By: Madla S.B. No. 1498
A BILL TO BE ENTITLED
AN ACT
relating to the licensing and regulation of home and community
support services agencies.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 142.001, Health and Safety Code, is
amended by amending Subdivisions (6), (13), and (22) and adding
Subdivision (22-a) to read as follows:
(6) "Certified agency" means a home and community
support services agency, or a portion of the agency, that:
(A) provides a home health service; and
(B) is certified by an official of the Department
of Health and Human Services as in compliance with conditions of
participation in Title XVIII, Social Security Act (42 U.S.C.
Section 1395 et seq.).
(13) "Home health service" means the provision of one
or more of the following health services required by an individual
in a residence or independent living environment:
(A) nursing, including blood pressure monitoring
and diabetes treatment;
(B) physical, occupational, speech, or
respiratory therapy;
(C) medical social service;
(D) intravenous therapy;
(E) dialysis;
(F) service provided by unlicensed personnel
under the delegation or supervision of a licensed health
professional;
(G) the furnishing of medical equipment and
supplies, excluding drugs and medicines; or
(H) nutritional counseling.
(22) "Personal assistance service" means routine
ongoing care or services required by an individual in a residence or
independent living environment that enable the individual to engage
in the activities of daily living or to perform the physical
functions required for independent living, including respite
services. The term includes:
(A) personal care;
(B) health-related services performed under
circumstances that are defined as not constituting the practice of
professional nursing by the Board of Nurse Examiners through a
memorandum of understanding with the department in accordance with
Section 142.016; and
(C) health-related tasks provided by unlicensed
personnel under the delegation of a registered nurse or that a
registered nurse determines do not require delegation.
(22-a) "Personal care" means the provision of one or
more of the following services required by an individual in a
residence or independent living environment:
(A) bathing;
(B) dressing;
(C) grooming;
(D) feeding;
(E) exercising;
(F) toileting;
(G) positioning;
(H) assisting with self-administered
medications;
(I) routine hair and skin care; and
(J) transfer or ambulation.
SECTION 2. Section 142.002, Health and Safety Code, is
amended by adding Subsection (f) to read as follows:
(f) A person who is not licensed to provide personal
assistance services under this chapter may not indicate or imply
that the person is licensed to provide personal assistance services
by the use of the words "personal assistance services" or in any
other manner.
SECTION 3. Subsection (a), Section 142.003, Health and
Safety Code, is amended to read as follows:
(a) The following persons need not be licensed under this
chapter:
(1) a physician, dentist, registered nurse,
occupational therapist, or physical therapist licensed under the
laws of this state who provides home health services to a client
only as a part of and incidental to that person's private office
practice;
(2) a registered nurse, licensed vocational nurse,
physical therapist, occupational therapist, speech therapist,
medical social worker, or any other health care professional as
determined by the department who provides home health services as a
sole practitioner;
(3) a registry that operates solely as a clearinghouse
to put consumers in contact with persons who provide home health,
hospice, or personal assistance services and that does not maintain
official client records, direct client services, or compensate the
person who is providing the service;
(4) an individual whose permanent residence is in the
client's residence;
(5) an employee of a person licensed under this
chapter who provides home health, hospice, or personal assistance
services only as an employee of the license holder and who receives
no benefit for providing the services, other than wages from the
license holder;
(6) a home, nursing home, convalescent home, assisted
living facility, special care facility, or other institution for
individuals who are elderly or who have disabilities that provides
home health or personal assistance services only to residents of
the home or institution;
(7) a person who provides one health service through a
contract with a person licensed under this chapter;
(8) a durable medical equipment supply company;
(9) a pharmacy or wholesale medical supply company
that does not furnish services, other than supplies, to a person at
the person's house;
(10) a hospital or other licensed health care facility
that provides home health or personal assistance services only to
inpatient residents of the hospital or facility;
(11) a person providing home health or personal
assistance services to an injured employee under Title 5, Labor
Code;
(12) a visiting nurse service that:
(A) is conducted by and for the adherents of a
well-recognized church or religious denomination; and
(B) provides nursing services by a person exempt
from licensing by Section 301.004, Occupations Code, because the
person furnishes nursing care in which treatment is only by prayer
or spiritual means;
(13) an individual hired and paid directly by the
client or the client's family or legal guardian to provide home
health or personal assistance services;
(14) a business, school, camp, or other organization
that provides home health or personal assistance services,
incidental to the organization's primary purpose, to individuals
employed by or participating in programs offered by the business,
school, or camp that enable the individual to participate fully in
the business's, school's, or camp's programs;
(15) a person or organization providing
sitter-companion services or chore or household services that do
not involve personal care, health, or health-related services;
(16) a licensed health care facility that provides
hospice services under a contract with a hospice;
(17) a person delivering residential acquired immune
deficiency syndrome hospice care who is licensed and designated as
a residential AIDS hospice under Chapter 248; [or]
(18) a person that provides home health, hospice, or
personal assistance services only to persons enrolled in a program
funded wholly or partly by the Texas Department of Mental Health and
Mental Retardation and monitored by the Texas Department of Mental
Health and Mental Retardation or its designated local authority in
accordance with standards set by the Texas Department of Mental
Health and Mental Retardation;
(19) the Texas Department of Criminal Justice; or
(20) an individual who provides home health or
personal assistance services as the employee of a consumer or an
entity or employee of an entity acting as a consumer's fiscal agent
under Section 531.051, Government Code.
SECTION 4. Subsection (j), Section 142.009, Health and
Safety Code, is amended to read as follows:
(j) Except as provided by Subsections (h)[, (i),] and (l),
an on-site survey must be conducted within 18 months after a survey
for an initial license. After that time, an on-site survey must be
conducted at least every 36 months.
SECTION 5. Subsections (a) and (b), Section 142.016, Health
and Safety Code, are amended to read as follows:
(a) The Board of Nurse Examiners and the department shall
adopt a memorandum of understanding governing the circumstances
under which the provision of health-related tasks or services do
not constitute the practice of professional nursing. The agencies
periodically [annually] shall review and shall renew or modify the
memorandum as necessary.
(b) The Board of Nurse Examiners and the department shall
consult with an advisory committee in developing, modifying, or
renewing the memorandum of understanding. The advisory committee
shall be appointed by the Board of Nurse Examiners and the
department and at a minimum shall include:
(1) one representative from the Board of Nurse
Examiners and one representative from the department to serve as
cochairmen;
(2) one representative from the Texas Department of
Mental Health and Mental Retardation;
(3) [one representative from the Texas Department of
Human Services;
[(4)] one representative from the Texas Nurses
Association;
(4) [(5)] one representative from the Texas
Association for Home Care, Incorporated, or its successor;
(5) [(6)] one representative from the Texas Hospice
Organization, Incorporated, or its successor;
(6) [(7)] one representative of the Texas Respite
Resource Network or its successor; and
(7) [(8)] two representatives of organizations such
as the Personal Assistance Task Force or the Disability Consortium
that advocate for clients in community-based settings.
SECTION 6. Subsections (b) and (c), Section 142.018, Health
and Safety Code, are amended to read as follows:
(b) A home and community support services agency that has
cause to believe that a person receiving services from the agency
has been abused, exploited, or neglected by an employee of the
agency shall report the information to:
(1) the department; and
(2) the Department of Protective and Regulatory
Services or other appropriate state agency as required by Section
48.051 [Sections 48.036 and 48.082], Human Resources Code.
(c) This section does not affect the duty or authority of
any state agency to conduct an investigation of alleged abuse,
exploitation, or neglect as provided by other law. An
investigation of alleged abuse, exploitation, or neglect may be
conducted without an on-site survey, as appropriate.
SECTION 7. Section 253.008, Health and Safety Code, is
amended to read as follows:
Sec. 253.008. VERIFICATION OF EMPLOYABILITY. (a) Before a
facility, [or] an agency licensed under Chapter 142, or a person
exempt from licensing under Section 142.003(a)(18) may hire an
employee, the facility, [or] agency, or person shall search the
employee misconduct registry under this chapter and the nurse aide
registry maintained under the Omnibus Budget Reconciliation Act of
1987 (Pub. L. No. 100-203) to determine whether the applicant for
employment [person] is designated in either registry as having
abused, neglected, or exploited a resident or consumer of a
facility or an individual receiving services from an agency
licensed under Chapter 142 or from a person exempt from licensing
under Section 142.003(a)(18).
(b) A facility, [or] agency licensed under Chapter 142, or a
person exempt from licensing under Section 142.003(a)(18) may not
employ a person who is listed in either registry as having abused,
neglected, or exploited a resident or consumer of a facility or an
individual receiving services from an agency licensed under Chapter
142 or from a person exempt from licensing under Section
142.003(a)(18).
SECTION 8. Subsection (a), Section 253.009, Health and
Safety Code, is amended to read as follows:
(a) Each facility, [or] each agency licensed under Chapter
142, and each person exempt from licensing under Section
142.003(a)(18) shall notify its employees in a manner prescribed by
the department:
(1) about the employee misconduct registry; and
(2) that an employee may not be employed if the
employee is listed in the registry.
SECTION 9. Subdivision (1), Section 48.401, Human Resources
Code, is amended to read as follows:
(1) "Agency" means:
(A) an entity licensed under Chapter 142, Health
and Safety Code; or
(B) a person exempt from licensing under Section
142.003(a)(18), Health and Safety Code.
SECTION 10. The following sections are repealed:
(1) Subsections (d), (e), and (f), Section 142.006,
Health and Safety Code;
(2) Subsection (i), Section 142.009, Health and Safety
Code; and
(3) Section 142.0176, Health and Safety Code.
SECTION 11. This Act takes effect September 1, 2003.
COMMITTEE AMENDMENT NO. 1
Amend C.S.S.B. 1498 as follows:
On page 9, line 15, insert a new SECTION 9 and renumber subsequent
sections accordingly:
SECTION 9. Section 250.001(3), Health and Safety Code, is
amended to read as follows:
(3) "Facility" means:
(A) a nursing home, custodial care home, or other
institution licensed by the Texas Department of Human Services
under Chapter 242;
(B) an assisted living facility licensed by the
Texas Department of Human Services under Chapter 247;
(C) a home and community support services
[health] agency licensed under Chapter 142;
(D) an adult day care facility licensed by the
Texas Department of Human Services under Chapter 103, Human
Resources Code;
(E) a facility for persons with mental
retardation licensed under Chapter 252;
(F) [an unlicensed attendant care agency that
contracts with the Texas Department of Human Services;
[(G)] an adult foster care provider that
contracts with the Texas Department of Human Services;
(G) [(H)] a facility that provides mental health
services and that is operated by or contracts with the Texas
Department of Mental Health and Mental Retardation; or
(H) [(J)] a local mental health or mental
retardation authority designated under Section 533.035[.] or;
(I) [Blank]
(J) a person exempt from licensing under Chapter
142.003(a)(18).
Wohlgemuth
COMMITTEE AMENDMENT NO. 2
Amend C.S.S.B. 1498, as follows:
On page 6, line 14, add a new SECTION 4 and renumber subsequent
sections accordingly:
SECTION 4. Section 142.0062(a), Health and Safety Code is
amended to read as follows:
(a) A home and community support services agency or its
employees who are registered nurses or licensed vocational nurses
may purchase, store, or transport for the purpose of administering
to the agency's employees, home health or hospice patients, or
patient family members under physician's standing orders the
following dangerous drugs:
(1) hepatitis B vaccine;
(2) influenza vaccine; [and]
(3) tuberculin purified protein derivative for
tuberculosis; and
(4) pneumoccal polysaccharide vaccine.
Wohlgemuth