H.B. No. 4001
AN ACT
relating to providers of certain home and community support
services; authorizing a fee, providing penalties, and requiring an
occupational license.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 142.001, Health and Safety Code, is
amended by adding Subdivision (11-c) and amending Subdivisions (12)
and (23) to read as follows:
(11-c) "Habilitation" means habilitation services, as
defined by Section 534.001, Government Code, delivered by a
licensed home and community support services agency.
(12) "Home and community support services agency"
means a person who provides home health, hospice, habilitation, or
personal assistance services for pay or other consideration in a
client's residence, an independent living environment, or another
appropriate location.
(23) "Place of business" means an office of a home and
community support services agency that maintains client records or
directs home health, hospice, habilitation, or personal assistance
services. The term does not include an administrative support
site.
SECTION 2. Section 142.0011, Health and Safety Code, as
amended by S.B. 219, Acts of the 84th Legislature, Regular Session,
2015, is amended to read as follows:
Sec. 142.0011. SCOPE, PURPOSE, AND IMPLEMENTATION. (a)
The purpose of this chapter is to ensure that home and community
support services agencies in this state deliver the highest
possible quality of care. This chapter and the rules adopted under
this chapter establish minimum standards for acceptable quality of
care, and a violation of a minimum standard established or adopted
under this chapter is a violation of law. For purposes of this
chapter, components of quality of care include:
(1) client independence and self-determination;
(2) humane treatment;
(3) continuity of care;
(4) coordination of services;
(5) professionalism of service providers;
(6) quality of life; [and]
(7) client satisfaction with services; and
(8) person-centered service delivery.
(b) The executive commissioner shall protect clients of
home and community support services agencies by adopting rules
relating to quality of care and quality of life.
(c) The department shall protect clients of home and
community support services agencies by:
(1) regulating those agencies;
(2) strictly monitoring factors relating to the
health, safety, welfare, and dignity of each client;
(3) imposing prompt and effective remedies for
violations of this chapter and rules and standards adopted under
this chapter;
(4) enabling agencies to provide person-centered
services that allow clients to maintain the highest possible degree
of independence and self-determination; and
(5) providing the public with helpful and
understandable information relating to agencies in this state.
SECTION 3. Section 142.002(a), Health and Safety Code, is
amended to read as follows:
(a) Except as provided by Section 142.003, a person,
including a health care facility licensed under this code, may not
engage in the business of providing home health, hospice,
habilitation, or personal assistance services, or represent to the
public that the person is a provider of home health, hospice,
habilitation, or personal assistance services for pay without a
home and community support services agency license authorizing the
person to perform those services issued by the department for each
place of business from which home health, hospice, habilitation, or
personal assistance services are directed. A certified agency must
have a license to provide certified home health services.
SECTION 4. Section 142.003(a), Health and Safety Code, is
amended to read as follows:
(a) The following persons need not be licensed under this
chapter:
(1) a physician, dentist, registered nurse,
occupational therapist, or physical therapist licensed under the
laws of this state who provides home health services to a client
only as a part of and incidental to that person's private office
practice;
(2) a registered nurse, licensed vocational nurse,
physical therapist, occupational therapist, speech therapist,
medical social worker, or any other health care professional as
determined by the department who provides home health services as a
sole practitioner;
(3) a registry that operates solely as a clearinghouse
to put consumers in contact with persons who provide home health,
hospice, habilitation, or personal assistance services and that
does not maintain official client records, direct client services,
or compensate the person who is providing the service;
(4) an individual whose permanent residence is in the
client's residence;
(5) an employee of a person licensed under this
chapter who provides home health, hospice, habilitation, or
personal assistance services only as an employee of the license
holder and who receives no benefit for providing the services,
other than wages from the license holder;
(6) a home, nursing home, convalescent home, assisted
living facility, special care facility, or other institution for
individuals who are elderly or who have disabilities that provides
home health or personal assistance services only to residents of
the home or institution;
(7) a person who provides one health service through a
contract with a person licensed under this chapter;
(8) a durable medical equipment supply company;
(9) a pharmacy or wholesale medical supply company
that does not furnish services, other than supplies, to a person at
the person's house;
(10) a hospital or other licensed health care facility
that provides home health or personal assistance services only to
inpatient residents of the hospital or facility;
(11) a person providing home health or personal
assistance services to an injured employee under Title 5, Labor
Code;
(12) a visiting nurse service that:
(A) is conducted by and for the adherents of a
well-recognized church or religious denomination; and
(B) provides nursing services by a person exempt
from licensing by Section 301.004, Occupations Code, because the
person furnishes nursing care in which treatment is only by prayer
or spiritual means;
(13) an individual hired and paid directly by the
client or the client's family or legal guardian to provide home
health or personal assistance services;
(14) a business, school, camp, or other organization
that provides home health or personal assistance services,
incidental to the organization's primary purpose, to individuals
employed by or participating in programs offered by the business,
school, or camp that enable the individual to participate fully in
the business's, school's, or camp's programs;
(15) a person or organization providing
sitter-companion services or chore or household services that do
not involve personal care, health, or health-related services;
(16) a licensed health care facility that provides
hospice services under a contract with a hospice;
(17) a person delivering residential acquired immune
deficiency syndrome hospice care who is licensed and designated as
a residential AIDS hospice under Chapter 248;
(18) the Texas Department of Criminal Justice;
(19) a person that provides home health, hospice,
habilitation, or personal assistance services only to persons
receiving benefits under:
(A) the home and community-based services (HCS)
waiver program;
(B) the Texas home living (TxHmL) waiver program;
[or]
(C) the STAR + PLUS or other Medicaid managed
care program under the program's HCS or TxHmL certification; or
(D) Section 534.152, Government Code; or
(20) an individual who provides home health or
personal assistance services as the employee of a consumer or an
entity or employee of an entity acting as a consumer's fiscal agent
under Section 531.051, Government Code.
SECTION 5. Sections 142.004(a) and (c), Health and Safety
Code, are amended to conform to S.B. 219, Acts of the 84th
Legislature, Regular Session, 2015, and further amended to read as
follows:
(a) An applicant for a license to provide home health,
hospice, habilitation, or personal assistance services must:
(1) file a written application on a form prescribed by
the department indicating the type of service the applicant wishes
to provide;
(2) cooperate with any surveys required by the
department for a license; and
(3) pay the license fee prescribed by this chapter.
(c) The executive commissioner by rule shall require that,
at a minimum, before the department may approve a license
application, the applicant must provide to the department:
(1) documentation establishing that, at a minimum, the
applicant has sufficient financial resources to provide the
services required by this chapter and by the department during the
term of the license;
(2) a list of the management personnel for the
proposed home and community support services agency, a description
of personnel qualifications, and a plan for providing continuing
training and education for the personnel during the term of the
license;
(3) documentation establishing that the applicant is
capable of meeting the minimum standards established by the
executive commissioner relating to the quality of care;
(4) a plan that provides for the orderly transfer of
care of the applicant's clients if the applicant cannot maintain or
deliver home health, hospice, habilitation, or personal assistance
services under the license;
(5) identifying information on the home and community
support services agency owner, administrator, and chief financial
officer to enable the department to conduct criminal background
checks on those persons;
(6) identification of any controlling person with
respect to the applicant; and
(7) documentation relating to any controlling person
identified under Subdivision (6), if requested by the department
and relevant to the controlling person's compliance with any
applicable licensing standard required or adopted under this
chapter.
SECTION 6. Sections 142.006(a) and (g), Health and Safety
Code, are amended to conform to S.B. 219, Acts of the 84th
Legislature, Regular Session, 2015, and further amended to read as
follows:
(a) The department shall issue a home and community support
services agency license to provide home health, hospice,
habilitation, or personal assistance services for each place of
business to an applicant if:
(1) the applicant:
(A) qualifies for the license to provide the type
of service that is to be offered by the applicant;
(B) submits an application and license fee as
required by this chapter; and
(C) complies with all applicable licensing
standards required or adopted under this chapter; and
(2) any controlling person with respect to the
applicant complies with all applicable licensing standards
required or adopted under this chapter.
(g) The license must designate the types of services that
the home and community support services agency is authorized to
provide at or from the designated place of business. The types of
services that may be designated include dialysis and habilitation.
SECTION 7. Sections 142.009(b) and (c), Health and Safety
Code, are amended to read as follows:
(b) A home and community support services agency shall
provide each person who receives home health, hospice,
habilitation, or personal assistance services with a written
statement that contains the name, address, and telephone number of
the department and a statement that informs the recipient that a
complaint against a home and community support services agency may
be directed to the department.
(c) The department or its authorized representative shall
investigate each complaint received regarding the provision of home
health, hospice, habilitation, or personal assistance services,
including any allegation of abuse, neglect, or exploitation of a
child under the age of 18, and may, as a part of the investigation:
(1) conduct an unannounced survey of a place of
business, including an inspection of medical and personnel records,
if the department has reasonable cause to believe that the place of
business is in violation of this chapter or a rule adopted under
this chapter;
(2) conduct an interview with a recipient of home
health, hospice, habilitation, or personal assistance services,
which may be conducted in the recipient's home if the recipient
consents;
(3) conduct an interview with a family member of a
recipient of home health, hospice, habilitation, or personal
assistance services who is deceased or other person who may have
knowledge of the care received by the deceased recipient of the home
health, hospice, habilitation, or personal assistance services; or
(4) interview a physician or other health care
practitioner, including a member of the personnel of a home and
community support services agency, who cares for a recipient of
home health, hospice, habilitation, or personal assistance
services.
SECTION 8. Sections 142.0091(a) and (b), Health and Safety
Code, are amended to read as follows:
(a) The department shall provide specialized training to
representatives of the department who survey home and community
support services agencies. The training must include information
relating to:
(1) the conduct of appropriate surveys that do not
focus exclusively on medical standards under an acute care model;
[and]
(2) acceptable delegation of nursing tasks; and
(3) the provision of person-centered services.
(b) In developing and updating the training required by
Subsection (a), the department shall consult with and include
providers of home health, hospice, habilitation, and personal
assistance services, recipients of those services and their family
members, and representatives of appropriate advocacy
organizations.
SECTION 9. Section 142.0092(a), Health and Safety Code, is
amended to read as follows:
(a) The department shall maintain records or documents
relating to complaints directed to the department by consumers of
home health, hospice, habilitation, or personal assistance
services. The department shall organize the records or documents
according to standard, statewide categories as determined by the
department. In determining appropriate categories, the department
shall make distinctions based on factors useful to the public in
assessing the quality of services provided by a home and community
support services agency, including whether the complaint:
(1) was determined to be valid or invalid;
(2) involved significant physical harm or death to a
patient;
(3) involved financial exploitation of a patient; or
(4) resulted in any sanction imposed against the
agency.
SECTION 10. Section 142.0093(a), Health and Safety Code, is
amended to read as follows:
(a) A person licensed under this chapter may not retaliate
against another person for filing a complaint, presenting a
grievance, or providing in good faith information relating to home
health, hospice, habilitation, or personal assistance services
provided by the license holder.
SECTION 11. Section 142.010(a), Health and Safety Code, as
amended by S.B. 219, Acts of the 84th Legislature, Regular Session,
2015, is amended to read as follows:
(a) The executive commissioner by rule shall set license
fees for home and community support services agencies in amounts
that are reasonable to meet the costs of administering this
chapter, except that the fees may not be less than $600 or more than
$2,000 for a license to provide home health, hospice, habilitation,
or personal assistance services.
SECTION 12. Sections 142.012(b) and (e), Health and Safety
Code, are amended to read as follows:
(b) The executive commissioner by rule shall set minimum
standards for home and community support services agencies licensed
under this chapter that relate to:
(1) qualifications for professional and
nonprofessional personnel, including volunteers;
(2) supervision of professional and nonprofessional
personnel, including volunteers;
(3) the provision and coordination of treatment and
services, including support and bereavement services, as
appropriate;
(4) the management, ownership, and organizational
structure, including lines of authority and delegation of
responsibility and, as appropriate, the composition of an
interdisciplinary team;
(5) clinical and business records;
(6) financial ability to carry out the functions as
proposed;
(7) safety, fire prevention, and sanitary standards
for residential units and inpatient units; and
(8) any other aspects of home health, hospice,
habilitation, or personal assistance services as necessary to
protect the public.
(e) The department shall require each person or home and
community support services agency providing home health, hospice,
habilitation, or personal assistance services to implement and
enforce the applicable provisions of Chapter 102, Human Resources
Code.
SECTION 13. Section 142.014(a), Health and Safety Code, is
amended to read as follows:
(a) A person who engages in the business of providing home
health, hospice, habilitation, or personal assistance service, or
represents to the public that the person is a provider of home
health, hospice, habilitation, and personal assistance services
for pay, without a license issued under this chapter authorizing
the services that are being provided is liable for a civil penalty
of not less than $1,000 or more than $2,500 for each day of
violation. Penalties may be appropriated only to the department
and to administer this chapter.
SECTION 14. Section 142.017(a), Health and Safety Code, is
amended to read as follows:
(a) The department may assess an administrative penalty
against a person who violates:
(1) this chapter or a rule adopted under this chapter;
or
(2) Section 102.001, Occupations Code, if the
violation relates to the provision of home health, hospice,
habilitation, or personal assistance services.
SECTION 15. Subchapter D, Chapter 161, Human Resources
Code, is amended by adding Section 161.088 to read as follows:
Sec. 161.088. ADMINISTRATIVE PENALTIES. (a) This section
applies to the following waiver programs established under Section
1915(c), Social Security Act (42 U.S.C. Section 1396n(c)), and
administered by the department to serve persons with an
intellectual or developmental disability:
(1) the home and community-based services (HCS) waiver
program; and
(2) the Texas home living (TxHmL) waiver program.
(b) The department may assess and collect an administrative
penalty against a provider who participates in a program to which
this section applies for a violation of a law or rule relating to
the program. If the department assesses an administrative penalty
against a provider for a violation of a law or rule, the department
may not impose a payment hold against or otherwise withhold
contract payments from the provider for the same violation of a law
or rule.
(c) After consulting with appropriate stakeholders, the
executive commissioner shall develop and adopt rules regarding the
imposition of administrative penalties under this section. The
rules must:
(1) specify the types of violations that warrant
imposition of an administrative penalty;
(2) establish a schedule of progressive
administrative penalties in accordance with the relative type,
frequency, and seriousness of a violation;
(3) prescribe reasonable amounts to be imposed for
each violation giving rise to an administrative penalty, subject to
Subdivision (4);
(4) authorize the imposition of an administrative
penalty in an amount not to exceed $5,000 for each violation;
(5) provide that a provider commits a separate
violation each day the provider continues to violate the law or
rule;
(6) ensure standard and consistent application of
administrative penalties throughout the state; and
(7) provide for an administrative appeals process to
adjudicate claims and appeals relating to the imposition of an
administrative penalty under this section that is in accordance
with Chapter 2001, Government Code.
(d) In specifying the types of violations that warrant
imposition of an administrative penalty under Subsection (c), the
executive commissioner shall specify the types of minor violations
that allow a provider an opportunity to take corrective action
before a penalty is imposed.
(e) In establishing the schedule of progressive
administrative penalties and penalty amounts under Subsection (c),
the executive commissioner must consider:
(1) the seriousness of a violation, including:
(A) the nature, circumstances, extent, and
gravity of the violation; and
(B) the hazard to the health or safety of
recipients resulting from the violation;
(2) the provider's history of previous violations;
(3) whether the provider:
(A) had prior knowledge of the violation,
including whether the provider identified the violation through the
provider's internal quality assurance process; and
(B) made any efforts to mitigate or correct the
identified violation;
(4) the penalty amount necessary to deter future
violations; and
(5) any other matter justice may require.
(f) In lieu of imposing an administrative penalty under this
section, the department shall allow a provider found to have
committed a minor violation specified by rule in accordance with
Subsection (d) to have a reasonable period of time that is not less
than 45 days after the date the department sends notice to the
provider of the violation to take corrective action regarding the
violation. The department may not allow time for corrective action
for any violation that is not a minor violation.
SECTION 16. (a) Not later than December 1, 2015, the
executive commissioner of the Health and Human Services Commission
shall adopt the rules necessary to implement the changes in law made
by this Act.
(b) Notwithstanding Section 142.017, Health and Safety
Code, as amended by this Act, a person is not required to hold a
license under Chapter 142, Health and Safety Code, to engage in the
business of habilitation services until January 1, 2016.
SECTION 17. The Department of Aging and Disability Services
may impose an administrative penalty in accordance with Section
161.088, Human Resources Code, as added by this Act, only for
conduct that occurs on or after the effective date of this Act.
SECTION 18. 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 19. This Act takes effect September 1, 2015.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 4001 was passed by the House on April
23, 2015, by the following vote: Yeas 134, Nays 7, 2 present, not
voting; and that the House concurred in Senate amendments to H.B.
No. 4001 on May 26, 2015, by the following vote: Yeas 136, Nays 6,
2 present, not voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 4001 was passed by the Senate, with
amendments, on May 22, 2015, by the following vote: Yeas 29, Nays
2.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor