By: Schwertner S.B. No. 933
(In the Senate - Filed February 16, 2017; March 1, 2017,
read first time and referred to Committee on Health & Human
Services; April 10, 2017, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 8, Nays 0;
April 10, 2017, sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR S.B. No. 933 By: Schwertner
A BILL TO BE ENTITLED
AN ACT
relating to the licensing of, the executive commissioner of the
Health and Human Services Commission's duties with respect to, and
the administrative penalties for home and community support
services agencies.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 142.006(a), (b), and (c), Health and
Safety Code, are amended to read as follows:
(a) The commission [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.
(b) A license issued under this chapter expires three [two]
years after the date of issuance. The executive commissioner by
rule shall [may] adopt a system under which licenses expire on
staggered [various] dates during each three-year [the two-year]
period. The commission shall prorate the license fee as
appropriate if the expiration date of a license changes as a result
of this subsection [For the year in which a license expiration date
is changed, the department shall prorate the license fee on a
monthly basis. Each license holder shall pay only that portion of
the license fee allocable to the number of months for which the
license is valid. A license holder shall pay the total license
renewal fee at the time of renewal. The department may issue an
initial license for a shorter term to conform expiration dates for a
locality or an applicant. The department may issue a temporary
license to an applicant for an initial license].
(c) The commission [department] may find that a home and
community support services agency has satisfied the requirements
for licensing if the agency is accredited by an accreditation
organization, such as The Joint Commission or the Community Health
Accreditation Program, and the commission [department] finds that
the accreditation organization has standards that meet or exceed
the requirements for licensing under this chapter. A license fee is
required of the home and community support services agency at the
time of a license application.
SECTION 2. Sections 142.010(a) and (b), Health and Safety
Code, are 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
$3,000 [$2,000] for a license to provide home health, hospice,
habilitation, or personal assistance services.
(b) The executive commissioner shall consider the size of
the home and community support services agency, the number of
clients served, the number of services provided, and the necessity
for review of other accreditation documentation in determining the
amount collected by the commission [department] for initial and
renewal license fees.
SECTION 3. Section 142.017, Health and Safety Code, is
amended by amending Subsections (a), (b), (c), (e), (i), and (j) and
adding Subsections (k) and (l) to read as follows:
(a) The commission [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.
(b) The penalty shall be not less than $100 or more than
$1,000 for each violation, except that the penalty shall be not less
than $100 or more than $5,000 for each violation that results in
actual harm or that constitutes an immediate threat to the health or
safety of a client. Each day of a violation that occurs before the
day on which the person receives written notice of the violation
from the commission [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 commission
[department] constitutes a separate violation.
(c) The executive commissioner by rule shall specify each
violation for which the commission [department] may assess an
administrative penalty. In determining which violations warrant
penalties, the commission [department] shall consider:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation and the
hazard of the violation to the health or safety of clients; and
(2) whether the affected home and community support
services agency had identified the violation as a part of its
internal quality assurance process and had made appropriate
progress on correction.
(e) Except as provided by Subsection (j), the executive
commissioner by rule shall provide the home and community support
services agency with a reasonable period of time following the
first day of a violation to correct the violation before the
commission [department] assesses an administrative penalty if a
plan of correction has been implemented.
(i) The commission [department] may not assess an
administrative penalty against a state agency.
(j) The commission [department] may assess an
administrative penalty without providing a reasonable period of
time to a home and community support services [the] agency to
correct the violation if the violation:
(1) represents a pattern of violation that results in
actual [serious] harm [or death];
(2) is widespread in scope and results in actual harm;
(3) is widespread in scope and constitutes a potential
for actual harm;
(4) [(2)] constitutes an immediate [a serious] threat
to the health or safety of a client;
(5) [(3)] substantially limits the agency's capacity
to provide care;
(6) [(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 commission [department];
(B) refuses to allow a representative of the
commission [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 commission [department] or the enforcement of
this chapter;
(D) wilfully interferes with a representative of
the commission [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
commission [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 commission [department] that the previously
submitted plan of correction is not acceptable;
(7) [(5)] is a violation of Section 142.0145; or
(8) [(6)] involves the rights of the elderly under
Chapter 102, Human Resources Code.
(k) The commission shall develop and use a system to record
and track the scope and severity of each violation of this chapter
or a rule adopted under this chapter for the purpose of assessing an
administrative penalty for the violation or taking some other
enforcement action against the appropriate home and community
support services agency to deter future violations. The system:
(1) must be comparable to the system used by the
Centers for Medicare and Medicaid Services to categorize the scope
and severity of violations for nursing homes; and
(2) may be modified, as appropriate, to reflect
changes in industry practice or changes made to the system used by
the Centers for Medicare and Medicaid Services.
(l) In this section:
(1) "Actual harm" means a negative outcome that
compromises a client's physical, mental, or emotional well-being.
(2) "Immediate threat to the health or safety of a
client" means a situation that causes, or is likely to cause,
serious injury, harm, or impairment to or the death of a client.
(3) "Pattern of violation" means repeated, but not
pervasive, failures of a home and community support services agency
to comply with this chapter or a rule adopted under this chapter
that:
(A) result in a violation; and
(B) are found throughout the services provided by
the agency or that affect or involve the same clients or agency
employees or volunteers.
(4) "Widespread in scope" means a violation of this
chapter or a rule adopted under this chapter that:
(A) is pervasive throughout the services
provided by the home and community support services agency; or
(B) represents a systemic failure by the home and
community support services agency that affects or has the potential
to affect a large portion of or all of the clients of the agency.
SECTION 4. As soon as practicable after the effective date
of this Act and after consulting with appropriate stakeholders, the
executive commissioner of the Health and Human Services Commission
shall develop and adopt rules necessary to implement the changes in
law made by this Act.
SECTION 5. The changes in law made by this Act apply only to
actions taken by the Health and Human Services Commission and
license holders under Chapter 142, Health and Safety Code, on or
after the effective date of this Act. An action taken before the
effective date of this Act is governed by the law in effect at that
time, and the former law is continued in effect for that purpose.
SECTION 6. This Act takes effect September 1, 2017.
* * * * *