By: Guillen H.B. No. 4110
A BILL TO BE ENTITLED
AN ACT
relating to certain administrative penalties and procedures
associated with aging, community-based, and long-term care service
providers.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 161.089, Human Resources Code, is
amended by amending Subsections (b), (c), (c-1), (e), (f). (g), and
(h) and adding Subsections (g-1) and (g-2) to read as follows:
(b) The commission 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, except that an administrative penalty may not be
assessed for minor violations unless those violations are of a
continuing nature or are not corrected by the provider. If the
commission assesses an administrative penalty against a provider
for a violation of a law or rule, the commission may not impose a
payment hold against, recoup past payments from, or otherwise
withhold contract payments from the provider for the same violation
of a law or rule unless the provider has committed fraud, waste, or
abuse. The commission may impose a referral hold in lieu of an
administrative penalty assessed under this section.
(c) The [After consulting with appropriate stakeholders,
the] executive commissioner by rule shall [develop and adopt rules
regarding the imposition of administrative penalties under this
section. The rules must]:
(1) specify each violation that warrants [the types of
violations that warrant] imposition of an administrative penalty
after consideration of:
(A) the seriousness of the violation, including
the nature, circumstances, extent, and gravity of the violation and
the hazard of the violation to the health and safety of an
individual; and
(B) whether the provider previously identified
the violation as part of their internal quality assurance process
and made appropriate progress on correction;
(2) establish a schedule of appropriate and graduated
penalties for each [progressive administrative penalties in
accordance with the relative type, frequency, and seriousness of a]
violation based on:
(A) the seriousness of the violation, including
the nature, circumstances, extent, and gravity of the violation and
the hazard of the violation to the health and safety of an
individual;
(B) any history of previous violations by the
provider;
(C) whether the provider previously identified
the violation as part of its internal quality assurance process and
made appropriate progress on correction;
(D) the amount necessary to deter future
violations;
(E) efforts made by the provider to correct the
violation; and
(F) any other matters that justice may require;
(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, except that each day of a violation occurring before the day
on which the provider receives written notice of the violation from
the commission does not constitute a separate violation and shall
be considered by the commission to be one violation;
(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 [; and]
[(8) ensure standard and consistent interpretation of
service delivery rules and consistent application of
administrative penalties throughout this state].
(c-1) The [On adoption of the rules under Subsection (c),
the] executive commissioner shall maintain [develop]
interpretative guidelines for regulatory staff and providers
regarding the imposition of administrative penalties under this
section.
(e) Except as provided by Subsection (f), the executive
commissioner by rule shall provide to a provider who has
implemented a plan of correction a reasonable period of time
following the date the commission sends written notice to the
provider of the violation to correct the violation before the
commission may assess an administrative penalty. The period may
not be less than 45 days.
(f) The commission may assess an administrative penalty on
providing written notice of a violation to a provider without
providing a reasonable period of time to a provider to correct the
violation if the violation:
(1) results in [represents a pattern of violation that
results in] actual harm or death;
(2) constitutes a serious threat to health or safety
and was not corrected by the provider or the provider has not made
demonstrable progress toward correcting the violation prior to
receiving notice of the violation from the commission [is
widespread in scope and results in actual harm]; or
(3) [is widespread in scope and constitutes a
potential for actual harm;
[(4) constitutes an immediate threat to the health or
safety of a recipient;
[(5) substantially limits the provider's ability to
provide care; or
[(6)] is a violation in which a provider:
(A) wilfully interferes with the work of a
representative of the commission or the enforcement of a law
relating to a program to which this section applies;
(B) fails to pay a penalty assessed by the
commission under this section not later than the 10th day after the
date the assessment of the penalty becomes final, subject to
Section 161.0891; or
(C) fails to submit a plan of correction not
later than the 10th day after the date the provider receives a
statement of the violation.
(g) Notwithstanding any other provision of this section, an
administrative penalty ceases to be incurred on the date a
violation is corrected. For purposes of this section, the date of
correction is the date identified by the provider and submitted to
the commission with evidence of correction. Penalties do not
accrue for a violation until a provider receives written notice of
the violation and of all elements of the violation that must be
corrected by the provider to achieve compliance.
(g-1) Notwithstanding provider requirements to notify the
service planning team of a significant change in condition, if the
commission identifies a violation caused by deficiency of services
authorized on a service plan, including potential hazards to the
health and safety of the individual, the commission shall allow
sufficient time for the service planning team to modify the service
plan before imposing an administrative penalty.
(g-2) Notwithstanding any other provision of law, the
commission may waive or reduce any applicable penalty if the
commission determines that strict enforcement of the rule or law
would impose a hardship or otherwise not be in the best interest of
persons supported by the provider.
SECTION 2. Section 161.0891(g), Human Resources Code, is
amended to read as follows:
(g) The commission may not offer amelioration to a provider:
(1) more than three times in a two-year period;
(2) more than one time in a two-year period for the
same or similar violation; or
(3) for a violation that resulted in [hazard to the
health or safety of a recipient, including] serious harm to or death
of a recipient [, or that substantially limits the provider's
ability to provide care].
SECTION 5. Subchapter D, Chapter 161, Human Resources Code,
is amended by adding Section 161.08915 to read as follows:
Sec. 161.08915. HOME AND COMMUNITY-BASED SERVICES WAIVER
REGULATIONS TASKFORCE. (a) Not later than December 1, 2023, the
executive commissioner shall establish a Home and Community-Based
Services Waiver Regulations Taskforce. The taskforce must be
composed of:
(1) representatives of providers of services in the
1915(c) Home and Community-Based Services and Texas Home Living
waivers; and
(2) representatives of appropriate health and human
service agency functions, including regulatory, waiver, and
billing functions.
(b) The taskforce shall review all rules, regulations, and
policies applicable to home and community-based services and make
recommendations to the executive commissioner designed to provide
clarity of regulations, reduced administrative burdens, and
removal of duplicative or conflicting regulations that are not
required by state or federal law.
(c) Not later than December 1, 2024, the commission shall
submit a report to the legislature detailing recommendations made
by the taskforce and the administrative changes made as a result of
those recommendations.
(d) This section expires January 1, 2026.
SECTION 4. Sections 161.089(h) and 161.0891(h), Human
Resources Code, are repealed.
SECTION 5. This Act takes effect immediately if it receives
a vote of two-thirds of all 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, 2023.