HBA-GUM H.B. 3302 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 3302
By: Coleman
Public Health
4/26/1999
Introduced



BACKGROUND AND PURPOSE 

Currently, private community health centers (CMHCs) are not licensed by
this state.  Instead, each CMHC signs an attestation statement for the
Health Care Financing Administration (HCFA) stating that they are providing
the services required under the Public Health Services Act (42 U.S.C.,
300x-2) and the Social Security Act (42 U.S.C., 1395x(ff)).  The required
services include outpatient services, including specialized outpatient
services for certain persons, 24-hour emergency care services, partial
hospitalization services or psychological rehabilitation services, and
screening for patients being considered for admission to state mental
health facilities.  Because these centers are not licensed, HCFA may choose
to close them, and the centers are able only to subcontract with local
mental health authorities for partial hospitalization services which are
reimbursable under Medicare Part B.  In 1996, CMCHs were accused of fraud
and abuse.  The Texas Association for Behavioral Healthcare and the Texas
Association for Ambulatory Behavioral Healthcare were established in 1997
to deal with the allegations. 

H.B. 3302 requires CMCHs to be licensed by the Texas Health Department.
This bill requires the Texas Board of Health to adopt rules necessary for
the issuance, renewal, denial, suspension, and revocation of a license to
operate a CMHC.  This bill also sets forth the standards and requirements
for a license, and provides civil, criminal, and administrative penalties
for operating without a license. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Texas Board of Health in SECTION 1
(Sections 253.004 and 253.017, Health and Safety Code) of this bill.  

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Subtitle B, Title 4, Health and Safety Code, by adding
Chapter 253, as follows: 

CHAPTER 253.  BEHAVIORAL HEALTH CARE CENTERS 
SUBCHAPTER A.  GENERAL PROVISIONS

Sec. 253.001.  DEFINITIONS.  Defines "board," "center," and "department."

Sec. 253.002.  APPLICABILITY.  Provides that this chapter does not apply to
a community center established under Subchapter A (Community Centers),
Chapter 534, a mental health facility operated by the Texas Department of
Mental Health and Mental Retardation (MHMR) or a federal agency, or an
individual provider of behavioral or mental health care services. 

Sec. 253.003.  APPLICABILITY OF OTHER LAW.  Provides that Subchapter A,
Chapter 534, does not apply to a center licensed under this chapter. 

Sec. 253.004.  RULES.  Requires the Texas Board of Health (board) to adopt
rules necessary to implement this chapter.  Authorizes the board to adopt
rules for the issuance of a temporary or probationary license to operate a
center. 

SUBCHAPTER B.  LICENSING, FEES, AND INSPECTION

Sec. 253.011.  LICENSE REQUIRED.  Prohibits a person from operating a
facility that  provides a service described by Subchapter D unless the
person holds a license issued under this chapter. 

Sec. 253.012.  LICENSE APPLICATION.  Provides that an applicant for a
license under this chapter must submit an application in accordance with
board rules, and a nonrefundable license fee in an amount set by the board
to the Texas Department of Health (TDH). 

Sec. 253.013.  ISSUANCE OF LICENSE.  Requires TDH to issue a license to an
applicant if it finds that the applicant and the center meet the
requirements and rules adopted under this chapter.  Provides that a license
issued under this chapter is not transferable or assignable and is valid
only for operation of the center for which it is issued.  Provides that if
the holder of a license transfers a majority of ownership interest or
responsibility for the operation of the center to another person, the
license is void. 

Sec. 253.014.  LICENSE POSTING.  Requires a person who holds a license
issued under this chapter to post the license in a conspicuous place at the
center for which it is issued. 

Sec. 253.015.  LICENSE FEES.  Requires the board to impose fees for
licensure under this chapter in amounts reasonable and necessary to defray
the cost of administering this chapter. 

Sec. 253.016.  INSPECTIONS.  Authorizes TDH to inspect a center and its
records to ensure compliance with this chapter and rules adopted under this
chapter. 

Sec. 253.017.  STANDARDS.  Requires the board by rule to adopt standards
applicable to a center as enumerated by this section.  Provides that this
section does not authorize the board to establish the qualifications of a
licensed practitioner, or permit a person who is not authorized to provide
mental health services to provide those services in this state. 

SUBCHAPTER C.  ENFORCEMENT

Sec. 253.031.  DENIAL, SUSPENSION, OR REVOCATION OF LICENSE.  Authorizes
TDH to deny, suspend, or revoke a license for a violation of this chapter
or a rule adopted under this chapter.  Provides that except as provided by
Section 253.032, the denial, suspension, or revocation of a license and an
appeal from that action are governed by the procedures for a contested case
hearing under Chapter 2001 (Administrative Procedure), Government Code. 

Sec. 253.032.  EMERGENCY SUSPENSION ORDER.  (a)  Authorizes TDH to issue an
emergency order to suspend a license without a hearing, if TDH has
reasonable cause to believe that the conduct of a license holder creates an
immediate danger to the health and safety of a client or the public. 

(b)  Provides that an emergency suspension is effective immediately on
notice to the license holder. 

(c)  Requires TDH, on written request of the holder of a license suspended
under this section, to conduct a hearing to determine whether there is
cause to continue the suspension. Provides that the hearing must be held
between the 10th day and the 30th day after the date the request is
received. 

Sec. 253.033.  INJUNCTION.  (a)  Authorizes TDH to petition a district
court for a temporary restraining order to restrain a continuing violation
of the standards or licensing requirements under this chapter, if TDH finds
that the violation creates an immediate threat to the health and safety of
the public or of a client of a center. 

(b)  Authorizes a district court, on petition of TDH and on finding that a
violation of Subchapter B is being committed, to prohibit a person from
continuing the violation; restrain or prevent the establishment or
operation of a center without a license under this chapter; or grant other
injunctive relief warranted by the facts. 

 
(c)  Requires the attorney general to institute and conduct a suit
authorized by this section at the request of TDH. 

(d)  Provides that venue for a suit brought under this section is in the
county in which the center is located or in Travis County. 

Sec. 253.034.  CIVIL PENALTY.  (a)  Provides that a person who violates
this chapter or a rule adopted under this chapter is liable for a civil
penalty between $100 and $500 for each violation if TDH determines that the
violation threatens the health and safety of a client or the public.
Provides that each day of a continuing violation constitutes a separate
ground for recovery.  Authorizes the attorney general to sue to collect the
penalty. 

Sec. 253.035.  CRIMINAL PENALTY.  Provides that a person commits a Class C
misdemeanor if the person operates a facility under Subchapter D without a
license.  Provides that each day of a continuing violation constitutes a
separate offense. 

Sec. 253.036.  ADMINISTRATIVE PENALTY.  Authorizes the board to impose an
administrative penalty in an amount not to exceed $5,000 against a person
who violates this chapter or a rule adopted under this chapter.  Provides
that each day a violation continues or occurs is a separate violation for
the purpose of imposing a penalty.  Requires the board to impose a penalty
subject to the limitation provided by this section and in accordance to
Section 241.060 (Administrative Penalty for Mental Health, Chemical
Dependency, or Rehabilitation Services) as if the person had violated
Chapter 241 (Hospitals) or a rule adopted under that chapter. 

SUBCHAPTER D.  SERVICES

Sec. 253.051.  PARTIAL HOSPITALIZATION SERVICES.  (a)  Authorizes a center
for which a license is issued under this chapter to provide partial
hospitalization services to a client who exhibits an acute psychiatric or
psychological condition, or an acute exacerbation of a severe and
persistent mental disorder.  

(b)  Provides that the services provided must be reasonable and necessary
for the diagnosis or active treatment of the client's condition, and
reasonably expected to improve or maintain the client's condition and
functional level to prevent relapse or hospitalization. 

(c)  Provides that the services may include certain specified therapy
services, diagnostic services, the administration of drugs or biologicals,
or education or training. 

(d)  Authorizes a client to be admitted for partial hospitalization
services only by a physician's order following the physician's evaluation
of the client in person and furnished under the supervision of a physician.

Sec. 253.052.  OTHER SERVICES.  Authorizes a center to provide outpatient
services for a client, including specialized services for certain specified
persons,  psychosocial rehabilitation services, emergency mental health
services available 24 hours a day, or screening services for a person being
considered for admission to an MHMR facility. 

SECTION 2.  Amends Section 250.001(3), Health and Safety Code, to include a
center that provides behavioral or mental health care services and licensed
under Chapter 253 in the definition of "facility." 

SECTION 3.  Provides that a private behavioral or mental health care center
is not required to be licensed under Chapter 253, Health and Safety Code,
before January 1, 2000.  Requires the board to adopt rules as necessary to
implement Chapter 253, Health and Safety Code, on or before January 1,
2000. 

SECTION 4.  Effective date: September 1, 1999.

SECTION 5.  Emergency clause.