MPM S.B. 527 77(R)    BILL ANALYSIS


Office of House Bill AnalysisS.B. 527
By: Moncrief
Human Services
7/9/2001
Committee Report (Amended)



BACKGROUND AND PURPOSE 

Enforcement remedies in state law provide questionable protection of
residents in assisted living facilities. Under current law, the state must
choose between closing down a facility at the inconvenience of its
residents or letting the facility continue to operate without any
enforcement action. Senate Bill 527 establishes procedures for assessing
and determining violations and penalties for assisted living facilities and
provides for an amelioration process. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Health and Human Services
Commission in SECTION 13 (Section 247.051, Health and Safety Code) and to
the Texas Department of Human Services in SECTION 16 of this bill. 

ANALYSIS

Senate Bill 527 amends the Health and Safety Code to require the Texas
Department of Human Services (DHS) to examine DHS employees who inspect or
survey assisted living facilities (facilities).  In developing the
examination, DHS is required to consult with facility operators or their
representatives and with consumers of personal care services provided by
facilities or consumer representatives.  A DHS employee is prohibited from
independently inspecting, surveying, or taking administrative action
against a facility unless the employee has passed the examination (Sec.
247.0272). 

The bill authorizes DHS after providing notice and opportunity for a
hearing to an applicant or license holder for a facility to deny, suspend,
or revoke a license if DHS finds that the applicant, license holder, or
controlling person has violated the Assisted Living Facility Licensing Act
or a related rule, standard, or order or facility license in either a
repeated or substantial manner, or has committed certain acts for which the
employee may be charged an administrative penalty.  The bill provides that
the status of a person as an applicant for a license or as license holder
is preserved until final disposition of a contested matter, except as the
court having jurisdiction of a judicial review of the matter is authorized
to order in the public interest for the welfare and safety of facility
residents.  The court is prohibited from ordering arbitration to resolve a
dispute involving the denial, suspension, or revocation of a license or the
conduct with respect to which the denial, suspension, or revocation is
sought (Sec. 247.041).  The bill requires DHS and the State Office of
Administrative Hearings to expedite any hearing or decision involving an
emergency suspension or closing order (Sec. 247.042). 

S.B. 527 authorizes DHS to assess an administrative penalty of no more than
$500 per violation against a person who: 

_violates the Assisted Living Facility Licensing Act or a related rule,
standard, order, or term of a license; 

_makes a false statement, that the person knows or should know is false, of
a material fact on an application for issuance or renewal of a license or
in an attachment to the application or with  respect to a matter under
investigation by DHS; 

_refuses to allow a DHS representative to inspect any portion of the
facility premises or a book, record, or file required to be maintained by
the facility; 

_wilfully interferes with the work of a DHS representative or the
enforcement of the Assisted Living Facility Licensing Act; 

_wilfully interferes with a DHS representative preserving evidence of a
violation; or 

_fails to pay an administrative penalty no later than the 30th day after
the date the assessment of the penalty becomes final. 

The  Texas Board of Human Services is required to establish gradations of
penalties in accordance with the seriousness of the violation.  The bill
sets forth the circumstances DHS is required to consider in determining the
amount of a penalty and requires DHS to make a record of the extent to
which each was considered (Sec. 247.0451).   

The bill prohibits DHS from collecting an administrative penalty from a
facility if the facility corrects a violation within 45 days of receiving
the notice of the violation unless the violation:  

_results in serious harm to or death of a resident;

_involves making a false statement of material fact that the person knows
or should know is false, refusing to allow a DHS representative to inspect
certain documents or facility premises, wilfully interfering with the work
of a DHS representative or the enforcement of the Assisted Living Facility
Licensing Act, wilfully interfering with a DHS representative preserving
evidence of a violation, or failing to pay an administrative penalty in a
timely manner; 

_is a second or subsequent violation of a right of the same resident or the
same right of all residents; or  

_involves the inappropriate placement of a resident at a facility. 

The bill specifies that a facility that corrects a violation must maintain
the correction.  If the facility fails to maintain the correction for at
least one year from the date the correction was made, DHS may assess and
collect an administrative penalty for the subsequent violation that is
equal to three times the amount of the original penalty amount.  DHS is not
required to give the facility an opportunity to correct the subsequent
violation (Sec. 247.0452). 

S.B. 527 requires DHS to issue a preliminary report stating the facts on
which DHS concludes that a violation has occurred, which may recommend an
administrative penalty and the penalty amount.  DHS is required to give
written notice of the report to the person charged with the violation. The
bill sets forth a procedure for the person to consent to the penalty,
correct the violation, and request a hearing before an administrative law
judge (Secs. 247.0453 and 247.0454). If the commissioner of human services
(commissioner) finds that a violation has occurred, the bill requires the
commissioner to give to the person charged with the violation written
notice of the judge's findings, the administrative penalty amount, the rate
of interest payable on the penalty, whether amelioration is required in
lieu of all or part of the penalty, and the person's right to judicial
review.  The bill requires the person charged to pay the penalty in full or
file a petition for judicial review.  The bill authorizes DHS to permit the
person to pay the penalty in installments or to use all or part of the
penalty amount to ameliorate the violation.  The bill specifies that if the
person does not pay the penalty within the specified time period, the
penalty is subject to interest and DHS is authorized to refer the matter to
the attorney general for collection of the penalty and interest.  If the
amount of the penalty is reduced or the assessment is not upheld on
judicial review, the bill requires the commissioner to remit the
appropriate amount and create a release of the supersedeas bond if one has
been  posted  (Sec. 247.0455). 

S.B. 527 prohibits DHS from assessing a monetary penalty against a facility
under the provisions of this bill and a monetary penalty under Medicaid
provisions for the same act or failure to act (Sec. 247.0456).  

The bill authorizes the commissioner to allow a person under the
supervision of DHS to use any portion of the penalty to ameliorate a
violation or improve services other than administrative services in a
facility affected by the violation instead of paying the administrative
penalty. DHS is required to offer amelioration to a person for a charged
violation if DHS determines that the violation does not constitute
immediate jeopardy to the health and safety of a resident of the facility.
The bill requires DHS to offer amelioration not later than 10 days after
the date the person receives final notification of the recommended
assessment of an administrative penalty.  The person must file a plan for
amelioration within 45 days after receiving the notice and must agree to
waive the person's right to an administrative hearing if DHS approves the
plan. The bill sets forth the minimum standards for a plan for
amelioration.  The bill authorizes DHS to require that the plan propose
changes that would result in conditions that exceed the requirements
imposed on facilities by state law or rules.  DHS is required to approve or
deny an amelioration plan within 45 days of receipt and on approval to deny
a pending request for an administrative hearing.  The bill prohibits DHS
from offering amelioration to a person more than three times in a two-year
period or more than once in a two-year period for the same or a similar
violation (Sec. 247.0457). 

S.B. 527 requires the Health and Human Services Commission (HHSC) to
establish by rule an informal dispute resolution process that provides for
adjudication by an appropriate disinterested person of disputes relating to
a proposed enforcement action or related proceeding.  The bill requires
HHSC to adopt rules to adjudicate claims in contested cases and prohibits
HHSC from delegating responsibility to administer the informal dispute
resolution process to another state agency (Sec. 247.051). 

The bill provides that if a DHS inspector determines that a resident is
inappropriately placed at a facility, the facility is not required to move
the resident, if no later than the 10th business day after the date the
facility is informed of the specific basis of the inspector's
determination, the facility:  

_obtains a written assessment from a physician that the resident is
appropriately placed; 

_obtains a written statement from the resident that the resident wishes to
remain in the facility or from a family member of the resident stating that
the family member wishes the resident to remain in the facility if the
resident lacks capacity to give the statement; and  

_states in writing that the facility wishes for the resident to remain in
the facility.   

If the DHS inspector determines that a resident is inappropriately placed
and the facility agrees or does not obtain the written statements, the
facility is required to discharge the resident and DHS is prohibited from
assessing an administrative penalty against the facility because of the
inappropriate placement.  The bill specifies that the resident has 30 days
after the discharge date to move from the facility (Sec. 247.066). 

S.B. 527 repeals the provision requiring a facility to submit an acceptable
plan of correction to the regional director with supervisory authority over
the DHS inspector not later than the 10th day after the date of completion
of a final exit conference (SECTION 15). 

The bill requires DHS to adopt rules to implement the right to correct
provisions and provisions regarding the inappropriate placement of a
resident no later than January 1, 2002 (SECTION 16). 

EFFECTIVE DATE

September 1, 2001.