Texas 2009 - 81st Regular

Texas Senate Bill SB2260 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R9224 YDB-D
2	2	By: Zaffirini S.B. No. 2260
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the licensing and regulation of post-acute care
8	8	traumatic brain injury rehabilitation facilities; providing
9	9	penalties.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Subtitle B, Title 4, Health and Safety Code, is
12	12	amended by adding Chapter 257 to read as follows:
13	13	CHAPTER 257. POST-ACUTE CARE TRAUMATIC BRAIN INJURY
14	14	REHABILITATION FACILITIES
15	15	SUBCHAPTER A. GENERAL PROVISIONS
16	16	Sec. 257.001. SHORT TITLE. This chapter may be cited as the
17	17	Post-Acute Care Traumatic Brain Injury Rehabilitation Facility
18	18	Licensing Act.
19	19	Sec. 257.002. DEFINITIONS. In this chapter:
20	20	(1) "Commissioner" means the commissioner of state
21	21	health services.
22	22	(2) "Department" means the Department of State Health
23	23	Services.
24	24	(3) "Executive commissioner" means the executive
25	25	commissioner of the Health and Human Services Commission.
26	26	(4) "Facility" means an institution or establishment
27	27	that provides a continuum of nursing or medical care or
28	28	rehabilitation services primarily to persons who have suffered a
29	29	traumatic brain injury.
30	30	(5) "Medical care" means care that is:
31	31	(A) required for improving life span and quality
32	32	of life, for comfort, for prevention and treatment of illness, and
33	33	for maintenance of bodily and mental function;
34	34	(B) under the continued supervision of a
35	35	physician; and
36	36	(C) provided by a registered nurse or licensed
37	37	vocational nurse available to carry out a physician's plan of care
38	38	for a patient.
39	39	(6) "Nursing care" means services provided by nursing
40	40	personnel as prescribed by a physician, including services to:
41	41	(A) promote and maintain health;
42	42	(B) prevent illness and disability;
43	43	(C) manage health care during acute and chronic
44	44	phases of illness;
45	45	(D) provide guidance and counseling of
46	46	individuals and families; and
47	47	(E) provide referrals to physicians, other
48	48	health care providers, and community resources when appropriate.
49	49	(7) "Patient" means an individual accepted for
50	50	inpatient or outpatient care in a post-acute care traumatic brain
51	51	injury rehabilitation facility.
52	52	(8) "Services" means the provision of medical or
53	53	nursing care, assistance, or treatment by facility personnel,
54	54	volunteers, or other qualified individuals, agencies, or staff of
55	55	an organization or other entity to meet a patient's medical,
56	56	nursing, social, spiritual, and emotional needs.
57	57	Sec. 257.003. EXEMPTIONS. This chapter does not apply to:
58	58	(1) a home and community support services agency
59	59	required to be licensed under Chapter 142;
60	60	(2) a person required to be licensed under Chapter
61	61	241;
62	62	(3) an institution required to be licensed under
63	63	Chapter 242;
64	64	(4) an ambulatory surgical center required to be
65	65	licensed under Chapter 243;
66	66	(5) a birthing center required to be licensed under
67	67	Chapter 244;
68	68	(6) a facility required to be licensed under Chapter
69	69	245 or Chapter 247;
70	70	(7) a child-care institution, foster group home,
71	71	foster family home, or child-placing agency, for children in foster
72	72	care or other patiential care who are under the conservatorship of
73	73	the Department of Protective and Regulatory Services; or
74	74	(8) a person providing medical or nursing care or
75	75	services under a license or permit issued under other state law.
76	76	[Sections 257.004-257.050 reserved for expansion]
77	77	SUBCHAPTER B. LICENSING, FEES, AND INSPECTIONS
78	78	Sec. 257.051. LICENSE REQUIRED; QUALIFICATIONS. (a) A
79	79	person may not establish or operate a post-acute care traumatic
80	80	brain injury rehabilitation facility unless the person holds a
81	81	license issued under this chapter.
82	82	(b) To protect the public health and safety, the executive
83	83	commissioner shall establish qualifications for holding a license
84	84	under this chapter. The qualifications must require the facility
85	85	to hold an accreditation for post-acute providers from the
86	86	Commission on Accreditation of Rehabilitation Facilities or
87	87	another nationally recognized accreditation organization approved
88	88	by the executive commissioner.
89	89	Sec. 257.052. APPLICATION. (a) An applicant for a license
90	90	must submit an application to the department on a form prescribed by
91	91	the department and in accordance with executive commissioner rules.
92	92	(b) Each application must be accompanied by a nonrefundable
93	93	license fee in an amount set by the executive commissioner.
94	94	(c) The department may require that an application be
95	95	approved by the local health authority or other local official for
96	96	compliance with municipal ordinances on building construction,
97	97	fire prevention, and sanitation.
98	98	Sec. 257.053. ISSUANCE AND RENEWAL OF LICENSE. (a) The
99	99	department shall issue a license to an applicant if on inspection
100	100	and investigation it finds that the applicant meets the
101	101	requirements of this chapter and the rules adopted by the executive
102	102	commissioner.
103	103	(b) A license shall be renewed at the times and in
104	104	accordance with the rules established by the executive
105	105	commissioner.
106	106	Sec. 257.054. FEES. (a) The executive commissioner shall
107	107	establish a license application fee in the amount reasonable and
108	108	necessary to cover the cost of administering this chapter.
109	109	(b) The executive commissioner may establish other
110	110	reasonable and necessary fees in amounts that are adequate, with
111	111	the license application and license renewal fees, to collect
112	112	sufficient revenue to meet the expenses necessary to administer
113	113	this chapter. The fees may include construction plan review and
114	114	inspection fees.
115	115	(c) All fees collected under this chapter are
116	116	nonrefundable.
117	117	(d) All fees received by the department shall be deposited
118	118	to the credit of the general revenue fund and may be appropriated
119	119	only to the department to administer this chapter.
120	120	Sec. 257.055. NONTRANSFERABILITY; POSTING. (a) A license
121	121	issued under this chapter is not transferable or assignable.
122	122	(b) A facility shall post in plain sight the license issued
123	123	under this chapter.
124	124	Sec. 257.056. DUTIES OF EXECUTIVE COMMISSIONER. (a) The
125	125	executive commissioner shall adopt rules necessary to implement
126	126	this chapter. The rules must establish minimum standards for
127	127	facilities relating to:
128	128	(1) the issuance, renewal, denial, suspension, and
129	129	revocation of the license required by this chapter;
130	130	(2) the qualifications, duties, and supervision of
131	131	professional and nonprofessional personnel and volunteers, which
132	132	must require a manager of a facility to be a certified brain injury
133	133	specialist;
134	134	(3) staff-to-patient ratios, which must require one
135	135	staff person for every six patients during the day and one staff
136	136	person for every eight patients overnight;
137	137	(4) medical and nursing care and services provided by
138	138	a license holder, which must require that at least 20 hours of
139	139	therapy a week be made available for each patient;
140	140	(5) the organizational structure, lines of authority,
141	141	delegation of responsibility, and operation of a facility;
142	142	(6) records of care and services kept by the license
143	143	holder, including the disposal or destruction of those records;
144	144	(7) safety, fire prevention, and sanitation
145	145	provisions;
146	146	(8) transfer of patients in a medically appropriate
147	147	manner from or to a facility;
148	148	(9) construction plan approval and inspection;
149	149	(10) training for employees who do not hold a license
150	150	as a health care practitioner and who will be delivering care to
151	151	patients, which must include at least 16 hours of orientation
152	152	training and 24 hours of observation training;
153	153	(11) annual continuing education of at least 12 hours
154	154	for employees;
155	155	(12) treatment of minors; and
156	156	(13) any aspects of a facility as necessary to protect
157	157	the public health and safety or patients of the facility.
158	158	(b) Subsection (a) does not authorize the executive
159	159	commissioner to establish the qualifications of licensed health
160	160	care providers or permit the executive commissioner to authorize
161	161	persons to provide health care services who are not authorized to
162	162	provide those services under other state law.
163	163	Sec. 257.057. CONSTRUCTION STANDARDS. (a) If there are no
164	164	local regulations in effect or enforced in the area in which a
165	165	facility is located, the facility's construction must conform to
166	166	the minimum standards established by the executive commissioner.
167	167	(b) Construction of a facility is subject to construction
168	168	plan approval by the department.
169	169	Sec. 257.058. INSPECTIONS; INVESTIGATIONS. (a) The
170	170	department may inspect a facility and its records at reasonable
171	171	times as necessary to ensure compliance with this chapter.
172	172	(b) The department shall investigate each complaint
173	173	received regarding a facility.
174	174	[Sections 257.059-257.100 reserved for expansion]
175	175	SUBCHAPTER C. GENERAL ENFORCEMENT
176	176	Sec. 257.101. LICENSE DENIAL, SUSPENSION, PROBATION, OR
177	177	REVOCATION. (a) The department may deny, revoke, or suspend a
178	178	license issued under this chapter for a violation of this chapter or
179	179	the rules adopted under this chapter.
180	180	(b) Except as provided by Section 257.102, the procedures by
181	181	which the department denies, revokes, or suspends a license and by
182	182	which those actions are appealed are governed by the department's
183	183	rules for a contested case hearing and by Chapter 2001, Government
184	184	Code.
185	185	(c) If the department finds that a facility is in repeated
186	186	noncompliance with this chapter or rules adopted under this chapter
187	187	but that the noncompliance does not endanger the public health and
188	188	safety, the department may schedule the facility for probation
189	189	rather than suspending or revoking the facility's license. The
190	190	department shall provide notice to the facility of the probation
191	191	and of the items of noncompliance not later than the 10th day before
192	192	the date the probation period begins. The department shall
193	193	designate a period of not less than 30 days during which the
194	194	facility will remain under probation. During the probation period,
195	195	the facility must correct the items that were in noncompliance and
196	196	report the corrections to the department for approval.
197	197	(d) The department may suspend or revoke the license of a
198	198	facility that does not correct items that were in noncompliance or
199	199	that does not comply with this chapter or the rules adopted under
200	200	this chapter within the applicable probation period.
201	201	Sec. 257.102. EMERGENCY SUSPENSION. (a) The department
202	202	may issue an emergency order to suspend any license issued under
203	203	this chapter if the department has reasonable cause to believe that
204	204	the conduct of a license holder creates an immediate danger to the
205	205	public health and safety.
206	206	(b) An emergency suspension is effective immediately
207	207	without a hearing on notice to the license holder.
208	208	(c) On written request of the license holder, the department
209	209	shall conduct a hearing not earlier than the 10th day or later than
210	210	the 30th day after the date the hearing request is received to
211	211	determine if the emergency suspension is to be continued, modified,
212	212	or rescinded.
213	213	(d) The hearing and any appeal are governed by department
214	214	rules for a contested case hearing and by Chapter 2001, Government
215	215	Code.
216	216	Sec. 257.103. INJUNCTION. (a) The department may request
217	217	that the attorney general petition a district court to restrain a
218	218	license holder or other person from continuing to violate this
219	219	chapter or any rule adopted by the executive commissioner under
220	220	this chapter. Venue for a suit for injunctive relief is in Travis
221	221	County.
222	222	(b) On application for injunctive relief and a finding that
223	223	a license holder or other person has violated this chapter or
224	224	executive commissioner rules, the district court shall grant the
225	225	injunctive relief that the facts warrant.
226	226	Sec. 257.104. CIVIL PENALTY. A license holder or person who
227	227	violates this chapter or a rule adopted by the executive
228	228	commissioner under this chapter is liable for a civil penalty, to be
229	229	imposed by a district court, of not more than $1,000 for each day of
230	230	violation. All penalties collected under this section shall be
231	231	deposited to the credit of the general revenue fund.
232	232	Sec. 257.105. CRIMINAL PENALTY. (a) A person who knowingly
233	233	establishes or operates a facility without a license issued under
234	234	this chapter commits an offense.
235	235	(b) An offense under this section is a Class B misdemeanor.
236	236	(c) Each day of a continuing violation constitutes a
237	237	separate offense.
238	238	[Sections 257.106-257.150 reserved for expansion]
239	239	SUBCHAPTER D. ADMINISTRATIVE PENALTY
240	240	Sec. 257.151. IMPOSITION OF PENALTY. (a) The commissioner
241	241	may impose an administrative penalty on a person licensed under
242	242	this chapter who violates this chapter or a rule or order adopted
243	243	under this chapter.
244	244	(b) A penalty collected under this subchapter shall be
245	245	deposited in the state treasury in the general revenue fund.
246	246	Sec. 257.152. AMOUNT OF PENALTY. (a) The amount of the
247	247	penalty may not exceed $1,000 for each violation, and each day a
248	248	violation continues or occurs is a separate violation for purposes
249	249	of imposing a penalty. The total amount of the penalty assessed for
250	250	a violation continuing or occurring on separate days under this
251	251	subsection may not exceed $5,000.
252	252	(b) The amount shall be based on:
253	253	(1) the seriousness of the violation, including the
254	254	nature, circumstances, extent, and gravity of the violation;
255	255	(2) the threat to health or safety caused by the
256	256	violation;
257	257	(3) the history of previous violations;
258	258	(4) the amount necessary to deter a future violation;
259	259	(5) whether the violator demonstrated good faith,
260	260	including when applicable whether the violator made good faith
261	261	efforts to correct the violation; and
262	262	(6) any other matter that justice may require.
263	263	Sec. 257.153. REPORT AND NOTICE OF VIOLATION AND PENALTY.
264	264	(a) If the department initially determines that a violation
265	265	occurred, the department shall give written notice of the report by
266	266	certified mail to the person.
267	267	(b) The notice must:
268	268	(1) include a brief summary of the alleged violation;
269	269	(2) state the amount of the recommended penalty; and
270	270	(3) inform the person of the person's right to a
271	271	hearing on the occurrence of the violation, the amount of the
272	272	penalty, or both.
273	273	Sec. 257.154. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
274	274	Not later than the 20th day after the date the person receives the
275	275	notice sent under Section 257.153, the person in writing may:
276	276	(1) accept the determination and recommended penalty
277	277	of the department; or
278	278	(2) make a request for a hearing on the occurrence of
279	279	the violation, the amount of the penalty, or both.
280	280	(b) If the person accepts the determination and recommended
281	281	penalty or if the person fails to respond to the notice, the
282	282	commissioner by order shall approve the determination and impose
283	283	the recommended penalty.
284	284	Sec. 257.155. HEARING. (a) If the person requests a
285	285	hearing, the commissioner shall refer the matter to the State
286	286	Office of Administrative Hearings, which shall promptly set a
287	287	hearing date and give written notice of the time and place of the
288	288	hearing to the person. An administrative law judge of the State
289	289	Office of Administrative Hearings shall conduct the hearing.
290	290	(b) The administrative law judge shall make findings of fact
291	291	and conclusions of law and promptly issue to the commissioner a
292	292	proposal for a decision about the occurrence of the violation and
293	293	the amount of a proposed penalty.
294	294	Sec. 257.156. DECISION BY COMMISSIONER. (a) Based on the
295	295	findings of fact, conclusions of law, and proposal for a decision,
296	296	the commissioner by order may:
297	297	(1) find that a violation occurred and impose a
298	298	penalty; or
299	299	(2) find that a violation did not occur.
300	300	(b) The notice of the commissioner's order under Subsection
301	301	(a) that is sent to the person in accordance with Chapter 2001,
302	302	Government Code, must include a statement of the right of the person
303	303	to judicial review of the order.
304	304	Sec. 257.157. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
305	305	Not later than the 30th day after the date the order of the
306	306	commissioner under Section 257.156 that imposes an administrative
307	307	penalty becomes final, the person shall:
308	308	(1) pay the penalty; or
309	309	(2) file a petition for judicial review of the
310	310	commissioner's order contesting the occurrence of the violation,
311	311	the amount of the penalty, or both.
312	312	Sec. 257.158. STAY OF ENFORCEMENT OF PENALTY. (a) Within
313	313	the 30-day period prescribed by Section 257.157, a person who files
314	314	a petition for judicial review may:
315	315	(1) stay enforcement of the penalty by:
316	316	(A) paying the penalty to the court for placement
317	317	in an escrow account; or
318	318	(B) giving the court a supersedeas bond approved
319	319	by the court that:
320	320	(i) is for the amount of the penalty; and
321	321	(ii) is effective until all judicial review
322	322	of the commissioner's order is final; or
323	323	(2) request the court to stay enforcement of the
324	324	penalty by:
325	325	(A) filing with the court a sworn affidavit of
326	326	the person stating that the person is financially unable to pay the
327	327	penalty and is financially unable to give the supersedeas bond; and
328	328	(B) sending a copy of the affidavit to the
329	329	commissioner by certified mail.
330	330	(b) If the commissioner receives a copy of an affidavit
331	331	under Subsection (a)(2), the commissioner may file with the court,
332	332	within five days after the date the copy is received, a contest to
333	333	the affidavit. The court shall hold a hearing on the facts alleged
334	334	in the affidavit as soon as practicable and shall stay the
335	335	enforcement of the penalty on finding that the alleged facts are
336	336	true. The person who files an affidavit has the burden of proving
337	337	that the person is financially unable to pay the penalty or to give
338	338	a supersedeas bond.
339	339	Sec. 257.159. COLLECTION OF PENALTY. (a) If the person
340	340	does not pay the penalty and the enforcement of the penalty is not
341	341	stayed, the penalty may be collected.
342	342	(b) The attorney general may sue to collect the penalty.
343	343	Sec. 257.160. DECISION BY COURT. (a) If the court sustains
344	344	the finding that a violation occurred, the court may uphold or
345	345	reduce the amount of the penalty and order the person to pay the
346	346	full or reduced amount of the penalty.
347	347	(b) If the court does not sustain the finding that a
348	348	violation occurred, the court shall order that a penalty is not
349	349	owed.
350	350	Sec. 257.161. REMITTANCE OF PENALTY AND INTEREST. (a) If
351	351	the person paid the penalty and if the amount of the penalty is
352	352	reduced or the penalty is not upheld by the court, the court shall
353	353	order, when the court's judgment becomes final, that the
354	354	appropriate amount plus accrued interest be remitted to the person
355	355	not later than the 30th day after the date that the judgment of the
356	356	court becomes final.
357	357	(b) The interest accrues at the rate charged on loans to
358	358	depository institutions by the New York Federal Reserve Bank.
359	359	(c) The interest shall be paid for the period beginning on
360	360	the date the penalty is paid and ending on the date the penalty is
361	361	remitted.
362	362	Sec. 257.162. RELEASE OF BOND. (a) If the person gave a
363	363	supersedeas bond and the penalty is not upheld by the court, the
364	364	court shall order, when the court's judgment becomes final, the
365	365	release of the bond.
366	366	(b) If the person gave a supersedeas bond and the amount of
367	367	the penalty is reduced, the court shall order the release of the
368	368	bond after the person pays the reduced amount.
369	369	Sec. 257.163. ADMINISTRATIVE PROCEDURE. A proceeding to
370	370	impose the penalty is considered to be a contested case under
371	371	Chapter 2001, Government Code.
372	372	SECTION 2. (a) Not later than March 1, 2010, the executive
373	373	commissioner of the Health and Human Services Commission shall
374	374	adopt the rules and standards required by Chapter 257, Health and
375	375	Safety Code, as added by this Act.
376	376	(b) Notwithstanding Section 257.051, Health and Safety
377	377	Code, as added by this Act, a post-acute care traumatic brain injury
378	378	rehabilitation facility is not required to hold a license under
379	379	Chapter 257 until May 1, 2010.
380	380	SECTION 3. (a) Except as provided by Subsection (b) of this
381	381	section, this Act takes effect September 1, 2009.
382	382	(b) Subchapters C and D, Chapter 257, Health and Safety
383	383	Code, as added by this Act, take effect May 1, 2010.