83R5141 YDB-F
By: Lucio S.B. No. 492
A BILL TO BE ENTITLED
AN ACT
relating to the licensing and regulation of prescribed pediatric
extended care centers; providing penalties; imposing fees.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle B, Title 4, Health and Safety Code, is
amended by adding Chapter 248A to read as follows:
CHAPTER 248A. PRESCRIBED PEDIATRIC EXTENDED CARE CENTERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 248A.001. DEFINITIONS. In this chapter:
(1) "Basic services" includes:
(A) the development, implementation, and
monitoring of a comprehensive protocol of care that:
(i) is provided to a medically dependent or
technologically dependent minor;
(ii) is developed in conjunction with the
minor's parent or legal guardian; and
(iii) specifies the medical, nursing,
psychosocial, therapeutic, and developmental services required by
the minor served; and
(B) the caregiver training needs of the minor's
parent or legal guardian.
(2) "Center" means a prescribed pediatric extended
care center.
(3) "Commission" means the Health and Human Services
Commission.
(4) "Commissioner" means the commissioner of state
health services.
(5) "Controlling interest" means:
(A) the applicant or license holder;
(B) a person or entity that serves as an officer
of, is on the board of directors of, or has a five percent or greater
ownership interest in the applicant or license holder; or
(C) a person or entity that serves as an officer
of, is on the board of directors of, or has a five percent or greater
ownership interest in the management company or other entity,
related or unrelated, with which the applicant or license holder
contracts to manage the center.
(6) "Department" means the Department of Aging and
Disability Services.
(7) "Executive commissioner" means the executive
commissioner of the commission.
(8) "Medically dependent or technologically dependent
minor" means a minor who because of an acute, chronic, or
intermittent medical condition or disability requires:
(A) ongoing, technology-based skilled nursing
supervision prescribed by the minor's physician; or
(B) the routine use of a medical device to
compensate for a deficit in a life-sustaining body function.
(9) "Minor" means an individual younger than 21 years
of age.
(10) "Prescribed pediatric extended care center"
means a facility operated for profit or on a nonprofit basis that
provides nonresidential basic services to three or more medically
dependent or technologically dependent minors who require the
services of the facility and who are not related by blood, marriage,
or adoption to the owner or operator of the facility.
Sec. 248A.002. EXEMPTIONS. This chapter does not apply to:
(1) a facility operated by the United States
government or a federal agency; or
(2) a health facility otherwise licensed under this
subtitle.
Sec. 248A.003. CONFLICT WITH LOCAL LAWS. To the extent of
any conflict between the standards adopted under this chapter and a
standard required in a local, county, or municipal ordinance, this
chapter controls.
SUBCHAPTER B. LICENSING OF CENTERS
Sec. 248A.051. LICENSE REQUIRED; PREMISES RESTRICTION. (a)
A person may not own or operate a prescribed pediatric extended care
center in this state unless the person holds a license issued under
this chapter.
(b) A separate license is required for each center located
on separate premises, regardless of whether the centers are under
the ownership or operation of the same person.
(c) A person may not operate a center on the same premises as
a child-care facility licensed under Chapter 42, Human Resources
Code.
Sec. 248A.052. APPLICATION; ISSUANCE. (a) An applicant for
a prescribed pediatric extended care center license shall submit to
the department in accordance with executive commissioner rules:
(1) a sworn application on the form prescribed by the
department;
(2) a letter of credit as prescribed by the department
to demonstrate the applicant's financial viability; and
(3) the required fees.
(b) The application must contain:
(1) the location of the premises of the center for
which the license is sought;
(2) documentation, signed by the appropriate local
government official, stating the applicant has met local zoning
requirements;
(3) the name, address, and social security number of,
and background and criminal history check information for:
(A) the applicant;
(B) the administrator responsible for daily
operations of the center; and
(C) the financial officer responsible for
financial operations of the center;
(4) the name, address, and federal employer
identification number or taxpayer identification number of the
applicant and of each controlling interest, if the applicant or
controlling interest is not an individual;
(5) the business name of the center;
(6) the maximum patient capacity requested for the
center; and
(7) a sworn affidavit that the applicant has complied
with this chapter and rules adopted under this chapter.
(c) The department shall issue a license to a center under
this chapter if the department determines that the applicant and
the center meet the requirements of this chapter and the rules and
standards adopted under this chapter. The license must include:
(1) the license holder's name;
(2) the location of the premises of the center; and
(3) a statement indicating the center provides
services to minors for 12 hours or less in a 24-hour period and does
not provide 24-hour care.
Sec. 248A.053. LICENSE TERM; RENEWAL; NOTIFICATION. (a) A
license issued under this chapter expires on the second anniversary
of the date of issuance.
(b) A person applying to renew a center license shall:
(1) submit a renewal application to the department on
the form prescribed by the department at least 60 days but not more
than 120 days before expiration of the license;
(2) submit the renewal fee in the amount required by
the department; and
(3) comply with any other requirements specified by
executive commissioner rule.
(c) The department shall assess a $50 per day late fee to a
license holder who submits a renewal application after the date
required by Subsection (b)(1), except that the total amount of a
late fee may not exceed the lesser of 50 percent of the license
renewal fee or $500.
(d) At least 90 days before expiration of a center license,
the department shall notify the owner or operator of the center of
the license expiration.
Sec. 248A.054. LICENSE NOT TRANSFERABLE OR ASSIGNABLE. A
license under this chapter is issued to the license holder named on
the license at the location of the premises listed on the license
and is not transferable or assignable.
SUBCHAPTER C. POWERS AND DUTIES OF
EXECUTIVE COMMISSIONER, COMMISSION, AND DEPARTMENT
Sec. 248A.101. ADOPTION OF RULES AND STANDARDS. (a) The
executive commissioner shall adopt rules necessary to implement
this chapter.
(b) To protect the health and safety of the public and
ensure the health, safety, and comfort of the minors served by a
center, the rules must establish minimum center standards,
including:
(1) standards relating to the issuance, renewal,
denial, suspension, probation, and revocation of a license to
operate a center;
(2) standards relating to the provision of
family-centered basic services that include individualized
medical, developmental, and family training services;
(3) based on the size of the building and the number of
minors served, building construction and renovation standards,
including standards for plumbing, electrical, glass, manufactured
buildings, accessibility for the physically disabled, and fire
protection;
(4) based on the size of the building and the number of
minors served, building maintenance conditions relating to
plumbing, heating, lighting, ventilation, adequate space, fire
protection, and other conditions;
(5) standards relating to the minimum number of and
qualifications required for personnel who provide personal care or
basic services to the minors served;
(6) standards relating to the sanitary conditions
within a center and its surroundings, including water supply,
sewage disposal, food handling, and general hygiene;
(7) standards relating to the programs offered by the
center to promote and maintain the health and development of the
minors served and to meet the training needs of the minors' parents
or legal guardians;
(8) standards relating to physician-prescribed
supportive or ancillary services;
(9) standards relating to transportation services;
and
(10) standards relating to maintenance of patient
medical records and program records in accordance with other law
and with accepted professional standards and practices.
Sec. 248A.102. INSPECTIONS; CORRECTIVE ACTION PLAN. (a)
The department may inspect a center, including its records, at
reasonable times as necessary to ensure compliance with this
chapter and the rules adopted under this chapter. The center shall
provide the department with access to all center records.
(b) The department shall inspect a center before issuing or
renewing a license under this chapter.
(c) The department may require a center that undergoes an
inspection to:
(1) take appropriate corrective action the department
determines is necessary to comply with the requirements of this
chapter and rules adopted under this chapter; and
(2) submit a corrective action plan that demonstrates
a good faith effort to remedy violations.
(d) The department may charge a center a reasonable fee for
an inspection and for the cost of services provided by the
department in formulating, monitoring, and implementing a
corrective action plan under this section.
(e) A center shall make available to any person on request a
copy of each inspection report pertaining to the center that has
been issued by the department. Before making an inspection report
available under this subsection, the center shall redact from the
report any information that is confidential under other law.
Sec. 248A.103. FEES. (a) The executive commissioner shall
set fees imposed by this chapter in amounts reasonable and
necessary to cover the cost of administering this chapter.
(b) A fee collected under this chapter shall be deposited in
the state treasury to the credit of the general revenue fund and
shall be appropriated to the department to administer and enforce
this chapter.
(c) A fee collected under this chapter is nonrefundable.
Sec. 248A.104. COMMISSION DUTIES. The commission shall
designate a center licensed under this chapter as a health care
services provider under the medical assistance program established
under Chapter 32, Human Resources Code.
SUBCHAPTER D. CENTER REGULATION
Sec. 248A.151. ADMISSION CRITERIA FOR MINOR CLIENT. A
center may not admit a minor client to the center unless:
(1) the client is a medically dependent or
technologically dependent minor;
(2) the minor's prescribing physician issues a
prescription ordering care at a center; and
(3) the minor's parent or legal guardian consents to
the minor's admission to the center.
Sec. 248A.152. RESTRICTIONS ON HOURS, SERVICES, AND PATIENT
CAPACITY. (a) A center may not provide services to a minor for more
than 12 hours in any 24-hour period.
(b) A center may not provide services other than services
regulated under this chapter and executive commissioner rule.
(c) The maximum patient capacity at a center may not exceed
60.
Sec. 248A.153. LICENSE DISPLAY. Each center licensed under
this chapter shall display the center's license in a conspicuous
location readily visible to a person entering the center.
Sec. 248A.154. BACKGROUND AND CRIMINAL HISTORY CHECKS
REQUIRED. (a) A center must:
(1) obtain through the department a background and
criminal history check on each individual seeking employment with
the center who is expected to or whose responsibilities would
require the individual to provide personal care, as defined by
department rule, or basic services directly to clients, including
an individual for whom information must be obtained under Chapter
250; and
(2) for the initial center license and annually,
obtain through the department a background and criminal history
check on:
(A) each employee whose responsibilities require
the employee to provide personal care, as defined by department
rule, or basic services directly to clients;
(B) each center owner or operator who is an
individual;
(C) each administrator responsible for the
center's daily operations; and
(D) each financial officer responsible for the
center's financial operations.
(b) In accordance with rules adopted by the executive
commissioner, a center must submit to the department for use in
conducting background and criminal history checks the name of each
person described by Subsection (a).
(c) The background and criminal history checks shall be
conducted using:
(1) the information provided under Subsection (b);
(2) the criminal history record information made
available by the Department of Public Safety under Section
411.1105, Government Code, or by the Federal Bureau of
Investigation or other criminal justice agency under Section
411.087, Government Code; and
(3) the department's records of reported or
substantiated abuse and neglect, including the employee misconduct
registry established under Chapter 253.
(d) The department shall require the center to pay to the
department a fee in an amount not to exceed the administrative costs
the department incurs in conducting background and criminal history
checks under this section.
Sec. 248A.155. MAINTENANCE OF RECORDS. Each center shall
maintain at the center the medical and other records required by
this chapter and by rules adopted under this chapter.
Sec. 248A.156. COMPLAINTS. A person may file a complaint
with the department against a center licensed or required to be
licensed under this chapter. The department shall investigate the
complaint in accordance with the complaint procedures established
under Chapter 1001.
Sec. 248A.157. CLOSING OF CENTER. At least 30 days before
the date a center voluntarily discontinues operation, the owner or
operator of the center shall inform the parent or legal guardian of
each minor client to whom the center is providing services of:
(1) the discontinuance; and
(2) the proposed time of the discontinuance.
SUBCHAPTER E. GENERAL ENFORCEMENT
Sec. 248A.201. DENIAL, SUSPENSION, OR REVOCATION OF
LICENSE. (a) The department may deny, suspend, or revoke a license
issued under this chapter for:
(1) a violation of this chapter or a rule or standard
adopted under this chapter;
(2) an intentional or negligent act by the center or an
employee of the center that the department determines significantly
affects the health or safety of a minor served by the center;
(3) use of drugs or intoxicating liquors to an extent
that affects the license holder's or applicant's professional
competence;
(4) a felony conviction, including a finding or
verdict of guilty, an admission of guilt, or a plea of nolo
contendere, in this state or in any other state or nation of any
person required to undergo a background and criminal history check
under this chapter;
(5) fraudulent acts, including acts relating to
Medicaid fraud and obtaining or attempting to obtain a license by
fraud or deception; or
(6) a license revocation, suspension, or other
disciplinary action taken against the license holder or any person
listed in the application in another state or nation.
(b) Except as provided by Section 248A.203, the procedures
by which the department denies, suspends, or revokes a license and
by which those actions are appealed are governed by the procedures
for a contested case hearing under Chapter 2001, Government Code.
Sec. 248A.202. PROBATION. (a) If the department finds
that a center is in repeated noncompliance with this chapter, rules
adopted under this chapter, or a corrective action plan, but that
the noncompliance does not endanger a minor served by the center or
the public health and safety, the department may schedule the
center for probation rather than suspending or revoking the
center's license.
(b) The department shall provide notice to the center of the
probation and of the items of noncompliance not later than the 10th
day before the date the probation period begins.
(c) The department shall designate a period of not less than
30 days during which the center will remain under probation. During
the probation period, the center must correct the items that were in
noncompliance and report the corrections to the department for
approval.
(d) The department may suspend or revoke the license of a
center that does not correct items that were in noncompliance or
does not comply with this chapter or the rules adopted under this
chapter within the applicable probation period.
Sec. 248A.203. EMERGENCY SUSPENSION. (a) The department
may issue an emergency order to suspend a license issued under this
chapter if the department has reasonable cause to believe that the
conduct of a license holder creates an immediate danger to a minor
served by the center or the public health and safety. An emergency
suspension is effective immediately without a hearing on notice to
the license holder.
(b) On written request of the license holder, the department
shall conduct a hearing not earlier than the 10th day or later than
the 30th day after the date the hearing request is received to
determine if the emergency suspension is to be continued, modified,
or rescinded.
(c) The hearing and any appeal are governed by the
department's rules for a contested case hearing and by Chapter
2001, Government Code.
Sec. 248A.204. INJUNCTION. (a) The department may
petition a district court for a temporary restraining order to
restrain a continuing violation of this chapter or a rule or
standard adopted under this chapter if the department finds that
the violation creates an immediate threat to the health and safety
of the minors served by a center.
(b) A district court, on petition of the department and on a
finding by the court that a person is violating this chapter or the
rules adopted under this chapter, may by injunction:
(1) prohibit the person from continuing the violation;
(2) restrain or prevent the establishment or operation
of a center without a license issued under this chapter; or
(3) grant any other injunctive relief warranted by the
facts.
(c) The attorney general shall institute and conduct a suit
authorized by this section at the request of the department. The
attorney general and the department may recover reasonable expenses
incurred in obtaining relief under this section, including court
costs, reasonable attorney's fees, investigation costs, witness
fees, and deposition expenses.
(d) Venue for a suit brought under this section is in the
county in which the center is located or in Travis County.
Sec. 248A.205. CIVIL PENALTY. (a) A person who violates
this chapter or a rule or standard adopted under this chapter or who
fails to comply with a corrective action plan submitted under this
chapter is liable for a civil penalty of not more than $500 for each
violation if the department determines the violation threatens the
health and safety of a minor served by the center.
(b) Each day a violation continues constitutes a separate
violation for the purposes of this section.
(c) The attorney general may sue to collect the penalty.
The attorney general and the department may recover reasonable
expenses incurred in obtaining relief under this section, including
court costs, reasonable attorney's fees, investigation costs,
witness fees, and deposition expenses.
(d) All penalties collected under this section shall be
deposited in the state treasury in the general revenue fund.
Sec. 248A.206. CRIMINAL PENALTY. (a) A person commits an
offense if the person knowingly establishes or operates a center
without the appropriate license issued under this chapter.
(b) An offense under this section is a Class B misdemeanor.
(c) Each day a violation continues constitutes a separate
offense.
SUBCHAPTER F. ADMINISTRATIVE PENALTY
Sec. 248A.251. IMPOSITION OF PENALTY. The commissioner may
impose an administrative penalty on a person licensed under this
chapter who violates this chapter or a rule or standard adopted or
order issued under this chapter.
Sec. 248A.252. AMOUNT OF PENALTY. (a) The amount of the
penalty may not exceed $500 for each violation, and each day a
violation continues or occurs is a separate violation for purposes
of imposing a penalty.
(b) The amount shall be based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
(2) the threat to health or safety caused by the
violation;
(3) any previous violations;
(4) the amount necessary to deter a future violation;
(5) whether the violator demonstrated good faith,
including when applicable whether the violator made good faith
efforts to correct the violation; and
(6) any other matter that justice may require.
Sec. 248A.253. REPORT AND NOTICE OF VIOLATION AND PENALTY.
(a) If the department initially determines that a violation
occurred, the department shall give written notice of the report by
certified mail to the person.
(b) The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended penalty; and
(3) inform the person of the person's right to a
hearing on the occurrence of the violation, the amount of the
penalty, or both.
Sec. 248A.254. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
Not later than the 20th day after the date the person receives the
notice sent under Section 248A.253, the person in writing may:
(1) accept the determination and recommended penalty
of the department; or
(2) make a request for a hearing on the occurrence of
the violation, the amount of the penalty, or both.
(b) If the person accepts the determination and recommended
penalty or if the person fails to respond to the notice, the
commissioner by order shall approve the determination and impose
the recommended penalty.
Sec. 248A.255. HEARING. (a) If the person requests a
hearing, the commissioner shall refer the matter to the State
Office of Administrative Hearings, which shall promptly set a
hearing date and give written notice of the time and place of the
hearing to the person. An administrative law judge of the State
Office of Administrative Hearings shall conduct the hearing.
(b) The administrative law judge shall make findings of fact
and conclusions of law and promptly issue to the commissioner a
proposal for a decision about the occurrence of the violation and
the amount of a proposed penalty.
Sec. 248A.256. DECISION BY COMMISSIONER. (a) Based on the
findings of fact, conclusions of law, and proposal for a decision,
the commissioner by order may:
(1) find that a violation occurred and impose a
penalty; or
(2) find that a violation did not occur.
(b) The notice of the commissioner's order under Subsection
(a) that is sent to the person in accordance with Chapter 2001,
Government Code, must include a statement of the right of the person
to judicial review of the order.
Sec. 248A.257. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
Not later than the 30th day after the date the order of the
commissioner imposing an administrative penalty under Section
248A.256 becomes final, the person shall:
(1) pay the penalty; or
(2) file a petition for judicial review of the
commissioner's order contesting the occurrence of the violation,
the amount of the penalty, or both.
Sec. 248A.258. STAY OF ENFORCEMENT OF PENALTY. (a) Within
the period prescribed by Section 248A.257, a person who files a
petition for judicial review may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account in the court registry; or
(B) giving the court a supersedeas bond approved
by the court that:
(i) is for the amount of the penalty; and
(ii) is effective until all judicial review
of the commissioner's order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
penalty and is financially unable to give the supersedeas bond; and
(B) sending a copy of the affidavit to the
commissioner by certified mail.
(b) If the commissioner receives a copy of an affidavit
under Subsection (a)(2), the commissioner may file with the court,
not later than the fifth day after the date the copy is received, a
contest to the affidavit. The court shall hold a hearing on the
facts alleged in the affidavit as soon as practicable and shall stay
the enforcement of the penalty on finding that the alleged facts are
true. The person who files an affidavit has the burden of proving
that the person is financially unable to pay the penalty and to give
a supersedeas bond.
Sec. 248A.259. COLLECTION OF PENALTY. (a) If the person
does not pay the penalty and the enforcement of the penalty is not
stayed, the penalty may be collected.
(b) The attorney general may sue to collect the penalty and
may recover reasonable expenses, including attorney's fees,
incurred in recovering the penalty.
(c) A penalty collected under this subchapter shall be
deposited in the state treasury in the general revenue fund.
Sec. 248A.260. DECISION BY COURT. (a) If the court
sustains the finding that a violation occurred, the court may
uphold or reduce the amount of the penalty and order the person to
pay the full or reduced amount of the penalty.
(b) If the court does not sustain the finding that a
violation occurred, the court shall order that a penalty is not
owed.
Sec. 248A.261. REMITTANCE OF PENALTY AND INTEREST. (a) If
the person paid the penalty and if the amount of the penalty is
reduced or the penalty is not upheld by the court, the court shall
order, when the court's judgment becomes final, that the
appropriate amount plus accrued interest be remitted to the person
not later than the 30th day after the date the judgment of the court
becomes final.
(b) The interest accrues at the rate charged on loans to
depository institutions by the New York Federal Reserve Bank.
(c) The interest shall be paid for the period beginning on
the date the penalty is paid and ending on the date the penalty is
remitted.
Sec. 248A.262. RELEASE OF BOND. (a) If the person gave a
supersedeas bond and the penalty is not upheld by the court, the
court shall order, when the court's judgment becomes final, the
release of the bond.
(b) If the person gave a supersedeas bond and the amount of
the penalty is reduced, the court shall order the release of the
bond after the person pays the reduced amount.
Sec. 248A.263. ADMINISTRATIVE PROCEDURE. A proceeding to
impose the penalty is considered to be a contested case under
Chapter 2001, Government Code.
SECTION 2. Section 411.1105(a), Government Code, is amended
to read as follows:
(a) The Department of State Health Services is entitled to
obtain from the department criminal history record information
maintained by the department that relates to [a person who is]:
(1) an applicant for a chemical dependency counselor's
license, a counselor intern's registration, or a clinical
supervisor certification under Chapter 504, Occupations Code; [or]
(2) the holder of a license, registration, or
certification under Chapter 504, Occupations Code; or
(3) a person required to undergo a background and
criminal history check under Chapter 248A, Health and Safety Code
[that chapter].
SECTION 3. Section 250.001(3), Health and Safety Code, is
amended to read as follows:
(3) "Facility" means:
(A) a nursing home, custodial care home, or other
institution licensed by the Department of Aging and Disability
Services under Chapter 242;
(B) an assisted living facility licensed by the
Department of Aging and Disability Services under Chapter 247;
(C) a home and community support services agency
licensed under Chapter 142;
(D) an adult day care facility licensed by the
Department of Aging and Disability Services under Chapter 103,
Human Resources Code;
(E) a facility for persons with mental
retardation licensed under Chapter 252;
(F) an adult foster care provider that contracts
with the Department of Aging and Disability Services;
(G) a facility that provides mental health
services and that is operated by or contracts with the Department of
State Health Services;
(H) a local mental health or mental retardation
authority designated under Section 533.035;
(I) a person exempt from licensing under Section
142.003(a)(19); [or]
(J) a special care facility licensed by the
Department of State Health Services under Chapter 248; or
(K) a prescribed pediatric extended care center
licensed by the Department of Aging and Disability Services under
Chapter 248A.
SECTION 4. Section 32.024, Human Resources Code, is amended
by adding Subsection (jj) to read as follows:
(jj) The department shall establish a separate provider
type for prescribed pediatric extended care centers licensed under
Chapter 248A, Health and Safety Code, for purposes of enrollment as
a provider for and reimbursement under the medical assistance
program.
SECTION 5. 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 6. (a) Not later than March 1, 2014, the executive
commissioner of the Health and Human Services Commission shall
adopt the rules required by Subchapter C, Chapter 248A, Health and
Safety Code, as added by this Act.
(b) Notwithstanding Section 248A.051, Health and Safety
Code, as added by this Act, a person is not required to hold a
prescribed pediatric extended care center license until July 1,
2014.
SECTION 7. (a) Except as provided by Subsection (b) of
this section, this Act takes effect September 1, 2013.
(b) Subchapters E and F, Chapter 248A, Health and Safety
Code, as added by this Act, take effect July 1, 2014.