HBA-JRA S.B. 94 76(R) HBA-JRA S.B. 94 76(R)BILL ANALYSIS Office of House Bill AnalysisOffice of House Bill AnalysisS.B. 94 By: Moncrief Public Health 4/16/1999 Committee Report (Amended) BACKGROUND AND PURPOSE The home health industry has grown recently due to the development of community-based services as an alternative to medical or institutional care and an aging population. The Senate Interim Committee on Home Health and Assisted Living examined the regulatory structure of home health in Texas and identified several areas of concern. S.B. 94 requires the Texas Department of Health to protect the clients of home and community support service agencies by regulating those agencies and 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. This bill also adopts the standards relating to a "controlling person" introduced in nursing home reform legislation and sets forth procedures for handling home health agency complaints and reports of abuse, exploitation, or neglect. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Texas Department of Health in SECTION 2 (Sections 142.0011 and 142.0012, Health and Safety Code), and that rulemaking authority previously delegated to the Texas Board of Health is modified in SECTIONS 4 and 10 (Sections 142.004 and 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 Subdivisions (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) Sets forth the purpose of this chapter and the components of quality care. (b) Requires the Texas Department of Health (TDH) 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 providing the public with information relating to the agencies in this state. Sec. 142.0012. CONTROLLING PERSON. (a) Provides 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 an agency or other person. (b) Provides that for this chapter, "controlling person" includes a management company or business entity that operates or contracts with others for the operation of an agency; a person who is a controlling person of a management company or business entity that operates an agency or that contracts with another person for the operation of an agency; and any other 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 in a position of 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 an agency. (d) Authorizes TDH to adopt rules that specify 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 (Workers' Compensation), Labor Code, rather than under Article 8308 1.01 et seq., V.T.C.S. (Texas Workers' Compensation Act). 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 TDH 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 conforming changes. 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 TDH 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 TDH 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 conforming 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 142.0091-142.0094, as follows: Sec. 142.0091. SURVEYOR TRAINING. Requires TDH 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 TDH 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 TDH to maintain records and documents regarding consumer complaints of home health, hospice, or personal assistance services. Requires TDH to organize the records and documents according to standard, statewide categories. Sets forth distinctions TDH is required to make in determining appropriate categories based on factors useful to the public in assessing the agency. Requires TDH 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. Sec. 142.0094. USE OF REGULATORY SURVEY REPORTS AND OTHER DOCUMENTS. (a) Provides that a survey report or other document prepared by TDH relating to the regulation of an agency is not admissible as evidence in a civil action to prove that the agency violated a standard prescribed under this chapter. (b) Provides that Subsection (a) does not apply to the admissibility as evidence of such documents in an enforcement action in which the state or agency or political subdivision of the state is a party; that are offered to establish warning or notice to an agency of a relevant TDH determination or under any rule or evidentiary predicate of the Texas Rules of Evidence; that prohibit or limit the testimony of a TDH employee as to information that an agency violated this chapter; or prohibit or limit the use of TDH survey reports or other documents in depositions or other forms of discovery conducted in connection with a civil action if use of the documents appears reasonably calculated to lead to the discovery of admissible evidence. SECTION 9. Amends Section 142.011(a), Health and Safety Code, to authorize TDH 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 TDH 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 TDH, 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" in this section. 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 TDH 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. Provides that this section does not affect the duty or authority of any state agency to conduct an investigation of alleged abuse, exploitation, or neglect as provided by other law. Sec. 142.019. CERTAIN PHYSICIAN REFERRALS PROHIBITED. Prohibits a physician from referring a patient to an agency with which the physician, the physician's family, or a member of the physician's household has a financial relationship. SECTION 12. 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 Texas Department of Human Services (DHS), upon the determination that an elderly or disabled person has been abused, exploited, or neglected by an employee of a licensed home and community services agency 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, that contracts with the home and community services agency for health care services, of DHS's determination. Requires DHS 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 13. 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 14. Provides that, to 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 15. 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 16. Emergency clause. EXPLANATION OF AMENDMENTS Committee Amendment #1 Adds the following appropriately numbered section and renumbers the sections of the bill as appropriate: SECTION ____. Amends Subchapter A, Chapter 142, Health and Safety Code, by adding Section 142.020, as follows: Sec. 142.020. DISPOSAL OF SPECIAL OR MEDICAL WASTE. Requires a home and community support services agency that generates special or medical waste while providing home health services in the client's place of residence or the agency's office location to comply with the rules of TDH relating to the disposition of special or medical waste. Requires a home and community support services agency to provide both verbal and written instructions to the agency's client regarding the proper procedure for disposing of sharps. Defines "sharps." Committee Amendment #2 SECTION 3. Amends Section 142.003(a), Health and Safety Code, to add an occupational therapist who provides home health services to a client only as part of and incidental to the person's private office practice to the list of health care providers that need not be licensed under this chapter. Committee Amendment #3 SECTION 8. Amends proposed Sections 142.0094(b)(1) and (2), Health and Safety Code, to provide that Subsection (a) does not bar the admission into evidence, rather than apply to the admissibility as evidence, of a survey report or other document prepared by TDH in an enforcement action in which the state or agency or political subdivision of the state is a party or that are offered to establish warning or notice to any agency of a relevant TDH determination or under any rule or evidentiary predicate of the Texas Rules of Evidence.