H.B. No. 4001
 
 
 
 
AN ACT
  relating to providers of certain home and community support
  services; authorizing a fee, providing penalties, and requiring an
  occupational license.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 142.001, Health and Safety Code, is
  amended by adding Subdivision (11-c) and amending Subdivisions (12)
  and (23) to read as follows:
               (11-c)  "Habilitation" means habilitation services, as
  defined by Section 534.001, Government Code, delivered by a
  licensed home and community support services agency.
               (12)  "Home and community support services agency"
  means a person who provides home health, hospice, habilitation, or
  personal assistance services for pay or other consideration in a
  client's residence, an independent living environment, or another
  appropriate location.
               (23)  "Place of business" means an office of a home and
  community support services agency that maintains client records or
  directs home health, hospice, habilitation, or personal assistance
  services.  The term does not include an administrative support
  site.
         SECTION 2.  Section 142.0011, Health and Safety Code, as
  amended by S.B. 219, Acts of the 84th Legislature, Regular Session,
  2015, is amended to read as follows:
         Sec. 142.0011.  SCOPE, PURPOSE, AND IMPLEMENTATION.  (a)  
  The purpose of this chapter is to ensure that home and community
  support services agencies in this state deliver the highest
  possible quality of care. This chapter and the rules adopted under
  this chapter establish minimum standards for acceptable quality of
  care, and a violation of a minimum standard established or adopted
  under this chapter is a violation of law. For purposes of this
  chapter, components of quality of care include:
               (1)  client independence and self-determination;
               (2)  humane treatment;
               (3)  continuity of care;
               (4)  coordination of services;
               (5)  professionalism of service providers;
               (6)  quality of life; [and]
               (7)  client satisfaction with services; and
               (8)  person-centered service delivery.
         (b)  The executive commissioner shall protect clients of
  home and community support services agencies by adopting rules
  relating to quality of care and quality of life.
         (c)  The department shall protect clients of home and
  community support services agencies by:
               (1)  regulating those agencies;
               (2)  strictly monitoring factors relating to the
  health, safety, welfare, and dignity of each client;
               (3)  imposing prompt and effective remedies for
  violations of this chapter and rules and standards adopted under
  this chapter;
               (4)  enabling agencies to provide person-centered
  services that allow clients to maintain the highest possible degree
  of independence and self-determination; and
               (5)  providing the public with helpful and
  understandable information relating to agencies in this state.
         SECTION 3.  Section 142.002(a), Health and Safety Code, is
  amended to read as follows:
         (a)  Except as provided by Section 142.003, a person,
  including a health care facility licensed under this code, may not
  engage in the business of providing home health, hospice,
  habilitation, or personal assistance services, or represent to the
  public that the person is a provider of home health, hospice,
  habilitation, or personal assistance services for pay without a
  home and community support services agency license authorizing the
  person to perform those services issued by the department for each
  place of business from which home health, hospice, habilitation, or
  personal assistance services are directed. A certified agency must
  have a license to provide certified home health services.
         SECTION 4.  Section 142.003(a), Health and Safety Code, is
  amended to read as follows:
         (a)  The following persons need not be licensed under this
  chapter:
               (1)  a physician, dentist, registered nurse,
  occupational therapist, or physical therapist licensed under the
  laws of this state who provides home health services to a client
  only as a part of and incidental to that person's private office
  practice;
               (2)  a registered nurse, licensed vocational nurse,
  physical therapist, occupational therapist, speech therapist,
  medical social worker, or any other health care professional as
  determined by the department who provides home health services as a
  sole practitioner;
               (3)  a registry that operates solely as a clearinghouse
  to put consumers in contact with persons who provide home health,
  hospice, habilitation, or personal assistance services and that
  does not maintain official client records, direct client services,
  or compensate the person who is providing the service;
               (4)  an individual whose permanent residence is in the
  client's residence;
               (5)  an employee of a person licensed under this
  chapter who provides home health, hospice, habilitation, or
  personal assistance services only as an employee of the license
  holder and who receives no benefit for providing the services,
  other than wages from the license holder;
               (6)  a home, nursing home, convalescent home, assisted
  living facility, special care facility, or other institution for
  individuals who are elderly or who have disabilities that provides
  home health or personal assistance services only to residents of
  the home or institution;
               (7)  a person who provides one health service through a
  contract with a person licensed under this chapter;
               (8)  a durable medical equipment supply company;
               (9)  a pharmacy or wholesale medical supply company
  that does not furnish services, other than supplies, to a person at
  the person's house;
               (10)  a hospital or other licensed health care facility
  that provides home health or personal assistance services only to
  inpatient residents of the hospital or facility;
               (11)  a person providing home health or personal
  assistance services to an injured employee under Title 5, Labor
  Code;
               (12)  a visiting nurse service that:
                     (A)  is conducted by and for the adherents of a
  well-recognized church or religious denomination; and
                     (B)  provides nursing services by a person exempt
  from licensing by Section 301.004, Occupations Code, because the
  person furnishes nursing care in which treatment is only by prayer
  or spiritual means;
               (13)  an individual hired and paid directly by the
  client or the client's family or legal guardian to provide home
  health or personal assistance services;
               (14)  a business, school, camp, or other organization
  that provides home health or personal assistance services,
  incidental to the organization's primary purpose, to individuals
  employed by or participating in programs offered by the business,
  school, or camp that enable the individual to participate fully in
  the business's, school's, or camp's programs;
               (15)  a person or organization providing
  sitter-companion services or chore or household services that do
  not involve personal care, health, or health-related services;
               (16)  a licensed health care facility that provides
  hospice services under a contract with a hospice;
               (17)  a person delivering residential acquired immune
  deficiency syndrome hospice care who is licensed and designated as
  a residential AIDS hospice under Chapter 248;
               (18)  the Texas Department of Criminal Justice;
               (19)  a person that provides home health, hospice,
  habilitation, or personal assistance services only to persons
  receiving benefits under:
                     (A)  the home and community-based services (HCS)
  waiver program;
                     (B)  the Texas home living (TxHmL) waiver program;
  [or]
                     (C)  the STAR + PLUS or other Medicaid managed
  care program under the program's HCS or TxHmL certification; or
                     (D)  Section 534.152, Government Code; or
               (20)  an individual who provides home health or
  personal assistance services as the employee of a consumer or an
  entity or employee of an entity acting as a consumer's fiscal agent
  under Section 531.051, Government Code.
         SECTION 5.  Sections 142.004(a) and (c), Health and Safety
  Code, are amended to conform to S.B. 219, Acts of the 84th
  Legislature, Regular Session, 2015, and further amended to read as
  follows:
         (a)  An applicant for a license to provide home health,
  hospice, habilitation, or personal assistance services must:
               (1)  file a written application on a form prescribed by
  the department indicating the type of service the applicant wishes
  to provide;
               (2)  cooperate with any surveys required by the
  department for a license; and
               (3)  pay the license fee prescribed by this chapter.
         (c)  The executive commissioner by rule shall require that,
  at a minimum, before the department may approve a license
  application, the applicant must provide to the department:
               (1)  documentation establishing that, at a minimum, the
  applicant has sufficient financial resources to provide the
  services required by this chapter and by the department during the
  term of the license;
               (2)  a list of the management personnel for the
  proposed home and community support services agency, a description
  of personnel qualifications, and a plan for providing continuing
  training and education for the personnel during the term of the
  license;
               (3)  documentation establishing that the applicant is
  capable of meeting the minimum standards established by the
  executive commissioner relating to the quality of care;
               (4)  a plan that provides for the orderly transfer of
  care of the applicant's clients if the applicant cannot maintain or
  deliver home health, hospice, habilitation, or personal assistance
  services under the license;
               (5)  identifying information on the home and community
  support services agency owner, administrator, and chief financial
  officer to enable the department to conduct criminal background
  checks on those persons;
               (6)  identification of any controlling person with
  respect to the applicant; and
               (7)  documentation relating to any controlling person
  identified under Subdivision (6), if requested by the department
  and relevant to the controlling person's compliance with any
  applicable licensing standard required or adopted under this
  chapter.
         SECTION 6.  Sections 142.006(a) and (g), Health and Safety
  Code, are amended to conform to S.B. 219, Acts of the 84th
  Legislature, Regular Session, 2015, and further amended to read as
  follows:
         (a)  The 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.
         (g)  The license must designate the types of services that
  the home and community support services agency is authorized to
  provide at or from the designated place of business. The types of
  services that may be designated include dialysis and habilitation.
         SECTION 7.  Sections 142.009(b) and (c), Health and Safety
  Code, are amended to read as follows:
         (b)  A home and community support services agency shall
  provide each person who receives home health, hospice,
  habilitation, or personal assistance services with a written
  statement that contains the name, address, and telephone number of
  the department and a statement that informs the recipient that a
  complaint against a home and community support services agency may
  be directed to the department.
         (c)  The department or its authorized representative shall
  investigate each complaint received regarding the provision of home
  health, hospice, habilitation, or personal assistance services,
  including any allegation of abuse, neglect, or exploitation of a
  child under the age of 18, and may, as a part of the investigation:
               (1)  conduct an unannounced survey of a place of
  business, including an inspection of medical and personnel records,
  if the department has reasonable cause to believe that the place of
  business is in violation of this chapter or a rule adopted under
  this chapter;
               (2)  conduct an interview with a recipient of home
  health, hospice, habilitation, or personal assistance services,
  which may be conducted in the recipient's home if the recipient
  consents;
               (3)  conduct an interview with a family member of a
  recipient of home health, hospice, habilitation, or personal
  assistance services who is deceased or other person who may have
  knowledge of the care received by the deceased recipient of the home
  health, hospice, habilitation, or personal assistance services; or
               (4)  interview a physician or other health care
  practitioner, including a member of the personnel of a home and
  community support services agency, who cares for a recipient of
  home health, hospice, habilitation, or personal assistance
  services.
         SECTION 8.  Sections 142.0091(a) and (b), Health and Safety
  Code, are amended to read as follows:
         (a)  The department shall provide specialized training to
  representatives of the department who survey home and community
  support services agencies. The training must include information
  relating to:
               (1)  the conduct of appropriate surveys that do not
  focus exclusively on medical standards under an acute care model;
  [and]
               (2)  acceptable delegation of nursing tasks; and
               (3)  the provision of person-centered services.
         (b)  In developing and updating the training required by
  Subsection (a), the department shall consult with and include
  providers of home health, hospice, habilitation, and personal
  assistance services, recipients of those services and their family
  members, and representatives of appropriate advocacy
  organizations.
         SECTION 9.  Section 142.0092(a), Health and Safety Code, is
  amended to read as follows:
         (a)  The department shall maintain records or documents
  relating to complaints directed to the department by consumers of
  home health, hospice, habilitation, or personal assistance
  services. The department shall organize the records or documents
  according to standard, statewide categories as determined by the
  department. In determining appropriate categories, the department
  shall make distinctions based on factors useful to the public in
  assessing the quality of services provided by a home and community
  support services agency, including whether the complaint:
               (1)  was determined to be valid or invalid;
               (2)  involved significant physical harm or death to a
  patient;
               (3)  involved financial exploitation of a patient; or
               (4)  resulted in any sanction imposed against the
  agency.
         SECTION 10.  Section 142.0093(a), Health and Safety Code, is
  amended to read as follows:
         (a)  A person licensed under this chapter may not retaliate
  against another person for filing a complaint, presenting a
  grievance, or providing in good faith information relating to home
  health, hospice, habilitation, or personal assistance services
  provided by the license holder.
         SECTION 11.  Section 142.010(a), Health and Safety Code, as
  amended by S.B. 219, Acts of the 84th Legislature, Regular Session,
  2015, is 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
  $2,000 for a license to provide home health, hospice, habilitation,
  or personal assistance services.
         SECTION 12.  Sections 142.012(b) and (e), Health and Safety
  Code, are amended to read as follows:
         (b)  The executive commissioner 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,
  habilitation, or personal assistance services as necessary to
  protect the public.
         (e)  The department shall require each person or home and
  community support services agency providing home health, hospice,
  habilitation, or personal assistance services to implement and
  enforce the applicable provisions of Chapter 102, Human Resources
  Code.
         SECTION 13.  Section 142.014(a), Health and Safety Code, is
  amended to read as follows:
         (a)  A person who engages in the business of providing home
  health, hospice, habilitation, or personal assistance service, or
  represents to the public that the person is a provider of home
  health, hospice, habilitation, and personal assistance services
  for pay, without a license issued under this chapter authorizing
  the services that are being provided is liable for a civil penalty
  of not less than $1,000 or more than $2,500 for each day of
  violation. Penalties may be appropriated only to the department
  and to administer this chapter.
         SECTION 14.  Section 142.017(a), Health and Safety Code, is
  amended to read as follows:
         (a)  The 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.
         SECTION 15.  Subchapter D, Chapter 161, Human Resources
  Code, is amended by adding Section 161.088 to read as follows:
         Sec. 161.088.  ADMINISTRATIVE PENALTIES. (a)  This section
  applies to the following waiver programs established under Section
  1915(c), Social Security Act (42 U.S.C. Section 1396n(c)), and
  administered by the department to serve persons with an
  intellectual or developmental disability:
               (1)  the home and community-based services (HCS) waiver
  program; and
               (2)  the Texas home living (TxHmL) waiver program.
         (b)  The department 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 department assesses an administrative penalty
  against a provider for a violation of a law or rule, the department
  may not impose a payment hold against or otherwise withhold
  contract payments from the provider for the same violation of a law
  or rule.
         (c)  After consulting with appropriate stakeholders, the
  executive commissioner shall develop and adopt rules regarding the
  imposition of administrative penalties under this section.  The
  rules must:
               (1)  specify the types of violations that warrant
  imposition of an administrative penalty;
               (2)  establish a schedule of progressive
  administrative penalties in accordance with the relative type,
  frequency, and seriousness of a violation;
               (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;
               (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.
         (d)  In specifying the types of violations that warrant
  imposition of an administrative penalty under Subsection (c), the
  executive commissioner shall specify the types of minor violations
  that allow a provider an opportunity to take corrective action
  before a penalty is imposed.
         (e)  In establishing the schedule of progressive
  administrative penalties and penalty amounts under Subsection (c),
  the executive commissioner must consider:
               (1)  the seriousness of a violation, including:
                     (A)  the nature, circumstances, extent, and
  gravity of the violation; and
                     (B)  the hazard to the health or safety of
  recipients resulting from the violation;
               (2)  the provider's history of previous violations;
               (3)  whether the provider:
                     (A)  had prior knowledge of the violation,
  including whether the provider identified the violation through the
  provider's internal quality assurance process; and
                     (B)  made any efforts to mitigate or correct the
  identified violation;
               (4)  the penalty amount necessary to deter future
  violations; and
               (5)  any other matter justice may require.
         (f)  In lieu of imposing an administrative penalty under this
  section, the department shall allow a provider found to have
  committed a minor violation specified by rule in accordance with
  Subsection (d) to have a reasonable period of time that is not less
  than 45 days after the date the department sends notice to the
  provider of the violation to take corrective action regarding the
  violation. The department may not allow time for corrective action
  for any violation that is not a minor violation.
         SECTION 16.  (a)  Not later than December 1, 2015, 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.
         (b)  Notwithstanding Section 142.017, Health and Safety
  Code, as amended by this Act, a person is not required to hold a
  license under Chapter 142, Health and Safety Code, to engage in the
  business of habilitation services until January 1, 2016.
         SECTION 17.  The Department of Aging and Disability Services
  may impose an administrative penalty in accordance with Section
  161.088, Human Resources Code, as added by this Act, only for
  conduct that occurs on or after the effective date of this Act.
         SECTION 18.  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 19.  This Act takes effect September 1, 2015.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 4001 was passed by the House on April
  23, 2015, by the following vote:  Yeas 134, Nays 7, 2 present, not
  voting; and that the House concurred in Senate amendments to H.B.
  No. 4001 on May 26, 2015, by the following vote:  Yeas 136, Nays 6,
  2 present, not voting.
 
  ______________________________
  Chief Clerk of the House   
 
         I certify that H.B. No. 4001 was passed by the Senate, with
  amendments, on May 22, 2015, by the following vote:  Yeas 29, Nays
  2.
 
  ______________________________
  Secretary of the Senate   
  APPROVED: __________________
                  Date       
   
           __________________
                Governor