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.          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). (g), and   (h) and adding Subsections (g-1) and (g-2) to read as follows:          (b)  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, except that an administrative penalty may not be   assessed for minor violations unless those violations are of a   continuing nature or are not corrected by the provider. 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, recoup past payments from, or otherwise   withhold contract payments from the provider for the same violation   of a law or rule unless the provider has committed fraud, waste, or   abuse. The commission may impose a referral hold in lieu of an   administrative penalty assessed under this section.          (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   after consideration of:                      (A)  the seriousness of the violation, including   the nature, circumstances, extent, and gravity of the violation and   the hazard of the violation to the health and safety of an   individual; and                      (B)  whether the provider previously identified   the violation as part of their internal quality assurance process   and made appropriate progress on correction;                (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   the nature, circumstances, extent, and gravity of the violation and   the hazard of the violation to the health and safety of an   individual;                      (B)  any history of previous violations by the   provider;                      (C)  whether the provider previously identified   the violation as part of its internal quality assurance process and   made appropriate progress on correction;                      (D)  the amount necessary to deter future   violations;                      (E)  efforts made by the provider 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 shall   be considered by the commission 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 date the commission sends written 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   providing written notice of a violation to a provider without   providing a reasonable period of time to a provider to correct the   violation if the violation:                (1)  results in [represents a pattern of violation that   results in] 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 prior to   receiving 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 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 provider requirements to notify the   service planning team of a significant change in condition, if the   commission identifies a violation caused by deficiency of services   authorized on a service plan, including potential hazards to the   health and safety of the individual, the commission shall allow   sufficient time for the service planning team to modify the service   plan before imposing an administrative penalty.          (g-2)  Notwithstanding any other provision of 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 5.  Subchapter D, Chapter 161, Human Resources Code,   is amended by adding Section 161.08915 to read as follows:          Sec. 161.08915.  HOME AND COMMUNITY-BASED SERVICES WAIVER   REGULATIONS TASKFORCE. (a) Not later than December 1, 2023, the   executive commissioner shall establish a Home and Community-Based   Services Waiver Regulations Taskforce. The taskforce must be   composed of:                (1)  representatives of providers of services in the   1915(c) Home and Community-Based Services and Texas Home Living   waivers; and                (2)  representatives of appropriate health and human   service agency functions, including regulatory, waiver, and   billing functions.          (b)  The taskforce shall review all rules, regulations, and   policies applicable to home and community-based services and make   recommendations to the executive commissioner designed to provide   clarity of regulations, reduced administrative burdens, and   removal of duplicative or conflicting regulations that are not   required by state or federal law.          (c)  Not later than December 1, 2024, the commission shall   submit a report to the legislature detailing recommendations made   by the taskforce and the administrative changes made as a result of   those recommendations.          (d)  This section expires January 1, 2026.          SECTION 4.  Sections 161.089(h) and 161.0891(h), Human   Resources Code, are repealed.          SECTION 5.  This Act takes effect immediately if it receives   a vote of two-thirds of all 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.