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AN ACT
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relating to certain facilities and care providers, including |
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providers under the state Medicaid program and to improving health |
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care provider accountability and efficiency under the child health |
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plan and Medicaid programs; providing penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 411.1143, Government Code, is amended by |
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amending Subsection (a) and adding Subsection (a-1) to read as |
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follows: |
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(a) The Health and Human Services Commission, [or] an agency |
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operating part of the medical assistance program under Chapter 32, |
|
Human Resources Code, or the office of inspector general |
|
established under Chapter 531, Government Code, is entitled to |
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obtain from the department the criminal history record information |
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maintained by the department that relates to a provider under the |
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medical assistance program or a person applying to enroll as a |
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provider under the medical assistance program. |
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(a-1) Criminal history record information an agency or the |
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office of inspector general is authorized to obtain under |
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Subsection (a) includes criminal history record information |
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relating to: |
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(1) a person with a direct or indirect ownership or |
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control interest, as defined by 42 C.F.R. Section 455.101, in a |
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provider of five percent or more; and |
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(2) a person whose information is required to be |
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disclosed in accordance with 42 C.F.R. Part 1001. |
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SECTION 2. Subchapter B, Chapter 531, Government Code, is |
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amended by adding Section 531.024161 to read as follows: |
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Sec. 531.024161. REIMBURSEMENT CLAIMS FOR CERTAIN MEDICAID |
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OR CHIP SERVICES INVOLVING SUPERVISED PROVIDERS. (a) If a |
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provider, including a nurse practitioner or physician assistant, |
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under the Medicaid or child health plan program provides a referral |
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for or orders health care services for a recipient or enrollee, as |
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applicable, at the direction or under the supervision of another |
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provider, and the referral or order is based on the supervised |
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provider's evaluation of the recipient or enrollee, the names and |
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associated national provider identifier numbers of the supervised |
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provider and the supervising provider must be included on any claim |
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for reimbursement submitted by a provider based on the referral or |
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order. For purposes of this section, "national provider |
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identifier" means the national provider identifier required under |
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Section 1128J(e), Social Security Act (42 U.S.C. Section |
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1320a-7k(e)). |
|
(b) The executive commissioner shall adopt rules necessary |
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to implement this section. |
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SECTION 3. Subdivision (2), Subsection (g), Section |
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531.102, Government Code, is amended to read as follows: |
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(2) In addition to other instances authorized under |
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state or federal law, the office shall impose without prior notice a |
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hold on payment of claims for reimbursement submitted by a provider |
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to compel production of records, [or] when requested by the state's |
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Medicaid fraud control unit, or on receipt of reliable evidence |
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that the circumstances giving rise to the hold on payment involve |
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fraud or wilful misrepresentation under the state Medicaid program |
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in accordance with 42 C.F.R. Section 455.23, as applicable. The |
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office must notify the provider of the hold on payment in accordance |
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with 42 C.F.R. Section 455.23(b) [not later than the fifth working
|
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day after the date the payment hold is imposed]. |
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SECTION 4. The heading to Section 531.1031, Government |
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Code, is amended to read as follows: |
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Sec. 531.1031. DUTY TO EXCHANGE INFORMATION [REGARDING
|
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ALLEGATIONS OF MEDICAID FRAUD OR ABUSE]. |
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SECTION 5. Subdivision (2), Subsection (a), Section |
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531.1031, Government Code, is amended to read as follows: |
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(2) "Participating agency" means: |
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(A) the Medicaid fraud enforcement divisions of |
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the office of the attorney general; [and] |
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(B) each board or agency with authority to |
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license, register, regulate, or certify a health care professional |
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or managed care organization that may participate in the state |
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Medicaid program; and |
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(C) the commission's office of inspector |
|
general. |
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SECTION 6. Section 531.1031, Government Code, is amended by |
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amending Subsections (b) and (c) and adding Subsection (c-1) to |
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read as follows: |
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(b) This section applies only to criminal history record |
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information held by a participating agency that relates to a health |
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care professional and information held by a participating agency |
|
that relates to a health care professional or managed care |
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organization that is the subject of an investigation by a |
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participating agency for alleged fraud or abuse under the state |
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Medicaid program. |
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(c) A participating agency may submit to another |
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participating agency a written request for information described by |
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Subsection (b) regarding a health care professional or managed care |
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organization [that is the subject of an investigation by the
|
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participating agency to any other participating agency]. The |
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participating agency that receives the request shall provide the |
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requesting agency with the information regarding the health care |
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professional or managed care organization unless: |
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(1) the release of the information would jeopardize an |
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ongoing investigation or prosecution by the participating agency |
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with possession of the information; or |
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(2) the release of the information is prohibited by |
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other law. |
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(c-1) Notwithstanding any other law, a participating agency |
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may enter into a memorandum of understanding or agreement with |
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another participating agency for the purpose of exchanging criminal |
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history record information relating to a health care professional |
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that both participating agencies are authorized to access under |
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Chapter 411. Confidential criminal history record information in |
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the possession of a participating agency that is provided to |
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another participating agency in accordance with this subsection |
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remains confidential while in the possession of the participating |
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agency that receives the information. |
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SECTION 7. Subchapter C, Chapter 531, Government Code, is |
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amended by adding Sections 531.1131, 531.1132, and 531.117 to read |
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as follows: |
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Sec. 531.1131. FRAUD AND ABUSE RECOVERY BY CERTAIN PERSONS; |
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RETENTION OF RECOVERED AMOUNTS. (a) If a managed care |
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organization's special investigative unit under Section |
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531.113(a)(1) or the entity with which the managed care |
|
organization contracts under Section 531.113(a)(2) discovers fraud |
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or abuse in the Medicaid program or the child health plan program, |
|
the unit or entity shall: |
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(1) immediately and contemporaneously notify the |
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commission's office of inspector general and the office of the |
|
attorney general; |
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(2) subject to Subsection (b), begin payment recovery |
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efforts; and |
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(3) ensure that any payment recovery efforts in which |
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the organization engages are in accordance with applicable rules |
|
adopted by the executive commissioner. |
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(b) If the amount sought to be recovered under Subsection |
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(a)(2) exceeds $100,000, the managed care organization's special |
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investigative unit or contracted entity described by Subsection (a) |
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may not engage in payment recovery efforts if, not later than the |
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10th business day after the date the unit or entity notified the |
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commission's office of inspector general and the office of the |
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attorney general under Subsection (a)(1), the unit or entity |
|
receives a notice from either office indicating that the unit or |
|
entity is not authorized to proceed with recovery efforts. |
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(c) A managed care organization may retain any money |
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recovered under Subsection (a)(2) by the organization's special |
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investigative unit or contracted entity described by Subsection |
|
(a). |
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(d) A managed care organization shall submit a quarterly |
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report to the commission's office of inspector general detailing |
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the amount of money recovered under Subsection (a)(2). |
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(e) The executive commissioner shall adopt rules necessary |
|
to implement this section, including rules establishing due process |
|
procedures that must be followed by managed care organizations when |
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engaging in payment recovery efforts as provided by this section. |
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Sec. 531.1132. ANNUAL REPORT ON CERTAIN FRAUD AND ABUSE |
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RECOVERIES. Not later than December 1 of each year, the commission |
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shall prepare and submit a report to the legislature relating to the |
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amount of money recovered during the preceding 12-month period as a |
|
result of investigations and recovery efforts made under Sections |
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531.113 and 531.1131 by special investigative units or entities |
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with which a managed care organization contracts under Section |
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531.113(a)(2). The report must specify the amount of money retained |
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by each managed care organization under Section 531.1131(c). |
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Sec. 531.117. RECOVERY AUDIT CONTRACTORS. To the extent |
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required under Section 1902(a)(42), Social Security Act (42 U.S.C. |
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Section 1396a(a)(42)), the commission shall establish a program |
|
under which the commission contracts with one or more recovery |
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audit contractors for purposes of identifying underpayments and |
|
overpayments under the Medicaid program and recovering the |
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overpayments. |
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SECTION 8. Subchapter D, Chapter 62, Health and Safety |
|
Code, is amended by adding Section 62.1561 to read as follows: |
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Sec. 62.1561. PROHIBITION OF CERTAIN HEALTH CARE PROVIDERS. |
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The executive commissioner of the commission shall adopt rules for |
|
prohibiting a person from participating in the child health plan |
|
program as a health care provider for a reasonable period, as |
|
determined by the executive commissioner, if the person: |
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(1) fails to repay overpayments under the program; or |
|
(2) owns, controls, manages, or is otherwise |
|
affiliated with and has financial, managerial, or administrative |
|
influence over a provider who has been suspended or prohibited from |
|
participating in the program. |
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SECTION 9. Section 142.001, Health and Safety Code, is |
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amended by adding Subdivisions (11-a), (11-b), and (12-a) to read |
|
as follows: |
|
(11-a) "Department" means the Department of Aging and |
|
Disability Services. |
|
(11-b) "Executive commissioner" means the executive |
|
commissioner of the Health and Human Services Commission. |
|
(12-a) "Home and community support services agency |
|
administrator" or "administrator" means the person who is |
|
responsible for implementing and supervising the administrative |
|
policies and operations of the home and community support services |
|
agency and for administratively supervising the provision of all |
|
services to agency clients on a day-to-day basis. |
|
SECTION 10. Section 142.0025, Health and Safety Code, is |
|
amended to read as follows: |
|
Sec. 142.0025. TEMPORARY LICENSE. If a person is in the |
|
process of becoming certified by the United States Department of |
|
Health and Human Services to qualify as a certified agency, the |
|
department may issue a temporary home and community support |
|
services agency license to the person authorizing the person to |
|
provide certified home health services. A temporary license is |
|
effective as provided by [board] rules adopted by the executive |
|
commissioner. |
|
SECTION 11. Section 142.009, Health and Safety Code, is |
|
amended by adding Subsections (a-1) and (i) and amending Subsection |
|
(g) to read as follows: |
|
(a-1) A license applicant or license holder must provide the |
|
department representative conducting the survey with a reasonable |
|
and safe workspace at the premises. The executive commissioner may |
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adopt rules to implement this subsection. |
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(g) After a survey of a home and community support services |
|
agency by the department, the department shall provide to the home |
|
and community support services [chief executive officer of the] |
|
agency administrator: |
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(1) specific and timely written notice of the official |
|
findings of the survey, including: |
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(A) the specific nature of the survey; |
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(B) any alleged violations of a specific statute |
|
or rule; |
|
(C) the specific nature of any finding regarding |
|
an alleged violation or deficiency; and |
|
(D) if a deficiency is alleged, the severity of |
|
the deficiency; |
|
(2) information on the identity, including the name |
|
[signature], of each department representative conducting or[,] |
|
reviewing[, or approving] the results of the survey and the date on |
|
which the department representative acted on the matter; and |
|
(3) if requested by the agency, copies of all |
|
documents relating to the survey maintained by the department or |
|
provided by the department to any other state or federal agency that |
|
are not confidential under state law. |
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(i) Except as provided by Subsection (h), the department may |
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not renew an initial home and community support services agency |
|
license unless the department has conducted an initial on-site |
|
survey of the agency. |
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SECTION 12. The heading to Section 142.0091, Health and |
|
Safety Code, is amended to read as follows: |
|
Sec. 142.0091. [SURVEYOR] TRAINING. |
|
SECTION 13. Section 142.0091, Health and Safety Code, is |
|
amended by amending Subsection (b) and adding Subsection (c) to |
|
read as follows: |
|
(b) In developing and updating the training required by |
|
Subsection (a) [this section], the department shall consult with |
|
and include providers of home health, hospice, and personal |
|
assistance services, recipients of those services and their family |
|
members, and representatives of appropriate advocacy |
|
organizations. |
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(c) The department at least semiannually shall provide |
|
joint training for home and community support services agencies and |
|
surveyors on subjects that address the 10 most common violations of |
|
federal or state law by home and community support services |
|
agencies. The department may charge a home and community support |
|
services agency a fee, not to exceed $50 per person, for the |
|
training. |
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SECTION 14. Subchapter A, Chapter 142, Health and Safety |
|
Code, is amended by adding Section 142.0104 to read as follows: |
|
Sec. 142.0104. CHANGE IN APPLICATION INFORMATION. (a) If |
|
certain application information as specified by executive |
|
commissioner rule changes after the applicant submits an |
|
application to the department for a license under this chapter or |
|
after the department issues the license, the license holder shall |
|
report the change to the department and pay a fee not to exceed $50 |
|
not later than the time specified by executive commissioner rule. |
|
(b) The executive commissioner by rule shall: |
|
(1) specify the information provided in an application |
|
that a license holder shall report to the department if the |
|
information changes; |
|
(2) prescribe the time for reporting a change in the |
|
application information required by Subdivision (1); |
|
(3) establish which changes required to be reported |
|
under Subdivision (1) will require department evaluation and |
|
approval; and |
|
(4) set the amount of a late fee to be assessed against |
|
a license holder who fails to report a change in the application |
|
information within the time prescribed under Subdivision (2). |
|
SECTION 15. Subsection (a), Section 142.011, Health and |
|
Safety Code, is amended to read as follows: |
|
(a) The department may deny a license application or suspend |
|
or revoke the license of a person who: |
|
(1) fails to comply with the rules or standards for |
|
licensing required by this chapter; or |
|
(2) engages in conduct that violates Section 102.001, |
|
Occupations Code [161.091]. |
|
SECTION 16. Subsections (a), (b), and (c), Section 142.012, |
|
Health and Safety Code, are amended to read as follows: |
|
(a) The executive commissioner [board, with the
|
|
recommendations of the council,] shall adopt rules necessary to |
|
implement this chapter. The executive commissioner may adopt rules |
|
governing the duties and responsibilities of home and community |
|
support services agency administrators, including rules regarding: |
|
(1) an administrator's management of daily operations |
|
of the home and community support services agency; |
|
(2) an administrator's responsibility for supervising |
|
the provision of quality care to agency clients; |
|
(3) an administrator's implementation of agency policy |
|
and procedures; and |
|
(4) an administrator's responsibility to be available |
|
to the agency at all times in person or by telephone. |
|
(b) The executive commissioner [board] 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, or |
|
personal assistance services as necessary to protect the public. |
|
(c) The initial minimum standards adopted [by the board] |
|
under Subsection (b) for hospice services must be at least as |
|
stringent as the conditions of participation for a Medicare |
|
certified provider of hospice services in effect on April 30, 1993, |
|
under Title XVIII, Social Security Act (42 U.S.C. Section 1395 et |
|
seq.). |
|
SECTION 17. Subsection (e), Section 242.032, Health and |
|
Safety Code, is amended to read as follows: |
|
(e) In making the evaluation required by Subsection (d), the |
|
department shall require the applicant or license holder to file a |
|
sworn affidavit of a satisfactory compliance history and any other |
|
information required by the department to substantiate a |
|
satisfactory compliance history relating to each state or other |
|
jurisdiction in which the applicant or license holder and any other |
|
person described by Subsection (d) operated an institution at any |
|
time before [during the five-year period preceding] the date on |
|
which the application is made. The department by rule shall |
|
determine what constitutes a satisfactory compliance history. The |
|
department may consider and evaluate the compliance history of the |
|
applicant and any other person described by Subsection (d) for any |
|
period during which the applicant or other person operated an |
|
institution in this state or in another state or jurisdiction. The |
|
department may also require the applicant or license holder to file |
|
information relating to the history of the financial condition of |
|
the applicant or license holder and any other person described by |
|
Subsection (d) with respect to an institution operated in another |
|
state or jurisdiction at any time before [during the five-year
|
|
period preceding] the date on which the application is made. |
|
SECTION 18. Subsection (b), Section 242.0615, Health and |
|
Safety Code, is amended to read as follows: |
|
(b) Exclusion of a person under this section must extend for |
|
a period of at least two years and[, but] may extend throughout the |
|
person's lifetime or existence [not exceed a period of 10 years]. |
|
SECTION 19. Section 250.001, Health and Safety Code, is |
|
amended by amending Subdivision (1) and adding Subdivisions (3-a) |
|
and (3-b) to read as follows: |
|
(1) "Nurse aide registry" means a list maintained by |
|
the [Texas] Department of Aging and Disability [Human] Services of |
|
nurse aides under the Omnibus Budget Reconciliation Act of 1987 |
|
(Pub. L. No. 100-203). |
|
(3-a) "Financial management services agency" means an |
|
entity that contracts with the Department of Aging and Disability |
|
Services to serve as a fiscal and employer agent for an individual |
|
employer in the consumer-directed service option described by |
|
Section 531.051, Government Code. |
|
(3-b) "Individual employer" means an individual or |
|
legally authorized representative who participates in the |
|
consumer-directed service option described by Section 531.051, |
|
Government Code, and is responsible for hiring service providers to |
|
deliver program services. |
|
SECTION 20. Section 250.002, Health and Safety Code, is |
|
amended by amending Subsection (a) and adding Subsection (c-1) to |
|
read as follows: |
|
(a) A facility, a regulatory agency, a financial management |
|
services agency on behalf of an individual employer, or a private |
|
agency on behalf of a facility is entitled to obtain from the |
|
Department of Public Safety of the State of Texas criminal history |
|
record information maintained by the Department of Public Safety |
|
that relates to a person who is: |
|
(1) an applicant for employment at a facility other |
|
than a facility licensed under Chapter 142; |
|
(2) an employee of a facility other than a facility |
|
licensed under Chapter 142; [or] |
|
(3) an applicant for employment at or an employee of a |
|
facility licensed under Chapter 142 whose employment duties would |
|
or do involve direct contact with a consumer in the facility; or |
|
(4) an applicant for employment by or an employee of an |
|
individual employer. |
|
(c-1) A financial management services agency shall forward |
|
criminal history record information received under this section to |
|
the individual employer requesting the information. |
|
SECTION 21. Section 250.003, Health and Safety Code, is |
|
amended by amending Subsection (a) and adding Subsection (c-1) to |
|
read as follows: |
|
(a) A facility or individual employer may not employ an |
|
applicant: |
|
(1) if the facility or individual employer determines, |
|
as a result of a criminal history check, that the applicant has been |
|
convicted of an offense listed in this chapter that bars employment |
|
or that a conviction is a contraindication to employment with the |
|
consumers the facility or individual employer serves; |
|
(2) if the applicant is a nurse aide, until the |
|
facility further verifies that the applicant is listed in the nurse |
|
aide registry; and |
|
(3) until the facility verifies that the applicant is |
|
not designated in the registry maintained under this chapter or in |
|
the employee misconduct registry maintained under Section 253.007 |
|
as having a finding entered into the registry concerning abuse, |
|
neglect, or mistreatment of a consumer of a facility, or |
|
misappropriation of a consumer's property. |
|
(c-1) An individual employer shall immediately discharge |
|
any employee whose criminal history check reveals conviction of a |
|
crime that bars employment or that the individual employer |
|
determines is a contraindication to employment as provided by this |
|
chapter. |
|
SECTION 22. Section 250.004, Health and Safety Code, is |
|
amended to read as follows: |
|
Sec. 250.004. CRIMINAL HISTORY RECORD OF EMPLOYEES. |
|
(a) Identifying information of an employee in a covered facility |
|
or of an employee of an individual employer shall be submitted |
|
electronically, on disk, or on a typewritten form to the Department |
|
of Public Safety to obtain the person's criminal conviction record |
|
when the person applies for employment and at other times as the |
|
facility or individual employer may determine appropriate. In this |
|
subsection, "identifying information" includes: |
|
(1) the complete name, race, and sex of the employee; |
|
(2) any known identifying number of the employee, |
|
including social security number, driver's license number, or state |
|
identification number; and |
|
(3) the employee's date of birth. |
|
(b) If the Department of Public Safety reports that a person |
|
has a criminal conviction of any kind, the conviction shall be |
|
reviewed by the facility, the financial management services agency, |
|
or the individual employer to determine if the conviction may bar |
|
the person from employment in a facility or by the individual |
|
employer under Section 250.006 or if the conviction may be a |
|
contraindication to employment. |
|
SECTION 23. Section 250.005, Health and Safety Code, is |
|
amended to read as follows: |
|
Sec. 250.005. NOTICE AND OPPORTUNITY TO BE HEARD CONCERNING |
|
ACCURACY OF INFORMATION. (a) If a facility, financial management |
|
services agency, or individual employer believes that a conviction |
|
may bar a person from employment in a facility or by the individual |
|
employer under Section 250.006 or may be a contraindication to |
|
employment, the facility or individual employer shall notify the |
|
applicant or employee. |
|
(b) The Department of Public Safety of the State of Texas |
|
shall give a person notified under Subsection (a) the opportunity |
|
to be heard concerning the accuracy of the criminal history record |
|
information and shall notify the facility or individual employer if |
|
inaccurate information is discovered. |
|
SECTION 24. Subsections (a) and (b), Section 250.006, |
|
Health and Safety Code, are amended to read as follows: |
|
(a) A person for whom the facility or the individual |
|
employer is entitled to obtain criminal history record information |
|
may not be employed in a facility or by an individual employer if |
|
the person has been convicted of an offense listed in this |
|
subsection: |
|
(1) an offense under Chapter 19, Penal Code (criminal |
|
homicide); |
|
(2) an offense under Chapter 20, Penal Code |
|
(kidnapping and unlawful restraint); |
|
(3) an offense under Section 21.02, Penal Code |
|
(continuous sexual abuse of young child or children), or Section |
|
21.11, Penal Code (indecency with a child); |
|
(4) an offense under Section 22.011, Penal Code |
|
(sexual assault); |
|
(5) an offense under Section 22.02, Penal Code |
|
(aggravated assault); |
|
(6) an offense under Section 22.04, Penal Code (injury |
|
to a child, elderly individual, or disabled individual); |
|
(7) an offense under Section 22.041, Penal Code |
|
(abandoning or endangering child); |
|
(8) an offense under Section 22.08, Penal Code (aiding |
|
suicide); |
|
(9) an offense under Section 25.031, Penal Code |
|
(agreement to abduct from custody); |
|
(10) an offense under Section 25.08, Penal Code (sale |
|
or purchase of a child); |
|
(11) an offense under Section 28.02, Penal Code |
|
(arson); |
|
(12) an offense under Section 29.02, Penal Code |
|
(robbery); |
|
(13) an offense under Section 29.03, Penal Code |
|
(aggravated robbery); |
|
(14) an offense under Section 21.08, Penal Code |
|
(indecent exposure); |
|
(15) an offense under Section 21.12, Penal Code |
|
(improper relationship between educator and student); |
|
(16) an offense under Section 21.15, Penal Code |
|
(improper photography or visual recording); |
|
(17) an offense under Section 22.05, Penal Code |
|
(deadly conduct); |
|
(18) an offense under Section 22.021, Penal Code |
|
(aggravated sexual assault); |
|
(19) an offense under Section 22.07, Penal Code |
|
(terroristic threat); |
|
(20) an offense under Section 33.021, Penal Code |
|
(online solicitation of a minor); |
|
(21) an offense under Section 34.02, Penal Code (money |
|
laundering); |
|
(22) an offense under Section 35A.02, Penal Code |
|
(Medicaid fraud); |
|
(23) an offense under Section 42.09, Penal Code |
|
(cruelty to animals); or |
|
(24) a conviction under the laws of another state, |
|
federal law, or the Uniform Code of Military Justice for an offense |
|
containing elements that are substantially similar to the elements |
|
of an offense listed by this subsection. |
|
(b) A person may not be employed in a position the duties of |
|
which involve direct contact with a consumer in a facility or may |
|
not be employed by an individual employer before the fifth |
|
anniversary of the date the person is convicted of: |
|
(1) an offense under Section 22.01, Penal Code |
|
(assault), that is punishable as a Class A misdemeanor or as a |
|
felony; |
|
(2) an offense under Section 30.02, Penal Code |
|
(burglary); |
|
(3) an offense under Chapter 31, Penal Code (theft), |
|
that is punishable as a felony; |
|
(4) an offense under Section 32.45, Penal Code |
|
(misapplication of fiduciary property or property of a financial |
|
institution), that is punishable as a Class A misdemeanor or a |
|
felony; |
|
(5) an offense under Section 32.46, Penal Code |
|
(securing execution of a document by deception), that is punishable |
|
as a Class A misdemeanor or a felony; |
|
(6) an offense under Section 37.12, Penal Code (false |
|
identification as peace officer); or |
|
(7) an offense under Section 42.01(a)(7), (8), or (9), |
|
Penal Code (disorderly conduct). |
|
SECTION 25. Subsections (a) and (b), Section 250.007, |
|
Health and Safety Code, are amended to read as follows: |
|
(a) The criminal history records are for the exclusive use |
|
of the regulatory agency, the requesting facility, the private |
|
agency on behalf of the requesting facility, the financial |
|
management services agency on behalf of the individual employer, |
|
the individual employer, and the applicant or employee who is the |
|
subject of the records. |
|
(b) All criminal records and reports and the information |
|
they contain that are received by the regulatory agency or private |
|
agency for the purpose of being forwarded to the requesting |
|
facility or received by the financial management services agency |
|
under this chapter are privileged information. |
|
SECTION 26. Subsection (a), Section 250.009, Health and |
|
Safety Code, is amended to read as follows: |
|
(a) A facility, [or] an officer or employee of a facility, a |
|
financial management services agency, or an individual employer is |
|
not civilly liable for failure to comply with this chapter if the |
|
facility, financial management services agency, or individual |
|
employer makes a good faith effort to comply. |
|
SECTION 27. Section 22.039(c), Human Resources Code, is |
|
amended to read as follows: |
|
(c) The department shall semiannually provide training for |
|
surveyors and providers on subjects that address [at least one of] |
|
the 10 most common violations by long-term care facilities of |
|
[under] federal or state law. The department may charge a fee not to |
|
exceed $50 per person for the training. |
|
SECTION 28. Section 32.0322, Human Resources Code, is |
|
amended to read as follows: |
|
Sec. 32.0322. CRIMINAL HISTORY RECORD INFORMATION; |
|
ENROLLMENT OF PROVIDERS. (a) The department or the office of |
|
inspector general established under Chapter 531, Government Code, |
|
may obtain from any law enforcement or criminal justice agency the |
|
criminal history record information that relates to a provider |
|
under the medical assistance program or a person applying to enroll |
|
as a provider under the medical assistance program. |
|
(a-1) The criminal history record information the |
|
department and the office of inspector general are authorized to |
|
obtain under Subsection (a) includes criminal history record |
|
information relating to: |
|
(1) a person with a direct or indirect ownership or |
|
control interest, as defined by 42 C.F.R. Section 455.101, in a |
|
provider of five percent or more; and |
|
(2) a person whose information is required to be |
|
disclosed in accordance with 42 C.F.R. Part 1001. |
|
(b) The executive commissioner of the Health and Human |
|
Services Commission [department] by rule shall establish criteria |
|
for the department or the commission's office of inspector general |
|
to suspend a provider's billing privileges under the medical |
|
assistance program, revoke [revoking] a provider's enrollment |
|
under the program, or deny [denying] a person's application to |
|
enroll as a provider under the [medical assistance] program based |
|
on: |
|
(1) the results of a criminal history check; |
|
(2) any exclusion or debarment of the provider from |
|
participation in a state or federally funded health care program; |
|
(3) the provider's failure to bill for medical |
|
assistance or refer clients for medical assistance within a |
|
12-month period; or |
|
(4) any of the provider screening or enrollment |
|
provisions contained in 42 C.F.R. Part 455, Subpart E. |
|
(c) As a condition of eligibility to participate as a |
|
provider in the medical assistance program, the executive |
|
commissioner of the Health and Human Services Commission by rule |
|
shall: |
|
(1) require a provider or a person applying to enroll |
|
as a provider to disclose: |
|
(A) all persons described by Subsection |
|
(a-1)(1); |
|
(B) any managing employees of the provider; and |
|
(C) an agent or subcontractor of the provider if: |
|
(i) the provider or a person described by |
|
Subsection (a-1)(1) has a direct or indirect ownership interest of |
|
at least five percent in the agent or subcontractor; or |
|
(ii) the provider engages in a business |
|
transaction with the agent or subcontractor that meets the criteria |
|
specified by 42 C.F.R. Section 455.105; and |
|
(2) require disclosure by persons applying for |
|
enrollment as providers and provide for screening of applicants for |
|
enrollment in conformity and compliance with the requirements of 42 |
|
C.F.R. Part 455, Subparts B and E. |
|
(d) In adopting rules under this section, the executive |
|
commissioner of the Health and Human Services Commission shall |
|
adopt rules as authorized by and in conformity with 42 C.F.R. |
|
Section 455.470 for the imposition of a temporary moratorium on |
|
enrollment of new providers, or to impose numerical caps or other |
|
limits on the enrollment of providers, that the department or the |
|
commission's office of inspector general, in consultation with the |
|
department, determines have a significant potential for fraud, |
|
waste, or abuse. |
|
SECTION 29. Section 32.039, Human Resources Code, is |
|
amended by amending Subsection (b) and adding Subsection (b-1) to |
|
read as follows: |
|
(b) A person commits a violation if the person: |
|
(1) presents or causes to be presented to the |
|
department a claim that contains a statement or representation the |
|
person knows or should know to be false; |
|
(1-a) engages in conduct that violates Section |
|
102.001, Occupations Code; |
|
(1-b) solicits or receives, directly or indirectly, |
|
overtly or covertly any remuneration, including any kickback, |
|
bribe, or rebate, in cash or in kind for referring an individual to |
|
a person for the furnishing of, or for arranging the furnishing of, |
|
any item or service for which payment may be made, in whole or in |
|
part, under the medical assistance program, provided that this |
|
subdivision does not prohibit the referral of a patient to another |
|
practitioner within a multispecialty group or university medical |
|
services research and development plan (practice plan) for |
|
medically necessary services; |
|
(1-c) solicits or receives, directly or indirectly, |
|
overtly or covertly any remuneration, including any kickback, |
|
bribe, or rebate, in cash or in kind for purchasing, leasing, or |
|
ordering, or arranging for or recommending the purchasing, leasing, |
|
or ordering of, any good, facility, service, or item for which |
|
payment may be made, in whole or in part, under the medical |
|
assistance program; |
|
(1-d) offers or pays, directly or indirectly, overtly |
|
or covertly any remuneration, including any kickback, bribe, or |
|
rebate, in cash or in kind to induce a person to refer an individual |
|
to another person for the furnishing of, or for arranging the |
|
furnishing of, any item or service for which payment may be made, in |
|
whole or in part, under the medical assistance program, provided |
|
that this subdivision does not prohibit the referral of a patient to |
|
another practitioner within a multispecialty group or university |
|
medical services research and development plan (practice plan) for |
|
medically necessary services; |
|
(1-e) offers or pays, directly or indirectly, overtly |
|
or covertly any remuneration, including any kickback, bribe, or |
|
rebate, in cash or in kind to induce a person to purchase, lease, or |
|
order, or arrange for or recommend the purchase, lease, or order of, |
|
any good, facility, service, or item for which payment may be made, |
|
in whole or in part, under the medical assistance program; |
|
(1-f) provides, offers, or receives an inducement in a |
|
manner or for a purpose not otherwise prohibited by this section or |
|
Section 102.001, Occupations Code, to or from a person, including a |
|
recipient, provider, employee or agent of a provider, third-party |
|
vendor, or public servant, for the purpose of influencing or being |
|
influenced in a decision regarding: |
|
(A) selection of a provider or receipt of a good |
|
or service under the medical assistance program; |
|
(B) the use of goods or services provided under |
|
the medical assistance program; or |
|
(C) the inclusion or exclusion of goods or |
|
services available under the medical assistance program; [or] |
|
(2) is a managed care organization that contracts with |
|
the department to provide or arrange to provide health care |
|
benefits or services to individuals eligible for medical assistance |
|
and: |
|
(A) fails to provide to an individual a health |
|
care benefit or service that the organization is required to |
|
provide under the contract with the department; |
|
(B) fails to provide to the department |
|
information required to be provided by law, department rule, or |
|
contractual provision; |
|
(C) engages in a fraudulent activity in |
|
connection with the enrollment in the organization's managed care |
|
plan of an individual eligible for medical assistance or in |
|
connection with marketing the organization's services to an |
|
individual eligible for medical assistance; or |
|
(D) engages in actions that indicate a pattern |
|
of: |
|
(i) wrongful denial of payment for a health |
|
care benefit or service that the organization is required to |
|
provide under the contract with the department; or |
|
(ii) wrongful delay of at least 45 days or a |
|
longer period specified in the contract with the department, not to |
|
exceed 60 days, in making payment for a health care benefit or |
|
service that the organization is required to provide under the |
|
contract with the department; or |
|
(3) fails to maintain documentation to support a claim |
|
for payment in accordance with the requirements specified by |
|
department rule or medical assistance program policy or engages in |
|
any other conduct that a department rule has defined as a violation |
|
of the medical assistance program. |
|
(b-1) A person who commits a violation described by |
|
Subsection (b)(3) is liable to the department for either the amount |
|
paid in response to the claim for payment or the payment of an |
|
administrative penalty in an amount not to exceed $500 for each |
|
violation, as determined by the department. |
|
SECTION 30. Section 32.047, Human Resources Code, is |
|
amended to read as follows: |
|
Sec. 32.047. PROHIBITION OF CERTAIN HEALTH CARE SERVICE |
|
PROVIDERS. (a) A person is permanently prohibited from providing |
|
or arranging to provide health care services under the medical |
|
assistance program if: |
|
(1) the person is convicted of an offense arising from |
|
a fraudulent act under the program; and |
|
(2) the person's fraudulent act results in injury to an |
|
elderly person, as defined by Section 48.002(a)(1) [48.002(1)], a |
|
disabled person, as defined by Section 48.002(a)(8)(A) |
|
[48.002(8)(A)], or a person younger than 18 years of age. |
|
(b) The executive commissioner of the Health and Human |
|
Services Commission shall adopt rules for prohibiting a person from |
|
participating in the medical assistance program as a health care |
|
provider for a reasonable period, as determined by the executive |
|
commissioner, if the person: |
|
(1) fails to repay overpayments under the program; or |
|
(2) owns, controls, manages, or is otherwise |
|
affiliated with and has financial, managerial, or administrative |
|
influence over a provider who has been suspended or prohibited from |
|
participating in the program. |
|
SECTION 31. Subchapter B, Chapter 32, Human Resources Code, |
|
is amended by adding Section 32.068 to read as follows: |
|
Sec. 32.068. IN-PERSON EVALUATION REQUIRED FOR CERTAIN |
|
SERVICES. (a) A medical assistance provider may order or otherwise |
|
authorize the provision of home health services for a recipient |
|
only if the provider has conducted an in-person evaluation of the |
|
recipient within the 12-month period preceding the date the order |
|
or other authorization was issued. |
|
(b) A physician, physician assistant, nurse practitioner, |
|
clinical nurse specialist, or certified nurse-midwife that orders |
|
or otherwise authorizes the provision of durable medical equipment |
|
for a recipient in accordance with Chapter 157, Occupations Code, |
|
and other applicable law, including rules, must certify on the |
|
order or other authorization that the person conducted an in-person |
|
evaluation of the recipient within the 12-month period preceding |
|
the date the order or other authorization was issued. |
|
(c) The executive commissioner of the Health and Human |
|
Services Commission shall adopt rules necessary to implement this |
|
section. The executive commissioner may by rule adopt limited |
|
exceptions to the requirements of this section. |
|
SECTION 32. Subsection (a), Section 103.009, Human |
|
Resources Code, is amended to read as follows: |
|
(a) The department may deny, suspend, or revoke the license |
|
of an applicant or holder of a license who fails to comply with the |
|
rules or standards for licensing required by this chapter or has |
|
committed an act described by Sections 103.012(a)(2)-(7). |
|
SECTION 33. Chapter 103, Human Resources Code, is amended |
|
by adding Sections 103.012 through 103.016 to read as follows: |
|
Sec. 103.012. ADMINISTRATIVE PENALTY. (a) The department |
|
may assess an administrative penalty against a person who: |
|
(1) violates this chapter, a rule, standard, or order |
|
adopted under this chapter, or a term of a license issued under this |
|
chapter; |
|
(2) makes a false statement of a material fact that the |
|
person knows or should know is false: |
|
(A) on an application for issuance or renewal of |
|
a license or in an attachment to the application; or |
|
(B) with respect to a matter under investigation |
|
by the department; |
|
(3) refuses to allow a representative of the |
|
department to inspect: |
|
(A) a book, record, or file required to be |
|
maintained by an adult day-care facility; or |
|
(B) any portion of the premises of an adult |
|
day-care facility; |
|
(4) wilfully interferes with the work of a |
|
representative of the department or the enforcement of this |
|
chapter; |
|
(5) wilfully interferes with a representative of the |
|
department preserving evidence of a violation of this chapter, a |
|
rule, standard, or order adopted under this chapter, or a term of a |
|
license issued under this chapter; |
|
(6) fails to pay a penalty assessed under this chapter |
|
not later than the 30th day after the date the assessment of the |
|
penalty becomes final; or |
|
(7) fails to notify the department of a change of |
|
ownership before the effective date of the change of ownership. |
|
(b) Except as provided by Section 103.013(c), the penalty |
|
may not exceed $500 for each violation. |
|
(c) Each day of a continuing violation constitutes a |
|
separate violation. |
|
(d) The department shall establish gradations of penalties |
|
in accordance with the relative seriousness of the violation. |
|
(e) In determining the amount of a penalty, the department |
|
shall consider any matter that justice may require, including: |
|
(1) the gradations of penalties established under |
|
Subsection (d); |
|
(2) the seriousness of the violation, including the |
|
nature, circumstances, extent, and gravity of the prohibited act |
|
and the hazard or potential hazard created by the act to the health |
|
or safety of the public; |
|
(3) the history of previous violations; |
|
(4) the deterrence of future violations; and |
|
(5) the efforts to correct the violation. |
|
(f) A penalty assessed under Subsection (a)(6) is in |
|
addition to the penalty previously assessed and not timely paid. |
|
Sec. 103.013. RIGHT TO CORRECT BEFORE IMPOSITION OF |
|
ADMINISTRATIVE PENALTY. (a) The department may not collect an |
|
administrative penalty from an adult day-care facility under |
|
Section 103.012 if, not later than the 45th day after the date the |
|
facility receives notice under Section 103.014(c), the facility |
|
corrects the violation. |
|
(b) Subsection (a) does not apply to: |
|
(1) a violation that the department determines: |
|
(A) results in serious harm to or death of a |
|
person attending the facility; |
|
(B) constitutes a serious threat to the health |
|
and safety of a person attending the facility; or |
|
(C) substantially limits the facility's capacity |
|
to provide care; |
|
(2) a violation described by Sections |
|
103.012(a)(2)-(7); or |
|
(3) a violation of Section 103.011. |
|
(c) An adult day-care facility that corrects a violation |
|
must maintain the correction. If the facility fails to maintain the |
|
correction until at least the first anniversary after the date the |
|
correction was made, the department may assess and collect an |
|
administrative penalty for the subsequent violation. An |
|
administrative penalty assessed under this subsection is equal to |
|
three times the amount of the original penalty assessed but not |
|
collected. The department is not required to provide the facility |
|
with an opportunity under this section to correct the subsequent |
|
violation. |
|
Sec. 103.014. REPORT RECOMMENDING ADMINISTRATIVE PENALTY; |
|
NOTICE. (a) The department shall issue a preliminary report |
|
stating the facts on which the department concludes that a |
|
violation of this chapter, a rule, standard, or order adopted under |
|
this chapter, or a term of a license issued under this chapter has |
|
occurred if the department has: |
|
(1) examined the possible violation and facts |
|
surrounding the possible violation; and |
|
(2) concluded that a violation has occurred. |
|
(b) The report may recommend a penalty under Section 103.012 |
|
and the amount of the penalty. |
|
(c) The department shall give written notice of the report |
|
to the person charged with the violation not later than the 10th day |
|
after the date on which the report is issued. The notice must |
|
include: |
|
(1) a brief summary of the charges; |
|
(2) a statement of the amount of penalty recommended; |
|
(3) a statement of whether the violation is subject to |
|
correction under Section 103.013 and, if the violation is subject |
|
to correction under that section, a statement of: |
|
(A) the date on which the adult day-care facility |
|
must file a plan of correction with the department that the |
|
department shall review and may approve, if satisfactory; and |
|
(B) the date on which the plan of correction must |
|
be completed to avoid assessment of the penalty; and |
|
(4) a statement that the person charged has a right to |
|
a hearing on the occurrence of the violation, the amount of the |
|
penalty, or both. |
|
(d) Not later than the 20th day after the date on which the |
|
notice under Subsection (c) is received, the person charged may: |
|
(1) give to the department written notice that the |
|
person agrees with the department's report and consents to the |
|
recommended penalty; or |
|
(2) make a written request for a hearing. |
|
(e) If the violation is subject to correction under Section |
|
103.013, the adult day-care facility shall submit a plan of |
|
correction to the department for approval not later than the 10th |
|
day after the date on which the notice under Subsection (c) is |
|
received. |
|
(f) If the violation is subject to correction under Section |
|
103.013 and the person reports to the department that the violation |
|
has been corrected, the department shall inspect the correction or |
|
take any other step necessary to confirm the correction and shall |
|
notify the person that: |
|
(1) the correction is satisfactory and a penalty will |
|
not be assessed; or |
|
(2) the correction is not satisfactory and a penalty |
|
is recommended. |
|
(g) Not later than the 20th day after the date on which a |
|
notice under Subsection (f)(2) is received, the person charged with |
|
the violation may: |
|
(1) give to the department written notice that the |
|
person agrees with the department's report and consents to the |
|
recommended penalty; or |
|
(2) make a written request for a hearing. |
|
(h) If the person charged with the violation consents to the |
|
penalty recommended by the department or does not timely respond to |
|
a notice sent under Subsection (c) or (f)(2), the department's |
|
commissioner or the commissioner's designee shall assess the |
|
penalty recommended by the department. |
|
(i) If the department's commissioner or the commissioner's |
|
designee assesses the recommended penalty, the department shall |
|
give written notice of the decision to the person charged with the |
|
violation and the person shall pay the penalty. |
|
Sec. 103.015. ADMINISTRATIVE PENALTY HEARING. (a) An |
|
administrative law judge shall order a hearing and give notice of |
|
the hearing if a person assessed a penalty under Section 103.013(c) |
|
requests a hearing. |
|
(b) The hearing shall be held before an administrative law |
|
judge. |
|
(c) The administrative law judge shall make findings of fact |
|
and conclusions of law regarding the occurrence of a violation of |
|
this chapter, a rule or order adopted under this chapter, or a term |
|
of a license issued under this chapter. |
|
(d) Based on the findings of fact and conclusions of law, |
|
and the recommendation of the administrative law judge, the |
|
department's commissioner or the commissioner's designee by order |
|
shall find: |
|
(1) a violation has occurred and assess an |
|
administrative penalty; or |
|
(2) a violation has not occurred. |
|
(e) Proceedings under this section are subject to Chapter |
|
2001, Government Code. |
|
Sec. 103.016. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY; |
|
INTEREST; REFUND. (a) The department's commissioner or the |
|
commissioner's designee shall give notice of the findings made |
|
under Section 103.015(d) to the person charged with a violation. If |
|
the commissioner or the commissioner's designee finds that a |
|
violation has occurred, the commissioner or the commissioner's |
|
designee shall give to the person charged written notice of: |
|
(1) the findings; |
|
(2) the amount of the administrative penalty; |
|
(3) the rate of interest payable with respect to the |
|
penalty and the date on which interest begins to accrue; and |
|
(4) the person's right to judicial review of the order |
|
of the commissioner or the commissioner's designee. |
|
(b) Not later than the 30th day after the date on which the |
|
order of the department's commissioner or the commissioner's |
|
designee is final, the person assessed the penalty shall: |
|
(1) pay the full amount of the penalty; or |
|
(2) file a petition for judicial review contesting the |
|
occurrence of the violation, the amount of the penalty, or both the |
|
occurrence of the violation and the amount of the penalty. |
|
(c) Notwithstanding Subsection (b), the department may |
|
permit the person to pay a penalty in installments. |
|
(d) If the person does not pay the penalty within the period |
|
provided by Subsection (b) or in accordance with Subsection (c), if |
|
applicable: |
|
(1) the penalty is subject to interest; and |
|
(2) the department may refer the matter to the |
|
attorney general for collection of the penalty and interest. |
|
(e) Interest under Subsection (d)(1) accrues: |
|
(1) at a rate equal to the rate charged on loans to |
|
depository institutions by the New York Federal Reserve Bank; and |
|
(2) for the period beginning on the day after the date |
|
on which the penalty becomes due and ending on the date the penalty |
|
is paid. |
|
(f) If the amount of the penalty is reduced or the |
|
assessment of a penalty is not upheld on judicial review, the |
|
department's commissioner or the commissioner's designee shall: |
|
(1) remit to the person charged the appropriate amount |
|
of any penalty payment plus accrued interest; or |
|
(2) execute a release of the supersedeas bond if one |
|
has been posted. |
|
(g) Accrued interest on the amount remitted by the |
|
department's commissioner or the commissioner's designee under |
|
Subsection (f)(1) shall be paid: |
|
(1) at a rate equal to the rate charged on loans to |
|
depository institutions by the New York Federal Reserve Bank; and |
|
(2) for the period beginning on the date the penalty is |
|
paid and ending on the date the penalty is remitted to the person |
|
charged with the violation. |
|
SECTION 34. Section 531.1131, Government Code, as added by |
|
this Act, applies to the investigation of a fraudulent Medicaid or |
|
child health plan program claim or other program abuse that |
|
commences on or after the effective date of this Act. An |
|
investigation that commences before the effective date of this Act |
|
is governed by the law in effect when the investigation commenced, |
|
and the former law is continued in effect for that purpose. |
|
SECTION 35. As soon as practicable after the effective date |
|
of this Act but not later than July 1, 2012, 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 to Chapter 142, Health and Safety Code. |
|
SECTION 36. Subsection (e), Section 242.032, Health and |
|
Safety Code, as amended by this Act, applies only to an application, |
|
including a renewal application, filed on or after the effective |
|
date of this Act. An application filed before the effective date of |
|
this Act is governed by the law in effect when the application was |
|
filed, and the former law is continued in effect for that purpose. |
|
SECTION 37. Subsection (b), Section 242.0615, Health and |
|
Safety Code, as amended by this Act, applies only to conduct that |
|
occurs on or after the effective date of this Act. Conduct that |
|
occurs before the effective date of this Act is governed by the law |
|
in effect at the time the conduct occurred, and the former law is |
|
continued in effect for that purpose. |
|
SECTION 38. As soon as practicable after the effective date |
|
of this Act but not later than July 1, 2012, the executive |
|
commissioner of the Health and Human Services Commission shall |
|
adopt rules necessary to implement Section 22.039, Human Resources |
|
Code, as amended by this Act. |
|
SECTION 39. 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 40. 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 41. This Act takes effect September 1, 2011. |
|
|
|
______________________________ |
______________________________ |
|
President of the Senate |
Speaker of the House |
|
|
|
I certify that H.B. No. 1720 was passed by the House on May 4, |
|
2011, by the following vote: Yeas 138, Nays 0, 2 present, not |
|
voting; and that the House concurred in Senate amendments to H.B. |
|
No. 1720 on May 27, 2011, by the following vote: Yeas 136, Nays 0, |
|
2 present, not voting. |
|
|
|
______________________________ |
|
Chief Clerk of the House |
|
|
I certify that H.B. No. 1720 was passed by the Senate, with |
|
amendments, on May 23, 2011, by the following vote: Yeas 31, Nays |
|
0. |
|
|
|
______________________________ |
|
Secretary of the Senate |
|
APPROVED: __________________ |
|
Date |
|
|
|
__________________ |
|
Governor |