Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 19.
NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
The Texas Department of Human Services (DHS) proposes the REPEAL of §19.205,
concerning supplemental licensure information; §19.1105, concerning documentation
requirements for dietary consultant; and §19.1911, concerning contents
of the clinical record; proposes AMENDMENTS to §19.1, concerning basis
and scope; §19.101, concerning definitions; §19.201, concerning
criteria for licensing; §19.204, concerning application requirements; §19.209,
concerning exclusion from licensure; §19.210, concerning change of ownership; §19.216,
concerning license fees; §19.301, concerning applicable codes and standards; §19.311,
concerning fire service and access; §19.314, concerning fire alarms,
detection systems, and sprinkler systems; §19.321, concerning heating,
ventilating, and air-conditioning systems (HVAC); §19.326, concerning
safety operations; §19.340, concerning mechanical requirements; §19.342,
concerning miscellaneous details; §19.403, concerning notice of rights
and services; §19.408, concerning grievances; §19.419, concerning
directives and durable powers of attorney for health care; §19.502, concerning
transfer and discharge in Medicaid-Certified facilities; §19.602, concerning
incidents of abuse and neglect reportable to the Texas Department of Human
Services (DHS) by facilities; §19.703, concerning social services general
requirements; §19.1109, concerning food intake; §19.1206, concerning
physician signatures; §19.1601, concerning infection control; §19.1921,
concerning general requirements for a nursing facility; §19.2004, concerning
determinations and actions pursuant to inspections; §19.2006, concerning
reporting incidents and complaints; §19.2112, concerning administrative
penalties; §19.2310, concerning nursing facility ceases to participate; §19.2322,
concerning allocation, reallocation, and decertification requirements; §19.2403,
concerning utilization review process; §19.2500, concerning Preadmission
Screening and Resident Review (PASARR); §19.2601, vendor payment (items
and services included); and §19.2604, vendor payment information; and
proposes NEW §19.205, concerning probationary license; and §19.1911,
concerning contents of the clinical record, in its Nursing Facility Requirements
for Licensure and Medicaid Certification chapter.
The purpose of the proposal is to comply with legislation from the 76th
legislative session, which requires DHS to establish a probationary license;
allow an exclusion from licensure when a trustee has been appointed to a facility
and trust fund monies are expended, other than for the trustee's salary; increase
the trust fund to $10 million; require facilities to disclose drug testing
policies; require facilities to offer flu vaccinations to employees and residents
and pneumonia vaccinations to residents; require facilities to search the
Employee Misconduct Registry, in addition to the Nurse Aide Registry, before
hiring an employee; prohibit retaliation against volunteers; and require facilities
to inform residents of policies regarding advance directives and establish
a $500 administrative penalty for failure to do so. DHS also developed more
specific rules regarding administrative penalties, which will provide greater
consistency in terms of administering them. In addition, a change to the Social
Security Act requires changes to Medicaid rules regarding facilities which
voluntarily withdraw from the Medicaid program. The department also made clarifying
changes to the Life Safety Code (construction) section of the rules.
Eric M. Bost, commissioner, has determined that for the first five-year
period the sections are in effect there will be fiscal implications for state
government as a result of enforcing or administering the sections. The effect
on state government for the first five-year period the sections will be in
effect is an estimated additional cost $0 in fiscal year (FY) 2000; $93,214
in FY 2001; $466,148 in FY 2002; $466,148 in FY 2003; and $466,148 in FY 2004.
There will be no fiscal implications for local government as a result of enforcing
or administering the sections.
Mr. Bost also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of enforcing
the sections will be stronger nursing facilities, particularly ones which
require facilities to inform the public about facility drug testing and advance
directive policies; to offer flu vaccinations to employees and residents and
pneumonia vaccinations to residents; to search the Employee Misconduct Registry,
in addition to the Nurse Aide Registry, before hiring an employee; and to
prohibit retaliation against volunteers. There will be an economic effect
on large, small, or micro businesses that operate nursing facilities that
are required to comply with the proposed sections. The rule requiring that
facilities offer their employees flu vaccinations will cost all facilities
approximately $5 per employee for those employees who accept the vaccination.
This cost should be offset by the benefits derived from having healthy employees
reporting to work during flu season. The increase in the cap on the nursing
and convalescent trust fund means an increase in the amount nursing facilities
pay into the fund, from $3.04 to $12.38 per bed. Both of these rule changes
resulted from legislation, so there does not appear to be a way to lessen
the effect.
Questions about the content of this proposal may be directed to Susan Syler
at (512) 438-3111 in DHS's Long Term Care Section. Written comments on the
proposal may be submitted to Supervisor, Rules and Handbooks Unit-085, Texas
Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-
9030, within 30 days of publication in the
Texas
Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to this
rule. Accordingly, the department is not required to complete a takings impact
assessment regarding this rule.
Subchapter A. BASIS AND SCOPE.
40 TAC §19.1
The amendment is proposed under the Health and Safety Code,
Chapter 242, which authorizes the department to license and regulate nursing
facilities.
The amendment implements the Health and Safety Code, §§242.001
- 242.268.
§19.1. Basis and scope.
(a)
(No change.)
(b)
Scope. The Nursing Facility Requirements for Licensure
and Medicaid Certification contain the requirements that an institution must
meet in order to be licensed as a nursing facility and also to qualify to
participate in the Medicaid program. The requirements serve as a basis for
survey activities for licensure and certification.
(1)-(3)
(No change.)
(4)
Additional documents that a facility may need for
reference include, but are not limited to:
(A)-(G)
(No change.)
(H)
Food
Establishment Rules
[
(I) -(J)
(No change.)
(K)
Methicillin-Resistant
[
(L)
(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 February 18, 2000.
TRD-200001252
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 438-3108
40 TAC §19.101
The amendment is proposed under the Health and Safety Code,
Chapter 242, which authorizes the department to license and regulate nursing
facilities.
The amendment implements the Health and Safety Code, §§242.001
- 242.268.
§19.101. Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)-(23)
(No change.)
(24)
Controlling person - - A person with the ability,
acting alone or in concert with others, to directly or indirectly, influence,
direct, or cause the direction of the management, expenditure of money, or
policies of a nursing facility or other person. [
(A)-(B)
(No change.)
(C)
any other individual who, because of a personal, familial,
or other relationship with the owner, manager, landlord, tenant, or provider
of a nursing facility, is in a position of actual control or authority with
respect to the nursing facility, without regard to whether the individual
is formally named as an owner, manager, director, officer, provider, consultant,
contractor, or employee of the facility.
This does not include an employee,
lender, secured creditor, or landlord, or other person who does not exercise
formal or actual influence or control over the operation of an assisted living
facility.
(25)-(152)
(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 February 18, 2000.
TRD-200001253
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 438-3108
40 TAC §§19.201, 19.204, 19.205, 19.209, 19.210, 19.216
The amendments and new section are proposed under the Health
and Safety Code, Chapter 242, which authorizes the department to license and
regulate nursing facilities.
The amendments and new section implement the Health and Safety Code, §§242.001
- 242.268.
§19.201. Criteria for Licensing.
(a)-(b)
(No change.)
(c)
No person may apply for
a probationary license,
a license, change of ownership, increase in capacity, or renewal of a nursing
facility license without making a disclosure of information as required in
this section.
(d)-(j)
(No change.)
§19.204. Application Requirements.
(a)
Applications. All applications must be made on forms prescribed
by and available from the Texas Department of Human Services (DHS).
(1)
Each application must be completed in accordance
with DHS instructions, and it must be signed and notarized.
(2)
Changes to information
required in the application must be reported to DHS, as required by §19.1918
of this title (relating to Disclosure of Ownership).
(b)-(d)
( No change.)
§19.205. Probationary License.
The initial license issued to a license holder who has not previously
held a license is a probationary license and is effective for one year. A
permanent license may be issued only after DHS finds that the license holder
and any other person listed in §19.201(f) of this title (relating to
Criteria for Licensing) continues to meet the nursing facility requirements
and submits an application requesting a permanent license with the applicable
license fee. The facility must also be able to pass an inspection unless an
inspection is not required as provided by §242.047, Health and Safety
Code.
§19.209. Exclusion from Licensure.
(a)
The Texas Department of Human Services, after providing
notice and opportunity for a hearing, may exclude a person from eligibility
for a license if the person or any person described in §19.201(e) of
this title (relating to Criteria for Licensing) has substantially failed to
comply with the rules in this chapter.
[
Exclusion of a person must extend for at
least two years, but not more that ten years.
(b)
A license holder or controlling
person who operates a nursing facility or an assisted living facility for
which a trustee was appointed and for which emergency assistance funds, other
than funds to pay the expenses of the trustee, were used is subject to exclusion
from eligibility for the:
(1)
issuance of an original license for a facility
for which the person has not previously held a license; or
(2)
renewal of the license of the facility
for which the trustee was appointed.
§19.210. Change of Ownership.
(a)
During the license term, a license holder may not transfer
the license as a part of the sale or other transfer of ownership of the facility.
Prior to the sale or other transfer of ownership of the facility, the license
holder must notify the Texas Department of Human Services (DHS) that a change
of ownership is about to take place. A change of ownership is a [
(1)
change
of 50% or more in the ownership of the
business organization or sole proprietorship that is licensed to operate the
facility; [
(2)
change
in the federal tax payer identification
number
; or
[
(3)
relinquishment by the
license holder of the management of the facility.
(b)-(d)
(No change.)
§19.216. License Fees.
(a)
Basic fees.
(1)
Probationary license. The
license fee is $125 plus $5 for each unit of capacity or bed space for which
a license is sought.
(2)
[
(3)
[
(4)
[
(5)
[
(b)
Trust fund fee.
(1)
(No change.)
(2)
DHS charges and collects an annual fee from each
facility licensed under the Texas Health and Safety Code,
Chapter
[
(3)
DHS may charge and collect
a fee more than once a year only if necessary to ensure that the mount in
the nursing and convalescent trust fund is sufficient to allow required disbursements.
(c)
(No change.)
Filed with the Office of the Secretary of State, on February 18, 2000.
TRD-200001255
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 438-3108
40 TAC §19.205
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Human Services or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Health and Safety
Code, Chapter 242, which authorizes the department to license and regulate
nursing facilities.
The repeal implements the Health and Safety Code, §§242.001 -
242.268.
§19.205. Supplemental Licensure Information.
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 February 18, 2000.
TRD-200001254
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 438-3108
40 TAC §§19.301, 19.311, 19.314, 19.321, 19.326, 19.340, 19.342
The amendments are proposed under the Health and Safety Code,
Chapter 242, which authorizes the department to license and regulate nursing
facilities.
The amendments implement the Health and Safety Code, §§242.001
- 242.268.
§19.301. Applicable Codes and Standards.
(a)-(b)
(No change.)
(c)
The following codes, standards, or guidelines generally
govern their subject areas for existing construction:
(1)-(8)
(No change.)
(9)
All boilers not exempted
by the Texas Health and Safety Code, §755.022, must be inspected and
certified for operation by the Texas Department of Licensing and Regulation.
§19.311. Fire Service and Access.
(a)
The facility must be served by a paid or volunteer fire
department.
(1)
The fire department must provide written assurance
to the licensing agency that the fire department can respond to an emergency
at the facility within an appropriately prompt time for the travel conditions
involved.
(2)
The facility must have
an annual inspection by the local fire marshal and maintain documentation
of such an inspection at the facility.
(b)-(d)
(No change.)
§19.314. Fire Alarms, Detection Systems, and Sprinkler Systems.
Fire alarms, detection systems, and sprinkler systems must be as required
by the Life Safety Code, the National Fire Protection Association (NFPA) 72,
and NFPA 13.
(1)-(3)
(No change.)
(4)
Smoke detector sensitivity
must be checked within one year after installation and every alternate year
thereafter in accordance with NFPA 72. Documentation, including as-built installation
drawings, operation and maintenance manuals, and a written sequence of operation
must be available for examination by the Texas Department of Human Services
(DHS).
(5)
[
(A)
smoke and fire doors which are held open by an approved
device must be released to close;
(B)
air handlers (air conditioning/heating distribution fans)
serving three or more rooms or any means of egress must shut down immediately;
(C)
smoke dampers must close; and
(D)
the alarm-initiating location must be clearly indicated
on the fire alarm control panel(s) and all auxiliary panels.
(6)
[
(7)
[
(8)
[
(9)
[
(10)
[
(11)
[
(12)
[
§19.321. Heating, Ventilating, and Air-conditioning Systems (HVAC).
(a)
The heating system must be capable of maintaining a temperature
of not less than 71 degrees Fahrenheit at the resident level in all resident-use
areas.
(1)
Auxiliary heating devices permanently installed,
such as heat strips in ducts, electric ceiling-mounted heating units, and
electric baseboards, may be used to augment a central heating system as approved
by the Texas Department of Human Services (DHS). See §19.705 of this
title (relating to Environment).
(2)
All gas heating systems
must be checked prior to the heating season for proper operation and safety
by persons who are licensed or approved by the State of Texas to inspect such
equipment. A record of this service must be maintained by the facility. Any
unsatisfactory conditions must be corrected promptly.
(b)-(n)
(No change.)
§19.326. Safety Operations.
(a)
The facility must have a written
emergency preparedness
and response
plan
.
[
(1)-(6)
(No change.)
(b)-(e)
(No change.)
(f)
Emergency generators, if required or provided, must be
maintained in operating condition at all times. These must be inspected and
run, under load, for at least 30 minutes each week. A signed or initialed
record or log must be kept on file by the facility.
The log should document
maintenance performed, time taken to transfer load, and length of run times.
The condition and proper operation of the emergency egress lighting
should also be checked at this time.
(g)-(p)
(No change.)
§19.340. Mechanical Requirements.
The design of the mechanical systems must be done by or under the direction
of a registered professional (mechanical) engineer approved by the Texas State
Board of Registration for Professional Engineers to operate in Texas, and
the parts of the plans and specifications covering mechanical design must
bear the legible seal of the engineer. Building services pertaining to utilities;
heating, ventilating, and air-conditioning systems; vertical conveyors; and
chutes must be in accordance with the Life Safety Code. Required plumbing
fixtures must be in accordance with the Life Safety Code and §19.334
of this title relating to Architectural Space Planning and Utilization) in
specific use areas.
(1)
Plumbing.
(A)-(O)
(No change.)
(P)
All boilers not exempted by
the Texas Health and Safety Code §755.022 must be inspected and certified
for operation by The Texas Department of Licensing and Regulation.
(2)
Heating, ventilating, and air-conditioning systems.
(A)-(B)
(No change.)
(C)
Systems using liquefied petroleum gas fuel must meet the
requirements of the Railroad Commission of Texas and NFPA
58 Liquefied
Petroleum Gases
[
(D)-(P)
(No change.)
(3)-(4)
(No change.)
§19.342. Miscellaneous Details.
(a)
Safety related details. A high degree of safety for the
occupants is needed to minimize accidents which are more apt to occur with
the elderly and/or infirm residents in a nursing facility. Consideration must
be given to the fact that many will have impaired vision, hearing, spatial
perception, and ambulation.
(1)-(6)
(No change.)
(7)
Grab bars must be provided at all residents' toilets,
showers, tubs, and sitz baths. The bars must be 1- 1/4 to 1-1/2 inches in
diameter and must have
1-1/2
[
(8)
Handrails must be provided on both sides of corridors
used by residents. A clear distance of
1- 1/2
[
(9)-(10)
(No change.)
(b)
(No change.)
Filed with the Office of the Secretary of State, on February 18, 2000.
TRD-200001256
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 438-3108
40 TAC §§19.403, 19.408, 19.419
The amendments are proposed under the Health and Safety Code,
Chapter 242, which authorizes the department to license and regulate nursing
facilities.
The amendments implement the Health and Safety Code, §§242.001
- 242.268.
§19.403. Notice of Rights and Services.
(a)
(No change.)
(b)
The facility must also inform the resident, upon admission
and during the stay, in a language the resident understands, of the following:
(1)-(2)
(No change.)
(3)
the Human Resources Code, Title 6, Chapter 102; or
a written list of the rights and responsibilities contained in the Human Resources
Code, Title 6, Chapter 102; [
(4)
a written description of the services available through
the Office of the State Long Term Care Ombudsman, Texas Department on Aging.
This information must be made available to each facility by the ombudsman
program. Facilities are responsible for reproducing this information and making
it available to residents, their families, and legal representatives
; and
[
(5)
a written statement describing
the facility's policy for the drug testing of employees who have direct contact
with residents.
(c)-(l)
(No change.)
§19.408. Grievances.
(a)
(No change.)
(b)
A nursing facility may not retaliate or discriminate against
a resident
or a volunteer because
[
(1)
makes a complaint or files a grievance concerning
the facility.
(2)
reports a violation of
law, including a violation of laws or regulations regarding nursing facilities;
or
(3)
initiates or cooperates
in an investigation or proceeding of a governmental entity relating to care,
services, or conditions at the nursing facility.
§19.419. Directives and Durable Powers of Attorney for Health Care.
(a)
(No change.)
(b)
The nursing facility must maintain policies and procedures
regarding the following rules with respect to all adult individuals receiving
services provided by the facility:
(1)
the facility must maintain
written policies regarding the implementation of advance directives. The policies
must include a clear and precise statement of any procedure the facility is
unwilling or unable to provide or withhold in accordance with an advance directive;
(2)
[
(A)
the individual's rights under Texas law (whether statutory
or as recognized by the courts of the state) to make decisions concerning
medical care, including the right to accept or refuse medical or surgical
treatment and the right to formulate advance directives; and
(B)
the nursing facility's policies respecting the implementation
of these rights
including the written policies regarding the implementation
of advance directives;
[
(3)
[
(4)
[
(5)
[
(6)
[
(7)
[
(8)
[
(A)
written information regarding
advance directives, including facility policies regarding the implementation
of advance directives, must be provided in the following order of preference,
to:
(i)
the resident's legal guardian;
(ii)
a person responsible for the resident's health
care decisions;
(iii)
the resident's spouse;
(iv)
the resident's adult child;
(v)
the resident's parents; or
(vi)
the person admitting the resident.
(B)
if the facility is unable,
after diligent search, to locate an individual listed under subparagraph (A)
of this paragraph, the facility is not required to give notice;
(9)
if a resident, who
was incompetent or otherwise incapacitated and unable to receive information
regarding advance directives, including written policies regarding the implementation
of advance directives, later becomes able to receive the information, the
facility must provide the written information at the time the individual becomes
able to receive the information; and
(10)
[
(c)
Failure to inform the resident
of facility policies regarding the implementation of advance directives will
result in an administrative penalty of $500.
(d)
[
(1)
prior to admission to the facility, the primary physician,
who has been providing care to the child, has discussed advance directives
with the family or guardian and documented this discussion; and
(2)
the decision made by the family or guardian regarding
advance directives is addressed in the comprehensive care plan (see §19.802
of this title (relating to Comprehensive Care Plans)).
Filed with the Office of the Secretary of State, on February 18, 2000.
TRD-200001257
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 438-3108
40 TAC §19.502
The amendment is proposed under the Human Resources Code,
Title 2, Chapters 22 and 32, which authorizes the department to administer
public and medical assistance programs; the Health and Safety Code, Chapter
242, which authorizes the department to license and regulate nursing facilities;
and under Texas Government Code §531.021, which provides the Health and
Human Services Commission with the authority to administer federal medical
assistance funds.
The amendment implements the Health and Safety Code, §§242.001
- 242.268, and the Human Resources Code, §§22.001 - 22.024 and §§32.001
- 32.040.
§19.502. Transfer and Discharge in Medicaid-certified Facilities.
(a)
(No change.)
(b)
Transfer and discharge requirements. The facility must
permit each resident to remain in the facility and must not transfer or discharge
the resident from the facility unless:
(1)-(6)
(No change.)
(7)
the facility ceases to operate or participate in
the program which pays for the resident's care.
If the facility voluntarily
withdraws from participation in Medicaid, but continues to provide nursing
facility services:
(A)
the facility's voluntary withdrawal
from Medicaid is not an acceptable basis for the transfer or discharge of
residents who were residing in the facility on the day before the effective
date of the withdrawal (including those residents who were not entitled to
Medicaid assistance as of such day);
(B)
for individuals who begin
residence in the facility after the effective date of the withdrawal, the
facility must provide notice orally and in a prominent manner in writing on
a separate page of the admission agreement at the time the resident begins
residence and document receipt in writing, signed by the individual, and separate
from other documents signed by the individual of the following information:
(i)
The facility is not participating in the Medicaid
program with respect to these residents.
(ii)
The facility may transfer or discharge these
residents if they are unable to pay the charges of the facility, even though
the resident may have become eligible for Medicaid nursing facility services.
(c)-(e)
(No change.)
(f)
Contents of the notice. For nursing facilities, the written
notice specified in subsection (d) of this section must include the following:
(1)-(4)
(No change.)
(5)
the name, address, and telephone number of the regional
representative of the Office of the State Long Term Care Ombudsman, Texas
Department on Aging, and of the toll-free number of the Texas Long Term Care
Ombudsman, 1-800-252-2412 [
(6)
in the case of a resident with mental illness or
mental retardation, the address and phone number of the state mental health/mental
retardation authority, which is: Texas Department of Mental Health and Mental
Retardation, P.O. Box 12668, Austin, Texas 78711-2668,
1-800-252-8154
[
(g)-(j)
(No change.)
Filed with the Office of the Secretary of State, on February 18, 2000.
TRD-200001258
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 438-3108
40 TAC §19.602
The amendment is proposed under the Health and Safety Code,
Chapter 242, which authorizes the department to license and regulate nursing
facilities.
The amendment implements the Health and Safety Code, §§242.001
- 242.268.
§19.602.Incidents of Abuse and Neglect Reportable to the Texas Department of Human Services (DHS) by Facilities.
(a)
Any facility staff member who has cause to believe that
the physical or mental health or welfare of a resident has been or may be
adversely affected by abuse, neglect, or exploitation caused by another person
must report the abuse, neglect, or exploitation
.
[
[
[
(b)
(No change.)
(c)
Each employee of a facility must sign a statement which
states:
(1)
(No change.)
(2)
under the Health and Safety Code, Title 4, §242.133,
the employee has a cause of action against a facility, its owner(s) or employee(s)
if he is suspended, terminated, disciplined, or discriminated or retaliated
against as a result of:
(A)
reporting
to the employee's supervisor, the administrator,
DHS, or a law enforcement agency a violation of law, including a violation
of laws or regulations regarding nursing facilities; or
[
[
(B)
[
(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 February 18, 2000.
TRD-200001259
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 438-3108
40 TAC §19.703
The amendment is proposed under the Health and Safety Code,
Chapter 242, which authorizes the department to license and regulate nursing
facilities.
The amendment implements the Health and Safety Code, §§242.001
- 242.268.
§19.703.Social Services General Requirements.
(a)
The facility must provide medically-related social services
to attain the highest practicable physical, mental, or psychosocial well-
being of each resident. See also §19.901 of this title (relating to Quality
of Care) for information concerning psychosocial functioning.
(1)
(No change.)
(2)
A facility of 120 beds or less must employ or contract
with a qualified social worker (or in lieu thereof, a social worker who is
licensed by the Texas State Board of Social Work Examiners [
(b)
A qualified social worker is an individual who is licensed,
including a temporary or provisional license
[
(1)-(2)
(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 February 18, 2000.
TRD-200001260
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 438-3108
40 TAC §19.1105
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Human Services or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Health and Safety
Code, Chapter 242, which authorizes the department to license and regulate
nursing facilities.
The repeal implements the Health and Safety Code, §§242.001 -
242.268.
§19.1105.Documentation Requirements for Dietary Consultant.
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 February 18, 2000.
TRD-200001261
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 438-3108
40 TAC §19.1109
The amendment is proposed under the Health and Safety Code,
Chapter 242, which authorizes the department to license and regulate nursing
facilities.
The amendment implements the Health and Safety Code, §§242.001
- 242.268.
§19.1109.Food Intake.
Food intake of residents must be monitored and recorded as follows.
(1)
Deviations from normal food and fluid intake must be recorded
in the clinical records. See also
§19.1911(12)(B)(vi)
[
(2)
(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 February 18, 2000.
TRD-200001262
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 438-3108
40 TAC §19.1206
The amendment is proposed under the Health and Safety Code,
Chapter 242, which authorizes the department to license and regulate nursing
facilities.
The amendment implements the Health and Safety Code, §§242.001
- 242.268.
§19.1206.Physician Signatures.
Signature stamps and faxed signed documents are acceptable if used
as described in
§19.1912(f)(2)
[
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 February 18, 2000.
TRD-200001263
Paul Leche
General Counsel
Texas Department of Human Services
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 438-3108
40 TAC §19.1601
The amendment is proposed under the Health and Safety Code,
Chapter 242, which authorizes the department to license and regulate nursing
facilities.
The amendment implements the Health and Safety Code, §§242.001
- 242.268.
§19.1601.Infection Control.
The facility must establish and maintain an infection control program
designed to provide a safe, sanitary, and comfortable environment and to help
prevent the development and transmission of disease and infection.
(1)
(No change.)
(2)
Preventing spread of infection.
(A)
When the infection control program determines that a resident
needs isolation to prevent the spread of infection, the facility must isolate
the resident. Residents with communicable disease must be provided acceptable
accommodations according to current practices and policies for infection control.
See
§19.1(b)(4)(I)
[
(B)-(E)
(No change.)
(3)
Vaccinations. Facilities
are required to offer vaccinations in accordance with an immunization schedule
adopted by the Texas Department of Health.
(A)
Pneumococcal vaccine for residents. The facility
must offer pneumococcal vaccination to all residents 65 years of age or older
who have not received this immunization and to residents younger than 65 years
of age, who have not received this vaccine, but are candidates for vaccination
because of chronic illness. Pneumococcal vaccine must be offered both to residents
who currently reside in the facility and to new residents upon admission.
Vaccination must be completed unless the vaccine is medically contraindicated
by a physician or the resident refuses the vaccine. Vaccine administration
must be in accordance with the recommendations of the Advisory Committee on
Immunization Practices of the Centers for Disease Control and Prevention at
the time of the vaccination.
(B)
Influenza vaccinations for residents and employees.
The facility must offer influenza vaccine to residents and employees in contact
with residents, unless the vaccine is medically contraindicated by a physician
or the employee or resident has refused the vaccine.
(i)
Influenza vaccinations for all residents and
employees in contact with residents must be completed by November 30 of each
year. Employees hired or residents admitted after this date and during the
influenza season (through February of each year) must receive influenza vaccinations,
unless medically contraindicated by a physician or the employee or resident
refuses the vaccine.
(ii)
Vaccine administration must be in accordance
with the recommendations of the Advisory Committee on Immunization Practices
of the Centers for Disease Control and Prevention at the time of the most
recent vaccination.
(C)
Documentation of receipt or refusal of vaccination.
Immunization records must be maintained for each employee in contact with
residents and must show the date of the receipt or refusal of each annual
influenza vaccination. The medical record for each resident must show the
date of the receipt or refusal of the annual influenza vaccination and the
pneumococcal vaccine.
(4)
[
(5)
[
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 February 18, 2000.
TRD-200001264
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 438-3108
40 TAC §19.1911
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Human Services or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Health and Safety
Code, Chapter 242, which authorizes the department to license and regulate
nursing facilities.
The repeal implements the Health and Safety Code, §§242.001 -
242.268.
§19.1911.Contents of the Clinical Record.
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 February 18, 2000.
TRD-200001265
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 438-3108
40 TAC §19.1911, §19.1921
The new section and the amendment are proposed under the Health
and Safety Code, Chapter 242, which authorizes the department to license and
regulate nursing facilities.
The new section and the amendment implement the Health and Safety Code, §242.001-242.268.
§19.1911.Contents of the Clinical Record.
The clinical record of each resident must contain:
(1)
Sufficient information to identify and care for the resident,
to include at a minimum:
(A)
full name of resident;
(B)
full home/mailing address;
(C)
social security number;
(D)
health insurance claim numbers, if applicable;
(E)
date of birth; and
(F)
clinical record number, if applicable.
(2)
A record of the resident's assessments.
(3)
The comprehensive, interdisciplinary plan of care
and services provided (see also §19.802 of this title (relating to Comprehensive
Care Plans)).
(4)
The results of any preadmission screening and annual
resident review conducted by the Texas Department of Human Services (DHS)
or the Texas Department of Mental Health and Mental Retardation (TXMHMR).
(5)
Progress notes from all health care practitioners
involved in the resident's care.
(6)
Any directives or durable powers of attorney as described
in §19.419 of this title (relating to Directives and Durable Powers of
Attorney for Health Care).
(7)
Discharge information in accordance with §19.803
of this title (relating to Discharge Summary (Discharge Plan of Care)) and
a physician discharge summary, to include, at least, dates of admission and
discharge, admitting and discharge diagnoses, condition on discharge, and
prognosis, if applicable.
(8)
At admission or within 14 days, documentation of an
initial medical evaluation, including history, physical examination, diagnoses
and an estimate of discharge potential and rehabilitation potential and documentation
of an annual medical examination.
(9)
Authentication of any hospital diagnoses.
(A)
This may be in the form of a signed hospital discharge
summary, a signed report from the resident's hospital or attending physician,
or a transfer form signed by the physician.
(B)
The facility is allowed 14 workdays after admission to
receive this information from the hospital or transferring facility. If the
author of such reports is not the resident's attending physician, then the
attending physician must acknowledge the report in writing by co-signing the
report at his or her next scheduled visit.
(10)
The physician's signed and dated orders, including
medication, treatment, diet, restorative and special medical procedures, and
routine care to maintain or improve the resident's functional abilities (required
for the safety and well-being of the resident). Changes cannot be made either
on a handwritten or computerized physician's order sheet after the orders
have been signed by the physician unless space allows for additional orders
below the physician's signature, including space for the physician to sign
and date again.
(11)
Arrangements for the emergency care of the resident
in accordance with §19.1204 of this title (relating to Availability of
Physician for Emergency Care).
(12)
Observations made by nursing personnel according
to the time frames specified in §19.1010 of this title (relating to Nursing
Practices). Facility staff must ensure that the observations show at least
the following:
(A)
items as specified on the Resident Assessment Instrument
and the Texas Nursing Facility Client Assessment Review and Evaluation (CARE)
form; and
(B)
current information including:
(i)
PRN medications and results;
(ii)
treatments and any notable results;
(iii)
physical complaints, changes in clinical signs and behavior,
mental and behavioral status, and all incidents or accidents;
(iv)
flow sheets which may include bathing, restraint observation
and/or release documentation, elimination, fluid intake, vital signs, ambulation
status, positioning, continency status and care, and weight;
(v)
the resident's ability to participate in activities of
daily living as defined in §19.1010(e)(1) of this title (relating to
Nursing Practices); and
(vi)
dietary intake to include deviations from normal diet,
rejection of substitutions, and physician's ordered snacks and/or supplemental
feedings.
(13)
The date and hour all drugs and treatments
are administered.
(14)
Documentation of special procedures performed for
the safety and well-being of the resident must be included in the clinical
record.
§19.1921.General Requirements for a Nursing Facility.
(a)-(d)
(No change.)
(e)
Each licensed facility must conspicuously and prominently
post the information listed in paragraphs
(1)-(11)
[
(1)-(9)
(No change.)
(10)
for a facility which advertises, markets, or otherwise
promotes that it provides services to residents with Alzheimer's disease and
related disorders, a disclosure statement describing the nature of its care
or treatment of residents with Alzheimer's disease and related disorders in
accordance with
§19.204(b)(4)
[
(11)
at each entrance to the
facility, a sign in English and Spanish, that it is unlawful to carry a handgun
on the premises. The sign must appear in contrasting colors with block letters
at least one inch in height and be displayed in a conspicuous manner, clearly
visible to the public.
(f)
For facilities serving residents with Alzheimer's disease
and related disorders, failure to post the required disclosure statement,
as specified in subsection
(e)(10)
[
(g)-(l)
(No change.)
(m)
Before a facility hires an employee, the
facility must search the employee misconduct registry established under §253.007,
Health and Safety Code, and the DHS nurse aide registry to determine whether
the individual is designated in either registry as having abused, neglected,
or exploited a resident or a consumer of a facility. Both registries can be
contacted at 1-800-452-3934.
(1)
A facility may not employ a person who is listed in either
registry as having abused, neglected, or exploited a resident or a consumer
of a facility.
(2)
A facility must notify its employees in writing at
the time of employment:
(A)
about the employee misconduct registry; and
(B)
that a person may not be employed if listed on the registry.
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 February 18, 2000.
TRD-200001266
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 438-3108
40 TAC §19.2004, §19.2006
The amendments are proposed under the Health and Safety Code,
Chapter 242, which authorizes the department to license and regulate nursing
facilities.
The amendments implement the Health and Safety Code, §242.001-242.268.
§19.2004.Determinations and Actions Pursuant to Inspections.
(a)-(b)
(No change.)
[(c)
Violations found during complaint investigations
will be discussed with the facility management at the exit conference. If
deficiencies are cited, a list of the deficiencies will be sent to the facility
within 10 working days. The source of the complaint will not be revealed.]
(c)
[
(d)
[
(1)
how corrective action will be accomplished for those residents
affected by the violation(s);
(2)
how the facility will identify other residents with
the potential to be affected by the same violation(s);
(3)
what measures will be put into place or systemic changes
made to ensure the violation(s) will not recur; and
(4)
how the facility will monitor its corrective actions
to ensure that the violation(s) are being corrected and will not recur.
(e)
[
§19.2006.Reporting Incidents and Complaints.
(a)
Each incident or complaint report must reflect the reporting
person's belief that a resident has been or will be abused or neglected and
must contain the following information:
(1)
the address or phone number of the person
making the report so that the Texas Department of Human Services (DHS) can
contact the person for any additional information, except for an anonymous
report;
(2)
[
(3)
[
(4)
[
(5)
[
(b)-(c)
(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 February 18, 2000.
TRD-200001267
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 438-3108
2.
LICENSING REMEDIES
40 TAC §19.2112
The amendment is proposed under the Health and Safety Code,
Chapter 242, which authorizes the department to license and regulate nursing
facilities.
The amendment implements the Health and Safety Code, §242.001-242.268.
§19.2112.Administrative Penalties.
(a)-(e)
(No change.)
(f)
Administrative penalties may be levied for each violation
found in a single survey. Each day of a continuing violation constitutes a
separate violation. The administrative penalties for each day of a continuing
violation cease on the date the violation is corrected. A violation that is
the subject of a penalty is presumed to continue on each successive day until
it is corrected. The date of correction alleged by the facility in its written
plan of correction will be presumed to be the actual date of correction unless
it is later determined by DHS that the correction was not made by that date
or was not satisfactory.
(1)
Table of administrative penalties.
The following table contains the gradations of penalties in accordance with
the relative seriousness of the violation. [
Figure: 40 TAC §19.2112(f)(1)
[
(2)
Definitions. The following terms
when used in this section have the following meanings, unless the context
clearly indicates otherwise.
(A)
Severity.
(i)
Substantial compliance means a level of violation that
has the potential for causing no more than a minor negative impact on the
resident.
(ii)
Minimal impact means a level of violation that places
the resident's health and safety at risk resulting in minor harm with limited
consequences or effects.
(iii)
Negative outcome means a level of violation that places
the resident's health and safety at risk of actual harm that has the potential
for long-term effects.
(iv)
Immediate threat means a level of violation that places
the resident's health and safety at risk of, or is likely to cause, serious
harm or death, or has caused serious harm, injury, or death.
(B)
Scope.
(i)
Isolated means one or a very limited number of residents
are affected or one or a very limited number of staff are involved, or the
situation has occurred only occasionally or in a very limited number of locations.
(ii)
Pattern means more than a very limited number of residents
are affected, or more than a very limited number of staff are involved, or
the situation has occurred in several locations, or the same residents have
been affected by repeated occurrences of the same deficient practice. The
effect of the deficient practice is not found to be pervasive throughout the
facility.
(iii)
Widespread means a large number of residents in the facility
have the potential to be affected and the survey team identifies the deficient
practice as pervasive throughout the facility or a systemic failure in the
facility has affected or could affect a large number of residents across the
facility and is, therefore, considered pervasive.
(g)
The penalties for a violation of the requirement
to post notice of the suspension of admissions, additional reporting requirements
found at §19.601(a) of this title (relating to Resident Behavior and
Facility Practice), or residents' rights cannot exceed $1,000 a day for each
violation, unless the violation of a resident's right also violates a rule
in Subchapter H of this chapter (relating to Quality of Life), or Subchapter
J of this chapter (relating to Quality of Care).
(h)
[
(i)
[
(1)
a brief summary of the violations;
(2)
a statement of the amount of penalty recommended;
(3)
a statement of whether the violation is subject to
correction under §19.2114 of this title (relating to Right to Correct)
and if the violation is subject to correction, a statement of:
(A)
the date on which the facility must file a plan of correction
(POC) to be approved by DHS; and
(B)
the date on which the POC must be completed to avoid assessment
of the penalty; and
(4)
a statement that the facility has a right to
a hearing on the violation, the amount of the penalty, or both.
(j)
[
(k)
[
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 February 18, 2000.
TRD-200001268
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 438-3108
40 TAC §19.2310, §19.2322
The amendments are proposed under the Human Resources Code,
Title 2, Chapters 22 and 32, which authorizes the department to administer
public and medical assistance programs; the Health and Safety Code, Chapter
242, which authorizes the department to license and regulate nursing facilities;
and under Texas Government Code §531.021, which provides the Health and
Human Services Commission with the authority to administer federal medical
assistance funds.
The amendments implement the Health and Safety Code, §242.001-242.268,
and the Human Resources Code, §§22.001-22.024 and 32.001-32.040.
§19.2310.Nursing Facility Ceases to Participate.
A nursing facility may lose its status as a participating facility
if any of the following conditions are met:
(1)
the facility withdraws voluntarily from the program.
The participation agreement for facilities which voluntarily withdraw from
the program remains in effect with respect to services provided to residents
residing in the facility the day before the effective date of the withdrawal,
in accordance with §1919(c)(2)(F) of the Social Security Act.
The
owner and administrator must request withdrawal, in writing, from the Texas
Department of Human Services (DHS) at least 30 days before the withdrawal
date;
(2)-(5)
(No change.)
§19.2322.Allocation, Reallocation, and Decertification Requirements.
(a)-(d)
(No change.)
(e)
Exemptions. If the NFO meets all criteria, DHS may grant
the following exemptions from the policy stated in subsection (c) of this
section.
(1)-(4)
(No change.)
(5)
Teaching facilities.
DHS may exempt a nursing
facility from the procedures in subsection (c) of this section if the facility:
(A)
is affiliated with a state-supported
medical school;
(B)
is located on land owned or
controlled by the state-supported medical school; and
(C)
serves as a teaching facility for physicians
and related health care professionals.
[
(6)-(9)
(No change.)
(f)-(j)
(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 February 18, 2000.
TRD-200001269
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 438-3108
40 TAC §19.2403
The amendment is proposed under the Human Resources Code,
Title 2, Chapters 22 and 32, which authorizes the department to administer
public and medical assistance programs; the Health and Safety Code, Chapter
242, which authorizes the department to license and regulate nursing facilities;
and under Texas Government Code §531.021, which provides the Health and
Human Services Commission with the authority to administer federal medical
assistance funds.
The amendment implements the Health and Safety Code, §242.001-242.268,
and the Human Resources Code, §§22.001-22.024 and 32.001-32.040.
§19.2403.Utilization Review Process.
The Utilization Review Committee determines the need for nursing facility
care by evaluating the recipient's medical and/or nursing needs based on facility
documentation required by the Texas Department of Human Services (DHS). The
medical necessity determination must be made before receiving vendor payment
for service delivery, except as provided in §19.2408 of this title (relating
to Retroactive Medical Necessity Determinations) and §19.2413 of this
title (relating to Reconsideration of Medical Necessity Determination (MN)
and Effective Dates).
(1)-(2)
(No change.)
(3)
To ensure that payments continue, the facility must
submit all forms in a timely manner so that they are received by the Utilization
Review Committee no later than the day after the expiration of the current
form.
(A)-(D)
(No change.)
(E)
The Texas Department of Human Services (DHS) does not pay
for the period of time between an expired form and the new effective date,
unless the facility has requested and been granted a reconsideration of effective
dates. See §19.2413 of this title (relating to Reconsideration of Medical
Necessity Determination (MN) and Effective Dates).
(i)
(No change.)
(ii)
If the facility does not receive payment and there has
been no reconsideration of effective dates granted, then restrictions apply
as described in
§19.2608
[
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 February 18, 2000.
TRD-200001270
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 438-3108
40 TAC §19.2500
The amendment is proposed under the Human Resources Code,
Title 2, Chapters 22 and 32, which authorizes the department to administer
public and medical assistance programs; the Health and Safety Code, Chapter
242, which authorizes the department to license and regulate nursing facilities;
and under Texas Government Code §531.021, which provides the Health and
Human Services Commission with the authority to administer federal medical
assistance funds.
The amendment implements the Health and Safety Code, §242.001-242.268,
and the Human Resources Code, §§22.001-22.024 and 32.001-32.040.
§19.2500.Preadmission Screening and Resident Review (PASARR).
(a)-(e)
(No change.)
(f)
Limitations on provider charges. Nursing facilities which
admit or retain individuals with a diagnosis of mental illness, mental retardation,
or a related condition who have not been screened by DHS or who admit or retain
individuals who do not need nursing facility services and who require specialized
services will not be reimbursed for that individual, as described in
§19.2608
[
(g)
(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 February 18, 2000.
TRD-200001271
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 438-3108
40 TAC §19.2601, §19.2604
The amendments are proposed under the Human Resources Code,
Title 2, Chapters 22 and 32, which authorizes the department to administer
public and medical assistance programs; the Health and Safety Code, Chapter
242, which authorizes the department to license and regulate nursing facilities;
and under Texas Government Code §531.021, which provides the Health and
Human Services Commission with the authority to administer federal medical
assistance funds.
The amendments implement the Health and Safety Code, §242.001-242.268,
and the Human Resources Code, §§22.001-22.024 and 32.001-32.040.
§19.2601.Vendor Payment (Items and Services Included).
(a)-(c)
(No change.)
(d)
If a resident has requested and freely chosen to participate
in an activity, or to have an item or service provided that is not included,
or is different than that provided, in the daily vendor rate, then the resident
may be charged for the activity, item, or service.
(1)
When documentation is present that supports the above criteria,
and that is required by
§19.404(d)(5)
[
(2)
(No change.)
(e)-(f)
(No change.)
§19.2604.Vendor Payment Information.
(a)-(d)
(No change.)
(e)
Days are defined as 24-hour periods extending from midnight
to midnight. Payment is computed in terms of whole days, even though the recipient
may have been in a nursing facility only a fractional part of the day of entrance.
(
See §19.2601(e)
[
(f)-(h)
(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 February 18, 2000.
TRD-200001272
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 438-3108
Chapter 141.
GENERAL PROVISIONS
40 TAC §§141.51 - 141.55
The Texas Commission on Alcohol and Drug Abuse proposes new §§141.51
- 141.55 concerning General Provisions. These sections contain information
regarding notice of a claim, agency counterclaim, timetable for negotiations
and contested case hearings, conduct of negotiations and mediation.
These new sections are proposed to establish a process for negotiating
and mediating certain contract disputes as required in Chapter 2260 of the
Government Code. These sections describe the process and timetable for filing
a claim of breach of contract; explain the steps involved if the commission
files a counterclaim; establish time limits for negotiations and contested
case hearings; specify the steps that must be taken prior to a contested case
hearing; spell out the circumstances under which a case may be submitted to
the State Office of Administrative Hearings; describe how negotiations may
be conducted; stipulate that mediation is an alternative and explain how that
process will be conducted.
Jim McDade, Interim Executive Director, has determined that for the first
five-year period the rules are in effect there will be no fiscal implications
for state or local government as a result of enforcing the rules.
Mr. McDade has also determined that for each year of the first five years
the rules are in effect the anticipated public benefit will be a well-defined
process for settling certain contract disputes through negotiation or mediation.
There is no additional effect on small businesses. There is no anticipated
economic cost to persons required to comply with the proposed amendments;
however, there may be costs involved for individuals who use the process described
to address a contract dispute.
Comments on the proposal may be submitted to Tamara Allen, Rules Manager,
Texas Commission on Alcohol and Drug Abuse, P.O. Box 80529, Austin, Texas,
78708-0529. Comments must be received no later than 30 days from the date
the proposal is published in the
Texas Register
.
The new sections are proposed under the Texas Health and Safety
Code, Title 6, Subtitle B, §461.012(a)(15) which provides the Texas Commission
on Alcohol and Drug Abuse with the authority to adopt rules governing the
functions of the commission, including rules that prescribe the policies and
procedures followed by the commission in administering any commission programs.
The code affected by the proposed new sections is the Texas Health and
Safety Code, Chapter 461.
§141.51.Notice of Claim.
(a)
To file a claim of breach of contract under Government
Code, Chapter 2260, the contractor must deliver written notice of the claim
to the commission's Executive Director.
(b)
The notice must be signed by the contractor's authorized
representative and delivered by hand, certified mail return receipt requested,
or other verifiable delivery service.
(c)
The claim must specifically describe:
(1)
the nature of the alleged breach of contract, including
the date of the event which forms the basis of the claim and the contract
provision(s) breached;
(2)
the damages claimed, including the amount and the
method used to calculate them; and
(3)
the legal basis for filing the claim (i.e., breach
of contract), including the relationship between the alleged breach and the
damages claimed.
(d)
The contractor may submit supporting documentation with
the notice of the claim.
(e)
The notice must be delivered no later than 180 calendar
days after the date of the event that forms the basis of the claim.
(f)
Any amount(s) owed by the contractor shall be deducted
from the total damages claimed. This includes amounts owed for work not performed
or work not performed in substantial compliance with the terms of the contract.
The total amount of damages (after deduction of amount owed by contractor)
may not exceed the contracted amount or include consequential or similar damages,
exemplary damages, any damages based on an unjust enrichment theory, attorney's
fees or home office overhead.
§141.52.Agency Counterclaim.
(a)
The commission may file a counterclaim of breach of contract.
(b)
Written notice of counterclaim must be delivered to the
representative of the contractor who signed the notice of claim of breach
of contract.
(c)
The notice must be delivered by hand, certified mail return
receipt requested, or other verifiable delivery service.
(d)
The notice must specifically describe:
(1)
the nature of the counterclaim;
(2)
a description of the damages or offsets, including
the amount and the method used to calculate them; and
(3)
the legal theory supporting the counterclaim.
(e)
The notice of counterclaim must be delivered to the contractor
no later than 90 calendar days after receipt of notice of the claim.
§141.53.Timetable for Negotiations and Contested Case Hearings.
(a)
The commission's Executive Director must examine the contractor's
claim and the commission's counterclaim, if any, and initiate negotiations.
(b)
Except as provided in subsection (c) of this section, negotiations
shall begin no more than 60 calendar days following the latest of:
(1)
the date of termination of the contract;
(2)
the completion date in the original contract; or
(3)
the date the notice of claim of breach of contract
is received by the commission.
(c)
The commission may delay the negotiations until the 181st
calendar day after the date of the event giving rise to the claim of breach
of contract. The commission shall give the contractor written notice of the
delay and notify the contractor when it is ready to begin negotiations.
(d)
The parties must complete the negotiations as a prerequisite
to a contested case hearing no later than 270 days after the commission receives
the notice of claim of breach of contract. The negotiation period may be extended
through a written agreement signed by the authorized representatives of each
party.
(e)
The parties may agree to mediate the dispute at any time
before the 270th day after the commission receives the notice of claim of
breach of contract, or before the expiration of any extension agreed to in
writing by the parties.
(f)
If negotiations fail to resolve the dispute, the case may
be submitted to the State Office of Administrative Hearings (SOAH).
(1)
The contractor may file a request for contested case hearing
with the commission if a complete settlement agreement has not been reached
270 calendar days after the date the claim is delivered to the commission,
or after the expiration of any extension agreed to in writing by the parties.
(2)
The parties may agree to submit the case to SOAH before
the 270th day if they have reached a partial settlement or if an impasse has
been reached in the negotiations and proceeding to a contested case hearing
would serve the interests of justice.
(3)
The parties may continue to negotiate or mediate after
a request for contested case hearing is referred to the SOAH.
§141.54.Conduct of Negotiations.
(a)
Any limitations on the settlement authority of the representatives
participating in the negotiations must be disclosed by the parties as soon
as possible. To the extent possible, the parties shall select negotiators
who are knowledgeable about the dispute and who are in a position to reach
agreement or can credibly recommend approval of an agreement.
(b)
Negotiation may be conducted by any method, technique,
or procedure authorized under the contract or agreed upon by the parties.
The contractor and the commission may conduct negotiations with the assistance
of one or more neutral third parties.
(c)
The parties may choose to mediate the dispute according
to §141.55 of this title (relating to Mediation).
(d)
To facilitate meaningful negotiation, the parties must
exchange relevant documentation that supports their claims, defenses, counterclaims
or positions.
(e)
Any settlement reached during the negotiation must be put
in writing and signed by representatives of the contractor and the commission.
The agreement must describe any procedures that must be followed to secure
final approval.
(f)
The final settlement must be documented in writing and
signed by representatives of the contractor and the commission with authority
to bind the respective party. If the settlement does not resolve all issues
raised by the claim and counterclaim, the agreement must specifically identify
the issues that are not resolved.
(g)
Unless the contractor and the commission agree otherwise,
each party shall be responsible for its own costs.
§141.55.Mediation.
(a)
The contractor and the commission may agree to mediate
a claim through an impartial third party. Mediation is a forum in which an
impartial person facilitates communication between parties to promote reconciliation,
settlement, or understanding, but does not impose his own judgment on the
issues
(b)
The mediation is governed by the provisions of the Governmental
Dispute Resolution Act, Government Code, Chapter 2009.
(c)
The commission and the contractor select an impartial third
party that is acceptable to both. The impartial third party must:
(1)
possess the qualifications required under Civil Practice
and Remedies Code, §154.052;
(2)
be subject to the standards and duties prescribed
by Civil Practice and Remedies Code, §154.053; and
(3)
have the qualified immunity prescribed by Civil Practice
and Remedies Code, §154.055, if applicable.
(d)
A mediation conducted under this section is confidential
in accordance with Government Code, §2009.054.
(e)
A final settlement agreement signed by the commission under
this section is subject to or excepted from required disclosure in accordance
with Government Code, Chapter 552.
(f)
Unless the contractor and the commission agree otherwise,
the costs of the mediator shall be divided equally between the parties and
each party shall be responsible for its own costs.
(g)
Any limitations on the settlement authority of the representatives
participating in the negotiations must be disclosed by the parties before
mediation begins.
(h)
Any settlement reached during the mediation must be put
in writing and signed by representatives of the contractor and the commission.
The agreement must describe any procedures that must be followed to secure
final approval.
(i)
The final settlement must be documented in writing and
signed by representatives of the contractor and the commission with authority
to bind the respective party. If the settlement does not resolve all issues
raised by the claim and counterclaim, the agreement must specifically identify
the issues that are not resolved.
(j)
If mediation does not resolve the claim to the satisfaction
of the contractor, the contractor may file a request that the claim be referred
to the State Office Of Administrative Hearings pursuant to subchapter C, Chapter
2260, Government Code. The request for referral must be filed according to
the timetable described in §141.53 of this title (relating to Timetables
for Negotiations and Contested Case Hearings).
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 February 16, 2000.
TRD-200001220
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 349-6794
Chapter 800.
GENERAL ADMINISTRATION
Subchapter D. INCENTIVE AWARD RULES
Service Guidelines
] (TDH);
Methicillin-Resistent
] Staphylococcus Aureus: A Protocol for Infection Control (TDH); and
Subchapter B. DEFINITIONS
A controlling person
does not include a person, such as an employee, lender, secured creditor,
or landlord, who does not exercise any influence or control, whether formal
or actual, over the operation of a facility.
] A controlling person includes:
Subchapter C. NURSING FACILITY LICENSURE APPLICATION PROCESS
(b)
]
change
]:
or
]
.
]
(1)
] Initial and renewal license.
The license fee is $250 plus $10 for each unit of capacity or bed space for
which a license is sought. The fee must be paid with each initial and renewal
of license application.
(2)
] Increase in bed space.
An approved increase in bed space is subject to an additional fee of $10 for
each unit of capacity or bed space.
(3)
] Change of administrator.
A facility
must report a change of administrator within 30 days of the
effective date of the change by submitting a change of administrator application
and a $20 fee to the Texas Department of Human Services's (DHS's) Facility
Enrollment Section
[
that hires a new administrator must notify
the Texas Department of Human Services (DHS), Long Term Care-Regulatory, Facility
Enrollment Section, not later than the 30th day after the date on which the
change became effective by submitting a change of administrator application
and paying a $20 change of administrator fee to DHS
].
(4)
] Background information
fee. The background information fee is $50.
Chapters
] 242[
, 247, and 252
] each calendar year if
the amount of the nursing and convalescent trust fund is less than
$10,000,000
[
$500,000
]. The fee is based on a monetary amount specified
for each licensed unit of capacity or bed space
, not to exceed $20 annually,
and is in an amount sufficient to provide
not more than $10,000,000
[
$500,000
] in the trust fund. In calculating the fee, the
amount will be rounded to the next whole cent.
Subchapter D. FACILITY CONSTRUCTION
(4)
] The fire alarm system
must be designed so that whenever the general alarm is sounded by activation
of any device (such as manual pull, smoke sensor, sprinkler, or kitchen range
hood extinguisher) the following will occur automatically:
(5)
] Consistent fire
alarm bells or horns must be located throughout the building for audible coverage.
Flashing alarm lights (visual alarms) must be installed to be visible in corridors
and public areas including dining rooms and living rooms.
(6)
] A master control panel
which indicates location of alarm and trouble conditions (by zone or device)
must be visible at the main nurse station. All control panels must be listed
in accordance with the provisions of the Underwriters Laboratories, Inc. (UL)
for intended use, such as manual, automatic, and water-flow activation. Alarm
and trouble zoning must be by smoke compartments and by floors in multi-story
facilities.
(7)
] Remote annunciator panels,
indicating location of alarm initiation by zone or device and common trouble
signals, must be located at auxiliary or secondary nurses stations on each
floor or major subdivision of single story facilities and indicate the alarm
condition of adjacent zones and the alarm conditions at all other nurse stations.
(8)
] Manual pull stations
must be provided at all exits, living rooms, dining rooms, and at or near
the nurse stations.
(9)
] The NFPA 13 sprinkler
system must be monitored for flow and tamper conditions by the fire alarm
system.
(10)
] The kitchen range hood
extinguisher must be interconnected with the fire alarm system. This interconnection
may be a separate zone on the panel or combined with other initiating devices
located in the same zone as the range hood is located.
(11)
] Partial sprinkler systems
provided only for hazardous areas must be interconnected to the fire alarm
system and comply with the Life Safety Code. Each partial system must have
a valve with a supervisory switch to sound a supervisory signal, water-flow
switch to activate the fire alarm, and an end- of-line test drain.
with procedures
]
Procedures
to be followed in an internal or external disaster [
and for the
care of casualties
]
should be attached to the plan
.
The plan must address, at a minimum, the eight core functions of emergency
management, which are: direction and control; warning (how the facility will
be notified of emergencies and who they will notify); communication (with
whom and by what mechanism); sheltering arrangements; evacuation (destinations,
routes); transportation; health and medical needs; and resource management
(supplies, staffing, emergency equipment, records). Plans should address those
natural, technological, and man-made emergencies that could affect the facility
and
[
Plans dealing with natural disasters, such as hurricanes,
floods, and tornadoes,
] must be coordinated with the local emergency
management coordinator. Information about the local emergency management coordinator
may be obtained from the office of the local mayor or county judge.
54
].
1/2
] inch clearance to
walls. Bars must have sufficient strength and anchorage to sustain a concentrated
load of 250 pounds. Grab bar standards must comply with standards adopted
under the Americans with Disabilities Act of 1990.
1/2
]
inches must be provided between the handrail and the wall. Handrails must
be securely mounted to withstand downward forces of 250 pounds. Handrails
may be omitted on wall segments less than 18 inches. Handrails must be mounted
33 inches to 36 inches above the floor, and must comply with standards adopted
under the Americans with Disabilities Act.
Subchapter E. RESIDENT RIGHTS
and
]
.
]
if
] the resident,
the resident's guardian
, a volunteer,
or any other person:
1
]
upon admission,
all individuals must be provided with the following written information:
.
]
(2)
] the nursing facility
must document in the resident's clinical record whether or not the individual
has executed an advance directive;
(3)
] the nursing facility
must not condition the provision of care or otherwise discriminate against
an individual based on whether or not the individual has executed an advance
directive;
(4)
] the facility must ensure
compliance with the requirements of Texas law, whether statutory or as recognized
by the courts of Texas, respecting advance directives;
(5)
] the facility must provide,
individually or with others, for education for staff and the community on
issues concerning advance directives. For the community, this may include,
but is not limited to, newsletters, articles in the newspaper, local news
reports, or commercials. For educating staff, this may include, but is not
limited to, in-service programs;
(6)
] the facility must provide
the attending physician with any information relating to a known existing
Directive to Physicians and/or Living Will or
Medical
[
Durable
] Power of Attorney [
for Health Care
], and assist with coordinating
physicians' orders with any resident directive;
(7)
] when an individual is
in a comatose or otherwise incapacitated state, and therefore is unable to
receive information or articulate whether he has executed an advance directive
:
[
, the family, surrogate, or other concerned person must receive
the information concerning advance directives. The facility must provide this
information to the resident once he is no longer incapacitated; and
]
(8)
] when the resident or
a relative, surrogate, or other concerned or related individual presents the
facility with a copy of the individual's advance directive, the facility must
comply with the advance directive including recognition of a
Medical
Power of Attorney
[
durable power of attorney for health care
],
to the extent allowed under state law. If no one comes forward with a previously
executed advance directive and the resident is incapacitated or otherwise
unable to receive information or articulate whether he has executed an advance
directive, the facility must note that the individual was not able to receive
information and was unable to communicate whether an advance directive existed.
(c)
] Nursing facilities that provide
services to children must ensure that:
Subchapter F. ADMISSION, TRANSFER, AND DISCHARGE RIGHTS IN MEDICAID-CERTIFIED FACILITIES
or 1-800-252-2312
];
(512) 323-3282
]; and the phone number of the agency responsible
for the protection and advocacy of persons with mental illness or mental retardation
and/or related conditions, which is: Advocacy Incorporated, 7800 Shoal Creek
Boulevard, Suite 175-E, Austin, Texas 78757,
1-800-252-9108
[
(512) 454-4819
].
Subchapter G. RESIDENT BEHAVIOR AND FACILITY PRACTICE
, which
includes conduct or conditions resulting in serious accidental injury to residents
or hospitalization of residents. Conduct or conditions means a facility practice,
actions/inaction by staff or circumstances within a facility resulting in:
]
(1)
serious accidental injury to residents;
or
]
(2)
hospitalization of residents.
]
any action
described in subsections (a) and (b) of this section to DHS or a law enforcement
agency;
]
(B)
reporting the abuse or neglect or other
complaint to the person's supervisors; or
]
(C)
] for initiating or cooperating
in any investigation or proceeding of a governmental entity relating to care,
services, or conditions at the nursing facility.
Subchapter H. QUALITY OF LIFE
as prescribed
by the Human Resources Code, Chapter 50, §50.016(a))
], and who
meets the requirements of subsection (b)(2) of this section) to provide social
services a sufficient amount of time to meet the needs of the residents.
or provisionally
licensed
], by the Texas State Board of Social Work Examiners as prescribed
by Chapter 50 of the Human Resources Code, and who has at least:
Subchapter L. DIETARY SERVICES
§19.1911(12)(b)(vi)
] of this title (relating to Contents of the
Clinical Record) for information concerning dietary intake and clinical records.
Subchapter M. PHYSICIAN SERVICES
§19.1912(g)(2)
]
of this title (relating to Additional Clinical Record Service Requirements).
Subchapter Q. INFECTION CONTROL
§19.1(b)(7)(K)
] of this
title (relating to Basis and Scope) for information concerning the Centers
for Disease Control Guidelines publications.
(3)
] Linens. Personnel
must handle, store, process, and transport linens so as to prevent the spread
of infection. [
See also §19.1726 of this title (relating to Linen).
]
(4)
] The Quality Assessment
and Assurance Committee as described in §19.1917 of this title (relating
to Quality Assessment and Assurance) will monitor the infection control program.
Subchapter T. ADMINISTRATION
(1)-(10)
] of this subsection in an area of the facility that is readily and
customarily available to the public. The posting must be in a manner that
each item of information is directly visible at a single time. In the case
of a licensed section that is part of a larger building or complex, the posting
must be in the licensed section or public way leading thereto. Any exceptions
must be approved by the Texas Department of Human Services (DHS). The following
items must be posted:
§19.204(c)(8)
]
of this title (relating to
Application
[
Applicant Disclosure
] Requirements).
(e)(6)
] of this
section, will result in an administrative penalty in accordance with §19.2112
of this title (relating to Administrative Penalties).
Subchapter U. INSPECTIONS, SURVEYS, AND VISITS
(d)
] At the conclusion of an inspection
,
[
or
] survey,
or investigation,
the violations
will be discussed in an exit conference with the facility's management. A
written list of the violations will be left with the facility at the time
of the exit conference; any additional violation that may be determined during
review of field notes or preparation of the official final list [
(when
the official final list was not issued at the exit conference)
] will
be communicated to the facility in writing within ten working days of the
exit conference
. DHS will give the facility an additional exit conference
regarding the additional violations.
[
, and the facility will have
ten working days to reply before the additional violation is made a part of
the permanent record. Copies of any narratives or similar papers written to
further describe the conditions will be furnished to the facility.
]
(e)
] Upon receipt of the final statement
of violations, the facility will have 10
working
days to submit
an acceptable plan of correction to the regional director, except plans of
correction under §19.2112(i) of this title (relating to Administrative
Penalties). An acceptable plan of correction must address the following areas:
(f)
] A clear and concise summary
in nontechnical language of each licensure inspection or complaint investigation
will be provided by DHS at the time the report of contact or similar document
is provided.
(1)
] the name and address of
the resident;
(2)
] the name and address of
the person responsible for the care of the resident, if available;
(3)
] information required by
DHS guidelines, when the report is an incident; and
(4)
] any other relevant information.
Relevant information includes the reporter's or complainant's basis or cause
for reporting and his or her belief that a resident's physical or mental health
or welfare has been or may be adversely affected by abuse or neglect caused
by another person or persons, and any other information DHS considers relevant
for the report.
Subchapter V. ENFORCEMENT
The penalties for a violation
of the requirement to post notice of the suspension of admissions, additional
reporting requirements found at §19.601(a) of this title (relating to
Resident Behavior and Facility Practice), or residents' rights cannot exceed
$1,000 a day for each violation, unless the violation of a resident's right
also violates a rule in Subchapter H, Quality of Life, or Subchapter J, Quality
of Care.
]
Figure: 40 TAC §19.2112(f)
]
(g)
] No facility will be penalized
because of a physician's or consultant's nonperformance beyond the facility's
control or if documentation clearly indicates the violation is beyond the
facility's control.
(h)
] DHS may issue a preliminary
report regarding an administrative penalty. Within 10 days of the issuance
of the preliminary report, DHS will give the facility written notice of the
recommendation for an administrative penalty. The notice will include:
(i)
] Within 20 days after the date
on which written notice of recommended assessment of a penalty is sent to
a facility, the facility must give DHS written consent to the penalty, make
a written request for a hearing, or if the violation is subject to correction,
submit a plan of correction in accordance with §19.2114 of this title.
If the facility does not make a response within the 20-day period, DHS will
assess the penalty.
(j)
] The procedures for notification
of recommended assessment, opportunity for hearing, actual assessment, payment
of penalty, judicial review, and remittance will be in accordance with Health
and Safety Code, §§242.067 - 242.069. Hearings will be held in accordance
with DHS's formal hearing procedures in Chapter 79 of this title (relating
to Legal Services). Interest on penalties is governed by Health and Safety
Code §242.069(g).
Subchapter X. REQUIREMENTS FOR MEDICAID-CERTIFIED FACILITIES
Facilities approved and
contracted to operate as teaching nursing facilities from March 1, 1989, through
January 1, 1993, must continue to meet their affiliation agreements.
]
Subchapter Y. MEDICAL REVIEW AND RE-EVALUATION
§19.1708
] of this
title (relating to Limitations on Provider Charges [
to Patients
])
when the reason for no payment is facility error.
Subchapter Z. PREADMISSION SCREENING AND RESIDENT REVIEW (PASARR)
§19.1708
] of this title (relating to
Limitations on Provider Charges [
to Patients
]).
Subchapter AA. VENDOR PAYMENT
§19.404(g)(5)
] of this title (relating to Protection of Resident Funds), the amount
may be paid from the resident's trust fund.
see §19.2601(m)
] of this
title (relating to Vendor Payment (Items and Services Included)).
Part 3.
TEXAS COMMISSION ON ALCOHOL AND DRUG ABUSE
Part 20.
TEXAS WORKFORCE COMMISSION