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A BILL TO BE ENTITLED
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AN ACT
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relating to the licensing and regulation of home and community |
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support services agencies and of the administrators of those |
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agencies; providing penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 142.001, Health and Safety Code, is |
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amended by adding Subdivisions (8-a), (11-a), (11-b), (11-c), and |
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(12-a) to read as follows: |
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(8-a) "Commissioner" means the commissioner of aging |
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and disability services. |
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(11-a) "Department" means the Department of Aging and |
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Disability Services. |
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(11-b) "Executive commissioner" means the executive |
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commissioner of the Health and Human Services Commission. |
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(11-c) "Geographic service area" means the geographic |
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area in which a home and community support services agency is |
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licensed to provide home health, hospice, or personal assistance |
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services. |
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(12-a) "Home and community support services agency |
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administrator" or "administrator" means an individual who engages |
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in the practice of home and community support services agency |
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administration, without regard to whether the individual has an |
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ownership interest in the agency or whether the individual's |
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administrative functions and duties are shared with any other |
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individual. |
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SECTION 2. Section 142.002(e), Health and Safety Code, is |
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amended to read as follows: |
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(e) Subject to Section 142.0021, a [A] license issued under |
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this chapter may not be transferred to another person, but may be |
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transferred from one location to another location. A change of |
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ownership or location shall be reported to the department. |
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SECTION 3. Subchapter A, Chapter 142, Health and Safety |
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Code, is amended by adding Sections 142.0021, 142.0022, 142.0023, |
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142.0024, 142.00241, 142.00242, and 142.00243 to read as follows: |
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Sec. 142.0021. CERTIFICATE OF NEED REQUIRED; SWORN |
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APPLICATION. (a) Except as provided by Section 142.0022, unless |
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the person holds a certificate of need issued by the department: |
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(1) a person may not apply for an initial home and |
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community support services agency license, initial branch office |
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license, or initial alternate delivery site license; |
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(2) a person who holds a license issued under this |
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subchapter may not transfer a home and community support services |
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agency license, branch office license, or alternate delivery site |
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license to a different geographic service area; or |
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(3) a person who holds a license issued under this |
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subchapter may not expand the boundaries of the geographic service |
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area covered by the home and community support services agency |
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license, branch office license, or alternate delivery site license. |
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(b) An applicant for a certificate of need must submit a |
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sworn application on the form prescribed by the department |
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accompanied by an application fee in the amount specified by |
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Section 142.0024. |
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(c) The executive commissioner by rule may establish the |
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dates by which applications and fees must be received under this |
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section. |
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Sec. 142.0022. CERTIFICATE OF NEED: EXEMPTION. A person |
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who holds a home and community support services agency license, a |
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branch office license, or an alternate delivery site license issued |
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under this subchapter before September 1, 2011, is exempt from the |
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requirement to obtain a certificate of need to provide home health, |
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hospice, or personal assistance services in the geographic service |
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area covered by the license. |
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Sec. 142.0023. CERTIFICATE OF NEED: ELIGIBILITY CRITERIA. |
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The executive commissioner by rule shall establish criteria for |
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issuance of a certificate of need to an applicant. The criteria must |
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include: |
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(1) standards for determining whether the issuance of |
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an initial license under this subchapter, the transfer of the |
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license to a different geographic service area, or the expansion of |
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the boundaries of the geographic service area covered by the |
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license is necessary to meet the health care needs of the community |
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or population in the area to be served by the agency; and |
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(2) any other factors the executive commissioner |
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determines are relevant to the issuance of the certificate of need. |
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Sec. 142.0024. CERTIFICATE OF NEED: APPLICATION FEE. (a) |
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The application fee for a certificate of need is $2,500. The fee is |
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nonrefundable. |
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(b) All application fees received for a certificate of need |
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shall be deposited to the credit of the general revenue fund and may |
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be appropriated only to the department to administer and enforce |
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Sections 142.0021, 142.0022, 142.0023, 142.0024, 142.00241, |
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142.00242, and 142.00243. |
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Sec. 142.00241. ISSUANCE OF CERTIFICATE OF NEED. The |
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department shall issue a certificate of need to an applicant if: |
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(1) the applicant submits a sworn application as |
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required by Section 142.0021(b) and pays the application fee in the |
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amount specified by Section 142.0024; and |
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(2) the department determines the applicant |
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sufficiently satisfies the criteria established under Section |
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142.0023 and executive commissioner rule for issuance of the |
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certificate of need. |
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Sec. 142.00242. DENIAL OF CERTIFICATE OF NEED; |
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APPLICABILITY OF OTHER LAW. (a) A person whose application for a |
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certificate of need is denied by the department is entitled to a |
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hearing before the department if the person submits to the |
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department a written request for the hearing. |
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(b) The provisions of Chapter 2001, Government Code, |
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relating to contested case hearings apply to hearings conducted |
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under this section and to appeals from department decisions. |
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Sec. 142.00243. CERTIFICATE OF NEED NONTRANSFERABLE. A |
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certificate of need is not transferable. |
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SECTION 4. Section 142.0025, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 142.0025. TEMPORARY LICENSE. If a person is in the |
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process of becoming certified by the United States Department of |
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Health and Human Services to qualify as a certified agency, the |
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department may issue a temporary home and community support |
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services agency license to the person authorizing the person to |
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provide certified home health services. A temporary license is |
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effective as provided by [board] rules adopted by the executive |
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commissioner. |
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SECTION 5. Subchapter A, Chapter 142, Health and Safety |
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Code, is amended by adding Section 142.00605 to read as follows: |
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Sec. 142.00605. LIMITATION ON ADMINISTRATOR. A person who |
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holds a home and community support services agency license may not |
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have as an administrator or alternate administrator of the agency |
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an individual who is serving as an administrator or alternate |
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administrator of more than one other home and community support |
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services agency. |
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SECTION 6. Subchapter A, Chapter 142, Health and Safety |
|
Code, is amended by adding Section 142.0064 to read as follows: |
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Sec. 142.0064. INDEPENDENT ASSESSMENT OF CLIENTS. (a) A |
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home and community support services agency may not provide home |
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health, hospice, or personal assistance services to a client unless |
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an independent administrative service organization has: |
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(1) assessed the service needs of the client; and |
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(2) issued to the agency a written assessment of the |
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medical necessity for and the amount and type of home health, |
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hospice, or personal assistance services to be provided by the |
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agency to the client. |
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(b) The executive commissioner shall adopt the rules |
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necessary to implement this section, including rules to: |
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(1) establish the procedures by which an |
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administrative service organization may obtain authorization to |
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assess the service needs of clients of home and community support |
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services agencies; and |
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(2) prescribe the form of the written assessment |
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required under this section. |
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SECTION 7. Section 142.009, Health and Safety Code, is |
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amended by amending Subsections (g) and (j) and adding Subsection |
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(i) to read as follows: |
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(g) After a survey of a home and community support services |
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agency by the department, the department shall provide to the home |
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and community support services [chief executive officer of the] |
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agency administrator: |
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(1) specific and timely written notice of the official |
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findings of the survey, including: |
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(A) the specific nature of the survey; |
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(B) any alleged violations of a specific statute |
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or rule; |
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(C) the specific nature of any finding regarding |
|
an alleged violation or deficiency; and |
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(D) if a deficiency is alleged, the severity of |
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the deficiency; |
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(2) information on the identity, including the name |
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[signature,] of each department representative conducting or[,] |
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reviewing[, or approving] the results of the survey and the date on |
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which the department representative acted on the matter; and |
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(3) if requested by the agency, copies of all |
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documents relating to the survey maintained by the department or |
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provided by the department to any other state or federal agency that |
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are not confidential under state law. |
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(i) Except as provided by Subsection (h), the department may |
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not renew an initial home and community support services agency |
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license unless the department has conducted an initial on-site |
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survey of the agency. |
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(j) Except as provided by Subsection (h), the department: |
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(1) shall conduct an initial on-site survey of a home |
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and community support services agency not later than the first |
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anniversary of the date the initial license is issued; |
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(2) may conduct an additional [Except as provided by
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Subsections (h) and (l), an] on-site survey of the agency [must be
|
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conducted] within 18 months of the date of the initial on-site |
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[after a] survey; and |
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(3) after the later of the date the initial or any |
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additional on-site survey is conducted, shall conduct subsequent |
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[for an initial license. After that time, an] on-site surveys of |
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the agency [survey must be conducted] at least every 36 months. |
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SECTION 8. Section 142.011(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) The department may deny a license application or suspend |
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or revoke the license of a person who: |
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(1) fails to comply with the rules or standards for |
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licensing required by this subchapter [chapter]; or |
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(2) engages in conduct that violates Section 102.001, |
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Occupations Code [161.091]. |
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SECTION 9. Section 142.014(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) A person who engages in the business of providing home |
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health, hospice, or personal assistance service, or represents to |
|
the public that the person is a provider of home health, hospice, |
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and personal assistance services for pay, without a license issued |
|
under this subchapter [chapter] authorizing the services that are |
|
being provided is liable for a civil penalty of not less than $1,000 |
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or more than $2,500 for each day of violation. Penalties may be |
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appropriated only to the department and to administer this chapter. |
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SECTION 10. Sections 142.017(a), (h), and (j), Health and |
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Safety Code, are amended to read as follows: |
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(a) The department may assess an administrative penalty |
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against a person who violates: |
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(1) this subchapter, Subchapter B, [chapter] or a rule |
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adopted under this subchapter or Subchapter B [chapter]; or |
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(2) Section 102.001, Occupations Code, if the |
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violation relates to the provision of home health, hospice, or |
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personal assistance services. |
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(h) All proceedings for the assessment of an administrative |
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penalty under this subchapter [chapter] are subject to Chapter |
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2001, Government Code. |
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(j) The department may assess an administrative penalty |
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without providing a reasonable period of time to the agency to |
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correct the violation if the violation: |
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(1) results in serious harm or death; |
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(2) constitutes a serious threat to health or safety; |
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(3) substantially limits the agency's capacity to |
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provide care; |
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(4) is a violation in which a person: |
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(A) makes a false statement, that the person |
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knows or should know is false, of a material fact: |
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(i) on an application for issuance or |
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renewal of a license or in an attachment to the application; or |
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(ii) with respect to a matter under |
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investigation by the department; |
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(B) refuses to allow a representative of the |
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department to inspect a book, record, or file required to be |
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maintained by an agency; |
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(C) wilfully interferes with the work of a |
|
representative of the department or the enforcement of this |
|
subchapter or Subchapter B [chapter]; |
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(D) wilfully interferes with a representative of |
|
the department preserving evidence of a violation of this |
|
subchapter or Subchapter B [chapter] or a rule, standard, or order |
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adopted or license issued under this subchapter or Subchapter B |
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[chapter]; |
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(E) fails to pay a penalty assessed by the |
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department under this subchapter [chapter] not later than the 10th |
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day after the date the assessment of the penalty becomes final; or |
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(F) fails to submit: |
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(i) a plan of correction not later than the |
|
10th day after the date the person receives a statement of licensing |
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violations; or |
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(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 |
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of correction is not acceptable; |
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(5) is a violation of Section 142.0145; or |
|
(6) involves the rights of the elderly under Chapter |
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102, Human Resources Code. |
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SECTION 11. Chapter 142, Health and Safety Code, is amended |
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by adding Subchapter C to read as follows: |
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SUBCHAPTER C. HOME AND COMMUNITY SUPPORT SERVICES AGENCY |
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ADMINISTRATION; ENFORCEMENT; PENALTIES |
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Sec. 142.051. DEFINITIONS. In this subchapter: |
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(1) "Advisory committee" means the home and community |
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support services agency administrators advisory committee. |
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(2) "Applicant" means a person who applies for a home |
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and community support services agency administrator license. |
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(3) "License holder" means a person who is issued a |
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home and community support services agency administrator license |
|
under this subchapter. |
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(4) "Practice of home and community support services |
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agency administration" means the performance of the act of |
|
administering, managing, supervising, or being in general |
|
administrative charge of a home and community support services |
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agency. |
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Sec. 142.052. LICENSE REQUIRED; EXEMPTION. (a) Except as |
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provided by Subsection (b), a person may not act as a home and |
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community support services agency administrator or represent to |
|
others that the person is a home and community support services |
|
agency administrator unless the person holds a license issued under |
|
this subchapter. |
|
(b) A person employed by or serving as a home and community |
|
support services agency administrator for a home and community |
|
support services agency on August 31, 2011, is not required to |
|
obtain a license under this subchapter while the person remains |
|
continuously employed by or continuously serves as a home and |
|
community support services agency administrator for that agency or |
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another home and community support services agency. |
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Sec. 142.053. LICENSE APPLICATION; QUALIFICATIONS. (a) An |
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applicant for a home and community support services agency |
|
administrator license must submit a sworn application on the form |
|
prescribed by the department. The application must be accompanied |
|
by an application fee in the amount set by the executive |
|
commissioner under Section 142.060. |
|
(b) The executive commissioner by rule may establish the |
|
dates by which applications and fees must be received. |
|
(c) To qualify for a license under this subchapter, an |
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applicant for a home and community support services agency |
|
administrator license must pass the licensing examination required |
|
under Section 142.054. To be eligible to take the licensing |
|
examination, the applicant must have satisfactorily completed a |
|
course of instruction and training prescribed by the department |
|
that is conducted by or in cooperation with an accredited |
|
postsecondary educational institution and that is designed and |
|
administered to provide sufficient knowledge of: |
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(1) the service needs of clients served by home and |
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community support services agencies; |
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(2) the laws governing the operation of home and |
|
community support services agencies and the protection of the |
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interests of home and community support services agency clients; |
|
and |
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(3) the functions and duties of home and community |
|
support services agency administrators. |
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(d) An applicant who has not completed the course of |
|
instruction and training described by Subsection (c) may qualify |
|
for the licensing examination by presenting evidence satisfactory |
|
to the department that the applicant has completed sufficient |
|
education, training, and experience in the fields described by |
|
Subsection (c) to enable the applicant to engage in the practice of |
|
home and community support services agency administration. |
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Sec. 142.054. EXAMINATION. (a) The department shall |
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prepare or approve the licensing examination for issuance of a |
|
license under this subchapter and shall administer the examination |
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to qualified applicants at least twice each calendar year. The |
|
department shall have any written portion of the examination |
|
validated by a testing professional. |
|
(b) Not later than the 30th day after the date on which a |
|
licensing examination is administered under this subchapter, the |
|
department shall notify each examinee of the results of the |
|
examination. If an examination is graded or reviewed by a national |
|
or state testing service, the department shall notify examinees of |
|
the results of the examination not later than two weeks after the |
|
date the department receives the results from the testing service. |
|
If the notice of the examination results will be delayed for more |
|
than 90 days after the examination date, the department shall |
|
notify the examinee of the reason for the delay before the 90th day. |
|
(c) If requested in writing by a person who fails the |
|
licensing examination, the department shall furnish the person with |
|
an analysis of the person's performance on the examination. |
|
(d) The executive commissioner by rule may establish |
|
additional educational requirements to be met by an applicant who |
|
fails the examination three times. |
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Sec. 142.055. LICENSE: ISSUANCE, TERM, NONTRANSFERABILITY, |
|
INFORMATION CHANGE, AND INACTIVE STATUS. (a) The department shall |
|
issue a home and community support services agency administrator |
|
license to a person who meets the requirements for licensing under |
|
this subchapter. |
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(b) A license issued under this subchapter is valid for two |
|
years. |
|
(c) A home and community support services agency |
|
administrator license is not transferable. |
|
(d) A license holder must notify the department of a change |
|
in the license holder's name or mailing address. |
|
(e) The executive commissioner by rule may adopt a system |
|
under which licenses expire on various dates during the two-year |
|
period prescribed by Subsection (b). For the year in which a |
|
license expiration date is changed, license fees payable on the |
|
original expiration date shall be prorated on a monthly basis so |
|
that each license holder pays only that portion of the license fee |
|
that is allocable to the number of months during which the license |
|
is valid. On renewal of the license on the new expiration date, the |
|
total license renewal fee is payable. |
|
(f) The executive commissioner by rule may provide for a |
|
license holder to be placed on inactive status. |
|
Sec. 142.056. TEMPORARY LICENSE. The executive |
|
commissioner by rule may provide for the issuance of a temporary |
|
license under this subchapter. Rules adopted under this section |
|
must include a time limit for a license holder to practice under a |
|
temporary license. |
|
Sec. 142.057. PROVISIONAL LICENSE. (a) The department |
|
shall issue a provisional license to an applicant currently |
|
licensed in another jurisdiction who submits an application for a |
|
home and community support services agency administrator license in |
|
this state and who: |
|
(1) has been licensed in good standing as a home |
|
health, hospice, or personal assistance services agency |
|
administrator for at least two years in another jurisdiction, |
|
including a foreign country, that has licensing requirements that |
|
are substantially equivalent to the requirements of this |
|
subchapter; |
|
(2) has passed a national or other examination |
|
recognized by the department as substantially equivalent to the |
|
licensing examination administered under this subchapter; and |
|
(3) is sponsored by a person licensed by the |
|
department under this subchapter with whom the provisional license |
|
holder will practice during the time the person holds a provisional |
|
license. |
|
(b) The department may waive the requirement of Subsection |
|
(a)(3) for an applicant if the department determines that |
|
compliance with that subsection would be a hardship to the |
|
applicant. Waiver of the requirement of Subsection (a)(3) is in the |
|
sole discretion of the department. |
|
(c) A provisional license is valid until the date the |
|
department approves or denies the application for a home and |
|
community support services agency administrator license as |
|
provided by this subchapter. The department shall issue a license |
|
under this subchapter to the provisional license holder if: |
|
(1) the provisional license holder meets the |
|
qualifications for a home and community support services agency |
|
administrator license under Section 142.053; or |
|
(2) the provisional license holder passes the part of |
|
the examination required under Section 142.054 that relates to the |
|
applicant's knowledge and understanding of the laws and rules |
|
regarding the practice of home and community support services |
|
agency administration in this state and: |
|
(A) the department verifies that the provisional |
|
license holder meets the academic and experience requirements for a |
|
license under this subchapter; and |
|
(B) the provisional license holder satisfies all |
|
other license requirements under this subchapter. |
|
(d) The department must approve or deny a provisional |
|
license holder's application for a license not later than the 180th |
|
day after the date the provisional license is issued. The |
|
department may extend the 180-day period if the results of an |
|
examination have not been received by the department before the end |
|
of that period. |
|
(e) The department may establish a provisional license fee |
|
in an amount reasonable and necessary to cover the cost of issuing |
|
the license. |
|
Sec. 142.058. LICENSE RENEWAL. (a) A person with an |
|
unexpired license who is otherwise eligible for renewal may renew |
|
the license by submitting an application and paying the required |
|
renewal fee to the department 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) 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 but less than one year may renew the license by paying to the |
|
department a renewal fee that is equal to two times the normally |
|
required renewal fee. |
|
(d) A person whose license has been expired for one year or |
|
more may not renew the license. The person may obtain a new license |
|
by complying with the requirements and procedures, including the |
|
examination requirements, for obtaining a home and community |
|
support services agency administrator license. |
|
(e) Not later than the 31st 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. |
|
Sec. 142.059. ADMINISTRATOR REQUIRED; EXEMPTION; |
|
ADMINISTRATOR RESPONSIBILITIES. (a) Except as provided by |
|
Subsection (b), each home and community support services agency |
|
must employ or be served by at least one licensed home and community |
|
support services agency administrator. |
|
(b) A home and community support services agency is exempt |
|
from the requirements of Subsection (a) if the agency: |
|
(1) was established before September 1, 2011; or |
|
(2) has on staff or is served by a home and community |
|
support services agency administrator who is exempt from licensing |
|
under Section 142.052(b). |
|
(c) A home and community support services agency |
|
administrator: |
|
(1) shall manage the day-to-day operation of the |
|
agency; |
|
(2) is responsible for: |
|
(A) administratively supervising the provision |
|
of quality care to all agency clients; and |
|
(B) implementing the policies and procedures of |
|
the agency; and |
|
(3) shall work at least 40 hours per week on |
|
administrative duties for the agency in accordance with executive |
|
commissioner rules. |
|
Sec. 142.060. FEES; FUNDS. (a) The executive commissioner |
|
by rule shall set application and license fees as provided by this |
|
subchapter in the amounts necessary to cover the cost of |
|
administering this subchapter. The executive commissioner by rule |
|
may set different licensing fee amounts for different categories of |
|
licenses. |
|
(b) The department shall account for money received under |
|
this subchapter. The money shall be deposited to the credit of the |
|
general revenue fund and shall be appropriated to the department |
|
only to administer this subchapter. |
|
(c) The department may disburse money received from any |
|
federal source for the furtherance of the department's functions |
|
under this subchapter. |
|
Sec. 142.061. MANDATORY CONTINUING EDUCATION. (a) The |
|
executive commissioner by rule shall establish a minimum number of |
|
continuing education hours required to renew a license under this |
|
subchapter. The department may assess the continuing education |
|
needs of license holders and may require license holders to attend |
|
continuing education courses specified by the department. |
|
(b) The department shall identify the key factors required |
|
for the competent performance by a license holder of the license |
|
holder's professional duties. The department shall adopt a |
|
procedure to assess a license holder's participation in continuing |
|
education programs. |
|
Sec. 142.062. POWERS AND DUTIES OF EXECUTIVE COMMISSIONER. |
|
(a) To protect the health and safety of clients served by home and |
|
community support services agencies, the executive commissioner by |
|
rule shall: |
|
(1) adopt and publish a code of ethics for home and |
|
community support services agency administrators; |
|
(2) establish the qualifications of applicants for |
|
issuance of licenses and renewal of licenses under this subchapter; |
|
(3) establish a minimum number of continuing education |
|
hours required to renew a license issued under this subchapter; and |
|
(4) periodically assess the continuing education |
|
needs of license holders to determine whether to require specific |
|
course content. |
|
(b) The executive commissioner may adopt other rules |
|
consistent with this subchapter as necessary to administer this |
|
subchapter. |
|
Sec. 142.063. HOME AND COMMUNITY SUPPORT SERVICES AGENCY |
|
ADMINISTRATORS ADVISORY COMMITTEE. (a) The Home and Community |
|
Support Services Agency Administrators Advisory Committee is |
|
established. |
|
(b) The advisory committee is composed of the following |
|
seven members appointed by the governor: |
|
(1) three members who are licensed home and community |
|
support services agency administrators, with one member appointed |
|
from: |
|
(A) a home and community support services agency |
|
licensed to provide personal assistance services; |
|
(B) a home and community support services agency |
|
licensed to provide licensed home health services or to provide |
|
licensed and certified home health services; and |
|
(C) a home and community support services agency |
|
licensed to provide hospice services; |
|
(2) one member who is a registered nurse with |
|
experience in home care and who is not employed by a home and |
|
community support services agency; and |
|
(3) three public members. |
|
(c) Appointments to the advisory committee shall be made |
|
without regard to the race, color, disability, sex, religion, age, |
|
or national origin of the person appointed. |
|
(d) Members of the advisory committee serve staggered |
|
six-year terms, with the terms of two or three members expiring on |
|
February 1 of each odd-numbered year. |
|
(e) A vacancy in a position on the advisory committee shall |
|
be filled by appointment of the governor. A person appointed to |
|
fill a vacancy must meet the qualifications of the vacated |
|
position. |
|
(f) The advisory committee shall: |
|
(1) advise the department and commissioner on the |
|
licensing of home and community support services agency |
|
administrators, including the content of license applications and |
|
of the examination administered to applicants under Section |
|
142.054; |
|
(2) review and recommend rules and minimum standards |
|
of conduct for the practice of home and community support services |
|
agency administration; and |
|
(3) review all complaints against administrators and |
|
make recommendations to the department regarding disciplinary |
|
actions. |
|
(g) Failure of the advisory committee to review complaints |
|
and make recommendations in a timely manner may not preclude the |
|
department from taking disciplinary action. |
|
(h) A member of the advisory committee is not entitled to |
|
compensation for service on the advisory committee but is entitled |
|
to reimbursement for actual and necessary expenses incurred in |
|
performing the member's duties under this section. |
|
(i) The department shall pay the expenses of the advisory |
|
committee and supply necessary personnel and supplies. |
|
(j) Chapter 2110, Government Code, does not apply to the |
|
advisory committee. |
|
Sec. 142.064. COMPLAINT RECEIPT, INVESTIGATION, AND |
|
DISPOSITION. (a) The department shall keep an information file |
|
concerning each complaint filed with the department regarding a |
|
person licensed or required to be licensed under this subchapter. |
|
The department's information file shall be kept current and shall |
|
contain for each complaint: |
|
(1) a record of all persons contacted in relation to |
|
the complaint; |
|
(2) a summary of findings made at each step of the |
|
complaint process; |
|
(3) an explanation of the legal basis and reason for a |
|
complaint that is dismissed; and |
|
(4) other relevant information. |
|
(b) If a written complaint is filed with the department that |
|
the department has authority to resolve, the department, at least |
|
quarterly and until final disposition of the complaint, shall |
|
notify the parties to the complaint of the status of the complaint |
|
unless the notice would jeopardize an undercover investigation. |
|
(c) The executive commissioner by rule shall adopt a form to |
|
standardize information concerning complaints made to the |
|
department. The executive commissioner by rule shall prescribe |
|
information to be provided to a person when the person files a |
|
complaint with the department. |
|
(d) The department shall provide reasonable assistance to a |
|
person who wishes to file a complaint with the department. |
|
(e) The executive commissioner shall adopt rules concerning |
|
the investigation of complaints filed with the department. The |
|
rules adopted under this subsection shall: |
|
(1) distinguish between categories of complaints; |
|
(2) ensure that complaints are not dismissed without |
|
appropriate consideration; |
|
(3) require that the commissioner be advised at least |
|
quarterly of complaints that have been dismissed and require that a |
|
letter be sent to each person who has filed a complaint that is |
|
dismissed explaining the action taken on the complaint; |
|
(4) ensure that the person who filed the complaint has |
|
an opportunity to explain the allegations made in the complaint; |
|
and |
|
(5) prescribe guidelines concerning the categories of |
|
complaints that may require the use of a private investigator and |
|
the procedures to be followed by the department in obtaining the |
|
services of a private investigator. |
|
(f) The department shall dispose of all complaints in a |
|
timely manner. The executive commissioner by rule shall establish |
|
a schedule for initiating a complaint investigation that is under |
|
the control of the department not later than the 30th day after the |
|
date the complaint is received by the department. The department |
|
shall: |
|
(1) keep the schedule in the information file for the |
|
complaint; |
|
(2) notify all parties of the projected time |
|
requirements for pursuing the complaint; and |
|
(3) note in the information file any change in the |
|
schedule and notify all parties to the complaint not later than the |
|
seventh day after the date the change is made. |
|
Sec. 142.065. SANCTIONS. (a) The department may revoke, |
|
suspend, or refuse to renew a home and community support services |
|
agency administrator's license, assess an administrative penalty |
|
against, issue a written reprimand to, or require participation in |
|
continuing education by the license holder, or place the license |
|
holder on probation, after due notice and the opportunity for a |
|
hearing, on proof of any of the following grounds: |
|
(1) the license holder has wilfully or repeatedly |
|
violated this subchapter or a rule adopted under this subchapter; |
|
(2) the license holder has wilfully or repeatedly |
|
acted in a manner inconsistent with the health and safety of the |
|
clients of a home and community support services agency of which the |
|
license holder is an administrator; |
|
(3) the license holder obtained or attempted to obtain |
|
a license through misrepresentation or deceit or by making a |
|
material misstatement of fact on a license application; |
|
(4) the license holder's use of alcohol or drugs |
|
creates a hazard to the clients of a home and community support |
|
services agency; |
|
(5) a judgment of a court finds that the license holder |
|
is mentally incapacitated; |
|
(6) the license holder has been convicted in a court of |
|
a misdemeanor or felony involving moral turpitude; |
|
(7) the license holder has been convicted in a court of |
|
an offense listed in Section 250.006 or listed in a rule adopted by |
|
the executive commissioner regarding convictions barring |
|
licensure; or |
|
(8) the license holder has been negligent or |
|
incompetent in the license holder's duties as a home and community |
|
support services agency administrator. |
|
(b) If a license sanction is probated, the department may |
|
require the license holder to: |
|
(1) report regularly to the department on matters that |
|
are the basis of the probation; |
|
(2) limit practice to the areas prescribed by the |
|
department; or |
|
(3) continue or review continuing professional |
|
education until the license holder attains a degree of skill |
|
satisfactory to the department in those areas that are the basis of |
|
the probation. |
|
(c) A license holder is entitled to a hearing in accordance |
|
with rules adopted by the executive commissioner before a sanction |
|
is imposed under this section. |
|
(d) The executive commissioner by rule shall adopt a broad |
|
schedule of sanctions for violations under this subchapter. The |
|
department shall use the schedule for any sanction imposed in |
|
accordance with the rules. |
|
(e) The executive commissioner by rule shall establish |
|
criteria to determine whether deficiencies from a home and |
|
community support services agency's survey warrant action against |
|
an administrator. The criteria must include a determination of |
|
whether survey findings indicate substantial noncompliance related |
|
to an act or failure to act by the administrator and whether a |
|
deficiency is related to an act or failure to act by the |
|
administrator. If a deficiency on which a disciplinary action |
|
against an administrator is initiated or completed is not |
|
substantiated, the disciplinary action shall be reversed. |
|
Sec. 142.066. WRITTEN REPRIMAND AND CONTINUING EDUCATION AS |
|
SANCTIONS. (a) In addition to the other disciplinary actions |
|
authorized under this subchapter, the department may issue a |
|
written reprimand to a license holder who violates this subchapter |
|
or may require that a license holder who violates this subchapter |
|
participate in continuing education programs. |
|
(b) The department shall specify the continuing education |
|
programs that may be attended and the number of hours that must be |
|
completed by a license holder to fulfill the requirements of this |
|
section. |
|
Sec. 142.067. ADMINISTRATIVE PENALTY. (a) The department |
|
may impose an administrative penalty against a person licensed or |
|
regulated under this subchapter who violates this subchapter or a |
|
rule adopted by the executive commissioner under this subchapter. |
|
(b) The penalty for a violation may be in an amount not to |
|
exceed $1,000. |
|
(c) The amount of the penalty shall be based on: |
|
(1) the seriousness of the violation, including the |
|
nature, circumstances, extent, and gravity of any prohibited acts, |
|
and the hazard or potential hazard created to the health, safety, or |
|
economic welfare of the public; |
|
(2) the history of previous violations; |
|
(3) the amount necessary to deter future violations; |
|
(4) efforts to correct the violations; and |
|
(5) any other matter that justice may require. |
|
Sec. 142.068. ADMINISTRATIVE PENALTY: NOTICE AND HEARING. |
|
(a) If the department determines that a violation has occurred, the |
|
department shall give written notice of the determination to the |
|
person alleged to have committed the violation. The notice may be |
|
given by certified mail. The notice must: |
|
(1) include a brief summary of the alleged violation |
|
and a statement of the amount of the recommended penalty; and |
|
(2) inform the person that the person has a right to a |
|
hearing on the occurrence of the violation, the amount of the |
|
penalty, or both the occurrence of the violation and the amount of |
|
the penalty. |
|
(b) Not later than the 20th day after the date the person |
|
receives the notice, the person in writing may accept the |
|
determination and the penalty recommended by the department or may |
|
make a written request for a hearing on the occurrence of the |
|
violation, the amount of the penalty, or both the occurrence of the |
|
violation and the amount of the penalty. |
|
(c) If the person accepts the determination and the penalty |
|
recommended by the department, or if the person fails to timely |
|
respond to the notice, the department shall impose the recommended |
|
penalty. |
|
(d) If the person requests a hearing, the department shall |
|
set a hearing and give notice of the hearing to the person. The |
|
hearing shall be held in accordance with the provisions in Chapter |
|
2001, Government Code, related to contested case hearings. |
|
(e) The notice of the hearing decision given to the person |
|
under Chapter 2001, Government Code, must include a statement of |
|
the right of the person to judicial review of the decision. |
|
(f) Not later than the 30th day after the date the |
|
department's decision is final as provided by Section 2001.144, |
|
Government Code, the person shall: |
|
(1) pay the amount of the penalty; |
|
(2) pay the amount of the penalty and file a petition |
|
for judicial review contesting the occurrence of the violation, the |
|
amount of the penalty, or both the occurrence of the violation and |
|
the amount of the penalty; or |
|
(3) without paying the amount of the penalty, file a |
|
petition for judicial review contesting the occurrence of the |
|
violation, the amount of the penalty, or both the occurrence of the |
|
violation and the amount of the penalty. |
|
(g) Within the period prescribed by Subsection (f), a person |
|
who acts under Subsection (f)(3) may: |
|
(1) stay enforcement of the penalty by: |
|
(A) paying the amount of the penalty to the court |
|
for placement in an escrow account; or |
|
(B) giving to the court a supersedeas bond that |
|
is approved by the court for the amount of the penalty and that is |
|
effective until all judicial review of the department's decision is |
|
final; or |
|
(2) request the court to stay enforcement of the |
|
penalty by: |
|
(A) filing with the court a sworn affidavit of |
|
the person stating that the person is financially unable to pay the |
|
amount of the penalty and is financially unable to give the |
|
supersedeas bond; and |
|
(B) sending a copy of the affidavit to the |
|
department by certified mail. |
|
(h) If the department receives a copy of an affidavit under |
|
Subsection (g)(2), the department may file with the court, not |
|
later than the fifth day after the date the copy is received, a |
|
contest to the affidavit. The court shall hold a hearing on the |
|
facts alleged in the affidavit as soon as practicable and shall stay |
|
the enforcement of the penalty on finding that the alleged facts are |
|
true. The person who files an affidavit has the burden of proving |
|
that the person is financially unable to pay the amount of the |
|
penalty and to give a supersedeas bond. |
|
(i) If the person does not pay the amount of the penalty and |
|
the enforcement of the penalty is not stayed, the department may |
|
refer the matter to the attorney general for collection of the |
|
amount of the penalty. The attorney general, on behalf of the |
|
attorney general and the department, may recover the reasonable |
|
expenses incurred by the attorney general and the department in |
|
obtaining the penalty, including court costs, reasonable |
|
attorney's fees, investigative costs, witness fees, and deposition |
|
costs. |
|
(j) Judicial review of the decision of the department: |
|
(1) is instituted by filing a petition as provided by |
|
Section 2001.176, Government Code; and |
|
(2) is under the substantial evidence rule. |
|
(k) If the court sustains the occurrence of the violation, |
|
the court may uphold or reduce the amount of the penalty and order |
|
the person to pay the full or reduced amount of the penalty. If the |
|
court does not sustain the occurrence of the violation, the court |
|
shall order that no penalty is owed. |
|
(l) When the judgment of the court becomes final, the court |
|
shall proceed under this subsection. If the person paid the amount |
|
of the penalty and if that amount is reduced or is not upheld by the |
|
court, the court shall order that the appropriate amount plus |
|
accrued interest be remitted to the person. The rate of the |
|
interest is the rate charged on loans to depository institutions by |
|
the New York Federal Reserve Bank, and the interest shall be paid |
|
for the period beginning on the date the penalty was paid and ending |
|
on the date the penalty is remitted. If the person gave a |
|
supersedeas bond and if the amount of the penalty is not upheld by |
|
the court, the court shall order the release of the bond. If the |
|
person gave a supersedeas bond and if the amount of the penalty is |
|
reduced, the court shall order the release of the bond after the |
|
person pays the amount. |
|
(m) A penalty collected under this section shall be remitted |
|
to the comptroller for deposit in the general revenue fund. |
|
(n) All proceedings under this section are subject to |
|
Chapter 2001, Government Code. |
|
Sec. 142.069. INFORMAL PROCEEDINGS. (a) The executive |
|
commissioner by rule shall adopt procedures governing: |
|
(1) informal disposition of a contested case under |
|
Section 2001.056, Government Code; and |
|
(2) informal proceedings held in compliance with |
|
Section 2001.054, Government Code. |
|
(b) Rules adopted under this section must provide the |
|
complainant and the license holder an opportunity to be heard. |
|
Sec. 142.070. MONITORING OF LICENSE HOLDER. (a) The |
|
executive commissioner by rule shall develop a system for |
|
monitoring a license holder's compliance with the requirements of |
|
this subchapter. |
|
(b) Rules adopted under this section shall include |
|
procedures for monitoring a license holder who is required by the |
|
department to perform certain acts to ascertain that the license |
|
holder performs the required acts and to identify and monitor |
|
license holders who represent a risk to the public. |
|
Sec. 142.071. CIVIL PENALTY. (a) A person who violates |
|
this subchapter is liable to the state for a civil penalty of $1,000 |
|
for each day of violation. |
|
(b) At the request of the department, the attorney general |
|
shall bring an action to recover a civil penalty established by this |
|
section. |
|
(c) The attorney general, on behalf of the attorney general |
|
and the department, may recover reasonable expenses incurred by the |
|
attorney general and the department in obtaining a civil penalty |
|
under this section, including court costs, reasonable attorney's |
|
fees, investigative costs, witness fees, and deposition costs. |
|
Sec. 142.072. ASSISTANCE OF ATTORNEY GENERAL. The attorney |
|
general shall provide legal assistance as necessary in enforcing |
|
the provisions of this subchapter. This requirement does not |
|
relieve a local prosecuting officer of any of the prosecuting |
|
officer's duties under the law. |
|
Sec. 142.073. OFFENSE. (a) A person commits an offense if |
|
the person knowingly or intentionally violates Section 142.052. |
|
(b) An offense under this section is a Class B misdemeanor. |
|
Sec. 142.074. PROTECTION FOR REFUSAL TO ENGAGE IN CERTAIN |
|
CONDUCT. (a) A person may not suspend, terminate, or otherwise |
|
discipline or discriminate against a licensed home and community |
|
support services agency administrator who refuses to engage in an |
|
act or omission relating to the administrator's job duties or |
|
responsibilities that would constitute a violation of this |
|
subchapter or of a rule adopted under this subchapter, if the |
|
administrator notifies the person at the time of the refusal that |
|
the reason for refusing is that the act or omission constitutes a |
|
violation of this subchapter or of a rule adopted under this |
|
subchapter. |
|
(b) An act by a person under Subsection (a) does not |
|
constitute a violation of this section if: |
|
(1) the act or omission the administrator refused to |
|
commit was not conduct that constitutes a violation of this |
|
subchapter or of a rule adopted under this subchapter; or |
|
(2) the act or omission the administrator refused to |
|
commit was conduct that constitutes a violation of this subchapter |
|
or of a rule adopted under this subchapter, and the person rescinds |
|
any disciplinary or discriminatory action taken against the |
|
administrator, compensates the administrator for lost wages, and |
|
restores any lost benefits to the administrator. |
|
(c) A violation of this section is an unlawful employment |
|
practice, and a civil action may be brought by a licensed home and |
|
community support services agency administrator against a person |
|
for the violation. The relief available in a civil action shall be |
|
the same as the relief available to complainants in a civil action |
|
for violations of Chapter 21, Labor Code. An action may not be |
|
brought under this section later than the second anniversary of the |
|
date of the administrator's refusal to engage in an act or omission |
|
that would constitute a violation of this subchapter or of a rule |
|
adopted under this subchapter. |
|
(d) In this section, "person" includes an individual, |
|
organization, corporation, home and community support services |
|
agency, or other entity. |
|
SECTION 12. (a) As soon as practicable after the effective |
|
date of this Act but not later than December 1, 2011, the executive |
|
commissioner of the Health and Human Services Commission shall |
|
adopt the rules necessary to implement the changes in law made by |
|
this Act to Chapter 142, Health and Safety Code. |
|
(b) As soon as practicable after the effective date of this |
|
Act but not later than December 1, 2011, the Department of Aging and |
|
Disability Services shall prescribe the application forms |
|
necessary to implement the changes in law made by this Act to |
|
Chapter 142, Health and Safety Code. |
|
(c) Notwithstanding Section 142.052, Health and Safety |
|
Code, as added by this Act, a person is not required to hold a home |
|
and community support services agency administrator license under |
|
Subchapter C, Chapter 142, Health and Safety Code, as added by this |
|
Act, until January 1, 2012. |
|
(d) Notwithstanding Section 142.0064, Health and Safety |
|
Code, as added by this Act, a home and community support services |
|
agency is not required to obtain an independent written assessment |
|
of client service needs under that section until September 1, 2012. |
|
(e) As soon as practicable after the effective date of this |
|
Act but not later than October 1, 2011, the governor shall appoint |
|
the initial members of the Home and Community Support Services |
|
Agency Administrators Advisory Committee in accordance with |
|
Section 142.063, Health and Safety Code, as added by this Act. In |
|
making the initial appointments, the governor shall appoint two |
|
members to terms expiring February 1, 2013, two members to terms |
|
expiring February 1, 2015, and three members to terms expiring |
|
February 1, 2017. |
|
SECTION 13. (a) Except as provided by Subsection (b) of |
|
this section, this Act takes effect September 1, 2011. |
|
(b) Sections 142.065 through 142.073, Health and Safety |
|
Code, as added by this Act, take effect January 1, 2012. |