84R8698 JSC-F

By: White of Tyler H.B. No. 4056

A BILL TO BE ENTITLED

AN ACT

relating to inspection procedures in certain long-term care facilities and the creation of a long-term care legislative oversight committee; providing penalties.

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

SECTION 1. Section 242.039, Health and Safety Code, is amended by adding Subsections (h) and (i) to read as follows:

(h) On application of an institution licensed under this chapter, a municipal fire marshal may grant a waiver for a violation of a life safety requirement or fire safety standard cited in the department's final official statement of violations after an inspection, survey, or investigation conducted under Section 242.043 or 242.044 if the fire marshal finds that:

(1) the institution met all applicable life safety requirements and fire safety standards at the time the institution was initially licensed; and

(2) the waiver will not have an adverse effect on resident health and safety.

(i) An institution that receives a waiver under Subsection (h) is not required to include the waived violation in the institution's plan to correct violations submitted under Section 242.0445.

SECTION 2. Section 242.043, Health and Safety Code, is amended by adding Subsections (i), (j), (k), (l), and (m) to read as follows:

(i) A department employee may not conduct an inspection, survey, or investigation of an institution unless the employee is a health care professional licensed in this state. An officer or employee of an institution may require the department employee to provide proof of the licensure before the department employee conducts an inspection, survey, or investigation.

(j) The leader of a department survey team that conducts an inspection, survey, or investigation of an institution must be a registered nurse licensed in this state who has training, knowledge, and experience in geriatric care.

(k) The department or the department's representative who conducts an inspection, survey, or investigation may not cite a violation unless the department or the department's representative finds, by a preponderance of the evidence, that a violation has occurred.

(l) The department or the department's representative shall include on the department's inspection form:

(1) a brief description of the evidence that supports a finding that a violation occurred; and

(2) the name and title of the person who found each violation.

(m) The executive commissioner shall adopt rules to ensure that among the community services regions the department uniformly administers inspections, surveys, and investigations and consistently interprets and enforces the rules and laws regulating the institutions. The executive commissioner shall prepare and deliver a quarterly progress report on uniform administration, interpretation, and enforcement to the Health and Human Services Commission and the appropriate health and human services legislative standing committees.

SECTION 3. Section 242.0445, Health and Safety Code, is amended by amending Subsection (b) and adding Subsection (d) to read as follows:

(b) At the conclusion of an inspection, survey, or investigation under Section 242.043 or 242.044, the department or the department's representative conducting the inspection, survey, or investigation shall discuss the violations with the facility's management in an exit conference. The department or the department's representative shall leave a written list of the violations with the facility at the time of the exit conference. If the department or the department's representative discovers any additional violations during the review of field notes or preparation of the official final list, the department or the department's representative shall give the facility an additional exit conference regarding the additional violations. An additional exit conference must be held in person and may not be held by telephone, e-mail, or facsimile transmission. The department or the department's representative may not conduct an additional inspection, survey, or investigation during an additional exit conference. The department or the department's representative may not use an additional exit conference to retaliate against a facility for:

(1) filing a complaint against the department or the department's representative regarding an inspection, survey, or investigation; or

(2) requesting an administrative hearing to contest a finding of a violation of this chapter.

(d) The department or the department's representative may not require a facility, through an inspection, survey, or investigation or the final official statement of violations, to take any action that conflicts with best practices for the facility or a written order of a physician. A facility shall provide evidence that the statement of violations conflicts with best practices for the facility or a written order of a physician in the facility's plan to correct violations. A facility is not required to correct a violation that conflicts with best practices for the facility or the written orders of a physician.

SECTION 4. Subchapter B, Chapter 242, Health and Safety Code, is amended by adding Section 242.0446 to read as follows:

Sec. 242.0446. CIVIL LIABILITY. (a) An institution may bring a civil action against an employee or representative of the department who conducts an inspection, survey, or investigation under Section 242.043 or 242.044 and in bad faith or with a malicious purpose makes a false or inaccurate statement of a violation found during the inspection, survey, or investigation.

(b) An employee or representative of the department who is found liable under this section is not entitled to indemnification under Chapter 104, Civil Practice and Remedies Code.

SECTION 5. Section 247.027, Health and Safety Code, is amended by adding Subsections (c), (d), (e), (f), (g), and (h) to read as follows:

(c) On application of an assisted living facility licensed under this chapter, a municipal fire marshal may grant a waiver for a violation of a life safety requirement or fire safety standard cited in the department's final official statement of violations after an inspection conducted under this section if the fire marshal finds that:

(1) the facility met all applicable life safety requirements and fire safety standards at the time the facility was initially licensed; and

(2) the waiver will not have an adverse effect on resident health and safety.

(d) An assisted living facility that receives a waiver under Subsection (c) is not required to include the waived violation in the facility's plan of correction submitted under Section 247.0271.

(e) A department employee may not conduct an inspection of an assisted living facility unless the employee is a health care professional licensed in this state. An officer or employee of a facility may require the department employee to provide proof of the licensure before the department employee conducts an inspection.

(f) A department employee who conducts an inspection may not cite a violation unless the employee finds, by a preponderance of the evidence, that a violation has occurred.

(g) The department employee shall include on the department's inspection checklist:

(1) a brief description of the evidence that supports a finding that a violation occurred; and

(2) the name and title of the person who found each violation.

(h) The executive commissioner of the Health and Human Services Commission shall adopt rules to ensure that among the community services regions the department uniformly administers inspections and consistently interprets and enforces the rules and laws regulating the assisted living facilities. The executive commissioner shall prepare and deliver a quarterly progress report on uniform administration, interpretation, and enforcement to the Health and Human Services Commission and the appropriate health and human services legislative standing committees.

SECTION 6. Section 247.0271, Health and Safety Code, is amended by adding Subsections (c-1) and (e) to read as follows:

(c-1) The inspector may not conduct an additional inspection during an additional exit conference. The inspector may not use an additional exit conference to retaliate against an assisted living facility for:

(1) filing a complaint against the department or the inspector regarding an inspection; or

(2) requesting an administrative hearing to contest a finding of a violation of this chapter.

(e) The inspector may not require an assisted living facility, through an inspection or the final official statement of violations, to take any action that conflicts with best practices for the facility or a written order of a physician. A facility shall provide evidence that the statement of violations conflicts with best practices for the facility or a written order of a physician in the facility's plan of correction. A facility is not required to correct a violation that conflicts with best practices for the facility or the written orders of a physician.

SECTION 7. Subchapter B, Chapter 247, Health and Safety Code, is amended by adding Section 247.0273 to read as follows:

Sec. 247.0273. CIVIL LIABILITY. (a) An assisted living facility may bring a civil action against a department employee who conducts an inspection under Section 247.023 or 247.027 and in bad faith or with a malicious purpose makes a false or inaccurate statement of a violation found during the inspection.

(b) A department employee who is found liable under this section is not entitled to indemnification under Chapter 104, Civil Practice and Remedies Code.

SECTION 8. Section 252.038, Health and Safety Code, is amended by adding Subsections (f) and (g) to read as follows:

(f) On application of a facility licensed under this chapter, a municipal fire marshal may grant a waiver for a violation of a life safety requirement or fire safety standard cited in the department's final official statement of violations after an inspection, survey, or investigation conducted under this chapter if the fire marshal finds that:

(1) the facility met all applicable life safety requirements and fire safety standards at the time the facility was initially licensed; and

(2) the waiver will not have an adverse effect on resident health and safety.

(g) A facility that receives a waiver under Subsection (f) is not required to include the waived violation in the facility's plan to correct violations submitted under Section 252.044.

SECTION 9. Section 252.040, Health and Safety Code, is amended by amending Subsection (i) and adding Subsections (j), (k), and (l) to read as follows:

(i) The department shall have specialized staff conduct inspections, surveys, or investigations of facilities under this section. A department employee may not conduct an inspection, survey, or investigation of a facility unless the employee is a health care professional licensed in this state. An officer or employee of a facility may require the department employee to provide proof of the licensure before the department employee conducts an inspection, survey, or investigation.

(j) The department or the department's representative who conducts an inspection, survey, or investigation may not cite a violation unless the department or the department's representative finds, by a preponderance of the evidence, that a violation has occurred.

(k) The department or the department's representative shall include on the department's inspection form:

(1) a brief description of the evidence that supports a finding that a violation occurred; and

(2) the name and title of the person who found each violation.

(l) The executive commissioner of the Health and Human Services Commission shall adopt rules to ensure that among the community services regions the department uniformly administers inspections, surveys, and investigations and consistently interprets and enforces the rules and laws regulating the facilities licensed under this chapter. The executive commissioner shall prepare and deliver a quarterly progress report on uniform administration, interpretation, and enforcement to the Health and Human Services Commission and the appropriate health and human services legislative standing committees.

SECTION 10. Subchapter B, Chapter 252, Health and Safety Code, is amended by adding Section 252.0401 to read as follows:

Sec. 252.0401. CIVIL LIABILITY. (a) A facility may bring a civil action against a representative of the department who conducts an inspection, survey, or investigation under this chapter and in bad faith or with a malicious purpose makes a false or inaccurate statement of a violation found during the inspection, survey, or investigation.

(b) An employee or representative of the department who is found liable under this section is not entitled to indemnification under Chapter 104, Civil Practice and Remedies Code.

SECTION 11. Section 252.044, Health and Safety Code, is amended by adding Subsections (b-1) and (d) to read as follows:

(b-1) The department or the department's representative may not conduct an additional inspection, survey, or investigation during an additional exit conference. The department or the department's representative may not use an additional exit conference to retaliate against a facility for:

(1) filing a complaint against the department or the department's representative regarding an inspection, survey, or investigation; or

(2) requesting an administrative hearing to contest a finding of a violation of this chapter.

(d) The department or the department's representative may not require a facility, through an inspection, survey, or investigation or the final official statement of violations, to take any action that conflicts with best practices for the facility or a written order of a physician. A facility shall provide evidence that the statement of violations conflicts with best practices for the facility or a written order of a physician in the facility's plan to correct violations. A facility is not required to correct a violation that conflicts with best practices for the facility or the written orders of a physician.

SECTION 12. Chapter 161, Human Resources Code, is amended by adding Subchapter J to read as follows:

SUBCHAPTER J. LEGISLATIVE OVERSIGHT COMMITTEE

Sec. 161.401. DEFINITIONS. In this subchapter:

(1) "Committee" means the long-term care legislative oversight committee.

(2) "Facility" means:

(A) an institution licensed under Chapter 242, Health and Safety Code;

(B) an assisted living facility licensed under Chapter 247, Health and Safety Code;

(C) a home and community support services agency licensed under Chapter 142, Health and Safety Code; and

(D) an intermediate care facility licensed under Chapter 252, Health and Safety Code.

Sec. 161.402. COMPOSITION OF COMMITTEE; PRESIDING OFFICER. (a) The committee is composed of:

(1) two members of the senate and one public member appointed by the lieutenant governor; and

(2) two members of the house of representatives and one public member appointed by the speaker of the house of representatives.

(b) A member of the committee serves at the pleasure of the appointing official.

(c) The lieutenant governor and the speaker of the house of representatives shall appoint the presiding officer of the committee on an alternating basis. The presiding officer shall serve a two-year term expiring February 1 of each odd-numbered year.

Sec. 161.403. COMMITTEE POWERS AND DUTIES. (a) The committee:

(1) shall meet at the call of the presiding officer;

(2) may receive, review, and comment on rules proposed by the department;

(3) shall review recommendations for legislation proposed by the department or the attorney general relating to facilities; and

(4) shall propose legislation relating to facilities.

(b) The committee may hear a facility's complaint regarding an operational dispute and make a recommendation to the department.

(c) The committee may issue process, in accordance with Section 301.024, Government Code, to compel the attendance of witnesses and the production of books, records, documents, and instruments required by the committee.

(d) The committee shall monitor the effectiveness and efficiency of the facility regulatory system of this state.

(e) The committee may request reports and other information from the department and the attorney general relating to:

(1) the facility regulatory and enforcement system of this state;

(2) the standards for including a facility in the STAR + PLUS Medicaid managed care program; and

(3) the effectiveness of the STAR + PLUS Medicaid managed care program in reducing preventable acute care costs.

(f) The committee shall use the existing staff resources of the senate and the house of representatives to assist the committee in performing its duties under this section.

Sec. 161.404. REPORT. (a) The committee shall submit a report to the governor, lieutenant governor, and speaker of the house of representatives not later than November 15 of each even-numbered year.

(b) The report must include:

(1) identification of significant problems in the facility regulatory and enforcement system, with recommendations for action;

(2) the effectiveness and efficiency of the facility regulatory system of this state, with recommendations for action; and

(3) recommendations for legislative action, if necessary or appropriate.

Sec. 161.405. EXPIRATION. (a) This subchapter expires September 1, 2019.

SECTION 13. (a) As soon as practicable after the effective date of this Act, 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.

(b) Not later than December 1, 2015, the Department of Aging and Disability Services shall modify inspection forms to conform to the requirements of this Act.

(c) The changes in law made by this Act apply only to an inspection, survey, or investigation conducted on or after January 1, 2016.

(d) As soon as practicable after the effective date of this Act, the lieutenant governor and the speaker of the house of representatives shall appoint members to the long-term care legislative oversight committee as required by Subchapter J, Chapter 161, Human Resources Code, as added by this Act. The speaker of the house of representatives shall appoint the first presiding officer of the committee.

SECTION 14. This Act takes effect September 1, 2015.