By Moncrief S.B. No. 1593
77R7415 YDB-D
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
2-1 investigates a long-term care facility. The training must include
2-2 observation of the operations of a long-term care facility
2-3 unrelated to the survey, inspection, or investigation process for a
2-4 minimum of 10 working days within a 14-day period.
2-5 (c) The department shall semiannually provide training for
2-6 surveyors and providers on subjects that address at least one of
2-7 the 10 most common violations by long-term care facilities under
2-8 federal or state law.
2-9 (d) Except as provided by Subsection (e), a surveyor who is
2-10 a health care professional licensed under the laws of this state
2-11 must receive a minimum of 50 percent of the professional's required
2-12 continuing education credits, if any, in geriatric care.
2-13 (e) A surveyor who is a pharmacist must receive a minimum of
2-14 30 percent of the pharmacist's required continuing education
2-15 credits in geriatric care.
2-16 SECTION 2. Subchapter B, Chapter 531, Government Code, is
2-17 amended by adding Sections 531.056, 531.057, and 531.058 to read as
2-18 follows:
2-19 Sec. 531.056. REVIEW OF SURVEY PROCESS IN CERTAIN
2-20 INSTITUTIONS AND FACILITIES. (a) The commission shall adopt
2-21 procedures to review:
2-22 (1) citations or penalties assessed for a violation of
2-23 a rule or law against an institution or facility licensed under
2-24 Chapter 242, 247, or 252, Health and Safety Code, or certified in
2-25 accordance with Chapter 32, Human Resources Code, considering:
2-26 (A) the number of violations by geographic
2-27 region;
3-1 (B) the patterns of violations in each region;
3-2 and
3-3 (C) the outcomes following the assessment of a
3-4 penalty or citation; and
3-5 (2) the performance of duties by employees and agents
3-6 of the Texas Department of Human Services or another state agency
3-7 responsible for licensing, inspecting, surveying, or investigating
3-8 institutions and facilities licensed under Chapter 242, 247, or
3-9 252, Health and Safety Code, or certified in accordance with
3-10 Chapter 32, Human Resources Code, related to:
3-11 (A) complaints received by the commission; or
3-12 (B) any standards or rules violated by an
3-13 employee or agent of a state agency.
3-14 (b) The commission shall annually report to the speaker of
3-15 the house of representatives, the lieutenant governor, and the
3-16 governor on the findings of the review conducted under Subsection
3-17 (a).
3-18 Sec. 531.057. QUALITY ASSURANCE EARLY WARNING SYSTEM FOR
3-19 LONG-TERM CARE FACILITIES; RAPID RESPONSE TEAMS. (a) In this
3-20 section:
3-21 (1) "Long-term care facility" means a nursing
3-22 institution, an assisted living facility, or an intermediate care
3-23 facility for the mentally retarded licensed under Chapter 242, 247,
3-24 or 252, Health and Safety Code, or certified under Chapter 32,
3-25 Human Resources Code.
3-26 (2) "Quality-of-care monitor" means a registered nurse
3-27 who:
4-1 (A) is employed by the commission;
4-2 (B) is trained and experienced in long-term care
4-3 facility regulation, standards of practice in long-term care, and
4-4 evaluation of patient care; and
4-5 (C) functions independently of the Texas
4-6 Department of Human Services.
4-7 (b) The commission shall establish an early warning system
4-8 to detect conditions that could be detrimental to the health,
4-9 safety, and welfare of residents. The early warning system shall
4-10 include analysis of financial and quality-of-care indicators that
4-11 would predict the need for the commission to take action.
4-12 (c) The commission shall establish regional offices with one
4-13 or more quality-of-care monitors, based on the number of long-term
4-14 care facilities in the region, to monitor the facilities in the
4-15 region on a regular, unannounced, aperiodic basis, including
4-16 nights, evenings, weekends, and holidays.
4-17 (d) Priority for monitoring visits shall be given to
4-18 long-term care facilities with a history of patient care
4-19 deficiencies.
4-20 (e) Quality-of-care monitors may not be deployed by the
4-21 commission as a part of the regional survey team in the conduct of
4-22 routine, scheduled surveys.
4-23 (f) Quality-of-care monitors shall assess:
4-24 (1) the overall quality of life in the long-term care
4-25 facility; and
4-26 (2) specific conditions in the facility directly
4-27 related to patient care.
5-1 (g) The quality-of-care monitor shall include in an
5-2 assessment visit:
5-3 (1) observation of the care and services rendered to
5-4 residents; and
5-5 (2) formal and informal interviews with residents,
5-6 family members, facility staff, resident guests, volunteers, other
5-7 regulatory staff, and representatives of a human rights advocacy
5-8 committee.
5-9 (h) The findings of a monitoring visit, both positive and
5-10 negative, shall be provided orally and in writing to the long-term
5-11 care facility administrator or, in the absence of the facility
5-12 administrator, to the administrator on duty or the director of
5-13 nursing.
5-14 (i) The quality-of-care monitor may recommend to the
5-15 long-term care facility administrator procedural and policy changes
5-16 and staff training to improve the care or quality of life of
5-17 facility residents.
5-18 (j) Conditions observed by the quality-of-care monitor that
5-19 threaten the health or safety of a resident shall be reported
5-20 immediately to the regional office supervisor for appropriate
5-21 action and, as appropriate or as required by law, to law
5-22 enforcement, adult protective services, or other responsible
5-23 agencies.
5-24 (k) Any record, whether written or oral, or any written or
5-25 oral communication may not be subject to discovery or introduction
5-26 into evidence in any civil or administrative action against a
5-27 long-term care facility arising out of matters that are the subject
6-1 of quality-of-care monitoring, and a person who was in attendance
6-2 at a monitoring visit or evaluation may not be permitted or
6-3 required to testify in any civil or administrative action as to any
6-4 evidence or other matters produced or presented during the
6-5 monitoring visits or evaluations.
6-6 (l) Information, documents, or records otherwise available
6-7 from other sources are not immune from discovery or use in a civil
6-8 or administrative action solely because the information, document,
6-9 or record was reviewed in connection with quality-of-care
6-10 monitoring.
6-11 (m) A person who participates in quality-of-care monitoring
6-12 visits or evaluations may not be prevented from testifying as to
6-13 matters within the person's knowledge, but may not be asked about
6-14 the person's participation in the activities.
6-15 (n) The exclusion from discovery or introduction of evidence
6-16 under this section in any civil or administrative action does not
6-17 apply when the quality-of-care monitor makes a report to the
6-18 appropriate authorities regarding a threat to the health or safety
6-19 of a resident.
6-20 (o) The commission shall create rapid response teams
6-21 composed of health care experts that can visit long-term care
6-22 facilities identified through the commission's early warning
6-23 system.
6-24 (p) Rapid response teams may visit long-term care facilities
6-25 that request the commission's assistance.
6-26 (q) The rapid response teams may not be deployed for the
6-27 purpose of helping a long-term care facility prepare for a regular
7-1 inspection or survey conducted under Chapter 242, 247, or 252,
7-2 Health and Safety Code, or in accordance with Chapter 32, Human
7-3 Resources Code.
7-4 Sec. 531.058. INFORMAL DISPUTE RESOLUTION FOR CERTAIN
7-5 LONG-TERM CARE FACILITIES. (a) The commission by rule shall
7-6 establish an informal dispute resolution process in accordance with
7-7 this section. The process must provide for adjudication by an
7-8 appropriate disinterested person of disputes relating to a proposed
7-9 enforcement action or related proceeding of the Texas Department of
7-10 Human Services under Section 32.021(d), Human Resources Code, or
7-11 Chapter 242, 247, or 252, Health and Safety Code. The informal
7-12 dispute resolution process must require:
7-13 (1) the institution or facility to request informal
7-14 dispute resolution not later than the 10th calendar day after
7-15 notification by the department of the violation of a standard or
7-16 standards;
7-17 (2) the commission to complete the process not later
7-18 than the 30th calendar day after receipt of a request from the
7-19 institution or facility for informal dispute resolution; and
7-20 (3) any individual representing an institution or
7-21 facility in an informal dispute resolution process to register with
7-22 the commission and disclose the following:
7-23 (A) the individual's employment history during
7-24 the preceding five years, including employment in regulatory
7-25 agencies of this state and other states;
7-26 (B) ownership, including the identity of the
7-27 controlling person or persons, of the institution or facility the
8-1 individual is representing before the commission; and
8-2 (C) the identity of other entities the
8-3 individual represents or has represented before the agency during
8-4 the previous 24 months.
8-5 (b) The commission shall adopt rules to adjudicate claims in
8-6 contested cases.
8-7 (c) Before the informal dispute resolution is conducted, an
8-8 attorney for the commission shall:
8-9 (1) review the evidence of violation identified in a
8-10 survey or inspection; and
8-11 (2) ensure the evidence contains facts sufficient to
8-12 establish a prima facie case of failure by the institution or
8-13 facility to comply with federal or state law.
8-14 (d) The Texas Department of Human Services may not pursue a
8-15 monetary penalty in relation to a violation if the evidence of the
8-16 violation does not meet the requirements of Subsection (c)(2).
8-17 (e) The commission may not delegate its responsibility to
8-18 administer the informal dispute resolution process established by
8-19 this section to another state agency.
8-20 SECTION 3. Section 32.021(d), Human Resources Code, is
8-21 amended to read as follows:
8-22 (d) The department shall include in its contracts for the
8-23 delivery of medical assistance by nursing facilities provisions for
8-24 monetary penalties to be assessed for violations as required by 42
8-25 U.S.C. Section 1396r, including without limitation the Omnibus
8-26 Budget Reconciliation Act (OBRA), P.L. 100-203, Nursing Home Reform
8-27 Amendments of 1987, provided that the department shall:
9-1 (1) provide for an informal dispute resolution process
9-2 in the Health and Human Services Commission as provided by Section
9-3 531.058, Government Code [department's central office; the informal
9-4 dispute resolution process shall:]
9-5 [(A) require the institution to request informal
9-6 dispute resolution no later than the 10th calendar day after
9-7 notification by the department of a violation of a standard or
9-8 standards;]
9-9 [(B) require the department to complete the
9-10 process no later than the 30th calendar day after receipt of a
9-11 request from the institution for informal dispute resolution; and]
9-12 [(C) require any individual representing an
9-13 institution in an informal dispute resolution process to register
9-14 with the department and disclose the following:]
9-15 [(i) the individual's five-year employment
9-16 history during the preceding five years, including employment in
9-17 regulatory agencies of this state and other states;]
9-18 [(ii) ownership, including the identity of
9-19 the controlling person or persons, of the institution the person is
9-20 representing before the department; and]
9-21 [(iii) the identity of other entities the
9-22 person represents or has represented before the agency during the
9-23 previous 24 months]; and
9-24 (2) develop rules to adjudicate claims in contested
9-25 cases, including claims unresolved by the informal dispute
9-26 resolution process of the Health and Human Services Commission.
9-27 SECTION 4. Not later than January 1, 2002, the commissioner
10-1 of health and human services shall adopt any rules necessary to
10-2 implement Sections 531.056, 531.057, and 531.058, Government Code,
10-3 as added by this Act.
10-4 SECTION 5. Not later than January 1, 2002, the Texas
10-5 Department of Human Services shall develop training necessary to
10-6 implement Section 22.037, Human Resources Code, as added by this
10-7 Act.
10-8 SECTION 6. Effective January 1, 2002:
10-9 (1) all property and records in the custody of the
10-10 Texas Department of Human Services related to the informal dispute
10-11 resolution function under Section 32.021(d), Human Resources Code,
10-12 as it existed before amendment by this Act, and all funds
10-13 appropriated by the legislature to the Texas Department of Human
10-14 Services for the function are transferred to the Health and Human
10-15 Services Commission;
10-16 (2) a rule or form adopted by the Texas Department of
10-17 Human Services that relates to the informal dispute resolution
10-18 function under Section 32.021(d), Human Resources Code, as it
10-19 existed before amendment by this Act, is a rule or form of the
10-20 Health and Human Services Commission and remains in effect until
10-21 altered by that agency;
10-22 (3) the assumption of the informal dispute resolution
10-23 function by the Health and Human Services Commission does not
10-24 affect or impair any act done, any obligation, right, order,
10-25 license, permit, rule, criterion, standard, or requirement
10-26 existing, any investigation begun, or any penalty accrued under
10-27 former law, and that law remains in effect for any action
11-1 concerning those matters; and
11-2 (4) an action brought or proceeding commenced before
11-3 the assumption by the Health and Human Services Commission of the
11-4 informal dispute resolution function under this Act is effected,
11-5 including a contested case or a remand of an action or proceeding
11-6 by a reviewing court, is governed by the law and rules applicable
11-7 to the action or proceeding before the date of the assumption of
11-8 the function by the Health and Human Services Commission.
11-9 SECTION 7. This Act takes effect September 1, 2001.