By: Schwertner, Hinojosa S.B. No. 933
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the licensing of, the executive commissioner of the
  Health and Human Services Commission's duties with respect to, and
  the administrative penalties for home and community support
  services agencies.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Sections 142.006(a), (b), and (c), Health and
  Safety Code, are amended to read as follows:
         (a)  The commission [department] shall issue a home and
  community support services agency license to provide home health,
  hospice, habilitation, or personal assistance services for each
  place of business to an applicant if:
               (1)  the applicant:
                     (A)  qualifies for the license to provide the type
  of service that is to be offered by the applicant;
                     (B)  submits an application and license fee as
  required by this chapter; and
                     (C)  complies with all applicable licensing
  standards required or adopted under this chapter; and
               (2)  any controlling person with respect to the
  applicant complies with all applicable licensing standards
  required or adopted under this chapter.
         (b)  A license issued under this chapter expires three [two]
  years after the date of issuance. The executive commissioner by
  rule shall [may] adopt a system under which licenses expire on
  staggered [various] dates during each three-year [the two-year]
  period. The commission shall prorate the license fee as
  appropriate if the expiration date of a license changes as a result
  of this subsection [For the year in which a license expiration date
  is changed, the department shall prorate the license fee on a
  monthly basis. Each license holder shall pay only that portion of
  the license fee allocable to the number of months for which the
  license is valid. A license holder shall pay the total license
  renewal fee at the time of renewal. The department may issue an
  initial license for a shorter term to conform expiration dates for a
  locality or an applicant. The department may issue a temporary
  license to an applicant for an initial license].
         (c)  The commission [department] may find that a home and
  community support services agency has satisfied the requirements
  for licensing if the agency is accredited by an accreditation
  organization, such as The Joint Commission or the Community Health
  Accreditation Program, and the commission [department] finds that
  the accreditation organization has standards that meet or exceed
  the requirements for licensing under this chapter. A license fee is
  required of the home and community support services agency at the
  time of a license application.
         SECTION 2.  Sections 142.010(a) and (b), Health and Safety
  Code, are amended to read as follows:
         (a)  The executive commissioner by rule shall set license
  fees for home and community support services agencies in amounts
  that are reasonable to meet the costs of administering this
  chapter, except that the fees may not be less than $600 or more than
  $3,000 [$2,000] for a license to provide home health, hospice,
  habilitation, or personal assistance services.
         (b)  The executive commissioner shall consider the size of
  the home and community support services agency, the number of
  clients served, the number of services provided, and the necessity
  for review of other accreditation documentation in determining the
  amount collected by the commission [department] for initial and
  renewal license fees.
         SECTION 3.  Section 142.017, Health and Safety Code, is
  amended by amending Subsections (a), (b), (c), (e), (i), and (j) and
  adding Subsections (k) and (l) to read as follows:
         (a)  The commission [department] may assess an
  administrative penalty against a person who violates:
               (1)  this chapter or a rule adopted under this chapter;
  or
               (2)  Section 102.001, Occupations Code, if the
  violation relates to the provision of home health, hospice,
  habilitation, or personal assistance services.
         (b)  The penalty shall be not less than $100 or more than
  $1,000 for each violation, except that the penalty shall be not less
  than $100 or more than $5,000 for each violation that results in
  actual harm or that constitutes an immediate threat to the health or
  safety of a client. Each day of a violation that occurs before the
  day on which the person receives written notice of the violation
  from the commission [department] does not constitute a separate
  violation and shall be considered to be one violation. Each day of
  a continuing violation that occurs after the day on which the person
  receives written notice of the violation from the commission
  [department] constitutes a separate violation.
         (c)  The executive commissioner by rule shall specify each
  violation for which the commission [department] may assess an
  administrative penalty. In determining which violations warrant
  penalties, the commission [department] shall consider:
               (1)  the seriousness of the violation, including the
  nature, circumstances, extent, and gravity of the violation and the
  hazard of the violation to the health or safety of clients; and
               (2)  whether the affected home and community support
  services agency had identified the violation as a part of its
  internal quality assurance process and had made appropriate
  progress on correction.
         (e)  Except as provided by Subsection (j), the executive
  commissioner by rule shall provide the home and community support
  services agency with a reasonable period of time following the
  first day of a violation to correct the violation before the
  commission [department] assesses an administrative penalty if a
  plan of correction has been implemented.
         (i)  The commission [department] may not assess an
  administrative penalty against a state agency.
         (j)  The commission [department] may assess an
  administrative penalty without providing a reasonable period of
  time to a home and community support services [the] agency to
  correct the violation if the violation:
               (1)  represents a pattern of violation that results in
  actual [serious] harm [or death];
               (2)  is widespread in scope and results in actual harm;
               (3)  is widespread in scope and constitutes a potential
  for actual harm;
               (4) [(2)]  constitutes an immediate [a serious] threat
  to the health or safety of a client;
               (5) [(3)]  substantially limits the agency's capacity
  to provide care;
               (6) [(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 commission [department];
                     (B)  refuses to allow a representative of the
  commission [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 commission [department] or the enforcement of
  this chapter;
                     (D)  wilfully interferes with a representative of
  the commission [department] preserving evidence of a violation of
  this chapter or a rule, standard, or order adopted or license issued
  under this chapter;
                     (E)  fails to pay a penalty assessed by the
  commission [department] under this chapter not later than the 10th
  day after the date the assessment of the penalty becomes final; or
                     (F)  fails to submit:
                           (i)  a plan of correction not later than the
  10th day after the date the person receives a statement of licensing
  violations; or
                           (ii)  an acceptable plan of correction not
  later than the 30th day after the date the person receives
  notification from the commission [department] that the previously
  submitted plan of correction is not acceptable;
               (7) [(5)]  is a violation of Section 142.0145; or
               (8) [(6)]  involves the rights of the elderly under
  Chapter 102, Human Resources Code.
         (k)  The commission shall develop and use a system to record
  and track the scope and severity of each violation of this chapter
  or a rule adopted under this chapter for the purpose of assessing an
  administrative penalty for the violation or taking some other
  enforcement action against the appropriate home and community
  support services agency to deter future violations. The system:
               (1)  must be comparable to the system used by the
  Centers for Medicare and Medicaid Services to categorize the scope
  and severity of violations for nursing homes; and
               (2)  may be modified, as appropriate, to reflect
  changes in industry practice or changes made to the system used by
  the Centers for Medicare and Medicaid Services.
         (l)  In this section:
               (1)  "Actual harm" means a negative outcome that
  compromises a client's physical, mental, or emotional well-being.
               (2)  "Immediate threat to the health or safety of a
  client" means a situation that causes, or is likely to cause,
  serious injury, harm, or impairment to or the death of a client.
               (3)  "Pattern of violation" means repeated, but not
  pervasive, failures of a home and community support services agency
  to comply with this chapter or a rule adopted under this chapter
  that:
                     (A)  result in a violation; and
                     (B)  are found throughout the services provided by
  the agency or that affect or involve the same clients or agency
  employees or volunteers.
               (4)  "Widespread in scope" means a violation of this
  chapter or a rule adopted under this chapter that:
                     (A)  is pervasive throughout the services
  provided by the home and community support services agency; or
                     (B)  represents a systemic failure by the home and
  community support services agency that affects or has the potential
  to affect a large portion of or all of the clients of the agency.
         SECTION 4.  As soon as practicable after the effective date
  of this Act and after consulting with appropriate stakeholders, the
  executive commissioner of the Health and Human Services Commission
  shall develop and adopt rules necessary to implement the changes in
  law made by this Act.
         SECTION 5.  The changes in law made by this Act apply only to
  actions taken by the Health and Human Services Commission and
  license holders under Chapter 142, Health and Safety Code, on or
  after the effective date of this Act.  An action taken before the
  effective date of this Act is governed by the law in effect at that
  time, and the former law is continued in effect for that purpose.
         SECTION 6.  This Act takes effect September 1, 2017.