1-1     By:  Moncrief, Duncan                                 S.B. No. 1839
 1-2           (In the Senate - Filed May 4, 2001; May 4, 2001, read first
 1-3     time and referred to Committee on Health and Human Services;
 1-4     May 8, 2001, reported adversely, with favorable Committee
 1-5     Substitute by the following vote:  Yeas 6, Nays 1; May 8, 2001,
 1-6     sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 1839                By:  Moncrief
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to certain long-term care facilities.
1-11           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12                      ARTICLE 1.  SHORT TITLE; PURPOSE
1-13           SECTION 1.01.  SHORT TITLE.  This Act may be cited as the
1-14     Long-Term Care Facility Improvement Act.
1-15           SECTION 1.02.  LEGISLATIVE INTENT; PURPOSE.  (a)  The
1-16     legislature specifically acknowledges an existing crisis
1-17     confronting long-term care facilities in Texas and the critical
1-18     importance of the services provided to Texans by these facilities,
1-19     and in particular to the growing population of older Texans.
1-20           (b)  In response to this crisis, this Act is intended to
1-21     ensure that long-term care facilities continue to be available to
1-22     provide care to Texans, that this care be of the highest quality,
1-23     and that the residents of these facilities be financially protected
1-24     by available and affordable professional liability insurance.
1-25           (c)  This Act includes extraordinary measures that are
1-26     necessary to address an emergency in long-term care in this state.
1-27     These measures are intended as temporary solutions that will
1-28     facilitate the efficient recovery of both for-profit and
1-29     not-for-profit private long-term care facilities so that, in the
1-30     future, these facilities will be financially sound and capable of
1-31     providing high-quality care.
1-32           (d)  With respect to the legal concepts incorporated in the
1-33     measures contained in this Act, the legislature does not intend for
1-34     these concepts to be applied outside the realm of long-term care.
1-35     Because the application of the measures contained in this Act in
1-36     relation to these legal concepts is temporary and because of the
1-37     extraordinary complexity and uniqueness of the crisis facing
1-38     nursing homes, these measures should not be construed as the
1-39     legislature's interpretation of the current law applicable to these
1-40     legal concepts.  In enacting the extraordinary measures contained
1-41     in this Act, the legislature specifically rejects any suggestion
1-42     that these measures represent solutions that are appropriate for
1-43     any area involving liability insurance, insurance practices, or
1-44     medical care other than long-term care facilities.
1-45         ARTICLE 2.  NOTICE OF EXEMPLARY DAMAGES IN CERTAIN ACTIONS
1-46           SECTION 2.01.  Subchapter B, Chapter 242, Health and Safety
1-47     Code, is amended by adding Section 242.051 to read as follows:
1-48           Sec. 242.051.  NOTIFICATION OF AWARD OF EXEMPLARY DAMAGES.
1-49     (a)  If exemplary damages are awarded under Chapter 41, Civil
1-50     Practice and Remedies Code, against an institution or an officer,
1-51     employee, or agent of an institution, the court shall notify the
1-52     department.
1-53           (b)  If the department receives notice under Subsection (a),
1-54     the department shall maintain the information contained in the
1-55     notice in the records of the department relating to the history of
1-56     the institution.
1-57           SECTION 2.02.  This article applies only to an award of
1-58     exemplary damages in a cause of action that accrues on or after
1-59     September 1, 2001.
1-60        ARTICLE 3.  ADMISSIBILITY OF CERTAIN EVIDENCE IN CIVIL ACTION
1-61           SECTION 3.01.  Subsections (i) and (k), Section 32.021, Human
1-62     Resources Code, are amended to read as follows:
1-63           (i)  A record of the department, including a record of
1-64     [Except as provided by Subsections (j) and (k),] a department
 2-1     survey, complaint investigation, incident investigation, or survey
 2-2     report, that relates to [documents that] an institution, including
 2-3     an intermediate care facility for the mentally retarded, may be
 2-4     introduced into evidence in a civil action, enforcement action, or
 2-5     related proceeding if the record is admissible under the Texas
 2-6     Rules of Evidence [has violated a standard for participation in the
 2-7     state Medicaid program, or the assessment of a monetary penalty by
 2-8     the department or the payment of a monetary penalty by the
 2-9     institution, is not admissible as evidence in a civil action to
2-10     prove that the institution has committed a violation].
2-11           (k)  A department surveyor or investigator may testify in a
2-12     civil action as to observations, factual findings, conclusions, or
2-13     violations of requirements for licensure or for certification for
2-14     participation in the state Medicaid program that were made in the
2-15     discharge of official duties for the department, if the testimony
2-16     is admissible under [in accordance with] the Texas Rules of [Civil]
2-17     Evidence.
2-18           SECTION 3.02.  Subchapter B, Chapter 242, Health and Safety
2-19     Code, is amended by adding Section 242.050 to read as follows:
2-20           Sec. 242.050.  ADMISSIBILITY OF CERTAIN DOCUMENTS OR
2-21     TESTIMONY.  Sections 32.021(i) and (k), Human Resources Code,
2-22     govern the admissibility in a civil action against an institution
2-23     of:
2-24                 (1)  a record of the department described by Section
2-25     32.021(i), Human Resources Code; or
2-26                 (2)  the testimony of a department surveyor or
2-27     investigator described by Section 32.021(k), Human Resources Code.
2-28           SECTION 3.03.  Subchapter B, Chapter 252, Health and Safety
2-29     Code, is amended by adding Section 252.045 to read as follows:
2-30           Sec. 252.045.  ADMISSIBILITY OF CERTAIN DOCUMENTS OR
2-31     TESTIMONY.  Sections 32.021(i) and (k), Human Resources Code,
2-32     govern the admissibility in a civil action against a facility of:
2-33                 (1)  a record of the department described by Section
2-34     32.021(i), Human Resources Code; or
2-35                 (2)  the testimony of a department surveyor or
2-36     investigator described by Section 32.021(k), Human Resources Code.
2-37           SECTION 3.04.  Subsection (j), Section 32.021, Human
2-38     Resources Code, is repealed.
2-39           SECTION 3.05.  This article applies only to a civil action,
2-40     enforcement action, or related proceeding that is commenced on or
2-41     after the effective date of this Act.  A civil action, enforcement
2-42     action, or related proceeding that is commenced before the
2-43     effective date of this Act is governed by the law applicable to the
2-44     action or proceeding immediately before the effective date of this
2-45     Act, and that law is continued in effect for that purpose.
2-46     ARTICLE 4.  DATA REPORTING FOR CERTAIN LIABILITY INSURANCE COVERAGE
2-47           SECTION 4.01.  Chapter 38, Insurance Code, is amended by
2-48     adding Subchapter F to read as follows:
2-49         SUBCHAPTER F.  DATA REPORTING BY CERTAIN LIABILITY INSURERS
2-50           Sec. 38.251.  INSURER DATA REPORTING.  (a)  Each insurer that
2-51     writes professional liability insurance policies for nursing
2-52     institutions licensed under Chapter 242, Health and Safety Code,
2-53     including an insurer whose rates are not regulated, shall, as a
2-54     condition of writing those policies in this state, comply with a
2-55     request for information from the commissioner under this section.
2-56           (b)  The commissioner may require information in rate
2-57     filings, special data calls, or informational hearings or by any
2-58     other means consistent with this code applicable to the affected
2-59     insurer that the commissioner believes will allow the commissioner
2-60     to:
2-61                 (1)  determine whether insurers writing insurance
2-62     coverage described by Subsection (a) are passing to insured nursing
2-63     institutions on a prospective basis the savings that accrue as a
2-64     result of the reduction in risk to insurers writing that coverage
2-65     that will result from legislation enacted by the 77th Legislature,
2-66     Regular Session, including legislation that:
2-67                       (A)  amended Article 5.15-1 to limit the exposure
2-68     of an insurer to exemplary damages for certain claims against a
2-69     nursing institution; and
 3-1                       (B)  amended Sections 32.021(i) and (k), Human
 3-2     Resources Code, added Section 242.050, Health and Safety Code, and
 3-3     repealed Section 32.021(j), Human Resources Code, to clarify the
 3-4     admissibility of certain documents in a civil action against a
 3-5     nursing institution; or
 3-6                 (2)  prepare the report required of the commissioner
 3-7     under Section 38.252 or any other report the commissioner is
 3-8     required to submit to the legislature in connection with the
 3-9     legislation described by Subdivision (1).
3-10           (c)  Information provided under this section is privileged
3-11     and confidential to the same extent as the information is
3-12     privileged and confidential under this code or any other law
3-13     governing an insurer described by Subsection (a).  The information
3-14     remains privileged and confidential unless and until introduced
3-15     into evidence at an administrative hearing or in a court of
3-16     competent jurisdiction.
3-17           Sec. 38.252.  RECOMMENDATIONS TO LEGISLATURE.  The
3-18     commissioner shall assemble information and take other appropriate
3-19     measures to assess and evaluate changes in the marketplace
3-20     resulting from the implementation of the legislation described by
3-21     Section 38.251 and shall report the commissioner's findings and
3-22     recommendations to the legislature.
3-23           ARTICLE 5.  AVAILABILITY OF AND COVERAGE UNDER CERTAIN
3-24                      PROFESSIONAL LIABILITY INSURANCE
3-25           SECTION 5.01.  Subdivision (2), Section 2, Article 5.15-1,
3-26     Insurance Code, is amended to read as follows:
3-27                 (2)  "Health care provider" means any person,
3-28     partnership, professional association, corporation, facility, or
3-29     institution licensed or chartered by the State of Texas to provide
3-30     health care as a registered nurse, hospital, dentist, podiatrist,
3-31     chiropractor, optometrist, pharmacist, veterinarian, not-for-profit
3-32     kidney dialysis center, blood bank that is a nonprofit corporation
3-33     chartered to operate a blood bank and which is accredited by the
3-34     American Association of Blood Banks, for-profit nursing home or
3-35     not-for-profit nursing home, or an officer, employee, or agent of
3-36     any of them acting in the course and scope of his employment.
3-37           SECTION 5.02.  Section 8, Article 5.15-1, Insurance Code, is
3-38     amended to read as follows:
3-39           Sec. 8.  EXEMPLARY [PUNITIVE] DAMAGES UNDER MEDICAL
3-40     PROFESSIONAL LIABILITY INSURANCE.  No policy of medical
3-41     professional liability insurance issued to or renewed for a health
3-42     care provider or physician in this state may include coverage for
3-43     exemplary [punitive] damages that may be assessed against the
3-44     health care provider or physician; provided, however, that the
3-45     commissioner may approve an endorsement form that provides for
3-46     coverage for exemplary [punitive] damages to be used on a policy of
3-47     medical professional liability insurance issued to a hospital, as
3-48     the term "hospital" is defined in this article, or to a for-profit
3-49     or not-for-profit nursing home.
3-50           SECTION 5.03.  Subchapter B, Chapter 5, Insurance Code, is
3-51     amended by adding Article 5.15-4 to read as follows:
3-52           Art. 5.15-4.  BEST PRACTICES FOR NURSING HOMES.  (a)  The
3-53     commissioner shall adopt best practices for risk management and
3-54     loss control that may be used by for-profit and not-for-profit
3-55     nursing homes.
3-56           (b)  In determining rates for professional liability
3-57     insurance applicable to a for-profit or not-for-profit nursing
3-58     home, an insurance company or the Texas Medical Liability Insurance
3-59     Underwriting Association may consider whether the nursing home
3-60     adopts and implements the best practices adopted by the
3-61     commissioner under Subsection (a) of this article.
3-62           (c)  In developing or amending best practices for for-profit
3-63     and not-for-profit nursing homes, the commissioner shall consult
3-64     with the Health and Human Services Commission and a task force
3-65     appointed by the commissioner.  The task force must be composed of
3-66     representatives of:
3-67                 (1)  insurance companies that write professional
3-68     liability insurance for nursing homes;
3-69                 (2)  the Texas Medical Liability Insurance Underwriting
 4-1     Association;
 4-2                 (3)  nursing homes; and
 4-3                 (4)  consumers.
 4-4           (d)  The best practices for risk management and loss control
 4-5     adopted under this article do not establish standards of care for
 4-6     nursing homes applicable in a civil action against a nursing home.
 4-7           SECTION 5.04.  Subdivision (6), Section 2, Article 21.49-3,
 4-8     Insurance Code, is amended to read as follows:
 4-9                 (6)  "Health care provider" means:
4-10                       (A)  any person, partnership, professional
4-11     association, corporation, facility, or institution duly licensed or
4-12     chartered by the State of Texas to provide health care as defined
4-13     in Section 1.03(a)(2) [1.03(2)], Medical Liability and Insurance
4-14     Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
4-15     Statutes), as:
4-16                             (i)  a registered nurse, hospital, dentist,
4-17     podiatrist, pharmacist, chiropractor, or optometrist;
4-18                             (ii)  a for-profit[,] or not-for-profit
4-19     nursing home;
4-20                             (iii)  [, or] a radiation therapy center
4-21     that is independent of any other medical treatment facility and
4-22     which is licensed by the Texas Department of Health in that
4-23     agency's capacity as the Texas [State] Radiation Control Agency
4-24     pursuant to the provisions of Chapter 401, Health and Safety Code,
4-25     and which is in compliance with the regulations promulgated under
4-26     that chapter;
4-27                             (iv)  [by the Texas State Radiation Control
4-28     Agency,] a blood bank that is a nonprofit corporation chartered to
4-29     operate a blood bank and which is accredited by the American
4-30     Association of Blood Banks;
4-31                             (v)  [,] a nonprofit corporation which is
4-32     organized for the delivery of health care to the public and which
4-33     is certified under Chapter 162, Occupations Code; [Article 4509a,
4-34     Revised Civil Statutes of Texas, 1925,] or
4-35                             (vi)  a [migrant] health center as defined
4-36     by 42 U.S.C. Section 254b [P.L. 94-63], as amended; [(42 U.S.C.
4-37     Section 254b), or a community health center as defined by P.L.
4-38     94-63, as amended (42 U.S.C. Section 254c), that is receiving
4-39     federal funds under an application approved under either Title IV,
4-40     P.L. 94-63, as amended (42 U.S.C. Section 254b), or Title V, P.L.
4-41     94-63, as amended (42 U.S.C. Section 254c),] or
4-42                       (B)  an officer, employee, or agent of any of
4-43     them acting in the course and scope of that person's [his]
4-44     employment.
4-45           SECTION 5.05.  Section 3A, Article 21.49-3, Insurance Code,
4-46     is amended by adding Subsection (c) to read as follows:
4-47           (c)  A for-profit or not-for-profit nursing home not
4-48     otherwise eligible under this section for coverage from the
4-49     association is eligible for coverage if the nursing home
4-50     demonstrates, in accordance with the requirements of the
4-51     association, that the nursing home made a verifiable effort to
4-52     obtain coverage from authorized insurers and eligible surplus lines
4-53     insurers and was unable to obtain substantially equivalent coverage
4-54     and rates.
4-55           SECTION 5.06.  Subdivision (1), Subsection (b), Section 4,
4-56     Article 21.49-3, Insurance Code, is amended to read as follows:
4-57                 (1)  The rates, rating plans, rating rules, rating
4-58     classification, territories, and policy forms applicable to the
4-59     insurance written by the association and statistics relating
4-60     thereto shall be subject to Subchapter B of Chapter 5 of the
4-61     Insurance Code, as amended, giving due consideration to the past
4-62     and prospective loss and expense experience for medical
4-63     professional liability insurance within and without this state of
4-64     all of the member companies of the association, trends in the
4-65     frequency and severity of losses, the investment income of the
4-66     association, and such other information as the commissioner [board]
4-67     may require; provided, that if any article of the above subchapter
4-68     is in conflict with any provision of this Act, this Act shall
4-69     prevail.  For purposes of this article, rates, rating plans, rating
 5-1     rules, rating classifications, territories, and policy forms for
 5-2     for-profit nursing homes are subject to the requirements of Article
 5-3     5.15-1 of this code to the same extent as not-for-profit nursing
 5-4     homes.
 5-5           SECTION 5.07.  Section 4A, Article 21.49-3, Insurance Code,
 5-6     is amended to read as follows:
 5-7           Sec. 4A.  POLICYHOLDER'S STABILIZATION RESERVE FUND.
 5-8     (a)  There is hereby created a policyholder's stabilization reserve
 5-9     fund which shall be administered as provided herein and in the plan
5-10     of operation of the association.  The purpose of the fund is to
5-11     ensure the financial soundness of the association.  The fund may be
5-12     used only for the purposes of this article.
5-13           (b)  Each policyholder shall pay annually into the
5-14     stabilization reserve fund a charge, the amount of which shall be
5-15     established annually by advisory directors chosen by health care
5-16     providers and physicians eligible for insurance in the association
5-17     in accordance with the plan of operation.  The charge shall be in
5-18     proportion to each premium payment due for liability insurance
5-19     through the association.  Such charge shall be separately stated in
5-20     the policy, but shall not constitute a part of premiums or be
5-21     subject to premium taxation, servicing fees, acquisition costs, or
5-22     any other such charges.
5-23           (c)  The [policyholder's] stabilization reserve fund shall be
5-24     collected and administered by the association and shall be treated
5-25     as a liability of the association along with and in the same manner
5-26     as premium and loss reserves.  The fund shall be valued annually by
5-27     the board of directors as of the close of the last preceding year.
5-28           (d)  Except as provided by Subsection (e) of this section,
5-29     collections [Collections] of the stabilization reserve fund charge
5-30     shall continue only until such time as the net balance of the
5-31     stabilization reserve fund is not less than the projected sum of
5-32     premiums to be written in the year following valuation date.
5-33           (e)  If in any fiscal year the incurred losses and defense
5-34     and cost containment expenses from physicians or any single
5-35     category of health care provider result in a net underwriting loss
5-36     and exceed 25 percent of the stabilization reserve fund, as valued
5-37     for that year, the commissioner may by order direct the initiation
5-38     or continuation of the stabilization reserve fund charge for
5-39     physicians or that category of health care provider until the fund
5-40     recovers the amount by which those losses and cost containment
5-41     expenses exceed 25 percent of the fund.
5-42           (f)  The stabilization reserve fund shall be credited with
5-43     all stabilization reserve fund charges collected from policyholders
5-44     and shall be charged with any deficit from the prior year's
5-45     operation of the association.
5-46           (g)  The stabilization reserve fund, and any earnings of the
5-47     fund, are state funds and shall be held by the comptroller outside
5-48     the state treasury on behalf of, and with legal title in, the
5-49     department.  No part of the fund, or the earnings of the fund, may
5-50     inure to the benefit of a member of the association, a
5-51     policyholder, or any other individual, and the assets of the fund
5-52     may be used in accordance with the association's plan of operation
5-53     only to implement this article and for the purposes of the
5-54     association, including making payment to satisfy, in whole or in
5-55     part, the liability of the association regarding a claim made on a
5-56     policy written by the association.
5-57           (h)  Notwithstanding Sections 11, 12, and 13 of this article,
5-58     the stabilization reserve fund may be terminated only by law.
5-59           (i)  Notwithstanding Section 11 of this article, on
5-60     termination of the stabilization reserve fund, all assets of the
5-61     fund shall be transferred to the general revenue fund to be
5-62     appropriated for purposes related to ensuring the kinds of
5-63     liability insurance coverage that may be provided by the
5-64     association under this article.
5-65           SECTION 5.08.  Article 21.49-3, Insurance Code, is amended by
5-66     adding Section 4B to read as follows:
5-67           Sec. 4B.  LIABILITY FOR EXEMPLARY DAMAGES; EXPIRATION.
5-68     (a)  The association is not liable for exemplary damages under a
5-69     professional liability insurance policy that covers a for-profit or
 6-1     not-for-profit nursing home and that excludes coverage for
 6-2     exemplary damages awarded in relation to a covered claim awarded
 6-3     under Chapter 41, Civil Practice and Remedies Code, or any other
 6-4     law.  This subsection applies without regard to the application of
 6-5     the common law theory of recovery commonly known in Texas as the
 6-6     "Stowers Doctrine." This subsection does not affect the application
 6-7     of that doctrine to the liability of the association for
 6-8     compensatory damages.
 6-9           (b)  This section does not affect the contractual duties
6-10     imposed under an insurance policy.
6-11           (c)  This section does not prohibit a for-profit or
6-12     not-for-profit nursing home from purchasing a policy to cover
6-13     exemplary damages.
6-14           (d)  This section applies only to the liability of the
6-15     association for exemplary damages under an insurance policy
6-16     delivered, issued for delivery, or renewed by the association to a
6-17     for-profit or not-for-profit nursing home on or after January 1,
6-18     2002, and applies only to coverage provided under the policy for
6-19     any portion of the term of the policy that occurs before January 1,
6-20     2006.  This section applies only to the liability of the
6-21     association for exemplary damages with respect to a claim for which
6-22     a notice of loss or notice of occurrence was made, or should have
6-23     been made, in accordance with the terms of the policy, on or after
6-24     January 1, 2002, but before January 1, 2006.
6-25           (e)  This section expires January 1, 2007.
6-26           SECTION 5.09.  Subchapter E, Chapter 21, Insurance Code, is
6-27     amended by adding Article 21.49-3d to read as follows:
6-28           Art. 21.49-3d.  REVENUE BOND PROGRAM AND PROCEDURES FOR
6-29     CERTAIN LIABILITY INSURANCE
6-30           Sec. 1.  LEGISLATIVE FINDING; PURPOSE.  The legislature finds
6-31     that the issuance of bonds to provide a method to raise funds to
6-32     provide professional liability insurance through the association
6-33     for nursing homes in this state is for the benefit of the public
6-34     and in furtherance of a public purpose.
6-35           Sec. 2.  DEFINITIONS.  In this article:
6-36                 (1)  "Association" means the joint underwriting
6-37     association established under Article 21.49-3 of this code.
6-38                 (2)  "Bond resolution" means the resolution or order
6-39     authorizing the bonds to be issued under this article.
6-40                 (3)  "Board" means the board of directors of the Texas
6-41     Public Finance Authority.
6-42                 (4)  "Insurer" means any insurer required to be a
6-43     member of the association under Section 3, Article 21.49-3 of this
6-44     code.
6-45           Sec. 3.  BONDS AUTHORIZED; APPLICATION OF TEXAS PUBLIC
6-46     FINANCE AUTHORITY ACT.  (a)  On behalf of the fund, the Texas
6-47     Public Finance Authority shall issue revenue bonds to:
6-48                 (1)  fund the policyholder's stabilization reserve fund
6-49     established under Section 4A, Article 21.49-3 of this code;
6-50                 (2)  pay costs related to issuance of the bonds; and
6-51                 (3)  pay other costs related to the bonds as may be
6-52     determined by the board.
6-53           (b)  To the extent not inconsistent with this article,
6-54     Chapter 1232, Government Code, applies to bonds issued under this
6-55     article.  In the event of a conflict, this article controls.
6-56           Sec. 4.  APPLICABILITY OF OTHER STATUTES.  The following laws
6-57     apply to bonds issued under this article to the extent consistent
6-58     with this article:
6-59                 (1)  Chapters 1201, 1202, 1204, 1205, 1231, and 1371,
6-60     Government Code; and
6-61                 (2)  Subchapter A, Chapter 1206, Government Code.
6-62           Sec. 5.  LIMITS.  The Texas Public Finance Authority may
6-63     issue, on behalf of the association, bonds in a total amount not to
6-64     exceed $75 million.
6-65           Sec. 6.  CONDITIONS.  (a)  Bonds may be issued at public or
6-66     private sale.
6-67           (b)  Bonds may mature not more than 10 years after the date
6-68     issued.
6-69           (c)  Bonds must be issued in the name of the association.
 7-1           Sec. 7.  ADDITIONAL COVENANTS.  In a bond resolution, the
 7-2     board may make additional covenants with respect to the bonds and
 7-3     the designated income and receipts of the association pledged to
 7-4     their payment and may provide for the flow of funds and the
 7-5     establishment, maintenance, and investment of funds and accounts
 7-6     with respect to the bonds.
 7-7           Sec. 8.  SPECIAL ACCOUNTS.  (a)  A bond resolution may
 7-8     establish special accounts, including an interest and sinking fund
 7-9     account, reserve account, and other accounts.
7-10           (b)  The association shall administer the accounts in
7-11     accordance with Article 21.49-3 of this code.
7-12           Sec. 9.  SECURITY.  (a)  Bonds are payable only from the
7-13     maintenance tax surcharge established in Section 10 of this article
7-14     or other sources the fund is authorized to levy, charge, and
7-15     collect in connection with paying any portion of the bonds.
7-16           (b)  Bonds are obligations solely of the association.  Bonds
7-17     do not create a pledging, giving, or lending of the faith, credit,
7-18     or taxing authority of this state.
7-19           (c)  Each bond must include a statement that the state is not
7-20     obligated to pay any amount on the bond and that the faith, credit,
7-21     and taxing authority of this state are not pledged, given, or lent
7-22     to those payments.
7-23           (d)  Each bond issued under this article must state on its
7-24     face that the bond is payable solely from the revenues pledged for
7-25     that purpose and that the bond does not and may not constitute a
7-26     legal or moral obligation of the state.
7-27           Sec. 10.  MAINTENANCE TAX SURCHARGE.  (a)  A maintenance tax
7-28     surcharge is assessed against:
7-29                 (1)  each insurer; and
7-30                 (2)  the association.
7-31           (b)  The maintenance tax surcharge shall be set in an amount
7-32     sufficient to pay all debt service on the bonds.  The maintenance
7-33     tax surcharge is set by the commissioner in the same time and shall
7-34     be collected by the comptroller on behalf of the association in the
7-35     same manner as applicable maintenance taxes are collected under
7-36     Article 5.24 of this code.
7-37           (c)  On determining the rate of assessment, the department
7-38     shall increase the maintenance tax rate applicable to correctly
7-39     reported gross premiums for liability insurance to a rate
7-40     sufficient to pay all debt service on the bonds, subject to the
7-41     maximum maintenance tax rate applicable to the insurer under
7-42     Article 5.24 of this code.  If the resulting tax rate is
7-43     insufficient to pay all debt service on the bonds, the department
7-44     may assess an additional surcharge not to exceed one percent of
7-45     correctly reported gross premiums for liability insurance to cover
7-46     all debt service on the bonds.  In this code, the maintenance tax
7-47     surcharge includes the additional maintenance tax assessed under
7-48     this subsection and the surcharge assessed under this subsection to
7-49     pay all debt service of the bonds.
7-50           (d)  The association and each insurer may pass through the
7-51     maintenance tax surcharge to each of its policyholders.
7-52           (e)  As a condition of engaging in the business of insurance
7-53     in this state, an insurer agrees that if the company leaves the
7-54     market for liability insurance in this state the insurer remains
7-55     obligated to pay, until the bonds are retired, the insurer's share
7-56     of the maintenance tax surcharge assessed under this section in an
7-57     amount proportionate to that insurer's share of the market for
7-58     liability insurance in this state as of the last complete reporting
7-59     period before the date on which the insurer ceases to engage in
7-60     that insurance business in this state.  The proportion assessed
7-61     against the insurer shall be based on the insurer's gross premiums
7-62     for liability insurance for the insurer's last reporting period.
7-63     However, an insurer is not required to pay the proportionate amount
7-64     in any year in which the surcharge assessed against insurers
7-65     continuing to write liability insurance in this state is sufficient
7-66     to service the bond obligation.
7-67           Sec. 11.  TAX EXEMPT.  The bonds issued under this article,
7-68     and any interest from the bonds, and all assets pledged to secure
7-69     the payment of the bonds are free from taxation by the state or a
 8-1     political subdivision of this state.
 8-2           Sec. 12.  AUTHORIZED INVESTMENTS.  The bonds issued under
 8-3     this article constitute authorized investments under Article 2.10
 8-4     and Subpart A, Part I, Article 3.39 of this code.
 8-5           Sec. 13.  STATE PLEDGE.  The state pledges to and agrees with
 8-6     the owners of any bonds issued in accordance with this article that
 8-7     the state will not limit or alter the rights vested in the
 8-8     association to fulfill the terms of any agreements made with the
 8-9     owners of the bonds or in any way impair the rights and remedies of
8-10     those owners until the bonds, any premium or interest, and all
8-11     costs and expenses in connection with any action or proceeding by
8-12     or on behalf of those owners are fully met and discharged.  The
8-13     association may include this pledge and agreement of the state in
8-14     any agreement with the owners of the bonds.
8-15           Sec. 14.  ENFORCEMENT BY MANDAMUS.  A writ of mandamus and
8-16     all other legal and equitable remedies are available to any party
8-17     at interest to require the association and any other party to carry
8-18     out agreements and to perform functions and duties under this
8-19     article, the Texas Constitution, or a bond resolution.
8-20           SECTION 5.10.  Not later than December 1, 2001, the
8-21     commissioner of insurance shall adopt the initial best practices
8-22     for for-profit and not-for-profit nursing homes adopted as required
8-23     by Article 5.15-4, Insurance Code, as added by this article.
8-24           SECTION 5.11.  Sections 2, 3A, and 4, Article 21.49-3,
8-25     Insurance Code, as amended by this article, apply only to an
8-26     insurance policy delivered, issued for delivery, or renewed on or
8-27     after January 1, 2002.  A policy delivered, issued for delivery, or
8-28     renewed before January 1, 2002, is governed by the law as it
8-29     existed immediately before the effective date of this Act, and that
8-30     law is continued in effect for that purpose.
8-31                ARTICLE 6.  MANDATORY LIABILITY INSURANCE FOR
8-32                            NURSING INSTITUTIONS
8-33           SECTION 6.01.  Subchapter B, Chapter 242, Health and Safety
8-34     Code, is amended by adding Section 242.0372 to read as follows:
8-35           Sec. 242.0372.  LIABILITY INSURANCE COVERAGE.  (a)  In this
8-36     section, "health care liability claim" has the meaning assigned by
8-37     the Medical Liability and Insurance Improvement Act of Texas
8-38     (Article 4590i, Vernon's Texas Civil Statutes).
8-39           (b)  To hold a license under this chapter, an institution
8-40     must maintain professional liability insurance coverage against the
8-41     liability of the institution for a health care liability claim.
8-42           (c)  The insurance coverage maintained by an institution
8-43     under this section must:
8-44                 (1)  provide coverage annually in the minimum amount of
8-45     $1 million per occurrence and $3 million aggregate;
8-46                 (2)  be written on a claims-made basis;
8-47                 (3)  be issued by:
8-48                       (A)  an admitted insurer authorized to write
8-49     professional liability insurance in this state;
8-50                       (B)  the Texas Medical Liability Insurance
8-51     Underwriting Association established under Article 21.49-3,
8-52     Insurance Code; or
8-53                       (C)  an eligible surplus lines insurer in
8-54     accordance with Article 1.14-2, Insurance Code; and
8-55                 (4)  be in a form acceptable to the department.
8-56           (d)  To the extent permitted by federal law and applicable
8-57     state and federal rules, the cost of insurance coverage required to
8-58     be maintained under this section is an allowable cost for
8-59     reimbursement under the state Medicaid program.
8-60           SECTION 6.02.  (a)  Notwithstanding Section 242.0372, Health
8-61     and Safety Code, as added by this article, and subject to
8-62     Subsection (b) of this section, an institution licensed under
8-63     Chapter 242, Health and Safety Code, is not required to maintain
8-64     professional liability insurance as required by that section before
8-65     September 1, 2002.
8-66           (b)  Before September 1, 2003, the Texas Department of Human
8-67     Services may not take any enforcement action, including an action
8-68     to suspend or revoke a license, because an institution fails to
8-69     maintain professional liability insurance as required by Section
 9-1     242.0372, Health and Safety Code, as added by this article, if the
 9-2     department determines, considering the totality of the
 9-3     circumstances, that the institution does not have the financial
 9-4     ability to obtain the insurance without jeopardizing the quality of
 9-5     care to residents.
 9-6                  ARTICLE 7.  SURVEYS AND RELATED PROCESSES
 9-7           SECTION 7.01.  Chapter 22, Human Resources Code, is amended
 9-8     by adding Section 22.037 to read as follows:
 9-9           Sec. 22.037.  TRAINING AND CONTINUING EDUCATION RELATED TO
9-10     CERTAIN LONG-TERM CARE FACILITIES.  (a)  In this section:
9-11                 (1)  "Long-term care facility" means a nursing
9-12     institution, an assisted living facility, or an intermediate care
9-13     facility for the mentally retarded licensed under Chapter 242, 247,
9-14     or 252, Health and Safety Code.
9-15                 (2)  "Provider" means an employee or agent of a
9-16     long-term care facility.
9-17                 (3)  "Surveyor" means an employee or agent of the
9-18     department or another state agency responsible for licensing,
9-19     inspecting, surveying, or investigating a long-term care facility
9-20     in relation to:
9-21                       (A)  licensing under Chapter 242, 247, or 252,
9-22     Health and Safety Code; or
9-23                       (B)  certification for participation in the
9-24     medical assistance program in accordance with Chapter 32.
9-25           (b)  The department shall require a surveyor to complete a
9-26     basic training program before the surveyor inspects, surveys, or
9-27     investigates a long-term care facility.  The training must include
9-28     observation of the operations of a long-term care facility
9-29     unrelated to the survey, inspection, or investigation process for a
9-30     minimum of 10 working days within a 14-day period.
9-31           (c)  The department shall semiannually provide training for
9-32     surveyors and providers on subjects that address at least one of
9-33     the 10 most common violations by long-term care facilities under
9-34     federal or state law.
9-35           (d)  Except as provided by Subsection (e), a surveyor who is
9-36     a health care professional licensed under the laws of this state
9-37     must receive a minimum of 50 percent of the professional's required
9-38     continuing education credits, if any, in gerontology or care for
9-39     individuals with cognitive or physical disabilities, as
9-40     appropriate.
9-41           (e)  A surveyor who is a pharmacist must receive a minimum of
9-42     30 percent of the pharmacist's required continuing education
9-43     credits in gerontology or care for individuals with cognitive or
9-44     physical disabilities, as appropriate.
9-45           SECTION 7.02.  Subchapter B, Chapter 531, Government Code, is
9-46     amended by adding Sections 531.056, 531.057, and 531.058 to read as
9-47     follows:
9-48           Sec. 531.056.  REVIEW OF SURVEY PROCESS IN CERTAIN
9-49     INSTITUTIONS AND FACILITIES.  (a)  The commission shall adopt
9-50     procedures to review:
9-51                 (1)  citations or penalties assessed for a violation of
9-52     a rule or law against an institution or facility licensed under
9-53     Chapter 242, 247, or 252, Health and Safety Code, or certified in
9-54     accordance with Chapter 32, Human Resources Code, considering:
9-55                       (A)  the number of violations by geographic
9-56     region;
9-57                       (B)  the patterns of violations in each region;
9-58     and
9-59                       (C)  the outcomes following the assessment of a
9-60     penalty or citation; and
9-61                 (2)  the performance of duties by employees and agents
9-62     of the Texas Department of Human Services or another state agency
9-63     responsible for licensing, inspecting, surveying, or investigating
9-64     institutions and facilities licensed under Chapter 242, 247, or
9-65     252, Health and Safety Code, or certified in accordance with
9-66     Chapter 32, Human Resources Code, related to:
9-67                       (A)  complaints received by the commission; or
9-68                       (B)  any standards or rules violated by an
9-69     employee or agent of a state agency.
 10-1          (b)  The commission shall annually report to the speaker of
 10-2    the house of representatives, the lieutenant governor, and the
 10-3    governor on the findings of the review conducted under Subsection
 10-4    (a).
 10-5          Sec. 531.057.  QUALITY ASSURANCE EARLY WARNING SYSTEM FOR
 10-6    LONG-TERM CARE FACILITIES; RAPID RESPONSE TEAMS.  (a)  In this
 10-7    section:
 10-8                (1)  "Long-term care facility" means a nursing
 10-9    institution, an assisted living facility, or an intermediate care
10-10    facility for the mentally retarded licensed under Chapter 242, 247,
10-11    or 252, Health and Safety Code, or certified under Chapter 32,
10-12    Human Resources Code.
10-13                (2)  "Quality-of-care monitor" means a registered
10-14    nurse, pharmacist, or nutritionist who:
10-15                      (A)  is employed by the commission;
10-16                      (B)  is trained and experienced in long-term care
10-17    facility regulation, standards of practice in long-term care, and
10-18    evaluation of patient care; and
10-19                      (C)  functions independently of the Texas
10-20    Department of Human Services.
10-21          (b)  The commission shall establish an early warning system
10-22    to detect conditions that could be detrimental to the health,
10-23    safety, and welfare of residents.  The early warning system shall
10-24    include analysis of financial and quality-of-care indicators that
10-25    would predict the need for the commission to take action.
10-26          (c)  The commission shall establish regional offices with one
10-27    or more quality-of-care monitors, based on the number of long-term
10-28    care facilities in the region, to monitor the facilities in the
10-29    region on a regular, unannounced, aperiodic basis, including
10-30    nights, evenings, weekends, and holidays.
10-31          (d)  Priority for monitoring visits shall be given to
10-32    long-term care facilities with a history of patient care
10-33    deficiencies.
10-34          (e)  Quality-of-care monitors may not be deployed by the
10-35    commission as a part of the regional survey team in the conduct of
10-36    routine, scheduled surveys.
10-37          (f)  A quality-of-care monitor may not interfere with,
10-38    impede, or otherwise adversely affect the performance of the duties
10-39    of a surveyor, inspector, or investigator of the Texas Department
10-40    of Human Services.
10-41          (g)  Quality-of-care monitors shall assess:
10-42                (1)  the overall quality of life in the long-term care
10-43    facility; and
10-44                (2)  specific conditions in the facility directly
10-45    related to patient care.
10-46          (h)  The quality-of-care monitor shall include in an
10-47    assessment visit:
10-48                (1)  observation of the care and services rendered to
10-49    residents; and
10-50                (2)  formal and informal interviews with residents,
10-51    family members, facility staff, resident guests, volunteers, other
10-52    regulatory staff, and representatives of a human rights advocacy
10-53    committee.
10-54          (i)  The identity of a resident or a family member of a
10-55    resident interviewed by a quality-of-care monitor as provided by
10-56    Subsection (h)(2) shall remain confidential and may not be
10-57    disclosed to any person under any other provision of this section.
10-58          (j)  The findings of a monitoring visit, both positive and
10-59    negative, shall be provided orally and in writing to the long-term
10-60    care facility administrator or, in the absence of the facility
10-61    administrator, to the administrator on duty or the director of
10-62    nursing.
10-63          (k)  The quality-of-care monitor may recommend to the
10-64    long-term care facility administrator procedural and policy changes
10-65    and staff training to improve the care or quality of life of
10-66    facility residents.
10-67          (l)  Conditions observed by the quality-of-care monitor that
10-68    create an immediate threat to the health or safety of a resident
10-69    shall be reported immediately to the regional office supervisor for
 11-1    appropriate action and, as appropriate or as required by law, to
 11-2    law enforcement, adult protective services, or other responsible
 11-3    agencies.
 11-4          (m)  The commission shall create rapid response teams
 11-5    composed of health care experts that can visit long-term care
 11-6    facilities identified through the commission's early warning
 11-7    system.
 11-8          (n)  Rapid response teams may visit long-term care facilities
 11-9    that request the commission's assistance.  A visit under this
11-10    subsection may not occur before the 60th day after the date of an
11-11    exit interview following an annual or follow-up survey or
11-12    inspection.
11-13          (o)  The rapid response teams may not be deployed for the
11-14    purpose of helping a long-term care facility prepare for a regular
11-15    inspection or survey conducted under Chapter 242, 247, or 252,
11-16    Health and Safety Code, or in accordance with Chapter 32, Human
11-17    Resources Code.
11-18          Sec. 531.058.  INFORMAL DISPUTE RESOLUTION FOR CERTAIN
11-19    LONG-TERM CARE FACILITIES.  (a)  The commission by rule shall
11-20    establish an informal dispute resolution process in accordance with
11-21    this section.  The process must provide for adjudication by an
11-22    appropriate disinterested person of disputes relating to a proposed
11-23    enforcement action or related proceeding of the Texas Department of
11-24    Human Services under Section 32.021(d), Human Resources Code, or
11-25    Chapter 242, 247, or 252, Health and Safety Code.  The informal
11-26    dispute resolution process must require:
11-27                (1)  the institution or facility to request informal
11-28    dispute resolution not later than the 10th calendar day after
11-29    notification by the department of the violation of a standard or
11-30    standards;
11-31                (2)  the commission to complete the process not later
11-32    than the 30th calendar day after receipt of a request from the
11-33    institution or facility for informal dispute resolution; and
11-34                (3)  any individual representing an institution or
11-35    facility in an informal dispute resolution process to register with
11-36    the commission and disclose the following:
11-37                      (A)  the individual's employment history during
11-38    the preceding five years, including employment in regulatory
11-39    agencies of this state and other states;
11-40                      (B)  ownership, including the identity of the
11-41    controlling person or persons, of the institution or facility the
11-42    individual is representing before the commission; and
11-43                      (C)  the identity of other entities the
11-44    individual represents or has represented before the commission
11-45    during the previous 24 months.
11-46          (b)  The commission shall adopt rules to adjudicate claims in
11-47    contested cases.
11-48          (c)  The commission may not delegate its responsibility to
11-49    administer the informal dispute resolution process established by
11-50    this section to another state agency.
11-51          SECTION 7.03.  Subsection (d), Section 32.021, Human
11-52    Resources Code, is amended to read as follows:
11-53          (d)  The department shall include in its contracts for the
11-54    delivery of medical assistance by nursing facilities provisions for
11-55    monetary penalties to be assessed for violations as required by 42
11-56    U.S.C. Section 1396r, including without limitation the Omnibus
11-57    Budget Reconciliation Act (OBRA), P.L. 100-203, Nursing Home Reform
11-58    Amendments of 1987, provided that the department shall:
11-59                (1)  provide for an informal dispute resolution process
11-60    in the Health and Human Services Commission as provided by Section
11-61    531.058, Government Code [department's central office; the informal
11-62    dispute resolution process shall:]
11-63                      [(A)  require the institution to request informal
11-64    dispute resolution no later than the 10th calendar day after
11-65    notification by the department of a violation of a standard or
11-66    standards;]
11-67                      [(B)  require the department to complete the
11-68    process no later than the 30th calendar day after receipt of a
11-69    request from the institution for informal dispute resolution; and]
 12-1                      [(C)  require any individual representing an
 12-2    institution in an informal dispute resolution process to register
 12-3    with the department and disclose the following:]
 12-4                            [(i)  the individual's five-year employment
 12-5    history during the preceding five years, including employment in
 12-6    regulatory agencies of this state and other states;]
 12-7                            [(ii)  ownership, including the identity of
 12-8    the controlling person or persons, of the institution the person is
 12-9    representing before the department; and]
12-10                            [(iii)  the identity of other entities the
12-11    person represents or has represented before the agency during the
12-12    previous 24 months]; and
12-13                (2)  develop rules to adjudicate claims in contested
12-14    cases, including claims unresolved by the informal dispute
12-15    resolution process of the Health and Human Services Commission.
12-16          SECTION 7.04.  Not later than January 1, 2002, the
12-17    commissioner of health and human services shall adopt any rules
12-18    necessary to implement Sections 531.056, 531.057, and 531.058,
12-19    Government Code, as added by this article.
12-20          SECTION 7.05.  Not later than January 1, 2002, the Texas
12-21    Department of Human Services shall develop training necessary to
12-22    implement Section 22.037, Human Resources Code, as added by this
12-23    article.
12-24          SECTION 7.06.  (a)  Effective January 1, 2002:
12-25                (1)  all property and records in the custody of the
12-26    Texas Department of Human Services related to the informal dispute
12-27    resolution function under Subsection (d), Section 32.021, Human
12-28    Resources Code, as it existed before amendment by this article, and
12-29    all funds appropriated by the legislature to the Texas Department
12-30    of Human Services for the function are transferred to the Health
12-31    and Human Services Commission;
12-32                (2)  a rule or form adopted by the Texas Department of
12-33    Human Services that relates to the informal dispute resolution
12-34    function under Subsection (d), Section 32.021, Human Resources
12-35    Code, as it existed before amendment by this article, is a rule or
12-36    form of the Health and Human Services Commission and remains in
12-37    effect until altered by that agency;
12-38                (3)  the assumption of the informal dispute resolution
12-39    function by the Health and Human Services Commission does not
12-40    affect or impair any act done, any obligation, right, order,
12-41    license, permit, rule, criterion, standard, or requirement
12-42    existing, any investigation begun, or any penalty accrued under
12-43    former law, and that law remains in effect for any action
12-44    concerning those matters; and
12-45                (4)  an action brought or proceeding commenced before
12-46    the assumption by the Health and Human Services Commission of the
12-47    informal dispute resolution function under this article is
12-48    effected, including a contested case or a remand of an action or
12-49    proceeding by a reviewing court, is governed by the law and rules
12-50    applicable to the action or proceeding before the date of the
12-51    assumption of the function by the Health and Human Services
12-52    Commission.
12-53          (b)  In implementing Section 531.057, Government Code, as
12-54    added by this article, the Health and Human Services Commission may
12-55    not transfer to the commission employees or funding from the
12-56    regulatory functions of the Texas Department of Human Services.
12-57                  ARTICLE 8.  AMELIORATION OF VIOLATIONS
12-58          SECTION 8.01.  Section 242.071, Health and Safety Code, is
12-59    amended to read as follows:
12-60          Sec. 242.071.  AMELIORATION OF VIOLATION.  (a)  In lieu of
12-61    demanding [ordering] payment of an [the] administrative penalty
12-62    assessed under Section 242.066 [242.069], the commissioner may, in
12-63    accordance with this section, allow [require] the person to use,
12-64    under the supervision of the department, any portion of the penalty
12-65    to ameliorate the violation or to improve services, other than
12-66    administrative services, in the institution affected by the
12-67    violation.
12-68          (b)  The department shall offer amelioration to a person for
12-69    a charged violation if the department determines that the violation
 13-1    does not constitute immediate jeopardy to the health and safety of
 13-2    an institution resident.
 13-3          (c)  The department may not offer amelioration to a person
 13-4    if:
 13-5                (1)  the person has been charged with a violation which
 13-6    is subject to correction under Section 242.0665; or
 13-7                (2)  the department determines that the charged
 13-8    violation constitutes immediate jeopardy to the health and safety
 13-9    of an institution resident.
13-10          (d)  The department shall offer amelioration to a person
13-11    under this section not later than the 10th day after the date the
13-12    person receives from the department a final notification of
13-13    assessment of administrative penalty that is sent to the person
13-14    after an informal dispute resolution process but before an
13-15    administrative hearing under Section 242.068.
13-16          (e)  A person to whom amelioration has been offered must file
13-17    a plan for amelioration not later than the 45th day after the date
13-18    the person receives the offer of amelioration from the department.
13-19    In submitting the plan, the person must agree to waive the person's
13-20    right to an administrative hearing under Section 242.068 if the
13-21    department approves the plan.
13-22          (f)  At a minimum, a plan for amelioration must:
13-23                (1)  propose changes to the management or operation of
13-24    the institution that will improve services to or quality of care of
13-25    residents of the institution;
13-26                (2)  identify, through measurable outcomes, the ways in
13-27    which and the extent to which the proposed changes will improve
13-28    services to or quality of care of residents of the institution;
13-29                (3)  establish clear goals to be achieved through the
13-30    proposed changes;
13-31                (4)  establish a timeline for implementing the proposed
13-32    changes; and
13-33                (5)  identify specific actions necessary to implement
13-34    the proposed changes.
13-35          (g)  The department may require that an amelioration plan
13-36    propose changes that would result in conditions that exceed the
13-37    requirements of this chapter or the rules adopted under this
13-38    chapter.
13-39          (h)  The department shall approve or deny an amelioration
13-40    plan not later than the 45th day after the date the department
13-41    receives the plan.  On approval of a person's plan, the department
13-42    shall deny a pending request for a hearing submitted by the person
13-43    under Section 242.067(d).
13-44          (i)  The department may not offer amelioration to a person:
13-45                (1)  more than three times in a two-year period; or
13-46                (2)  more than one time in a two-year period for the
13-47    same or similar violation.
13-48          (j)  In this section, "immediate jeopardy to health and
13-49    safety" means a situation in which there is a high probability that
13-50    serious harm or injury to a resident could occur at any time or
13-51    already has occurred and may occur again if the resident is not
13-52    protected from the harm or if the threat is not removed.
13-53          SECTION 8.02.  Section 252.071, Health and Safety Code, is
13-54    amended to read as follows:
13-55          Sec. 252.071.  AMELIORATION OF VIOLATION.  (a)  In lieu of
13-56    demanding [ordering] payment of an administrative penalty
13-57    authorized by this subchapter, the department may allow [require] a
13-58    person subject to the penalty to use, under the supervision of the
13-59    department, all or part of the amount of the penalty to ameliorate
13-60    the violation or to improve services, other than administrative
13-61    services, in the facility affected by the violation.
13-62          (b)  The department shall offer amelioration to a person for
13-63    a charged violation if the department determines that the violation
13-64    does not constitute immediate jeopardy to the health and safety of
13-65    a facility resident.
13-66          (c)  The department may not offer amelioration to a person if
13-67    the department determines that the charged violation constitutes
13-68    immediate jeopardy to the health and safety of a facility resident.
13-69          (d)  The department shall offer amelioration to a person
 14-1    under this section not later than the 10th day after the date the
 14-2    person receives from the department a final notification of
 14-3    assessment of administrative penalty that is sent to the person
 14-4    after an informal dispute resolution process but before an
 14-5    administrative hearing under Section 252.067.
 14-6          (e)  A person to whom amelioration has been offered must file
 14-7    a plan for amelioration not later than the 45th day after the date
 14-8    the person receives the offer of amelioration from the department.
 14-9    In submitting the plan, the person must agree to waive the person's
14-10    right to an administrative hearing under Section 252.067 if the
14-11    department approves the plan.
14-12          (f)  At a minimum, a plan for amelioration must:
14-13                (1)  propose changes to the management or operation of
14-14    the facility that will improve services to or quality of care of
14-15    residents of the facility;
14-16                (2)  identify, through measurable outcomes, the ways in
14-17    which and the extent to which the proposed changes will improve
14-18    services to or quality of care of residents of the facility;
14-19                (3)  establish clear goals to be achieved through the
14-20    proposed changes;
14-21                (4)  establish a timeline for implementing the proposed
14-22    changes; and
14-23                (5)  identify specific actions necessary to implement
14-24    the proposed changes.
14-25          (g)  The department may require that an amelioration plan
14-26    propose changes that would result in conditions that exceed the
14-27    requirements of this chapter or the rules adopted under this
14-28    chapter.
14-29          (h)  The department shall approve or deny an amelioration
14-30    plan not later than the 45th day after the date the department
14-31    receives the plan.  On approval of a person's plan, the department
14-32    shall deny a pending request for a hearing submitted by the person
14-33    under Section 252.066(b).
14-34          (i)  The department may not offer amelioration to a person:
14-35                (1)  more than three times in a two-year period; or
14-36                (2)  more than one time in a two-year period for the
14-37    same or similar violation.
14-38          (j)  In this section, "immediate jeopardy to health and
14-39    safety" means a situation in which there is a high probability that
14-40    serious harm or injury to a resident could occur at any time or
14-41    already has occurred and may occur again if the resident is not
14-42    protected from the harm or if the threat is not removed.
14-43          SECTION 8.03.  This article applies only to a violation that
14-44    occurs on or after the effective date of this Act.  A violation
14-45    that occurs before that date is covered by the law in effect on the
14-46    date the violation occurred, and the former law is continued in
14-47    effect for that purpose.
14-48                     ARTICLE 9.  QUALITY ASSURANCE FEE
14-49          SECTION 9.01.  Chapter 242, Health and Safety Code, is
14-50    amended by adding Subchapter Q to read as follows:
14-51                   SUBCHAPTER Q.  QUALITY ASSURANCE FEE
14-52          Sec. 242.851.  DEFINITION.  In this subchapter, "gross
14-53    receipts" means money paid as compensation for services provided to
14-54    residents, including client participation.  The term does not
14-55    include charitable contributions to an institution.
14-56          Sec. 242.852.  COMPUTING QUALITY ASSURANCE FEE.  (a)  A
14-57    quality assurance fee is imposed on each institution for which a
14-58    license fee must be paid under Section 242.034.  The fee is:
14-59                (1)  an amount established under Subsection (b)
14-60    multiplied by the number of patient days as determined in
14-61    accordance with Section 242.853;
14-62                (2)  payable monthly; and
14-63                (3)  in addition to other fees imposed under this
14-64    chapter.
14-65          (b)  The Health and Human Services Commission or the
14-66    department at the direction of the commission shall set the quality
14-67    assurance fee for each day in the amount necessary to produce
14-68    annual revenues equal to six percent of the institution's total
14-69    annual gross receipts in this state.  The fee is subject to a
 15-1    prospective adjustment as necessary.
 15-2          (c)  The amount of the quality assurance fee must be
 15-3    determined using patient days and gross receipts reported to the
 15-4    department and covering a period of at least six months.
 15-5          (d)  The quality assurance fee is an allowable cost for
 15-6    reimbursement under the state Medicaid program.
 15-7          Sec. 242.853.  PATIENT DAYS.  For each calendar day, an
 15-8    institution shall determine the number of patient days by adding
 15-9    the following:
15-10                (1)  the number of patients occupying an institution
15-11    bed immediately before midnight of that day;
15-12                (2)  the number of beds that are on hold on that day
15-13    and that have been placed on hold for a period not to exceed five
15-14    consecutive calendar days during which a patient is in the
15-15    hospital; and
15-16                (3)  the number of beds that are on hold on that day
15-17    and that have been placed on hold for a period not to exceed 14
15-18    consecutive calendar days during which a patient is on therapeutic
15-19    home leave.
15-20          Sec. 242.854.  REPORTING AND COLLECTION.  (a)  The Health and
15-21    Human Services Commission or the department at the direction of the
15-22    commission shall collect the quality assurance fee.
15-23          (b)  Each institution shall:
15-24                (1)  not later than the 10th day after the last day of
15-25    a month file a report with the Health and Human Services Commission
15-26    or the department, as appropriate, stating the total patient days
15-27    for the month; and
15-28                (2)  not later than the 30th day after the last day of
15-29    the month pay the quality assurance fee.
15-30          Sec. 242.855.  RULES; ADMINISTRATIVE PENALTY.  (a)  The
15-31    Health and Human Services Commission shall adopt rules for the
15-32    administration of this subchapter, including rules related to the
15-33    imposition and collection of the quality assurance fee.
15-34          (b)  The Health and Human Services Commission may not adopt
15-35    rules granting any exceptions from the quality assurance fee.
15-36          (c)  An administrative penalty assessed under this subchapter
15-37    in accordance with Section 242.066 may not exceed one-half of the
15-38    amount of the outstanding quality assurance fee or $20,000,
15-39    whichever is greater.
15-40          Sec. 242.856.  QUALITY ASSURANCE FUND.  (a)  The quality
15-41    assurance fund is a fund outside the state treasury held by the
15-42    Texas Treasury Safekeeping Trust Company.  Notwithstanding any
15-43    other law, the comptroller shall deposit fees collected under this
15-44    subchapter to the credit of the fund.
15-45          (b)  The quality assurance fund is composed of:
15-46                (1)  fees deposited to the credit of the fund under
15-47    this subchapter; and
15-48                (2)  the earnings of the fund.
15-49          (c)  Money deposited to the quality assurance fund remains
15-50    the property of the fund and may be used only for the purposes of
15-51    this subchapter.
15-52          (d)  Subject to legislative appropriation and this
15-53    subchapter, quality assurance fees collected under this subchapter,
15-54    combined with federal matching funds, will support or maintain an
15-55    increase in Medicaid reimbursement for institutions.
15-56          Sec. 242.857.  REIMBURSEMENT OF INSTITUTIONS.  (a)  The
15-57    Health and Human Services Commission shall use money in the quality
15-58    assurance fund, together with any federal money available to match
15-59    that money, to:
15-60                (1)  offset allowable expenses under the state Medicaid
15-61    program; or
15-62                (2)  increase reimbursement rates paid under the
15-63    Medicaid program to institutions.
15-64          (b)  The Health and Human Services Commission or the
15-65    department at the direction of the commission shall devise the
15-66    formula by which amounts received under this section increase the
15-67    reimbursement rates paid to institutions under the state Medicaid
15-68    program.
15-69          (c)  The Health and Human Services Commission shall ensure
 16-1    that the formula devised under Subsection (b) provides incentives
 16-2    for institutions to increase direct care staffing and direct care
 16-3    wages and benefits.
 16-4          Sec. 242.858.  INVALIDITY; FEDERAL FUNDS.  If  any portion of
 16-5    this subchapter is held invalid by a final order of a court that is
 16-6    not subject to appeal, or if the Health and Human Services
 16-7    Commission determines that the imposition of the fee and the
 16-8    expenditure as prescribed by this subchapter of amounts collected
 16-9    will not entitle the state to receive additional federal funds
16-10    under the Medicaid program, the commission shall stop collection of
16-11    the quality assurance fee and shall return, not later than the 30th
16-12    day after the date collection is stopped, any money collected, but
16-13    not spent, under this subchapter to the institutions that paid the
16-14    fees in proportion to the total amount paid by those institutions.
16-15          Sec. 242.859.  LEGISLATIVE REVIEW; EXPIRATION.  The 79th
16-16    Legislature shall review the operation and effectiveness of this
16-17    subchapter.  Unless continued in effect by the 79th Legislature,
16-18    this subchapter expires effective September 1, 2005.
16-19          SECTION 9.02.  Notwithstanding Section 242.852, Health and
16-20    Safety Code, as added by this article, the quality assurance fee
16-21    imposed under Subchapter Q, Chapter 242, Health and Safety Code, as
16-22    added by this article, that is effective for the first month
16-23    following the effective date of this Act is equal to $5.25
16-24    multiplied by the number of patient days as determined under that
16-25    subchapter.  The quality assurance fee established under this
16-26    section remains in effect until the Health and Human Services
16-27    Commission, or the Texas Department of Human Services at the
16-28    direction of the commission, obtains the information necessary to
16-29    set the fee under Section 242.852, Health and Safety Code, as added
16-30    by this article.
16-31          SECTION 9.03.  As soon as practicable after the effective
16-32    date of this Act, the Health and Human Services Commission shall
16-33    adopt rules as necessary to implement Subchapter Q, Chapter 242,
16-34    Health and Safety Code, as added by this article.
16-35          SECTION 9.04.  If before implementing any provision of this
16-36    article a state agency determines a waiver or authorization from a
16-37    federal agency is necessary for implementation of that provision,
16-38    the agency affected by the provision shall request the waiver or
16-39    authorization and may delay implementing that provision until the
16-40    waiver or authorization is granted.
16-41        ARTICLE 10.  TEXAS DEPARTMENT OF INSURANCE STUDY AND REPORT
16-42          SECTION 10.01.  DEFINITIONS.  In this article:
16-43                (1)  "Commissioner" means the commissioner of
16-44    insurance.
16-45                (2)  "Department" means the Texas Department of
16-46    Insurance.
16-47          SECTION 10.02.  STUDY.  The department shall study the
16-48    implementation of Articles 3, 5, and 6 of this Act and, in
16-49    particular, shall study:
16-50                (1)  the effect of the changes in law made by Articles
16-51    5 and 6 of this Act on:
16-52                      (A)  fostering the development of a competitive
16-53    market for professional liability insurance for nursing
16-54    institutions; and
16-55                      (B)  improving the availability and affordability
16-56    of professional liability insurance for nursing institutions; and
16-57                (2)  the impact of awards of exemplary damages on rates
16-58    for professional liability insurance for nursing homes.
16-59          SECTION 10.03.  REPORTS.  (a)  Not later than December 1,
16-60    2002, the commissioner shall submit an interim report on the study
16-61    conducted under Section 10.02 of this Act to the governor,
16-62    lieutenant governor, and speaker of the house of representatives.
16-63          (b)  Not later than December 1, 2004, the commissioner shall
16-64    submit a final report on the study to the governor, lieutenant
16-65    governor, and speaker of the house of representatives.
16-66          SECTION 10.04.  EXPIRATION.  This article expires September
16-67    1, 2005.
16-68                ARTICLE 11.  EFFECT OF ACT; EFFECTIVE DATE
16-69          SECTION 11.01.  To the extent of any conflict, this Act
 17-1    prevails over any other Act of the 77th Legislature, Regular
 17-2    Session, 2001, regardless of the relative dates of enactment,
 17-3    including an Act that purports to:
 17-4                (1)  affect the admissibility in a civil action,
 17-5    enforcement action, or related proceeding of evidence subject to
 17-6    Subsections (i) and (k), Section 32.021, Human Resources Code, as
 17-7    amended by this Act, or Sections 242.050 or 252.045, Health and
 17-8    Safety Code, as added by this Act;
 17-9                (2)  affect coverage for for-profit or not-for-profit
17-10    nursing homes under Articles 5.15-1 and 21.49-3, Insurance Code, or
17-11    funding for the joint underwriting association under Article
17-12    21.49-3, Insurance Code;
17-13                (3)  affect the liability of the joint underwriting
17-14    association established under Article 21.49-3, Insurance Code, for
17-15    exemplary damages awarded under Chapter 41, Civil Practice and
17-16    Remedies Code;
17-17                (4)  require a nursing home to maintain liability
17-18    insurance coverage;
17-19                (5)  require training for surveyors of long-term care
17-20    facilities, as described by Section 22.037, Human Resources Code,
17-21    as added by this Act;
17-22                (6)  require review of the survey process for certain
17-23    long-term care facilities, as described by Section 531.056,
17-24    Government Code, as added by this Act;
17-25                (7)  establish a quality assurance early warning system
17-26    for certain long-term care facilities, as described by Section
17-27    531.057, Government Code, as added by this Act;
17-28                (8)  affect informal dispute resolution of disputes
17-29    subject to Section 531.058, Government Code, as added by this Act;
17-30                (9)  affect amelioration of violations subject to
17-31    Sections 242.071 and 252.071, Health and Safety Code; or
17-32                (10)  establish a quality assurance fee for nursing
17-33    homes, as described by Subchapter Q, Chapter 242, Health and Safety
17-34    Code, as added by this Act.
17-35          SECTION 11.02.  This Act takes effect immediately if it
17-36    receives a vote of two-thirds of all the members elected to each
17-37    house, as provided by Section 39, Article III, Texas Constitution.
17-38    If this Act does not receive the vote necessary for immediate
17-39    effect, this Act takes effect September 1, 2001.
17-40                                 * * * * *