Part I. Texas Department of Human Services

Chapter 19. Nursing Facility Requirements for Licensure and Medicaid Certification

Subchapter J. Quality of Care

40 TAC §19.901

The Texas Department of Human Services (DHS) proposes an amendment to §19.901, concerning quality of care, in its Nursing Facility Requirements for Licensure and Medicaid Certification chapter. The purpose of the amendment is to ensure that nursing facilities that admit children with special needs provide adequate staffing for their care. The amendment targets children with respiratory care needs and those with daily tracheostomy care.

Eric M. Bost, commissioner, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section.

Mr. Bost also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that medically fragile children in nursing facilities will receive closer supervision and care. There will be no effect on small businesses, since the only two nursing facilities that would be affected by the rules are not small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed section.

Questions about the content of this proposal may be directed to Sharon Balcezak at (512) 438-3529 in DHS's Long Term Care Policy Section. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-149, Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .

The amendment is proposed under the Health and Safety Code, Chapter 242, and under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs.

The amendment implements the Health and Safety Code, §242.037, and the Human Resources Code, §§22.001-22.030.

§19.901. Quality of Care.

Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, as defined by and in accordance with the comprehensive assessment and plan of care. If children are admitted to the facility, care and services must be provided to meet their unique medical and developmental needs.

(1)-(13)

(No change.)

(14)

Pediatric care.

(A)

Licensed nursing care of children. A facility caring for children must have twenty-four hour a day on-site licensed nursing staff in numbers sufficient to provide safe care. For any facility with five or more children under 26 pounds, at least one nurse must be assigned solely to the care of those children.

(B)

Fewer than five pediatric residents. Facilities with fewer than five pediatric residents must assure that the children's rooms are in close proximity to the nurses' station.

(C)

Respiratory care of children.

(i)

To facilitate the care of ventilator-dependent children or children with tracheostomies, a facility must group those children in rooms contiguous or in close proximity to each other. An exception to this rule is children who are able to be schooled off-site.

(ii)

Facilities must assure that alarms on ventilators, apnea monitors, and any other such equipment uniquely identify the child or the child's room.

(iii)

A facility caring for children with tracheostomies requiring daily care (including ventilator-dependent children with tracheostomies) must have twenty-four hour a day on-site respiratory therapy staff in numbers sufficient to provide a safe ratio of respiratory therapist per these residents. For the purposes of this rule, respiratory therapy staff is defined as a registered respiratory therapist (RRT), a certified respiratory therapy technician (CRT), or a licensed nurse whose primary function is respiratory care.

(I)

If the facility cares for nine or more children with tracheostomies requiring daily care (including ventilator-dependent children with tracheostomies), the facility must maintain a ratio of no less than one respiratory therapy staff per nine tracheostomy residents twenty-four hours a day.

(II)

If the facility cares for six or more ventilator dependent children, the facility must:

(-a-)

designate a respiratory therapy supervisor, either on staff or contracted who must be credentialed by the National Board for Respiratory Care (either CRT or RRT).

(-b-)

provide and document that all respiratory therapy staff is trained in the care of children who are ventilator dependent. This training must be reviewed annually.

(-c-)

assure that appropriate care, maintenance, and disinfection of all ventilator equipment and accessories occurs.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 28, 1998.

TRD-9801314

Glenn Scott

General Counsel, Legal Services

Texas Department of Human Services

Proposed date of adoption: May 1, 1998

For further information, please call: (512) 438-3765

Chapter 362. Definitions

40 TAC §362.1

The Texas Board of Occupational Therapy Examiners proposes amended, §362.1, concerning Definitions. This amended section changes certain definitions to strengthen supervisory requirements.

John P. Maline, Executive Director of the Executive Council of Physical Therapy and Occupational Therapy Examiners, has determined that for the first five-year period the rule is in effect there will be no effect on state/local government.

Mr. Maline also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be stronger supervision of persons delivering occupational therapy, resulting in better, more effective and appropriate services. There will be no effect on small business and no anticipated economic cost to persons having to comply.

Comments on the proposed rule may be submitted to Alicia Dimmick Essary, OT Coordinator, Texas Board of Occupational Therapy Examiners, 333 Guadalupe, Suite 2-510, Austin, Texas 78701-3942.

The amended section is proposed under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provides the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.

Texas Civil Statutes, Article 8851 is affected by this new section.

§362.1. Definitions.

The following words and terms, when used in these rules, shall have the following meanings, unless the context clearly indicates otherwise.

Continuing Supervision, OT

- [ Includes frequent, face-to-face meetings which occur at the worksite of the temporary licensee and regular interim communication between the supervising OTR or LOT and the temporary licensee by telephone, written report, or conference. The contact must occur at the worksite of the temporary licensee at minimum on a weekly basis. ] Includes, at a minimum, the following: weekly, face-to-face meetings at the worksite of the temporary licensee(as defined later in this chapter); regular interim communication between the supervising OTR or LOT and the temporary licensee by telephone, written report, or conference; and monthly encounters where the OTR or LOT directly observes the temporary licensee treating one or more patients or clients.

Continuing Supervision, OTA

- [ Includes frequent, face-to-face meetings which occur at the worksite of the temporary licensee and regular interim communication between the supervising OTR or LOT and the temporary licensee by telephone, written report, or conference. The contact must occur at the worksite of the temporary licensee at minimum on a weekly basis. Sixteen hours of supervision per month must be documented and can include the minimum weekly supervisory contacts made at the worksite of the temporary licensee. ] Includes, at a minimum, the following: weekly face-to-face meetings at the worksite of the temporary licensee (as defined later in this chapter); regular interim communication between the supervising OTR or LOT and the temporary licensee by telephone, written report, or conference; and; monthly encounters where the OTR or LOT directly observes the temporary licensee treating one or more patients or clients. Sixteen hours of supervision per month must be documented.

General Supervision

- [ Includes frequent, weekly face-to-face meetings at the worksite and regular interim communication between the OTR or LOT and the COTA or LOTA by telephone, written report, or conference. ] Includes, at a minimum, the following components: weekly face-to-face meetings at the worksite of the COTA or LOTA (as defined later in this chapter); regular interim communication between the OTR or LOT and the COTA or LOTA by telephone, written report, or conference; and monthly encounters where the OTR or LOT directly observes the COTA or LOTA treating one or more patients or clients. Eight hours of supervision per month must be documented for full-timeCOTAs or LOTAs. Part-time COTAs or LOTAs may pro-rate their supervision.

OT Aide or OT Orderly

- A person who aids in the practice of occupational therapy and whose activities require on-the-job training and close personal [ on-site ] supervision by an OTR, LOT, COTA or LOTA.

Worksite

- The place where services are delivered to a patient or client.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 30, 1998.

TRD-9801418

John P. Maline

Executive Director

Texas Board of Occupational Theraapy Examiners

Earliest possible date of adoption: March 15, 1998

For further information, please call: (512) 305-6900

40 TAC §372.1

The Texas Board of Occupational Therapy Examiners proposes amended, §372.1, concerning Provision of Services. This amended section will strengthen supervision by placing more responsibility with the OTR and reducing delegation to the COTA.

John P. Maline, Executive Director of the Executive Council of Physical Therapy and Occupational Therapy Examiners, has determined that for the first five-year period the rule is in effect there will be no effect on state/local government.

Mr. Maline also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be stronger supervision of persons delivering occupational therapy, resulting in better, more effective and appropriate services. There will be no effect on small business and no anticipated economic cost to persons having to comply.

Comments on the proposed rule may be submitted to Alicia Dimmick Essary, OT Coordinator, Texas Board of Occupational Therapy Examiners, 333 Guadalupe, Suite 2-510, Austin, Texas 78701-3942.

The amended section is proposed under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provides the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.

Texas Civil Statutes, Article 8851 is affected by this new section.

§372.1. Provision of Services.

(a)-(b)

(No Change)

(c)

Occupational Therapy Plan of Care Development.

(1)

The occupational therapy plan of care must be developed by an OTR or LOT.

(2)

[ (1) ] An occupational therapy plan of care must be based on an occupational therapy evaluation.

(3)

[ (2) ] An occupational therapy plan of care may be integrated into an interdisciplinary plan of care, but occupational therapy goals or objectives must be easily identifiable in the plan of care.

(4)

[ (3) ] Only an OTR or LOT may change an occupational therapy plan of care.

(d)

(No Change)

(e)

Discharge.

(1)

An OTR or LOT has authority to discharge patients from occupational therapy services.

(2)

The occupational therapy discharge summary must be completed by an OTR or LOT. [ A COTA or LOTA may assist in the discharge. ]

(A)

The OTR or LOT shall discharge a patient when the patient or client has achieved predetermined goals; has achieved maximum benefit from OT services; or when other circumstances warrant discontinuation of occupational therapy services.

(B)

The OTR or LOT, with input from the COTA or LOTA where applicable, shall prepare and implement a discharge plan that is consistent with occupational therapy goals, individual goals, interdisciplinary team goals, family goals, and expected outcomes.

(C)

The OTR or LOT shall document the changes between the initial and current states of functional ability and deficit in performance areas, performance components, and performance contexts. A COTA or LOTA may assist in the discharge.

(D)

An OTR or LOT shall document recommendations for follow-up or reevaluation when applicable.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 30, 1998.

TRD-9801416

John P. Maline

Executive Director

Texas Board of Occupational Therapy Examiners

Earliest possible date of adoption: March 15, 1998

For further information, please call: (512) 305-6900

40 TAC §373.1

The Texas Board of Occupational Therapy Examiners proposes amended, §373.1, concerning Supervision. This amended section will strengthen supervisory requirements and reduce delegation to Occupational Therapy Assistants. Licensees must have more interaction with the patient if tasks are delegated to Occupational Therapy Assistants or aides or technicians.

John P. Maline, Executive Director of the Executive Council of Physical Therapy and Occupational Therapy Examiners, has determined that for the first five-year period the rule is in effect there will be no effect on state/local government.

Mr. Maline also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be stronger supervision of persons delivering occupational therapy, resulting in better, more effective and appropriate services. There will be no effect on small business and no anticipated economic cost to persons having to comply.

Comments on the proposed rule may be submitted to Alicia Dimmick Essary, OT Coordinator, Texas Board of Occupational Therapy Examiners, 333 Guadalupe, Suite 2-510, Austin, Texas 78701-3942.

The amended section is proposed under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provides the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.

Texas Civil Statutes, Article 8851 is affected by this new section.

§373.1. Supervision

(a)

(No Change)

(b)

Supervision of COTAs.

(1)

The OTR or LOT shall delegate responsibilities to the COTA or LOTA that are within the scope of his or her training.

(2)

A COTA or LOTA shall provide occupational therapy services only under the general supervision of a licensed OTR or LOT. (See Chapter 362 of this title (relating to Definitions))

(A)

A minimum of eight hours of supervision per month for full time COTAs or LOTAs must be documented on an "Occupational Therapy Supervision Log" prescribed by the board. COTAs and LOTAs employed part time shall prorate the required supervision.

(i)

The "Occupational Therapy Supervision Log" must be kept by the COTA or LOTA and a copy of this form must be maintained by the facility where the COTA or LOTA provides services. One "Occupational Therapy Supervision Log" must be completed for each separate employer.

(ii)

The "Occupational Therapy Supervision Log" must be submitted to TBOTE with the COTA's or LOTA's renewal application.

(B)

The manner of supervision shall depend on the treatment setting, patient/client caseload, and the competency of the COTA or LOTA as determined by the supervising OTR or LOT.

(C)

The supervising OTR or LOT need not be physically present or on the premises at all times.

(3)

[ A COTA or LOTA may initiate and perform the screening process and collect information for the OTR's or LOT's review. The OTR or LOT is responsible for determining if intervention is needed and if a physician's referral is required for evaluation and/or occupational therapy intervention. ] A COTA or LOTA may initiate and perform the screening process and collect information for the OTR's or LOT's review. Only the OTR or LOT may determine if evaluation is needed and if a physician referral is required.

[ (4)

An OTR or LOT is responsible for completing the patient's evaluation/assessment. The supervising OTR or LOT may delegate any evaluative task to a COTA or LOTA that the OTR or LOT and COTA or LOTA agree is within the competency level of that COTA or LOTA. ]

(4)

An OTR or LOT is responsible for the patient's evaluation/assessment. The supervising OTR or LOT may delegate to a COTA or LOTA the collection of data or information for the evaluation.

(A)

The OTR or LOT and COTA or LOTA must agree that the information collection tasks delegated are within the competency level of that COTA or LOTA.

(B)

The OTR or LOT is responsible for the accuracy of evaluative information collected by the COTA or LOTA.

(C)

The OTR or LOT must have face-to-face interaction with the patient or client during the evaluation process.

(5)

[ An OTR or LOT is responsible for developing and modifying the patient's treatment plan. The treatment plan must include the following components: goals, interventions/modalities, frequency, and duration. ] Only an OTR or LOT may develop or modify the patient's treatment plan. The treatment plan must include the following components: goals, interventions/modalities, frequency, and duration.

[ (6)

An OTR or LOT assumes responsibility for the patient's discharge summary. The supervising OTR or LOT may delegate any discharge-related task to a COTA or LOTA that the OTR or LOT and COTA or LOTA agree is within the competency level of that COTA or LOTA. ]

(6)

[ (7) ] It is the responsibility of the OTR or LOT and the COTA or LOTA to ensure that all documentation prepared by the COTA or LOTA which becomes part of the patient's/client's permanent record is co-signed by the supervising OTR or LOT. Occupational Therapy notes must be initialed by the OTR or LOT and signed at the bottom of each page.

(7)

[ (8) ] These rules shall not preclude the COTA or LOTA from responding to emergency situations in the patient's condition which require immediate action.

(c)

Supervision of an OT Aide or OT Orderly.

(1)

When an OTR, LOT, COTA and/or LOTA delegates OT tasks to an aide or orderly, the OTR, LOT, COTA and/or LOTA is responsible for the aide's actions during patient contact on the delegated tasks. The licensee is responsible for ensuring that the aide is adequately trained in the tasks delegated.

(2)

The OTR, LOT, COTA or LOTA must interact with the patient regarding the patient's condition, progress and/or achievement of goals during each treatment session.

(3)

[ (2) ]An OTR, LOT, COTA and/or LOTA using OT Aide or OT Orderly personnel to assist with the provision of occupational therapy services must provide close personal supervision in order to protect the health and welfare of the consumer. (See Chapter 362 of this title (relating to Definitions))

(4)

[ (3) ] Delegation of tasks to OT Aides or OT Orderlies.

(A)

The primary function of an OT Aide or OT Orderly functioning in an occupational therapy setting is to perform designated routine tasks related to the operation of an occupational therapy service. An OTR, LOT, COTA and/or LOTA may delegate to an OT Aide or OT Orderly only specific tasks which are not evaluative or recommending in nature, and only after insuring that the OT Aide or OT Orderly has been properly trained for the performance of the tasks. Such tasks include, but are not limited to:

(i)

routine department maintenance;

(ii)

transportation of patients/clients;

(iii)

preparation or setting up of treatment equipment and work area;

(iv)

assisting patients/clients with their personal needs during treatment;

(v)

assisting in the construction of adaptive equipment and splints;

(vi)

clerical, secretarial, administrative activities;

(vii)

carrying out a predetermined segment or task in the patient's care.

(B)

The OTR, LOT, COTA and/or LOTA shall not delegate to an OT Aide or OT Orderly:

(i)

performance of occupational therapy evaluative procedures;

(ii)

initiation, planning, adjustment, modification, or performance of occupational therapy procedures requiring the skills or judgment of an OTR, LOT, COTA or LOTA;

(iii)

making occupational therapy entries directly in patients' or clients' official records;

(iv)

acting on behalf of the occupational therapist in any matter related to occupational therapy which requires decision making or professional judgment.

(d)

(No Change)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 30, 1998.

TRD-9801417

John P. Maline

Executive Director

Texas Board of Occupational Therapy Examiners

Earliest possible date of adoption: March 15, 1998

For further information, please call: (512) 305-6900