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The House Committee on Human Services met on March 9, 2021 to discuss referred bills. This report covers discussion on HB 135 (Minjarez), HB 682 (Minjarez), HB 892 (Frank), HJR 46 (Frank), and HB 484 (Shaheen). All bills were left pending. The full agenda can be found here.

This report is intended to give you an overview and highlight of the discussions on the various topics the committee took up. It is not a verbatim transcript of the hearing but is based upon what was audible or understandable to the observer and the desire to get details out as quickly as possible with few errors or omissions.

HB 135 (Minjarez) Relating to notifying an alleged perpetrator of child abuse or neglect of the person’s right to record an investigative interview.

  • Families are often unaware of parental protection rights, HB 135 requires DFPS investigators inform family of right to record; supports transparency and keeps children out of foster care
  • Noble – Audio recording is not stipulated in the bill? Video is okay?
    • Video, phone, etc. would be okay
  • Noble – My concern is that someone put that on the internet and put CPS workers in danger
    • We can address that
  • Klick – Also concerned about video & audio; have heard from many that they have been prevented
  • Frank – If CPS doesn’t do it, what are the consequences?
    • Complaint with Office of Consumer Affairs, OIG, attorney representing parent can request sanctions
  • Frank – Some concerned that measures like this attack CPS workers; I really think this will protect CPS workers as well
    • Provides an option for the parent

Matt Maldonado, Attorney – For

  • Affidavit in adversarial hearings is almost exclusively made up of investigator’s report currently, these can sometimes be biased
  • If individuals were given the opportunity to record, I suspect they would & would provide opportunity to challenge affidavit
  • Heard concerns of video recording, must maintain integrity of the recording; video recording is very common in criminal investigations

Andrew Brown, Texas Public Policy Foundation – For

  • Appreciates Rep. Minjarez working with us over interim to notify families of rights they have
  • Proposed language in SB 647 would actually require DFPS to notify parents of all rights available at first contact, similar to Miranda rights
  • Parents already entitled to these rights, incl. right to legal counsel
  • Frank – No substitute language, we can talk about this bill & Rep. Minjarez can bring substitutes
  • Hull – Where is this language in the bill?
    • Proposed substitute language, sounds like it hasn’t come back
  • Hull – How do you feel about the filed bill?
    • Right to record exists, as an attorney I would likely encourage clients to record in secret; many don’t know they have that right & has been helpful in some cases
  • Frank – Have seen cases where family doesn’t even know they’re investigated, having to announce rights would put them on notice
  • Hull – Is DFPS going to tell them they can record in secret? Open recordings can be subpoenaed and secret ones couldn’t be
    • I think this would be a good addition to the bill
  • Frank – Does CPS record these conversations sometimes?
    • In some cases they do

Judy Powell, Parent Guidance Center – Against

  • Parents can record secretly currently; concerned that the moment this right is exercised under this bill, parents actually lose a right, opens door for DFPS to record and the associated policies
  • Would like to see bill proposal and policy matched up
  • Concerned about subpoena provision as well
  • Hull – Can you describe a situation where this would play out in real life?
    • Have seen investigations; if the first thing you’re told is you can record, they likely will, but bill doesn’t stipulate that DFPS recording policies are then activated
  • Minjarez – Way I read the bill, this just informs parents of their rights, without being informed they don’t know their rights; any recordings can already be subpoenaed
    • You’d have to know I have the recording to subpoena
    • Language would ideally require DFPS to explain the one party state recording law; bill doesn’t outline the real right under state of Texas
  • Minjarez – I’m not understanding how a secret can be a secret if you’re informed; in a subpoena you can ask for any documents that could pertain to the matter, even if you don’t know they exist
    • Doesn’t also inform the parent that DFPS can record as well
  • Minjarez – Would you be fine if bill also required DFPS to inform parents of this as well
    • Would be happy to work on language
    • Also willing to work on substitute language

Krista McIntire, CPS Consultant – Against

  • Parents should be given rights on first contact, but bill only gives right to record and opens door for DFPS to record as well; not informed of rights to counsel, etc., only opens up families to more liability via recording without representation
  • Frank – Surprised that family groups are against, though I think I understand why; hope we can agree on measure to bolster due process
    • Would be happy to look at substitute and see if there’s a compromise
  • Hull – So you believe this bill could cause parents to incriminate themselves on tape?
    • Yes, many potential problems, but that is one of them

Melissa Bright, Self – For

  • Audio recordings assisted in CPS case; HB 135 doesn’t change ability or rights, but does let parents know they have a choice

Sophia Karimjee, DFPS – Resource

  • Rose – Some DFPS facilities state you can’t record on the door< if it’s a right then why are these signs posted?
    • Put up by HHSC, but we have informed workers to let parents know they are able to record
  • Rose – If you allow them to record, then why are the signs up?
    • These signs are up for HHSC purposes, we inform our workers
  • Rose – So you are using an HHSC building?
    • We lease and share space, not sure why HHSC put up the signs
  • Rose – Seems like investigators should tell them if these are unrelated; sounds like you’re saying you allow them to if the parent brings it up
    • Good point
  • Hull – Are you going to change those signs?
    • Can work with HHSC to provide some clarity
  • Frank – You could change that without this bill
    • Yes
  • Frank – Not suggesting there doesn’t need to be a bill, obvious benefit in informing parents
  • Noble – The signs are on the outside, are they in family interview rooms?
    • Not certain, can let you know; tried to make sure these signs were not in DFPS areas
  • Noble – But you could put signs up in interview areas that parents are allowed to record?
    • We could
  • Hull – Could you explain the DFPS policy on recording?
    • Investigators do not record interviews unless interviewee is also recording, DFPS personnel are required to inform parents if they are recording
  • Hull – Is there anything else?
    • Generally it’s when parents are recording, but can ask staff and get back to you
  • Hinojosa – What’s the policy rational to record if parents record?
    • To ensure authenticity of the recording

Rep. Minjarez closes

  • HB 135 requires DFPS to inform parents verbally and in writing, provides parents or guardians notice that they can record and that it can be subpoenaed
  • Affidavit can be very biased, parental recording can be exculpatory and provides safeguard
  • Happy to work with any organization that has concerns

HB 135 left pending

HB 682 (Minjarez) Relating to notifying an alleged perpetrator of child abuse or neglect of the person’s right to request an administrative review of the department’s findings after an investigation by the Department of Family and Protective Services.

  • Findings of an investigation can have a significant impact on lives, criteria should be clear and method of dispute should be clear
  • Requires DFPS investigators inform parents of right to administrative review at the outset of the investigation, currently included in certified mail at end of document
  • Many families are transient, cannot read, or otherwise cannot be informed this way
  • Klick – Who does the review?
    • DFPS has independent officers
  • Klick – So not SOAH? SOAH is pretty backed up
    • Right; must have the review in 45 days

Judy Powell, Parent Guidance Center – For

  • Really like this bill, very important to inform parent of right to dispute investigation; would like to see a written notification as well
  • Would also like to see reasons to dispute added to the notification; often parents are left on child abuse registries & can see other consequences

Carrie Wilcoxson, CPS Consultant – For

  • Important to provide notification up front and in a manner HB 682 lays out, investigations can have serious implications for parents and children
  • High error rate in CPS investigations
  • Frank – 30% of the times a person requested a review, case got overturned?
    • Yes, over the past decade

Julia Hatcher, Texas Association of Family Defense Attorneys – On

  • Many parents often don’t understand this right, cannot obtain an attorney in the required 45 days
  • Like the concept, would like to see some kind of form that parents sign stating they were given notice and they understood it
  • 45 day deadline should be waived if the CPS investigator fails to give notice

Rep. Minjarez closes

  • Ensures DFPS processes are subject to appropriate checks and balances

HB 682 left pending

HB 892 (Frank) Relating to the right of certain facility residents to designate an essential caregiver for in-person visitation.

  • Have heard many tragic stories about this issue; understand that agencies and others have been struggling, easier decision is to not allow visitors at all
  • In person visitation better ensures high level of care and outcomes; cannot repeat isolation of last year
  • Establishes resident’s right to designate one essential caregiver that cannot be prohibited
  • Looking at covering IDD individuals, mechanism for guardian to designate essential caregiver, making the bill less prescriptive in guidelines, and adding provision to remove and replace bad actors
  • Looking at provision that facilities may suspend essential caregivers for no more than 7 days
  • Making clear no obligation for caregiver to provide specific caregiving tasks
  • Critically important to health & wellbeing of residents
  • Klick – So I would assume for patients that do not have capacity that guardians would designate?
    • Whoever holds medical power of attorney could make that call, will need to look at this

Kendra King, Nexion Health, Independent Coalition of Nursing Home Providers – For

  • When pandemic set in, many facilities had to ensure practices were safe; in Sept. visitation policy opened up with restrictions
  • Should ensure different policy aspects are aligned

Patty Ducayet, State Long-term Care Ombudsman – On

  • Ultimately should restore right to full visitation, know that we’re not quite there yet
  • There is a connection to a federal right regarding support personnel
  • Appreciates creation of right to essential caregiver
  • Have concerns that bill is too detailed on rulemaking; should allow rulemaking to be flexible and should not codify COVID policies
  • Rose – Do you not feel that COVID measures were put in place to protect lives in LTCs? District saw very serious CVOID impact; situation was also very new, once we got more information, measures like this were rescinded
    • Agree that we all did the best we could under incredibly unusual circumstances, experiences of staff cannot be ignored
  • Noble – Prior to COVID, did you get complaints about lack of access to loved ones?
    • Nothing like what we’ve experienced; heard of complaints occasionally of visitation denial, but fairly rare

George Linial, LeadingAge Texas – On

  • Some concerns are definitely addressed by points made when laying out the bill
  • Minjarez – No substitute currently, need to testify on the bill as filed
    • Right
  • Initially, providers were supportive of measures to keep COVID out of communities, started noticing declines in physical and mental health after months of isolation
  • Concerns incl. need for provision to suspend visitation for reasonable time period, should make clear that designation could be removed for lack of compliance with safety protocols, should consider provision allowing removal of designation if individual becomes predatory

Diana Martinez, Texas Assisted Living Association – On

  • Supportive of measure in general, but circumstances always dictate the policy; a year ago testing was difficult, PPE couldn’t be obtained, etc.
  • Need flexibility to suspend visitation in emergencies, need mechanism for prohibiting specific designated visitor
  • Current 2 hours/day/visitor is very staff intensive
  • Want to ensure there is something in there ensuring essential caregiver is complying with individual’s care plan

Mary Nichols, Texas Caregivers for Compromise – On

  • Desperate last year to have essential caregivers in facilities, essential caregivers are routinely unduly restricted from visiting in overt and subtle ways
  • Should not adopt regulations that allow facilities to be subjective, very concerned about substitute proposals; provisions about removing caregivers, etc. can be addressed under HHSC guidelines, need a reinstatement process
  • Hull – Are facilities required to record times caregivers were denied or reasons why?
    • Not sure, I’m informed of at least one a week
    • HHSC resource – Not a requirement

Victoria Ford, HHSC – Resource Witness

  • Not a requirement that facilities track denials
  • Noble – Sounds like HHSC rules are very onerous for essential caregivers; why don’t we just provide training and have it be a simple check-in; why is it so staff intensive?
    • Have seen significant outbreaks since Sept.; don’t necessarily want someone walking through a facility with an outbreak, unsupervised within a person’s room
    • Proper PPE is also a complicated situation, must follow proper procedure
  • Noble – Would encourage you to look at rules as more are vaccinated to see if they can be less intensive
    • Yes, we look at them every day, have been working to expand visitation
    • Need to work on permanent rules that apply to all emergencies
  • Noble – Understand there is virus danger, but also other dangers; how would you enforce this law?
    • Regardless of the bill becoming law, essential caregivers are not going away; important to define enforcement in the bill and also in rules

Jennie Lutzel, Self – On

  • Shares experience of visitation being heavily restricted
  • Should consider inclusion of at will visitation for essential caregivers, caregivers have opportunity to evaluate and use safe practices

Dr. Hattie Henderson, Texas Medical Association – On

  • Over the summer TMA met and drafted a message supporting visitation
  • Recommend considering a suspension longer than 7 days, may not be long enough to contain a spread, CDC still requires 14 day
  • Should allow attending physician in concert with facilities to determine threat of outbreaks at facilities
  • Staffing shortages may require limited visitation, visitors should provide their own PPE that meets stan

Melinda Colm, Self – On

  • Shares experience of visitation being heavily restricted
  • Neutral on bill, wants legislature to look at everything involving essential caregivers

Kevin Warren, Texas Health Care Association – On

  • Appreciates efforts in trying to address this issue, lack of clarity and predictability was extremely taxing
  • Providers continue to deal with inconsistency between federal, state, and local guidelines
  • Supports measures like language requiring essential caregivers to follow safety protocols, simplification language mirroring other processes like power of attorney
  • Klick – I’m sure you’ve seen families on both sides of this, those that want increased visitation and those concerned about opening up
    • Yes, that’s the challenge, leads to staffing, PPE, contact tracing challenges
  • Klick – Families want what is best for loved ones, but may have very different views of what is best
    • Yes, this is the challenge for providers needing to respond to these needs and keep facilities safe
  • Rose – Texas is not one size fits all, some communities have been more impacted than others; represent a facility were many have died due to COVID; concern in this conversation is having flexibility to keep facilities safe

Stephanie Kirby, Self – On

  • Shares experience of visitation being heavily restricted, extensive period of restriction and had issues with escort requirements; Denton SSLC required an escort to drive the family from the front gate
  • Noble – Are these escort rules implemented by the Denton SSLC?
    • HHSC, restrictions are extensive, need escort from gate and must follow at all times
  • Noble – Are you aware of any potential changes in rules as vaccinations become available?
    • No communication whatsoever

Victoria Ford, HHSC – Resource Witness

  • Minjarez – Have solicited for more safety measures, heard from constituents asking for more; but these sound like unreasonable restrictions that are impacting family & wellbeing, could you speak to restrictions & escorts requirement
    • 190 days was the period between March & Sept. when the Gov EO and federal requirements prohibited visitation entirely
    • Saw a large amount of deaths in facilities, also have seen large amounts of recoveries; led to opening up a little in Sept., but feds put in other restrictions
    • HHSC requires an escort from the front door to the room, SSLCs decide how they implement the escort, so this is Denton’s policy
    • This is one of the fine points on the legislation, some say be clear & restrictive, some push for flexibility
  • Minjarez – Asks after vaccinations
    • Most nursing facilities have had some vaccines, but still only a fraction of residents vaccinated and no guidance from CDC on appropriate measures given vaccinations
    • Believes that visitation guidance will continue to ease
  • Minjarez – How often do you review the protocols?
    • Working through this every day, have the flexibility in emergency rulemaking to make changes as appropriate
  • Hull – Asks after waiver of rights
    • There is a portion of the resident’s bill of rights allowing for waiver of rights given threats to safety
  • Hull – What does HHSC do to ensure those rights?
    • Review rights, aspect of surveys; HHSC also has the ombudsman who can help advocate and navigate requirements
  • Hull – Would it help if facilities were required to report denials?
    • Interesting aspect of how regulation would work, does require facility to document decision making; never harmful

Buster Peter, Caraday – For

  • Restrictions on visitation led to severely decreased wellbeing and outcomes
  • Will take some time to dig out from under lack of essential caregivers, caregivers being allowed back in did lead to improvements in depression, weight loss, etc.
  • Does take increased staff time to follow PPE requirements and ensure safety

Amanda Frederickson, AARP – On

  • Have heard concerning things like reports of abuse & neglect while caregivers are blocked from access
  • Certainly time for LTC facilities to take steps to open, HHSC should pursue enforcement
  • AARP in February sent a letter to CMS to speed up vaccine guidance
  • Argument to be made for facilities to make a visitation plan, of which essential caregivers are a part; these are resident’s homes and should have say in access
  • Bill probably needs to make some mention of federal oversight role for nursing facilities

Rep. Frank closes

  • Has been one year since visitation stopped, still have some facilities denying access overall
  • Haven’t changed visitation rules for people who’ve had vaccines

HB 892 left pending

HJR 46 (Frank) Proposing a constitutional amendment establishing a right for residents of certain facilities to designate an essential caregiver for in-person visitation.

  • Anything is waivable unless it is in the constitution; establishes right to designate essential caregiver who may not be prohibited from visitation, allows for legislature to establish policy
  • Would need to consider this very carefully; important right to allow people to visit a resident’s home

Diana Martinez, Texas Assisted Living Association – On

  • Concerned about establishing this language as a constitutional right, doesn’t include prevention of certain individuals
  • Future legislature may be restricted from changing this or acting on it without great effort
  • Very confusing for providers to follow all guidelines; more surveyors could help address this, support exceptional item for surveyor funding
  • Communities do need to document if they suspend visitation

Kendra King, Nexion Health, Independent Coalition of Nursing Home Providers – For

  • Wants to ensure details of constitutional amendment are in line with what the bill requires

Stephanie Kirby, Self – On

  • Rep. Minjarez clarifies that Kirby is testifying as neutral on HJR 46

George Linial, LeadingAge – On

  • Only concern is that HJR and HB align so there is no conflict

Mary Nichols, Self – For

  • Without constitutional amendment then this right could be put on hold

HJR 46 left pending

HB 484 (Shaheen) Relating to a direct primary care model pilot program for Medicaid.

  • Pilot of program to improve access by using direct primary care model; eliminates involvement of insurance company
  • Pilot seeks to address problem of declining physician choice, shortage of doctors in the state is compounding the issue
  • Similar to food stamp program, direct primary care fees cover care coordination, labs, etc.
  • Direct primary care physicians tend to spend twice as much time with patients due to lack of Medicaid administrative burden
  • Minjarez – So a fee is charged, the state would pay the lesser of $40/month or the fee, but the fee can be higher; who pays the difference?
    • Patient would, what’s good about this is the patient decides who their doctor is
  • Minjarez – No caps on what fees can be?
    • No

Lori Vanhoose, Texas Association of Health Plans – Against

  • DPC model will not increase access, MCOs are improving access to care; Medicaid has much better access statistics than overall market
  • Clients benefit from care coordination across all services
  • DPC model also puts quality programs at risk, will no longer be feasible if primary care is carved out
  • Administrative burden will be increased, providers will still need to report to meet compliance requirements, then data will need to be delivered to MCOs to further care coordination
  • Should support alternative payment models instead of pursuing this model

Kay Ghahremani, Texas association of Community Health Plans – Against

  • DPC model is not workable in a Medicaid program
  • Most important aspect of managed care to the state is the passing of risk to insured MCOs
  • Cost trends and quality of care are anchored around the primary care provider, managed care would fall apart without primary care
  • Carving out of primary care is not an approved model under CMS, recipients paying fees not allowable, providers being able to not enroll not allowable
  • Neave – Can you explain to us the implications because of that?
    • HHSC would attempt to get approval from CMS, but CMS does not allow cost sharing, model is not allowable
  • Neave – So it conflicts with federal requirements
    • Yes, HHSC would go through approval process, but CMS wouldn’t approve

David Balat, Texas Public Policy Foundation – For

  • Patients can build more effective relationships with primary care doctors under direct payment
  • CMS would view this as a demonstration project to potentially increase access to care
  • Network adequacy doesn’t equate to access itself, see this in number of patients going to ER
  • Noble – My concern is that we have few doctors willing to take Medicaid, would this not result in less doctors being willing to take Medicaid patients?
    • Not a wholesale way to the way Medicaid operates, pilot that is not meant to compete with Medicaid, meant to be complementary

Dr. Clifford Porter, Texas Direct Medical Care – For

  • Frustration for providers is that many patients have very long wait times and do not have much time with primary care, must be sent on to the ER
  • Clinics are paid per visit, constant pressure to push as many patients through as possible
  • Medicare admin requirements are extremely burdensome, opt-out made it much easier to see complex patients
  • Minjarez – Do you have a concierge service?
    • Don’t end up charging much at all because 90% of the admin burden is removed without involvement of insurance
  • Minjarez – So you don’t take insurance either?
    • No, no Medicare, no insurance, procedures end up much cheaper
  • Minjarez – Difficult to receive basic health care in the country with all the costs and hoops to jump through
  • Minjarez – Asks after lower income care statistics, don’t know if these patients are Medicaid?
    • Lower income patients generally have worse outcomes

Peter Lazzopina, Family Doctor – For

  • Shares anecdotes of patients who saw access to care issues that complicated health care
  • Minjarez – So you’re not enrolled in Medicaid?
    • I am in ordering providers, don’t accept reimbursement from Medicaid
  • Minjarez – Are you a concierge service?
    • No insurance, no Medicare

Emily Zalkovsky, HHSC – Resource Witness

  • Neave – Cites provision saying doctors could not accept insurance, Medicaid, etc., is this correct?
    • That’s my understanding
  • Neave – How many providers are there in the state?
    • Because they do not participate in Medicaid, do not have a good picture
  • Neave – Trying to get an understanding of if this is rare
    • Medicaid would only be contracting with providers who accept Medicaid and insurance
  • Neave – How many do participate in Medicaid?
    • Can get that number to you
  • Neave – Can you speak to out of pocket costs not being allowable for children and pregnant women?
    • Low-income children and pregnancy services cannot be subject to cost sharing
  • Neave – So would they be excluded from this because funds go to individual
    • Would be subject to cost sharing provisions from CMS, would need to seek waivers

Rep. Shaheen closes

  • Appreciate that current participants in program may not like this approach, but there is a lack of doctors overall and lack of doctors participating in Medicaid; adds to pool of doctors in TX
  • Would need to seek waivers, have been successful in seeking 1115 waivers for mental health, etc.
  • Minjarez – Because Medicaid patients often have complex medical needs, a downside of this bill is that there aren’t as many opportunities to coordinate care; can you speak to high anticipated cost?
    • TX pays a 3rd party $900 million to administer CHIP, wouldn’t be more expensive when you remove insurance component
    • Would work in the same way as food stamps, etc.
    • Fiscal note says that fiscal impact cannot be determined
  • Minjarez – In terms of coordination, there is a monthly for primary care; what about different specialists?
    • Primary care would coordinate this, any services outside this would go into Medicaid
  • Minjarez – Direct care typically serves higher income individuals, typically $1,000s per year; you’re anticipating this would be less expensive?
    • I’ve seen figures around $57/month, patient would have a debit card populated by the state and they would shop and choose doctors
    • Would like low and middle class to go to these same doctors
  • Minjarez – I don’t think middle class could afford these doctors; the state wouldn’t pay for it above $40/month?
    • There’s a range, idea is for state to pay for this, DPC is known to be less costly than insurance model
    • DPC often combined with catastrophic insurance model
    • Concerned about quality of care Medicaid patients receive, keeping status quo will make it worse, access is declining; doctors don’t want to deal with Medicaid
  • Minjarez – Doctors don’t want to deal with insurance at all anymore
    • Pilot, if we don’t get the waiver, the law doesn’t get activate, but full intent is to seek the waiver & we have been successful before
  • Neave – Would ask that look into the cost sharing limitation for children and pregnant women

HB 484 left pending