By Harris S.B. No. 1082
77R5825 YDB-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to licensing, inspecting, surveying, and investigating
1-3 certain nursing institutions.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subchapter B, Chapter 531, Government Code, is
1-6 amended by adding Sections 531.056, 531.057, and 531.058 to read as
1-7 follows:
1-8 Sec. 531.056. INFORMAL DISPUTE RESOLUTION. (a) The
1-9 commission by rule shall establish an informal dispute resolution
1-10 process in accordance with this section. The process must provide
1-11 for adjudication by an appropriate disinterested person of disputes
1-12 relating to a proposed enforcement action or related proceeding of
1-13 the Texas Department of Human Services under Section 32.021(d),
1-14 Human Resources Code, or under Chapter 242, Health and Safety Code.
1-15 The informal dispute resolution process must require:
1-16 (1) the institution to request informal dispute
1-17 resolution not later than the 10th calendar day after notification
1-18 by the department of the violation of a standard or standards;
1-19 (2) the commission to complete the process not later
1-20 than the 30th calendar day after receipt of a request from the
1-21 institution for informal dispute resolution; and
1-22 (3) any individual representing an institution in an
1-23 informal dispute resolution process to register with the commission
1-24 and disclose the following:
2-1 (A) the individual's employment history during
2-2 the preceding five years, including employment in regulatory
2-3 agencies of this state and other states;
2-4 (B) ownership, including the identity of the
2-5 controlling person or persons, of the institution the individual is
2-6 representing before the commission; and
2-7 (C) the identity of other entities the
2-8 individual represents or has represented before the agency during
2-9 the previous 24 months.
2-10 (b) The commission shall adopt rules to adjudicate claims in
2-11 contested cases.
2-12 (c) Before the informal dispute resolution is conducted, an
2-13 attorney for the commission shall:
2-14 (1) review the evidence of violation identified in a
2-15 survey; and
2-16 (2) ensure the evidence contains facts sufficient to
2-17 establish a prima facie case of failure by the facility to comply
2-18 with federal or state law.
2-19 (d) The Texas Department of Human Services may not pursue a
2-20 monetary penalty in relation to a violation if the evidence of the
2-21 violation does not meet the requirements of Subsection (c)(2).
2-22 (e) The commission may not delegate its responsibility to
2-23 administer the informal dispute resolution process established by
2-24 this section to another state agency.
2-25 Sec. 531.057. PROGRAM INTEGRITY OFFICE; CODE OF CONDUCT. (a)
2-26 The commission shall establish a program integrity office within
2-27 the commission to ensure the consistent, competent, and faithful
3-1 performance of duties by employees and agents of the Texas
3-2 Department of Human Services or another state agency responsible
3-3 for licensing, inspecting, surveying, or investigating institutions
3-4 licensed under Chapter 242, Health and Safety Code, or certified in
3-5 accordance with Chapter 32, Human Resources Code.
3-6 (b) The program integrity office shall regularly review the
3-7 process for inspecting, surveying, and investigating the
3-8 institutions described by Subsection (a) and shall make
3-9 recommendations to the commissioner of human services or other
3-10 appropriate agency head, the speaker of the house of
3-11 representatives, the lieutenant governor, and the governor
3-12 concerning:
3-13 (1) the qualifications, training, and performance of
3-14 employees and administrators engaged in the inspection, survey, or
3-15 investigation process;
3-16 (2) the policies, procedures, guidelines, and rules
3-17 governing an inspection, survey, or investigation;
3-18 (3) the internal control policies and procedures of
3-19 the agency;
3-20 (4) the training and education programs offered by the
3-21 Texas Department of Human Services or other appropriate agency to
3-22 providers to encourage compliance with program rules, procedures,
3-23 guidelines, and policies; and
3-24 (5) other trends and problems associated with the
3-25 inspection, survey, or investigation process.
3-26 (c) The commission by rule shall adopt a code of conduct for
3-27 state employees described by Subsection (a) and provide sanctions
4-1 for a violation of the code of conduct or any applicable rule or
4-2 law.
4-3 (d) The commissioner shall appoint an advisory committee
4-4 composed of representatives of affected individuals and entities to
4-5 assist the commission in developing the code of conduct and the
4-6 rules necessary to implement this section.
4-7 Sec. 531.058. INTERNAL AFFAIRS OFFICE. (a) The commission
4-8 shall establish an internal affairs office within the program
4-9 integrity office established under Section 531.057. The internal
4-10 affairs office shall:
4-11 (1) receive, evaluate, and investigate a complaint
4-12 received from any person, including an anonymous complaint,
4-13 alleging a violation of the code of conduct adopted under Section
4-14 531.057 by a state employee conducting an inspection, survey, or
4-15 investigation under Section 242.043 or 242.044, Health and Safety
4-16 Code, or in accordance with Chapter 32, Human Resources Code;
4-17 (2) keep confidential any complaint received and the
4-18 information or records related to an investigation of the complaint
4-19 until the conclusion of the investigation;
4-20 (3) provide to the employee written notice of and a
4-21 reasonable opportunity to contest a complaint received under this
4-22 section; and
4-23 (4) ensure that each employee found in violation of
4-24 the code of conduct or an applicable rule or law is sanctioned as
4-25 provided in the code.
4-26 (b) An employee or agent of the commission, the Texas
4-27 Department of Human Services, or another state agency may not
5-1 retaliate, directly or indirectly, against a person for filing a
5-2 complaint with the internal affairs office under Subsection (a). A
5-3 violation of this subsection constitutes a violation of the code of
5-4 conduct adopted under Section 531.057.
5-5 (c) A proceeding to sanction a state employee under this
5-6 section is a contested case subject to Chapter 2001, Government
5-7 Code.
5-8 SECTION 2. Section 242.037, Health and Safety Code, is
5-9 amended by adding Subsection (i) to read as follows:
5-10 (i) The department shall identify in its rules each
5-11 violation of a rule or standard for which a penalty may be assessed
5-12 under this chapter or in accordance with Chapter 32, Human
5-13 Resources Code.
5-14 SECTION 3. Section 242.0445, Health and Safety Code, is
5-15 amended by amending Subsections (a) and (b) and adding Subsections
5-16 (d) and (e) to read as follows:
5-17 (a) The department or the department's representative
5-18 conducting an inspection, survey, or investigation under Section
5-19 242.043 or 242.044, or in accordance with Chapter 32, Human
5-20 Resources Code, shall:
5-21 (1) list each violation of a law or rule on a form
5-22 designed by the department for inspections; [and]
5-23 (2) identify the specific law or rule the institution
5-24 [facility] violated; and
5-25 (3) if the institution is denied a right to correct
5-26 the violation, identify the specific reason under Section
5-27 242.0665(b) for the denial.
6-1 (b) At the conclusion of an inspection, survey, or
6-2 investigation under Section 242.043 or 242.044, or in accordance
6-3 with Chapter 32, Human Resources Code, the department or the
6-4 department's representative conducting the inspection, survey, or
6-5 investigation shall discuss the violations with the facility's
6-6 management in an exit conference. The department or the
6-7 department's representative shall leave official notice [a written
6-8 list] of the violations with the facility at the time of the exit
6-9 conference. The official notice must include a written list of the
6-10 violations and a list of recommendations for the facility's plan to
6-11 correct the violations. If the department or the department's
6-12 representative discovers any additional violations during the
6-13 review of field notes or preparation of the official final list,
6-14 the department or the department's representative shall give the
6-15 facility an additional exit conference regarding the additional
6-16 violations.
6-17 (d) Not later than 24 hours before the time scheduled for
6-18 the exit conference, a facility may provide to the department's
6-19 representative additional documentation to demonstrate a violation
6-20 identified in the inspection, survey, or investigation has not
6-21 occurred.
6-22 (e) The department may not impose a penalty or remedy under
6-23 this chapter or in accordance with Chapter 32, Human Resources
6-24 Code, for a violation identified or confirmed in an inspection,
6-25 survey, or investigation under Section 242.043 or 242.044, or in
6-26 accordance with Chapter 32, Human Resources Code, unless the
6-27 violation is included in the official notice required by Subsection
7-1 (b).
7-2 SECTION 4. Subchapter B, Chapter 242, Health and Safety
7-3 Code, is amended by adding Section 242.0447 to read as follows:
7-4 Sec. 242.0447. DUTIES OF REPRESENTATIVES. The department
7-5 shall adopt written policies requiring representatives of the
7-6 department to treat the residents of the institution and the
7-7 institution's staff with courtesy, consideration, and respect when
7-8 conducting an inspection, survey, or investigation under Section
7-9 242.043 or 242.044 or in accordance with Chapter 32, Human
7-10 Resources Code.
7-11 SECTION 5. Section 242.066, Health and Safety Code, is
7-12 amended by amending Subsection (e) and adding Subsection (i) to
7-13 read as follows:
7-14 (e) In determining the amount of a penalty, the department
7-15 shall consider any matter that justice may require, including:
7-16 (1) the gradations of penalties established under
7-17 Subsection (d);
7-18 (2) the seriousness of the violation, including the
7-19 nature, circumstances, extent, and gravity of the prohibited act
7-20 and the hazard or potential hazard created by the act to the health
7-21 or safety of the public;
7-22 (3) the history of previous violations;
7-23 (4) deterrence of future violations; [and]
7-24 (5) efforts to correct the violation; and
7-25 (6) the cash flow and financial condition of the
7-26 facility.
7-27 (i) The department may impose only one administrative
8-1 penalty for each violation identified or confirmed in an
8-2 inspection, survey, or investigation.
8-3 SECTION 6. Section 242.0665, Health and Safety Code, is
8-4 amended by amending Subsection (b) and adding Subsection (d) to
8-5 read as follows:
8-6 (b) Subject to Subsection (d), Subsection (a) does not
8-7 apply:
8-8 (1) to a violation that the department determines:
8-9 (A) results in serious harm to or death of a
8-10 resident;
8-11 (B) constitutes a serious threat to the health
8-12 or safety of a resident; or
8-13 (C) substantially limits the institution's
8-14 capacity to provide care;
8-15 (2) to a violation described by Sections
8-16 242.066(a)(2)-(6);
8-17 (3) to a violation of Section 242.133 or 242.1335; or
8-18 (4) to a violation of a right of a resident adopted
8-19 under Subchapter L.
8-20 (d) The department may not deny a right to correct unless
8-21 actual harm to a resident has been identified with respect to a
8-22 violation described by Subsection (b).
8-23 SECTION 7. Section 242.070, Health and Safety Code, is
8-24 amended to read as follows:
8-25 Sec. 242.070. APPLICATION OF OTHER LAW. The department may
8-26 not assess more than one monetary penalty under this chapter for a
8-27 violation arising out of the same act or failure to act, except as
9-1 provided by Section 242.0665(c). The [This section does not
9-2 prohibit the] department may not assess [from assessing] a monetary
9-3 penalty under this chapter and a monetary penalty under Chapter 32,
9-4 Human Resources Code, for the same act or failure to act.
9-5 SECTION 8. Section 32.021(d), Human Resources Code, is
9-6 amended to read as follows:
9-7 (d) The department shall include in its contracts for the
9-8 delivery of medical assistance by nursing facilities provisions for
9-9 monetary penalties to be assessed for violations as required by 42
9-10 U.S.C. Section 1396r, including without limitation the Omnibus
9-11 Budget Reconciliation Act (OBRA), P.L. 100-203, Nursing Home Reform
9-12 Amendments of 1987, provided that the department shall:
9-13 (1) provide for an informal dispute resolution process
9-14 in the Health and Human Services Commission as provided by Section
9-15 531.056, Government Code [department's central office; the informal
9-16 dispute resolution process shall:]
9-17 [(A) require the institution to request informal
9-18 dispute resolution no later than the 10th calendar day after
9-19 notification by the department of a violation of a standard or
9-20 standards;]
9-21 [(B) require the department to complete the
9-22 process no later than the 30th calendar day after receipt of a
9-23 request from the institution for informal dispute resolution; and]
9-24 [(C) require any individual representing an
9-25 institution in an informal dispute resolution process to register
9-26 with the department and disclose the following:]
9-27 [(i) the individual's five-year employment
10-1 history during the preceding five years, including employment in
10-2 regulatory agencies of this state and other states;]
10-3 [(ii) ownership, including the identity of
10-4 the controlling person or persons, of the institution the person is
10-5 representing before the department; and]
10-6 [(iii) the identity of other entities the
10-7 person represents or has represented before the agency during the
10-8 previous 24 months]; and
10-9 (2) develop rules to adjudicate claims in contested
10-10 cases, including claims unresolved by the informal dispute
10-11 resolution process of the Health and Human Services Commission.
10-12 SECTION 9. Not later than January 1, 2002, the commissioner
10-13 of health and human services shall adopt the code of conduct
10-14 required by Section 531.057, Government Code, as added by this Act,
10-15 and any rules necessary to implement Sections 531.056, 531.057, and
10-16 531.058, Government Code, as added by this Act.
10-17 SECTION 10. Effective January 1, 2002:
10-18 (1) all property and records in the custody of the
10-19 Texas Department of Human Services related to the informal dispute
10-20 resolution function under Section 32.021(d), Human Resources Code,
10-21 as it existed before amendment by this Act, and all funds
10-22 appropriated by the legislature to the Texas Department of Human
10-23 Services for the function are transferred to the Health and Human
10-24 Services Commission;
10-25 (2) a rule or form adopted by the Texas Department of
10-26 Human Services that relates to the informal dispute resolution
10-27 function under Section 32.021(d), Human Resources Code, as it
11-1 existed before amendment by this Act, is a rule or form of the
11-2 Health and Human Services Commission and remains in effect until
11-3 altered by that agency;
11-4 (3) the assumption of the informal dispute resolution
11-5 function by the Health and Human Services Commission does not
11-6 affect or impair any act done, any obligation, right, order,
11-7 license, permit, rule, criterion, standard, or requirement
11-8 existing, any investigation begun, or any penalty accrued under
11-9 former law, and that law remains in effect for any action
11-10 concerning those matters; and
11-11 (4) an action brought or proceeding commenced before
11-12 the assumption by the Health and Human Services Commission of the
11-13 informal dispute resolution function under this Act is effected,
11-14 including a contested case or a remand of an action or proceeding
11-15 by a reviewing court, is governed by the law and rules applicable
11-16 to the action or proceeding before the date of the assumption of
11-17 the function by the Health and Human Services Commission.
11-18 SECTION 11. This Act takes effect September 1, 2001.