S.B. No. 760
AN ACT
relating to access and assignment requirements for, support and
information regarding, and investigations of certain providers of
health care and long-term services.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Section 261.404, Family Code, as
amended by S.B. No. 219, Acts of the 84th Legislature, Regular
Session, 2015, is amended to read as follows:
Sec. 261.404. INVESTIGATIONS REGARDING CERTAIN CHILDREN
RECEIVING SERVICES FROM CERTAIN PROVIDERS [WITH MENTAL ILLNESS OR
AN INTELLECTUAL DISABILITY].
SECTION 2. Section 261.404, Family Code, as amended by S.B.
No. 219, Acts of the 84th Legislature, Regular Session, 2015, is
amended by amending Subsections (a) and (b) and adding Subsections
(a-1), (a-2), and (a-3) to read as follows:
(a) The department shall investigate a report of abuse,
neglect, or exploitation of a child receiving services from a
provider, as those terms are defined by Section 48.251, Human
Resources Code, or as otherwise defined by rule. The department
shall also investigate, under Subchapter F, Chapter 48, Human
Resources Code, a report of abuse, neglect, or exploitation of a
child receiving services from an officer, employee, agent,
contractor, or subcontractor of a home and community support
services agency licensed under Chapter 142, Health and Safety Code,
if the officer, employee, agent, contractor, or subcontractor is or
may be the person alleged to have committed the abuse, neglect, or
exploitation[:
[(1) in a facility operated by the Department of Aging
and Disability Services or a mental health facility operated by the
Department of State Health Services;
[(2) in or from a community center, a local mental
health authority, or a local intellectual and developmental
disability authority;
[(3) through a program providing services to that
child by contract with a facility operated by the Department of
Aging and Disability Services, a mental health facility operated by
the Department of State Health Services, a community center, a
local mental health authority, or a local intellectual and
developmental disability authority;
[(4) from a provider of home and community-based
services who contracts with the Department of Aging and Disability
Services; or
[(5) in a facility licensed under Chapter 252, Health
and Safety Code].
(a-1) For an investigation of a child living in a residence
owned, operated, or controlled by a provider of services under the
home and community-based services waiver program described by
Section 534.001(11)(B), Government Code, the department, in
accordance with Subchapter E, Chapter 48, Human Resources Code, may
provide emergency protective services necessary to immediately
protect the child from serious physical harm or death and, if
necessary, obtain an emergency order for protective services under
Section 48.208, Human Resources Code.
(a-2) For an investigation of a child living in a residence
owned, operated, or controlled by a provider of services under the
home and community-based services waiver program described by
Section 534.001(11)(B), Government Code, regardless of whether the
child is receiving services under that waiver program from the
provider, the department shall provide protective services to the
child in accordance with Subchapter E, Chapter 48, Human Resources
Code.
(a-3) For purposes of this section, Subchapters E and F,
Chapter 48, Human Resources Code, apply to an investigation of a
child and to the provision of protective services to that child in
the same manner those subchapters apply to an investigation of an
elderly person or person with a disability and the provision of
protective services to that person.
(b) The department shall investigate the report under rules
developed by the executive commissioner [with the advice and
assistance of the department, the Department of Aging and
Disability Services, and the Department of State Health Services].
SECTION 3. Section 531.0213, Government Code, is amended by
adding Subsections (b-1) and (e), amending Subsection (c), and
amending Subsection (d), as amended by S.B. No. 219, Acts of the
84th Legislature, Regular Session, 2015, to read as follows:
(b-1) The commission shall provide support and information
services required by this section through a network of entities
coordinated by the commission's office of the ombudsman or other
division of the commission designated by the executive commissioner
and composed of:
(1) the commission's office of the ombudsman or other
division of the commission designated by the executive commissioner
to coordinate the network;
(2) the office of the state long-term care ombudsman
required under Subchapter F, Chapter 101A, Human Resources Code;
(3) the division within the commission responsible for
oversight of Medicaid managed care contracts;
(4) area agencies on aging;
(5) aging and disability resource centers established
under the Aging and Disability Resource Center initiative funded in
part by the federal Administration on Aging and the Centers for
Medicare and Medicaid Services; and
(6) any other entity the executive commissioner
determines appropriate, including nonprofit organizations with
which the commission contracts under Subsection (c).
(c) The commission may provide support and information
services by contracting with [a] nonprofit organizations
[organization] that are [is] not involved in providing health care,
health insurance, or health benefits.
(d) As a part of the support and information services
required by this section, the commission [or nonprofit
organization] shall:
(1) operate a statewide toll-free assistance
telephone number that includes relay services for persons with
speech or hearing disabilities [TDD lines] and assistance for
persons who speak Spanish;
(2) intervene promptly with the state Medicaid office,
managed care organizations and providers, and any other appropriate
entity on behalf of a person who has an urgent need for medical
services;
(3) assist a person who is experiencing barriers in
the Medicaid application and enrollment process and refer the
person for further assistance if appropriate;
(4) educate persons so that they:
(A) understand the concept of managed care;
(B) understand their rights under Medicaid,
including grievance and appeal procedures; and
(C) are able to advocate for themselves;
(5) collect and maintain statistical information on a
regional basis regarding calls received by the assistance lines and
publish quarterly reports that:
(A) list the number of calls received by region;
(B) identify trends in delivery and access
problems;
(C) identify recurring barriers in the Medicaid
system; and
(D) indicate other problems identified with
Medicaid managed care; [and]
(6) assist the state Medicaid office and managed care
organizations and providers in identifying and correcting
problems, including site visits to affected regions if necessary;
(7) meet the needs of all current and future Medicaid
managed care recipients, including children receiving dental
benefits and other recipients receiving benefits, under the:
(A) STAR Medicaid managed care program;
(B) STAR + PLUS Medicaid managed care program,
including the Texas Dual Eligibles Integrated Care Demonstration
Project provided under that program;
(C) STAR Kids managed care program established
under Section 533.00253; and
(D) STAR Health program;
(8) incorporate support services for children
enrolled in the child health plan established under Chapter 62,
Health and Safety Code; and
(9) ensure that staff providing support and
information services receives sufficient training, including
training in the Medicare program for the purpose of assisting
recipients who are dually eligible for Medicare and Medicaid, and
has sufficient authority to resolve barriers experienced by
recipients to health care and long-term services and supports.
(e) The commission's office of the ombudsman, or other
division of the commission designated by the executive commissioner
to coordinate the network of entities responsible for providing
support and information services under this section, must be
sufficiently independent from other aspects of Medicaid managed
care to represent the best interests of recipients in problem
resolution.
SECTION 4. Section 533.005(a), Government Code, as amended
by S.B. No. 219, Acts of the 84th Legislature, Regular Session,
2015, is amended to read as follows:
(a) A contract between a managed care organization and the
commission for the organization to provide health care services to
recipients must contain:
(1) procedures to ensure accountability to the state
for the provision of health care services, including procedures for
financial reporting, quality assurance, utilization review, and
assurance of contract and subcontract compliance;
(2) capitation rates that ensure the cost-effective
provision of quality health care;
(3) a requirement that the managed care organization
provide ready access to a person who assists recipients in
resolving issues relating to enrollment, plan administration,
education and training, access to services, and grievance
procedures;
(4) a requirement that the managed care organization
provide ready access to a person who assists providers in resolving
issues relating to payment, plan administration, education and
training, and grievance procedures;
(5) a requirement that the managed care organization
provide information and referral about the availability of
educational, social, and other community services that could
benefit a recipient;
(6) procedures for recipient outreach and education;
(7) a requirement that the managed care organization
make payment to a physician or provider for health care services
rendered to a recipient under a managed care plan on any claim for
payment that is received with documentation reasonably necessary
for the managed care organization to process the claim:
(A) not later than:
(i) the 10th day after the date the claim is
received if the claim relates to services provided by a nursing
facility, intermediate care facility, or group home;
(ii) the 30th day after the date the claim
is received if the claim relates to the provision of long-term
services and supports not subject to Subparagraph (i); and
(iii) the 45th day after the date the claim
is received if the claim is not subject to Subparagraph (i) or (ii);
or
(B) within a period, not to exceed 60 days,
specified by a written agreement between the physician or provider
and the managed care organization;
(7-a) a requirement that the managed care organization
demonstrate to the commission that the organization pays claims
described by Subdivision (7)(A)(ii) on average not later than the
21st day after the date the claim is received by the organization;
(8) a requirement that the commission, on the date of a
recipient's enrollment in a managed care plan issued by the managed
care organization, inform the organization of the recipient's
Medicaid certification date;
(9) a requirement that the managed care organization
comply with Section 533.006 as a condition of contract retention
and renewal;
(10) a requirement that the managed care organization
provide the information required by Section 533.012 and otherwise
comply and cooperate with the commission's office of inspector
general and the office of the attorney general;
(11) a requirement that the managed care
organization's usages of out-of-network providers or groups of
out-of-network providers may not exceed limits for those usages
relating to total inpatient admissions, total outpatient services,
and emergency room admissions determined by the commission;
(12) if the commission finds that a managed care
organization has violated Subdivision (11), a requirement that the
managed care organization reimburse an out-of-network provider for
health care services at a rate that is equal to the allowable rate
for those services, as determined under Sections 32.028 and
32.0281, Human Resources Code;
(13) a requirement that, notwithstanding any other
law, including Sections 843.312 and 1301.052, Insurance Code, the
organization:
(A) use advanced practice registered nurses and
physician assistants in addition to physicians as primary care
providers to increase the availability of primary care providers in
the organization's provider network; and
(B) treat advanced practice registered nurses
and physician assistants in the same manner as primary care
physicians with regard to:
(i) selection and assignment as primary
care providers;
(ii) inclusion as primary care providers in
the organization's provider network; and
(iii) inclusion as primary care providers
in any provider network directory maintained by the organization;
(14) a requirement that the managed care organization
reimburse a federally qualified health center or rural health
clinic for health care services provided to a recipient outside of
regular business hours, including on a weekend day or holiday, at a
rate that is equal to the allowable rate for those services as
determined under Section 32.028, Human Resources Code, if the
recipient does not have a referral from the recipient's primary
care physician;
(15) a requirement that the managed care organization
develop, implement, and maintain a system for tracking and
resolving all provider appeals related to claims payment, including
a process that will require:
(A) a tracking mechanism to document the status
and final disposition of each provider's claims payment appeal;
(B) the contracting with physicians who are not
network providers and who are of the same or related specialty as
the appealing physician to resolve claims disputes related to
denial on the basis of medical necessity that remain unresolved
subsequent to a provider appeal;
(C) the determination of the physician resolving
the dispute to be binding on the managed care organization and
provider; and
(D) the managed care organization to allow a
provider with a claim that has not been paid before the time
prescribed by Subdivision (7)(A)(ii) to initiate an appeal of that
claim;
(16) a requirement that a medical director who is
authorized to make medical necessity determinations is available to
the region where the managed care organization provides health care
services;
(17) a requirement that the managed care organization
ensure that a medical director and patient care coordinators and
provider and recipient support services personnel are located in
the South Texas service region, if the managed care organization
provides a managed care plan in that region;
(18) a requirement that the managed care organization
provide special programs and materials for recipients with limited
English proficiency or low literacy skills;
(19) a requirement that the managed care organization
develop and establish a process for responding to provider appeals
in the region where the organization provides health care services;
(20) a requirement that the managed care organization:
(A) develop and submit to the commission, before
the organization begins to provide health care services to
recipients, a comprehensive plan that describes how the
organization's provider network complies with the provider access
standards established under Section 533.0061 [will provide
recipients sufficient access to:
[(i) preventive care;
[(ii) primary care;
[(iii) specialty care;
[(iv) after-hours urgent care;
[(v) chronic care;
[(vi) long-term services and supports;
[(vii) nursing services; and
[(viii) therapy services, including
services provided in a clinical setting or in a home or
community-based setting]; [and]
(B) as a condition of contract retention and
renewal:
(i) continue to comply with the provider
access standards established under Section 533.0061; and
(ii) make substantial efforts, as
determined by the commission, to mitigate or remedy any
noncompliance with the provider access standards established under
Section 533.0061;
(C) pay liquidated damages for each failure, as
determined by the commission, to comply with the provider access
standards established under Section 533.0061 in amounts that are
reasonably related to the noncompliance; and
(D) regularly, as determined by the commission,
submit to the commission and make available to the public a report
containing data on the sufficiency of the organization's provider
network with regard to providing the care and services described
under Section 533.0061(a) [Paragraph (A)] and specific data with
respect to access to primary care, specialty care, long-term
services and supports, nursing services, and therapy services
[Paragraphs (A)(iii), (vi), (vii), and (viii)] on the average
length of time between:
(i) the date a provider requests prior
authorization [makes a referral] for the care or service and the
date the organization approves or denies the request [referral];
and
(ii) the date the organization approves a
request for prior authorization [referral] for the care or service
and the date the care or service is initiated;
(21) a requirement that the managed care organization
demonstrate to the commission, before the organization begins to
provide health care services to recipients, that, subject to the
provider access standards established under Section 533.0061:
(A) the organization's provider network has the
capacity to serve the number of recipients expected to enroll in a
managed care plan offered by the organization;
(B) the organization's provider network
includes:
(i) a sufficient number of primary care
providers;
(ii) a sufficient variety of provider
types;
(iii) a sufficient number of providers of
long-term services and supports and specialty pediatric care
providers of home and community-based services; and
(iv) providers located throughout the
region where the organization will provide health care services;
and
(C) health care services will be accessible to
recipients through the organization's provider network to a
comparable extent that health care services would be available to
recipients under a fee-for-service or primary care case management
model of Medicaid managed care;
(22) a requirement that the managed care organization
develop a monitoring program for measuring the quality of the
health care services provided by the organization's provider
network that:
(A) incorporates the National Committee for
Quality Assurance's Healthcare Effectiveness Data and Information
Set (HEDIS) measures;
(B) focuses on measuring outcomes; and
(C) includes the collection and analysis of
clinical data relating to prenatal care, preventive care, mental
health care, and the treatment of acute and chronic health
conditions and substance abuse;
(23) subject to Subsection (a-1), a requirement that
the managed care organization develop, implement, and maintain an
outpatient pharmacy benefit plan for its enrolled recipients:
(A) that exclusively employs the vendor drug
program formulary and preserves the state's ability to reduce
waste, fraud, and abuse under Medicaid;
(B) that adheres to the applicable preferred drug
list adopted by the commission under Section 531.072;
(C) that includes the prior authorization
procedures and requirements prescribed by or implemented under
Sections 531.073(b), (c), and (g) for the vendor drug program;
(D) for purposes of which the managed care
organization:
(i) may not negotiate or collect rebates
associated with pharmacy products on the vendor drug program
formulary; and
(ii) may not receive drug rebate or pricing
information that is confidential under Section 531.071;
(E) that complies with the prohibition under
Section 531.089;
(F) under which the managed care organization may
not prohibit, limit, or interfere with a recipient's selection of a
pharmacy or pharmacist of the recipient's choice for the provision
of pharmaceutical services under the plan through the imposition of
different copayments;
(G) that allows the managed care organization or
any subcontracted pharmacy benefit manager to contract with a
pharmacist or pharmacy providers separately for specialty pharmacy
services, except that:
(i) the managed care organization and
pharmacy benefit manager are prohibited from allowing exclusive
contracts with a specialty pharmacy owned wholly or partly by the
pharmacy benefit manager responsible for the administration of the
pharmacy benefit program; and
(ii) the managed care organization and
pharmacy benefit manager must adopt policies and procedures for
reclassifying prescription drugs from retail to specialty drugs,
and those policies and procedures must be consistent with rules
adopted by the executive commissioner and include notice to network
pharmacy providers from the managed care organization;
(H) under which the managed care organization may
not prevent a pharmacy or pharmacist from participating as a
provider if the pharmacy or pharmacist agrees to comply with the
financial terms and conditions of the contract as well as other
reasonable administrative and professional terms and conditions of
the contract;
(I) under which the managed care organization may
include mail-order pharmacies in its networks, but may not require
enrolled recipients to use those pharmacies, and may not charge an
enrolled recipient who opts to use this service a fee, including
postage and handling fees;
(J) under which the managed care organization or
pharmacy benefit manager, as applicable, must pay claims in
accordance with Section 843.339, Insurance Code; and
(K) under which the managed care organization or
pharmacy benefit manager, as applicable:
(i) to place a drug on a maximum allowable
cost list, must ensure that:
(a) the drug is listed as "A" or "B"
rated in the most recent version of the United States Food and Drug
Administration's Approved Drug Products with Therapeutic
Equivalence Evaluations, also known as the Orange Book, has an "NR"
or "NA" rating or a similar rating by a nationally recognized
reference; and
(b) the drug is generally available
for purchase by pharmacies in the state from national or regional
wholesalers and is not obsolete;
(ii) must provide to a network pharmacy
provider, at the time a contract is entered into or renewed with the
network pharmacy provider, the sources used to determine the
maximum allowable cost pricing for the maximum allowable cost list
specific to that provider;
(iii) must review and update maximum
allowable cost price information at least once every seven days to
reflect any modification of maximum allowable cost pricing;
(iv) must, in formulating the maximum
allowable cost price for a drug, use only the price of the drug and
drugs listed as therapeutically equivalent in the most recent
version of the United States Food and Drug Administration's
Approved Drug Products with Therapeutic Equivalence Evaluations,
also known as the Orange Book;
(v) must establish a process for
eliminating products from the maximum allowable cost list or
modifying maximum allowable cost prices in a timely manner to
remain consistent with pricing changes and product availability in
the marketplace;
(vi) must:
(a) provide a procedure under which a
network pharmacy provider may challenge a listed maximum allowable
cost price for a drug;
(b) respond to a challenge not later
than the 15th day after the date the challenge is made;
(c) if the challenge is successful,
make an adjustment in the drug price effective on the date the
challenge is resolved, and make the adjustment applicable to all
similarly situated network pharmacy providers, as determined by the
managed care organization or pharmacy benefit manager, as
appropriate;
(d) if the challenge is denied,
provide the reason for the denial; and
(e) report to the commission every 90
days the total number of challenges that were made and denied in the
preceding 90-day period for each maximum allowable cost list drug
for which a challenge was denied during the period;
(vii) must notify the commission not later
than the 21st day after implementing a practice of using a maximum
allowable cost list for drugs dispensed at retail but not by mail;
and
(viii) must provide a process for each of
its network pharmacy providers to readily access the maximum
allowable cost list specific to that provider;
(24) a requirement that the managed care organization
and any entity with which the managed care organization contracts
for the performance of services under a managed care plan disclose,
at no cost, to the commission and, on request, the office of the
attorney general all discounts, incentives, rebates, fees, free
goods, bundling arrangements, and other agreements affecting the
net cost of goods or services provided under the plan; [and]
(25) a requirement that the managed care organization
not implement significant, nonnegotiated, across-the-board
provider reimbursement rate reductions unless:
(A) subject to Subsection (a-3), the
organization has the prior approval of the commission to make the
reduction; or
(B) the rate reductions are based on changes to
the Medicaid fee schedule or cost containment initiatives
implemented by the commission; and
(26) a requirement that the managed care organization
make initial and subsequent primary care provider assignments and
changes.
SECTION 5. Subchapter A, Chapter 533, Government Code, is
amended by adding Sections 533.0061, 533.0062, 533.0063, and
533.0064 to read as follows:
Sec. 533.0061. PROVIDER ACCESS STANDARDS; REPORT. (a) The
commission shall establish minimum provider access standards for
the provider network of a managed care organization that contracts
with the commission to provide health care services to recipients.
The access standards must ensure that a managed care organization
provides recipients sufficient access to:
(1) preventive care;
(2) primary care;
(3) specialty care;
(4) after-hours urgent care;
(5) chronic care;
(6) long-term services and supports;
(7) nursing services;
(8) therapy services, including services provided in a
clinical setting or in a home or community-based setting; and
(9) any other services identified by the commission.
(b) To the extent it is feasible, the provider access
standards established under this section must:
(1) distinguish between access to providers in urban
and rural settings; and
(2) consider the number and geographic distribution of
Medicaid-enrolled providers in a particular service delivery area.
(c) The commission shall biennially submit to the
legislature and make available to the public a report containing
information and statistics about recipient access to providers
through the provider networks of the managed care organizations and
managed care organization compliance with contractual obligations
related to provider access standards established under this
section. The report must contain:
(1) a compilation and analysis of information
submitted to the commission under Section 533.005(a)(20)(D);
(2) for both primary care providers and specialty
providers, information on provider-to-recipient ratios in an
organization's provider network, as well as benchmark ratios to
indicate whether deficiencies exist in a given network; and
(3) a description of, and analysis of the results
from, the commission's monitoring process established under
Section 533.007(l).
Sec. 533.0062. PENALTIES AND OTHER REMEDIES FOR FAILURE TO
COMPLY WITH PROVIDER ACCESS STANDARDS. If a managed care
organization that has contracted with the commission to provide
health care services to recipients fails to comply with one or more
provider access standards established under Section 533.0061 and
the commission determines the organization has not made substantial
efforts to mitigate or remedy the noncompliance, the commission:
(1) may:
(A) elect to not retain or renew the commission's
contract with the organization; or
(B) require the organization to pay liquidated
damages in accordance with Section 533.005(a)(20)(C); and
(2) shall suspend default enrollment to the
organization in a given service delivery area for at least one
calendar quarter if the organization's noncompliance occurs in the
service delivery area for two consecutive calendar quarters.
Sec. 533.0063. PROVIDER NETWORK DIRECTORIES. (a) The
commission shall ensure that a managed care organization that
contracts with the commission to provide health care services to
recipients:
(1) posts on the organization's Internet website:
(A) the organization's provider network
directory; and
(B) a direct telephone number and e-mail address
through which a recipient enrolled in the organization's managed
care plan or the recipient's provider may contact the organization
to receive assistance with:
(i) identifying in-network providers and
services available to the recipient; and
(ii) scheduling an appointment for the
recipient with an available in-network provider or to access
available in-network services; and
(2) updates the online directory required under
Subdivision (1)(A) at least monthly.
(b) Except as provided by Subsection (c), a managed care
organization is required to send a paper form of the organization's
provider network directory for the program only to a recipient who
requests to receive the directory in paper form.
(c) A managed care organization participating in the STAR +
PLUS Medicaid managed care program or STAR Kids Medicaid managed
care program established under Section 533.00253 shall, for a
recipient in that program, issue a provider network directory for
the program in paper form unless the recipient opts out of receiving
the directory in paper form.
Sec. 533.0064. EXPEDITED CREDENTIALING PROCESS FOR CERTAIN
PROVIDERS. (a) In this section, "applicant provider" means a
physician or other health care provider applying for expedited
credentialing under this section.
(b) Notwithstanding any other law and subject to Subsection
(c), a managed care organization that contracts with the commission
to provide health services to recipients shall, in accordance with
this section, establish and implement an expedited credentialing
process that would allow applicant providers to provide services to
recipients on a provisional basis.
(c) The commission shall identify the types of providers for
which an expedited credentialing process must be established and
implemented under this section.
(d) To qualify for expedited credentialing under this
section and payment under Subsection (e), an applicant provider
must:
(1) be a member of an established health care provider
group that has a current contract in force with a managed care
organization described by Subsection (b);
(2) be a Medicaid-enrolled provider;
(3) agree to comply with the terms of the contract
described by Subdivision (1); and
(4) submit all documentation and other information
required by the managed care organization as necessary to enable
the organization to begin the credentialing process required by the
organization to include a provider in the organization's provider
network.
(e) On submission by the applicant provider of the
information required by the managed care organization under
Subsection (d), and for Medicaid reimbursement purposes only, the
organization shall treat the provider as if the provider were in the
organization's provider network when the provider provides
services to recipients, subject to Subsections (f) and (g).
(f) Except as provided by Subsection (g), if, on completion
of the credentialing process, a managed care organization
determines that the applicant provider does not meet the
organization's credentialing requirements, the organization may
recover from the provider the difference between payments for
in-network benefits and out-of-network benefits.
(g) If a managed care organization determines on completion
of the credentialing process that the applicant provider does not
meet the organization's credentialing requirements and that the
provider made fraudulent claims in the provider's application for
credentialing, the organization may recover from the provider the
entire amount of any payment paid to the provider.
SECTION 6. Section 533.007, Government Code, is amended by
adding Subsection (l) to read as follows:
(l) The commission shall establish and implement a process
for the direct monitoring of a managed care organization's provider
network and providers in the network. The process:
(1) must be used to ensure compliance with contractual
obligations related to:
(A) the number of providers accepting new
patients under the Medicaid managed care program; and
(B) the length of time a recipient must wait
between scheduling an appointment with a provider and receiving
treatment from the provider;
(2) may use reasonable methods to ensure compliance
with contractual obligations, including telephone calls made at
random times without notice to assess the availability of providers
and services to new and existing recipients; and
(3) may be implemented directly by the commission or
through a contractor.
SECTION 7. Section 142.009(c), Health and Safety Code, is
amended to read as follows:
(c) The department or its authorized representative shall
investigate each complaint received regarding the provision of home
health, hospice, 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, 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, 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, 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, or personal assistance services.
SECTION 8. Section 260A.002, Health and Safety Code, is
amended by adding Subsection (a-1) to read as follows:
(a-1) Notwithstanding any other provision of this chapter,
a report made under this section that a provider is or may be
alleged to have committed abuse, neglect, or exploitation of a
resident of a facility other than a prescribed pediatric extended
care center shall be investigated by the Department of Family and
Protective Services in accordance with Subchapter F, Chapter 48,
Human Resources Code, and this chapter does not apply to that
investigation. In this subsection, "facility" and "provider" have
the meanings assigned by Section 48.251, Human Resources Code.
SECTION 9. Section 48.002(a), Human Resources Code, is
amended by adding Subdivision (11) to read as follows:
(11) "Home and community-based services" has the
meaning assigned by Section 48.251.
SECTION 10. Section 48.002(b), Human Resources Code, as
amended by S.B. No. 219, Acts of the 84th Legislature, Regular
Session, 2015, is amended to read as follows:
(b) The definitions of "abuse," "neglect," [and]
"exploitation," and "an individual receiving services" adopted by
the executive commissioner as prescribed by Section 48.251(b)
[48.251] apply to an investigation of abuse, neglect, or
exploitation conducted under Subchapter F [or H].
SECTION 11. Section 48.003, Human Resources Code, is
amended to read as follows:
Sec. 48.003. INVESTIGATIONS IN NURSING FACILITIES [HOMES],
ASSISTED LIVING FACILITIES, AND SIMILAR FACILITIES. (a) Except as
provided by Subsection (c), this [This] chapter does not apply if
the alleged or suspected abuse, neglect, or exploitation occurs in
a facility licensed under Chapter 242 or 247, Health and Safety
Code.
(b) Alleged or suspected abuse, neglect, or exploitation
that occurs in a facility licensed under Chapter 242 or 247, Health
and Safety Code, is governed by Chapter 260A, Health and Safety
Code, except as otherwise provided by Subsection (c).
(c) Subchapter F applies to an investigation of alleged or
suspected abuse, neglect, or exploitation in which a provider of
home and community-based services is or may be alleged to have
committed the abuse, neglect, or exploitation, regardless of
whether the facility in which those services were provided is
licensed under Chapter 242 or 247, Health and Safety Code.
SECTION 12. Sections 48.051(a) and (b), Human Resources
Code, as amended by S.B. No. 219, Acts of the 84th Legislature,
Regular Session, 2015, are amended to read as follows:
(a) Except as prescribed by Subsection (b), a person having
cause to believe that an elderly person, a [or] person with a
disability, or an individual receiving services from a provider as
described by Subchapter F is in the state of abuse, neglect, or
exploitation[, including a person with a disability who is
receiving services as described by Section 48.252,] shall report
the information required by Subsection (d) immediately to the
department.
(b) If a person has cause to believe that an elderly person
or a person with a disability, other than an individual [a person
with a disability] receiving services from a provider as described
by Subchapter F [Section 48.252], has been abused, neglected, or
exploited in a facility operated, licensed, certified, or
registered by a state agency, the person shall report the
information to the state agency that operates, licenses, certifies,
or registers the facility for investigation by that agency.
SECTION 13. Section 48.103, Human Resources Code, is
amended by amending Subsection (a), as amended by S.B. No. 219, Acts
of the 84th Legislature, Regular Session, 2015, and adding
Subsection (c) to read as follows:
(a) Except as otherwise provided by Subsection (c), on [On]
determining after an investigation that an elderly person or a
person with a disability has been abused, exploited, or neglected
by an employee of a home and community support services agency
licensed under Chapter 142, Health and Safety Code, the department
shall:
(1) notify the state agency responsible for licensing
the home and community support services agency of the department's
determination;
(2) notify any health and human services agency, as
defined by Section 531.001, Government Code, that contracts with
the home and community support services agency for the delivery of
health care services of the department's determination; and
(3) provide to the licensing state agency and any
contracting health and human services agency access to the
department's records or documents relating to the department's
investigation.
(c) This section does not apply to an investigation of
alleged or suspected abuse, neglect, or exploitation in which a
provider, as defined by Section 48.251, is or may be alleged to have
committed the abuse, neglect, or exploitation. An investigation
described by this subsection is governed by Subchapter F.
SECTION 14. Section 48.151(e), Human Resources Code, is
amended to read as follows:
(e) This section does not apply to investigations conducted
under Subchapter F [or H].
SECTION 15. Section 48.201, Human Resources Code, as
amended by S.B. No. 219, Acts of the 84th Legislature, Regular
Session, 2015, is amended to read as follows:
Sec. 48.201. APPLICATION OF SUBCHAPTER. Except as
otherwise provided, this subchapter does not apply to an
investigation conducted under Subchapter F [or H].
SECTION 16. Subchapter F, Chapter 48, Human Resources Code,
as amended by S.B. No. 219, Acts of the 84th Legislature, Regular
Session, 2015, is amended to read as follows:
SUBCHAPTER F. INVESTIGATIONS OF ABUSE, NEGLECT, OR EXPLOITATION OF
INDIVIDUALS RECEIVING SERVICES FROM CERTAIN PROVIDERS [IN CERTAIN
FACILITIES, COMMUNITY CENTERS, AND LOCAL MENTAL HEALTH AND
INTELLECTUAL AND DEVELOPMENTAL DISABILITY AUTHORITIES]
Sec. 48.251. DEFINITIONS. (a) In this subchapter:
(1) "Behavioral health services" means:
(A) mental health services, as defined by Section
531.002, Health and Safety Code; and
(B) interventions provided to treat chemical
dependency, as defined by Section 461A.002, Health and Safety Code.
(2) "Community center" has the meaning assigned by
Section 531.002, Health and Safety Code.
(3) "Facility" means:
(A) a facility listed in Section 532.001(b) or
532A.001(b), Health and Safety Code, including community services
operated by the Department of State Health Services or Department
of Aging and Disability Services, as described by those sections,
or a person contracting with a health and human services agency to
provide inpatient mental health services; and
(B) a facility licensed under Chapter 252, Health
and Safety Code.
(4) "Health and human services agency" has the meaning
assigned by Section 531.001, Government Code.
(5) "Home and community-based services" means
services provided in the home or community in accordance with 42
U.S.C. Section 1315, 42 U.S.C. Section 1315a, 42 U.S.C. Section
1396a, or 42 U.S.C. Section 1396n, and as otherwise provided by
department rule.
(6) "Local intellectual and developmental disability
authority" has the meaning assigned by Section 531.002, Health and
Safety Code.
(7) "Local mental health authority" has the meaning
assigned by Section 531.002, Health and Safety Code.
(8) "Managed care organization" has the meaning
assigned by Section 533.001, Government Code.
(9) "Provider" means:
(A) a facility;
(B) a community center, local mental health
authority, and local intellectual and developmental disability
authority;
(C) a person who contracts with a health and
human services agency or managed care organization to provide home
and community-based services;
(D) a person who contracts with a Medicaid
managed care organization to provide behavioral health services;
(E) a managed care organization;
(F) an officer, employee, agent, contractor, or
subcontractor of a person or entity listed in Paragraphs (A)-(E);
and
(G) an employee, fiscal agent, case manager, or
service coordinator of an individual employer participating in the
consumer-directed service option, as defined by Section 531.051,
Government Code.
(b) The executive commissioner by rule shall adopt
definitions of "abuse," "neglect," "exploitation," and "an
individual receiving services" for purposes of this subchapter and
["exploitation" to govern] investigations conducted under this
subchapter [and Subchapter H].
Sec. 48.252. INVESTIGATION OF REPORTS OF ABUSE, NEGLECT, OR
EXPLOITATION BY PROVIDER [IN CERTAIN FACILITIES AND IN COMMUNITY
CENTERS]. (a) The department shall receive and, except as
provided by Subsection (b), shall investigate under this subchapter
reports of the abuse, neglect, or exploitation of an individual
[with a disability] receiving services if the person alleged or
suspected to have committed the abuse, neglect, or exploitation is
a provider[:
[(1) in:
[(A) a mental health facility operated by the
Department of State Health Services; or
[(B) a facility licensed under Chapter 252,
Health and Safety Code;
[(2) in or from a community center, a local mental
health authority, or a local intellectual and developmental
disability authority; or
[(3) through a program providing services to that
person by contract with a mental health facility operated by the
Department of State Health Services, a community center, a local
mental health authority, or a local intellectual and developmental
disability authority].
(b) The department may not [shall receive and shall]
investigate under this subchapter reports of [the] abuse, neglect,
or exploitation alleged or suspected to have been committed by a
provider that is operated, licensed, certified, or registered by a
state agency that has authority under this chapter or other law to
investigate reports of abuse, neglect, or exploitation of an
individual by the provider. The department shall forward any
report of abuse, neglect, or exploitation alleged or suspected to
have been committed by a provider described by this subsection to
the appropriate state agency for investigation [of an individual
with a disability receiving services:
[(1) in a state supported living center or the ICF-IID
component of the Rio Grande State Center; or
[(2) through a program providing services to that
person by contract with a state supported living center or the
ICF-IID component of the Rio Grande State Center].
(c) The department shall receive and investigate under this
subchapter reports of abuse, neglect, or exploitation of an
individual who lives in a residence that is owned, operated, or
controlled by a provider who provides home and community-based
services under the home and community-based services waiver program
described by Section 534.001(11)(B), Government Code, regardless
of whether the individual is receiving services under that waiver
program from the provider. [The executive commissioner by rule
shall define who is "an individual with a disability receiving
services."
[(d) In this section, "community center," "local mental
health authority," and "local intellectual and developmental
disability authority" have the meanings assigned by Section
531.002, Health and Safety Code.]
Sec. 48.253. ACTION ON REPORT. (a) On receipt by the
department of a report of alleged abuse, neglect, or exploitation
under this subchapter, the department shall initiate a prompt and
thorough investigation as needed to evaluate the accuracy of the
report and to assess the need for emergency protective services,
unless the department, in accordance with rules adopted under this
subchapter, determines that the report:
(1) is frivolous or patently without a factual basis;
or
(2) does not concern abuse, neglect, or exploitation.
(b) After receiving a report that alleges that a provider is
or may be the person who committed the alleged abuse, neglect, or
exploitation, the department shall notify the provider and the
appropriate health and human services agency in accordance with
rules adopted by the executive commissioner.
(c) The provider identified under Subsection (b) shall:
(1) cooperate completely with an investigation
conducted under this subchapter; and
(2) provide the department complete access during an
investigation to:
(A) all sites owned, operated, or controlled by
the provider; and
(B) clients and client records.
(d) The executive commissioner shall adopt rules governing
investigations conducted under this subchapter.
Sec. 48.254. FORWARDING OF CERTAIN REPORTS. (a) The
executive commissioner by rule shall establish procedures for the
department to use to [In accordance with department rules, the
department shall] forward a copy of the initial intake report and a
copy of the completed provider investigation report relating to
alleged or suspected abuse, neglect, or exploitation to the
appropriate provider and health and human services agency
[facility, community center, local mental health authority, local
intellectual and developmental disability authority, or program
providing mental health or intellectual disability services under
contract with the facility, community center, or authority].
(b) The department shall redact from an initial intake
report and from the copy of the completed provider investigation
report any identifying information contained in the report relating
to the person who reported the alleged or suspected abuse, neglect,
or exploitation under Section 48.051.
(c) A provider that receives a completed investigation
report under Subsection (a) shall forward the report to the managed
care organization with which the provider contracts for services
for the alleged victim.
Sec. 48.255. RULES FOR INVESTIGATIONS UNDER THIS
SUBCHAPTER. (a) The executive commissioner [department, the
Department of Aging and Disability Services, and the Department of
State Health Services] shall adopt [develop] rules to:
(1) prioritize investigations conducted under this
subchapter with the primary criterion being whether there is a risk
that a delay in the investigation will impede the collection of
evidence in that investigation;
(2) [facilitate investigations in state mental health
facilities and state supported living centers.
[(b) The executive commissioner by rule shall] establish
procedures for resolving disagreements between the department and
health and human services agencies [the Department of Aging and
Disability Services or the Department of State Health Services]
concerning the department's investigation findings; and
(3) provide for an appeals process by the department
for the alleged victim of abuse, neglect, or exploitation.
(b) [(c) The department, the Department of Aging and
Disability Services, and the Department of State Health Services
shall develop and propose to the executive commissioner rules to
facilitate investigations in community centers, local mental
health authorities, and local intellectual and developmental
disability authorities.
[(c-1) The executive commissioner shall adopt rules
regarding investigations in a facility licensed under Chapter 252,
Health and Safety Code, to ensure that those investigations are as
consistent as practicable with other investigations conducted
under this subchapter.
[(d)] A confirmed investigation finding by the department
may not be changed by the administrator [a superintendent] of a
[state mental health] facility, [by a director of a state supported
living center, by a director of] a community center, [or by] a local
mental health authority, or a local intellectual and developmental
disability authority.
[(e) The executive commissioner shall provide by rule for an
appeals process by the alleged victim of abuse, neglect, or
exploitation under this section.
[(f) The executive commissioner by rule may assign
priorities to an investigation conducted by the department under
this section. The primary criterion used by the executive
commissioner in assigning a priority must be the risk that a delay
in the investigation will impede the collection of evidence.]
Sec. 48.256. SHARING PROVIDER INFORMATION. (a) The
executive commissioner shall adopt rules that prescribe the
appropriate manner in which health and human services agencies and
managed care organizations provide the department with information
necessary to facilitate identification of individuals receiving
services from providers and to facilitate notification of providers
by the department.
(b) The executive commissioner shall adopt rules requiring
a provider to provide information to the administering health and
human services agency necessary to facilitate identification by the
department of individuals receiving services from providers and to
facilitate notification of providers by the department.
(c) A provider of home and community-based services under
the home and community-based services waiver program described by
Section 534.001(11)(B), Government Code, shall post in a
conspicuous location inside any residence owned, operated, or
controlled by the provider in which home and community-based waiver
services are provided, a sign that states:
(1) the name, address, and telephone number of the
provider;
(2) the effective date of the provider's contract with
the applicable health and human services agency to provide home and
community-based services; and
(3) the name of the legal entity that contracted with
the applicable health and human services agency to provide those
services.
Sec. 48.257. RETALIATION PROHIBITED. (a) A provider of
home and community-based services may not retaliate against a
person for filing a report or providing information in good faith
relating to the possible abuse, neglect, or exploitation of an
individual receiving services.
(b) This section does not prohibit a provider of home and
community-based services from terminating an employee for a reason
other than retaliation.
Sec. 48.258. [SINGLE] TRACKING SYSTEM FOR REPORTS AND
INVESTIGATIONS. (a) The health and human services agencies
[department, the Department of Aging and Disability Services, and
the Department of State Health Services] shall, at the direction of
the executive commissioner, jointly develop and implement a
[single] system to track reports and investigations under this
subchapter.
(b) To facilitate implementation of the system, the health
and human services agencies [department, the Department of Aging
and Disability Services, and the Department of State Health
Services] shall use appropriate methods of measuring the number and
outcome of reports and investigations under this subchapter.
SECTION 17. Section 48.301, Human Resources Code, is
amended by amending Subsection (a), as amended by S.B. No. 219, Acts
of the 84th Legislature, Regular Session, 2015, and adding
Subsection (a-1) to read as follows:
(a) If the department receives a report of suspected abuse,
neglect, or exploitation of an elderly person or a person with a
disability[, other than a person with a disability who is]
receiving services [as described by Section 48.252,] in a facility
operated, licensed, certified, or registered by a state agency, the
department shall refer the report to that agency.
(a-1) This subchapter does not apply to a report of
suspected abuse, neglect, or exploitation of an individual
receiving services from a provider as described by Subchapter F.
SECTION 18. Sections 48.401(1) and (3), Human Resources
Code, are amended to read as follows:
(1) "Agency" means:
(A) an entity licensed under Chapter 142, Health
and Safety Code;
(B) a person exempt from licensing under Section
142.003(a)(19), Health and Safety Code;
(C) a facility licensed under Chapter 252, Health
and Safety Code; or
(D) a provider [an entity] investigated by the
department under Subchapter F or under Section 261.404, Family
Code.
(3) "Employee" means a person who:
(A) works for:
(i) an agency; or
(ii) an individual employer participating
in the consumer-directed service option, as defined by Section
531.051, Government Code;
(B) provides personal care services, active
treatment, or any other [personal] services to an individual
receiving agency services, an individual who is a child for whom an
investigation is authorized under Section 261.404, Family Code, or
an individual receiving services through the consumer-directed
service option, as defined by Section 531.051, Government Code; and
(C) is not licensed by the state to perform the
services the person performs for the agency or the individual
employer participating in the consumer-directed service option, as
defined by Section 531.051, Government Code.
SECTION 19. The following are repealed:
(1) Section 261.404(f), Family Code, as amended by
S.B. No. 219, Acts of the 84th Legislature, Regular Session, 2015;
and
(2) Subchapter H, Chapter 48, Human Resources Code.
SECTION 20. (a) The Health and Human Services Commission,
in a contract between the commission and a managed care
organization under Chapter 533, Government Code, that is entered
into or renewed on or after the effective date of this Act, shall
require that the managed care organization comply with:
(1) Section 533.005(a), Government Code, as amended by
this Act;
(2) the standards established under Section
533.0061(a), Government Code, as added by this Act; and
(3) Section 533.0063, Government Code, as added by
this Act.
(b) The Health and Human Services Commission shall seek to
amend contracts entered into with managed care organizations under
Chapter 533, Government Code, before the effective date of this Act
to require that those managed care organizations comply with the
provisions specified in Subsection (a) of this section. To the
extent of a conflict between those provisions and a provision of a
contract with a managed care organization entered into before the
effective date of this Act, the contract provision prevails.
SECTION 21. The Health and Human Services Commission shall
submit to the legislature the initial report required under Section
533.0061(c), Government Code, as added by this Act, not later than
December 1, 2016.
SECTION 22. 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 23. This Act takes effect September 1, 2015.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 760 passed the Senate on
April 7, 2015, by the following vote: Yeas 31, Nays 0; and that
the Senate concurred in House amendments on May 28, 2015, by the
following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 760 passed the House, with
amendments, on May 22, 2015, by the following vote: Yeas 140,
Nays 0, two present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor