SRC-JEC C.S.S.B. 1593 77(R)BILL ANALYSIS


Senate Research CenterC.S.S.B. 1593
77R11030 YDB-DBy: Moncrief
Health & Human Services
3/30/2001
Committee Report (Substituted)


DIGEST AND PURPOSE 

Currently, the survey process regarding long-term care is contentious,
thereby creating an uncooperative environment between providers and
regulators.  This contributes to lower-quality care for residents in
institutions.  C.S.S.B. 1593 increases educational and training
requirements for surveyors and providers, increases evaluation and review
processes, requires an annual report to the legislature, creates an early
detection system for health and safety risks in facilities, and transfers
the dispute resolution processes from the purview of the Department of
Human Services to that of the Health and Human Services Commission. 

RULEMAKING AUTHORITY

Rulemaking authority is expressly granted to the Texas Health and Human
Services Commission in SECTION 2 (Section 531.058, Government Code) and to
the Texas Department of Human Services in SECTION 3 (Section 32.021, Human
Resources Code) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 22, Human Resources Code, by adding Section
22.037, as follows: 

Sec. 22.037.  TRAINING AND CONTINUING EDUCATION RELATED TO CERTAIN
LONG-TERM CARE FACILITIES.  Defines "long-term care facility," "provider,"
and "surveyor."  

(b)  Requires the Texas Department of Human Services (department) to
require a surveyor to complete a basic training program before the surveyor
inspects, surveys, or investigates a long-term care facility.  Requires the
training to include observation of the operations of a long-term care
facility unrelated to the survey, inspection, or investigation process for
a minimum of 10 working days within a 14-day period. 

(c)  Requires the department to semiannually provide training for surveyors
and providers on subjects that address at least one of the 10 most common
violations by long-term care facilities under federal or state law. 

(d)  Provides that, except as provided by Subsection (e), a surveyor who is
a health care professional licensed under the laws of this state is
required to receive a minimum of 50 percent of the professional's required
continuing education credits, if any, in gerontology. 

(e)  Requires a surveyor who is a pharmacist to receive a minimum of 30
percent of the pharmacist's required continuing education credits in
gerontology. 

SECTION 2.  Amends Chapter 531B, Government Code, by adding Sections
531.056, 531.057, and 531.058, as follows: 

 Sec. 531.056.  REVIEW OF SURVEY PROCESS IN CERTAIN INSTITUTIONS AND
FACILITIES. Requires the Health and Human Services Commission (commission)
to adopt procedures to review certain violations and patterns related to
violations and to review the performance of duties by certain employees and
agents. 

(b)  Requires the commission to annually report to the speaker of the house
of representatives, the lieutenant governor, and the governor on the
findings of the review conducted under Subsection (a). 

Sec. 531.057.  QUALITY ASSURANCE EARLY WARNING SYSTEM FOR LONG-TERM CARE
FACILITIES; RAPID RESPONSE TEAMS.  Defines "long-term care facility" and
"quality-of-care monitor." 

(b)  Requires the commission to establish an early warning system to detect
conditions that could be detrimental to the health, safety, and welfare of
residents. Requires the early warning system to include analysis of
financial and quality-of-care indicators that would predict the need for
the commission to take action. 

(c)  Requires the commission to establish regional offices with one or more
quality-of-care monitors, based on the number of long-term care facilities
in the region, to monitor the facilities in the region on a regular,
unannounced, aperiodic basis, including nights, evenings, weekends, and
holidays. 

(d)  Requires priority for monitoring visits to be given to long-term care
facilities with a history of patient care deficiencies. 

(e)  Prohibits quality-of-care monitors from being deployed by the
commission as a part of the regional survey team in the conduct of routine,
scheduled surveys. 

(f)  Requires quality-of-care monitors to assess the overall quality of
life in the long-term care facility and specific conditions in the facility
directly related to patient care. 

(g)  Requires the quality-of-care monitor to include in an assessment visit
observation of the care and services rendered to residents; and formal and
informal interviews with residents, family members, facility staff,
resident guests, volunteers, other regulatory staff, and representatives of
a human rights advocacy committee. 

(h) Requires the identity of a resident or a family member of a resident
interviewed by a quality-of-care monitor as provided by Subsection (g) to
remain confidential and prohibits the identity from being disclosed to any
person under any other provision of this section. 
  
(i)  Requires the findings of a monitoring visit, both positive and
negative, to be provided orally and in writing to the long-term care
facility administrator or, in the absence of the facility administrator, to
the administrator on duty or the director of nursing. 

(j)  Authorizes the quality-of-care monitor to recommend to the long-term
care facility administrator procedural and policy changes and staff
training to improve the care or quality of life of facility residents. 

(k)  Requires conditions observed by the quality-of-care monitor that
create an immediate threat to the health or safety of a resident to be
reported immediately to the regional office supervisor for appropriate
action and, as appropriate or as required by law, to law enforcement, adult
protective services, or other responsible agencies. 
 
(l)  Provides that any record, except as provided by Subsections (m), (n),
and (o), whether written or oral, or any written or oral communication may
not be subject to discovery or introduction into evidence in any civil or
administrative action against a long-term care facility arising out of
matters that are the subject of quality-of-care monitoring, and prohibits a
person who was in attendance at a monitoring visit or evaluation from being
permitted or required to testify in any civil or administrative action as
to any evidence or other matters produced or presented during the
monitoring visits or  evaluations. 

(m)  Provides that information, documents, or records otherwise available
from other sources are not immune from discovery or use in a civil or
administrative action solely because the information, document, or record
was reviewed in connection with quality-of-care monitoring. 

(n)  Prohibits a person who participates in quality-of-care monitoring
visits or evaluations from being prevented from testifying as to matters
within the person's knowledge, but prohibits that person from being asked
about the person's participation in the activities. 

(o)  Provides that the exclusion from discovery or introduction of evidence
under this section in any civil or administrative action does not apply
when the quality-of-care monitor makes a report to the appropriate
authorities regarding a threat to the health or safety of a resident. 

(p)  Requires the commission to create rapid response teams composed of
health care experts that can visit long-term care facilities identified
through the commission's early warning system. 

(q)  Authorizes rapid response teams to visit long-term care facilities
that request the commission's assistance. 

(r)  Prohibits the rapid response teams from being deployed  for the
purpose of helping a long-term care facility prepare for a regular
inspection or survey conducted under Chapter 242 (Convalescent and Nursing
Homes and Related Institutions), 247 (Assisted Living Facilities), or 252
(Intermediate Care Facilities for the Mentally Retarded), Health and Safety
Code, or in accordance with Chapter 32 (Medical Assistance Program), Human
Resources Code. 

Sec. 531.058.  INFORMAL DISPUTE RESOLUTION FOR CERTAIN LONG-TERM CARE
FACILITIES. (a)  Requires the 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)
(Administration of the Program), Human Resources Code, or Chapter 242, 247,
or 252, Health and Safety Code.  Requires the informal dispute resolution
process to require:  the institution or facility to request informal
dispute resolution not later than the 10th calendar day after notification
by the department of the violation of a standard or standards; the
commission to complete the process not later than the 30th calendar day
after receipt of a request from the institution or facility for informal
dispute resolution; and any individual representing an institution or
facility in an informal dispute resolution process to register with the
commission and disclose certain information. 

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

(c)  Prohibits the commission from delegating its responsibility to
administer the informal  dispute resolution process established by this
section to another state agency. 
 
SECTION 3.  Amends Section 32.021(d), Human Resources Code, to require the
department to include in its contracts certain provisions,  provided that
the department provides for an informal dispute resolution process in the
commission as provided by Section 531.058, Government Code; and develops
rules to adjudicate claims in contested cases, including claims unresolved
by the informal dispute resolution process of the commission.  Deletes text
regarding a dispute resolution process. 

SECTION 4. Requires the commissioner of health and human services, not
later than January 1, 2002, to adopt any rules necessary to implement
Sections 531.056, 531.057, and 531.058, Government Code, as added by this
Act. 

SECTION 5. Requires the Texas Department of Human Services, not later than
January 1, 2002, to develop training necessary to implement Section 22.037,
Human Resources Code, as added by this Act. 

SECTION 6. Provides that, effective 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 are transferred to the Health
and Human Services Commission; 

(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 7. Effective date: September 1, 2001.


SUMMARY OF COMMITTEE CHANGES

Differs from the original as follows:

_Makes reference to gerontology instead of geriatric care.

_Includes a pharmacist and nutritionist with a registered nurse in the
definition of "quality-of-care monitor." 

_In proposed Section 531.057, Government Code, adds a new Subsection (h)
and redesignates subsequent Subsections (h)-(q) as (i)-(r).  In Subsection
(k), replaces "threaten" with "create  an immediate threat."  Adds
exceptions to Subsection (l). 

_Removes previously proposed Sections 531.058(c) and (d), Government Code,
regarding requirements of an attorney before an informal dispute resolution
and a prohibition of the Texas Department of Human Services from pursuit of
a monetary penalty.  Redesignates proposed Subsection (e) as Subsection
(c).