SRC-MKV S.B. 1082 77(R)   BILL ANALYSIS


Senate Research Center   S.B. 1082
77R5825 YDB-FBy: Harris
Health & Human Services
3/28/2001
As Filed


DIGEST AND PURPOSE 

Currently, nursing facilities are regulated by the state under two basic
statutory provisions, Chapter 242 of the Health and Safety Code and Chapter
32 of the Human Resources Code.  Chapter 32 of the Human Resources Code
designates the Health and Human Services Commission (HHSC) as the state
agency designated to administer the Medicaid program while the Texas
Department of Human Services (TDHS) is charged with the responsibility of
conducting the investigation, survey, complaint investigation, and incident
investigation functions under both Chapter 242, Health and Safety Code, and
Chapter 32, Human Resources Code.  As proposed, S.B. 1082 improves the
administration, performance, and accountability of the respective agencies
charged with the regulation of nursing facilities and clarifies and
strengthens the due process requirements relating to the licensing,
inspection, survey, investigation, and enforcement functions.  The bill
transfers the responsibility for providing the "Informal Dispute
Resolution" process from TDHS to HHSC and creates within HHSC an Office of
Program Integrity and an Internal Affairs Office to ensure the consistent,
competent, and faithful performance of certain duties relating to the
administration of the Medicaid program. 

RULEMAKING AUTHORITY

Rulemaking authority is expressly granted to the Health and Human Services
Commission in SECTION 1 (Sections 531.056 and 531.057, Government Code) of
this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 531B, Government Code, by adding Sections
531.056, 531.057, and 531.058, as follows: 

Sec. 531.056.  INFORMAL DISPUTE RESOLUTION.  (a) Requires the Health and
Human Services Commission (commission) by rule to establish an informal
dispute resolution process in accordance with this section.  Requires the
process to provide for adjudication by an appropriate disinterested person
of disputes relating to a proposed enforcement action or related proceeding
of the Texas Department of Human Services under Section 32.021(d) (relating
to administration of the program), Human Resources Code, or under Chapter
242 (Convalescent and Nursing Homes and Related Institutions), Health and
Safety Code. Requires the informal dispute resolution process to require
certain procedures. 

(b) Requires the commission to adopt rules to adjudicate claims in
contested cases. 

(c) Requires an attorney for the commission, before the informal dispute
resolution is conducted, to perform certain duties. 

(d) Prohibits the Texas Department of Human Services (department) from
pursuing a monetary penalty in relation to a violation if the evidence of
the violation does not meet the requirements of Subsection (c)(2). 

(e) Prohibits the commission from delegating its responsibilities to
administer the  informal dispute resolution process established by this
section to another state agency. 

Sec. 531.057.  PROGRAM INTEGRITY OFFICE; CODE OF CONDUCT.  (a)  Requires
the commission to establish a program integrity office (office) within the
commission to ensure the consistent, competent, and faithful performance of
duties by employees and agents of the department or another state agency
responsible for licensing, inspecting, surveying, or investigating
institutions licensed under Chapter 242, Health and Safety Code, or
certified in accordance with Chapter 32 (Medical Assistance Program), Human
Resources Code. 

(b) Requires the office to regularly review the process for inspecting,
surveying, and investigating the institutions described by Subsection (a),
and requires the office to make recommendations to the commissioner of
human services or other appropriate agency head, the speaker of the house
of representatives, the lieutenant governor, and the governor concerning
certain information and procedures. 

(c) Requires the commission by rule to adopt a code of conduct for state
employees described by Subsection (a) and provide sanctions for a violation
of the code of conduct or any applicable rule or law. 

(d) Requires the commissioner of health and human services (commissioner)
to appoint an advisory committee composed of representatives of affected
individuals and entities to assist the commission in developing the code of
conduct and the rules necessary to implement this section. 

Sec. 531.058.  INTERNAL AFFAIRS OFFICE.  (a) Requires the commission to
establish an internal affairs office within the office established under
Section 531.057.  Requires the internal affairs office to perform certain
duties. 

(b) Prohibits an employee or agent of the commission, TDHS, or another
state agency from retaliating, directly or indirectly, against a person for
filing a complaint with the internal affairs office under Subsection (a).
Provides that a violation of this subsection constitutes a violation of the
code of conduct adopted under Section 531.057.   
 
(c) Provides that a proceeding to sanction a state employee under this
section is a contested case subject to Chapter 2001, Government Code. 

SECTION 2.  Amends Section 242.037, Health and Safety Code, by adding
Subsection (i) to require the Texas Department of Human Services
(department) to identify in its rules each violation of a rule or standard
for which a penalty may be assessed under this chapter or in accordance
with Chapter 32, Human Resources Code. 

SECTION 3.  Amends Section 242.0445, Health and Safety Code, by amending
Subsections (a) and (b) and adding Subsections (d) and (e), as follows: 

(a) Adds language relating to what the department or the department's
representative conducting an inspection is required to do to include
identifying the specific reasons under Section 242.0665(b) for the denial,
if the institution is denied a right to correct the violation. Makes a
conforming change. 

(b) Changes a reference from "a written list" to "official notice."
Requires the official notice to include a written list of the violations
and a list of recommendations for the facility's plan to correct the
violations.  Makes a conforming change. 

(d) Authorizes a facility, not later than 24 hours before the time
scheduled for the exit conference, to provide to the department's
representative additional documentation to  demonstrate a violation
identified in the inspection, survey, or investigation has not occurred. 

(e) Prohibits the department from imposing a penalty or remedy under this
chapter or in accordance with Chapter 32, Human Resources Code, for a
violation identified or confirmed in an inspection, survey, or
investigation under Section 242.043 or 242.044, or in accordance with
Chapter 32, Human Resources Code, unless the violation is included in the
official notice required by Subsection (b). 

SECTION 4.  Amends Chapter 242B, Health and Safety Code, by adding Section
242.0447, as follows: 

Sec. 242.0447.  DUTIES OF REPRESENTATIVES.  Requires the department to
adopt written policies requiring representatives of the department to treat
the residents of the institution and the institution's staff with courtesy,
consideration, and respect when conducting an inspection, survey, or
investigation under Section 242.043 or 242.044 or in accordance with
Chapter 32, Human Resources Code. 

SECTION 5.  Amends Section 242.066, Health and Safety Code, by amending
Subsection (e) and adding Subsection (i), as follows: 

(e) Adds language relating to information the department is required to
consider when determining the amount of a penalty to include the cash flow
and financial condition of the facility. 

(i) Authorizes the department to impose only one administrative penalty for
each violation identified or confirmed in an inspection, survey, or
investigation. 

SECTION 6.  Amends Section 242.0665, Health and Safety Code, by amending
Subsection (b) and adding Subsection (d), as follows: 

 (b) Makes a conforming change.

(d) Prohibits the department from denying a right to correct unless actual
harm to a resident has been identified with respect to a violation
described by Subsection (b). 

SECTION 7.  Amends Section 242.070, Health and Safety Code, to prohibit the
department from assessing a monetary penalty under this chapter and a
monetary penalty under Chapter 32, Human Resources Code, for the same act
or failure to act. 

SECTION 8.  Amends Section 32.021(d), Human Resources Code, to delete
language relating to certain requirements for the informal dispute process;
to add language to require the Health and Human Services Commission to
develop rules to adjudicate claims in contested cases, including claims
unresolved by the informal dispute resolution process of the Health and
Human Services Commission; and make a conforming change. 

SECTION 9.  Requires the commissioner of health and human services, not
later than January 1, 2002, to adopt the code of conduct required by
Section 531.057, Government Code, as added by this Act, and any rules
necessary to implement Section 531.056, 531.057, and 531.058, Government
Code, as added by this Act. 

SECTION 10.  Provides that effective on January 1, 2002:

(1)  all property and records in the custody of the Texas Department of
Human Services related to the informal dispute resolution function under
Section 32.021(d), Human Resources Code, as it existed before amendment by
this Act, and all funds appropriated by the legislature  to the Texas
Department of Human Services for the function; 
  
(2)  a rule or form adopted by the Texas Department of Human Services that
relates to the informal dispute resolution function under Section
32.021(d), Human Resources Code, as it existed before amendment by this
Act, is a rule or form of the Health and Human Services Commission and
remains in effect until altered by that agency; 
  
(3)  the assumption of the informal dispute resolution function by the
Health and Human Services Commission does not affect or impair any act
done, any obligation, right, order, license, permit, rule, criterion,
standard, or requirement existing, any investigation begun, or any penalty
accrued under former law, and that law remains in effect for any action
concerning those matters; and 
  
(4)  an action brought or proceeding commenced before the assumption by the
Health and Human Services Commission of the informal dispute resolution
function under this Act is effected, including a contested case or a remand
of an action or proceeding by a reviewing court, is governed by the law and
rules applicable to the action or proceeding before the date of the
assumption of the function by the Health and Human Services Commission. 


SECTION 11.  Effective date: September 1, 2001.