Issues Facing the 85th Legislature: Health and Human Services

27th Jan 2017

Every Session, the Senate Research Center (SRC) staff prepare a document of what they consider to be the major issues facing the Legislature for the upcoming session.   Issues Facing the 85th Legislature is always a thoughtful and an excellent resource.  We have copied the section on Health and Human Services for your review and the full document is available by following the link.

As a disclaimer to the report the SRC stated that “the following information is intended to serve as a reference guide to issues facing the 85th Texas Legislature. It is not a comprehensive list of issues, but rather an outline of broad categories and topics of concern that have arisen during the interim. This is not intended to function as an endorsement of any issue by the Senate Research Center.”


1115 Waiver: Texas has had federal approval since December 2011 to participate in the five-year Texas Healthcare Transformation and Quality Improvement Waiver Program 1115 (1115 waiver) that preserves the upper payment limits (UPL) supplemental payment program. Under the 1115 waiver, historical and new UPL funds are earned by hospitals and other providers through two pools: the uncompensated care (UC) pool and the Delivery System Reform Incentive Payments (DSRIP) pool. According to the Health and Human Services Commission (HHSC), HHSC was required to submit to the Centers for Medicare and Medicaid Services (CMS) by September 30, 2015, a request to extend the 1115 waiver to help Texas make progress toward supporting and strengthening the health care delivery system for low-income Texans. Along with the extension request, Texas was also required to submit an independent study related to how the UC and DSRIP pools in the 1115 waiver interact with the Medicaid shortfall and what the dollar amount for UC would be if Texas opted to expand Medicaid. (The study was submitted in August 2016.) The report, done in collaboration with Health Management Associates, reveals that Texas has high UC costs and that, without money from the 1115 waiver, those costs would remain high. Through negotiations with CMS, Texas has received a 15-month extension of the 1115 waiver to expire December 2017.

Lawmakers in Texas have also suggested seeking a block grant for Medicaid funding to reduce UC costs and give Texas flexibility in Medicaid spending.

The 85th Texas Legislature may consider legislation to address the continuation of the 1115 waiver and to fund the Delivery System Reform Incentive Payments pool and the uncompensated care pool to better serve low-income Texans and maintain the health care safety net.

Chronic Diseases in the Aging Population. The Council of State Governments reports that public health policies at the state level include a three-step process: knowing the number of health problems within the state; convening public and private partners around common goals; and empowering citizens with new and creative tools to improve their health. Specifically, the focus on reducing chronic diseases through public health campaigns is important because chronic disease accounts for 75 percent of health care expenditures in Texas.

The commissioner of the Texas Department of State Health Services (DSHS) states that DSHS is involved in two roles that pertain to chronic disease—the collection of data and the administration of certain public health programs. DSHS’s current approach to emphasize healthy lifestyle choices includes early intervention to discourage the start of unhealthy behaviors; social-support systems such as families and communities; the implementation of comprehensive approach that involves both health care and community partners; and the adaptation of these strategies to local community needs. Some of the challenges DSHS faces with chronic-disease prevention include numerous risk factors that impact the incidence of chronic disease, such as tobacco use, diabetes, and obesity; comorbidities with behavioral health conditions; and the complexity of measuring successful intervention outcomes because of the numerous factors contributing to chronic disease.

The 85th Texas Legislature may consider legislation to improve the collection of data on the effects of public health campaigns and to collaborate with local communities to prevent instances of chronic disease.

 Fetal Tissue Donation       Chapter 692, Title 8 (Death and Disposition of the Body), Health and Safety Code, affirms the federal Anatomical Gift Act that permits the donation, but not the sale, of fetal tissue.

The selling of a human organ is currently illegal in Texas. According to Section 48.02 (Prohibition of the Purchase and Sale of Human Organs), Penal Code, “a person commits an offense if he or she knowingly or intentionally offers to buy, offers to sell, acquires, receives, sells, or otherwise transfers any human organ defined for valuable consideration.” Additionally, statute defines “human organ” to include “kidney, liver, heart, lung, pancreas, eye, bone, skin, fetal tissue, or any other human organ or tissue, but does not include hair or blood, blood components, blood derivatives, or blood reagents.” The penalty for committing such an offense is a Class A misdemeanor.

According to the Texas Department of State Health Services (DSHS), no agency is currently responsible either for overseeing the practice of fetal tissue donation or for enforcing the law prohibiting the sale of fetal tissue. DSHS also states that it does not have statutory authority to oversee issues of consent for the donation of fetal tissue.

The 85th Texas Legislature may consider legislation regarding the regulatory powers of the Texas Department of State Health Services to enforce current statute prohibiting the sale of and regulating the disposition of fetal tissue.

Health and Human Services Transition. Sunset Advisory Commission recommendations and S.B. 200, 84th Legislature, Regular Session, 2015, have directed the Texas health and human services (HHS) system to consolidate and reorganize; improve oversight of system administrative support functions; make changes and updates to Medicaid; promote quality health care; create women’s health programs; make updates to behavioral health services; clarify and update the role of the Office of Inspector General; streamline the process for credible allegations of fraud appeals; ensure effectiveness of HHS websites and hotlines; update HHS advisory committees; continually study state hospital operations and make strategic plans to reduce certain diseases; and eliminate the Texas Health Services Authority, as well as other recommendations. The transition has already affected and will continue to affect all five HHS agencies, including the Department of Aging and Disability Services (DADS), the Department of Assistive and Rehabilitative Services (DARS), the Department of Family and Protective Service (DFPS), the Department of State Health Services (DSHS), and the Health and Human Services Commission (HHSC). September 1, 2016, was the first major deadline of the HHS transition. According to the HHS website, the first phase:

  • moved some administrative and support functions from DARS, DADS, DFPS, and DSHS to HHSC as determined necessary by the HHS executive commissioner;
  • transferred select programs from DARS to the Texas Workforce Commission;
  • moved client services from DARS, DADS, and DSHS to HHSC; and
  • transferred prevention and early intervention services from HHSC and DSHS to DFPS.

The deadline for the second phase of the HHS transition is September 1, 2017, and will include a transition of:

  • other administrative and support functions from DADS, DFPS, and DSHS to HHSC as determined necessary by the HHS executive commissioner;
  • remaining DADS programs (including operation of state supported living centers) to HHSC; and
  • all regulatory functions from DADS, DFPS, and DSHS to HHSC.

Senator Nelson stated during an interim committee hearing that the transition oversight committee has tried to ensure that the transformation creates culture changes in the HHS system and is not merely a relabeling or moving around of boxes on an organizational chart. The final Health and Human Services System Transition Plan similarly states that “work will continue with a more in-depth focus on program operations within the transformed structure—with the continued goal of breaking down organizational silos, better connecting similar functions, and continuously improving the HHS system.”

The 85th Texas Legislature may consider legislation to continue monitoring the transformed structure of HHS to ensure better system delivery, culture change, and continuing improvement of the HHS system.

Infections in Long-Term Care Facilities. The Centers for Medicare and Medicaid Services (CMS) requires long-term care facilities to collect data on vaccinations for both pneumococcal disease and influenza. The collected data shows that trends in Texas from September 2014 to March 2016 were lower than the national average for both vaccination rates. The Texas Health Care Association testified during an interim committee hearing that “long-term care facilities [in Texas] are currently required to vaccinate employees, contractors, and other individuals that provide direct care; implement procedures to verify that vaccination policies have been carried out; implement procedures for the facility to exempt individuals from vaccinations for medical conditions identified as contraindications, or precautions by the Centers for Disease Control and Prevention, or conscience or religious beliefs; and implement procedures to follow for those exempt individuals to prevent the spread of diseases.” To ensure that more residents, staff, and family members receive vaccines, there is a need for educational efforts about the importance of vaccines at long-term care facilities.

Long-term care facilities are also at risk of spreading multidrug-resistant organisms (MDROs) because of the close quarters within which residents reside and their frequent movement between facilities. Furthermore, long-term care facilities are not measured on their ability to address infectious disease or infections. A Texas Medical Board member suggested during an interim committee meeting that the Texas Department of State Health Services should create guidelines for antimicrobial stewardship to help educate community members on the spread of MDROs and should require facilities with known MDRO infections to share that information with the facilities set to receive residents.

The 85th Texas Legislature may consider legislation to increase vaccination rates for infectious diseases and to implement policies of antimicrobial stewardship at long-term care facilities.

Long-Term Care Facilities Improving Quality and Oversight. The state and federal governments have licensure requirements for nursing facilities, assisted living facilities, home and community support service agencies, and home and community-based services. These facilities and services are at risk of administrative penalties and a loss of federal funding from the Centers for Medicare and Medicaid Services if certain standards are not met. State legislators have expressed concern about state administrative penalties levied by the Department of Aging and Disability Services

(DADS) against some of these facilities. Currently, facilities are not charged progressive sanctions, administrative penalty amounts are not equal across all facilities, and facilities still have the right to correct certain sanctions. A commissioner from DADS says that allowing DADS to levy progressive sanctions, so that repeat violators are charged increased fines, would help DADS address sanctioning issues and deter repeat violations.

The 85th Texas Legislature may consider legislation regarding administrative penalties for long-term care facilities licensed by the Department of Aging and Disability Services.

Staffing Shortages. The population of Texans aged 65-plus is projected to reach 5.7 million by 2020 and 7.7 million by 2030, according to the Department of Aging and Disability Services (DADS). This growing population presents a need for geriatric training and continuing education among physical and mental health professionals across the state. The Texas Nurses Association reports that a 2014 long-term care survey reveals that more than half of nursing facility respondents anticipate the need for more registered nurses in the next two years due to the increasingly severe loss of patient acuity in the older population. Furthermore, an additional one million direct-care workers will be needed nationwide by 2018, according to DADS.

S.B. 1058 (relating to the regulation of the practice of nursing), 83rd Legislature, Regular Session, 2013, requires that nurses working with geriatric patients take continuing education courses to care for older adults and geriatric patients. As of 2014, the Texas Board of Nursing (BON) started to require that nurses who care for older adults and geriatric patients have a minimum of two hours of continuing education in their license cycle and that the education focus on elderly abuse, age-related memory changes, and disease processes, including chronic conditions and end-of-life care. BON has also required that nursing programs in Texas have geriatric content in their curricula. Currently, there are limited schools and specialties available for those wishing to study geriatric care.

The 85th Texas Legislature may consider legislation regarding incentives and continued education for nurses and staff working in long-term care facilities.

Protection of Texas Children.  Child Protective Services The Department of Family and Protective Services of the State of Texas (DFPS) has a primary function to protect children and vulnerable adults by investigating allegations of abuse and neglect perpetrated by a caregiver. The agency oversees Child Protective Services (CPS), which places abused or neglected children with relatives or in foster care when they cannot remain safely in their homes. DFPS also regulates child care centers and 24-hour residential child care facilities to ensure minimum standards of health and safety for children.

In 2014, the Sunset Advisory Commission directed DFPS to propose statutory changes needed to implement goals of the CPS transformation, an ongoing effort to improve the management and processes of CPS by using recommendations from a privately contracted operational assessment and from the Sunset Advisory Commission. Recent legislation has sought to remove bureaucratic burdens on CPS caseworkers, to allow caseworkers to spend more time with children and families, to improve performance and morale, and to improve caseworker retention. Legislation also has included provisions to reduce unnecessary administrative tasks and paperwork, reduce workload where possible, and provide DFPS with the flexibility to make its processes more efficient and to adapt to changing best practices.

CPS has recently been under scrutiny from legislators, the public, and the press. Governor Abbot, Lieutenant Governor Patrick, and House Speaker Straus released a letter on October 12, 2016, directing the Commissioner of DFPS to develop a plan to hire and train more special investigators to reduce the backlog of at-risk children who have not yet had interactions with CPS. According to the Texas Tribune, this letter came “just eight days after DFPS publicly released numbers showing nearly a thousand at-risk children under CPS care were not checked on once over the course of six months.” The Texas Tribune also reports that CPS “is currently grappling with a spike in the number of children sleeping in CPS offices and psychiatric hospitals, high staff turnover and a spate of high-profile child deaths.”

Both DFPS and CPS have been undergoing organizational and staffing changes since August 2014, when the CPS transformation began. The transformation has three main priorities: to ensure child safety, permanency, and well-being; to establish effective organization and operations; and to develop a professional state workforce. A focus has specifically been on the retention of caseworkers, reducing caseloads, and improving the quality of caseworker supervisors. Officials from DFPS state that DFPS has redesigned its recruiting and hiring practices, overhauled current learning model for workers, provided additional support through mentorships, and strengthened managementemployee performance evaluations and recognitions.

TexProtects, an association for the protection of children, reported that high turnover at DFPS cost the state an estimated $77.5 million in 2015. TexProtects advocates for increasing caseworker salaries, stating that 87 percent of caseworkers who completed an exit survey in 2016 indicated that they left for a better-paying position and that these concerns could be remedied by adding area-based cost-of-living stipends. Other advocates for social workers recommend that Texas maintain a qualification of a fouryear degree for caseworker positions; recruit, hire, and retain social workers with fouryear degrees; and develop partnerships with schools of social work to develop an enhanced child welfare specialty.

While the CPS transformation has led to several improvements, including a new casetraining program and an improved management system, various problems still exist. During a recent legislative hearing, CPS officials stated that the agency struggles to make timely contact with children—2,800 children, including 511 children from the highest priority cases, had not yet been seen by caseworkers; that additional funding is needed to meet the current crisis of abused and neglected children; and that the estimated funding shortfall for the 2016–2017 biennium could total nearly $107 million in general revenue. While CPS is implementing new models of investigation to meet increasing demands, caseworker pay and an improved work environment are two of the more significant challenges facing CPS at the moment.

The 85th Texas Legislature may consider legislation regarding retention and recruitment efforts for Child Protective Services caseworkers.

Foster Care Redesign.  The Department of Family and Protective Services (DFPS) is currently piloting a foster care redesign program and explains the program on its website as “a new way of providing foster care services that relies on a single contractor, within various geographic areas, which is responsible for finding foster homes or other living arrangements for children in state care and providing them a full continuum of services.” This program has been piloted in seven North Texas counties through a partnership between DFPS and ACH Child and Family Services, which is the designated single-source continuum contractor.

The Dallas Observer reports that since the start of the program and the launch of the new Our Community Our Kids division, the practice “of children sleeping in offices or hotels has ended in the region; they’ve increased the number of foster homes throughout—most significantly in their most rural area, Palo Pinto County, which had 81 foster children with only three licensed foster homes (now there are 20 foster homes); and more children are remaining within 50 miles of their home communities than ever before.” DFPS reports that ACH Child and Family Services has implemented advancements in safety, has improved quality of care, and has advanced technology and tools within the catchment area. In August 2016 DFPS released a request for proposals for the next foster care redesign area and anticipates that the contracts will begin in January 2017.

The 85th Texas Legislature may consider legislation regarding the monitoring and facilitation of the foster care redesign expansion.

High-Needs Children in Foster Care. According to the Department of Family and Protective Services (DFPS), capacity is not keeping up with demand nor with the shifting needs of children in foster care and children and youth with high needs, or at risk of escalating needs, are not being identified early enough for appropriate interventions to be provided.

According to The Stephen Group (TSG), which was directed by DFPS and the Health and Human Services Commission to conduct a study on high-needs children in foster care, high-needs children are placed more frequently than the average child; spend longer time in state care; reside in different placement settings in foster care; and experience a more difficult time achieving permanency. Through this study, TSG also found that high-needs foster children need a child welfare system that contains skilled and welltrained Child Protective Services (CPS) caseworkers, coordination among the entities responsible for serving them, services and placement options in the communities where they live, and an ability to move seamlessly and rapidly between placement settings. TSG provided recommendations, in a November 2015 report, to create a definition of “high needs” to ensure standard protocols are followed and to build an accountable casemanagement process. TSG further provided recommendations regarding CPS’s coordination with other entities, including STAR Health, which is a Medicaid benefit for children in foster care, and child-placement agencies.

The 85th Texas Legislature may consider legislation to address the needs of high-needs children in the foster care system.

Reducing Recurrence of Abuse and Neglect.  Prevention and early intervention (PEI) programs work with families who have had contact with the Child Protective Services (CPS) system to stop the cycle of abuse and to promote positive outcomes for children, youth, families, and communities through family-strengthening programs that are based on research and supported by data. According to the Department of Family and Protective Services (DFPS) website, PEI also contracts with community-based programs and agencies to provide a variety of services to prevent abuse, neglect, delinquency, and truancy. These programs can help keep children out of the foster care system and reduce the recurrence of abuse and neglect.

DFPS made recommendations to reduce recurrences of abuse and neglect, including improving data tracking and use of data; allowing better coordination and access to data systems; considering options for additional post-adoption services; and reviewing the record-retention schedule to consider improvements to record-retention policies.

The Office of Child Safety (OCS) was created in September 2014 to help address and reduce child abuse. OCS is tasked with reviewing state and national data, trends, best practices, and prevention programs used elsewhere, as well as making recommendations to support Texas’s implementation of prevention and intervention strategies to address and reduce child fatalities and serious maltreatment.

The 85th Texas Legislature may consider legislation on, and may continue to monitor, prevention and early intervention programs and Department of Family and Protective Services efforts to reduce child fatalities and the recurrence of abuse.

Reforms in the Office of Inspector General and Medicaid Managed Care. The role of the inspector general (IG), according to statute, is the prevention, detection, audit, inspection, review, and investigation of fraud, waste, and abuse in the provision and delivery of all health and human services in the state, including services through any state-administered health or human services program that is wholly or partly federally funded, and the enforcement of state law relating to the provision of these services.

S.B. 207 (relating to the authority and duties of the office of inspector general of the Health and Human Services Commission), 84th Legislature, Regular Session, 2015, has created important reforms to IG operations, including incentivized collaboration with the Health and Human Services Commission (HHSC), improvements to the credible allegation of fraud hold standards, a newly established IG subpoena power, shorter preliminary investigation time lines, a newly required extrapolation tool, greater transparency through quarterly reports, and a 10-day processing requirement for Medicaid provider background checks. These new changes are still being implemented and a newly formed division has been created in the Office of Inspector General (OIG) to conduct systemic, issue-focused inspections across the health and human services system. During the interim, HHSC discussed new efforts for OIG investigators to work with special investigation units at managed care organizations (MCOs) to reduce instances of fraud, waste, and abuse. HHSC also discussed with the committee to whom is awarded recoveries of fraud, waste, and abuse and whether those recoveries should be returned to MCOs, to the state, or to taxpayers.

The 85th Texas Legislature may consider legislation to help prevent waste in Medicaid managed care, as well as continue efforts to monitor the Office of Inspector General and the recovery of funds lost to fraud, waste, and abuse.

Refugee Resettlement Programs.   According to the state health and human services (HHS) website, Texas annually receives approximately 6,000 refugees through the United States Department of State’s refugee program. The Office of Immigration and Refugee Affairs, within the HHS system, helps these refugee families upon arrival into the United States. Refugees in Texas are eligible to receive temporary cash assistance, medical assistance, and social services assistance. According to the Health and Human Services Commission, Medicaid is the state service most accessed by refugees and in fiscal year 2015 the average monthly Medicaid caseload of 24,830 cost $55 million in general revenue. Committee members speculate that the first line of care for many refugees, because of the structure of Medicaid transition services, is the emergency room and suggest that a health literacy program should be established to help refugees understand appropriate use of emergency room services.

Refugees, after attaining refugee status in their country of origin, are settled within the United States by placement agencies, which are not licensed by the state. Some areas of Texas are seeing an increased amount of refugees and say that they are in need of further assistance from the state and federal governments. The mayor of Amarillo testified at the committee meeting that Amarillo receives more refugees per capita than any city in the country and that many refugees move to Amarillo to join family after having been placed in other areas of the county.

The 85th Texas Legislature may consider legislation regarding licensure of refugee placement agencies, development of a program to help refugees with health care literacy, and further assistance and communication with areas that have received refugees.