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 to amend §19.337, concerning fire protection systems, §19.342, concerning miscellaneous details, §19.1111, concerning sanitary conditions, §19.1918, concerning disclosure of ownership, and §19.2106, concerning revocation of a license, in its Nursing Facility Requirements for Licensure and Medicaid Certification chapter. The purpose of the amendments is to update references; clarify language; update the name of the DHS section to be notified in the event of an ownership change; and add an administrative penalty.

James R. Hine, Commissioner, has determined that for the first five-year period the sections are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the sections.

Mr. Hine 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 clarification of rules, which will facilitate compliance by providers. The administrative penalty will encourage providers to notify DHS about changes in ownership, controlling parties, administrators, and directors of nursing. There will be no adverse economic effect on small or micro businesses, because the administrative penalty is the only change that involves an economic factor. Providers can avoid the administrative penalty by notifying DHS of changes in a timely manner. The technical amendments add a standard reference to handrail specifications and clarify language relating to incidents that may involve mistreatment, neglect, or abuse of a resident. There is no anticipated economic cost to persons who are required to comply with the proposed sections. There is no anticipated effect on local employment in geographic areas affected by these sections.

Questions about the content of this proposal may be directed to Connie Pate 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-125, 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 these rules. Accordingly, the department is not required to complete a takings impact assessment regarding these rules.

Subchapter D. FACILITY CONSTRUCTION

40 TAC §19.337, §19.342

The amendments are proposed under the Health and Safety Code, Chapter 242, which authorizes DHS to license and regulate nursing facilities.

The amendments implement the Health and Safety Code, §§242.001-242.268.

§19.337.Fire Protection Systems.

(a) - (b) (No change.)

(c) Requirements of emergency electrical systems must be in accordance with §19.341 of this title (relating to Electrical Requirements). Requirements for sprinkler systems must be in accordance with §19.340(4) [ §19.340(d) ] of this title (relating to Mechanical Requirements).

(d) - (m) (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) - (7) (No change.)

(8) Handrails must be provided on both sides of corridors used by residents. A clear distance of 1-1/2 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 and the Texas Accessibility Standards .

(9) -(10) (No change.)

(b) (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 April 5, 2002.

TRD-200202141

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: May 19, 2002

For further information, please call: (512) 438-3734

40 TAC §19.1111

The amendment is proposed under the Health and Safety Code, Chapter 242, which authorizes DHS to license and regulate nursing facilities.

The amendment implements the Health and Safety Code, §§242.001-242.268.

§19.1111.Sanitary Conditions.

(a) The facility must:

(1) - (2) (No change.)

(3) dispose of garbage and refuse properly. See also §19.318(j)-(l) [ §19.1719(j)- (l) ] of this title (relating to Other Rooms and Areas) for information concerning dietary physical plant.

(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 April 5, 2002.

TRD-200202142

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: May 19, 2002

For further information, please call: (512) 438-3734

40 TAC §19.1918

The amendment is proposed under the Health and Safety Code, Chapter 242, which authorizes DHS to license and regulate nursing facilities.

The amendment implements the Health and Safety Code, §§242.001-242.268.

§19.1918.Disclosure of Ownership.

(a) (No change.)

(b) The facility must provide written notice to Facility Enrollment, [ the Licensing Section of the state office of ] Long - Term Care-Regulatory, Texas Department of Human Services (DHS) at the time of change if a change occurs in:

(1) - (5) (No change.)

(c) (No change.)

(d) Failure to notify Facility Enrollment within 30 days of a change specified in subsection (b) will result in a $500 administrative penalty. If the notice is postmarked within the 30-day period, 15 days will be added to the time period to receive the notice.

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 April 5, 2002.

TRD-200202143

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: May 19, 2002

For further information, please call: (512) 438-3734

2. LICENSING REMEDIES

40 TAC §19.2106

The amendment is proposed under the Health and Safety Code, Chapter 242, which authorizes DHS to license and regulate nursing facilities.

The amendment implements the Health and Safety Code, §§242.001-242.268.

§19.2106.Revocation of a License.

(a) The Texas Department of Human Services (DHS) may revoke a facility's license when the license holder, or any other person described in §19.201(f) [ §19.201(e) ] of this title (relating to Criteria for Licensing), has:

(1) - (3) (No change.)

(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 April 5, 2002.

TRD-200202144

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: May 19, 2002

For further information, please call: (512) 438-3734

Chapter 175. GENERAL RULES OF THE VETERANS LAND BOARD

Subchapter A. GENERAL RULES AND CONTRACTING FINANCING

40 TAC §175.2

The Veterans Land Board of the State of Texas (the "Board") proposes amendments to Title 40, Part 5, Chapter 175 of the Texas Administrative Code, §175.2 relating to Loan Eligibility Requirements of the General Rules of the Veteran Land Board (VLB). These amendments propose to reduce the time required for a Veteran to establish his residence in Texas so as to be eligible for the VLB programs from two years to one year. The proposed amendments will also clarify some language.

Sections 161.001(b), and 162.001(b) of the Tex. Nat. Res. Code authorize the Board to change the definition of Veteran by rule. Part of the definition is a requirement, in the case of a Veteran that did not enter the service from Texas, that the Veteran reside in Texas for two years before filing an application. The proposed amendment to §175.2(c)(1) (E)(i) and (ii) would reduce that to one year. This would make the residency requirement uniform for all of the Board's programs, as well as the same as other state sponsored Veterans programs.

The proposed amendment also makes minor non-substantive changes to the rules.

Douglas Oldmixon, Executive Secretary of the Veterans Land Board, has determined that for each year of the first five years that the section as proposed will be in effect, there will be no significant fiscal implication to state or local government as a result of administering this section as amended.

Douglas Oldmixon, Executive Secretary of the Veterans Land Board, has determined that for each year of the first five years that the section as proposed will be in effect, the public will benefit because the proposed amendment will allow the Board to make more loans to Veterans.

Mr. Oldmixon has determined that the proposed amendment will have no significant effect on small businesses during each year of the first five years the section is in effect.

Mr. Oldmixon has also determined that during each year of the first five years the proposed amendment is in effect, the anticipated economic cost to persons who are required to comply with the section will be insignificant. Persons who seek financing from the Board through the Program will pay the same fees to the Board, and costs to third parties, as previously required.

Douglas Oldmixon, Executive Secretary of the Veterans Land Board has determined that during each year of the first five years the proposed amendment is in effect, the anticipated impact on local employment will be insignificant.

Comments may be submitted to Melinda Tracy, Legal Service, General Land Office of the State of Texas, 1700 N. Congress Avenue, Austin Texas, by no later than 30 days after publication.

The amendment to this section is proposed under the Natural Resources Code, Title 7, Chapter 161, §§161.001, 161.061, 161.063, 161.222, 161.233, 161.283, 162.001, 162.003, 162.011. These sections authorize the Board to adopt rules that it considers necessary and advisable for the Land Program and the Veterans Housing Assistance Program.

The proposed rule would affect §§161.001, and 162.001 of the Tex. Nat. Res. Code.

§175.2. Loan Eligibility Requirements.

(a) The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) Board--The Veterans Land Board of the State of Texas.

(2) Bona fide resident--An individual actually living within the State of Texas with the intention to remain.

(3) Missing/Missing in Action--To have an official designation of "missing status" as provided by Title 37, Chapter 10 of the United States Code relating to Payments to Missing Persons. The term "missing status" means the status of members of a uniformed service who are officially carried or determined to be absent in a status of missing; missing in action; interned in a foreign country; captured; beleaguered, or besieged by a hostile force; or detained in a foreign country against their will.

(4) Program--The Veterans Land Program as authorized by Title 7, Chapter 161 of the Texas Natural Resources Code relating to Veterans Land Board.

(5) Surviving spouse--A person of the opposite sex who was the spouse of a veteran at the time of the veteran's death, and who lived with the veteran continuously from the date of marriage to the date of the veteran's death (except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse) and who has not remarried or (in cases not involving remarriage) has not since the death of the veteran, and after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of the other person.

(6) USDVA/VA--The United States Department of Veterans Affairs or any successor thereto.

(7) Veteran--A person who satisfies the requirements of subsection (c)(1) of this section.

(b) The Board shall be the final authority in defining and interpreting all eligibility requirements, and whether an applicant has actually satisfied those requirements. The Board may by resolution prescribe the procedures and forms to be used by applicants to evidence eligibility.

(c) To be eligible to participate in the program, an applicant must satisfy one of the following:

(1) be a person who:

(A) is at least 18 years of age;

(B) is a bona fide resident of Texas at the time of application for a loan. Active duty military personnel who otherwise meet the requirements of this subsection are eligible even though stationed outside of Texas at the time of application;

(C) satisfied one of the following service requirements after September 16, 1940:

(i) has served not less than 90 continuous days of active duty or active duty training time in the Army, Navy, Air Force, Coast Guard, Marine Corps, United States Public Health Service, or the reserve component of one of the listed branches of service, unless discharged earlier because of a service-connected cause;

(ii) has completed all initial active duty training required as a condition of the enlistment or appointment in the Texas National Guard; or

(iii) has at least 20 years of active or reserve military service as computed when determining the applicant's eligibility to receive retired pay under applicable federal law.

(D) is considered not to have been dishonorably discharged under subsection (j) of this section, if the person has been discharged from military service; and

(E) satisfies one of the following:

(i) was a bona fide resident of Texas at the time of enlistment, induction, commissioning, appointment or drafting[ , or have been a legal resident of Texas at least two years immediately prior to the date of filing his or her application ]; or

(ii) has [ resided in Texas continuously for a least two years ] been a legal resident of Texas for at least one year immediately before the date of application.

(2) is the surviving spouse of a veteran who died as a result of a service-connected cause, as certified by the USDVA, or who is identified as missing in action, if the spouse satisfies the requirements of subparagraphs (A) and (B) of subsection (c)(1) of this section, and the veteran satisfied the requirements of subparagraphs (C), (D) and (E)(i) of subsection (c)(1) of this section.

(3) is the surviving spouse of a veteran who died after filing an application and contract of sale with the Board, but before the transaction was completed, if he or she meets all other qualification requirements of the Board.

(d) A person may only have one loan at a time as a veteran. However, once that loan is paid in full he or she may apply for an additional loan as a veteran. The foregoing notwithstanding, an individual who is currently participating in the program as a veteran may take an assignment of a contract or contracts as a non-veteran and may bid on a tract or tracts at a forfeited land sale as a non-veteran.

(e) The applicant must sign applications and contracts. An attorney in fact may not sign these documents for an applicant , except under limited conditions approved by the Board.

(f) No application shall be approved to purchase land under the program:

(1) which provides for or recognizes a second or subordinate lien as a part of the original purchase price for any tract;

(2) where there is evidence that the benefits derived from the use of the land will not pass to the applicant; or

(3) where there exists any other good and sufficient reason to refuse approval, as determined by the chairman of the Board.

(g) If for any reason a veteran's application is not processed to completion, the down payment will be refunded to the veteran, together with the unused portion of any fees that have been deposited with the board.

(h) Each application will be considered as a wholly separate transaction, independent of any other agreement, transaction or contingency. The board will not consider an application which contains a provision making it contingent upon the success or completion of another agreement or transaction.

(i) Any requirement of this section, or of any section within this chapter, which is not otherwise required by the constitution or statutes of this state, may be waived on a case by case basis by the Veterans Land Board. Any waiver request must be in writing and must describe the circumstances surrounding the request, including all of the reasons why the waiver is requested.

(j) For purposes of this section, a person who has been discharged from the branch of the service in which the person served or from the Texas National Guard is considered not to have been dishonorably discharged if the person:

(1) received an honorable discharge;

(2) received a discharge under honorable conditions; or

(3) received a discharge and provides evidence from the United States Department of Veterans Affairs, its successor, or other competent authority that indicates that the character of the person's duty has been determined to be other than dishonorable.

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 April 8, 2002.

TRD-200202164

Larry Soward

Chief Clerk, General Land Office

Veterans Land Board

Earliest possible date of adoption: May 19, 2002

For further information, please call: (512) 936-4179