81R2124 CLG-D
By: Hinojosa S.B. No. 1535
A BILL TO BE ENTITLED
AN ACT
relating to nonpayment of hospitals under the state Medicaid
program for certain preventable adverse events and to the reporting
of occurrences of those events at certain health care facilities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter B, Chapter 32, Human Resources Code,
is amended by adding Section 32.02805 to read as follows:
Sec. 32.02805. NONPAYMENT OF HOSPITALS FOR PREVENTABLE
ADVERSE EVENTS. (a) In this section:
(1) "Infant" means a child younger than one year of
age.
(2) "Serious disability" means:
(A) a physical or mental impairment that
substantially limits one or more major life activities of an
individual such as seeing, hearing, speaking, walking, or
breathing, or a loss of a bodily function, if the impairment or loss
lasts more than seven days or is still present at the time of
discharge from a hospital; or
(B) loss of a body part.
(3) "Serious injury" means a bodily injury that
results in:
(A) death;
(B) permanent and serious impairment of an
important bodily function; or
(C) permanent and significant disfigurement.
(b) The department, in its adoption of reasonable rules and
standards governing the determination of rates paid for inpatient
hospital services on a prospective payment basis, shall assure that
a hospital may not receive additional payment associated with a
preventable adverse event that occurred during the recipient's
hospitalization.
(c) For purposes of this section, a preventable adverse
event is any of the following events involving a recipient of
medical assistance:
(1) surgery performed on the wrong body part;
(2) surgery performed on the wrong person;
(3) the wrong surgical procedure performed on the
recipient;
(4) the unintended retention of a foreign object in
the recipient after surgery or another procedure;
(5) death during or immediately after surgery if the
recipient would be classified as a normal, healthy patient under
guidelines published by a national association of
anesthesiologists;
(6) death or serious disability caused by the use of a
contaminated drug, device, or biologic provided by a health care
provider if the contamination is the result of a generally
detectable contaminant in drugs, devices, or biologics regardless
of the source of the contamination or product;
(7) death or serious disability caused by the use or
function of a device during the recipient's care in which the device
is used for a function other than as intended;
(8) death or serious disability caused by an
intravascular air embolism, excluding a death associated with a
neurological procedure known to present a high risk of
intravascular air embolism;
(9) an infant being discharged to the wrong person;
(10) death or serious disability associated with the
recipient's disappearance for more than four hours, excluding the
death or serious disability of an adult recipient who has
decision-making capacity;
(11) suicide or attempted suicide resulting in serious
disability while the recipient was receiving care at the hospital
if the suicide or attempted suicide was due to the recipient's
actions after admission to the hospital, excluding a death
resulting from a self-inflicted injury that was the reason for the
recipient's admission to the hospital;
(12) death or serious disability caused by a
medication error, including an error involving the wrong drug,
wrong dose, wrong patient, wrong time, wrong rate, wrong
preparation, or wrong route of administration;
(13) death or serious disability caused by a hemolytic
reaction resulting from the administration of ABO- or
HLA-incompatible blood or blood products;
(14) death or serious disability caused by labor or
delivery in a low-risk pregnancy while the recipient was receiving
care at the hospital, including death or serious disability that
occurred not later than 42 days after the delivery date;
(15) death or serious disability directly related to
the following manifestations of poor glycemic control, the onset of
which occurred while the recipient was receiving care at the
hospital:
(A) diabetic ketoacidosis;
(B) nonketotic hyperosmolar coma;
(C) hypoglycemic coma;
(D) secondary diabetes with ketoacidosis; and
(E) secondary diabetes with hyperosmolarity;
(16) death or serious disability, including
kernicterus, caused by failure to identify and treat
hyperbilirubinemia in a neonate before discharge from the hospital;
(17) stage three or four pressure ulcers acquired
after admission to the hospital;
(18) death or serious disability resulting from spinal
manipulative therapy;
(19) death or serious disability caused by an electric
shock while the recipient was receiving care at the hospital,
excluding an event involving a planned treatment such as electric
countershock;
(20) an incident in which a line designated for oxygen
or other gas to be delivered to the recipient contains the wrong gas
or is contaminated by a toxic substance;
(21) death or serious disability caused by a burn
incurred from any source while the recipient was receiving care at
the hospital;
(22) death or serious disability caused by a fall or
trauma while the recipient was receiving care at the hospital,
including death or serious disability from a fracture, dislocation,
intracranial injury, or crushing injury;
(23) death or serious disability caused by the use of a
restraint or bed rail while the recipient was receiving care at the
hospital;
(24) an instance of care for the recipient ordered or
provided by an individual impersonating a physician, nurse,
pharmacist, or other licensed health care professional;
(25) abduction of the recipient from the hospital;
(26) sexual assault of the recipient within or on the
grounds of the hospital;
(27) death or serious injury resulting from a physical
assault of the recipient that occurred within or on the grounds of
the hospital;
(28) artificial insemination with the wrong donor
sperm or implantation with the wrong donor egg;
(29) death or serious disability caused by a urinary
tract infection resulting from the insertion of a catheter by an
individual health care provider;
(30) death or serious disability caused by an
infection resulting from the insertion of a vascular catheter by an
individual health care provider;
(31) death or serious disability caused by a surgical
site infection occurring as a result of the following procedures:
(A) a coronary artery bypass graft;
(B) bariatric surgery such as laparoscopic
gastric bypass surgery, gastroenterostomy, and laparoscopic
gastric restrictive surgery; and
(C) orthopedic procedures involving the spine,
neck, shoulder, or elbow; and
(32) death or serious disability caused by a pulmonary
embolism or deep vein thrombosis that occurred while the recipient
was receiving care at the hospital following a total knee
arthroplasty or hip arthroplasty.
(d) The executive commissioner of the Health and Human
Services Commission may adopt rules to define additional
preventable adverse events for which a hospital shall be denied
additional payment under this section. In adopting rules under
this subsection, the executive commissioner may consider only the
same types of health care-associated adverse conditions or events
for which the Medicare program will not provide additional payment
under a policy adopted by the Centers for Medicare and Medicaid
Services.
(e) The department's nonpayment of a hospital under this
section does not in itself create civil liability and is not subject
to discovery or admissible in any civil action against the
hospital.
(f) A hospital may not charge a recipient of medical
assistance for the hospital service for which the hospital is
denied payment under this section.
(g) The executive commissioner of the Health and Human
Services Commission shall adopt rules necessary to implement this
section, including procedures for:
(1) identifying a preventable adverse event;
(2) verifying the occurrence of a preventable adverse
event;
(3) administering denials of payment; and
(4) managing hospitals' appeals relating to denials of
payment.
SECTION 2. The heading to Chapter 98, Health and Safety
Code, as added by Chapter 359 (S.B. 288), Acts of the 80th
Legislature, Regular Session, 2007, is amended to read as follows:
CHAPTER 98. REPORTING OF HEALTH CARE-ASSOCIATED INFECTIONS AND
PREVENTABLE ADVERSE EVENTS
SECTION 3. Sections 98.001(1) and (11), Health and Safety
Code, as added by Chapter 359 (S.B. 288), Acts of the 80th
Legislature, Regular Session, 2007, are amended to read as follows:
(1) "Advisory panel" means the Advisory Panel on
Health Care-Associated Infections and Preventable Adverse Events.
(11) "Reporting system" means the Texas Health
Care-Associated Infection and Preventable Adverse Events Reporting
System.
SECTION 4. Section 98.051, Health and Safety Code, as added
by Chapter 359 (S.B. 288), Acts of the 80th Legislature, Regular
Session, 2007, is amended to read as follows:
Sec. 98.051. ESTABLISHMENT. The commissioner shall
establish the Advisory Panel on Health Care-Associated Infections
and Preventable Adverse Events within [the infectious disease
surveillance and epidemiology branch of] the department to guide
the implementation, development, maintenance, and evaluation of
the reporting system.
SECTION 5. Sections 98.102(a) and (c), Health and Safety
Code, as added by Chapter 359 (S.B. 288), Acts of the 80th
Legislature, Regular Session, 2007, are amended to read as follows:
(a) The department shall establish the Texas Health
Care-Associated Infection and Preventable Adverse Events Reporting
System within the [infectious disease surveillance and
epidemiology branch of the] department. The purpose of the
reporting system is to provide for:
(1) the reporting of health care-associated
infections by health care facilities to the department;
(2) the reporting of health care-associated
preventable adverse events by health care facilities to the
department;
(3) the public reporting of information regarding the
health care-associated infections by the department;
(4) the public reporting of information regarding
health care-associated preventable adverse events by the
department; and
(5) [(3)] the education and training of health care
facility staff by the department regarding this chapter.
(c) The data reported by health care facilities to the
department must contain sufficient patient identifying information
to:
(1) avoid duplicate submission of records;
(2) allow the department to verify the accuracy and
completeness of the data reported; and
(3) for data reported under Section 98.103 or 98.104,
allow the department to risk adjust the facilities' infection
rates.
SECTION 6. Subchapter C, Chapter 98, Health and Safety
Code, as added by Chapter 359 (S.B. 288), Acts of the 80th
Legislature, Regular Session, 2007, is amended by adding Section
98.1045 to read as follows:
Sec. 98.1045. REPORTING OF PREVENTABLE ADVERSE EVENTS. (a)
In this section:
(1) "Infant" means a child younger than one year of
age.
(2) "Serious disability" means:
(A) a physical or mental impairment that
substantially limits one or more major life activities of an
individual such as seeing, hearing, speaking, walking, or
breathing, or a loss of a bodily function, if the impairment or loss
lasts more than seven days or is still present at the time of
discharge from an inpatient health care facility; or
(B) loss of a body part.
(3) "Serious injury" means a bodily injury that
results in:
(A) death;
(B) permanent and serious impairment of an
important bodily function; or
(C) permanent and significant disfigurement.
(b) A health care facility shall report to the department
the following preventable adverse events involving a patient at the
facility:
(1) surgery performed on the wrong body part;
(2) surgery performed on the wrong person;
(3) the wrong surgical procedure performed on the
patient;
(4) the unintended retention of a foreign object in
the patient after surgery or another procedure;
(5) death during or immediately after surgery if the
patient would be classified as a normal, healthy patient under
guidelines published by a national association of
anesthesiologists;
(6) death or serious disability caused by the use of a
contaminated drug, device, or biologic provided by a health care
provider if the contamination was the result of a generally
detectable contaminant in drugs, devices, or biologics regardless
of the source of the contamination or product;
(7) death or serious disability caused by the use or
function of a device during the patient's care in which the device
was used for a function other than as intended;
(8) death or serious disability caused by an
intravascular air embolism that occurred while the patient was
receiving care at the facility, excluding a death associated with a
neurological procedure known to present a high risk of
intravascular air embolism;
(9) an infant being discharged to the wrong person;
(10) death or serious disability associated with the
patient's disappearance for more than four hours, excluding the
death or serious disability of an adult patient who has
decision-making capacity;
(11) suicide or attempted suicide resulting in serious
disability while the patient was receiving care at the facility if
the suicide or attempted suicide was due to the patient's actions
after admission to the facility, excluding a death resulting from a
self-inflicted injury that was the reason for the patient's
admission to the facility;
(12) death or serious disability caused by a
medication error, including an error involving the wrong drug,
wrong dose, wrong patient, wrong time, wrong rate, wrong
preparation, or wrong route of administration;
(13) death or serious disability caused by a hemolytic
reaction resulting from the administration of ABO- or
HLA-incompatible blood or blood products;
(14) death or serious disability caused by labor or
delivery in a low-risk pregnancy while the patient was receiving
care at the facility, including death or serious disability
occurring not later than 42 days after the delivery date;
(15) death or serious disability directly related to
the following manifestations of poor glycemic control, the onset of
which occurred while the patient was receiving care at the
facility:
(A) diabetic ketoacidosis;
(B) nonketotic hyperosmolar coma;
(C) hypoglycemic coma;
(D) secondary diabetes with ketoacidosis; and
(E) secondary diabetes with hyperosmolarity;
(16) death or serious disability, including
kernicterus, caused by failure to identify and treat
hyperbilirubinemia in a neonate before discharge from the facility;
(17) stage three or four pressure ulcers acquired
after admission to the facility;
(18) death or serious disability resulting from spinal
manipulative therapy;
(19) death or serious disability caused by an electric
shock while the patient was receiving care at the facility,
excluding an event involving a planned treatment such as electric
countershock;
(20) an incident in which a line designated for oxygen
or other gas to be delivered to the patient contained the wrong gas
or was contaminated by a toxic substance;
(21) death or serious disability caused by a burn
incurred from any source while the patient was receiving care at the
facility;
(22) death or serious disability caused by a fall or
trauma while the patient was receiving care at the facility,
including death or serious disability from a fracture, dislocation,
intracranial injury, or crushing injury;
(23) death or serious disability caused by the use of a
restraint or bed rail while the patient was receiving care at the
facility;
(24) an instance of care for the patient ordered or
provided by an individual impersonating a physician, nurse,
pharmacist, or other licensed health care professional;
(25) abduction of the patient from the facility;
(26) sexual assault of the patient within or on the
grounds of the facility;
(27) death or serious injury resulting from a physical
assault of the patient that occurred within or on the grounds of the
facility;
(28) artificial insemination with the wrong donor
sperm or implantation with the wrong donor egg;
(29) death or serious disability caused by a urinary
tract infection resulting from the insertion of a catheter by an
individual health care provider;
(30) death or serious disability caused by an
infection resulting from the insertion of a vascular catheter by an
individual health care provider;
(31) death or serious disability caused by a surgical
site infection occurring as a result of the following procedures:
(A) a coronary artery bypass graft;
(B) bariatric surgery such as laparoscopic
gastric bypass surgery, gastroenterostomy, and laparoscopic
gastric restrictive surgery; and
(C) orthopedic procedures involving the spine,
neck, shoulder, or elbow;
(32) death or serious disability caused by a pulmonary
embolism or deep vein thrombosis that occurred while the patient
was receiving care at the facility following a total knee
arthroplasty or hip arthroplasty; and
(33) a health care-associated adverse condition or
event for which the Medicare program will not provide additional
payment to a health care facility under a policy adopted by the
Centers for Medicare and Medicaid Services.
SECTION 7. Sections 98.106(a), (b), and (g), Health and
Safety Code, as added by Chapter 359 (S.B. 288), Acts of the 80th
Legislature, Regular Session, 2007, are amended to read as follows:
(a) The department shall compile and make available to the
public a summary, by health care facility, of:
(1) the infections reported by facilities under
Sections 98.103 and 98.104; and
(2) the preventable adverse events reported by
facilities under Section 98.1045.
(b) Information included in the [The] departmental summary
with respect to infections reported by facilities under Sections
98.103 and 98.104 must be risk adjusted and include a comparison of
the risk-adjusted infection rates for each health care facility in
this state that is required to submit a report under Sections 98.103
and 98.104.
(g) The department shall make the departmental summary
available on an Internet website administered by the department and
may make the summary available through other formats accessible to
the public. The website must contain a statement informing the
public of the option to report suspected health care-associated
infections and preventable adverse events to the department.
SECTION 8. Section 98.108, Health and Safety Code, as added
by Chapter 359 (S.B. 288), Acts of the 80th Legislature, Regular
Session, 2007, is amended to read as follows:
Sec. 98.108. FREQUENCY OF REPORTING. In consultation with
the advisory panel, the executive commissioner by rule shall
establish the frequency of reporting by health care facilities
required under Sections 98.103, [and] 98.104, and 98.1045.
Facilities may not be required to report more frequently than
quarterly.
SECTION 9. Section 98.109(e), Health and Safety Code, as
added by Chapter 359 (S.B. 288), Acts of the 80th Legislature,
Regular Session, 2007, is amended to read as follows:
(e) A department summary or disclosure may not contain
information identifying a facility patient, employee, contractor,
volunteer, consultant, health care professional, student, or
trainee in connection with a specific [infection] incident.
SECTION 10. Sections 98.110 and 98.111, Health and Safety
Code, as added by Chapter 359 (S.B. 288), Acts of the 80th
Legislature, Regular Session, 2007, are amended to read as follows:
Sec. 98.110. DISCLOSURE WITHIN DEPARTMENT.
Notwithstanding any other law, the department may disclose
information reported by health care facilities under Section
98.103, [or] 98.104, or 98.1045 to other programs within the
department for public health research or analysis purposes only,
provided that the research or analysis relates to health
care-associated infections or preventable adverse events. The
privilege and confidentiality provisions contained in this chapter
apply to such disclosures.
Sec. 98.111. CIVIL ACTION. Published infection rates or
preventable adverse events may not be used in a civil action to
establish a standard of care applicable to a health care facility.
SECTION 11. (a) Not later than June 1, 2010, the executive
commissioner of the Health and Human Services Commission shall
adopt rules necessary to implement Section 32.02805, Human
Resources Code, as added by this Act.
(b) Not later than October 1, 2009, the executive
commissioner of the Health and Human Services Commission shall
adopt rules and procedures necessary to implement the reporting of
health care-associated preventable adverse events as required
under Chapter 98, Health and Safety Code, as amended by this Act.
SECTION 12. Section 32.02805, Human Resources Code, as
added by this Act, applies only to a preventable adverse event
occurring on or after the effective date of the rules adopted by the
executive commissioner of the Health and Human Services Commission
under Section 11(a) of this Act.
SECTION 13. If before implementing any provision of this
Act a state agency determines that a waiver or authorization from a
federal agency is necessary for implementation of that provision,
the agency affected by the provision shall request the waiver or
authorization and may delay implementing that provision until the
waiver or authorization is granted.
SECTION 14. This Act takes effect September 1, 2009.