HBA-GUM C.S.S.B. 1197 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.S.B. 1197 By: Moncrief Human Services 4/30/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE Currently, Texas law does not set guidelines for operating a nursing home in which a trustee is appointed and emergency assistance funds are used. C.S.S.B. 1197 excludes a person owning, controlling, or operating a nursing home in which a trustee is appointed and emergency assistance funds are used, from eligibility for issuance or renewal of a license as a nursing home operator, and increases the penalty for occasions when trustees and emergency funds are appropriated. C.S.S.B. 1197 sets forth consequences for appointment of a trustee or expenditure of emergency assistance funds for a nursing or convalescent home. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Subchapter D, Chapter 242, Health and Safety Code, by adding Sections 242.0945 and 242.0946, as follows: Sec. 242.0945. QUALIFICATIONS OF TRUSTEES. (a) Authorizes a court to appoint a person to serve as a trustee under this subchapter only if the proposed trustee can demonstrate to the court that the proposed trustee will be present at the home as required to perform the duties of a trustee, and available on call to appropropiate staff at the home, the Texas Department of Human Services (department), and the court as necessary during the time the trustee is not present at the home. (b) Requires a trustee to report to the court in the event that the trustee is unable to satisfy the requirements of Subsection (a). (c) Authorizes the court to replace a trustee who is unable to satisfy the requirements of Subsection (a) on the motion of any party or on the court's own motion. (d) Provides that a trustee's charges must separately identify personal hours worked for which compensation is claimed. Authorizes a trustee's claim for personal compensation to include only compensation for activities related to the trusteeship and performed in or on behalf of the home. Sec. 242.0946. NEPOTISM PROHIBITION. Prohibits a person serving as a trustee under this subchapter from employing or otherwise appointing an individual to work with the trustee in the home who is relate to the trustee within the third degree of consanguinity or affinity. SECTION 2. Amends Section 242.095(a), Health and Safety Code, to require the court to consider a rate that is equal to 150 percent of the maximum allowable rate for an owner-administrator under the state's Medicaid reimbursement rules. Requires the court to determine the reasonableness of the trustee's personal compensation for other duties. Requires the court to review the reasonableness of the trustee's fees, on the motion of any party. Requires the court to reduce the amount if the court determines that the fees are not reasonable. SECTION 3. Amends Subchapter D, Chapter 242, Health and Safety Code, by adding Section 242.102, as follows: Sec. 242.102. INELIGIBILITY FOR LICENSE. Provides that a license holder or controlling person who operates a home for which a trustee is appointed under this subchapter and with respect to which emergency assistance funds, other than funds used to pay the expenses of the trustee, are used under this subchapter is subject to exclusion from eligibility for issuance or renewal of a license under Section 242.0615. Requires the exclusion to terminate on the fifth anniversary of the later of the date on which the appointment of the trustee terminates, or the last date on which emergency assistance funds are used with respect to the home. SECTION 4. Amends Subchapter D, Chapter 12, Penal Code, by adding Section 12.48, as follows: Sec. 12.48. CERTAIN OFFENSES RESULTING IN LOSS TO NURSING AND CONVALESCENT HOMES. Provides that, if it is shown on the trial of an offense under Chapter 31 (Primary Health Care) or 32 (Maternal and Infant Health Improvement) that, as a result of a loss incurred because of the conduct charged, a trustee was appointed and emergency assistance funds, other than funds used to pay the expenses of the trustee, were used for a nursing or convalescent home under Subchapter D (Trustees for Nursing or Convalescent Homes), Chapter 242, Health and Safety Code, the punishment for the offense is increased to the punishment prescribed for the next higher category of offense, except that a felony of the first degree is punished as a felony of the first degree. SECTION 3. Effective date: September 1, 1999. SECTION 4. Makes application of this Act prospective. SECTION 5. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute modifies SECTION 1 (proposed Section 242.0945, Health and Safety Code) of the original to provide that the proposed trustee must demonstrate to the court that the trustee will be present at the home as required to perform the duties of a trustee, rather than be present at the home at least 40 hours each week; and available on call to approproiate staff at the home, the Texas Department of Human Services, and the court as necessary during the time the trustee is not present at the home, rather than be available on call at all other times during the appointment. The substitute modifies proposed Section 242.0945 to authorize, rather than require, the court to replace a trustee who is unable to satisfy the requirements of a trustee on the motion of any party or on the court's own motion. The substitute also adds Section 242.0945(d) to provide that a trustee's charges must separately identify personal hours worked for which compensation is claimed, and authorize that claim to include only compensation for activities related to the trusteeship and performed in or on behalf of the home. The substitute makes a nonsubstantive change. The substitute modifies in SECTION 2 (Section 242.095, Health and Safety Code), of the original to require the court to consider a rate that is equal to 150 percent of the maximum allowable rate for an owner-administrator under the state's Medicaid reimbursement rules; to determine the reasonableness of the trustee's personal compensation for other duties; to review the reasonableness of the trustee's fees, on the motion of any party; and to reduce the amount if the court determines that the fees are not reasonable. The original bill prohibited the fee from exceeding an hourly rate equal to 150 percent of the median hourly rate paid to a nursing facility administrator in this state for a home of comparable size. The substitute modifies SECTION 3 (proposed Section 242.102, Health and Safety Code) of the original to specify that the person who operates, rather than owns, controls, or operates, a home for which a trustee is appointed, is a license holder or controlling person. The substitute also deletes proposed Section 242.102(c) which defines a person who controls a home. The substitute modifies SECTION 4 of the original to provide that, if it is shown on the trial of a certain specified offense that, as a result of a loss incurred because of the conduct charged, a trustee was appointed and, rather than or, emergency assistance funds were used for a nursing or convalescent home the punishment for the offense is increased to the punishment prescribed for the next higher category of offense, except that a felony of the first degree is punished as a felony of the first degree. In addition, the substitute makes a conforming change.