against an assisted living
facility, rather than a personal care facility, that violates Section
166.004. 

SECTION 8.  Amends Chapter 247C, Health and Safety Code, by adding Sections
247.0451247.0457, as follows: 

Sec. 247.0451. ADMINISTRATIVE PENALTY.  (a) Authorizes the Texas Department
of Human Services (department) to assess an administrative penalty against
a person who commits certain acts.   

(b) Prohibits a penalty from exceeding $1,000 for each violation, except as
provided by Section 247.0452(c).   

(c) Requires the Texas Board of Human Services (board) to establish
gradations of penalties in accordance with the relative seriousness of the
violation. 

(d) Requires the department, in determining the amount of a penalty, to
consider any matter that justice may require, and requires it to consider
certain aspects of the violation and make a record of the extent to which
each aspect was considered. 

(e) Provides that a penalty assessed under Subsection (a)(6) is in addition
to the penalty previously assessed and not timely paid. 

(f) Prohibits the department from assessing a penalty under this section
against a resident of an assisted living facility unless the resident is
also an employee of the facility or a controlling person. 

Sec. 247.0452.  RIGHT TO CORRECT.  (a) Prohibits the department from
collecting an administrative penalty from an assisted living facility under
Section 247.0451 if the facility corrects the violation not later than the
45th day after the date it receives notice under Section 247.0453(c). 

  (b) Provides that Subsection (a) does not apply in certain situations.

(c) Requires an assisted living facility that corrects a violation to
maintain the correction. Authorizes the department, if the facility fails
to maintain the correction for at least one year from the date the
correction was made, to assess and collect an administrative penalty for
the subsequent violation.  Sets forth the amount of the administrative
penalty. Provides that the department is not required to provide the
facility with an opportunity to correct the subsequent violation. 

Sec. 247.0453.  REPORT RECOMMENDING ADMINISTRATIVE PENALTY.  (a) Authorizes
the department to issue a preliminary report stating the facts on which the
department concludes that a violation of certain regulations has occurred
if the department has  completed certain actions.   

(b) Authorizes the report to recommend  a penalty under Section 247.0451
and the amount of the penalty.   

(c) Requires the department to give written notice of the report to the
person charged with the violation not later that the 10th day after the
date on which the report was issued.  Requires the notice to include
certain items. 
 
(d) Authorizes the person charged, not later than the 20th day after the
date on which the notice under Subsection (c) is received, to perform
certain actions. 

(e) Require the assisted living facility, if the violation is subject to
correction under Section 247.0452, to submit a plan of correction to the
department for approval not later than the 10th day after the date on which
the notice under Subsection (c) is received. 

(f) Requires the department, if the violation is subject to correction
under Section 247.0452, and the person reports  to the department that the
violation has been corrected, to inspect the correction or take steps
necessary to confirm the correction and to notify the person as to the
acceptability of the correction. 

(g) Authorizes the person charged, not later than the 20th day after the
date on which a notice under Subsection (f)(2) is received, to perform
certain actions. 

(h) Requires the commissioner of human services (commissioner) or the
commissioner's designee to assess the penalty recommended by the department
if the person charged with the violation consents to the penalty
recommended by the department or does not timely respond to a notice sent
under Subsection (c) or (f)(2). 
 
(i) Requires the department, if the commissioner or the commissioner's
designee assesses the recommended penalty, to give written notice to the
person charged of the decision.  Requires the person to pay the penalty. 

Sec. 247.0454.  HEARING ON ADMINISTRATIVE PENALTY.  (a) Requires an
administrative law judge to order a hearing and give notice of the hearing
if a person charged with a specific violation requests a hearing. 

  (b) Requires the hearing to be held before an administrative law judge.

(c) Requires the administrative law judge to make findings of fact and
conclusions of law and promptly issue to the commissioner or the
commissioner's designee a written decision regarding the occurrence of a
violation of certain regulations and a recommendation regarding the amount
of the proposed penalty if a penalty is warranted. 

(d) Authorizes the commissioner or the commissioner's designee to make, by
order, certain findings based on the findings, conclusions, and
recommendations of the administrative law judge. 

(e) Requires the commissioner or the commissioner's designee, if the
commissioner or the commissioner's designee finds that a violation has not
occurred, to order all records reflecting that the department found a
violation had occurred and attempted to impose an administrative penalty to
be expunged except certain records. 

 (f) Provides that proceedings under this section are subject to Chapter
2001 (Administrative Procedure), Government Code. 

Sec. 247.0455.  NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY; INTEREST;
REFUND.  (a) Requires the commissioner or the commissioner's designee to
give notice of the findings made under Section 247.0454(d) to the person
charged.  Requires the commissioner or the commissioner's designee, on
finding that a violation has occurred, to give the person charged written
notice of certain items. 

(b) Requires the person charged with the penalty to perform certain actions
not later than the 30th day after the date on which the order of the
commissioner or the commissioner's designee is final. 

(c) Authorizes the department, notwithstanding Subsection (b), to permit
the person to pay the penalty in installments or require the person to use
all or part of the amount of the penalty in accordance with Section
247.0457. 

(d) Sets forth certain conditions which apply if the person does not pay
the penalty within the period provided by Subsection (b) or in accordance
with Subsection (c). 

  (e) Sets forth the manner in which interest under Subsection (d)(1)
accrues. 

(f) Requires the commissioner to complete certain actions if the amount of
the penalty is reduced or the assessment of the penalty is not upheld on
judicial review. 

(g) Sets forth provisions regarding the payment of accrued interest on
amounts remitted by the commissioner under Subsection (f)(1). 

Sec. 247.0456.  APPLICATION OF OTHER LAW.  Prohibits the department from
assessing a monetary penalty under this chapter and a monetary penalty
under Chapter 32 (Medical Assistance Program), Human Resources Code, for
the same act or failure to act. 

Sec. 247.0457.  AMELIORATION OF VIOLATION.  (a) Authorizes the
commissioner, in lieu of demanding payment of a specific administrative
penalty, to allow the person to use, under the supervision of the
department, any portion of the penalty to ameliorate the violation or to
improve services, other than administrative services, in the assisted
living facility affected by the violation. 

(b) Requires the department to offer amelioration to a person for a charged
violation if the department determines that the violation does not
constitute immediate jeopardy to the health and safety of a resident of the
assisted living facility. 

(c) Requires the department to offer amelioration to a person under this
section not later than the 10th day after the date the person receives from
the department a final notification of the recommended assessment of an
administrative penalty that is sent to the person after an informal dispute
resolution process but before an administrative hearing under Section
247.0454. 

(d) Requires a person to whom amelioration has been offered to file a plan
for amelioration not later than the 45th day after the date person receives
the offer of amelioration from the department.  Requires the person, in
submitting the plan, to agree to waive the person's right to an
administrative hearing under Section 247.0454 if the department approves
the plan. 
 
  (e) Sets forth minimum requirements of the plan for amelioration.
 
(f) Sets forth certain proposed changes a plan for amelioration is
authorized to include. 

(g) Authorizes the department to require than an amelioration plan propose
changes that would result in conditions that exceed the requirements of
this chapter or the rules adopted under this chapter. 

(h) Requires the department to approve or deny an amelioration plan not
later than the 45th day after the date the department receives the plan.
Requires the department, on approval of a person's plan, to deny a pending
request for a hearing submitted by the person under Section 247.0453. 

(i) Limits the number of times the department may offer amelioration to a
person in a certain time frame. 

SECTION 9.  Amends Section 247.049(b), Health and Safety Code, to add an
action seeking imposition of an administrative penalty under this
subchapter to the list of items which are barred from admission into
evidence in a certain enforcement action by Section 247.049(a). 

SECTION 10.  Redesignates Section 247.051, Health and Safety Code, as
Section 247.006, Health and Safety Code, and amends it to make a conforming
change. 

SECTION 11.  Repealer: Heading to Subchapter 247D, Health and Safety Code.

SECTION 12.  Redesignates Chapter 247E, Health and Safety Code, as Chapter
247D, Health and Safety Code, and amends the subchapter heading to read as
follows: 

SUBCHAPTER D.  MISCELLANEOUS PROVISIONS

SECTION 13.  Amends Chapter 247C, Health and Safety Code, by adding Section
247.0541, as follows: 

Sec. 247.051.  INFORMAL DISPUTE RESOLUTION.  Requires the Health and Human
Services Commission (commission) by rule to establish an informal dispute
resolution process in accordance with this section.  Sets forth certain
requirements for the process.  Requires the commission to adopt rules to
adjudicate claims in contested cases.  Prohibits the commission from
delegating its responsibility to administer the informal dispute resolution
process established by this section to another state agency. 

SECTION 14.  Amends Section 247.066, Health and Safety Code, by adding
Subsections (c), (d), and (e), as follows: 

(c) Provides that if a department inspector determines that a resident is
inappropriately placed at a facility, the facility is not required to move
the patient if, in a certain time frame, the facility obtains certain
written statements opposing the department inspector's determination.   

(d) Prohibits the department from assessing an administrative penalty
against a facility because of an inappropriate placement of a resident if a
department inspector's determination is agreed with by the facility or is
not opposed.  Requires the facility to discharge the resident if the
inspector's determination is not opposed.  Provides that the resident is
allowed 30 days after the date of discharge to move from the facility.
Requires a discharge required under this section to be made notwithstanding
certain items. 

(e) Requires the department to develop standard forms that must be used
under Subsections (c)(1)-(3) to facilitate obtaining the written statements
required under said subsections. Requires the department to develop
criteria under which the department will determine, based  on a resident's
specific situation, whether is will grant or deny a request for a waiver
under Subsection (c)(4). 

SECTION 15.  Amends Chapter 242D, Health and Safety Code, by adding
Sections 242.0965 and 242.0975, as follows: 

Sec. 242.0965.  ASSISTED LIVING FACILITY TRUST FUND AND EMERGENCY
ASSISTANCE FUNDS.  (a) Provides that the assisted living facility trust
fund (fund) is a trust fund with the comptroller and requires the fund be
made available to the department for expenditures without legislative
appropriation to make emergency assistance funds available to an assisted
living facility. 

(b) Authorizes a trustee of an assisted living facility to use the
emergency assistance funds only to alleviate an immediate threat to the
health or safety of the residents and sets forth certain items this
includes. 
 
(c) Authorizes a court to order the department to disburse emergency
assistance funds to an assisted living facility if the court makes certain
findings. 

(d) Requires the department to disburse money from the fund as ordered by
the court in accordance with board rules. 

(e) Requires any unencumbered amount in the fund in excess of $500,000 at
the end of each fiscal year to be transferred to the credit of the general
revenue fund and may be appropriated only to the department for its use in
administering and enforcing Chapter 247. 

Sec. 242.0975.  ADDITIONAL LICENSE FEE - ASSISTED LIVING FACILITIES.  (a)
Requires the department, in addition to the license fee provided by Section
247.024, to adopt an annual fee to be charged and collected if the amount
of the fund is less than $500,000. Requires the fee to be deposited to the
credit of the fund created by this subchapter.  

(b) Authorizes the department to charge and collect a fee under this
section more than once each year only if necessary to ensure that the
amount in the fund is sufficient to make the disbursements required under
Section 242.0965.  Requires the department to notify the governor and the
Legislative Budget Board if the department makes a second or subsequent
assessment under this subsection in any year. 

(c) Requires the department to set the fee on the basis of the number of
beds in assisted living facilities required to pay the fee and in an amount
necessary to provide not more than $500,000 in the assisted living facility
trust fund. 

SECTION 16.  Amends the heading of Section 242.097, Health and Safety Code,
to read as follows: 

Sec. 242.097.  ADDITIONAL LICENSE FEE - NURSING AND CONVALESCENT HOMES.

SECTION 17.  Repealer: Section 247.0271(d), Health and Safety Code.

SECTION 18.  Requires the department to adopt rules to implement Section
247.0452, Health and Safety Code, as added by this Act, and Section
247.066, Health and Safety Code, as amended by this Act, not later than
January 1, 2002. 

SECTION 19.  Effective date: September 1, 2001.