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 and the establishment of a task force to study certain
rules and policies related to those services.
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), and (g)
and adding Subsections (b-1), (g-1), and (g-2) to read as follows:
(b) Subject to Subsection (b-1), the [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. 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 or otherwise withhold contract payments from
the provider for the same violation of a law or rule.
(b-1) The commission may not assess an administrative
penalty under this section for minor violations unless those
violations are of a continuing nature or are not corrected by the
provider.
(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
based on:
(A) the seriousness of the violation, including:
(i) the nature, circumstances, extent, and
gravity of the violation; and
(ii) the hazard created by the violation to
the health and safety of an individual; and
(B) whether the provider had identified the
violation as part of the provider's internal quality assurance
process and made appropriate progress on correcting the identified
violation;
(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:
(i) the nature, circumstances, extent, and
gravity of the violation; and
(ii) the hazard created by the violation to
the health and safety of an individual;
(B) the provider's history of previous
violations;
(C) whether the provider had identified the
violation as part of the provider's internal quality assurance
process and made appropriate progress on correcting the identified
violation;
(D) the amount necessary to deter future
violations;
(E) other than for a violation identified under
Paragraph (C), the provider's effort 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 is
considered 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 first day of a [date the commission sends 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
provision of written notice of a violation to a provider without
providing the provider with a reasonable period of time [to a
provider] to correct the violation if the violation:
(1) [represents a pattern of violation that] results
in serious [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 before
receiving the 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 the 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 requirements for a provider to notify
the service planning team of a significant change in condition, if
the commission identifies a violation resulting from a deficiency
of services authorized in a service plan, including potential
hazards to the health and safety of an individual, the commission
shall provide an amount of time determined sufficient by the
commission for the service planning team to modify the service plan
before imposing an administrative penalty.
(g-2) Notwithstanding any other 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 3. (a) In this section:
(1) "Commission" means the Health and Human Services
Commission.
(2) "Executive commissioner" means the executive
commissioner of the commission.
(3) "Task force" means the home and community-based
services waiver program regulation task force established by this
section.
(b) The commission shall establish the home and
community-based services waiver program regulation task force to:
(1) review all rules and policies adopted by the
commission that are applicable to services provided under the home
and community-based services (HCS) and Texas home living (TxHmL)
Medicaid waiver program; and
(2) provide to the executive commissioner
recommendations on:
(A) clarifying the rules and policies;
(B) reducing administrative burdens; and
(C) repealing or reversing any duplicative or
conflicting rules or policies that are not required by state or
federal law.
(c) Not later than December 1, 2023, the executive
commissioner shall appoint the following members to the task force:
(1) representatives of providers under the home and
community-based services (HCS) and Texas home living (TxHmL)
Medicaid waiver programs; and
(2) representatives of appropriate health and human
services agency functions, including regulatory, waiver, and
billing functions.
(d) Not later than December 1, 2024, the commission shall
prepare and submit to the legislature a report that includes:
(1) recommendations made by the task force; and
(2) any administrative changes made by the commission
as a result of those recommendations.
(e) This section expires September 1, 2025.
SECTION 4. The following provisions of the Human Resources
Code are repealed:
(1) Sections 161.089(d) and (h); and
(2) Section 161.0891(h).
SECTION 5. Section 161.089, Human Resources Code, as
amended by this Act, applies only to a violation that occurs on or
after the effective date of this Act. A violation that occurs before
the effective date of this Act is governed by the law in effect on
the date the violation occurred, and that law is continued in effect
for that purpose.
SECTION 6. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2023.