1-1 By: Moncrief S.B. No. 1593
1-2 (In the Senate - Filed March 9, 2001; March 14, 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 7, Nays 0; April 2, 2001,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1593 By: Moncrief
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to nursing institutions, assisted living facilities, and
1-11 intermediate care facilities for the mentally retarded.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Chapter 22, Human Resources Code, is amended by
1-14 adding Section 22.037 to read as follows:
1-15 Sec. 22.037. TRAINING AND CONTINUING EDUCATION RELATED TO
1-16 CERTAIN LONG-TERM CARE FACILITIES. (a) In this section:
1-17 (1) "Long-term care facility" means a nursing
1-18 institution, an assisted living facility, or an intermediate care
1-19 facility for the mentally retarded licensed under Chapter 242, 247,
1-20 or 252, Health and Safety Code.
1-21 (2) "Provider" means an employee or agent of a
1-22 long-term care facility.
1-23 (3) "Surveyor" means an employee or agent of the
1-24 department or another state agency responsible for licensing,
1-25 inspecting, surveying, or investigating a long-term care facility
1-26 in relation to:
1-27 (A) licensing under Chapter 242, 247, or 252,
1-28 Health and Safety Code; or
1-29 (B) certification for participation in the
1-30 medical assistance program in accordance with Chapter 32.
1-31 (b) The department shall require a surveyor to complete a
1-32 basic training program before the surveyor inspects, surveys, or
1-33 investigates a long-term care facility. The training must include
1-34 observation of the operations of a long-term care facility
1-35 unrelated to the survey, inspection, or investigation process for a
1-36 minimum of 10 working days within a 14-day period.
1-37 (c) The department shall semiannually provide training for
1-38 surveyors and providers on subjects that address at least one of
1-39 the 10 most common violations by long-term care facilities under
1-40 federal or state law.
1-41 (d) Except as provided by Subsection (e), a surveyor who is
1-42 a health care professional licensed under the laws of this state
1-43 must receive a minimum of 50 percent of the professional's required
1-44 continuing education credits, if any, in gerontology.
1-45 (e) A surveyor who is a pharmacist must receive a minimum of
1-46 30 percent of the pharmacist's required continuing education
1-47 credits in gerontology.
1-48 SECTION 2. Subchapter B, Chapter 531, Government Code, is
1-49 amended by adding Sections 531.056, 531.057, and 531.058 to read as
1-50 follows:
1-51 Sec. 531.056. REVIEW OF SURVEY PROCESS IN CERTAIN
1-52 INSTITUTIONS AND FACILITIES. (a) The commission shall adopt
1-53 procedures to review:
1-54 (1) citations or penalties assessed for a violation of
1-55 a rule or law against an institution or facility licensed under
1-56 Chapter 242, 247, or 252, Health and Safety Code, or certified in
1-57 accordance with Chapter 32, Human Resources Code, considering:
1-58 (A) the number of violations by geographic
1-59 region;
1-60 (B) the patterns of violations in each region;
1-61 and
1-62 (C) the outcomes following the assessment of a
1-63 penalty or citation; and
1-64 (2) the performance of duties by employees and agents
2-1 of the Texas Department of Human Services or another state agency
2-2 responsible for licensing, inspecting, surveying, or investigating
2-3 institutions and facilities licensed under Chapter 242, 247, or
2-4 252, Health and Safety Code, or certified in accordance with
2-5 Chapter 32, Human Resources Code, related to:
2-6 (A) complaints received by the commission; or
2-7 (B) any standards or rules violated by an
2-8 employee or agent of a state agency.
2-9 (b) The commission shall annually report to the speaker of
2-10 the house of representatives, the lieutenant governor, and the
2-11 governor on the findings of the review conducted under Subsection
2-12 (a).
2-13 Sec. 531.057. QUALITY ASSURANCE EARLY WARNING SYSTEM FOR
2-14 LONG-TERM CARE FACILITIES; RAPID RESPONSE TEAMS. (a) In this
2-15 section:
2-16 (1) "Long-term care facility" means a nursing
2-17 institution, an assisted living facility, or an intermediate care
2-18 facility for the mentally retarded licensed under Chapter 242, 247,
2-19 or 252, Health and Safety Code, or certified under Chapter 32,
2-20 Human Resources Code.
2-21 (2) "Quality-of-care monitor" means a registered
2-22 nurse, pharmacist, or nutritionist who:
2-23 (A) is employed by the commission;
2-24 (B) is trained and experienced in long-term care
2-25 facility regulation, standards of practice in long-term care, and
2-26 evaluation of patient care; and
2-27 (C) functions independently of the Texas
2-28 Department of Human Services.
2-29 (b) The commission shall establish an early warning system
2-30 to detect conditions that could be detrimental to the health,
2-31 safety, and welfare of residents. The early warning system shall
2-32 include analysis of financial and quality-of-care indicators that
2-33 would predict the need for the commission to take action.
2-34 (c) The commission shall establish regional offices with one
2-35 or more quality-of-care monitors, based on the number of long-term
2-36 care facilities in the region, to monitor the facilities in the
2-37 region on a regular, unannounced, aperiodic basis, including
2-38 nights, evenings, weekends, and holidays.
2-39 (d) Priority for monitoring visits shall be given to
2-40 long-term care facilities with a history of patient care
2-41 deficiencies.
2-42 (e) Quality-of-care monitors may not be deployed by the
2-43 commission as a part of the regional survey team in the conduct of
2-44 routine, scheduled surveys.
2-45 (f) Quality-of-care monitors shall assess:
2-46 (1) the overall quality of life in the long-term care
2-47 facility; and
2-48 (2) specific conditions in the facility directly
2-49 related to patient care.
2-50 (g) The quality-of-care monitor shall include in an
2-51 assessment visit:
2-52 (1) observation of the care and services rendered to
2-53 residents; and
2-54 (2) formal and informal interviews with residents,
2-55 family members, facility staff, resident guests, volunteers, other
2-56 regulatory staff, and representatives of a human rights advocacy
2-57 committee.
2-58 (h) The identity of a resident or a family member of a
2-59 resident interviewed by a quality-of-care monitor as provided by
2-60 Subsection (g)(2) shall remain confidential and may not be
2-61 disclosed to any person under any other provision of this section.
2-62 (i) The findings of a monitoring visit, both positive and
2-63 negative, shall be provided orally and in writing to the long-term
2-64 care facility administrator or, in the absence of the facility
2-65 administrator, to the administrator on duty or the director of
2-66 nursing.
2-67 (j) The quality-of-care monitor may recommend to the
2-68 long-term care facility administrator procedural and policy changes
2-69 and staff training to improve the care or quality of life of
3-1 facility residents.
3-2 (k) Conditions observed by the quality-of-care monitor that
3-3 create an immediate threat to the health or safety of a resident
3-4 shall be reported immediately to the regional office supervisor for
3-5 appropriate action and, as appropriate or as required by law, to
3-6 law enforcement, adult protective services, or other responsible
3-7 agencies.
3-8 (l) Except as provided by Subsections (m), (n), and (o), any
3-9 record, whether written or oral, or any written or oral
3-10 communication may not be subject to discovery or introduction into
3-11 evidence in any civil or administrative action against a long-term
3-12 care facility arising out of matters that are the subject of
3-13 quality-of-care monitoring, and a person who was in attendance at a
3-14 monitoring visit or evaluation may not be permitted or required to
3-15 testify in any civil or administrative action as to any evidence or
3-16 other matters produced or presented during the monitoring visits or
3-17 evaluations.
3-18 (m) Information, documents, or records otherwise available
3-19 from other sources are not immune from discovery or use in a civil
3-20 or administrative action solely because the information, document,
3-21 or record was reviewed in connection with quality-of-care
3-22 monitoring.
3-23 (n) A person who participates in quality-of-care monitoring
3-24 visits or evaluations may not be prevented from testifying as to
3-25 matters within the person's knowledge, but may not be asked about
3-26 the person's participation in the activities.
3-27 (o) The exclusion from discovery or introduction of evidence
3-28 under this section in any civil or administrative action does not
3-29 apply when the quality-of-care monitor makes a report to the
3-30 appropriate authorities regarding a threat to the health or safety
3-31 of a resident.
3-32 (p) The commission shall create rapid response teams
3-33 composed of health care experts that can visit long-term care
3-34 facilities identified through the commission's early warning
3-35 system.
3-36 (q) Rapid response teams may visit long-term care facilities
3-37 that request the commission's assistance.
3-38 (r) The rapid response teams may not be deployed for the
3-39 purpose of helping a long-term care facility prepare for a regular
3-40 inspection or survey conducted under Chapter 242, 247, or 252,
3-41 Health and Safety Code, or in accordance with Chapter 32, Human
3-42 Resources Code.
3-43 Sec. 531.058. INFORMAL DISPUTE RESOLUTION FOR CERTAIN
3-44 LONG-TERM CARE FACILITIES. (a) The commission by rule shall
3-45 establish an informal dispute resolution process in accordance with
3-46 this section. The process must provide for adjudication by an
3-47 appropriate disinterested person of disputes relating to a proposed
3-48 enforcement action or related proceeding of the Texas Department of
3-49 Human Services under Section 32.021(d), Human Resources Code, or
3-50 Chapter 242, 247, or 252, Health and Safety Code. The informal
3-51 dispute resolution process must require:
3-52 (1) the institution or facility to request informal
3-53 dispute resolution not later than the 10th calendar day after
3-54 notification by the department of the violation of a standard or
3-55 standards;
3-56 (2) the commission to complete the process not later
3-57 than the 30th calendar day after receipt of a request from the
3-58 institution or facility for informal dispute resolution; and
3-59 (3) any individual representing an institution or
3-60 facility in an informal dispute resolution process to register with
3-61 the commission and disclose the following:
3-62 (A) the individual's employment history during
3-63 the preceding five years, including employment in regulatory
3-64 agencies of this state and other states;
3-65 (B) ownership, including the identity of the
3-66 controlling person or persons, of the institution or facility the
3-67 individual is representing before the commission; and
3-68 (C) the identity of other entities the
3-69 individual represents or has represented before the commission
4-1 during the previous 24 months.
4-2 (b) The commission shall adopt rules to adjudicate claims in
4-3 contested cases.
4-4 (c) The commission may not delegate its responsibility to
4-5 administer the informal dispute resolution process established by
4-6 this section to another state agency.
4-7 SECTION 3. Subsection (d), Section 32.021, Human Resources
4-8 Code, is amended to read as follows:
4-9 (d) The department shall include in its contracts for the
4-10 delivery of medical assistance by nursing facilities provisions for
4-11 monetary penalties to be assessed for violations as required by 42
4-12 U.S.C. Section 1396r, including without limitation the Omnibus
4-13 Budget Reconciliation Act (OBRA), P.L. 100-203, Nursing Home Reform
4-14 Amendments of 1987, provided that the department shall:
4-15 (1) provide for an informal dispute resolution process
4-16 in the Health and Human Services Commission as provided by Section
4-17 531.058, Government Code [department's central office; the informal
4-18 dispute resolution process shall:]
4-19 [(A) require the institution to request informal
4-20 dispute resolution no later than the 10th calendar day after
4-21 notification by the department of a violation of a standard or
4-22 standards;]
4-23 [(B) require the department to complete the
4-24 process no later than the 30th calendar day after receipt of a
4-25 request from the institution for informal dispute resolution; and]
4-26 [(C) require any individual representing an
4-27 institution in an informal dispute resolution process to register
4-28 with the department and disclose the following:]
4-29 [(i) the individual's five-year employment
4-30 history during the preceding five years, including employment in
4-31 regulatory agencies of this state and other states;]
4-32 [(ii) ownership, including the identity of
4-33 the controlling person or persons, of the institution the person is
4-34 representing before the department; and]
4-35 [(iii) the identity of other entities the
4-36 person represents or has represented before the agency during the
4-37 previous 24 months]; and
4-38 (2) develop rules to adjudicate claims in contested
4-39 cases, including claims unresolved by the informal dispute
4-40 resolution process of the Health and Human Services Commission.
4-41 SECTION 4. Not later than January 1, 2002, the commissioner
4-42 of health and human services shall adopt any rules necessary to
4-43 implement Sections 531.056, 531.057, and 531.058, Government Code,
4-44 as added by this Act.
4-45 SECTION 5. Not later than January 1, 2002, the Texas
4-46 Department of Human Services shall develop training necessary to
4-47 implement Section 22.037, Human Resources Code, as added by this
4-48 Act.
4-49 SECTION 6. Effective January 1, 2002:
4-50 (1) all property and records in the custody of the
4-51 Texas Department of Human Services related to the informal dispute
4-52 resolution function under Subsection (d), Section 32.021, Human
4-53 Resources Code, as it existed before amendment by this Act, and all
4-54 funds appropriated by the legislature to the Texas Department of
4-55 Human Services for the function are transferred to the Health and
4-56 Human Services Commission;
4-57 (2) a rule or form adopted by the Texas Department of
4-58 Human Services that relates to the informal dispute resolution
4-59 function under Subsection (d), Section 32.021, Human Resources
4-60 Code, as it existed before amendment by this Act, is a rule or form
4-61 of the Health and Human Services Commission and remains in effect
4-62 until altered by that agency;
4-63 (3) the assumption of the informal dispute resolution
4-64 function by the Health and Human Services Commission does not
4-65 affect or impair any act done, any obligation, right, order,
4-66 license, permit, rule, criterion, standard, or requirement
4-67 existing, any investigation begun, or any penalty accrued under
4-68 former law, and that law remains in effect for any action
4-69 concerning those matters; and
5-1 (4) an action brought or proceeding commenced before
5-2 the assumption by the Health and Human Services Commission of the
5-3 informal dispute resolution function under this Act is effected,
5-4 including a contested case or a remand of an action or proceeding
5-5 by a reviewing court, is governed by the law and rules applicable
5-6 to the action or proceeding before the date of the assumption of
5-7 the function by the Health and Human Services Commission.
5-8 SECTION 7. This Act takes effect September 1, 2001.
5-9 * * * * *