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.