By Moncrief                                           S.B. No. 1839
         77R15066 DLF/AJA-F                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to certain long-term care facilities.
 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-4                      ARTICLE 1.  SHORT TITLE; PURPOSE
 1-5           SECTION 1.01.  This Act may be cited as the Long-Term Care
 1-6     Facility Improvement Act.
 1-7           SECTION 1.02. (a)  The purpose of this Act is to:
 1-8                 (1)  improve the quality of care for residents in
 1-9     certain long-term care facilities in this state;
1-10                 (2)  ensure the continued availability of those
1-11     facilities for the residents of this state;
1-12                 (3)  improve the financial condition of those
1-13     facilities;
1-14                 (4)  increase the protections available to residents of
1-15     those facilities who may have liability claims against those
1-16     facilities; and
1-17                 (5)  increase the availability and improve
1-18     affordability of professional liability insurance for those
1-19     facilities.
1-20           (b)  The sole purpose of Articles 5 and 6 of this Act is to
1-21     address the crisis in availability and affordability of
1-22     professional liability insurance for certain long-term care
1-23     facilities.
1-24           (c)  This Act does not diminish the rights of residents of
 2-1     long-term care facilities or diminish the responsibilities of
 2-2     persons who own or operate long-term care facilities in this state.
 2-3         ARTICLE 2.  NOTICE OF EXEMPLARY DAMAGES IN CERTAIN ACTIONS
 2-4           SECTION 2.01. Subchapter B, Chapter 242, Health and Safety
 2-5     Code, is amended by adding Section 242.051 to read as follows:
 2-6           Sec. 242.051.  NOTIFICATION OF AWARD OF EXEMPLARY DAMAGES.
 2-7     (a)  If exemplary damages are awarded under Chapter 41, Civil
 2-8     Practice and Remedies Code, against an institution or an officer,
 2-9     employee, or agent of an institution, the court shall notify the
2-10     department.
2-11           (b)  If the department receives notice under Subsection (a),
2-12     the department shall maintain the information contained in the
2-13     notice in the records of the department relating to the history of
2-14     the institution.
2-15           SECTION 2.02. This article applies only to an award of
2-16     exemplary damages in a cause of action that accrues on or after
2-17     September 1, 2001.
2-18        ARTICLE 3.  ADMISSIBILITY OF CERTAIN EVIDENCE IN CIVIL ACTION
2-19           SECTION 3.01.  Subsections (i) and (k), Section 32.021, Human
2-20     Resources Code, are amended to read as follows:
2-21           (i)  A record of the department, including a record of
2-22     [Except as provided by Subsections (j) and (k),] a department
2-23     survey, complaint investigation, incident investigation, or survey
2-24     report, that relates to [documents that] an institution, including
2-25     an intermediate care facility for the mentally retarded, may be
2-26     introduced into evidence in a civil action, enforcement action, or
2-27     related proceeding if the record is admissible under the Texas
 3-1     Rules of Evidence [has violated a standard for participation in the
 3-2     state Medicaid program, or the assessment of a monetary penalty by
 3-3     the department or the payment of a monetary penalty by the
 3-4     institution, is not admissible as evidence in a civil action to
 3-5     prove that the institution has committed a violation].
 3-6           (k)  A department surveyor or investigator may testify in a
 3-7     civil action as to observations, factual findings, conclusions, or
 3-8     violations of requirements for licensure or for certification for
 3-9     participation in the state Medicaid program that were made in the
3-10     discharge of official duties for the department, if the testimony
3-11     is admissible under [in accordance with] the Texas Rules of [Civil]
3-12     Evidence.
3-13           SECTION 3.02. Subchapter B, Chapter 242, Health and Safety
3-14     Code, is amended by adding Section 242.050 to read as follows:
3-15           Sec. 242.050.  ADMISSIBILITY OF CERTAIN DOCUMENTS OR
3-16     TESTIMONY. Sections 32.021(i) and (k), Human Resources Code, govern
3-17     the admissibility in a civil action against an institution of:
3-18                 (1)  a record of the department described by Section
3-19     32.021(i), Human Resources Code; or
3-20                 (2)  the testimony of a department surveyor or
3-21     investigator described by Section 32.021(k), Human Resources Code.
3-22           SECTION 3.03. Subchapter B, Chapter 252, Health and Safety
3-23     Code, is amended by adding Section 252.045 to read as follows:
3-24           Sec. 252.045.  ADMISSIBILITY OF CERTAIN DOCUMENTS OR
3-25     TESTIMONY. Sections 32.021(i) and (k), Human Resources Code, govern
3-26     the admissibility in a civil action against a facility of:
3-27                 (1)  a record of the department described by Section
 4-1     32.021(i), Human Resources Code; or
 4-2                 (2)  the testimony of a department surveyor or
 4-3     investigator described by Section 32.021(k), Human Resources Code.
 4-4           SECTION 3.04. Subsection (j), Section 32.021, Human Resources
 4-5     Code, is repealed.
 4-6           SECTION 3.05. This article applies only to a civil action,
 4-7     enforcement action, or related proceeding that is commenced on or
 4-8     after the effective date of this Act.  A civil action, enforcement
 4-9     action, or related proceeding that is commenced before the
4-10     effective date of this Act is governed by the law applicable to the
4-11     action or proceeding immediately before the effective date of this
4-12     Act, and that law is continued in effect for that purpose.
4-13     ARTICLE 4.  DATA REPORTING FOR CERTAIN LIABILITY INSURANCE COVERAGE
4-14           SECTION 4.01. Chapter 38, Insurance Code, is amended by
4-15     adding Subchapter F to read as follows:
4-16         SUBCHAPTER F.  DATA REPORTING BY CERTAIN LIABILITY INSURERS
4-17           Sec. 38.251.  INSURER DATA REPORTING. (a)  Each insurer that
4-18     writes professional liability insurance policies for nursing
4-19     institutions licensed under Chapter 242, Health and Safety Code,
4-20     including an insurer whose rates are not regulated, shall, as a
4-21     condition of writing those policies in this state, comply with a
4-22     request for information from the commissioner under this section.
4-23           (b)  The commissioner may require information in rate
4-24     filings, special data calls, or informational hearings or by any
4-25     other means consistent with this code applicable to the affected
4-26     insurer that the commissioner believes will allow the commissioner
4-27     to:
 5-1                 (1)  determine whether insurers writing insurance
 5-2     coverage described by Subsection (a) are passing to insured nursing
 5-3     institutions on a prospective basis the savings that accrue as a
 5-4     result of the reduction in risk to insurers writing that coverage
 5-5     that will result from legislation enacted by the 77th Legislature,
 5-6     Regular Session, including legislation that:
 5-7                       (A)  amended Article 5.15-1 to limit the exposure
 5-8     of an insurer to exemplary damages for certain claims against a
 5-9     nursing institution; and
5-10                       (B)  amended Sections 32.021(i) and (k), Human
5-11     Resources Code, added Section 242.050, Health and Safety Code, and
5-12     repealed Section 32.021(j), Human Resources Code, to clarify the
5-13     admissibility of certain documents in a civil action against a
5-14     nursing institution; or
5-15                 (2)  prepare the report required of the commissioner
5-16     under Section 38.252 or any other report the commissioner is
5-17     required to submit to the legislature in connection with the
5-18     legislation described by Subdivision (1).
5-19           (c)  Information provided under this section is privileged
5-20     and confidential to the same extent as the information is
5-21     privileged and confidential under this code or any other law
5-22     governing an insurer described by Subsection (a).  The information
5-23     remains privileged and confidential unless and until introduced
5-24     into evidence at an administrative hearing or in a court of
5-25     competent jurisdiction.
5-26           Sec. 38.252.  RECOMMENDATIONS TO LEGISLATURE. The
5-27     commissioner shall assemble information and take other appropriate
 6-1     measures to assess and evaluate changes in the marketplace
 6-2     resulting from the implementation of the legislation described by
 6-3     Section 38.251 and shall report the commissioner's findings and
 6-4     recommendations to the legislature.
 6-5           ARTICLE 5.  AVAILABILITY OF AND COVERAGE UNDER CERTAIN
 6-6                      PROFESSIONAL LIABILITY INSURANCE
 6-7           SECTION 5.01.  Subdivision (2), Section 2, Article 5.15-1,
 6-8     Insurance Code, is amended to read as follows:
 6-9                 (2)  "Health care provider" means any person,
6-10     partnership, professional association, corporation, facility, or
6-11     institution licensed or chartered by the State of Texas to provide
6-12     health care as a registered nurse, hospital, dentist, podiatrist,
6-13     chiropractor, optometrist, pharmacist, veterinarian, not-for-profit
6-14     kidney dialysis center, blood bank that is a nonprofit corporation
6-15     chartered to operate a blood bank and which is accredited by the
6-16     American Association of Blood Banks, for-profit nursing home or
6-17     not-for-profit nursing home, or an officer, employee, or agent of
6-18     any of them acting in the course and scope of his employment.
6-19           SECTION 5.02. Section 8, Article 5.15-1, Insurance Code, is
6-20     amended to read as follows:
6-21           Sec. 8.  EXEMPLARY [PUNITIVE] DAMAGES UNDER MEDICAL
6-22     PROFESSIONAL LIABILITY INSURANCE. No policy of medical professional
6-23     liability insurance issued to or renewed for a health care provider
6-24     or physician in this state may include coverage for exemplary
6-25     [punitive] damages that may be assessed against the health care
6-26     provider or physician; provided, however, that the commissioner may
6-27     approve an endorsement form that provides for coverage for
 7-1     exemplary [punitive] damages to be used on a policy of medical
 7-2     professional liability insurance issued to a hospital, as the term
 7-3     "hospital" is defined in this article, or to a for-profit or
 7-4     not-for-profit nursing home.
 7-5           SECTION 5.03. Article 5.15-1, Insurance Code, is amended by
 7-6     adding Section 8A to read as follows:
 7-7           Sec. 8A.  INDEMNITY FOR EXEMPLARY DAMAGES. (a)  In an action
 7-8     in which a judgment has been entered against an insured nursing
 7-9     home for exemplary damages based on conduct described as a felony
7-10     in Section 22.04, Penal Code, an insurer who issues a policy of
7-11     professional liability insurance subject to this article to a
7-12     nursing home is not required to indemnify the insured nursing home
7-13     for an amount in excess of $10 million in that action related to
7-14     that conduct.
7-15           (b)  This section applies only to a professional liability
7-16     insurance policy delivered, issued for delivery, or renewed on or
7-17     after September 1, 2001, and before December 31, 2003.
7-18           (c)  A provision in a professional liability policy that
7-19     offers or affords the protections of this section after December
7-20     31, 2004, is void and unenforceable.
7-21           (d)  This section does not limit the liability of any insurer
7-22     in a circumstance in which facts exist that would enable a party to
7-23     invoke the common law theory of recovery commonly known in Texas as
7-24     the "Stowers Doctrine."
7-25           SECTION 5.04. Subchapter B, Chapter 5, Insurance Code, is
7-26     amended by adding Article 5.15-4 to read as follows:
7-27           Art. 5.15-4.  BEST PRACTICES FOR NURSING HOMES. (a)  The
 8-1     commissioner shall adopt best practices for risk management and
 8-2     loss control that may be used by for-profit and not-for-profit
 8-3     nursing homes.
 8-4           (b)  In determining rates for professional liability
 8-5     insurance applicable to a for-profit or not-for-profit nursing
 8-6     home, an insurance company or the Texas Medical Liability Insurance
 8-7     Underwriting Association may consider whether the nursing home
 8-8     adopts and implements the best practices adopted by the
 8-9     commissioner under Subsection (a) of this article.
8-10           (c)  In developing or amending best practices for for-profit
8-11     and not-for-profit nursing homes, the commissioner shall consult
8-12     with the Health and Human Services Commission and a task force
8-13     appointed by the commissioner.  The task force must be composed of
8-14     representatives of:
8-15                 (1)  insurance companies that write professional
8-16     liability insurance for nursing homes;
8-17                 (2)  the Texas Medical Liability Insurance Underwriting
8-18     Association;
8-19                 (3)  nursing homes; and
8-20                 (4)  consumers.
8-21           (d)  The best practices for risk management and loss control
8-22     adopted under this article do not establish standards of care for
8-23     nursing homes applicable in a civil action against a nursing home.
8-24           SECTION 5.05. Subdivision (6), Section 2, Article 21.49-3,
8-25     Insurance Code, is amended to read as follows:
8-26                 (6)  "Health care provider" means:
8-27                       (A)  any person, partnership, professional
 9-1     association, corporation, facility, or institution duly licensed or
 9-2     chartered by the State of Texas to provide health care as defined
 9-3     in Section 1.03(a)(2) [1.03(2)], Medical Liability and Insurance
 9-4     Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
 9-5     Statutes), as:
 9-6                             (i)  a registered nurse, hospital, dentist,
 9-7     podiatrist, pharmacist, chiropractor, or optometrist;
 9-8                             (ii)  a for-profit[,] or not-for-profit
 9-9     nursing home;
9-10                             (iii)  [, or] a radiation therapy center
9-11     that is independent of any other medical treatment facility and
9-12     which is licensed by the Texas Department of Health in that
9-13     agency's capacity as the Texas [State] Radiation Control Agency
9-14     pursuant to the provisions of Chapter 401, Health and Safety Code,
9-15     and which is in compliance with the regulations promulgated under
9-16     that chapter;
9-17                             (iv)  [by the Texas State Radiation Control
9-18     Agency,] a blood bank that is a nonprofit corporation chartered to
9-19     operate a blood bank and which is accredited by the American
9-20     Association of Blood Banks;
9-21                             (v)  [,] a nonprofit corporation which is
9-22     organized for the delivery of health care to the public and which
9-23     is certified under Chapter 162, Occupations Code; [Article 4509a,
9-24     Revised Civil Statutes of Texas, 1925,] or
9-25                             (vi)  a [migrant] health center as defined
9-26     by 42 U.S.C. Section 254b [P.L. 94-63], as amended; [(42 U.S.C.
9-27     Section 254b), or a community health center as defined by P.L.
 10-1    94-63, as amended (42 U.S.C. Section 254c), that is receiving
 10-2    federal funds under an application approved under either Title IV,
 10-3    P.L. 94-63, as amended (42 U.S.C. Section 254b), or Title V, P.L.
 10-4    94-63, as amended (42 U.S.C. Section 254c),] or
 10-5                      (B)  an officer, employee, or agent of any of
 10-6    them acting in the course and scope of that person's [his]
 10-7    employment.
 10-8          SECTION 5.06. Section 3A, Article 21.49-3, Insurance Code, is
 10-9    amended by adding Subsection (c) to read as follows:
10-10          (c)  A for-profit or not-for-profit nursing home not
10-11    otherwise eligible under this section for coverage from the
10-12    association is eligible for coverage if the nursing home
10-13    demonstrates, in accordance with the requirements of the
10-14    association, that the nursing home made a bona fide effort to
10-15    obtain coverage from authorized insurers and eligible surplus lines
10-16    insurers and was unable to obtain coverage.
10-17          SECTION 5.07. Subdivision (1), Subsection (b), Section 4,
10-18    Article 21.49-3, Insurance Code, is amended to read as follows:
10-19                (1)  The rates, rating plans, rating rules, rating
10-20    classifications, territories, and policy forms applicable to the
10-21    insurance written by the association and statistics relating
10-22    thereto shall be subject to Subchapter B of Chapter 5 of the
10-23    Insurance Code, as amended, giving due consideration to the past
10-24    and prospective loss and expense experience for medical
10-25    professional liability insurance within and without this state of
10-26    all of the member companies of the association, trends in the
10-27    frequency and severity of losses, the investment income of the
 11-1    association, and such other information as the commissioner [board]
 11-2    may require;  provided, that if any article of the above subchapter
 11-3    is in conflict with any provision of this Act, this Act shall
 11-4    prevail.  For purposes of this article, rates, rating plans, rating
 11-5    rules, rating classifications, territories, and policy forms for
 11-6    for-profit nursing homes are subject to the requirements of Article
 11-7    5.15-1 of this code to the same extent as not-for-profit nursing
 11-8    homes.
 11-9          SECTION 5.08. Section 4A, Article 21.49-3, Insurance Code, is
11-10    amended to read as follows:
11-11          Sec. 4A.  POLICYHOLDER'S STABILIZATION RESERVE FUND. (a)
11-12    There is hereby created a policyholder's stabilization reserve fund
11-13    which shall be administered as provided herein and in the plan of
11-14    operation of the association.
11-15          (b)  Each policyholder shall pay annually into the
11-16    stabilization reserve fund a charge, the amount of which shall be
11-17    established annually by advisory directors chosen by health care
11-18    providers and physicians eligible for insurance in the association
11-19    in accordance with the plan of operation.  The charge shall be in
11-20    proportion to each premium payment due for liability insurance
11-21    through the association.  Such charge shall be separately stated in
11-22    the policy, but shall not constitute a part of premiums or be
11-23    subject to premium taxation, servicing fees, acquisition costs, or
11-24    any other such charges.
11-25          (c)  The [policyholder's] stabilization reserve fund shall be
11-26    collected and administered by the association and shall be treated
11-27    as a liability of the association along with and in the same manner
 12-1    as premium and loss reserves.  The fund shall be valued annually by
 12-2    the board of directors as of the close of the last preceding year.
 12-3          (d)  Except as provided by Subsection (e) of this section,
 12-4    collections [Collections] of the stabilization reserve fund charge
 12-5    shall continue only until such time as the net balance of the
 12-6    stabilization reserve fund is not less than the projected sum of
 12-7    premiums to be written in the year following valuation date.
 12-8          (e)  If in any fiscal year the incurred losses and defense
 12-9    and cost-containment expenses from physicians or any single
12-10    category of health care provider result in a net underwriting loss
12-11    and exceed 25 percent of the stabilization reserve fund, as valued
12-12    for that year, the commissioner may by order direct the initiation
12-13    or continuation of the stabilization reserve fund charge for
12-14    physicians or that category of health care provider until the fund
12-15    recovers the amount by which those losses and cost-containment
12-16    expenses exceed 25 percent of the fund.
12-17          (f)  The stabilization reserve fund shall be credited with
12-18    all stabilization reserve fund charges collected from policyholders
12-19    and shall be charged with any deficit from the prior year's
12-20    operation of the association.
12-21          SECTION 5.09. Subchapter E, Chapter 21, Insurance Code, is
12-22    amended by adding Article 21.49-3d to read as follows:
12-23          Art. 21.49-3d.  REVENUE BOND PROGRAM AND PROCEDURES FOR
12-24    CERTAIN LIABILITY INSURANCE
12-25          Sec. 1.  LEGISLATIVE FINDING; PURPOSE. The legislature finds
12-26    that the issuance of bonds to provide a method to raise funds to
12-27    provide professional liability insurance through the association
 13-1    for nursing homes in this state is for the benefit of the public
 13-2    and in furtherance of a public purpose.
 13-3          Sec. 2.  DEFINITIONS. In this article:
 13-4                (1)  "Association" means the joint underwriting
 13-5    association established under Article 21.49-3 of this code.
 13-6                (2)  "Bond resolution" means the resolution or order
 13-7    authorizing the bonds to be issued under this article.
 13-8                (3)  "Board" means the board of directors of the Texas
 13-9    Public Finance Authority.
13-10                (4)  "Insurer" means any insurer required to be a
13-11    member of the association under Section 3, Article 21.49-3, of this
13-12    code.
13-13          Sec. 3.  BONDS AUTHORIZED; APPLICATION OF TEXAS PUBLIC
13-14    FINANCE AUTHORITY ACT. (a)  On behalf of the association, the Texas
13-15    Public Finance Authority shall issue revenue bonds to:
13-16                (1)  fund the policyholder's stabilization reserve fund
13-17    established under Section 4A, Article 21.49-3, of this code;
13-18                (2)  pay costs related to issuance of the bonds; and
13-19                (3)  pay other costs related to the bonds as may be
13-20    determined by the board.
13-21          (b)  To the extent not inconsistent with this article,
13-22    Chapter 1232, Government Code, applies to bonds issued under this
13-23    article. In the event of a conflict, this article controls.
13-24          Sec. 4.  APPLICABILITY OF OTHER STATUTES. The following laws
13-25    apply to bonds issued under this article to the extent consistent
13-26    with this article:
13-27                (1)  Chapters 1201, 1202, 1204, 1205, 1231, and 1371,
 14-1    Government Code; and
 14-2                (2)  Subchapter A, Chapter 1206, Government Code.
 14-3          Sec. 5.  LIMITS. The Texas Public Finance Authority may
 14-4    issue, on behalf of the association, bonds in a total amount not to
 14-5    exceed $75 million.
 14-6          Sec. 6.  CONDITIONS. (a)  Bonds may be issued at public or
 14-7    private sale.
 14-8          (b)  Bonds may mature not more than 10 years after the date
 14-9    issued.
14-10          (c)  Bonds must be issued in the name of the association.
14-11          Sec. 7.  ADDITIONAL COVENANTS. In a bond resolution, the
14-12    board may make additional covenants with respect to the bonds and
14-13    the designated income and receipts of the association pledged to
14-14    their payment and may provide for the flow of funds and the
14-15    establishment, maintenance, and investment of funds and accounts
14-16    with respect to the bonds.
14-17          Sec. 8.  SPECIAL ACCOUNTS. (a)  A bond resolution may
14-18    establish special accounts, including an interest and sinking fund
14-19    account, reserve account, and other accounts.
14-20          (b)  The association shall administer the accounts in
14-21    accordance with Article 21.49-3 of this code.
14-22          Sec. 9.  SECURITY. (a)  Bonds are payable only from the
14-23    maintenance tax surcharge established in Section 10 of this article
14-24    or other sources the fund is authorized to levy, charge, and
14-25    collect in connection with paying any portion of the bonds.
14-26          (b)  Bonds are obligations solely of the association.  Bonds
14-27    do not create a pledging, giving, or lending of the faith, credit,
 15-1    or taxing authority of this state.
 15-2          (c)  Each bond must include a statement that the state is not
 15-3    obligated to pay any amount on the bond and that the faith, credit,
 15-4    and taxing authority of this state are not pledged, given, or lent
 15-5    to those payments.
 15-6          (d)  Each bond issued under this article must state on its
 15-7    face that the bond is payable solely from the revenues pledged for
 15-8    that purpose and that the bond does not and may not constitute a
 15-9    legal or moral obligation of the state.
15-10          Sec. 10.  MAINTENANCE TAX SURCHARGE. (a)  A maintenance tax
15-11    surcharge is assessed against:
15-12                (1)  each insurer; and
15-13                (2)  the association.
15-14          (b)  The maintenance tax surcharge shall be set in an amount
15-15    sufficient to pay all debt service on the bonds.  The maintenance
15-16    tax surcharge is set by the commissioner in the same time and shall
15-17    be collected by the comptroller on behalf of the association in the
15-18    same manner as applicable maintenance taxes are collected under
15-19    Article 5.24 of this code.
15-20          (c)  On determining the rate of assessment, the department
15-21    shall increase the maintenance tax rate applicable to correctly
15-22    reported gross premiums for liability insurance to a rate
15-23    sufficient to pay all debt service on the bonds, subject to the
15-24    maximum maintenance tax rate applicable to the insurer under
15-25    Article 5.24 of this code.  If the resulting tax rate is
15-26    insufficient to pay all debt service on the bonds, the department
15-27    may assess an additional surcharge not to exceed one percent of
 16-1    correctly reported gross premiums for liability insurance to cover
 16-2    all debt service on the bonds.  In this code, the maintenance tax
 16-3    surcharge includes the additional maintenance tax assessed under
 16-4    this subsection and the surcharge assessed under this subsection to
 16-5    pay all debt service of the bonds.
 16-6          (d)  The association and each insurer may pass through the
 16-7    maintenance tax surcharge to each of its policyholders.
 16-8          (e)  As a condition of engaging in the business of insurance
 16-9    in this state, an insurer agrees that if the company leaves the
16-10    market for liability insurance in this state the insurer remains
16-11    obligated to pay, until the bonds are retired, the insurer's share
16-12    of the maintenance tax surcharge assessed under this section in an
16-13    amount proportionate to that insurer's share of the market for
16-14    liability insurance in this state as of the last complete reporting
16-15    period before the date on which the insurer ceases to engage in
16-16    that insurance business in this state.  The proportion assessed
16-17    against the insurer shall be based on the insurer's gross premiums
16-18    for liability insurance for the insurer's last reporting period.
16-19    However, an insurer is not required to pay the proportionate amount
16-20    in any year in which the surcharge assessed against insurers
16-21    continuing to write liability insurance in this state is sufficient
16-22    to service the bond obligation.
16-23          Sec. 11.  TAX EXEMPT. The bonds issued under this article,
16-24    and any interest from the bonds, and all assets pledged to secure
16-25    the payment of the bonds are free from taxation by the state or a
16-26    political subdivision of this state.
16-27          Sec. 12.  AUTHORIZED INVESTMENTS. The bonds issued under this
 17-1    article constitute authorized investments under Article 2.10 and
 17-2    Subpart A, Part I, Article 3.39, of this code.
 17-3          Sec. 13.  STATE PLEDGE. The state pledges to and agrees with
 17-4    the owners of any bonds issued in accordance with this article that
 17-5    the state will not limit or alter the rights vested in the
 17-6    association to fulfill the terms of any agreements made with the
 17-7    owners of the bonds or in any way impair the rights and remedies of
 17-8    those owners until the bonds, any premium or interest, and all
 17-9    costs and expenses in connection with any action or proceeding by
17-10    or on behalf of those owners are fully met and discharged.  The
17-11    association may include this pledge and agreement of the state in
17-12    any agreement with the owners of the bonds.
17-13          Sec. 14.  ENFORCEMENT BY MANDAMUS. A writ of mandamus and all
17-14    other legal and equitable remedies are available to any party at
17-15    interest to require the association and any other party to carry
17-16    out agreements and to perform functions and duties under this
17-17    article, the Texas Constitution, or a bond resolution.
17-18          SECTION 5.10. Not later than December 1, 2001, the
17-19    commissioner of insurance shall adopt the initial best practices
17-20    for for-profit and not-for-profit nursing homes adopted as required
17-21    by Article 5.15-4, Insurance Code, as added by this article.
17-22          SECTION 5.11. Sections 2, 3A, and 4, Article 21.49-3,
17-23    Insurance Code, as amended by this article, apply only to an
17-24    insurance policy delivered, issued for delivery, or renewed on or
17-25    after January 1, 2002.  A policy delivered, issued for delivery, or
17-26    renewed before January 1, 2002, is governed by the law as it
17-27    existed immediately before the effective date of this Act, and that
 18-1    law is continued in effect for that purpose.
 18-2               ARTICLE 6.  MANDATORY LIABILITY INSURANCE FOR
 18-3                           NURSING INSTITUTIONS
 18-4          SECTION 6.01.  Subchapter B, Chapter 242, Health and Safety
 18-5    Code, is amended by adding Section 242.0372 to read as follows:
 18-6          Sec. 242.0372.  LIABILITY INSURANCE COVERAGE. (a)  In this
 18-7    section, "health care liability claim" has the meaning assigned by
 18-8    the Medical Liability and Insurance Improvement Act of Texas
 18-9    (Article 4590i, Vernon's Texas Civil Statutes).
18-10          (b)  To hold a license under this chapter, a license holder
18-11    must maintain professional liability insurance coverage against the
18-12    liability of the license holder for a health care liability claim.
18-13          (c)  The insurance coverage maintained by a license holder
18-14    under this section must:
18-15                (1)  provide coverage in the minimum amount of $1
18-16    million for each single occurrence and $3 million in the aggregate;
18-17                (2)  be written on a claims-made basis;
18-18                (3)  be issued by:
18-19                      (A)  an admitted insurer authorized to write
18-20    professional liability insurance in this state;
18-21                      (B)  the Texas Medical Liability Insurance
18-22    Underwriting Association established under Article 21.49-3,
18-23    Insurance Code; or
18-24                      (C)  an eligible surplus lines insurer in
18-25    accordance with Article 1.14-2, Insurance Code; and
18-26                (4)  be in a form acceptable to the department.
18-27          (d)  To the extent permitted by federal law and applicable
 19-1    state and federal rules, the cost of insurance coverage required to
 19-2    be maintained under this section is an allowable cost for
 19-3    reimbursement under the state Medicaid program.
 19-4          SECTION 6.02. Notwithstanding Section 242.0372, Health and
 19-5    Safety Code, as added by this article, an institution licensed
 19-6    under Chapter 242, Health and Safety Code, is not required to
 19-7    maintain professional liability insurance as required by that
 19-8    section before September 1, 2002.
 19-9                 ARTICLE 7.  SURVEYS AND RELATED PROCESSES
19-10          SECTION 7.01.  Chapter 22, Human Resources Code, is amended
19-11    by adding Section 22.037 to read as follows:
19-12          Sec. 22.037.  TRAINING AND CONTINUING EDUCATION RELATED TO
19-13    CERTAIN LONG-TERM CARE FACILITIES. (a)  In this section:
19-14                (1)  "Long-term care facility" means a nursing
19-15    institution, an assisted living facility, or an intermediate care
19-16    facility for the mentally retarded licensed under Chapter 242, 247,
19-17    or 252, Health and Safety Code.
19-18                (2)  "Provider" means an employee or agent of a
19-19    long-term care facility.
19-20                (3)  "Surveyor" means an employee or agent of the
19-21    department or another state agency responsible for licensing,
19-22    inspecting, surveying, or investigating a long-term care facility
19-23    in relation to:
19-24                      (A)  licensing under Chapter 242, 247, or 252,
19-25    Health and Safety Code; or
19-26                      (B)  certification for participation in the
19-27    medical assistance program in accordance with Chapter 32.
 20-1          (b)  The department shall require a surveyor to complete a
 20-2    basic training program before the surveyor inspects, surveys, or
 20-3    investigates a long-term care facility.  The training must include
 20-4    observation of the operations of a long-term care facility
 20-5    unrelated to the survey, inspection, or investigation process for a
 20-6    minimum of 10 working days within a 14-day period.
 20-7          (c)  The department shall semiannually provide training for
 20-8    surveyors and providers on subjects that address at least one of
 20-9    the 10 most common violations by long-term care facilities under
20-10    federal or state law.
20-11          (d)  Except as provided by Subsection (e), a surveyor who is
20-12    a health care professional licensed under the laws of this state
20-13    must receive a minimum of 50 percent of the professional's required
20-14    continuing education credits, if any, in gerontology or care for
20-15    individuals with cognitive or physical disabilities, as
20-16    appropriate.
20-17          (e)  A surveyor who is a pharmacist must receive a minimum of
20-18    30 percent of the pharmacist's required continuing education
20-19    credits in gerontology or care for individuals with cognitive or
20-20    physical disabilities, as appropriate.
20-21          SECTION 7.02.  Subchapter B, Chapter 531, Government Code, is
20-22    amended by adding Sections 531.056, 531.057, and 531.058 to read as
20-23    follows:
20-24          Sec. 531.056.  REVIEW OF SURVEY PROCESS IN CERTAIN
20-25    INSTITUTIONS AND FACILITIES. (a)  The commission shall adopt
20-26    procedures to review:
20-27                (1)  citations or penalties assessed for a violation of
 21-1    a rule or law against an institution or facility licensed under
 21-2    Chapter 242, 247, or 252, Health and Safety Code, or certified in
 21-3    accordance with Chapter 32, Human Resources Code, considering:
 21-4                      (A)  the number of violations by geographic
 21-5    region;
 21-6                      (B)  the patterns of violations in each region;
 21-7    and
 21-8                      (C)  the outcomes following the assessment of a
 21-9    penalty or citation; and
21-10                (2)  the performance of duties by employees and agents
21-11    of the Texas Department of Human Services or another state agency
21-12    responsible for licensing, inspecting, surveying, or investigating
21-13    institutions and facilities licensed under Chapter 242, 247, or
21-14    252, Health and Safety Code, or certified in accordance with
21-15    Chapter 32, Human Resources Code, related to:
21-16                      (A)  complaints received by the commission; or
21-17                      (B)  any standards or rules violated by an
21-18    employee or agent of a state agency.
21-19          (b)  The commission shall annually report to the speaker of
21-20    the house of representatives, the lieutenant governor, and the
21-21    governor on the findings of the review conducted under Subsection
21-22    (a).
21-23          Sec. 531.057.  QUALITY ASSURANCE EARLY WARNING SYSTEM FOR
21-24    LONG-TERM CARE FACILITIES; RAPID RESPONSE TEAMS. (a)  In this
21-25    section:
21-26                (1)  "Long-term care facility" means a nursing
21-27    institution, an assisted living facility, or an intermediate care
 22-1    facility for the mentally retarded licensed under Chapter 242, 247,
 22-2    or 252, Health and Safety Code, or certified under Chapter 32,
 22-3    Human Resources Code.
 22-4                (2)  "Quality-of-care monitor" means a registered
 22-5    nurse, pharmacist, or nutritionist who:
 22-6                      (A)  is employed by the commission;
 22-7                      (B)  is trained and experienced in long-term care
 22-8    facility regulation, standards of practice in long-term care, and
 22-9    evaluation of patient care; and
22-10                      (C)  functions independently of the Texas
22-11    Department of Human Services.
22-12          (b)  The commission shall establish an early warning system
22-13    to detect conditions that could be detrimental to the health,
22-14    safety, and welfare of residents.  The early warning system shall
22-15    include analysis of financial and quality-of-care indicators that
22-16    would predict the need for the commission to take action.
22-17          (c)  The commission shall establish regional offices with one
22-18    or more quality-of-care monitors, based on the number of long-term
22-19    care facilities in the region, to monitor the facilities in the
22-20    region on a regular, unannounced, aperiodic basis, including
22-21    nights, evenings, weekends, and holidays.
22-22          (d)  Priority for monitoring visits shall be given to
22-23    long-term care facilities with a history of patient care
22-24    deficiencies.
22-25          (e)  Quality-of-care monitors may not be deployed by the
22-26    commission as a part of the regional survey team in the conduct of
22-27    routine, scheduled surveys.
 23-1          (f)  A quality-of-care monitor may not interfere with,
 23-2    impede, or otherwise adversely affect the performance of the duties
 23-3    of a surveyor, inspector, or investigator of the Texas Department
 23-4    of Human Services.
 23-5          (g)  Quality-of-care monitors shall assess:
 23-6                (1)  the overall quality of life in the long-term care
 23-7    facility; and
 23-8                (2)  specific conditions in the facility directly
 23-9    related to patient care.
23-10          (h)  The quality-of-care monitor shall include in an
23-11    assessment visit:
23-12                (1)  observation of the care and services rendered to
23-13    residents; and
23-14                (2)  formal and informal interviews with residents,
23-15    family members, facility staff, resident guests, volunteers, other
23-16    regulatory staff, and representatives of a human rights advocacy
23-17    committee.
23-18          (i)  The identity of a resident or a family member of a
23-19    resident interviewed by a quality-of-care monitor as provided by
23-20    Subsection (h)(2) shall remain confidential and may not be
23-21    disclosed to any person under any other provision of this section.
23-22          (j)  The findings of a monitoring visit, both positive and
23-23    negative, shall be provided orally and in writing to the long-term
23-24    care facility administrator or, in the absence of the facility
23-25    administrator, to the administrator on duty or the director of
23-26    nursing.
23-27          (k)  The quality-of-care monitor may recommend to the
 24-1    long-term care facility administrator procedural and policy changes
 24-2    and staff training to improve the care or quality of life of
 24-3    facility residents.
 24-4          (l)  Conditions observed by the quality-of-care monitor that
 24-5    create an immediate threat to the health or safety of a resident
 24-6    shall be reported immediately to the regional office supervisor for
 24-7    appropriate action and, as appropriate or as required by law, to
 24-8    law enforcement, adult protective services, or other responsible
 24-9    agencies.
24-10          (m)  The commission shall create rapid response teams
24-11    composed of health care experts that can visit long-term care
24-12    facilities identified through the commission's early warning
24-13    system.
24-14          (n)  Rapid response teams may visit long-term care facilities
24-15    that request the commission's assistance.  A visit under this
24-16    subsection may not occur before the 60th day after the date of an
24-17    exit interview following an annual or follow-up survey or
24-18    inspection.
24-19          (o)  The rapid response teams may not be deployed for the
24-20    purpose of helping a long-term care facility prepare for a regular
24-21    inspection or survey conducted under Chapter 242, 247, or 252,
24-22    Health and Safety Code, or in accordance with Chapter 32, Human
24-23    Resources Code.
24-24          Sec. 531.058.  INFORMAL DISPUTE RESOLUTION FOR CERTAIN
24-25    LONG-TERM CARE FACILITIES. (a)  The commission by rule shall
24-26    establish an informal dispute resolution process in accordance with
24-27    this section.  The process must provide for adjudication by an
 25-1    appropriate disinterested person of disputes relating to a proposed
 25-2    enforcement action or related proceeding of the Texas Department of
 25-3    Human Services under Section 32.021(d), Human Resources Code, or
 25-4    Chapter 242, 247, or 252, Health and Safety Code.  The informal
 25-5    dispute resolution process must require:
 25-6                (1)  the institution or facility to request informal
 25-7    dispute resolution not later than the 10th calendar day after
 25-8    notification by the department of the violation of a standard or
 25-9    standards;
25-10                (2)  the commission to complete the process not later
25-11    than the 30th calendar day after receipt of a request from the
25-12    institution or facility for informal dispute resolution; and
25-13                (3)  any individual representing an institution or
25-14    facility in an informal dispute resolution process to register with
25-15    the commission and disclose the following:
25-16                      (A)  the individual's employment history during
25-17    the preceding five years, including employment in regulatory
25-18    agencies of this state and other states;
25-19                      (B)  ownership, including the identity of the
25-20    controlling person or persons, of the institution or facility the
25-21    individual is representing before the commission; and
25-22                      (C)  the identity of other entities the
25-23    individual represents or has represented before the commission
25-24    during the previous 24 months.
25-25          (b)  The commission shall adopt rules to adjudicate claims in
25-26    contested cases.
25-27          (c)  The commission may not delegate its responsibility to
 26-1    administer the informal dispute resolution process established by
 26-2    this section to another state agency.
 26-3          SECTION 7.03.  Subsection (d), Section 32.021, Human
 26-4    Resources Code, is amended to read as follows:
 26-5          (d)  The department shall include in its contracts for the
 26-6    delivery of medical assistance by nursing facilities provisions for
 26-7    monetary penalties to be assessed for violations as required by 42
 26-8    U.S.C. Section 1396r, including without limitation the Omnibus
 26-9    Budget Reconciliation Act (OBRA), P.L. 100-203, Nursing Home Reform
26-10    Amendments of 1987, provided that the department shall:
26-11                (1)  provide for an informal dispute resolution process
26-12    in the Health and Human Services Commission as provided by Section
26-13    531.058, Government Code [department's central office; the informal
26-14    dispute resolution process shall:]
26-15                      [(A)  require the institution to request informal
26-16    dispute resolution no later than the 10th calendar day after
26-17    notification by the department of a violation of a standard or
26-18    standards;]
26-19                      [(B)  require the department to complete the
26-20    process no later than the 30th calendar day after receipt of a
26-21    request from the institution for informal dispute resolution; and]
26-22                      [(C)  require any individual representing an
26-23    institution in an informal dispute resolution process to register
26-24    with the department and disclose the following:]
26-25                            [(i)  the individual's five-year employment
26-26    history during the preceding five years, including employment in
26-27    regulatory agencies of this state and other states;]
 27-1                            [(ii)  ownership, including the identity of
 27-2    the controlling person or persons, of the institution the person is
 27-3    representing before the department; and]
 27-4                            [(iii)  the identity of other entities the
 27-5    person represents or has represented before the agency during the
 27-6    previous 24 months]; and
 27-7                (2)  develop rules to adjudicate claims in contested
 27-8    cases, including claims unresolved by the informal dispute
 27-9    resolution process of the Health and Human Services Commission.
27-10          SECTION 7.04.  Not later than January 1, 2002, the
27-11    commissioner of health and human services shall adopt any rules
27-12    necessary to implement Sections 531.056, 531.057, and 531.058,
27-13    Government Code, as added by this article.
27-14          SECTION 7.05.  Not later than January 1, 2002, the Texas
27-15    Department of Human Services shall develop training necessary to
27-16    implement Section 22.037, Human Resources Code, as added by this
27-17    article.
27-18          SECTION 7.06.  (a)  Effective January 1, 2002:
27-19                (1)  all property and records in the custody of the
27-20    Texas Department of Human Services related to the informal dispute
27-21    resolution function under Subsection (d), Section 32.021, Human
27-22    Resources Code, as it existed before amendment by this Act, and all
27-23    funds appropriated by the legislature to the Texas Department of
27-24    Human Services for the function are transferred to the Health and
27-25    Human Services Commission;
27-26                (2)  a rule or form adopted by the Texas Department of
27-27    Human Services that relates to the informal dispute resolution
 28-1    function under Subsection (d), Section 32.021, Human Resources
 28-2    Code, as it existed before amendment by this Act, is a rule or form
 28-3    of the Health and Human Services Commission and remains in effect
 28-4    until altered by that agency;
 28-5                (3)  the assumption of the informal dispute resolution
 28-6    function by the Health and Human Services Commission does not
 28-7    affect or impair any act done, any obligation, right, order,
 28-8    license, permit, rule, criterion, standard, or requirement
 28-9    existing, any investigation begun, or any penalty accrued under
28-10    former law, and that law remains in effect for any action
28-11    concerning those matters; and
28-12                (4)  an action brought or proceeding commenced before
28-13    the assumption by the Health and Human Services Commission of the
28-14    informal dispute resolution function under this Act is effected,
28-15    including a contested case or a remand of an action or proceeding
28-16    by a reviewing court, is governed by the law and rules applicable
28-17    to the action or proceeding before the date of the assumption of
28-18    the function by the Health and Human Services Commission.
28-19          (b)  In implementing Section 531.057, Government Code, as
28-20    added by this article, the Health and Human Services Commission may
28-21    not transfer to the commission employees or funding from the
28-22    regulatory functions of the Texas Department of Human Services.
28-23                  ARTICLE 8.  AMELIORATION OF VIOLATIONS
28-24          SECTION 8.01. Section 242.071, Health and Safety Code, is
28-25    amended to read as follows:
28-26          Sec. 242.071.  AMELIORATION OF VIOLATION.  (a)  In lieu of
28-27    demanding [ordering] payment of an [the] administrative penalty
 29-1    assessed under Section 242.066 [242.069], the commissioner may, in
 29-2    accordance with this section, allow [require] the person to use,
 29-3    under the supervision of the department, any portion of the penalty
 29-4    to ameliorate the violation or to improve services, other than
 29-5    administrative services, in the institution affected by the
 29-6    violation.
 29-7          (b)  The department shall offer amelioration to a person for
 29-8    a charged violation if the department determines that the violation
 29-9    does not constitute immediate jeopardy to the health and safety of
29-10    an institution resident.
29-11          (c)  The department may not offer amelioration to a person
29-12    if:
29-13                (1)  the person has been charged with a violation that
29-14    is subject to correction under Section 242.0665; or
29-15                (2)  the department determines that the charged
29-16    violation constitutes immediate jeopardy to the health and safety
29-17    of an institution resident.
29-18          (d)  The department shall offer amelioration to a person
29-19    under this section not later than the 10th day after the date the
29-20    person receives from the department a final notification of
29-21    assessment of administrative penalty that is sent to the person
29-22    after an informal dispute resolution process but before an
29-23    administrative hearing under Section 242.068.
29-24          (e)  A person to whom amelioration has been offered must file
29-25    a plan for amelioration not later than the 45th day after the date
29-26    the person receives the offer of amelioration from the department.
29-27    In submitting the plan, the person must agree to waive the person's
 30-1    right to an administrative hearing under Section 242.068 if the
 30-2    department approves the plan.
 30-3          (f)  At a minimum, a plan for amelioration must:
 30-4                (1)  propose changes to the management or operation of
 30-5    the institution that will improve services to or quality of care of
 30-6    residents of the institution;
 30-7                (2)  identify, through measurable outcomes, the ways in
 30-8    which and the extent to which the proposed changes will improve
 30-9    services to or quality of care of residents of the institution;
30-10                (3)  establish clear goals to be achieved through the
30-11    proposed changes;
30-12                (4)  establish a timeline for implementing the proposed
30-13    changes; and
30-14                (5)  identify specific actions necessary to implement
30-15    the  proposed changes.
30-16          (g)  The department may require that an amelioration plan
30-17    propose changes that would result in conditions that exceed the
30-18    requirements of this chapter or the rules adopted under this
30-19    chapter.
30-20          (h)  The department shall approve or deny an amelioration
30-21    plan not later than the 45th day after the date the department
30-22    receives the plan.  On approval of a person's plan, the department
30-23    shall deny a pending request for a hearing submitted by the person
30-24    under Section 242.067(d).
30-25          (i)  The department may not offer amelioration to a person:
30-26                (1)  more than three times in a two-year period; or
30-27                (2)  more than one time in a two-year period for the
 31-1    same or similar violation.
 31-2          (j)  In this section, "immediate jeopardy to health and
 31-3    safety" means a situation in which there is a high probability that
 31-4    serious harm or injury to a resident could occur at any time or
 31-5    already has occurred and may occur again if the resident is not
 31-6    protected from the harm or if the threat is not removed.
 31-7          SECTION 8.02.  Section 252.071, Health and Safety Code, is
 31-8    amended to read as follows:
 31-9          Sec. 252.071.  AMELIORATION OF VIOLATION.  (a)  In lieu of
31-10    demanding [ordering] payment of an administrative penalty
31-11    authorized by this subchapter, the department may allow [require] a
31-12    person subject to the penalty to use, under the supervision of the
31-13    department, all or part of the amount of the penalty to ameliorate
31-14    the violation or to improve services, other than administrative
31-15    services, in the facility affected by the violation.
31-16          (b)  The department shall offer amelioration to a person for
31-17    a charged violation if the department determines that the violation
31-18    does not constitute immediate jeopardy to the health and safety of
31-19    a facility resident.
31-20          (c)  The department may not offer amelioration to a person if
31-21    the department determines that the charged violation constitutes
31-22    immediate jeopardy to the health and safety of a facility resident.
31-23          (d)  The department shall offer amelioration to a person
31-24    under this section not later than the 10th day after the date the
31-25    person receives from the department a final notification of
31-26    assessment of administrative penalty that is sent to the person
31-27    after an informal dispute resolution process but before an
 32-1    administrative hearing under Section 252.067.
 32-2          (e)  A person to whom amelioration has been offered must file
 32-3    a plan for amelioration not later than the 45th day after the date
 32-4    the person receives the offer of amelioration from the department.
 32-5    In submitting the plan, the person must agree to waive the person's
 32-6    right to an administrative hearing under Section 252.067 if the
 32-7    department approves the plan.
 32-8          (f)  At a minimum, a plan for amelioration must:
 32-9                (1)  propose changes to the management or operation of
32-10    the facility that will improve services to or quality of care of
32-11    residents of the facility;
32-12                (2)  identify, through measurable outcomes, the ways in
32-13    which and the extent to which the proposed changes will improve
32-14    services to or quality of care of residents of the facility;
32-15                (3)  establish clear goals to be achieved through the
32-16    proposed changes;
32-17                (4)  establish a timeline for implementing the proposed
32-18    changes; and
32-19                (5)  identify specific actions necessary to implement
32-20    the  proposed changes.
32-21          (g)  The department may require that an amelioration plan
32-22    propose changes that would result in conditions that exceed the
32-23    requirements of this chapter or the rules adopted under this
32-24    chapter.
32-25          (h)  The department shall approve or deny an amelioration
32-26    plan not later than the 45th day after the date the department
32-27    receives the plan.  On approval of a person's plan, the department
 33-1    shall deny a pending request for a hearing submitted by the person
 33-2    under Section 252.066(b).
 33-3          (i)  The department may not offer amelioration to a person:
 33-4                (1)  more than three times in a two-year period; or
 33-5                (2)  more than one time in a two-year period for the
 33-6    same or similar violation.
 33-7          (j)  In this section, "immediate jeopardy to health and
 33-8    safety" means a situation in which there is a high probability that
 33-9    serious harm or injury to a resident could occur at any time or
33-10    already has occurred and may occur again if the resident is not
33-11    protected from the harm or if the threat is not removed.
33-12          SECTION 8.03.  This article applies only to a violation that
33-13    occurs on or after the effective date of this Act.  A violation
33-14    that occurs before that date is covered by the law in effect on the
33-15    date the violation occurred, and the former law is continued in
33-16    effect for that purpose.
33-17                     ARTICLE 9.  QUALITY ASSURANCE FEE
33-18          SECTION 9.01. Chapter 242, Health and Safety Code, is amended
33-19    by adding Subchapter Q to read as follows:
33-20                   SUBCHAPTER Q.  QUALITY ASSURANCE FEE
33-21          Sec. 242.851.  DEFINITION. In this subchapter, "gross
33-22    receipts" means money paid as compensation for services provided to
33-23    residents, including client participation.  The term does not
33-24    include charitable contributions to an institution.
33-25          Sec. 242.852.  COMPUTING QUALITY ASSURANCE FEE.  (a)  A
33-26    quality assurance fee is imposed on each institution for which a
33-27    license fee must be paid under Section 242.034.  The fee is:
 34-1                (1)  an amount established under Subsection (b)
 34-2    multiplied by the number of patient days as determined in
 34-3    accordance with Section 242.853;
 34-4                (2)  payable monthly; and
 34-5                (3)  in addition to other fees imposed under this
 34-6    chapter.
 34-7          (b)  The Health and Human Services Commission or the
 34-8    department at the direction of the commission shall set the quality
 34-9    assurance fee for each day in the amount necessary to produce
34-10    annual revenues equal to six percent of the institution's total
34-11    annual gross receipts in this state.  The fee is subject to a
34-12    prospective adjustment as necessary.
34-13          (c)  The amount of the quality assurance fee must be
34-14    determined using patient days and gross receipts reported to the
34-15    department and covering a period of at least six months.
34-16          (d)  The quality assurance fee is an allowable cost for
34-17    reimbursement under the state Medicaid program.
34-18          Sec. 242.853.  PATIENT DAYS.  For each calendar day, an
34-19    institution shall determine the number of patient days by adding
34-20    the following:
34-21                (1)  the number of patients occupying an institution
34-22    bed immediately before midnight of that day;
34-23                (2)  the number of beds that are on hold on that day
34-24    and that have been placed on hold for a period not to exceed five
34-25    consecutive calendar days during which a patient is in the
34-26    hospital; and
34-27                (3)  the number of beds that are on hold on that day
 35-1    and that have been placed on hold for a period not to exceed 14
 35-2    consecutive calendar days during which a patient is on therapeutic
 35-3    home leave.
 35-4          Sec. 242.854.  REPORTING AND COLLECTION.  (a)  The Health and
 35-5    Human Services Commission or the department at the direction of the
 35-6    commission shall collect the fee.
 35-7          (b)  Each institution shall:
 35-8                (1)  not later than the 10th day after the last day of
 35-9    a month file a report with the Health and Human Services Commission
35-10    or the department, as appropriate, stating the total patient days
35-11    for the month; and
35-12                (2)  not later than the 30th day after the last day of
35-13    the month pay the quality assurance fee.
35-14          Sec. 242.855.  RULES; ADMINISTRATIVE PENALTY.  (a)  The
35-15    Health and Human Services Commission shall adopt rules for the
35-16    administration of this subchapter, including rules related to the
35-17    imposition and collection of the quality assurance fee.
35-18          (b)  The Health and Human Services Commission may not adopt
35-19    rules granting any exceptions from the quality assurance fee.
35-20          (c)  An administrative penalty assessed under this subchapter
35-21    in accordance with Section 242.066 may not exceed one-half of the
35-22    amount of the outstanding quality assurance fee or $20,000,
35-23    whichever is greater.
35-24          Sec. 242.856.  QUALITY ASSURANCE FUND.  (a)  The quality
35-25    assurance fund is a fund outside the state treasury held by the
35-26    Texas Treasury Safekeeping Trust Company.  Notwithstanding any
35-27    other law, the comptroller shall deposit fees collected under this
 36-1    subchapter to the credit of the fund.
 36-2          (b)  The fund is composed of:
 36-3                (1)  fees deposited to the credit of the fund under
 36-4    this subchapter; and
 36-5                (2)  the earnings of the fund.
 36-6          (c)  Money deposited to the fund remains the property of the
 36-7    fund and may be used only for the purposes of this subchapter.
 36-8          (d)  Subject to legislative appropriation and this
 36-9    subchapter, quality assurance fees collected under this subchapter,
36-10    combined with federal matching funds, will support or maintain an
36-11    increase in Medicaid reimbursement for institutions.
36-12          Sec. 242.857.  REIMBURSEMENT OF INSTITUTIONS.  (a)  The
36-13    Health and Human Services Commission shall use money in the quality
36-14    assurance fund, together with any federal money available to match
36-15    that money, to:
36-16                (1)  offset allowable expenses under the state Medicaid
36-17    program; or
36-18                (2)  increase reimbursement rates paid under the
36-19    Medicaid program to institutions.
36-20          (b)  The Health and Human Services Commission or the
36-21    department at the direction of the commission shall devise the
36-22    formula by which amounts received under this section increase the
36-23    reimbursement rates paid to institutions under the state Medicaid
36-24    program.
36-25          (c)  The Health and Human Services Commission shall ensure
36-26    that the formula devised under Subsection (b) provides incentives
36-27    for institutions to increase direct care staffing and direct care
 37-1    wages and benefits.
 37-2          Sec. 242.858.  INVALIDITY; FEDERAL FUNDS.  If  any portion of
 37-3    this subchapter is held invalid by a final order of a court that is
 37-4    not subject to appeal, or if the Health and Human Services
 37-5    Commission determines that the imposition of the fee and the
 37-6    expenditure as prescribed by this subchapter of amounts collected
 37-7    will not entitle the state to receive additional federal funds
 37-8    under the Medicaid program, the commission shall stop collection of
 37-9    the quality assurance fee and shall return, not later  than the
37-10    30th day after the date collection is stopped, any money collected,
37-11    but not spent, under this subchapter to the institutions that paid
37-12    the fees in proportion to the total amount paid by those
37-13    institutions.
37-14          Sec. 242.859.  LEGISLATIVE REVIEW; EXPIRATION.  The 79th
37-15    Legislature shall review the operation and effectiveness of this
37-16    subchapter.  Unless continued in effect by the 79th Legislature,
37-17    this subchapter expires effective September 1, 2005.
37-18          SECTION 9.02.  Notwithstanding Section 242.852, Health and
37-19    Safety Code, as added by this article, the quality assurance fee
37-20    imposed under Subchapter Q, Chapter 242, Health and Safety Code, as
37-21    added by this article, that is effective for the first month
37-22    following the effective date of this Act is equal to $5.25
37-23    multiplied by the number of patient days as determined under that
37-24    subchapter.  The quality assurance fee established under this
37-25    section remains in effect until the Health and Human Services
37-26    Commission, or the Texas Department of Human Services at the
37-27    direction of the commission, obtains the information necessary to
 38-1    set the fee under Section 242.852, Health and Safety Code, as added
 38-2    by this article.
 38-3          SECTION 9.03.  As soon as practicable after the effective
 38-4    date of this Act, the Health and Human Services Commission shall
 38-5    adopt rules as necessary to implement Subchapter Q, Chapter 242,
 38-6    Health and Safety Code, as added by this article.
 38-7          SECTION 9.04.  If before implementing any provision of this
 38-8    article a state agency determines a waiver or authorization from a
 38-9    federal agency is necessary for implementation of that provision,
38-10    the agency affected by the provision shall request the waiver or
38-11    authorization and may delay implementing that provision until the
38-12    waiver or authorization is granted.
38-13        ARTICLE 10.  TEXAS DEPARTMENT OF INSURANCE STUDY AND REPORT
38-14          SECTION 10.01.  DEFINITIONS.  In this article:
38-15                (1)  "Commissioner" means the commissioner of
38-16    insurance.
38-17                (2)  "Department" means the Texas Department of
38-18    Insurance.
38-19          SECTION 10.02.  STUDY. The department shall study the
38-20    implementation of Articles 3, 5, and 6 of this Act and, in
38-21    particular, shall study:
38-22                (1)  the effect of the changes in law made by Articles
38-23    5 and 6 of this Act on:
38-24                      (A)  fostering the development of a competitive
38-25    market for professional liability insurance for nursing
38-26    institutions; and
38-27                      (B)  improving the availability and affordability
 39-1    of professional liability insurance for nursing institutions; and
 39-2                (2)  the impact of awards of exemplary damages on rates
 39-3    for professional liability insurance for nursing homes.
 39-4          SECTION 10.03.  REPORTS. (a)  Not later than December 1,
 39-5    2002, the commissioner shall submit an interim report on the study
 39-6    conducted under Section 10.02 of this Act to the governor,
 39-7    lieutenant governor, and speaker of the house of representatives.
 39-8          (b)  Not later than December 1, 2004, the commissioner shall
 39-9    submit a final report on the study to the governor, lieutenant
39-10    governor, and speaker of the house of representatives. The final
39-11    report must include a recommendation as to whether the changes in
39-12    law made by Articles 5 and 6 of this Act should be repealed,
39-13    continued, or modified.
39-14          SECTION 10.04.  EXPIRATION. This article expires September 1,
39-15    2005.
39-16                        ARTICLE 11.  EFFECTIVE DATE
39-17          SECTION 11.01.  This Act takes effect immediately if it
39-18    receives a vote of two-thirds of all the members elected to each
39-19    house, as provided by Section 39, Article III, Texas Constitution.
39-20    If this Act does not receive the vote necessary for immediate
39-21    effect, this Act takes effect September 1, 2001.