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AN ACT
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relating to providers of certain home and community support |
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services; authorizing a fee, providing penalties, and requiring an |
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occupational license. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 142.001, Health and Safety Code, is |
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amended by adding Subdivision (11-c) and amending Subdivisions (12) |
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and (23) to read as follows: |
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(11-c) "Habilitation" means habilitation services, as |
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defined by Section 534.001, Government Code, delivered by a |
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licensed home and community support services agency. |
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(12) "Home and community support services agency" |
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means a person who provides home health, hospice, habilitation, or |
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personal assistance services for pay or other consideration in a |
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client's residence, an independent living environment, or another |
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appropriate location. |
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(23) "Place of business" means an office of a home and |
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community support services agency that maintains client records or |
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directs home health, hospice, habilitation, or personal assistance |
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services. The term does not include an administrative support |
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site. |
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SECTION 2. Section 142.0011, Health and Safety Code, as |
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amended by S.B. 219, Acts of the 84th Legislature, Regular Session, |
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2015, is amended to read as follows: |
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Sec. 142.0011. SCOPE, PURPOSE, AND IMPLEMENTATION. (a) |
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The purpose of this chapter is to ensure that home and community |
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support services agencies in this state deliver the highest |
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possible quality of care. This chapter and the rules adopted under |
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this chapter establish minimum standards for acceptable quality of |
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care, and a violation of a minimum standard established or adopted |
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under this chapter is a violation of law. For purposes of this |
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chapter, components of quality of care include: |
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(1) client independence and self-determination; |
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(2) humane treatment; |
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(3) continuity of care; |
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(4) coordination of services; |
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(5) professionalism of service providers; |
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(6) quality of life; [and] |
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(7) client satisfaction with services; and |
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(8) person-centered service delivery. |
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(b) The executive commissioner shall protect clients of |
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home and community support services agencies by adopting rules |
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relating to quality of care and quality of life. |
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(c) The department shall protect clients of home and |
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community support services agencies by: |
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(1) regulating those agencies; |
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(2) strictly monitoring factors relating to the |
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health, safety, welfare, and dignity of each client; |
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(3) imposing prompt and effective remedies for |
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violations of this chapter and rules and standards adopted under |
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this chapter; |
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(4) enabling agencies to provide person-centered |
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services that allow clients to maintain the highest possible degree |
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of independence and self-determination; and |
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(5) providing the public with helpful and |
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understandable information relating to agencies in this state. |
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SECTION 3. Section 142.002(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) Except as provided by Section 142.003, a person, |
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including a health care facility licensed under this code, may not |
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engage in the business of providing home health, hospice, |
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habilitation, or personal assistance services, or represent to the |
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public that the person is a provider of home health, hospice, |
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habilitation, or personal assistance services for pay without a |
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home and community support services agency license authorizing the |
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person to perform those services issued by the department for each |
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place of business from which home health, hospice, habilitation, or |
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personal assistance services are directed. A certified agency must |
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have a license to provide certified home health services. |
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SECTION 4. Section 142.003(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) The following persons need not be licensed under this |
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chapter: |
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(1) a physician, dentist, registered nurse, |
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occupational therapist, or physical therapist licensed under the |
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laws of this state who provides home health services to a client |
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only as a part of and incidental to that person's private office |
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practice; |
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(2) a registered nurse, licensed vocational nurse, |
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physical therapist, occupational therapist, speech therapist, |
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medical social worker, or any other health care professional as |
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determined by the department who provides home health services as a |
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sole practitioner; |
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(3) a registry that operates solely as a clearinghouse |
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to put consumers in contact with persons who provide home health, |
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hospice, habilitation, or personal assistance services and that |
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does not maintain official client records, direct client services, |
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or compensate the person who is providing the service; |
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(4) an individual whose permanent residence is in the |
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client's residence; |
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(5) an employee of a person licensed under this |
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chapter who provides home health, hospice, habilitation, or |
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personal assistance services only as an employee of the license |
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holder and who receives no benefit for providing the services, |
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other than wages from the license holder; |
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(6) a home, nursing home, convalescent home, assisted |
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living facility, special care facility, or other institution for |
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individuals who are elderly or who have disabilities that provides |
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home health or personal assistance services only to residents of |
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the home or institution; |
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(7) a person who provides one health service through a |
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contract with a person licensed under this chapter; |
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(8) a durable medical equipment supply company; |
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(9) a pharmacy or wholesale medical supply company |
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that does not furnish services, other than supplies, to a person at |
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the person's house; |
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(10) a hospital or other licensed health care facility |
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that provides home health or personal assistance services only to |
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inpatient residents of the hospital or facility; |
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(11) a person providing home health or personal |
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assistance services to an injured employee under Title 5, Labor |
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Code; |
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(12) a visiting nurse service that: |
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(A) is conducted by and for the adherents of a |
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well-recognized church or religious denomination; and |
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(B) provides nursing services by a person exempt |
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from licensing by Section 301.004, Occupations Code, because the |
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person furnishes nursing care in which treatment is only by prayer |
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or spiritual means; |
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(13) an individual hired and paid directly by the |
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client or the client's family or legal guardian to provide home |
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health or personal assistance services; |
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(14) a business, school, camp, or other organization |
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that provides home health or personal assistance services, |
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incidental to the organization's primary purpose, to individuals |
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employed by or participating in programs offered by the business, |
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school, or camp that enable the individual to participate fully in |
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the business's, school's, or camp's programs; |
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(15) a person or organization providing |
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sitter-companion services or chore or household services that do |
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not involve personal care, health, or health-related services; |
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(16) a licensed health care facility that provides |
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hospice services under a contract with a hospice; |
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(17) a person delivering residential acquired immune |
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deficiency syndrome hospice care who is licensed and designated as |
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a residential AIDS hospice under Chapter 248; |
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(18) the Texas Department of Criminal Justice; |
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(19) a person that provides home health, hospice, |
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habilitation, or personal assistance services only to persons |
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receiving benefits under: |
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(A) the home and community-based services (HCS) |
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waiver program; |
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(B) the Texas home living (TxHmL) waiver program; |
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[or] |
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(C) the STAR + PLUS or other Medicaid managed |
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care program under the program's HCS or TxHmL certification; or |
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(D) Section 534.152, Government Code; or |
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(20) an individual who provides home health or |
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personal assistance services as the employee of a consumer or an |
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entity or employee of an entity acting as a consumer's fiscal agent |
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under Section 531.051, Government Code. |
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SECTION 5. Sections 142.004(a) and (c), Health and Safety |
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Code, are amended to conform to S.B. 219, Acts of the 84th |
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Legislature, Regular Session, 2015, and further amended to read as |
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follows: |
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(a) An applicant for a license to provide home health, |
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hospice, habilitation, or personal assistance services must: |
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(1) file a written application on a form prescribed by |
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the department indicating the type of service the applicant wishes |
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to provide; |
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(2) cooperate with any surveys required by the |
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department for a license; and |
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(3) pay the license fee prescribed by this chapter. |
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(c) The executive commissioner by rule shall require that, |
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at a minimum, before the department may approve a license |
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application, the applicant must provide to the department: |
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(1) documentation establishing that, at a minimum, the |
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applicant has sufficient financial resources to provide the |
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services required by this chapter and by the department during the |
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term of the license; |
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(2) a list of the management personnel for the |
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proposed home and community support services agency, a description |
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of personnel qualifications, and a plan for providing continuing |
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training and education for the personnel during the term of the |
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license; |
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(3) documentation establishing that the applicant is |
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capable of meeting the minimum standards established by the |
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executive commissioner relating to the quality of care; |
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(4) a plan that provides for the orderly transfer of |
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care of the applicant's clients if the applicant cannot maintain or |
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deliver home health, hospice, habilitation, or personal assistance |
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services under the license; |
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(5) identifying information on the home and community |
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support services agency owner, administrator, and chief financial |
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officer to enable the department to conduct criminal background |
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checks on those persons; |
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(6) identification of any controlling person with |
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respect to the applicant; and |
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(7) documentation relating to any controlling person |
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identified under Subdivision (6), if requested by the department |
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and relevant to the controlling person's compliance with any |
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applicable licensing standard required or adopted under this |
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chapter. |
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SECTION 6. Sections 142.006(a) and (g), Health and Safety |
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Code, are amended to conform to S.B. 219, Acts of the 84th |
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Legislature, Regular Session, 2015, and further amended to read as |
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follows: |
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(a) The department shall issue a home and community support |
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services agency license to provide home health, hospice, |
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habilitation, or personal assistance services for each place of |
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business to an applicant if: |
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(1) the applicant: |
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(A) qualifies for the license to provide the type |
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of service that is to be offered by the applicant; |
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(B) submits an application and license fee as |
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required by this chapter; and |
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(C) complies with all applicable licensing |
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standards required or adopted under this chapter; and |
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(2) any controlling person with respect to the |
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applicant complies with all applicable licensing standards |
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required or adopted under this chapter. |
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(g) The license must designate the types of services that |
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the home and community support services agency is authorized to |
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provide at or from the designated place of business. The types of |
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services that may be designated include dialysis and habilitation. |
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SECTION 7. Sections 142.009(b) and (c), Health and Safety |
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Code, are amended to read as follows: |
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(b) A home and community support services agency shall |
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provide each person who receives home health, hospice, |
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habilitation, or personal assistance services with a written |
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statement that contains the name, address, and telephone number of |
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the department and a statement that informs the recipient that a |
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complaint against a home and community support services agency may |
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be directed to the department. |
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(c) The department or its authorized representative shall |
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investigate each complaint received regarding the provision of home |
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health, hospice, habilitation, or personal assistance services, |
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including any allegation of abuse, neglect, or exploitation of a |
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child under the age of 18, and may, as a part of the investigation: |
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(1) conduct an unannounced survey of a place of |
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business, including an inspection of medical and personnel records, |
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if the department has reasonable cause to believe that the place of |
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business is in violation of this chapter or a rule adopted under |
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this chapter; |
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(2) conduct an interview with a recipient of home |
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health, hospice, habilitation, or personal assistance services, |
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which may be conducted in the recipient's home if the recipient |
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consents; |
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(3) conduct an interview with a family member of a |
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recipient of home health, hospice, habilitation, or personal |
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assistance services who is deceased or other person who may have |
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knowledge of the care received by the deceased recipient of the home |
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health, hospice, habilitation, or personal assistance services; or |
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(4) interview a physician or other health care |
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practitioner, including a member of the personnel of a home and |
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community support services agency, who cares for a recipient of |
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home health, hospice, habilitation, or personal assistance |
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services. |
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SECTION 8. Sections 142.0091(a) and (b), Health and Safety |
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Code, are amended to read as follows: |
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(a) The department shall provide specialized training to |
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representatives of the department who survey home and community |
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support services agencies. The training must include information |
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relating to: |
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(1) the conduct of appropriate surveys that do not |
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focus exclusively on medical standards under an acute care model; |
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[and] |
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(2) acceptable delegation of nursing tasks; and |
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(3) the provision of person-centered services. |
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(b) In developing and updating the training required by |
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Subsection (a), the department shall consult with and include |
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providers of home health, hospice, habilitation, and personal |
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assistance services, recipients of those services and their family |
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members, and representatives of appropriate advocacy |
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organizations. |
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SECTION 9. Section 142.0092(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) The department shall maintain records or documents |
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relating to complaints directed to the department by consumers of |
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home health, hospice, habilitation, or personal assistance |
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services. The department shall organize the records or documents |
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according to standard, statewide categories as determined by the |
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department. In determining appropriate categories, the department |
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shall make distinctions based on factors useful to the public in |
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assessing the quality of services provided by a home and community |
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support services agency, including whether the complaint: |
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(1) was determined to be valid or invalid; |
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(2) involved significant physical harm or death to a |
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patient; |
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(3) involved financial exploitation of a patient; or |
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(4) resulted in any sanction imposed against the |
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agency. |
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SECTION 10. Section 142.0093(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) A person licensed under this chapter may not retaliate |
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against another person for filing a complaint, presenting a |
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grievance, or providing in good faith information relating to home |
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health, hospice, habilitation, or personal assistance services |
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provided by the license holder. |
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SECTION 11. Section 142.010(a), Health and Safety Code, as |
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amended by S.B. 219, Acts of the 84th Legislature, Regular Session, |
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2015, is amended to read as follows: |
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(a) The executive commissioner by rule shall set license |
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fees for home and community support services agencies in amounts |
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that are reasonable to meet the costs of administering this |
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chapter, except that the fees may not be less than $600 or more than |
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$2,000 for a license to provide home health, hospice, habilitation, |
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or personal assistance services. |
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SECTION 12. Sections 142.012(b) and (e), Health and Safety |
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Code, are amended to read as follows: |
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(b) The executive commissioner by rule shall set minimum |
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standards for home and community support services agencies licensed |
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under this chapter that relate to: |
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(1) qualifications for professional and |
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nonprofessional personnel, including volunteers; |
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(2) supervision of professional and nonprofessional |
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personnel, including volunteers; |
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(3) the provision and coordination of treatment and |
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services, including support and bereavement services, as |
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appropriate; |
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(4) the management, ownership, and organizational |
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structure, including lines of authority and delegation of |
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responsibility and, as appropriate, the composition of an |
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interdisciplinary team; |
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(5) clinical and business records; |
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(6) financial ability to carry out the functions as |
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proposed; |
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(7) safety, fire prevention, and sanitary standards |
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for residential units and inpatient units; and |
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(8) any other aspects of home health, hospice, |
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habilitation, or personal assistance services as necessary to |
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protect the public. |
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(e) The department shall require each person or home and |
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community support services agency providing home health, hospice, |
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habilitation, or personal assistance services to implement and |
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enforce the applicable provisions of Chapter 102, Human Resources |
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Code. |
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SECTION 13. Section 142.014(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) A person who engages in the business of providing home |
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health, hospice, habilitation, or personal assistance service, or |
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represents to the public that the person is a provider of home |
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health, hospice, habilitation, and personal assistance services |
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for pay, without a license issued under this chapter authorizing |
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the services that are being provided is liable for a civil penalty |
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of not less than $1,000 or more than $2,500 for each day of |
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violation. Penalties may be appropriated only to the department |
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and to administer this chapter. |
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SECTION 14. Section 142.017(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) The department may assess an administrative penalty |
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against a person who violates: |
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(1) this chapter or a rule adopted under this chapter; |
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or |
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(2) Section 102.001, Occupations Code, if the |
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violation relates to the provision of home health, hospice, |
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habilitation, or personal assistance services. |
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SECTION 15. Subchapter D, Chapter 161, Human Resources |
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Code, is amended by adding Section 161.088 to read as follows: |
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Sec. 161.088. ADMINISTRATIVE PENALTIES. (a) This section |
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applies to the following waiver programs established under Section |
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1915(c), Social Security Act (42 U.S.C. Section 1396n(c)), and |
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administered by the department to serve persons with an |
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intellectual or developmental disability: |
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(1) the home and community-based services (HCS) waiver |
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program; and |
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(2) the Texas home living (TxHmL) waiver program. |
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(b) The department may assess and collect an administrative |
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penalty against a provider who participates in a program to which |
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this section applies for a violation of a law or rule relating to |
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the program. If the department assesses an administrative penalty |
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against a provider for a violation of a law or rule, the department |
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may not impose a payment hold against or otherwise withhold |
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contract payments from the provider for the same violation of a law |
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or rule. |
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(c) After consulting with appropriate stakeholders, the |
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executive commissioner shall develop and adopt rules regarding the |
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imposition of administrative penalties under this section. The |
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rules must: |
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(1) specify the types of violations that warrant |
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imposition of an administrative penalty; |
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(2) establish a schedule of progressive |
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administrative penalties in accordance with the relative type, |
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frequency, and seriousness of a violation; |
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(3) prescribe reasonable amounts to be imposed for |
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each violation giving rise to an administrative penalty, subject to |
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Subdivision (4); |
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(4) authorize the imposition of an administrative |
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penalty in an amount not to exceed $5,000 for each violation; |
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(5) provide that a provider commits a separate |
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violation each day the provider continues to violate the law or |
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rule; |
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(6) ensure standard and consistent application of |
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administrative penalties throughout the state; and |
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(7) provide for an administrative appeals process to |
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adjudicate claims and appeals relating to the imposition of an |
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administrative penalty under this section that is in accordance |
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with Chapter 2001, Government Code. |
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(d) In specifying the types of violations that warrant |
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imposition of an administrative penalty under Subsection (c), the |
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executive commissioner shall specify the types of minor violations |
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that allow a provider an opportunity to take corrective action |
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before a penalty is imposed. |
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(e) In establishing the schedule of progressive |
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administrative penalties and penalty amounts under Subsection (c), |
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the executive commissioner must consider: |
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(1) the seriousness of a violation, including: |
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(A) the nature, circumstances, extent, and |
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gravity of the violation; and |
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(B) the hazard to the health or safety of |
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recipients resulting from the violation; |
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(2) the provider's history of previous violations; |
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(3) whether the provider: |
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(A) had prior knowledge of the violation, |
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including whether the provider identified the violation through the |
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provider's internal quality assurance process; and |
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(B) made any efforts to mitigate or correct the |
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identified violation; |
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(4) the penalty amount necessary to deter future |
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violations; and |
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(5) any other matter justice may require. |
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(f) In lieu of imposing an administrative penalty under this |
|
section, the department shall allow a provider found to have |
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committed a minor violation specified by rule in accordance with |
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Subsection (d) to have a reasonable period of time that is not less |
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than 45 days after the date the department sends notice to the |
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provider of the violation to take corrective action regarding the |
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violation. The department may not allow time for corrective action |
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for any violation that is not a minor violation. |
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SECTION 16. (a) Not later than December 1, 2015, the |
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executive commissioner of the Health and Human Services Commission |
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shall adopt the rules necessary to implement the changes in law made |
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by this Act. |
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(b) Notwithstanding Section 142.017, Health and Safety |
|
Code, as amended by this Act, a person is not required to hold a |
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license under Chapter 142, Health and Safety Code, to engage in the |
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business of habilitation services until January 1, 2016. |
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SECTION 17. The Department of Aging and Disability Services |
|
may impose an administrative penalty in accordance with Section |
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161.088, Human Resources Code, as added by this Act, only for |
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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, |
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the agency affected by the provision shall request the waiver or |
|
authorization and may delay implementing that provision until the |
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waiver or authorization is granted. |
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SECTION 19. This Act takes effect September 1, 2015. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I certify that H.B. No. 4001 was passed by the House on April |
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23, 2015, by the following vote: Yeas 134, Nays 7, 2 present, not |
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voting; and that the House concurred in Senate amendments to H.B. |
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No. 4001 on May 26, 2015, by the following vote: Yeas 136, Nays 6, |
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2 present, not voting. |
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______________________________ |
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Chief Clerk of the House |
|
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I certify that H.B. No. 4001 was passed by the Senate, with |
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amendments, on May 22, 2015, by the following vote: Yeas 29, Nays |
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2. |
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______________________________ |
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Secretary of the Senate |
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APPROVED: __________________ |
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Date |
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__________________ |
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Governor |