By Deshotel H.B. No. 982
77R1105 YDB-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to certain violations committed by nursing institutions.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 242.0445, Health and Safety Code, is
1-5 amended by amending Subsections (a) and (b) and adding Subsections
1-6 (d) and (e) to read as follows:
1-7 (a) The department or the department's representative
1-8 conducting an inspection, survey, or investigation under Section
1-9 242.043 or 242.044, or in accordance with Chapter 32, Human
1-10 Resources Code, shall:
1-11 (1) list each violation of a law or rule on a form
1-12 designed by the department for inspections; and
1-13 (2) identify the specific law or rule the facility
1-14 violated.
1-15 (b) At the conclusion of an inspection, survey, or
1-16 investigation under Section 242.043 or 242.044, or in accordance
1-17 with Chapter 32, Human Resources Code, the department or the
1-18 department's representative conducting the inspection, survey, or
1-19 investigation shall discuss the violations with the facility's
1-20 management in an exit conference. The department or the
1-21 department's representative shall leave official notice [a written
1-22 list] of the violations with the facility at the time of the exit
1-23 conference. The official notice must include a written list of the
1-24 violations and a list of recommendations for the facility's plan to
2-1 correct the violations. If the department or the department's
2-2 representative discovers any additional violations during the
2-3 review of field notes or preparation of the official final list,
2-4 the department or the department's representative shall give the
2-5 facility an additional exit conference regarding the additional
2-6 violations.
2-7 (d) Not later than 24 hours before the time scheduled for
2-8 the exit conference, a facility may provide to the department's
2-9 representative additional documentation to demonstrate a violation
2-10 identified in the inspection, survey, or investigation has not
2-11 occurred.
2-12 (e) The department may not impose a penalty or remedy under
2-13 this chapter or in accordance with Chapter 32, Human Resources
2-14 Code, for a violation identified or confirmed in an inspection,
2-15 survey, or investigation under Section 242.043 or 242.044, or in
2-16 accordance with Chapter 32, Human Resources Code, unless the
2-17 violation is included in the official notice required by Subsection
2-18 (b).
2-19 SECTION 2. Section 32.021(d), Human Resources Code, is
2-20 amended to read as follows:
2-21 (d) The department shall include in its contracts for the
2-22 delivery of medical assistance by nursing facilities provisions for
2-23 monetary penalties to be assessed for violations as required by 42
2-24 U.S.C. Section 1396r, including without limitation the Omnibus
2-25 Budget Reconciliation Act (OBRA), P.L. 100-203, Nursing Home Reform
2-26 Amendments of 1987. Assessment of a monetary penalty under this
2-27 subsection is subject to informal dispute resolution under Section
3-1 32.0214 [, provided that the department shall:]
3-2 [(1) provide for an informal dispute resolution
3-3 process in the department's central office; the informal dispute
3-4 resolution process shall:]
3-5 [(A) require the institution to request informal
3-6 dispute resolution no later than the 10th calendar day after
3-7 notification by the department of a violation of a standard or
3-8 standards;]
3-9 [(B) require the department to complete the
3-10 process no later than the 30th calendar day after receipt of a
3-11 request from the institution for informal dispute resolution; and]
3-12 [(C) require any individual representing an
3-13 institution in an informal dispute resolution process to register
3-14 with the department and disclose the following:]
3-15 [(i) the individual's five-year employment
3-16 history during the preceding five years, including employment in
3-17 regulatory agencies of this state and other states;]
3-18 [(ii) ownership, including the identity of
3-19 the controlling person or persons, of the institution the person is
3-20 representing before the department; and]
3-21 [(iii) the identity of other entities the
3-22 person represents or has represented before the agency during the
3-23 previous 24 months; and]
3-24 [(2) develop rules to adjudicate claims in contested
3-25 cases].
3-26 SECTION 3. Subchapter B, Chapter 32, Human Resources Code, is
3-27 amended by adding Section 32.0214 to read as follows:
4-1 Sec. 32.0214. INFORMAL DISPUTE RESOLUTION FOR NURSING
4-2 INSTITUTION. (a) The Health and Human Services Commission shall
4-3 provide for an informal dispute resolution process relating to the
4-4 assessment of monetary penalties under Section 32.021(d) in the
4-5 commission's central office. The informal dispute resolution
4-6 process shall:
4-7 (1) require the institution to request informal
4-8 dispute resolution not later than the 10th calendar day after
4-9 notification by the commission of a violation of a standard or
4-10 standards;
4-11 (2) require the commission to complete the process not
4-12 later than the 30th calendar day after receipt of a request from
4-13 the institution for informal dispute resolution; and
4-14 (3) require any individual representing an institution
4-15 in an informal dispute resolution process to register with the
4-16 commission and disclose the following:
4-17 (A) the individual's five-year employment
4-18 history during the preceding five years, including employment in
4-19 regulatory agencies of this state and other states;
4-20 (B) ownership, including the identity of the
4-21 controlling person or persons, of the institution the person is
4-22 representing before the commission; and
4-23 (C) the identity of other entities the person
4-24 represents or has represented before the agency during the previous
4-25 24 months.
4-26 (b) The Health and Human Services Commission shall adopt
4-27 rules to adjudicate claims in contested cases.
5-1 (c) Before the informal dispute resolution is conducted, an
5-2 attorney for the Health and Human Services Commission shall:
5-3 (1) review the evidence of violation identified in a
5-4 survey; and
5-5 (2) ensure the evidence contains facts sufficient to
5-6 establish a prima facie case of failure by the facility to comply
5-7 with federal or state law.
5-8 (d) The department may not pursue a monetary penalty in
5-9 relation to a violation if the evidence of the violation does not
5-10 meet the requirements of Subsection (c)(2).
5-11 (e) The Health and Human Services Commission may not
5-12 delegate its responsibility to administer the informal dispute
5-13 resolution process established by this section to another state
5-14 agency.
5-15 SECTION 4. (a) This Act takes effect September 1, 2001.
5-16 (b) The change in law made by this Act to the informal
5-17 dispute resolution process for monetary penalties assessed against
5-18 nursing institutions applies only to dispute resolution that is
5-19 commenced on or after January 1, 2002. Dispute resolution commenced
5-20 before January 1, 2002, is governed by the law as it existed
5-21 immediately before the effective date of this Act, and that law is
5-22 continued in effect for this purpose.
5-23 (c) Not later than December 31, 2001:
5-24 (1) the Health and Human Services Commission and the
5-25 Texas Board of Human Services shall adopt a memorandum of
5-26 understanding governing the transfer of the informal dispute
5-27 resolution process for monetary penalties assessed against nursing
6-1 institutions, and any necessary records, staff, or resources
6-2 relating to that process, from the Texas Department of Human
6-3 Services to the commission, as required by this Act; and
6-4 (2) the Health and Human Services Commission shall
6-5 adopt rules governing the informal dispute resolution process
6-6 required by Section 32.0214, Human Resources Code, as added by this
6-7 Act.