84R1316 GCB-D
By: Raymond H.B. No. 2699
A BILL TO BE ENTITLED
AN ACT
relating to the functions and operations of the Department of Aging
and Disability Services; increasing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter A, Chapter 142, Health and Safety
Code, is amended by adding Section 142.0125 to read as follows:
Sec. 142.0125. PROGRESSIVE SANCTIONS. (a) The executive
commissioner by rule shall create a matrix of progressive sanctions
that the department must use to assess penalty amounts and impose
disciplinary actions under this chapter appropriately and fairly
for a violation of a law, rule, standard, or order adopted or
license issued under this chapter or for a violation of other law
for which this chapter provides a sanction.
(b) The matrix of progressive sanctions adopted under this
section must provide for increases in amounts of administrative
penalties based on type, frequency, and seriousness of violations
and must provide guidance for determining appropriate and graduated
administrative penalties to assess under this chapter to deter
future violations, including guidance on considering the factors
listed in this chapter for determining the amount of a penalty.
(c) The matrix of progressive sanctions adopted under this
section must provide for imposing stronger sanctions, including
license suspension or revocation, for more serious violations or
for repeated violations as appropriate to deter future serious or
repeated violations. The matrix of progressive sanctions must
describe appropriate time frames to be used in determining whether
a home and community support services agency has committed repeated
violations or has engaged in a pattern of repeated violations, such
as repeated violations found in consecutive regular inspections.
SECTION 2. Sections 142.017(b) and (j), Health and Safety
Code, are amended to read as follows:
(b) The penalty shall be not less than $100 or more than
$5,000 [$1,000] for each violation. Each day of a violation that
occurs before the day on which the person receives written notice of
the violation from the department does not constitute a separate
violation and shall be considered to be one violation. Each day of
a continuing violation that occurs after the day on which the person
receives written notice of the violation from the department
constitutes a separate violation.
(j) The executive commissioner by rule shall define types of
minor violations an agency may correct under Subsection (e) before
imposing an administrative penalty. The executive commissioner
shall ensure that all other violations are not subject to a right to
correct [The department may assess an administrative penalty
without providing a reasonable period of time to the agency to
correct the violation if the violation:
[(1) results in serious harm or death;
[(2) constitutes a serious threat to health or safety;
[(3) substantially limits the agency's capacity to
provide care;
[(4) is a violation in which a person:
[(A) makes a false statement, that the person
knows or should know is false, of a material fact:
[(i) on an application for issuance or
renewal of a license or in an attachment to the application; or
[(ii) with respect to a matter under
investigation by the department;
[(B) refuses to allow a representative of the
department to inspect a book, record, or file required to be
maintained by an agency;
[(C) wilfully interferes with the work of a
representative of the department or the enforcement of this
chapter;
[(D) wilfully interferes with a representative
of the department preserving evidence of a violation of this
chapter or a rule, standard, or order adopted or license issued
under this chapter;
[(E) fails to pay a penalty assessed by the
department under this chapter not later than the 10th day after the
date the assessment of the penalty becomes final; or
[(F) fails to submit:
[(i) a plan of correction not later than the
10th day after the date the person receives a statement of licensing
violations; or
[(ii) an acceptable plan of correction not
later than the 30th day after the date the person receives
notification from the department that the previously submitted plan
of correction is not acceptable;
[(5) is a violation of Section 142.0145; or
[(6) involves the rights of the elderly under Chapter
102, Human Resources Code].
SECTION 3. Section 242.061, Health and Safety Code, is
amended by adding Subsections (c-1), (c-2), and (e) to read as
follows:
(c-1) The department shall revoke the license of an
institution that violates this chapter or a rule, standard, or
order adopted or license issued under this chapter in a manner that
causes immediate jeopardy to health and safety on three separate
days within a 24-month period.
(c-2) In the case of revocation of a license under
Subsection (c-1), to ensure the health and safety of residents of
the institution, the department may:
(1) request the appointment of a trustee to operate
the institution under Subchapter D;
(2) obtain a new operator for the institution; or
(3) assist with the relocation of residents to another
institution.
(e) In this section, "immediate jeopardy to health and
safety" means a situation in which immediate corrective action is
necessary because the institution's noncompliance with one or more
requirements has caused, or is likely to cause, serious injury,
harm, impairment, or death to a resident receiving care in the
institution.
SECTION 4. Subchapter C, Chapter 242, Health and Safety
Code, is amended by adding Section 242.0613 to read as follows:
Sec. 242.0613. PROGRESSIVE SANCTIONS. (a) The executive
commissioner by rule shall create a matrix of progressive sanctions
that the department must use to assess penalty amounts and impose
disciplinary actions under this chapter appropriately and fairly
for a violation of a law, rule, standard, or order adopted or
license issued under this chapter or for a violation of other law
for which this chapter provides a sanction.
(b) The matrix of progressive sanctions adopted under this
section must provide for increases in amounts of administrative
penalties based on type, frequency, and seriousness of violations
and must provide guidance for determining appropriate and graduated
administrative penalties to assess under this chapter to deter
future violations, including guidance on considering the factors
listed in this chapter for determining the amount of a penalty.
(c) The matrix of progressive sanctions adopted under this
section must provide for imposing stronger sanctions, including
license suspension or revocation, for more serious violations or
for repeated violations as appropriate to deter future serious or
repeated violations. The matrix of progressive sanctions must
describe appropriate time frames to be used in determining whether
a facility has committed repeated violations or has engaged in a
pattern of repeated violations, such as repeated violations found
in consecutive regular inspections.
SECTION 5. Section 242.0665(b), Health and Safety Code, is
amended to read as follows:
(b) The executive commissioner by rule shall define types of
minor violations a facility may correct under Subsection (a) before
imposing an administrative penalty. The executive commissioner
shall ensure that all other violations are not subject to a right to
correct [Subsection (a) does not apply:
[(1) to a violation that the department determines:
[(A) results in serious harm to or death of a
resident;
[(B) constitutes a serious threat to the health
or safety of a resident; or
[(C) substantially limits the institution's
capacity to provide care;
[(2) to a violation described by Sections
242.066(a)(2)-(7);
[(3) to a violation of Section 260A.014 or 260A.015;
or
[(4) to a violation of a right of a resident adopted
under Subchapter L].
SECTION 6. Subchapter C, Chapter 247, Health and Safety
Code, is amended by adding Section 247.0415 to read as follows:
Sec. 247.0415. PROGRESSIVE SANCTIONS. (a) The executive
commissioner of the Health and Human Services Commission by rule
shall create a matrix of progressive sanctions that the department
must use to assess penalty amounts and impose disciplinary actions
under this chapter appropriately and fairly for a violation of a
law, rule, standard, or order adopted or license issued under this
chapter or for a violation of other law for which this chapter
provides a sanction.
(b) The matrix of progressive sanctions adopted under this
section must provide for increases in amounts of administrative
penalties based on type, frequency, and seriousness of violations
and must provide guidance for determining appropriate and graduated
administrative penalties to assess under this chapter to deter
future violations, including guidance on considering the factors
listed in this chapter for determining the amount of a penalty.
(c) The matrix of progressive sanctions adopted under this
section must provide for imposing stronger sanctions, including
license suspension or revocation, for more serious violations or
for repeated violations as appropriate to deter future serious or
repeated violations. The matrix of progressive sanctions must
describe appropriate time frames to be used in determining whether
an assisted living facility has committed repeated violations or
has engaged in a pattern of repeated violations, such as repeated
violations found in consecutive regular inspections.
SECTION 7. Section 247.0451(b), Health and Safety Code, is
amended to read as follows:
(b) Except as provided by Section 247.0452(c), the penalty
may not exceed $5,000 [$1,000] for each violation. Each day a
violation occurs or continues is a separate violation for purposes
of imposing a penalty.
SECTION 8. Section 247.0452(b), Health and Safety Code, is
amended to read as follows:
(b) The executive commissioner of the Health and Human
Services Commission by rule shall define types of minor violations
an assisted living facility may correct under Subsection (a) before
imposing an administrative penalty. The executive commissioner
shall ensure that all other violations are not subject to a right to
correct [Subsection (a) does not apply:
[(1) to a violation that the department determines
results in serious harm to or death of a resident;
[(2) to a violation described by Sections
247.0451(a)(2)-(7) or a violation of Section 260A.014 or 260A.015;
[(3) to a second or subsequent violation of:
[(A) a right of the same resident under Section
247.064; or
[(B) the same right of all residents under
Section 247.064; or
[(4) to a violation described by Section 247.066,
which contains its own right to correct provisions].
SECTION 9. Subchapter C, Chapter 252, Health and Safety
Code, is amended by adding Section 252.0615 to read as follows:
Sec. 252.0615. PROGRESSIVE SANCTIONS. (a) The executive
commissioner of the Health and Human Services Commission by rule
shall create a matrix of progressive sanctions that the department
must use to assess penalty amounts and impose disciplinary actions
under this chapter appropriately and fairly for a violation of a
law, rule, standard, or order adopted or license issued under this
chapter or for a violation of other law for which this chapter
provides a sanction.
(b) The matrix of progressive sanctions adopted under this
section must provide for increases in amounts of administrative
penalties based on type, frequency, and seriousness of violations
and must provide guidance for determining appropriate and graduated
administrative penalties to assess under this chapter to deter
future violations, including guidance on considering the factors
listed in this chapter for determining the amount of a penalty.
(c) The matrix of progressive sanctions adopted under this
section must provide for imposing stronger sanctions, including
license suspension or revocation, for more serious violations or
for repeated violations as appropriate to deter future serious or
repeated violations. The matrix of progressive sanctions must
describe appropriate time frames to be used in determining whether
a facility has committed repeated violations or has engaged in a
pattern of repeated violations, such as repeated violations found
in consecutive regular inspections.
SECTION 10. Sections 252.065(b) and (e), Health and Safety
Code, are amended to read as follows:
(b) The penalty for a facility with fewer than 60 beds shall
be not less than $100 or more than $1,000 for each violation. The
penalty for a facility with 60 beds or more shall be not less than
$100 or more than $5,000 for each violation. [The total amount of
the penalty assessed for a violation continuing or occurring on
separate days under this subsection may not exceed $5,000 for a
facility with fewer than 60 beds or $25,000 for a facility with 60
beds or more.] Each day a violation occurs or continues is a
separate violation for purposes of imposing a penalty.
(e) The department by rule shall provide the facility with a
reasonable period of time, not less than 45 days, following the
first day of a violation to correct the violation before assessing
an administrative penalty if a plan of correction has been
implemented. The executive commissioner of the Health and Human
Services Commission by rule shall define types of minor violations
a facility may correct before assessing an administrative penalty.
The executive commissioner shall ensure that all other violations
are not subject to a right to correct [This subsection does not
apply to a violation described by Subsections (a)(2)-(8) or to a
violation that the department determines:
[(1) has resulted in serious harm to or the death of a
resident;
[(2) constitutes a serious threat to the health or
safety of a resident; or
[(3) substantially limits the institution's capacity
to provide care].
SECTION 11. Subchapter B, Chapter 533, Health and Safety
Code, is amended by adding Section 533.054 to read as follows:
Sec. 533.054. CRISIS INTERVENTION TEAMS. (a) In this
section:
(1) "Crisis intervention team" means a team of
individuals specially trained to provide services and support to
persons with intellectual and developmental disabilities who have
behavioral health needs and who are at risk of
institutionalization.
(2) "Department" means the Department of Aging and
Disability Services.
(b) The department shall evaluate the effectiveness of
various models of crisis intervention teams that are funded under a
waiver under Section 1115 of the federal Social Security Act (42
U.S.C. Section 1315) and operated by a local intellectual and
developmental disability authority.
(c) Not later than March 1, 2016, the department shall
select for implementation one or more models for crisis
intervention teams the department determines best provide
comprehensive, cost-effective support.
(d) The department shall determine the areas in this state
in which local intellectual and developmental disability
authorities do not operate crisis intervention teams and, subject
to available funding, shall implement in each area a team that
operates in accordance with a model selected for implementation
under this section.
SECTION 12. Chapter 555, Health and Safety Code, is amended
by adding Subchapter F to read as follows:
SUBCHAPTER F. STATE SUPPORTED LIVING CENTER RESTRUCTURING AND
CLOSURES
Sec. 555.201. STATE SUPPORTED LIVING CENTER RESTRUCTURING
COMMISSION. (a) In this subchapter, "restructuring commission"
means the state supported living center restructuring commission.
(b) The restructuring commission consists of five members
appointed by the governor and the following three nonvoting ex
officio members:
(1) the executive commissioner or the executive
commissioner's designee;
(2) the executive director of the Texas Facilities
Commission or the executive director's designee; and
(3) the commissioner of the General Land Office or the
commissioner's designee.
(c) The restructuring commission is established to
evaluate each state supported living center in the state to
determine whether closure of the center is recommended to maintain
only the number of centers necessary to meet the level of need in
the state. In evaluating each state supported living center, the
restructuring commission shall consider:
(1) the quality of services provided by the center,
including the center's most recent certification inspections and
the center's ability to meet the minimum ICF-IID standards;
(2) the costs of operating the center;
(3) the center's compliance with the 2009 settlement
agreement between the department and the United States Department
of Justice regarding services provided to individuals with
intellectual and developmental disabilities in state-operated
facilities;
(4) the availability of community service providers in
the area served by the center;
(5) the specialty services provided at the center,
including the ability of the center to serve alleged offenders or
high-risk residents;
(6) the availability of employment opportunities for
center employees if the center closes;
(7) any infrastructure deficiency costs relating to
the center;
(8) the property value of, the market demand for, and
any deed restrictions applicable to property and facilities of the
center;
(9) whether closure of the center would adversely
affect the geographic distribution of centers in the state;
(10) the availability and capacity of service
providers and resources in the community capable of delivering the
quality and level of care each resident of the center would require
following the center's closure; and
(11) any other criteria the restructuring commission
considers appropriate.
(d) Not later than December 1, 2016, the restructuring
commission shall submit to the governor, the lieutenant governor,
the speaker of the house of representatives, and the presiding
officers of the standing committees of the senate and house of
representatives having primary jurisdiction over intellectual and
developmental disability issues a report detailing the
restructuring commission's evaluation of each state supported
living center and, if applicable, proposing the closure of certain
centers.
(e) The restructuring commission is abolished and this
section expires January 1, 2017.
Sec. 555.202. RECOMMENDED CLOSURES OF STATE SUPPORTED
LIVING CENTERS. (a) If the restructuring commission proposes the
closure of one or more state supported living centers, the 85th
Legislature shall consider legislation proposing the closure of the
centers recommended for closure. In considering the proposed
legislation described by this subsection, members of the
legislature may not propose amendments to the legislation.
(b) If the legislation described by Subsection (a) is
enacted and becomes law, the department shall ensure that each
state supported living center approved by the legislature for
closure under Subsection (a) is closed not later than August 31,
2025.
(c) This subchapter expires September 1, 2025.
Sec. 555.203. CLOSURE OF AUSTIN STATE SUPPORTED LIVING
CENTER. (a) The department shall establish a closure plan for the
Austin State Supported Living Center. The plan must provide for
closure of the facility and operations of the Austin State
Supported Living Center not later than August 31, 2017.
(b) The closure plan must provide procedures to transition
to the community each resident for whom transition to the community
is practicable while maintaining respect for resident choice.
(c) The department may award one-time retention bonuses to
each direct support professional, qualified intellectual
disability professional, social worker, and case manager who agrees
to continue to provide services at the Austin State Supported
Living Center until the center is closed.
(d) The proceeds from the closure, including from the sale
or lease of facilities or other property, may be appropriated only
for services for persons with intellectual and developmental
disabilities, including persons with a dual diagnosis of
intellectual and developmental disabilities and mental illness.
(e) Not later than August 31, 2018, the department shall
evaluate the closure process, including how well the closure plan
worked, and, if appropriate, establish policies for improving the
closure process for future closures of other state supported living
centers.
(f) This section expires September 1, 2018.
SECTION 13. Section 531.0318, Government Code, is amended
by adding Subsections (b-1), (d), and (e) to read as follows:
(b-1) The information for consumers required by this
section must include for each provider of long-term care services:
(1) a rating assigned by the Department of Aging and
Disability Services indicating the quality of the care provided or,
alternatively, a link to a rating assigned a provider on an Internet
website maintained by the federal government;
(2) information concerning quality of care, as that
information becomes available;
(3) staffing information, if available, including for
each year the number of staff members who began employment with the
provider during that year and the number of staff members who ceased
employment with the provider during that year;
(4) the ratio of staff members to residents; and
(5) the provider's regulatory performance, as
available.
(d) The Department of Aging and Disability Services shall
immediately post notice on the department's Internet website when a
provider of long-term care services loses its Medicaid
certification.
(e) The Department of Aging and Disability Services shall
periodically solicit input regarding the content of the information
required under this section and the usability and accessibility of
the website on which the information is located from consumers,
consumer advocates, long-term care services providers, and the
general public.
SECTION 14. Subchapter D, Chapter 48, Human Resources Code,
is amended by adding Section 48.15221 to read as follows:
Sec. 48.15221. REPORTS CONCERNING DAY HABILITATION
SERVICES PROVIDERS. (a) In this section "day habilitation
services" and "day habilitation services provider" have the
meanings assigned by Section 161.401.
(b) The department shall prepare and submit to the
Department of Aging and Disability Services an annual report of the
number of investigations arising from a report of abuse, neglect,
or exploitation of a person with an intellectual or developmental
disability that was allegedly committed by or on the premises of a
day habilitation services provider, and whether the investigation
concluded that the report of alleged abuse, neglect, or
exploitation was confirmed, unconfirmed, inconclusive, or
unfounded.
(c) The duty to prepare and submit a report under Subsection
(b) does not affect the duty of the department to investigate and
hold accountable a community-based intellectual and developmental
disabilities services provider or intermediate care facility for
any abuse, neglect, or exploitation of a person who receives day
habilitation services from the provider.
SECTION 15. Chapter 103, Human Resources Code, is amended
by adding Section 103.0085 to read as follows:
Sec. 103.0085. PROGRESSIVE SANCTIONS. (a) The executive
commissioner of the Health and Human Services Commission by rule
shall create a matrix of progressive sanctions that the department
must use to assess penalty amounts and impose disciplinary actions
under this chapter appropriately and fairly for a violation of a
law, rule, standard, or order adopted or license issued under this
chapter or for a violation of other law for which this chapter
provides a sanction.
(b) The matrix of progressive sanctions adopted under this
section must provide for increases in amounts of administrative
penalties based on type, frequency, and seriousness of violations
and must provide guidance for determining appropriate and graduated
administrative penalties to assess under this chapter to deter
future violations, including guidance on considering the factors
listed in this chapter for determining the amount of a penalty.
(c) The matrix of progressive sanctions adopted under this
section must provide for imposing stronger sanctions, including
license suspension or revocation, for more serious violations or
for repeated violations as appropriate to deter future serious or
repeated violations. The matrix of progressive sanctions must
describe appropriate time frames to be used in determining whether
an adult day-care facility has committed repeated violations or has
engaged in a pattern of repeated violations, such as repeated
violations found in consecutive regular inspections.
SECTION 16. Section 103.013(b), Human Resources Code, is
amended to read as follows:
(b) The executive commissioner of the Health and Human
Services Commission by rule shall define types of minor violations
an adult day-care facility may correct under Subsection (a) before
assessing an administrative penalty. The executive commissioner
shall ensure that all other violations are not subject to a right to
correct [Subsection (a) does not apply to:
[(1) a violation that the department determines:
[(A) results in serious harm to or death of a
person attending the facility;
[(B) constitutes a serious threat to the health
and safety of a person attending the facility; or
[(C) substantially limits the facility's
capacity to provide care;
[(2) a violation described by Sections
103.012(a)(2)-(7); or
[(3) a violation of Section 103.011].
SECTION 17. Section 161.080, Human Resources Code, is
amended by adding Subsection (c) to read as follows:
(c) The executive commissioner by rule shall establish a
list of services a state supported living center may provide under a
contract described by Subsection (a) and a schedule of fees the
state supported living center may charge for those services. In
establishing the schedule of fees for services, the executive
commissioner shall use the reimbursement rate for the applicable
service under the Medicaid program or modify that rate with a
written justification for the modification.
SECTION 18. Chapter 161, Human Resources Code, is amended
by adding Subchapter J to read as follows:
SUBCHAPTER J. POWERS AND DUTIES RELATING TO DAY HABILITATION
SERVICES PROVIDERS
Sec. 161.401. DEFINITIONS. In this subchapter:
(1) "Day habilitation services" means services to
assist persons with intellectual and developmental disabilities in
acquiring, retaining, and improving the self-help, socialization,
and adaptive skills necessary to reside successfully in the
community, including prevocational, educational, and supported
employment services.
(2) "Day habilitation services provider" means a
person who contracts with a community-based intellectual and
developmental disabilities services provider or intermediate care
facility to provide federally funded Medicaid day habilitation
services authorized under Section 1915(c) of the federal Social
Security Act (42 U.S.C. Section 1396n(c)).
Sec. 161.402. DAY HABILITATION SERVICES PROVIDER
INFORMATION TRACKING. (a) Each community-based intellectual and
developmental disabilities services provider and intermediate care
facility shall annually submit to the department a report
providing:
(1) an estimate of the number of clients receiving day
habilitation services for each month of that year;
(2) the physical address of each day habilitation
services provider that provided those services;
(3) the services provided to those clients; and
(4) an estimate of monthly expenditures for the
provision of those services to those clients.
(b) The department shall maintain information obtained
during a department inspection of a day habilitation services
provider concerning conduct or conditions that would constitute a
violation of federal or state law or of department rules applicable
to the community-based intellectual and developmental disabilities
services provider or intermediate care facility with which the day
habilitation services provider contracts.
(c) The department shall maintain information concerning an
investigation of abuse, neglect, or exploitation concerning a day
habilitation services provider that the department receives from
the Department of Family and Protective Services under Section
48.15221.
Sec. 161.403. DAY HABILITATION PROGRAM ADVISORY COMMITTEE.
(a) Not later than September 1, 2015, the department shall
establish a day habilitation program advisory committee composed of
members that represent community-based waiver providers, owners of
day habilitation services providers, and advocates for persons with
intellectual and developmental disabilities.
(b) The day habilitation program advisory committee shall
consider and make recommendations concerning whether the provision
of day habilitation services in this state should be redesigned and
whether day habilitation services providers should be subject to
regulation, including by licensure or certification.
(c) In considering the redesign of the provision of day
habilitation services in this state, the day habilitation program
advisory committee shall examine whether day habilitation service
providers currently comply with the requirements of 42 C.F.R.
Section 441.301.
(d) The day habilitation program advisory committee shall
also consider and make recommendations concerning issues relevant
to the provision of day habilitation services, including the
appropriate funding for services, reimbursable settings and
services, staff-to-client ratio requirements, safety requirements,
and other required or applicable standards.
(e) Not later than September 1, 2016, the day habilitation
program advisory committee shall submit to the governor, the
lieutenant governor, the speaker of the house of representatives,
and the presiding officers of the standing committees of the senate
and house of representatives having primary jurisdiction over
intellectual and developmental disability issues a report
containing the committee's recommendations concerning the redesign
of the provision of day habilitation services in this state and the
necessity for regulation, licensure, or certification of day
habilitation services providers.
(f) The day habilitation program advisory committee is
abolished and this section expires December 31, 2016.
SECTION 19. Section 101.049, Human Resources Code, is
repealed.
SECTION 20. (a) Not later than September 1, 2016, the
executive commissioner of the Health and Human Services Commission
shall adopt by rule the matrices of progressive sanctions required
by Sections 142.0125, 242.0613, 247.0415, and 252.0615, Health and
Safety Code, and Section 103.0085, Human Resources Code, as added
by this Act.
(b) Not later than September 1, 2015, the governor shall
appoint five members of the state supported living center
restructuring commission, as required by Section 555.201, Health
and Safety Code, as added by this Act.
(c) Not later than September 1, 2016, the executive
commissioner of the Health and Human Services Commission shall
adopt the rule listing services a state supported living center may
provide under a contract and the schedule of fees for those services
as required by Section 161.080, Human Resources Code, as amended by
this Act.
SECTION 21. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2015.