By: Schwertner, Hinojosa S.B. No. 933     A BILL TO BE ENTITLED   AN ACT   relating to the licensing of, the executive commissioner of the   Health and Human Services Commission's duties with respect to, and   the administrative penalties for home and community support   services agencies.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Sections 142.006(a), (b), and (c), Health and   Safety Code, are amended to read as follows:          (a)  The commission [department] shall issue a home and   community support services agency license to provide home health,   hospice, habilitation, or personal assistance services for each   place of business to an applicant if:                (1)  the applicant:                      (A)  qualifies for the license to provide the type   of service that is to be offered by the applicant;                      (B)  submits an application and license fee as   required by this chapter; and                      (C)  complies with all applicable licensing   standards required or adopted under this chapter; and                (2)  any controlling person with respect to the   applicant complies with all applicable licensing standards   required or adopted under this chapter.          (b)  A license issued under this chapter expires three [two]   years after the date of issuance. The executive commissioner by   rule shall [may] adopt a system under which licenses expire on   staggered [various] dates during each three-year [the two-year]   period. The commission shall prorate the license fee as   appropriate if the expiration date of a license changes as a result   of this subsection [For the year in which a license expiration date   is changed, the department shall prorate the license fee on a   monthly basis. Each license holder shall pay only that portion of   the license fee allocable to the number of months for which the   license is valid. A license holder shall pay the total license   renewal fee at the time of renewal. The department may issue an   initial license for a shorter term to conform expiration dates for a   locality or an applicant. The department may issue a temporary   license to an applicant for an initial license].          (c)  The commission [department] may find that a home and   community support services agency has satisfied the requirements   for licensing if the agency is accredited by an accreditation   organization, such as The Joint Commission or the Community Health   Accreditation Program, and the commission [department] finds that   the accreditation organization has standards that meet or exceed   the requirements for licensing under this chapter. A license fee is   required of the home and community support services agency at the   time of a license application.          SECTION 2.  Sections 142.010(a) and (b), Health and Safety   Code, are amended to read as follows:          (a)  The executive commissioner by rule shall set license   fees for home and community support services agencies in amounts   that are reasonable to meet the costs of administering this   chapter, except that the fees may not be less than $600 or more than   $3,000 [$2,000] for a license to provide home health, hospice,   habilitation, or personal assistance services.          (b)  The executive commissioner shall consider the size of   the home and community support services agency, the number of   clients served, the number of services provided, and the necessity   for review of other accreditation documentation in determining the   amount collected by the commission [department] for initial and   renewal license fees.          SECTION 3.  Section 142.017, Health and Safety Code, is   amended by amending Subsections (a), (b), (c), (e), (i), and (j) and   adding Subsections (k) and (l) to read as follows:          (a)  The commission [department] may assess an   administrative penalty against a person who violates:                (1)  this chapter or a rule adopted under this chapter;   or                (2)  Section 102.001, Occupations Code, if the   violation relates to the provision of home health, hospice,   habilitation, or personal assistance services.          (b)  The penalty shall be not less than $100 or more than   $1,000 for each violation, except that the penalty shall be not less   than $100 or more than $5,000 for each violation that results in   actual harm or that constitutes an immediate threat to the health or   safety of a client. Each day of a violation that occurs before the   day on which the person receives written notice of the violation   from the commission [department] does not constitute a separate   violation and shall be considered to be one violation. Each day of   a continuing violation that occurs after the day on which the person   receives written notice of the violation from the commission   [department] constitutes a separate violation.          (c)  The executive commissioner by rule shall specify each   violation for which the commission [department] may assess an   administrative penalty. In determining which violations warrant   penalties, the commission [department] shall consider:                (1)  the seriousness of the violation, including the   nature, circumstances, extent, and gravity of the violation and the   hazard of the violation to the health or safety of clients; and                (2)  whether the affected home and community support   services agency had identified the violation as a part of its   internal quality assurance process and had made appropriate   progress on correction.          (e)  Except as provided by Subsection (j), the executive   commissioner by rule shall provide the home and community support   services agency with a reasonable period of time following the   first day of a violation to correct the violation before the   commission [department] assesses an administrative penalty if a   plan of correction has been implemented.          (i)  The commission [department] may not assess an   administrative penalty against a state agency.          (j)  The commission [department] may assess an   administrative penalty without providing a reasonable period of   time to a home and community support services [the] agency to   correct the violation if the violation:                (1)  represents a pattern of violation that results in   actual [serious] harm [or death];                (2)  is widespread in scope and results in actual harm;                (3)  is widespread in scope and constitutes a potential   for actual harm;                (4) [(2)]  constitutes an immediate [a serious] threat   to the health or safety of a client;                (5) [(3)]  substantially limits the agency's capacity   to provide care;                (6) [(4)]  is a violation in which a person:                      (A)  makes a false statement, that the person   knows or should know is false, of a material fact:                            (i)  on an application for issuance or   renewal of a license or in an attachment to the application; or                            (ii)  with respect to a matter under   investigation by the commission [department];                      (B)  refuses to allow a representative of the   commission [department] to inspect a book, record, or file required   to be maintained by an agency;                      (C)  wilfully interferes with the work of a   representative of the commission [department] or the enforcement of   this chapter;                      (D)  wilfully interferes with a representative of   the commission [department] preserving evidence of a violation of   this chapter or a rule, standard, or order adopted or license issued   under this chapter;                      (E)  fails to pay a penalty assessed by the   commission [department] under this chapter not later than the 10th   day after the date the assessment of the penalty becomes final; or                      (F)  fails to submit:                            (i)  a plan of correction not later than the   10th day after the date the person receives a statement of licensing   violations; or                            (ii)  an acceptable plan of correction not   later than the 30th day after the date the person receives   notification from the commission [department] that the previously   submitted plan of correction is not acceptable;                (7) [(5)]  is a violation of Section 142.0145; or                (8) [(6)]  involves the rights of the elderly under   Chapter 102, Human Resources Code.          (k)  The commission shall develop and use a system to record   and track the scope and severity of each violation of this chapter   or a rule adopted under this chapter for the purpose of assessing an   administrative penalty for the violation or taking some other   enforcement action against the appropriate home and community   support services agency to deter future violations. The system:                (1)  must be comparable to the system used by the   Centers for Medicare and Medicaid Services to categorize the scope   and severity of violations for nursing homes; and                (2)  may be modified, as appropriate, to reflect   changes in industry practice or changes made to the system used by   the Centers for Medicare and Medicaid Services.          (l)  In this section:                (1)  "Actual harm" means a negative outcome that   compromises a client's physical, mental, or emotional well-being.                (2)  "Immediate threat to the health or safety of a   client" means a situation that causes, or is likely to cause,   serious injury, harm, or impairment to or the death of a client.                (3)  "Pattern of violation" means repeated, but not   pervasive, failures of a home and community support services agency   to comply with this chapter or a rule adopted under this chapter   that:                      (A)  result in a violation; and                      (B)  are found throughout the services provided by   the agency or that affect or involve the same clients or agency   employees or volunteers.                (4)  "Widespread in scope" means a violation of this   chapter or a rule adopted under this chapter that:                      (A)  is pervasive throughout the services   provided by the home and community support services agency; or                      (B)  represents a systemic failure by the home and   community support services agency that affects or has the potential   to affect a large portion of or all of the clients of the agency.          SECTION 4.  As soon as practicable after the effective date   of this Act and after consulting with appropriate stakeholders, the   executive commissioner of the Health and Human Services Commission   shall develop and adopt rules necessary to implement the changes in   law made by this Act.          SECTION 5.  The changes in law made by this Act apply only to   actions taken by the Health and Human Services Commission and   license holders under Chapter 142, Health and Safety Code, on or   after the effective date of this Act.  An action taken before the   effective date of this Act is governed by the law in effect at that   time, and the former law is continued in effect for that purpose.          SECTION 6.  This Act takes effect September 1, 2017.