By: Moncrief S.B. No. 1593
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to nursing institutions, assisted living facilities, and
1-3 intermediate care facilities for the mentally retarded.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 22, Human Resources Code, is amended by
1-6 adding Section 22.037 to read as follows:
1-7 Sec. 22.037. TRAINING AND CONTINUING EDUCATION RELATED TO
1-8 CERTAIN LONG-TERM CARE FACILITIES. (a) In this section:
1-9 (1) "Long-term care facility" means a nursing
1-10 institution, an assisted living facility, or an intermediate care
1-11 facility for the mentally retarded licensed under Chapter 242, 247,
1-12 or 252, Health and Safety Code.
1-13 (2) "Provider" means an employee or agent of a
1-14 long-term care facility.
1-15 (3) "Surveyor" means an employee or agent of the
1-16 department or another state agency responsible for licensing,
1-17 inspecting, surveying, or investigating a long-term care facility
1-18 in relation to:
1-19 (A) licensing under Chapter 242, 247, or 252,
1-20 Health and Safety Code; or
1-21 (B) certification for participation in the
1-22 medical assistance program in accordance with Chapter 32.
1-23 (b) The department shall require a surveyor to complete a
1-24 basic training program before the surveyor inspects, surveys, or
1-25 investigates a long-term care facility. The training must include
2-1 observation of the operations of a long-term care facility
2-2 unrelated to the survey, inspection, or investigation process for a
2-3 minimum of 10 working days within a 14-day period.
2-4 (c) The department shall semiannually provide training for
2-5 surveyors and providers on subjects that address at least one of
2-6 the 10 most common violations by long-term care facilities under
2-7 federal or state law.
2-8 (d) Except as provided by Subsection (e), a surveyor who is
2-9 a health care professional licensed under the laws of this state
2-10 must receive a minimum of 50 percent of the professional's required
2-11 continuing education credits, if any, in gerontology or care for
2-12 individuals with cognitive or physical disabilities, as
2-13 appropriate.
2-14 (e) A surveyor who is a pharmacist must receive a minimum of
2-15 30 percent of the pharmacist's required continuing education
2-16 credits in gerontology or care for individuals with cognitive or
2-17 physical disabilities, as appropriate.
2-18 SECTION 2. Subchapter B, Chapter 531, Government Code, is
2-19 amended by adding Sections 531.056, 531.057, and 531.058 to read as
2-20 follows:
2-21 Sec. 531.056. REVIEW OF SURVEY PROCESS IN CERTAIN
2-22 INSTITUTIONS AND FACILITIES. (a) The commission shall adopt
2-23 procedures to review:
2-24 (1) citations or penalties assessed for a violation of
2-25 a rule or law against an institution or facility licensed under
2-26 Chapter 242, 247, or 252, Health and Safety Code, or certified in
3-1 accordance with Chapter 32, Human Resources Code, considering:
3-2 (A) the number of violations by geographic
3-3 region;
3-4 (B) the patterns of violations in each region;
3-5 and
3-6 (C) the outcomes following the assessment of a
3-7 penalty or citation; and
3-8 (2) the performance of duties by employees and agents
3-9 of the Texas Department of Human Services or another state agency
3-10 responsible for licensing, inspecting, surveying, or investigating
3-11 institutions and facilities licensed under Chapter 242, 247, or
3-12 252, Health and Safety Code, or certified in accordance with
3-13 Chapter 32, Human Resources Code, related to:
3-14 (A) complaints received by the commission; or
3-15 (B) any standards or rules violated by an
3-16 employee or agent of a state agency.
3-17 (b) The commission shall annually report to the speaker of
3-18 the house of representatives, the lieutenant governor, and the
3-19 governor on the findings of the review conducted under Subsection
3-20 (a).
3-21 Sec. 531.057. QUALITY ASSURANCE EARLY WARNING SYSTEM FOR
3-22 LONG-TERM CARE FACILITIES; RAPID RESPONSE TEAMS. (a) In this
3-23 section:
3-24 (1) "Long-term care facility" means a nursing
3-25 institution, an assisted living facility, or an intermediate care
3-26 facility for the mentally retarded licensed under Chapter 242, 247,
4-1 or 252, Health and Safety Code, or certified under Chapter 32,
4-2 Human Resources Code.
4-3 (2) "Quality-of-care monitor" means a registered
4-4 nurse, pharmacist, or nutritionist who:
4-5 (A) is employed by the commission;
4-6 (B) is trained and experienced in long-term care
4-7 facility regulation, standards of practice in long-term care, and
4-8 evaluation of patient care; and
4-9 (C) functions independently of the Texas
4-10 Department of Human Services.
4-11 (b) The commission shall establish an early warning system
4-12 to detect conditions that could be detrimental to the health,
4-13 safety, and welfare of residents. The early warning system shall
4-14 include analysis of financial and quality-of-care indicators that
4-15 would predict the need for the commission to take action.
4-16 (c) The commission shall establish regional offices with one
4-17 or more quality-of-care monitors, based on the number of long-term
4-18 care facilities in the region, to monitor the facilities in the
4-19 region on a regular, unannounced, aperiodic basis, including
4-20 nights, evenings, weekends, and holidays.
4-21 (d) Priority for monitoring visits shall be given to
4-22 long-term care facilities with a history of patient care
4-23 deficiencies.
4-24 (e) Quality-of-care monitors may not be deployed by the
4-25 commission as a part of the regional survey team in the conduct of
4-26 routine, scheduled surveys.
5-1 (f) Quality-of-care monitors shall assess:
5-2 (1) the overall quality of life in the long-term care
5-3 facility; and
5-4 (2) specific conditions in the facility directly
5-5 related to patient care.
5-6 (g) The quality-of-care monitor shall include in an
5-7 assessment visit:
5-8 (1) observation of the care and services rendered to
5-9 residents; and
5-10 (2) formal and informal interviews with residents,
5-11 family members, facility staff, resident guests, volunteers, other
5-12 regulatory staff, and representatives of a human rights advocacy
5-13 committee.
5-14 (h) The identity of a resident or a family member of a
5-15 resident interviewed by a quality-of-care monitor as provided by
5-16 Subsection (g)(2) shall remain confidential and may not be
5-17 disclosed to any person under any other provision of this section.
5-18 (i) The findings of a monitoring visit, both positive and
5-19 negative, shall be provided orally and in writing to the long-term
5-20 care facility administrator or, in the absence of the facility
5-21 administrator, to the administrator on duty or the director of
5-22 nursing.
5-23 (j) The quality-of-care monitor may recommend to the
5-24 long-term care facility administrator procedural and policy changes
5-25 and staff training to improve the care or quality of life of
5-26 facility residents.
6-1 (k) Conditions observed by the quality-of-care monitor that
6-2 create an immediate threat to the health or safety of a resident
6-3 shall be reported immediately to the regional office supervisor for
6-4 appropriate action and, as appropriate or as required by law, to
6-5 law enforcement, adult protective services, or other responsible
6-6 agencies.
6-7 (l) Except as provided by Subsections (m), (n), and (o), any
6-8 record, whether written or oral, or any written or oral
6-9 communication may not be subject to discovery or introduction into
6-10 evidence in any civil or administrative action against a long-term
6-11 care facility arising out of matters that are the subject of
6-12 quality-of-care monitoring, and a person who was in attendance at a
6-13 monitoring visit or evaluation may not be permitted or required to
6-14 testify in any civil or administrative action as to any evidence or
6-15 other matters produced or presented during the monitoring visits or
6-16 evaluations.
6-17 (m) Information, documents, or records otherwise available
6-18 from other sources are not immune from discovery or use in a civil
6-19 or administrative action solely because the information, document,
6-20 or record was reviewed in connection with quality-of-care
6-21 monitoring.
6-22 (n) A person who participates in quality-of-care monitoring
6-23 visits or evaluations may not be prevented from testifying as to
6-24 matters within the person's knowledge, but may not be asked about
6-25 the person's participation in the activities.
6-26 (o) The exclusion from discovery or introduction of evidence
7-1 under this section in any civil or administrative action does not
7-2 apply when the quality-of-care monitor makes a report to the
7-3 appropriate authorities regarding a threat to the health or safety
7-4 of a resident.
7-5 (p) The commission shall create rapid response teams
7-6 composed of health care experts that can visit long-term care
7-7 facilities identified through the commission's early warning
7-8 system.
7-9 (q) Rapid response teams may visit long-term care facilities
7-10 that request the commission's assistance.
7-11 (r) The rapid response teams may not be deployed for the
7-12 purpose of helping a long-term care facility prepare for a regular
7-13 inspection or survey conducted under Chapter 242, 247, or 252,
7-14 Health and Safety Code, or in accordance with Chapter 32, Human
7-15 Resources Code.
7-16 Sec. 531.058. INFORMAL DISPUTE RESOLUTION FOR CERTAIN
7-17 LONG-TERM CARE FACILITIES. (a) The commission by rule shall
7-18 establish an informal dispute resolution process in accordance with
7-19 this section. The process must provide for adjudication by an
7-20 appropriate disinterested person of disputes relating to a proposed
7-21 enforcement action or related proceeding of the Texas Department of
7-22 Human Services under Section 32.021(d), Human Resources Code, or
7-23 Chapter 242, 247, or 252, Health and Safety Code. The informal
7-24 dispute resolution process must require:
7-25 (1) the institution or facility to request informal
7-26 dispute resolution not later than the 10th calendar day after
8-1 notification by the department of the violation of a standard or
8-2 standards;
8-3 (2) the commission to complete the process not later
8-4 than the 30th calendar day after receipt of a request from the
8-5 institution or facility for informal dispute resolution; and
8-6 (3) any individual representing an institution or
8-7 facility in an informal dispute resolution process to register with
8-8 the commission and disclose the following:
8-9 (A) the individual's employment history during
8-10 the preceding five years, including employment in regulatory
8-11 agencies of this state and other states;
8-12 (B) ownership, including the identity of the
8-13 controlling person or persons, of the institution or facility the
8-14 individual is representing before the commission; and
8-15 (C) the identity of other entities the
8-16 individual represents or has represented before the commission
8-17 during the previous 24 months.
8-18 (b) The commission shall adopt rules to adjudicate claims in
8-19 contested cases.
8-20 (c) The commission may not delegate its responsibility to
8-21 administer the informal dispute resolution process established by
8-22 this section to another state agency.
8-23 SECTION 3. Subsection (d), Section 32.021, Human Resources
8-24 Code, is amended to read as follows:
8-25 (d) The department shall include in its contracts for the
8-26 delivery of medical assistance by nursing facilities provisions for
9-1 monetary penalties to be assessed for violations as required by 42
9-2 U.S.C. Section 1396r, including without limitation the Omnibus
9-3 Budget Reconciliation Act (OBRA), P.L. 100-203, Nursing Home Reform
9-4 Amendments of 1987, provided that the department shall:
9-5 (1) provide for an informal dispute resolution process
9-6 in the Health and Human Services Commission as provided by Section
9-7 531.058, Government Code [department's central office; the informal
9-8 dispute resolution process shall:]
9-9 [(A) require the institution to request informal
9-10 dispute resolution no later than the 10th calendar day after
9-11 notification by the department of a violation of a standard or
9-12 standards;]
9-13 [(B) require the department to complete the
9-14 process no later than the 30th calendar day after receipt of a
9-15 request from the institution for informal dispute resolution; and]
9-16 [(C) require any individual representing an
9-17 institution in an informal dispute resolution process to register
9-18 with the department and disclose the following:]
9-19 [(i) the individual's five-year employment
9-20 history during the preceding five years, including employment in
9-21 regulatory agencies of this state and other states;]
9-22 [(ii) ownership, including the identity of
9-23 the controlling person or persons, of the institution the person is
9-24 representing before the department; and]
9-25 [(iii) the identity of other entities the
9-26 person represents or has represented before the agency during the
10-1 previous 24 months]; and
10-2 (2) develop rules to adjudicate claims in contested
10-3 cases, including claims unresolved by the informal dispute
10-4 resolution process of the Health and Human Services Commission.
10-5 SECTION 4. Not later than January 1, 2002, the commissioner
10-6 of health and human services shall adopt any rules necessary to
10-7 implement Sections 531.056, 531.057, and 531.058, Government Code,
10-8 as added by this Act.
10-9 SECTION 5. Not later than January 1, 2002, the Texas
10-10 Department of Human Services shall develop training necessary to
10-11 implement Section 22.037, Human Resources Code, as added by this
10-12 Act.
10-13 SECTION 6. Effective January 1, 2002:
10-14 (1) all property and records in the custody of the
10-15 Texas Department of Human Services related to the informal dispute
10-16 resolution function under Subsection (d), Section 32.021, Human
10-17 Resources Code, as it existed before amendment by this Act, and all
10-18 funds appropriated by the legislature to the Texas Department of
10-19 Human Services for the function are transferred to the Health and
10-20 Human Services Commission;
10-21 (2) a rule or form adopted by the Texas Department of
10-22 Human Services that relates to the informal dispute resolution
10-23 function under Subsection (d), Section 32.021, Human Resources
10-24 Code, as it existed before amendment by this Act, is a rule or form
10-25 of the Health and Human Services Commission and remains in effect
10-26 until altered by that agency;
11-1 (3) the assumption of the informal dispute resolution
11-2 function by the Health and Human Services Commission does not
11-3 affect or impair any act done, any obligation, right, order,
11-4 license, permit, rule, criterion, standard, or requirement
11-5 existing, any investigation begun, or any penalty accrued under
11-6 former law, and that law remains in effect for any action
11-7 concerning those matters; and
11-8 (4) an action brought or proceeding commenced before
11-9 the assumption by the Health and Human Services Commission of the
11-10 informal dispute resolution function under this Act is effected,
11-11 including a contested case or a remand of an action or proceeding
11-12 by a reviewing court, is governed by the law and rules applicable
11-13 to the action or proceeding before the date of the assumption of
11-14 the function by the Health and Human Services Commission.
11-15 SECTION 7. This Act takes effect September 1, 2001.