1-1     By:  Moncrief                                         S.B. No. 1376
 1-2           (In the Senate - Filed March 8, 2001; March 13, 2001, read
 1-3     first time and referred to Committee on Health and Human Services;
 1-4     April 2, 2001, reported adversely, with favorable Committee
 1-5     Substitute by the following vote:  Yeas 9, Nays 0; April 2, 2001,
 1-6     sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 1376                By:  Moncrief
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to amelioration of convalescent and nursing home and
1-11     intermediate care facility violations; waiving the right to an
1-12     administrative hearing.
1-13           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14           SECTION 1.  Section 242.071, Health and Safety Code, is
1-15     amended to read as follows:
1-16           Sec. 242.071.  AMELIORATION OF VIOLATION.  (a)  In lieu of
1-17     demanding [ordering] payment of an [the] administrative penalty
1-18     assessed under Section 242.066 [242.069], the commissioner may, in
1-19     accordance with this section, allow [require] the person to use,
1-20     under the supervision of the department, any portion of the penalty
1-21     to ameliorate the violation or to improve services, other than
1-22     administrative services, in the institution affected by the
1-23     violation.
1-24           (b)  The department shall offer amelioration to a person for
1-25     a charged violation if the department determines that the violation
1-26     does not constitute immediate jeopardy to the health and safety of
1-27     an institution resident.
1-28           (c)  The department may not offer amelioration to a person
1-29     if:
1-30                 (1)  the person has been charged with a violation which
1-31     is subject to correction under Section 242.0665; or
1-32                 (2)  the department determines that the charged
1-33     violation constitutes immediate jeopardy to the health and safety
1-34     of an institution resident.
1-35           (d)  The department shall offer amelioration to a person
1-36     under this section not later than the 10th day after the date the
1-37     person receives from the department a final notification of
1-38     assessment of administrative penalty that is sent to the person
1-39     after an informal dispute resolution process but before an
1-40     administrative hearing under Section 242.068.
1-41           (e)  A person to whom amelioration has been offered must file
1-42     a plan for amelioration not later than the 45th day after the date
1-43     the person receives the offer of amelioration from the department.
1-44     In submitting the plan, the person must agree to waive the person's
1-45     right to an administrative hearing under Section 242.068 if the
1-46     department approves the plan.
1-47           (f)  At a minimum, a plan for amelioration must:
1-48                 (1)  propose changes to the management or operation of
1-49     the institution that will improve services to or quality of care of
1-50     residents of the institution;
1-51                 (2)  identify, through measurable outcomes, the ways in
1-52     which and the extent to which the proposed changes will improve
1-53     services to or quality of care of residents of the institution;
1-54                 (3)  establish clear goals to be achieved through the
1-55     proposed changes;
1-56                 (4)  establish a timeline for implementing the proposed
1-57     changes; and
1-58                 (5)  identify specific actions necessary to implement
1-59     the  proposed changes.
1-60           (g)  A plan for amelioration may include proposed changes to:
1-61                 (1)  improve staff recruitment and retention;
1-62                 (2)  offer or improve dental services for residents;
1-63     and
1-64                 (3)  improve the overall quality of life for residents.
 2-1           (h)  The department may require that an amelioration plan
 2-2     propose changes that would result in conditions that exceed the
 2-3     requirements of this chapter or the rules adopted under this
 2-4     chapter.
 2-5           (i)  The department shall approve or deny an amelioration
 2-6     plan not later than the 45th day after the date the department
 2-7     receives the plan.  On approval of a person's plan, the department
 2-8     shall deny a pending request for a hearing submitted by the person
 2-9     under Section 242.067(d).
2-10           (j)  The department may not offer amelioration to a person:
2-11                 (1)  more than three times in a two-year period; or
2-12                 (2)  more than one time in a two-year period for the
2-13     same or similar violation.
2-14           (k)  In this section, "immediate jeopardy to health and
2-15     safety" means a situation in which there is a high probability that
2-16     serious harm or injury to a resident could occur at any time or
2-17     already has occurred and may occur again if the resident is not
2-18     protected from the harm or if the threat is not removed.
2-19           SECTION 2.  Section 252.071, Health and Safety Code, is
2-20     amended to read as follows:
2-21           Sec. 252.071.  AMELIORATION OF VIOLATION.  (a)  In lieu of
2-22     demanding [ordering] payment of an administrative penalty
2-23     authorized by this subchapter, the department may allow [require] a
2-24     person subject to the penalty to use, under the supervision of the
2-25     department, all or part of the amount of the penalty to ameliorate
2-26     the violation or to improve services, other than administrative
2-27     services, in the facility affected by the violation.
2-28           (b)  The department shall offer amelioration to a person for
2-29     a charged violation if the department determines that the violation
2-30     does not constitute immediate jeopardy to the health and safety of
2-31     a facility resident.
2-32           (c)  The department may not offer amelioration to a person if
2-33     the department determines that the charged violation constitutes
2-34     immediate jeopardy to the health and safety of a facility resident.
2-35           (d)  The department shall offer amelioration to a person
2-36     under this section not later than the 10th day after the date the
2-37     person receives from the department a final notification of
2-38     assessment of administrative penalty that is sent to the person
2-39     after an informal dispute resolution process but before an
2-40     administrative hearing under Section 252.067.
2-41           (e)  A person to whom amelioration has been offered must file
2-42     a plan for amelioration not later than the 45th day after the date
2-43     the person receives the offer of amelioration from the department.
2-44     In submitting the plan, the person must agree to waive the person's
2-45     right to an administrative hearing under Section 252.067 if the
2-46     department approves the plan.
2-47           (f)  At a minimum, a plan for amelioration must:
2-48                 (1)  propose changes to the management or operation of
2-49     the facility that will improve services to or quality of care of
2-50     residents of the facility;
2-51                 (2)  identify, through measurable outcomes, the ways in
2-52     which and the extent to which the proposed changes will improve
2-53     services to or quality of care of residents of the facility;
2-54                 (3)  establish clear goals to be achieved through the
2-55     proposed changes;
2-56                 (4)  establish a timeline for implementing the proposed
2-57     changes; and
2-58                 (5)  identify specific actions necessary to implement
2-59     the  proposed changes.
2-60           (g)  A plan for amelioration may include proposed changes to:
2-61                 (1)  improve staff recruitment and retention;
2-62                 (2)  offer or improve dental services for residents;
2-63     and
2-64                 (3)  improve the overall quality of life for residents.
2-65           (h)  The department may require that an amelioration plan
2-66     propose changes that would result in conditions that exceed the
2-67     requirements of this chapter or the rules adopted under this
2-68     chapter.
2-69           (i)  The department shall approve or deny an amelioration
 3-1     plan not later than the 45th day after the date the department
 3-2     receives the plan.  On approval of a person's plan, the department
 3-3     shall deny a pending request for a hearing submitted by the person
 3-4     under Section 252.066(b).
 3-5           (j)  The department may not offer amelioration to a person:
 3-6                 (1)  more than three times in a two-year period; or
 3-7                 (2)  more than one time in a two-year period for the
 3-8     same or similar violation.
 3-9           (k)  In this section, "immediate jeopardy to health and
3-10     safety" means a situation in which there is a high probability that
3-11     serious harm or injury to a resident could occur at any time or
3-12     already has occurred and may occur again if the resident is not
3-13     protected from the harm or if the threat is not removed.
3-14           SECTION 3.  This Act takes effect September 1, 2001, and
3-15     applies only to a violation that occurs on or after that date.  A
3-16     violation that occurs before the effective date of this Act is
3-17     covered by the law in effect on the date the violation occurred,
3-18     and the former law is continued in effect for that purpose.
3-19                                  * * * * *