82R1377 YDB-F

By: Nelson S.B. No. 223

A BILL TO BE ENTITLED

AN ACT

relating to the licensing and regulation of home and community support services agencies and of the administrators of those agencies; providing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 142.001, Health and Safety Code, is amended by adding Subdivisions (8-a), (11-a), (11-b), (11-c), and (12-a) to read as follows:

(8-a) "Commissioner" means the commissioner of aging and disability services.

(11-a) "Department" means the Department of Aging and Disability Services.

(11-b) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission.

(11-c) "Geographic service area" means the geographic area in which a home and community support services agency is licensed to provide home health, hospice, or personal assistance services.

(12-a) "Home and community support services agency administrator" or "administrator" means an individual who engages in the practice of home and community support services agency administration, without regard to whether the individual has an ownership interest in the agency or whether the individual's administrative functions and duties are shared with any other individual.

SECTION 2. Section 142.002(e), Health and Safety Code, is amended to read as follows:

(e) Subject to Section 142.0021, a [A] license issued under this chapter may not be transferred to another person, but may be transferred from one location to another location. A change of ownership or location shall be reported to the department.

SECTION 3. Subchapter A, Chapter 142, Health and Safety Code, is amended by adding Sections 142.0021, 142.0022, 142.0023, 142.0024, 142.00241, 142.00242, and 142.00243 to read as follows:

Sec. 142.0021. CERTIFICATE OF NEED REQUIRED; SWORN APPLICATION. (a) Except as provided by Section 142.0022, unless the person holds a certificate of need issued by the department:

(1) a person may not apply for an initial home and community support services agency license, initial branch office license, or initial alternate delivery site license;

(2) a person who holds a license issued under this subchapter may not transfer a home and community support services agency license, branch office license, or alternate delivery site license to a different geographic service area; or

(3) a person who holds a license issued under this subchapter may not expand the boundaries of the geographic service area covered by the home and community support services agency license, branch office license, or alternate delivery site license.

(b) An applicant for a certificate of need must submit a sworn application on the form prescribed by the department accompanied by an application fee in the amount specified by Section 142.0024.

(c) The executive commissioner by rule may establish the dates by which applications and fees must be received under this section.

Sec. 142.0022. CERTIFICATE OF NEED: EXEMPTION. A person who holds a home and community support services agency license, a branch office license, or an alternate delivery site license issued under this subchapter before September 1, 2011, is exempt from the requirement to obtain a certificate of need to provide home health, hospice, or personal assistance services in the geographic service area covered by the license.

Sec. 142.0023. CERTIFICATE OF NEED: ELIGIBILITY CRITERIA. The executive commissioner by rule shall establish criteria for issuance of a certificate of need to an applicant. The criteria must include:

(1) standards for determining whether the issuance of an initial license under this subchapter, the transfer of the license to a different geographic service area, or the expansion of the boundaries of the geographic service area covered by the license is necessary to meet the health care needs of the community or population in the area to be served by the agency; and

(2) any other factors the executive commissioner determines are relevant to the issuance of the certificate of need.

Sec. 142.0024. CERTIFICATE OF NEED: APPLICATION FEE. (a) The application fee for a certificate of need is $2,500. The fee is nonrefundable.

(b) All application fees received for a certificate of need shall be deposited to the credit of the general revenue fund and may be appropriated only to the department to administer and enforce Sections 142.0021, 142.0022, 142.0023, 142.0024, 142.00241, 142.00242, and 142.00243.

Sec. 142.00241. ISSUANCE OF CERTIFICATE OF NEED. The department shall issue a certificate of need to an applicant if:

(1) the applicant submits a sworn application as required by Section 142.0021(b) and pays the application fee in the amount specified by Section 142.0024; and

(2) the department determines the applicant sufficiently satisfies the criteria established under Section 142.0023 and executive commissioner rule for issuance of the certificate of need.

Sec. 142.00242. DENIAL OF CERTIFICATE OF NEED; APPLICABILITY OF OTHER LAW. (a) A person whose application for a certificate of need is denied by the department is entitled to a hearing before the department if the person submits to the department a written request for the hearing.

(b) The provisions of Chapter 2001, Government Code, relating to contested case hearings apply to hearings conducted under this section and to appeals from department decisions.

Sec. 142.00243. CERTIFICATE OF NEED NONTRANSFERABLE. A certificate of need is not transferable.

SECTION 4. Section 142.0025, Health and Safety Code, is amended to read as follows:

Sec. 142.0025. TEMPORARY LICENSE. If a person is in the process of becoming certified by the United States Department of Health and Human Services to qualify as a certified agency, the department may issue a temporary home and community support services agency license to the person authorizing the person to provide certified home health services. A temporary license is effective as provided by [board] rules adopted by the executive commissioner.

SECTION 5. Subchapter A, Chapter 142, Health and Safety Code, is amended by adding Section 142.00605 to read as follows:

Sec. 142.00605. LIMITATION ON ADMINISTRATOR. A person who holds a home and community support services agency license may not have as an administrator or alternate administrator of the agency an individual who is serving as an administrator or alternate administrator of more than one other home and community support services agency.

SECTION 6. Subchapter A, Chapter 142, Health and Safety Code, is amended by adding Section 142.0064 to read as follows:

Sec. 142.0064. INDEPENDENT ASSESSMENT OF CLIENTS. (a) A home and community support services agency may not provide home health, hospice, or personal assistance services to a client unless an independent administrative service organization has:

(1) assessed the service needs of the client; and

(2) issued to the agency a written assessment of the medical necessity for and the amount and type of home health, hospice, or personal assistance services to be provided by the agency to the client.

(b) The executive commissioner shall adopt the rules necessary to implement this section, including rules to:

(1) establish the procedures by which an administrative service organization may obtain authorization to assess the service needs of clients of home and community support services agencies; and

(2) prescribe the form of the written assessment required under this section.

SECTION 7. Section 142.009, Health and Safety Code, is amended by amending Subsections (g) and (j) and adding Subsection (i) to read as follows:

(g) After a survey of a home and community support services agency by the department, the department shall provide to the home and community support services [chief executive officer of the] agency administrator:

(1) specific and timely written notice of the official findings of the survey, including:

(A) the specific nature of the survey;

(B) any alleged violations of a specific statute or rule;

(C) the specific nature of any finding regarding an alleged violation or deficiency; and

(D) if a deficiency is alleged, the severity of the deficiency;

(2) information on the identity, including the name [signature,] of each department representative conducting or[,] reviewing[, or approving] the results of the survey and the date on which the department representative acted on the matter; and

(3) if requested by the agency, copies of all documents relating to the survey maintained by the department or provided by the department to any other state or federal agency that are not confidential under state law.

(i) Except as provided by Subsection (h), the department may not renew an initial home and community support services agency license unless the department has conducted an initial on-site survey of the agency.

(j) Except as provided by Subsection (h), the department:

(1) shall conduct an initial on-site survey of a home and community support services agency not later than the first anniversary of the date the initial license is issued;

(2) may conduct an additional [Except as provided by Subsections (h) and (l), an] on-site survey of the agency [must be conducted] within 18 months of the date of the initial on-site [after a] survey; and

(3) after the later of the date the initial or any additional on-site survey is conducted, shall conduct subsequent [for an initial license. After that time, an] on-site surveys of the agency [survey must be conducted] at least every 36 months.

SECTION 8. Section 142.011(a), Health and Safety Code, is amended to read as follows:

(a) The department may deny a license application or suspend or revoke the license of a person who:

(1) fails to comply with the rules or standards for licensing required by this subchapter [chapter]; or

(2) engages in conduct that violates Section 102.001, Occupations Code [161.091].

SECTION 9. Section 142.014(a), Health and Safety Code, is amended to read as follows:

(a) A person who engages in the business of providing home health, hospice, or personal assistance service, or represents to the public that the person is a provider of home health, hospice, 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 or more than $2,500 for each day of violation. Penalties may be appropriated only to the department and to administer this chapter.

SECTION 10. Sections 142.017(a), (h), and (j), Health and Safety Code, are amended to read as follows:

(a) The department may assess an administrative penalty against a person who violates:

(1) this subchapter, Subchapter B, [chapter] or a rule adopted under this subchapter or Subchapter B [chapter]; or

(2) Section 102.001, Occupations Code, if the violation relates to the provision of home health, hospice, or personal assistance services.

(h) All proceedings for the assessment of an administrative penalty under this subchapter [chapter] are subject to Chapter 2001, Government Code.

(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 subchapter or Subchapter B [chapter];

(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 adopted or license issued under this subchapter or Subchapter B [chapter];

(E) fails to pay a penalty assessed by the department under this subchapter [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 11. Chapter 142, Health and Safety Code, is amended by adding Subchapter C to read as follows:

SUBCHAPTER C. HOME AND COMMUNITY SUPPORT SERVICES AGENCY

ADMINISTRATION; ENFORCEMENT; PENALTIES

Sec. 142.051. DEFINITIONS. In this subchapter:

(1) "Advisory committee" means the home and community support services agency administrators advisory committee.

(2) "Applicant" means a person who applies for a home and community support services agency administrator license.

(3) "License holder" means a person who is issued a home and community support services agency administrator license under this subchapter.

(4) "Practice of home and community support services 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 agency.

Sec. 142.052. LICENSE REQUIRED; EXEMPTION. (a) Except as provided by Subsection (b), a person may not act as a home and 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 another home and community support services agency.

Sec. 142.053. LICENSE APPLICATION; QUALIFICATIONS. (a) An 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 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:

(1) the service needs of clients served by home and community support services agencies;

(2) the laws governing the operation of home and community support services agencies and the protection of the interests of home and community support services agency clients; and

(3) the functions and duties of home and community support services agency administrators.

(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.

Sec. 142.054. EXAMINATION. (a) The department shall prepare or approve the licensing examination for issuance of a license under this subchapter and shall administer the examination 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.

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.

(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.