HBA-DMD H.B. 410 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 410
By: McCall
Public Health
2/10/1999
Introduced



BACKGROUND AND PURPOSE 

Currently, the results of an investigation initiated in response to a
consumer complaint regarding a home and community support services agency
(agency) are confidential under most circumstances. H.B. 410 allows for
public access to consumer complaints about these agencies.  The bill
requires a report to be made to the Department of Protective and Regulatory
Services or other appropriate agency when abuse or neglect occurs in an
agency.  It prohibits retaliation towards a person who files a complaint
about the agency.  The bill defines "controlling person" and prohibits a
physician from referring a patient to an agency where the physician is a
controlling person or has a personal interest in the facility unless it is
the sole agency in a geographic region.  The bill allows for the Department
of Health to monitor agencies by regulating those agencies and by adopting
rules relating to the quality of care and life; monitoring factors related
to the health, safety, welfare, and dignity of each client; and imposing
remedies for violations. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Department of Health in SECTION 2
(Sections 142.0011 and 142.0012, Health and Safety Code), to the Board of
Health in SECTION 4 (Section 142.004, Health and Safety Code) and
rulemaking authority previously delegated to the Department of Health is
modified in SECTION 10 (Section 142.017, Health and Safety Code) of this
bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 142.001, Health and Safety Code, as follows:

Sec. 142.001.  DEFINITIONS.  Adds the definition for "controlling person"
to a list of definitions.  Specifies that a "social worker" is an
individual who is licensed, rather than certified, as a social worker under
Chapter 50, Human Resources Code (Licensing). Redesignates existing
Subdivisions (9)-(29) to (10)-(30). 

SECTION 2.  Amends Subchapter A, Chapter 142, Health and Safety Code, by
adding Sections 142.0011 and 142.0012, as follows: 

Sec. 142.0011.  SCOPE, PURPOSE, AND IMPLEMENTATION.  (a)  Specifies the
purpose of this chapter and sets forth the components of quality care.   

(b)  Requires the Department of Health (department) to protect the clients
of a home and community support services agency (agency) by regulating
those agencies and by adopting rules relating to the quality of care and
life; monitoring factors related to the health, safety, welfare, and
dignity of each client; imposing remedies for violations; enabling agencies
to provide clients ways to maintain the highest possible degree of
independence; and to provide the public with information relating to the
agencies in this state. 

(c)  Requires this chapter to be interpreted broadly to accomplish the
purposes identified in this section. 

Sec. 142.0012.  CONTROLLING PERSON.  (a)  Specifies that a controlling
person is one  who acts alone or in conjunction with others and has the
ability to directly or indirectly influence, direct, or cause the direction
of management, expenditure of money, or policies of a home and community
support services agency or other person.  
 
(b)  Specifies that for this chapter, "controlling person" includes a
management company or business entity that operates or contracts with
others for the operation of a home and community support services agency's;
a person who is a controlling person of a management company or business
entity that operates a home and community support services agency or that
contracts with another person for the operation of a home and community
support services agency; and any individual who because of a personal,
familial, or other relationship with the owner, manager, or provider of an
agency, is in a position of actual control or authority with respect to the
agency, whether or not the individual is formally named as an owner,
manager, director, officer, provider, consultant, contractor, or employee
of the agency.  

(c)  Establishes that a controlling person described by Subsection (b)
relating to the individual who is in actual control or authority with
respect to the agency, does not include an employee, lender, secured
creditor, or other person who does not exercise formal or actual influence
or control over the operation of a home and community support services
agency.  

(d)  Authorizes the department to adopt rules specifying the ownership
interests and other relationships that qualify a person as a controlling
person.  

SECTION 3.  Amends Section 142.003(a), Health and Safety Code, to provide
that licensing under this chapter is not necessary for an assisted living
facility, rather than a personal care facility, and for persons providing
home health or personal assistance services to an injured employee under
Title 5, Labor Code (Workers' Compensation), rather than under  the Texas
Workers' Compensation Act (Article 8308 1.01 et seq., V.T.C.S.).   

SECTION 4.  Amends Sections 142.004(c) and (d), Health and Safety Code, to
require the Board of Health (board), by rule, to require an applicant for a
home and community support services license (license) to provide the
department with identification and documentation of any controlling person
with respect to the applicant along with relevant documentation concerning
the controlling person's compliance with the applicable licensing standard
required or adopted by the board.  Makes a conforming and nonsubstantive
change.  

SECTION 5.  Amends Subchapter A, Chapter 142, Health and Safety Code, by
adding Section 142.005, as follows: 

Sec. 142.005.  COMPLIANCE RECORD IN OTHER STATES.  Authorizes the
department to require an applicant or license holder to provide compliance
information relating to the applicant, the license holder, or a controlling
person with respect to regulatory requirements in any other state in which
the applicant, license holder, or controlling person operates or has
operated an agency. 

SECTION 6.  Amends Section 142.006(a), Health and Safety Code, to require
the department to issue an agency license to provide home health, hospice,
or personal assistance services for each place of business to an applicant
if any controlling person with respect to the applicant complies with all
applicable licensing standards required or adopted by the board under this
chapter.  Redesignates Subdivisions (a)(1)-(3) to paragraphs (1)(A)-(C).
Makes nonsubstantive changes. 

SECTION  7.  Amends Section 142.009(d), Health and Safety Code, to include
certain federal forms in a list of exceptions to the general provision for
the confidentiality of documents related to the investigation of consumer
complaints regarding home and community support services agencies. 

SECTION 8.  Amends Subchapter A, Chapter 142, Health and Safety Code, by
adding Sections 142.0091-142.0093, as follows: 

 Sec. 142.0091.  SURVEYOR TRAINING.  Requires the department to provide
specialized training to its representatives who survey agencies, including
information relating to the conduct of surveys that do not focus
exclusively on medical standards under an acute care model and to the
acceptable delegation of nursing tasks.  Requires the department to consult
with providers of home health, hospice, or personal assistance services and
clients of home and community support service agencies in developing and
updating training required by this section. 

Sec. 142.0092.  CONSUMER COMPLAINT DATA.  Requires the department to
maintain records and documents regarding consumer complaints of home
health, hospice, or personal assistance services.  Requires the department
to organize the records and documents according to standard, statewide
categories.  Sets forth distinctions the department is required to make in
determining appropriate categories based on factors useful to the public in
assessing the agency.  Requires the department to provide the public
complaint information in a useful format that does not identify individuals
implicated in the complaints. 

Sec. 142.0093.  RETALIATION PROHIBITED.  Prohibits a person licensed under
this chapter from retaliating against another person who files a complaint,
presents a grievance, or in good faith provides information relating to
home health, hospice, or personal assistance services provided by the
license holder.  Provides that this section does not prohibit a license
holder from terminating an employee for a reason other than retaliation.   

SECTION 9.  Amends Section 142.011(a), Health and Safety Code, to authorize
the department to deny a license application, or suspend or revoke the
license of a person who engages in conduct that violates Section 161.091
(Prohibition on Illegal Remuneration).  Makes nonsubstantive changes.   

SECTION 10.  Amends Sections 142.017(a) and (d), Health and Safety Code, to
authorize the department to assess an administrative penalty against a
person who violates Section 161.091 (Prohibition on Illegal Remuneration),
if the violation relates to the provision of home health, hospice, or
personal assistance services.   Requires the department, by rule, to
establish a schedule of appropriate and graduated penalties for each
violation based on the history of previous violations by the person or a
controlling person with respect to that person.  

SECTION 11.  Amends Subchapter A, Chapter 142, Health and Safety Code, by
adding Sections 142.018 and 142.019, as follows: 

Sec. 142.018.  REPORTS OF ABUSE, EXPLOITATION, OR NEGLECT.  Defines
"abuse," "exploitation," and "neglect" as having the meanings assigned by
Section 48.002, Human Resources Code (Definitions).  Requires an agency to
report suspicions that a person receiving services from the agency has been
abused, exploited, or neglected by an employee of the agency to the
department and the Department of Protective and Regulatory Services or
other appropriate state agency as required by Sections 48.036 (Report) and
48.082 (Investigation of Reports in Other State Facilities), Human
Resources Code. 

Sec. 142.019.  CERTAIN PHYSICIAN REFERRALS PROHIBITED. (a)  Defines
"compensation arrangement," "financial relationship," "household," and
"immediate family." 

(b)  Prohibits a physician from referring a patient to an agency that the
physician, the physician's family, or a member of the physician's household
has a financial relationship with, except as provided by Subsection (d) or
(e).   

(c)  Prohibits an agency from presenting a claim for payment for services
provided to a patient who is referred by a physician who is in violation of
Subsection (b).  Requires the agency to refund the amount immediately if
the agency collects the payment in violation of this subsection. 

(d)  Establishes that a person does not have an ownership or investment
interest as prohibited by Subsection (b) if the person owns only: 

 (1) a investment security, including a share of stock or a bond,
debenture, note, or other debt instrument, that: 

 (A) may be on terms generally available to the public;  
(B) is in a corporation with stockholder equity on average of the last
three fiscal years greater than $75 million; 
(C) and is listed on the New York Stock Exchange (NYSE), the American Stock
Exchange, or a regional exchange, or a foreign security listed on a
recognized foreign, national or regional exchange, or traded under an
automated interdealer quotation system operated by the National Association
of Securities Dealers; or   

(2) a share of stock in a regulated investment company as defined by
Section 851(a), Internal Revenue Code of 1986, with total assets of $75
million on average over the past three fiscal years.  Section 851(a)
defines "regulated investment company" as any domestic corporation which,
at all times during the taxable year is registered under the Investment
Company Act of 1940 as a management company or unit investment trust; or
has in effect an election under such Act to be treated as a business
company. 

(e)  Establishes that this section does not prohibit a physician from
referring a patient to an agency  in special circumstances, as defined by
department rule, including when the agency is the sole provider of services
in a geographical area or a referral to a particular agency is required
under the patient's health benefits plan.   

SECTION 12.  Amends Subchapter B, Chapter 531, Government Code, by adding
Section 531.0431, as follows: 

Sec. 531.0431.  HOME HEALTH CARE RATES.  Requires the Health and Human
Services Commission (commission) and each appropriate health and human
services agency to focus on the provision of quality, cost-effective
services to the residents of this state when setting payment rates for home
health care providers. 

SECTION 13.  Amends Subchapter C, Chapter 48, Human Resources Code, by
adding Section 48.0381, as follows: 

Sec. 48.0381.  NOTIFICATION OF LICENSING OR CONTRACTING AGENCY. Requires
the department, upon the determination that an elderly or disabled person
has been abused, exploited, or neglected by an employee of the home and
community services agency licensed under Chapter 142, Health and Safety
Code, to notify the state agency responsible for licensing the home and
community services agency and any health and human services agency defined
by Section 531.001, Government Code (Definitions), that contracts with the
home and community services agency for health care services.  Requires the
department to provide to the licensing state agency and any contracting
health and human services agency access to the records or documents
relating to the investigation.  Establishes that providing access to a
confidential record or document does not constitute a waiver of
confidentiality. 

SECTION 14.  Requires any state agency to request a waiver or authorization
from a federal agency if the state agency determines that such a waiver is
needed to implement this Act.  Authorizes the state agency to delay
implementation of this Act until the waiver or authorization is granted. 

SECTION 15.  Provides that the extent of any conflict, this Act prevails
over another Act of the 76th Legislature, Regular Session, 1999, relating
to nonsubstantive additions to and corrections in enacted codes. 

SECTION 16. Effective date: September 1, 1999.
Makes application of Sections 142.011(a) and 142.017(a) and (d), as amended
by this Act, prospective.    

SECTION 17.  Emergency clause.