By: Guillen H.B. No. 4110       A BILL TO BE ENTITLED   AN ACT   relating to certain administrative penalties and procedures   associated with aging, community-based, and long-term care service   providers and the establishment of a task force to study certain   rules and policies related to those services.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 161.089, Human Resources Code, is   amended by amending Subsections (b), (c), (c-1), (e), (f), and (g)   and adding Subsections (b-1), (g-1), and (g-2) to read as follows:          (b)  Subject to Subsection (b-1), the [The] commission may   assess and collect an administrative penalty against a provider who   participates in a program to which this section applies for a   violation of a law or rule relating to the program.  If the   commission assesses an administrative penalty against a provider   for a violation of a law or rule, the commission may not impose a   payment hold against or otherwise withhold contract payments from   the provider for the same violation of a law or rule.          (b-1)  The commission may not assess an administrative   penalty under this section for minor violations unless those   violations are of a continuing nature or are not corrected by the   provider.          (c)  The [After consulting with appropriate stakeholders,   the] executive commissioner by rule shall [develop and adopt rules   regarding the imposition of administrative penalties under this   section.  The rules must]:                (1)  specify each violation that warrants [the types of   violations that warrant] imposition of an administrative penalty   based on:                      (A)  the seriousness of the violation, including:                            (i)  the nature, circumstances, extent, and   gravity of the violation; and                            (ii)  the hazard created by the violation to   the health and safety of an individual; and                      (B)  whether the provider had identified the   violation as part of the provider's internal quality assurance   process and made appropriate progress on correcting the identified   violation;                (2)  establish a schedule of appropriate and graduated   penalties for each [progressive administrative penalties in   accordance with the relative type, frequency, and seriousness of a]   violation based on:                      (A)  the seriousness of the violation, including:                            (i)  the nature, circumstances, extent, and   gravity of the violation; and                            (ii)  the hazard created by the violation to   the health and safety of an individual;                      (B)  the provider's history of previous   violations;                      (C)  whether the provider had identified the   violation as part of the provider's internal quality assurance   process and made appropriate progress on correcting the identified   violation;                      (D)  the amount necessary to deter future   violations;                      (E)  other than for a violation identified under   Paragraph (C), the provider's effort to correct the violation; and                      (F)  any other matters that justice may require;                (3)  prescribe reasonable amounts to be imposed for   each violation giving rise to an administrative penalty, subject to   Subdivision (4);                (4)  authorize the imposition of an administrative   penalty in an amount not to exceed $5,000 for each violation;                (5)  provide that a provider commits a separate   violation each day the provider continues to violate the law or   rule, except that each day of a violation occurring before the day   on which the provider receives written notice of the violation from   the commission does not constitute a separate violation and is   considered to be one violation;                (6)  ensure standard and consistent application of   administrative penalties throughout the state; and                (7)  provide for an administrative appeals process to   adjudicate claims and appeals relating to the imposition of an   administrative penalty under this section that is in accordance   with Chapter 2001, Government Code[; and                [(8)  ensure standard and consistent interpretation of   service delivery rules and consistent application of   administrative penalties throughout this state].          (c-1)  The [On adoption of the rules under Subsection (c),   the] executive commissioner shall maintain [develop]   interpretative guidelines for regulatory staff and providers   regarding the imposition of administrative penalties under this   section.          (e)  Except as provided by Subsection (f), the executive   commissioner by rule shall provide to a provider who has   implemented a plan of correction a reasonable period of time   following the first day of a [date the commission sends notice to   the provider of the] violation to correct the violation before the   commission may assess an administrative penalty.  [The period may   not be less than 45 days.]          (f)  The commission may assess an administrative penalty on   provision of written notice of a violation to a provider without   providing the provider with a reasonable period of time [to a   provider] to correct the violation if the violation:                (1)  [represents a pattern of violation that] results   in serious [actual] harm or death;                (2)  constitutes a serious threat to health or safety   and was not corrected by the provider or the provider has not made   demonstrable progress toward correcting the violation before   receiving the notice of the violation from the commission [is   widespread in scope and results in actual harm]; or                (3)  [is widespread in scope and constitutes a   potential for actual harm;                [(4)  constitutes an immediate threat to the health or   safety of a recipient;                [(5)  substantially limits the provider's ability to   provide care; or                [(6)]  is a violation in which a provider:                      (A)  wilfully interferes with the work of a   representative of the commission or the enforcement of a law   relating to a program to which this section applies;                      (B)  fails to pay a penalty assessed by the   commission under this section not later than the 10th day after the   date the assessment of the penalty becomes final, subject to   Section 161.0891; or                      (C)  fails to submit a plan of correction not   later than the 10th day after the date the provider receives a   statement of the violation.          (g)  Notwithstanding any other provision of this section, an   administrative penalty ceases to be incurred on the date a   violation is corrected. For purposes of this section, the date of   correction is the date identified by the provider and submitted to   the commission with evidence of the correction.  Penalties do not   accrue for a violation until a provider receives written notice of   the violation and of all elements of the violation that must be   corrected by the provider to achieve compliance.          (g-1)  Notwithstanding requirements for a provider to notify   the service planning team of a significant change in condition, if   the commission identifies a violation resulting from a deficiency   of services authorized in a service plan, including potential   hazards to the health and safety of an individual, the commission   shall provide an amount of time determined sufficient by the   commission for the service planning team to modify the service plan   before imposing an administrative penalty.          (g-2)  Notwithstanding any other law, the commission may   waive or reduce any applicable penalty if the commission determines   that strict enforcement of the rule or law would impose a hardship   or otherwise not be in the best interest of persons supported by the   provider.          SECTION 2.  Section 161.0891(g), Human Resources Code, is   amended to read as follows:          (g)  The commission may not offer amelioration to a provider:                (1)  more than three times in a two-year period;                (2)  more than one time in a two-year period for the   same or similar violation; or                (3)  for a violation that resulted in [hazard to the   health or safety of a recipient, including] serious harm to or death   of a recipient[, or that substantially limits the provider's   ability to provide care].          SECTION 3.  (a) In this section:                (1)  "Commission" means the Health and Human Services   Commission.                (2)  "Executive commissioner" means the executive   commissioner of the commission.                (3)  "Task force" means the home and community-based   services waiver program regulation task force established by this   section.          (b)  The commission shall establish the home and   community-based services waiver program regulation task force to:                (1)  review all rules and policies adopted by the   commission that are applicable to services provided under the home   and community-based services (HCS) and Texas home living (TxHmL)   Medicaid waiver program; and                (2)  provide to the executive commissioner   recommendations on:                      (A)  clarifying the rules and policies;                      (B)  reducing administrative burdens; and                      (C)  repealing or reversing any duplicative or   conflicting rules or policies that are not required by state or   federal law.          (c)  Not later than December 1, 2023, the executive   commissioner shall appoint the following members to the task force:                (1)  representatives of providers under the home and   community-based services (HCS) and Texas home living (TxHmL)   Medicaid waiver programs; and                (2)  representatives of appropriate health and human   services agency functions, including regulatory, waiver, and   billing functions.          (d)  Not later than December 1, 2024, the commission shall   prepare and submit to the legislature a report that includes:                (1)  recommendations made by the task force; and                (2)  any administrative changes made by the commission   as a result of those recommendations.          (e)  This section expires September 1, 2025.          SECTION 4.  The following provisions of the Human Resources   Code are repealed:                (1)  Sections 161.089(d) and (h); and                (2)  Section 161.0891(h).          SECTION 5.  Section 161.089, Human Resources Code, as   amended by this Act, applies only to a violation that occurs on or   after the effective date of this Act. A violation that occurs before   the effective date of this Act is governed by the law in effect on   the date the violation occurred, and that law is continued in effect   for that purpose.          SECTION 6.  This Act takes effect immediately if it receives   a vote of two-thirds of all the members elected to each house, as   provided by Section 39, Article III, Texas Constitution.  If this   Act does not receive the vote necessary for immediate effect, this   Act takes effect September 1, 2023.