HBA-DMD S.B. 369 76(R)    BILL ANALYSIS


Office of House Bill AnalysisS.B. 369
By: Zaffirini
Human Services
5/5/1999
Engrossed



BACKGROUND AND PURPOSE 

The Texas Department of Human Services (department) is primarily
responsible for determining eligibility for and accessability to long-term
care and public assistance benefits.  The agency administers more than 30
state and federally-funded programs designed to help support
selfsufficiency, provide long-term care services, and provide domestic
violence education to low income families and children, persons who are
elderly or disabled, and victims of family violence. 

The department is subject to the Texas Sunset Act and will be abolished on
September 1, 1999, unless continued by the legislature. After its review of
the department, the Sunset Advisory Commission recommended continuation and
several statutory modifications. 

S.B. 369 changes the department's expiration date from September 1, 1999,
to September 1, 2011. This bill modifies the composition of the Texas Board
of Human Services (board). This bill also requires the Commissioner of
Human Services (commissioner) and the administrator of each local
administrative unit of the department to enter into a regional performance
agreement that includes goals, objectives, and performance criteria. In
addition, this bill requires the department to develop and implement a
system to limit the number of direct providers of department community care
services.  S.B. 369 requires the department to assist a recipient of
financial assistance in assessing the needs of the recipient and the
recipient's family that, if addressed, would help the recipient and the
recipient's family to attain and retain the capability of independence and
self-care. This bill also requires the department to inform an applicant
for medical assistance seeking nursing facility care of any community care
services that may be available to the applicant as an alternative to
nursing facility care. It requires the department to compile and
periodically update regulatory and service quality information regarding
nursing facilities for review by the public. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Texas Department of Human Services
in  SECTIONS 5, 12, and 13 (Sections 22.0071, 32.0212, and 32.0251, Human
Resources Code) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 21.002, Human Resources Code, to provide that the
Texas Department of Human Services (department) is abolished and this title
excluding any chapter that relates to a state agency other than the
department expires September 1, 2011, rather than 1999, unless continued in
existence.  Deletes the provision providing for the expiration of Chapter
40 (Department of Protective and Regulatory Services; Child Welfare and
Protective Services), Human Resources Code. 

SECTION 2.  Amends Sections 21.003(b) and (d), Human Resources Code, to
provide that the composition of the Texas Board of Human Services (board)
must include one licensed physician with expertise in geriatrics and one
other health care professional who is licensed, certified, or regulated by
a health care regulatory agency. Requires the governor to designate a board
member as the presiding officer of the board to serve in that capacity at
the will of the governor. Deletes the requirement for the board to elect a
presiding officer. 

 SECTION 3.  Amends Chapter 21, Human Resources Code, by adding Section
21.0033, to set forth standard Sunset language regarding board member
training. 

SECTION 4.  Amends Chapter 21, Human Resource Code, by adding Section
21.0061, as follows: 

Sec. 21.0061. REGIONAL PERFORMANCE AGREEMENTS WITH LOCAL ADMINISTRATIVE
UNITS. (a) Requires the Commissioner of Human Services (commissioner) and
the administrator of each local administrative unit of the department to
enter into a regional performance agreement that includes goals,
objectives, and performance criteria established by the commissioner under
Subsection (b) for the unit.   

(b) Requires the commissioner to establish and biennially update goals,
objectives, and performance criteria for each local administrative unit of
the department. Sets provisions that must be included in the goals,
objectives, and performance criteria. 

(c) Specifies requirements for the commissioner when developing the goals,
objectives, and performance criteria under Subsection (b). 

(d)  Requires the commissioner to assess the performance of each local
administrative unit based on the goals, objectives, and performance
criteria in the regional performance agreement between the commissioner and
the administrator of that unit. Requires the commissioner to include the
results of each assessment in the report on the operation and
administration of the department required under Section 21.011 (Reports),
Human Resources Code.  

(e) Requires the commissioner to consider the goals, objectives. and
performance criteria in each regional performance agreement and the
performance of each local administrative unit based on those standards when
evaluating and establishing regional funding allocations. 

(f)  Requires the department to inform health and human services agencies
and the general public in each region of the contents of the performance
agreement for that region. 

SECTION 5.  Amends Chapter 22, Human Resources Code, by adding Section
22.0071, as follows: 

Sec. 22.0071. CONTRACTS FOR COMMUNITY CARE SERVICES. Requires the
department, by rule, to develop and implement a system to limit the number
of direct providers of department community care services. Requires the
department to ensure that a sufficient number of director providers are
available for certain purposes when developing the system. Specifies
provisions that must be included in a contract for the delivery of
community care services under a department program. Requires the department
to monitor a community care provider's performance under a contract for the
delivery of community care services. Specifies requirements for the
department when monitoring the performance.  

SECTION 6.  Amends Section 22.018, Human Resources Code, as follows:

Sec. 22.018.  New title: COOPERATION WITH STATE OFFICE OF ADMINISTRATIVE
HEARINGS. (a) Requires the department and the chief administrative law
judge of the State Office of Administrative Hearings to adopt a memorandum
of understanding under which the State Office of Administrative Hearings
conducts all contested case hearings authorized or required by law to be
conducted by the department under the administrative procedure law, Chapter
2001 (Administrative Procedure), Government Code. Deletes text requiring
the department to establish and maintain a hearings division to administer
each hearing.  

(b) Requires the memorandum of understanding to require the chief
administrative law judge, the department, and the commissioner to cooperate
in connection with a contested case hearing and authorizes the memorandum
of understanding to authorize the State Office of Administrative Hearings
to perform any administrative act, including giving of notice, that is
required to be performed by the department or commissioner. Deletes text
providing that neither the department nor the department's legal division
may directly or indirectly influence a decision or the decision-making
process of the hearings division. 

(c) Requires the memorandum of understanding to address whether the
administrative law judge who conducts a contested case hearing for the
State Office of Administrative Hearings on behalf of the department is
required to enter the final decision in the case after completion of the
hearing or propose a decision to the department or the commissioner for
final consideration. 

(d) Requires the department by interagency contract to reimburse the State
Office of Administrative Hearings for the costs incurred in conducting
contested case hearings for the department. Authorizes the department to
pay an hourly fee for the costs of conducting those hearings or a fixed
annual fee negotiated biennially by the department and the State Office of
Administrative Hearings to coincide with the department's legislative
appropriations request. 

(e) Provides that a reference in law to the hearings division of the
department is considered to be a reference to the State Office of
Administrative Hearings when used in relation to a contested case hearing
under the administrative procedure law, Chapter 2001, Government Code. 

SECTION 7.  Amends Section 31.0032, Human Resources Code, by adding
Subsection (d), to require the department to give the highest priority to
the administrative processing of sanctions or penalties under this section
so that the department's records of the affected person promptly reflect
application of the sanctions or penalties. 

SECTION 8.  Amends the heading to Section 31.0095, Human Resources Code, as
follows: 

Sec. 31.0095.  New title: EMPLOYABILITY NEEDS ASSESSMENT.

SECTION 9.  Amends the heading to Section 31.010, Human Resources Code, as
follows: 

Sec. 31.010.  New title:  SUPPORT SERVICES RELATED TO EMPLOYABILITY OF A
RECIPIENT. 
  
SECTION 10.  Amends Subchapter A, Chapter 31, Human Resources Code, by
adding Section 31.011, as follows: 

Sec. 31.011. PERSONAL AND FAMILIAL NEEDS ASSESSMENT AND SUPPORT SERVICES.
(a) Requires the department to assist a recipient of financial assistance
in assessing the needs, other than employability needs assessed under
Section 31.0095, of the recipient and the recipient's family that, if
addressed, would help the recipient and the recipient's family to attain
and retain the capability of independence and self-care. 

(b) Requires the department, based on the needs assessment under this
section, to refer the recipient and the recipient's family to appropriate
preventive and support services provided by the department or any other
public or private entity. Specifies the preventive and support services to
which the department is authorized to refer a recipient and a recipient's
family under this section. 

SECTION 11.  Amends Subchapter A, Chapter 31, Human Resources Code, by
adding Section 31.0127, as follows: 

Sec. 31.0127. COORDINATION OF SERVICES TO TANF CLIENTS. (a) Provides that
in order to ensure efficient delivery of appropriate programs and services,
the Health and Human Services Commission (commission) is the state agency
designated to coordinate between the department and a state agency
providing child care services, Temporary Assistance for Needy Families work
programs, and Food Stamp Employment and Training services to an individual
or family who has been referred for programs and services by the
department. 

(b) Requires the commission to require a state agency that is providing
programs and services subject to coordination under Subsection (a) to
comply with Chapter 531 (Health and Human Services Commission), Government
Code, with regard to planning for the coordinated delivery of programs and
services, rulemaking, expenditure of funds, data collection and reporting,
and evaluations with regard to those programs and services. 

(c) Requires the commission and a state agency that is providing programs
and services subject to coordination under Subsection (a), not later than
October 1, 1999, to jointly develop and adopt a memorandum of understanding
outlining measures to be taken to increase the number of individuals
receiving Temporary Assistance for Needy Families cash assistance utilizing
the Job Training Partnership Act program or its successor program. 

(d) Requires the commission, by January 15 of each odd-numbered year, to
provide a report containing specified information to the governor, the
lieutenant governor, and the speaker of the house of representatives. 

(e) Provides that if the change in law made by this section with regard to
any program or service conflicts with federal law or would have the effect
of invalidating an exemption granted under federal law, the state agency is
not required to comply with this section with regard to that program or
service. 

(f) Sets forth that this section does not authorize the commission to
change the allocation or disbursement of funds allocated to the state under
the Workforce Investment Act of 1998 (29 U.S.C. Section 2801 et seq.) in a
manner that would result in the loss of exemption status. 

SECTION 12.  Amends Subchapter B, Chapter 32, Human Resources Code, by
adding Section 32.0212, as follows: 

Sec. 32.0212.  CONTRACTS FOR NURSING FACILITY CARE.  Requires the
department, by rule, to develop minimum contract performance standards for
a nursing facility that contracts with the department for the delivery of
medical assistance. Requires the department, when developing the minimum
performance standards, to use all appropriate performance data collected by
the department or another agency. 

(b) Provides that a contract with the department for the delivery of
medical assistance by a nursing facility must include the performance
standards developed under Subsection (a). 

(c) Requires the department, by rule, to develop and implement a quality
assessment process to evaluate the performance of a nursing facility that
contracts with the department for the delivery of medical assistance.
Requires the department, when developing the process, to use all
appropriate performance data collected by the department or any other
agency. 

(d) Requires the department to promptly address a nursing facility's
failure to meet minimum performance standards, if necessary, by imposing
penalties and sanctions, including termination of the facility's contract,
as authorized under the contract or as provided by law. 

SECTION 13.  Amends Subchapter B, Chapter 32, Human Resources Code, by
adding Section 32.0251, as follows: 

Sec. 32.0251. COMMUNITY CARE SERVICES FOR THE ELDERLY AND DISABLED. (a)
Requires the department to inform an applicant for medical assistance
seeking nursing facility care of any community care services that may be
available to the applicant as an alternative to nursing facility care. 
 
(b) Requires the department, by rule, to develop and implement a process of
presumptive eligibility determination for appropriate elderly or disabled
applicants for community care services. 

(c) Requires the department to design a plan of care for an applicant for
community care services based on the needs of the applicant identified by
the department. Requires the plan of care to be adjusted promptly as
necessary based on any change in the applicant's physical condition or need
for services, whether identified by the department during a periodic
reassessment of the applicant's condition or at any other time. 

(d) Requires the department to maintain a waiting list for the services, if
community care services are not readily available for an elderly or
disabled applicant because of a high demand for services.  Requires the
department to collect from each applicant who is placed on the waiting list
appropriate information to facilitate contacting the applicant when the
services become available and to allow efficient enrollment of the
applicant in those services. 

SECTION 14.  Amends the chapter heading to Chapter 51, Human Resources
Code, to read as follows: 
CHAPTER 51.  New heading: FAMILY VIOLENCE CENTERS

SECTION 15.  Amends Section 51.002, Human Resources Code, to define "family
violence shelter," "family violence residential center" and "family
violence," to modify the definition of "family violence shelter center" and
to delete the definition of "victim of family violence." 

SECTION 16. Amends Section 51.003, Human Resources Code, to authorize the
department to contract for, rather than to authorize the contract to
require, the provision of public education, consultation to the department,
research, evaluation, and liaison and training for other professionals who
work with victims of family violence, including professionals in the
criminal justice, medical, and social services fields, and for community or
civic groups. Requires the department to award all contracts through a
competitive bidding process unless that process would not be
cost-effective. Makes conforming and nonsubstantive changes. 

SECTION 17.  Amends Section 51.004, Human Resources Code, to specify the
conditions under which a family violence center, rather than a public or
private nonprofit organization, may be eligible for a contract with the
department. Specifies the conditions under which a family violence
nonresidential center is eligible for a contract under Section 51.003(a).
Requires the department, upon determining that a family violence
nonresidential center provides services that would not be otherwise
available in the service area, to include the family violence
nonresidential center in the noncompetitive procurement procedure.
Redesignates existing Subsection (c) to Subsection (d). Makes conforming
and nonsubstantive changes. 

SECTION 18.  Amends Section 51.005, Human Resources Code, to make
conforming changes.  

SECTION 19.  Amends Section 51.006, Human Resources Code, to make a
conforming change. 

SECTION 20.  Amends Section 51.007, Human Resources Code, to make a
conforming change. 

SECTION 21.  Amends Chapter 51, Human Resources Code, by adding Section
51.012, as follows: 

Sec. 51.012. COORDINATION OF SERVICES. Requires the department and the
Department of Protective and Regulatory Services to coordinate the
provision of violence prevention services for children and youth.  

SECTION 22. Amends Subchapter C, Chapter 242, Health and Safety Code, by
adding Section 242.0611, as follows: 

Sec. 242.0611. RULE-BASED CRITERIA FOR ENFORCEMENT REMEDIES. Requires  the
department to develop criteria, published in rules, regarding circumstances
that trigger the imposition of each of the remedies available to the
department.  

SECTION 23.  Amends Section 242.309, Health and Safety Code, as added by
Section 1.01, Chapter 1280, Acts of the 75th Legislature, Regular Session,
1997 (effective until federal determination of failure to comply with
federal regulations), as follows: 

Sec. 242.309. PROVISIONAL LICENSE. (a)  Requires the board to issue a
provisional license to an applicant currently licensed in another
jurisdiction who seeks a license in this state and who meets specified
requirements. Deletes text requiring the department to grant a provisional
license under this subchapter. Modifies the requirements for an applicant
who is seeking a provisional license to conform to the addition of an
applicant licensed in another jurisdiction. Makes conforming and
nonsubstantive changes. 

(b) Authorizes the board to waive, rather than authorizes an applicant to
be excused from, the requirement of Subsection (a) for an applicant if the
board, rather than department, determines that compliance with that
subsection would be a hardship to the applicant. Makes nonsubstantive
changes. 

(c) Requires the board to issue a license under this subchapter to the
provisional license holder if the provisional license holder is eligible to
be licensed under Section 242.306, (Examination), Health and Safety Code,
rather than if the holder passes the examination required by 242.306(c)
(License Application; Qualifications), or the provisional license holder
passes the part of the examination under Section 242.307 that relates to
the applicant's knowledge and understanding of the laws and rules relating
to the practice of nursing facility administration in this state. Makes
conforming and nonsubstantive changes. 

(d) Provides that the board must approve or deny, rather than requires the
department to complete the processing of, a provisional license holder's
application for a license no later than 180 days after the date the
provisional license is issued. Authorizes the board, rather than the
department, to extend the 180-day period if the results of an examination
have not been received by the board before the end of that period. Deletes
text authorizing the board to extend this time in order to receive the
results of a national examination or other examination administered or
graded by an outside organization recognized by the department. 

(e) Authorizes the board to establish a fee for provisional licenses in an
amount reasonable and necessary to cover the cost of issuing the license. 

SECTION 24.  Amends Section 242.310, Health and Safety Code, as added by
Section 1.01, Chapter 1280, Acts of the 75th Legislature, Regular Session,
1997 (effective until federal determination of failure to comply with
federal regulations), as follows: 

Sec. 242.310. LICENSE RENEWAL. (a) Prohibits a person whose license has
expired from engaging in activities that require a license until the
license has been renewed. Makes nonsubstantive changes. 

(b) Authorizes a person whose license has been expired for 90 days or less
to renew the license by paying to the department a renewal fee that is
equal to one and a half times, rather than one-half, the normally required
renewal fee. Makes conforming and nonsubstantive changes.  

(c) Authorizes a person whose license has been expired for more than 90
days but less than one year to renew the license by paying to the
department a renewal fee that is equal to two times the normally required
renewal fee, rather than all unpaid renewal fees and a fee that is equal to
the examination fee for the license. 

(d) Authorizes a person whose license has been expired for one year or more
to obtain a  new license by complying with the requirements and procedures,
including the examination requirements, for obtaining an original license. 

(e) Provides that a person licensed in this state, who moved to another
state, and has been licensed and practicing in the other state for at least
two years must pay to the department a fee that is equal to two times the
normally required renewal fee for the license, rather than must pay the
examination fee. Makes conforming and nonsubstantive changes. 

(f) Requires the department, no later than 31 days, rather than at least 30
days, before the date a person's license is scheduled to expire, to send
written notice of the impending expiration to the person at the person's
last known address according to the records of the department. Makes
conforming and nonsubstantive changes. 

SECTION 25.  Amends Section 242.314, Health and Safety Code, as added by
Section 2.01, Chapter 1280, Acts of the 75th Legislature, Regular Session,
1997 (effective upon federal determination of failure to comply with
federal regulations), as follows: 

Sec. 242.314. PROVISIONAL LICENSE. (a) Requires the board to issue a
provisional license to an applicant currently licensed in another
jurisdiction who seeks a license in this state and who meets specified
requirements. Deletes text requiring the department to grant a provisional
license under this subchapter. Makes conforming and nonsubstantive changes. 

(b) Authorizes the board to waive, rather than authorizes an applicant to
be excused from, the requirement of Subsection (a) for an applicant if the
board, rather than department, determines that compliance with that
subsection would be a hardship to the applicant. Makes nonsubstantive
changes. 

(c) Requires the board to issue a license under this subchapter to the
provisional license holder if the provisional license holder is eligible to
be licensed under Section 242.311, rather than if the holder passes the
examination required by242.311(c), or the provisional license holder passes
the part of the examination under Section 242.312 that relates to the
applicant's knowledge and understanding of the laws and rules relating to
the practice of nursing facility administration in this state. Makes
conforming and nonsubstantive changes. 

(d) Provides that the board must approve or deny, rather than requires the
board to complete the processing of, a provisional license holder's
application for a license no later than 180 days after the date the
provisional license is issued. Authorizes the board to extend the 180-day
period if the results of an examination have not been received by the board
before the end of that period. Deletes text authorizing the board to extend
this time in order to receive the results of a national examination or
other examination administered or graded by an outside organization
recognized by the board. 

(e) Authorizes the board to establish a fee for provisional licenses in an
amount reasonable and necessary to cover the cost of issuing the license. 

SECTION 26.  Amends Section 242.315, Health and Safety Code, as added by
Section 2.01, Chapter 1280, Acts of the 75th Legislature, Regular Session,
1997 (effective upon federal determination of failure to comply with
federal regulations), as follows: 

Sec. 242.315. LICENSE RENEWAL. (a) Prohibits a person whose license has
expired from engaging in activities that require a license until the
license has been renewed. Makes conforming and nonsubstantive changes.  

(b) Authorizes a person whose license has been expired for 90 days or less
to renew the license by paying to the board a renewal fee that is equal to
one and a half times the normally required fee, rather than a renewal fee
and a fee that is one-half of the examination fee for the license. Makes
conforming and nonsubstantive changes.  

 (c) Authorizes a person whose license has been expired for more than 90
days but less than one year to renew the license by paying to the board a
renewal fee that is equal to two times the normally required renewal fee,
rather than all unpaid fees and a fee that is equal to the examination fee
for the license. Makes conforming and nonsubstantive changes.  

(d) Authorizes a person whose license has been expired for one year or more
to obtain a new license by complying with the requirements and procedures,
including the examination requirements, for obtaining an original license.
Makes conforming and nonsubstantive changes.  

(e) Provides that a person licensed in this state, who moved to another
state, and has been licensed and practicing in the other state for at least
two years must pay to the department a fee that is equal to two times the
normally required renewal fee for the license, rather than must pay the
examination fee. Makes conforming and nonsubstantive changes. 

(f) Requires the department, no later than 31 days, rather than at least 30
days, before the date a person's license is scheduled to expire, to send
written notice of the impending expiration to the person at the person's
last known address according to the records of the department. Makes
conforming and nonsubstantive changes. 

SECTION 27.  Amends Chapter 242, Health and Safety Code, by adding
Subchapter Q, as follows: 

SUBCHAPTER Q.  PUBLIC ACCESS TO QUALITY
 OF SERVICE INFORMATION

Sec. 242.901. COMPILATION OF QUALITY OF SERVICE INFORMATION. (a) Requires
the department to compile and periodically update regulatory and service
quality information regarding nursing facilities licensed under this
chapter for review by the public.  Requires the department to consult with
nursing facility residents, their families, nursing facility providers, and
advocacy groups in determining the types of information to compile.
Provides that this subsection applies only to regulatory and service
quality information that is public information subject to public disclosure
under Chapter 552 (Public Information), Government Code. 

(b) Requires the department to compile the compilation required under
Subsection (a) in a format that is readily accessible to and understandable
by a member of the general public. 

(c) Specifies additional information compiled under Subsection (a) that
must be included for public benefit. 

(d) Provides that the cost incurred by a nursing facility in maintaining
and reporting regulatory and service quality information required under
this section is an allowable cost for reimbursement under the state
Medicaid program. 

Sec. 242.902. ACCESS TO QUALITY OF SERVICE INFORMATION.  Requires the
department to provides access to the information compiled under Section
242.901 through a toll-free line and the Internet, or other electronic
means. 

SECTION 28.  Amends Section 30.05(b)(3), Penal Code, to modify the
definition of "shelter center."  

SECTION 29.  Repealer:  Section 32.025(c) (Application for Medical
Assistance), Human Resources Code, relating to informing clients of
community care services of other available services. 

SECTION 30.  Makes application of this Act prospective, as it applies to
the qualifications for a license issued by the department. 

SECTION 31.  (a)  Provides that the changes in law made by this Act to the
qualifications of and the prohibitions applying to members of the board do
not affect the entitlement of a member serving on  the board immediately
before September 1, 1999, to continue to carry out the functions of the
board for the remainder of the member's term.  Provides that the changes in
law apply only to a member appointed on or after September 1, 1999.
Provides that this Act does not prohibit a person who is a member of the
board on September 1, 1999, from being reappointed to the board if the
person has the qualifications required for membership under Section 21.003,
Human Resources Code, as amended by this Act. 

(b) Requires the governor, when filling the first two vacancies on the
board that occur after the effective date of this Act, to ensure that the
composition of the board after those vacancies are filled complies with the
requirements of Subsection (b), Section 21.003, Human Resources Code, as
amended by this Act. 

SECTION 32.  (a) Requires the department, no later than January 1, 2000, to
develop and implement the system required by Subsection (a), Section
22.0071, Human Resources Code, as added by this Act. Makes application of
this Act prospective, as it applies to a contract. 

SECTION 33.  (a)  Makes application of this Act prospective, as it applies
to a contested case hearing conducted by the State Office of Administrative
Hearings on behalf of the Texas Department of Human Services, on January 1,
2000. 

(b) Authorizes the commissioner and the chief administrative law judge of
the State Office of Administrative Hearings to agree to transfer contested
cases pending before the department to the State Office of Administrative
Hearings before January 1, 2000. 

SECTION 34.  Makes application of Section 32.0212, Human Resources Code, as
added by this Act, prospective. 

SECTION 35. Provides that 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 is required to request the waiver or
authorization and the agency is authorized to delay implementing that
provision until the waiver or authorization is granted. 

SECTION 36.Effective date: September 1, 1999.

SECTION 37.Emergency clause.