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A BILL TO BE ENTITLED
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AN ACT
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relating to certain administrative penalties and procedures |
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associated with aging, community-based, and long-term care service |
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providers. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 161.089, Human Resources Code, is |
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amended by amending Subsections (b), (c), (c-1), (e), (f). (g), and |
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(h) and adding Subsections (g-1) and (g-2) to read as follows: |
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(b) The commission may assess and collect an administrative |
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penalty against a provider who participates in a program to which |
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this section applies for a violation of a law or rule relating to |
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the program, except that an administrative penalty may not be |
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assessed for minor violations unless those violations are of a |
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continuing nature or are not corrected by the provider. If the |
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commission assesses an administrative penalty against a provider |
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for a violation of a law or rule, the commission may not impose a |
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payment hold against, recoup past payments from, or otherwise |
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withhold contract payments from the provider for the same violation |
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of a law or rule unless the provider has committed fraud, waste, or |
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abuse. The commission may impose a referral hold in lieu of an |
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administrative penalty assessed under this section. |
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(c) The [After consulting with appropriate stakeholders, |
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the] executive commissioner by rule shall [develop and adopt rules |
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regarding the imposition of administrative penalties under this |
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section. The rules must]: |
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(1) specify each violation that warrants [the types of |
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violations that warrant] imposition of an administrative penalty |
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after consideration of: |
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(A) the seriousness of the violation, including |
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the nature, circumstances, extent, and gravity of the violation and |
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the hazard of the violation to the health and safety of an |
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individual; and |
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(B) whether the provider previously identified |
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the violation as part of their internal quality assurance process |
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and made appropriate progress on correction; |
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(2) establish a schedule of appropriate and graduated |
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penalties for each [progressive administrative penalties in |
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accordance with the relative type, frequency, and seriousness of a] |
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violation based on: |
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(A) the seriousness of the violation, including |
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the nature, circumstances, extent, and gravity of the violation and |
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the hazard of the violation to the health and safety of an |
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individual; |
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(B) any history of previous violations by the |
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provider; |
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(C) whether the provider previously identified |
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the violation as part of its internal quality assurance process and |
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made appropriate progress on correction; |
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(D) the amount necessary to deter future |
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violations; |
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(E) efforts made by the provider to correct the |
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violation; and |
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(F) any other matters that justice may require; |
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(3) prescribe reasonable amounts to be imposed for |
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each violation giving rise to an administrative penalty, subject to |
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Subdivision (4); |
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(4) authorize the imposition of an administrative |
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penalty in an amount not to exceed $5,000 for each violation; |
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(5) provide that a provider commits a separate |
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violation each day the provider continues to violate the law or |
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rule, except that each day of a violation occurring before the day |
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on which the provider receives written notice of the violation from |
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the commission does not constitute a separate violation and shall |
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be considered by the commission to be one violation; |
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(6) ensure standard and consistent application of |
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administrative penalties throughout the state; and |
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(7) provide for an administrative appeals process to |
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adjudicate claims and appeals relating to the imposition of an |
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administrative penalty under this section that is in accordance |
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with Chapter 2001, Government Code [; and] |
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[(8) ensure standard and consistent interpretation of |
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service delivery rules and consistent application of |
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administrative penalties throughout this state]. |
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(c-1) The [On adoption of the rules under Subsection (c), |
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the] executive commissioner shall maintain [develop] |
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interpretative guidelines for regulatory staff and providers |
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regarding the imposition of administrative penalties under this |
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section. |
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(e) Except as provided by Subsection (f), the executive |
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commissioner by rule shall provide to a provider who has |
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implemented a plan of correction a reasonable period of time |
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following the date the commission sends written notice to the |
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provider of the violation to correct the violation before the |
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commission may assess an administrative penalty. The period may |
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not be less than 45 days. |
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(f) The commission may assess an administrative penalty on |
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providing written notice of a violation to a provider without |
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providing a reasonable period of time to a provider to correct the |
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violation if the violation: |
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(1) results in [represents a pattern of violation that |
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results in] actual harm or death; |
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(2) constitutes a serious threat to health or safety |
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and was not corrected by the provider or the provider has not made |
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demonstrable progress toward correcting the violation prior to |
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receiving notice of the violation from the commission [is |
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widespread in scope and results in actual harm]; or |
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(3) [is widespread in scope and constitutes a |
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potential for actual harm; |
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[(4) constitutes an immediate threat to the health or |
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safety of a recipient; |
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[(5) substantially limits the provider's ability to |
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provide care; or |
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[(6)] is a violation in which a provider: |
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(A) wilfully interferes with the work of a |
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representative of the commission or the enforcement of a law |
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relating to a program to which this section applies; |
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(B) fails to pay a penalty assessed by the |
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commission under this section not later than the 10th day after the |
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date the assessment of the penalty becomes final, subject to |
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Section 161.0891; or |
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(C) fails to submit a plan of correction not |
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later than the 10th day after the date the provider receives a |
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statement of the violation. |
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(g) Notwithstanding any other provision of this section, an |
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administrative penalty ceases to be incurred on the date a |
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violation is corrected. For purposes of this section, the date of |
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correction is the date identified by the provider and submitted to |
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the commission with evidence of correction. Penalties do not |
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accrue for a violation until a provider receives written notice of |
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the violation and of all elements of the violation that must be |
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corrected by the provider to achieve compliance. |
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(g-1) Notwithstanding provider requirements to notify the |
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service planning team of a significant change in condition, if the |
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commission identifies a violation caused by deficiency of services |
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authorized on a service plan, including potential hazards to the |
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health and safety of the individual, the commission shall allow |
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sufficient time for the service planning team to modify the service |
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plan before imposing an administrative penalty. |
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(g-2) Notwithstanding any other provision of law, the |
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commission may waive or reduce any applicable penalty if the |
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commission determines that strict enforcement of the rule or law |
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would impose a hardship or otherwise not be in the best interest of |
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persons supported by the provider. |
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SECTION 2. Section 161.0891(g), Human Resources Code, is |
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amended to read as follows: |
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(g) The commission may not offer amelioration to a provider: |
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(1) more than three times in a two-year period; |
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(2) more than one time in a two-year period for the |
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same or similar violation; or |
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(3) for a violation that resulted in [hazard to the |
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health or safety of a recipient, including] serious harm to or death |
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of a recipient [, or that substantially limits the provider's |
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ability to provide care]. |
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SECTION 5. Subchapter D, Chapter 161, Human Resources Code, |
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is amended by adding Section 161.08915 to read as follows: |
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Sec. 161.08915. HOME AND COMMUNITY-BASED SERVICES WAIVER |
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REGULATIONS TASKFORCE. (a) Not later than December 1, 2023, the |
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executive commissioner shall establish a Home and Community-Based |
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Services Waiver Regulations Taskforce. The taskforce must be |
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composed of: |
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(1) representatives of providers of services in the |
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1915(c) Home and Community-Based Services and Texas Home Living |
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waivers; and |
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(2) representatives of appropriate health and human |
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service agency functions, including regulatory, waiver, and |
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billing functions. |
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(b) The taskforce shall review all rules, regulations, and |
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policies applicable to home and community-based services and make |
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recommendations to the executive commissioner designed to provide |
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clarity of regulations, reduced administrative burdens, and |
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removal of duplicative or conflicting regulations that are not |
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required by state or federal law. |
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(c) Not later than December 1, 2024, the commission shall |
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submit a report to the legislature detailing recommendations made |
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by the taskforce and the administrative changes made as a result of |
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those recommendations. |
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(d) This section expires January 1, 2026. |
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SECTION 4. Sections 161.089(h) and 161.0891(h), Human |
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Resources Code, are repealed. |
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SECTION 5. This Act takes effect immediately if it receives |
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a vote of two-thirds of all members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2023. |