By: Janek  S.B. No. 1318
         (In the Senate - Filed March 7, 207; March 19, 2007, read
  first time and referred to Committee on Health and Human Services;
  April 17, 2007, reported adversely, with favorable Committee
  Substitute by the following vote:  Yeas 8, Nays 0; April 17, 2007,
  sent to printer.)
 
  COMMITTEE SUBSTITUTE FOR S.B. No. 1318 By:  Janek
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to the regulation of adult day-care facilities and certain
  long-term care facilities, including the establishment of late fees
  and changes to administrative penalties, and relating to the office
  of the state long-term care ombudsman.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subsection (m), Section 32.021, Human Resources
  Code, is amended to read as follows:
         (m)  Notwithstanding any provision of law to the contrary,
  the department shall terminate a nursing facility's provider
  agreement if the department has imposed required Category 2 or
  Category 3 remedies on the facility three times within a 24-month
  period.  The executive director of the Health and Human Services
  Commission by rule shall establish criteria under which the
  requirement to terminate the provider agreement may be waived
  [unless the department makes an affirmative finding that good cause
  exists to waive this requirement to facilitate a change in
  ownership to protect residents of a facility]. In this subsection,
  "Category 2 remedies" and "Category 3 remedies" have the meanings
  assigned by 42 C.F.R. Section 488.408.
         SECTION 2.  Subdivision (2), Section 101.051, Human
  Resources Code, is amended to read as follows:
               (2)  "Long-term care facility" means a facility that
  serves persons who are 60 years of age or older and that is licensed
  or regulated or that is required to be licensed or regulated by the
  [Texas] Department of Aging and Disability [Human] Services under
  Chapter 242 or 247, Health and Safety Code.
         SECTION 3.  Subsection (b), Section 103.006, Human
  Resources Code, is amended to read as follows:
         (b)  The license expires two years [one year] from the date
  of its issuance. The executive commissioner of the Health and Human
  Services Commission by rule may adopt a system under which licenses
  expire on various dates during the two-year period. For the year in
  which a license expiration date is changed, the department shall
  prorate the license fee on a monthly basis.  Each license holder
  shall pay only that portion of the license fee allocable to the
  number of months for which the license is valid.  A license holder
  shall pay the total license renewal fee at the time of renewal.
         SECTION 4.  Section 103.007, Human Resources Code, is
  amended by amending Subsections (a) and (c) and adding Subsection
  (d) to read as follows:
         (a)  An applicant for a license to operate an adult day-care
  facility must file an application on a form prescribed by the
  department together with a license fee of $50 [$25].
         (c)  A person who operates a facility that is licensed under
  this chapter must file an application for a renewal license not
  later than the 45th day before the expiration date of the current
  license on a form prescribed by the department together with a
  renewal fee of $50 [$25].
         (d)  An applicant for a license renewal who submits an
  application later than the 45th day before the expiration date of
  the license is subject to a late fee in accordance with department
  rules.
         SECTION 5.  Subsection (b), Section 142.006, Health and
  Safety Code, is amended to read as follows:
         (b)  A license issued under this chapter expires two years
  [one year] after the date of issuance. The executive commissioner
  of the Health and Human Services Commission by rule may adopt a
  system under which licenses expire on various dates during the
  two-year period. For the year in which a license expiration date is
  changed, the department shall prorate the license fee on a monthly
  basis.  Each license holder shall pay only that portion of the
  license fee allocable to the number of months for which the license
  is valid.  A license holder shall pay the total license renewal fee
  at the time of renewal. The department may issue an initial
  license for a shorter term [of less than one year] to conform
  expiration dates for a locality or an applicant. The department[,
  in accordance with board rules,] may issue a temporary license to an
  applicant for an initial license.
         SECTION 6.  Subsection (a), Section 142.010, Health and
  Safety Code, is amended to read as follows:
         (a)  The department [board] shall set license fees for home
  and community support services agencies in amounts that are
  reasonable to meet the costs of administering this chapter, except
  that the fees may not be less than $600 [$300] or more than $2,000
  [$1,000] for a license to provide home health, hospice, or personal
  assistance services.
         SECTION 7.  Section 142.0105, Health and Safety Code, is
  amended to read as follows:
         Sec. 142.0105.  LICENSE RENEWAL.  (a)  A person who is
  otherwise eligible to renew a license may renew an unexpired
  license by submitting a completed application for renewal and
  paying the required renewal fee to the department not later than the
  45th day before the expiration date of the license. A person whose
  license has expired may not engage in activities that require a
  license [until the license has been renewed].
         (b)  An applicant for a license renewal who submits an
  application later than the 45th day before the expiration date of
  the license is subject to a late fee in accordance with department
  rules [A person whose license has been expired for 90 days or less
  may renew the license by paying to the department a renewal fee that
  is equal to 1-1/2 times the normally required renewal fee].
         (c)  [A person whose license has been expired for more than
  90 days may obtain a new license by complying with the requirements
  and procedures for obtaining an original license.
         [(d)]  Not later than the 120th [60th] day before the date a
  person's license is scheduled to expire, the department shall send
  written notice of the impending expiration to the person at the
  person's last known address according to the records of the
  department. The written notice must include an application for
  license renewal and instructions for completing the application.
         SECTION 8.  Section 142.017, Health and Safety Code, is
  amended by amending Subsection (e) and adding Subsection (j) to
  read as follows:
         (e)  Except as provided by Subsection (j), the [The]
  department by rule shall provide the home and community support
  services agency with a reasonable period of time following the
  first day of a violation to correct the violation before assessing
  an administrative penalty if a plan of correction has been
  implemented.
         (j)  The department may assess an administrative penalty
  without providing a reasonable period of time to the agency to
  correct the violation if the violation:
               (1)  results in serious harm or death;
               (2)  constitutes a serious threat to health or safety;
               (3)  substantially limits the agency's capacity to
  provide care;
               (4)  is a violation in which a person:
                     (A)  makes a false statement, that the person
  knows or should know is false, of a material fact:
                           (i)  on an application for issuance or
  renewal of a license or in an attachment to the application; or
                           (ii)  with respect to a matter under
  investigation by the department;
                     (B)  refuses to allow a representative of the
  department to inspect a book, record, or file required to be
  maintained by an agency;
                     (C)  wilfully interferes with the work of a
  representative of the department or the enforcement of this
  chapter;
                     (D)  wilfully interferes with a representative of
  the department preserving evidence of a violation of this chapter
  or a rule, standard, or order adopted or license issued under this
  chapter;
                     (E)  fails to pay a penalty assessed by the
  department under this chapter not later than the 10th day after the
  date the assessment of the penalty becomes final; or
                     (F)  fails to submit:
                           (i)  a plan of correction not later than the
  10th day after the date the person receives a statement of licensing
  violations; or
                           (ii)  an acceptable plan of correction not
  later than the 30th day after the date the person receives
  notification from the department that the previously submitted plan
  of correction is not acceptable;
               (5)  is a violation of Section 142.0145; or
               (6)  involves the rights of the elderly under Chapter
  102, Human Resources Code.
         SECTION 9.  Section 242.032, Health and Safety Code, is
  amended by adding Subsection (f) to read as follows:
         (f)  Information obtained under this section regarding an
  applicant's or license holder's financial condition is confidential
  and may not be disclosed to the public.
         SECTION 10.  Section 242.034, Health and Safety Code, is
  amended by adding Subsection (i) to read as follows:
         (i)  An applicant for license renewal who submits an
  application later than the 45th day before the expiration date of a
  current license is subject to a late fee in accordance with
  department rules.
         SECTION 11.  Subsection (a), Section 242.066, Health and
  Safety Code, is amended to read as follows:
         (a)  The department may assess an administrative penalty
  against a person who:
               (1)  violates this chapter or a rule, standard, or
  order adopted or license issued under this chapter;
               (2)  makes a false statement, that the person knows or
  should know is false, of a material fact:
                     (A)  on an application for issuance or renewal of
  a license or in an attachment to the application; or
                     (B)  with respect to a matter under investigation
  by the department;
               (3)  refuses to allow a representative of the
  department to inspect:
                     (A)  a book, record, or file required to be
  maintained by an institution; or
                     (B)  any portion of the premises of an
  institution;
               (4)  wilfully interferes with the work of a
  representative of the department or the enforcement of this
  chapter;
               (5)  wilfully interferes with a representative of the
  department preserving evidence of a violation of this chapter or a
  rule, standard, or order adopted or license issued under this
  chapter; [or]
               (6)  fails to pay a penalty assessed by the department
  under this chapter not later than the 10th day after the date the
  assessment of the penalty becomes final; or
               (7)  fails to notify the department of a change of
  ownership before the effective date of the change of ownership.
         SECTION 12.  Subsection (b), Section 242.0665, Health and
  Safety Code, is amended to read as follows:
         (b)  Subsection (a) does not apply:
               (1)  to a violation that the department determines:
                     (A)  results in serious harm to or death of a
  resident;
                     (B)  constitutes a serious threat to the health or
  safety of a resident; or
                     (C)  substantially limits the institution's
  capacity to provide care;
               (2)  to a violation described by Sections
  242.066(a)(2)-(7) [242.066(a)(2)-(6)];
               (3)  to a violation of Section 242.133 or 242.1335; or
               (4)  to a violation of a right of a resident adopted
  under Subchapter L.
         SECTION 13.  Subsections (a) and (b), Section 247.023,
  Health and Safety Code, are amended to read as follows:
         (a)  The department shall issue a license if, after
  inspection and investigation, it finds that the applicant, the
  assisted living facility, and all controlling persons with respect
  to the applicant or facility meet the requirements of this chapter
  and the standards adopted under this chapter. The license expires
  on the second anniversary of the date of its issuance. The
  executive commissioner of the Health and Human Services Commission
  by rule may adopt a system under which licenses expire on various
  dates during the two-year period. For the year in which a license
  expiration date is changed, the department shall prorate the
  license fee on a monthly basis. Each license holder shall pay only
  that portion of the license fee allocable to the number of months
  during which the license is valid.  A license holder shall pay the
  total license renewal fee at the time of renewal.
         (b)  To renew a license, the license holder must submit to
  the department the [annual] license renewal fee.
         SECTION 14.  Section 247.024, Health and Safety Code, is
  amended by amending Subsection (a) and adding Subsection (e) to
  read as follows:
         (a)  The department [board] shall set license fees imposed by
  this chapter:
               (1)  on the basis of the number of beds in assisted
  living facilities required to pay the fee; and
               (2)  in amounts reasonable and necessary to defray the
  cost of administering this chapter, but not to exceed $1,500
  [$750].
         (e)  An applicant who submits a license renewal later than
  the 45th day before the expiration date of a current license is
  subject to a late fee in accordance with department rules.
         SECTION 15.  Subsection (a), Section 247.0451, Health and
  Safety Code, is amended to read as follows:
         (a)  The department may assess an administrative penalty
  against a person who:
               (1)  violates this chapter or a rule, standard, or
  order adopted under this chapter or a term of a license issued under
  this chapter;
               (2)  makes a false statement, that the person knows or
  should know is false, of a material fact:
                     (A)  on an application for issuance or renewal of
  a license or in an attachment to the application; or
                     (B)  with respect to a matter under investigation
  by the department;
               (3)  refuses to allow a representative of the
  department to inspect:
                     (A)  a book, record, or file required to be
  maintained by an assisted living facility; or
                     (B)  any portion of the premises of an assisted
  living facility;
               (4)  wilfully interferes with the work of a
  representative of the department or the enforcement of this
  chapter;
               (5)  wilfully interferes with a representative of the
  department preserving evidence of a violation of this chapter or a
  rule, standard, or order adopted under this chapter or a term of a
  license issued under this chapter; [or]
               (6)  fails to pay a penalty assessed under this chapter
  not later than the 30th day after the date the assessment of the
  penalty becomes final; or
               (7)  fails to notify the department of a change of
  ownership before the effective date of the change of ownership.
         SECTION 16.  Subsection (b), Section 247.0452, Health and
  Safety Code, is amended to read as follows:
         (b)  Subsection (a) does not apply:
               (1)  to a violation that the department determines
  results in serious harm to or death of a resident;
               (2)  to a violation described by Sections
  247.0451(a)(2)-(7) [247.0451(a)(2)-(6)];
               (3)  to a second or subsequent violation of:
                     (A)  a right of the same resident under Section
  247.064; or
                     (B)  the same right of all residents under Section
  247.064; or
               (4)  to a violation described by Section 247.066, which
  contains its own right to correct provisions.
         SECTION 17.  Section 252.034, Health and Safety Code, is
  amended by adding Subsection (f) to read as follows:
         (f)  An applicant who submits an application for license
  renewal later than the 45th day before the expiration date of a
  current license is subject to a late fee in accordance with
  department rules.
         SECTION 18.  Subsections (a) and (e), Section 252.065,
  Health and Safety Code, are amended to read as follows:
         (a)  The department may assess an administrative penalty
  against a person who:
               (1)  violates this chapter or a rule, standard, or
  order adopted or license issued under this chapter;
               (2)  makes a false statement, that the person knows or
  should know is false, of a material fact:
                     (A)  on an application for issuance or renewal of
  a license or in an attachment to the application; or
                     (B)  with respect to a matter under investigation
  by the department;
               (3)  refuses to allow a representative of the
  department to inspect:
                     (A)  a book, record, or file required to be
  maintained by the institution; or
                     (B)  any portion of the premises of an
  institution;
               (4)  wilfully interferes with the work of a
  representative of the department or the enforcement of this
  chapter;
               (5)  wilfully interferes with a representative of the
  department preserving evidence of a violation of this chapter or a
  rule, standard, or order adopted or license issued under this
  chapter;
               (6)  fails to pay a penalty assessed by the department
  under this chapter not later than the 10th day after the date the
  assessment of the penalty becomes final;
               (7)  fails to submit a plan of correction within 10 days
  after receiving a statement of licensing violations; or
               (8)  fails to notify the department of a change in
  ownership before the effective date of that change of ownership
  [facility that violates this chapter or a rule adopted under this
  chapter].
         (e)  The department by rule shall provide the facility with a
  reasonable period of time, not less than 45 days, following the
  first day of a violation to correct the violation before assessing
  an administrative penalty if a plan of correction has been
  implemented. This subsection does not apply to a violation
  described by Subsections (a)(2)-(8) or to a violation that the
  department determines:
               (1)  has resulted in serious harm to or the death of a
  resident;
               (2)  [or] constitutes a serious threat to the health or
  safety of a resident; or
               (3)  substantially limits the institution's capacity to
  provide care.
         SECTION 19.  If before implementing any provision of this
  Act a state agency determines that a waiver or authorization from a
  federal agency is necessary for implementation of that provision,
  the agency affected by the provision shall request the waiver or
  authorization and may delay implementing that provision until the
  waiver or authorization is granted.
         SECTION 20.  (a)  Except as provided by Subsection (b) of
  this section, this Act applies only to a license issued or renewed
  on or after September 1, 2007.  A license issued or renewed before
  September 1, 2007, is governed by the law as it existed immediately
  before the effective date of this Act, and that law is continued in
  effect for that purpose.
         (b)  The changes in law made by this Act relating to the time
  for filing an application for a license renewal and the
  applicability of a late fee to an application for a license renewal
  apply only to an application for a license renewal filed on or after
  November 1, 2007.  An application for a license renewal filed before
  November 1, 2007, is governed by the law as it existed immediately
  before the effective date of this Act, and that law is continued in
  effect for that purpose.
         SECTION 21.  This Act takes effect September 1, 2007.
 
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