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.