AUTHOR'S / SPONSOR'S STATEMENT OF INTENT
The committee substitute for S.B. 204 makes clarifying changes to align with current law incorporated from the Sunset Clarification Bill S.B 219.
C.S.S.B. 204 amends current law relating to the functions and operations of the Department of Aging and Disability Services and increases penalties.
[Note: While the statutory reference in this bill is to the Texas Department of Human Services (TDHS) the following amendments affect the Department of Aging and Disability Services (DADS) and the Texas Health and Human Services Commission (HHSC), as the successor agencies to TDHS.]
[Note: While the statutory reference in this bill is to the Texas Department of Mental Health and Retardation (TXMHMR) following amendments affect the Department of Aging and Disability Services (DADS) as the successor agency to TXMHMR.]
RULEMAKING AUTHORITY
Rulemaking authority is expressly granted to the executive commissioner of the Health and Human Services Commission in SECTION 1 (Section 142.0125, Health and Safety Code), SECTION 4 (Section 242.0613, Health and Safety Code), SECTION 6 (Section 247.0415, Health and Safety Code), SECTION 9 (Section 252.0615, Health and Safety Code), and SECTION 17 (Section 161.080, Government Code) of this bill.
Rulemaking authority is expressly granted to the executive commissioner of the Health and Human Services Commission in SECTION 2 (Section 142.017, Health and Safety Code), SECTION 5 (Section 242. 0665, Health and Safety Code), SECTION 8 (Section 247.0452, Health and Safety Code), SECTION 9 (Section 252.065, Health and Safety Code), and SECTION 16 (Section 103.013, Human Resources Code) of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Subchapter A, Chapter 142, Health and Safety Code, by adding Section 142.0125, as follows:
Sec. 142.0125. PROGRESSIVE SANCTIONS. (a) Requires the executive commissioner of the Health and Human Services Commission (executive commissioner) by rule to create a matrix of progressive sanctions that the Department of Aging and Disability Services (DADS) must use to assess penalty amounts and impose disciplinary actions under this chapter appropriately and fairly for a violation of a law, rule, standard, or order adopted or license issued under this chapter or for a violation of other law for which this chapter provides a sanction.
(b) Requires the matrix of progressive sanctions adopted under this section to provide for increases in amounts of administrative penalties based on type, frequency, and seriousness of violations and provide guidance for determining appropriate and graduated administrative penalties to assess under this chapter to deter future violations, including guidance on considering the factors listed in this chapter for determining the amount of a penalty.
(c) Requires the matrix of progressive sanction adopted under this section to provide for imposing stronger sanctions, including license suspension or revocation, for more serious violations or for repeated violations as appropriate to deter future serious or repeated violations. Requires the matrix of progressive sanctions to describe appropriate time frames to be used in determining whether a home and community support services agency has committed repeated violations or has engaged in a pattern of repeated violations, such as repeated violations found in consecutive regular inspections.
SECTION 2. Amends Sections 142.017(b) and (j), Health and Safety Code, as follows:
(b) Requires the penalty to be not less than $100 or more than $5,000, rather than $1,000, for each violation. Provides that each day of a violation that occurs before the day on which the person receives written notice of the violation from DADS does not constitute a separate violation and is considered to be one violation. Provides that each day of a continuing violation that occurs after the day on which the person receives written notice of the violation from DADS constitutes a separate violation.
(j) Requires the executive commissioner by rule to define the types of minor violations an agency is authorized to correct under Subsection (e) before DADS is authorized to assess an administrative penalty. Requires the executive commissioner to ensure that all other violations are not subject to a right to correct.
Deletes existing text authorizing DADS to 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 DADS;
(B) refuses to allow a representative of DADS to inspect a book, record, or file required to be maintained by an agency;
(C) wilfully interferes with the work of a representative of DADS or the enforcement of this chapter;
(D) wilfully interferes with a representative of DADS preserving evidence of a violation of this chapter or a rule, standard, or order adopted or license issued under this chapter;
(E) fails to pay a penalty assessed by DADS under this chapter not later than the 10th day after the date the assessment of the penalty becomes final; or
(F) fails to submit:
(i) a plan of correction not later than the 10th day after the date the person receives a statement of licensing violations; or
(ii) an acceptable plan of correction not later than the 30th day after the date the person receives notification from DADS 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 3. Amends Section 242.061, Health and Safety Code, by adding Subsections (c-1), (c-2), and (e), as follows:
(c-1) Requires DADS to revoke the license of an institution that violates this chapter or a rule, standard, or order adopted or license issued under this chapter in a manner that causes immediate jeopardy to health and safety on three separate days within a 24-month period.
(c-2) Provides that in the case of revocation of a license under Subsection (c-1), DADS is authorized to:
(1) request the appointment of a trustee to operate the institution under Subchapter D;
(2) obtain a new operator for the institution; or
(3) assist with the relocation of residents to another institution.
(e) Defines "immediate jeopardy to health and safety."
SECTION 4. Amends Subchapter C, Chapter 242, Health and Safety Code, by adding Section 242.0613, as follows:
Sec. 242.0613. PROGRESSIVE SANCTIONS. (a) Requires the executive commissioner by rule to create a matrix of progressive sanctions that DADS is required to use to assess penalty amounts and impose disciplinary actions under this chapter appropriately and fairly for a violation of a law, rule, standard, or order adopted or license issued under this chapter or for a violation of other law for which this chapter provides a sanction.
(b) Requires the matrix of progressive sanctions adopted under this section to provide for increases in amounts of administrative penalties based on type, frequency, and seriousness of violations and to provide guidance for determining appropriate and graduated administrative penalties to assess under this chapter to deter future violations, including guidance on considering the factors listed in this chapter for determining the amount of a penalty.
(c) Requires the matrix of progressive sanctions adopted under this section to provide for imposing stronger sanctions, including license suspension or revocation, for more serious violations or for repeated violations as appropriate to deter future serious or repeated violations. Requires the matrix of progressive sanctions to describe appropriate time frames to be used in determining whether a facility (institution) has committed repeated violations or has engaged in a pattern of repeated violations, such as repeated violations found in consecutive regular inspections.
SECTION 5. Amends Section 242.0665(b), Health and Safety Code, as follows:
(b) Requires the executive commissioner by rule to define types of minor violations a facility is authorized to correct under Subsection (a) before DADS is authorized to assess an administrative penalty. Requires the executive commissioner to ensure that all other violations are not subject to a right to correct.
Deletes existing text providing that Subsection (a) does not apply:
(1) to a violation that DADS determines:
(A) results in serious harm to or death of a resident;
(B) constitutes a serious threat to the health or safety of a resident; or
(C) substantially limits the institution's capacity to provide care;
(2) to a violation described by Sections 242.066(a)(2)-(7);
(3) to a violation of Section 260A.014 or 260A.015; or
(4) to a violation of a right of a resident adopted under Subchapter L.
SECTION 6. Amends Subchapter C, Chapter 247, Health and Safety Code, by adding Section 247.0145, as follows:
Sec. 247.0415. PROGRESSIVE SANCTIONS. (a) Requires the executive commissioner by rule to create a matrix of progressive sanctions that DADS must use to assess penalty amounts and impose disciplinary actions under this chapter appropriately and fairly for a violation of a law, rule, standard, or order adopted or license issued under this chapter or for a violation of other law for which this chapter provides a sanction.
(b) Requires that the matrix of progressive sanctions adopted under this section provide for increases in amounts of administrative penalties based on type, frequency, and seriousness of violations and provide guidance for determining appropriate and graduated administrative penalties to assess under this chapter to deter future violations, including guidance on considering the factors listed in this chapter for determining the amount of a penalty.
(c) Requires that the matrix of progressive sanctions adopted under this section provide for imposing stronger sanctions, including license suspension or revocation, for more serious violations or for repeated violations as appropriate to deter future serious or repeated violations. Requires that the matrix of progressive sanctions describe appropriate time frames to be used in determining whether an assisted living facility has committed repeated violations or has engaged in a pattern of repeated violations, such as repeated violations found in consecutive regular inspections.
SECTION 7. Amends Section 247.0451(b), Health and Safety Code, as follows:
(b) Prohibits the penalty from exceeding $5,000, rather than $1,000, for each violation, except as provided by Section 247.0452 (c) (requiring that an assisted living facility that corrects a violation maintain the correction). Provides that each day a violation occurs or continues is a separate violation for purposes of imposing a penalty.
SECTION 8. Amends Section 247.0452(b), Health and Safety Code, as follows:
(b) Requires the executive commissioner by rule to define the types of minor violations an assisted living facility is authorized to correct under Subsection (a) before DADS is authorized to assess an administrative penalty. Requires the executive commissioner to ensure that all other violations are not subject to a right to correct.
Deletes existing text providing that Subsection (a) does not apply:
(1) to a violation that DADS determines results in serious harm to or death of a resident;
(2) to a violation described by Sections 247.0451(a)(2)-(7) or a violation of Section 260A.014 or 260A.015;
(3) to a second or subsequent violation of:
(A) a right of the same resident under Section 247.064; or
(B) the same right of all residents under Section 247.064; or
(4) to a violation described by Section 247.066, which contains its own right to correct provisions.
SECTION 9. Amends Subchapter C, Chapter 252, Health and Safety Code, by adding Section 252.0615, as follows:
Sec. 252.0615. PROGRESSIVE SANCTIONS. (a) Requires the executive commissioner by rule to create a matrix of progressive sanctions that DADS is required to use to assess penalty amounts and impose disciplinary actions under this chapter appropriately and fairly for a violation of a law, rule, standard, or order adopted or license issued under this chapter or for a violation of other law for which this chapter provides a sanction.
(b) Requires the matrix of progressive sanctions adopted under this section to provide for increases in amounts of administrative penalties based on type, frequency, and seriousness of violations and must provide guidance for determining appropriate and graduated administrative penalties to assess under this chapter to deter future violations, including guidance on considering the factors listed in this chapter for determining the amount of a penalty.
(c) Requires the matrix of progressive sanctions adopted under this section to provide for imposing stronger sanctions, including license suspension or revocation, for more serious violations or for repeated violations as appropriate to deter future serious or repeated violations. requires the matrix of progressive sanctions describe appropriate time frames to be used in determining whether an intermediate care facility (facility) has committed repeated violations or has engaged in a pattern of repeated violations, such as repeated violations found in consecutive regular inspections.
SECTION 10. Amends Section 252.065, Health and Safety Code, by amending Subsection (b) and Subsection (e), as amended by S.B. 219, Acts of the 84th Legislature, Regular Session, 2015, as follows:
(b) Requires that the penalty for a facility with fewer than 60 beds be not less than $100 or more than $1,000 for each violation. Requires that the penalty for a facility with 60 beds or more be not less than $100 or more than $5,000 for each violation. Provides that each day a violation occurs or continues is a separate violation for purposes of imposing a penalty.
Deletes existing text prohibiting the total amount of the penalty assessed for a violation continuing or occurring on separate days under this subsection exceeding $5,000 for a facility with fewer than 60 beds or $25,000 for a facility with 60 beds or more.
(e) Requires the executive commissioner by rule to provide the facility with a reasonable period of time, not less than 45 days, following the first day of a violation to correct the violation before DADS is authorized to assess an administrative penalty if a plan of correction has been implemented. Requires the executive commissioner by rule to define the types of minor violations a facility is authorized to correct before DADS is authorized to assess an administrative penalty. Requires the executive commissioner to ensure that all other violations are not subject to a right to correct.
Deletes existing text providing that this subsection does not apply to a violation described by Subsections (a)(2)-(8) or to a violation that DADS determines to have resulted in serious harm to or the death of a resident, constituted a serious threat to the health or safety of a resident, or substantially limited the institution's capacity to provide care.
SECTION 11. Amends Subchapter B, Chapter 533 A, Health and Safety Code, as added by S.B. 219, Acts of the 84th Legislature, Regular Session, 2015, by adding Section 533A.044, as follows:
Sec. 533A.044. CRISIS INTERVENTION TEAMS. (a) Defines "crisis intervention team."
(b) Requires DADS to evaluate the effectiveness of various models of crisis intervention teams that are funded under a waiver under Section 1115 of the federal Social Security Act (42 U.S.C. Section 1315) and operated by a local intellectual and developmental disability authority.
(c) Requires DADS, not later than March 1, 2016, to select for implementation one or more models for crisis intervention teams DADS determines best provide comprehensive, cost-effective support.
(d) Requires DADS to determine the areas in this state in which local intellectual and developmental disability authorities do not operate crisis intervention teams and, subject to available funding, implement in each area a team that operates in accordance with a model selected for implementation under this section.
SECTION 12. Amends Chapter 555, Health and Safety Code, by adding Subchapter F, as follows:
SUBCHAPTER F. STATE SUPPORTED LIVING CENTER RESTRUCTURING AND CLOSURES
Sec. 555.201. STATE SUPPORTED LIVING CENTER RESTRUCTURING COMMISSION. (a) Defines "restructuring commission."
(b) Provides that the restructuring commission consists of five members appointed by the governor and the following three nonvoting ex officio members:
(1) the executive commissioner or the executive commissioner's designee;
(2) the executive director of the Texas Facilities Commission or the executive director's designee; and
(3) the commissioner of the General Land Office or the commissioner's designee.
(c) Provides that the restructuring commission is established to evaluate each state supported living center in the state to determine whether closure of the center is recommended to maintain only the number of centers necessary to meet the level of need in the state. Requires the restructuring commission, in evaluating each state supported living center, to consider:
(1) the quality of services provided by the center, including the center's most recent certification inspections and the center's ability to meet the minimum ICF-IID standards;
(2) the costs of operating the center;
(3) the center's compliance with the 2009 settlement agreement between DADS and the United States Department of Justice regarding services provided to individuals with an intellectual or developmental disability in state-operated facilities;
(4) the availability of community service providers in the area served by the center;
(5) the specialty services provided at the center, including the ability of the center to serve alleged offenders or high-risk residents;
(6) the availability of employment opportunities for center employees if the center closes;
(7) any infrastructure deficiency costs relating to the center;
(8) the property value of, the market demand for, and any deed restrictions applicable to property and facilities of the center;
(9) whether closure of the center would adversely affect the geographic distribution of centers in the state;
(10) the availability and capacity of service providers and resources in the community capable of delivering the quality and level of care each resident of the center would require following the center's closure; and
(11) any other criteria the restructuring commission considers appropriate.
(d) Requires the restructuring commission, not later than December 1, 2016, to submit to the governor, the lieutenant governor, the speaker of the house of representatives, and the presiding officers of the standing committees of the senate and house of representatives having primary jurisdiction over intellectual and developmental disability issues a report detailing the restructuring commission's evaluation of each state supported living center and, if applicable, proposing the closure of certain centers.
(e) Provides that the restructuring commission is abolished and this section expires January 1, 2017.
Sec. 555.202. RECOMMENDED CLOSURES OF STATE SUPPORTED LIVING CENTERS. (a) Requires the 85th Legislature to consider legislation proposing the closure of the centers recommended for closure if the restructuring commission proposes the closure of one or more state supported living centers. Prohibits members of the legislature from proposing amendments to the legislation in considering the proposed legislation described by this subsection.
(b) Requires DADS to ensure that each state supported living center approved by the legislature for closure under Subsection (a) is closed not later than August 31, 2025, if the legislation described by Subsection (a) is enacted and becomes law.
(c) Provides that this subchapter expires September 1, 2025.
Sec. 555.203. CLOSURE OF AUSTIN STATE SUPPORTED LIVING CENTER. (a) Requires DADS to establish a closure plan for the Austin State Supported Living Center. Requires the plan to provide for closure of the institution and operations of the Austin State Supported Living Center not later than August 31, 2017.
(b) Requires the closure plan to provide procedures to transition to the community each resident for whom transition to the community is practicable while maintaining respect for resident choice.
(c) Authorizes DADS to award one-time retention bonuses to each direct support professional, qualified intellectual disability professional, social worker, and case manager who agrees to continue to provide services at the Austin State Supported Living Center until the center is closed.
(d) Authorizes the proceeds from the closure, including from the sale or lease of facilities or other property to be appropriated only for services for persons with an intellectual or developmental disability, including persons with a dual diagnosis of an intellectual or developmental disability and mental illness.
(e) Requires DADS, not later than August 31, 2018, to evaluate the closure process, including how well the closure plan worked, and, if appropriate, establish policies for improving the closure process for future closures of other state supported living centers.
(f) Provides that this section expires September 1, 2018.
SECTION 13. Amends Section 531.0318, Government Code, by adding Subsections (b-1), (d), and (e), as follows:
(b-1) Requires that the information for consumers required by this section include for each provider of long-term care services:
(1) a rating assigned by DADS indicating the quality of the care provided or, alternatively, a link to a rating assigned a provider on an Internet website maintained by the federal government;
(2) information concerning quality of care, as that information becomes available;
(3) staffing information, if available, including for each year the number of staff members who began employment with the provider during that year and the number of staff members who ceased employment with the provider during that year;
(4) the ratio of staff members to residents; and
(5) the provider's regulatory performance, as available.
(d) Requires DADS to immediately post notice on the department's Internet website when a provider of long-term care services loses its Medicaid certification.
(e) Requires DADS to periodically solicit input regarding the content of the information required under this section and the usability and accessibility of the website on which the information is located from consumers, consumer advocates, long-term care services providers, and the general public.
SECTION 14. Amends Subchapter D, Chapter 48, Human Resources Code, by adding Section 48.15221, as follows:
Sec. 48.15221. REPORTS CONCERNING DAY HABILITATION SERVICES PROVIDERS. (a) Defines "day habilitation services" and "day habilitation services provider."
(b) Requires the Department of Family and Protective Services (DFPS) to prepare and submit to DADS an annual report of the number of investigations arising from a report of abuse, neglect, or exploitation of a person with an intellectual or developmental disability that was allegedly committed by or on the premises of a day habilitation services provider, and whether the investigation concluded that the report of alleged abuse, neglect, or exploitation was confirmed, unconfirmed, inconclusive, or unfounded.
(c) Provides that the duty to prepare and submit a report under Subsection (b) does not affect the duty of DFPS to investigate and hold accountable a community-based intellectual and developmental disabilities services provider or intermediate care institution for any abuse, neglect, or exploitation of a person who receives day habilitation services from the provider.
SECTION 15. Amends Chapter 103, Human Resources Code, by adding Section 103.0085, as follows:
Sec. 103.0085. PROGRESSIVE SANCTIONS. (a) Requires the executive commissioner by rule to create a matrix of progressive sanctions that the Texas Department of Human Services (TDHS) is required to use to assess penalty amounts and impose disciplinary actions under this chapter appropriately and fairly for a violation of a law, rule, standard, or order adopted or license issued under this chapter or for a violation of other law for which this chapter provides a sanction.
(b) Requires the matrix of progressive sanctions adopted under this section to provide for increases in amounts of administrative penalties based on type, frequency, and seriousness of violations and to provide guidance for determining appropriate and graduated administrative penalties to assess under this chapter to deter future violations, including guidance on considering the factors listed in this chapter for determining the amount of a penalty.
(c) Requires the matrix of progressive sanctions adopted under this section to provide for imposing stronger sanctions, including license suspension or revocation, for more serious violations or for repeated violations as appropriate to deter future serious or repeated violations. Requires the matrix of progressive sanctions to describe appropriate time frames to be used in determining whether an adult day-care institution has committed repeated violations or has engaged in a pattern of repeated violations, such as repeated violations found in consecutive regular inspections.
SECTION 16. Amends Section 103.013(b), Human Resources Code, as follows:
(b) Requires the executive commissioner by rule to define the types of minor violations an adult day-care facility is authorized to correct under Subsection (a) before TDHS is authorized to assess an administrative penalty. Requires the executive commissioner to ensure that all other violations are not subject to a right to correct.
Deletes existing text providing that Subsection (a) does not apply to:
(1) a violation that the department determines:
(A) results in serious harm to or death of a person attending the facility;
(B) constitutes a serious threat to the health and safety of a person attending the facility; or
(C) substantially limits the facility's capacity to provide care;
(2) a violation described by Sections 103.012(a)(2)-(7); or
(3) a violation of Section 103.011.
SECTION 17. Amends Section 161.080, Human Resources Code, by adding Subsection (c), as follows:
(c) Requires the executive commissioner by rule to establish a list of services a state supported living center may provide under a contract described by Subsection (a) and a schedule of fees the state supported living center is authorized to charge for those services. Requires the executive commissioner to use the reimbursement rate for the applicable service under the Medicaid program or modify that rate with a written justification for the modification in establishing the schedule of fees for services.
SECTION 18. Amends Chapter 161, Human Resources Code, by adding Subchapter J, as follows:
SUBCHAPTER J. POWERS AND DUTIES RELATING TO DAY HABILITATION SERVICES PROVIDERS
Sec. 161.401. DEFINITIONS. Defines "day habilitation services" and "day habilitation services provider."
Sec. 161.402. DAY HABILITATION SERVICES PROVIDER INFORMATION TRACKING. (a) Requires each community-based intellectual and developmental disabilities services provider and intermediate care facility to annually submit to DADS a report providing:
(1) an estimate of the number of clients receiving day habilitation services for each month of that year;
(2) the physical address of each day habilitation services provider that provided those services;
(3) the services provided to those clients; and
(4) an estimate of monthly expenditures for the provision of those services to those clients.
(b) Requires DADS to maintain information obtained during a department inspection of a day habilitation services provider concerning conduct or conditions that would constitute a violation of federal or state law or of DADS rules applicable to the community-based intellectual and developmental disabilities services provider or intermediate care institution with which the day habilitation services provider contracts.
(c) Requires DADS to maintain information concerning an investigation of abuse, neglect, or exploitation concerning a day habilitation services provider that DADS receives from DFPS under Section 48.15221.
Sec. 161.403. DAY HABILITATION PROGRAM ADVISORY COMMITTEE. (a) Requires DADS, not later than September 1, 2015, to establish a day habilitation program advisory committee composed of members that represent community-based waiver providers, owners of day habilitation services providers, and advocates for persons with an intellectual or developmental disability.
(b) Requires the day habilitation program advisory committee to consider and make recommendations concerning whether the provision of day habilitation services in this state should be redesigned and whether day habilitation services providers should be subject to regulation, including by licensure or certification.
(c) Requires the day habilitation program advisory committee to examine whether day habilitation service providers currently comply with the requirements of 42 C.F.R. Section 441.301 in considering the redesign of the provision of day habilitation services in this state.
(d) Requires the day habilitation program advisory committee to also consider and make recommendations concerning issues relevant to the provision of day habilitation services, including the appropriate funding for services, reimbursable settings and services, staff-to-client ratio requirements, safety requirements, and other required or applicable standards.
(e) Requires the day habilitation program advisory committee, not later than September 16, 2016, to submit to the governor, the lieutenant governor, the speaker of the house of representatives, and the presiding officers of the standing committees of the senate and house of representatives having primary jurisdiction over intellectual and developmental disability issues a report containing the committee's recommendations concerning the redesign of the provision of day habilitation services in this state and the necessity for regulation, licensure, or certification of day habilitation services providers.
(f) Provides that the day habilitation program advisory committee is abolished and this section expires December 31, 2016.
SECTION 19. Repealer: 101A. 158 (Annual Report), Human Resources Code, as added by S.B. 219, Acts of the 84th Legislature, Regular Session, 2015.
SECTION 20. (a) Requires the executive commissioner of the Health and Human Services Commission, not later than September 1, 2016, to adopt by rule the matrices of progressive sanctions required by Sections 142.0125, 242.0613, 247.0415, and 252.0615, Health and Safety Code, and Section 103.0085, Human Resources Code, as added by this Act.
(b) Requires the governor, not later than September 1, 2015, to appoint five members of the state supported living center restructuring commission, as required by Section 555.201, Health and Safety Code, as added by this Act.
(c) Requires the executive commissioner of HHSC, not later than September 1, 2016, to adopt the rule listing services a state supported living center may provide under a contract and the schedule of fees for those services as required by Section 161.080, Human Resources Code, as amended by this Act.
SECTION 21. Effective date: upon passage or September 1, 2015.