Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 19.
NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
Subchapter E. RESIDENT RIGHTS
40 TAC §19.403, §19.423
The Texas Department of Human Services (DHS) proposes to
amend §19.403, concerning notice of rights and services, and new §19.423,
concerning model drug testing policy, in its Nursing Facility Requirements
for Licensure and Medicaid Certification chapter. The purpose of the amendment
and new section is to implement House Bill (HB) 1418, 77th Legislature, which
requires facilities to provide residents, next of kin, or guardians with written
notification regarding their drug testing and criminal history check policies.
HB 1418 also requires a model drug testing policy in rule.
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 enhanced resident safety and better access
to provider policies regarding drug testing and criminal history checks of
employees. There will be no adverse economic effect on small or micro businesses,
because the drug testing and criminal history check polices only involve modification
of current notification. There is no anticipated economic cost to persons
who are required to comply with the proposed sections. If a provider chooses
to develop a drug testing policy, the financial impact on the provider would
vary depending on the policy developed. 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-126,
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.
The amendment and new section are proposed under the Health and
Safety Code, Chapter 242, which authorizes DHS to license and regulate convalescent
and nursing homes and related institutions.
The amendment and new section implement the Health and Safety Code, §§242.001-
242.804.
§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)
(No change.)
(2)
a description of the protection of personal funds as described
in §19.404 of this title (relating to Protection of Resident Funds);
[
(3) - (4)
(No change.)
(5)
a written statement
to the resident, the resident's
next of kin, or guardian
describing the facility's policy for
:
(A)
the drug testing of employees who have direct
contact with residents
; and
(B)
the criminal history checks of employees
and applicants for employment.
(c) - (l)
(No change.)
§19.423.Model Drug Testing Policy. The Texas Department of Human Services
(a)
(DHS) is required to provide a model drug testing policy
to nursing facilities under the Health and Safety Code, §242.050. A nursing
facility is not required to perform drug testing on its employees or applicants
for employment. Although this policy only covers drugs, coverage of alcohol
may be added. Before implementing any drug testing policy, including the following
model policy, DHS recommends that a facility discuss the policy with its attorney.
(1)
Policy.
(A)
(NURSING FACILITY NAME) has a vital interest in maintaining
a safe, healthy, and efficient working environment. Being under the influence
of a drug on the job poses serious safety and health risks to the user, co-workers,
and residents. The use, sale, purchase, transfer, or possession of an illegal
drug in the workplace poses unacceptable risks for safe, healthy, and efficient
operations.
(B)
(NURSING FACILITY NAME) has the obligation to maintain
a safe, healthy and efficient workplace for all of its employees and residents,
and to protect the facility's property, information, equipment, operations,
and reputation.
(C)
(NURSING FACILITY NAME) recognizes its obligation to its
residents to provide services that are free of the influence of illegal drugs
and endeavors through this policy to provide drug-free services.
(D)
(NURSING FACILITY NAME) complies with federal and state
rules, regulations, or laws that relate to the maintenance of a workplace
free from illegal drugs.
(E)
All employees are required to abide by the terms of this
policy and to notify management of any criminal drug statute conviction for
a violation that occurred in the workplace no later than five days after such
conviction.
(2)
Purpose. This policy outlines the goals and objectives
of (NURSING FACILITY NAME'S) drug testing program and provides guidance to
supervisors and employees concerning their responsibilities for carrying out
the program.
(3)
Scope. This policy applies to all departments, all employees,
and all job applicants. The term employee includes contracted employees.
(4)
Definitions. The following words and terms, when used in
this chapter, have the following meanings, unless the context clearly indicates
otherwise.
(A)
Facility premises--All property of (NURSING FACILITY NAME)
including, but not limited to, the offices, facilities, and surrounding areas
on (NURSING FACILITY NAME)-owned or -leased property, parking lots, and storage
areas. The term also includes (NURSING FACILITY NAME)-owned or -leased vehicles
and equipment.
(B)
Drug testing--The scientific analysis of urine, blood,
breath, saliva, hair, tissue, and other specimens for detecting a drug.
(C)
Illegal drug--Any drug that is not legally obtainable.
Examples of illegal drugs are marijuana, cocaine, heroin, methamphetamines,
and phencyclidine (PCP).
(D)
Legal drug--Any prescribed drug or over-the-counter drug
that has been legally obtained and is being used for the purpose for which
it was prescribed or manufactured.
(E)
Reasonable belief--A belief based on facts sufficient to
lead a prudent person to conclude that a particular employee is unable to
perform his or her job duties due to drug impairment. Such inability to perform
may include, but not be limited to, decreases in the quality or quantity of
the employee's productivity, judgment, reasoning, concentration and psychomotor
control, and marked changes in behavior. Accidents, deviations from safe working
practices, and erratic conduct indicative of impairment are examples of "reasonable
belief" situations.
(F)
Under the influence--A condition in which a person is affected
by a drug in any detectable manner. The symptoms of influence are not confined
to those consistent with misbehavior or to obvious impairment of physical
or mental ability, such as slurred speech or difficulty in maintaining balance.
A determination of being under the influence can be established by a professional
opinion; a scientifically valid test, such as urinalysis or blood analysis;
and in some cases by the opinion of a layperson.
(5)
Education.
(A)
Management personnel are to be trained to:
(i)
detect the signs and behavior of employees who may be using
drugs in violation of this policy; and
(ii)
intervene in situations that may involve violations of
this policy.
(B)
Employees are to be informed of the provisions of this
policy.
(6)
Prohibited activities.
(A)
Legal drugs. (NURSING FACILITY NAME) reserves the right
at all times to judge the effect that a legal drug may have on an employee's
job performance and to restrict the employee's work activity or presence at
the workplace accordingly.
(B)
Illegal drugs. The use, sale, purchase, transfer, or possession
of an illegal drug by any employee while on (NURSING FACILITY NAME) premises
or while performing (NURSING FACILITY NAME) business is prohibited.
(7)
Discipline.
(A)
Any employee who possesses, distributes, sells, attempts
to sell, or transfers illegal drugs on (NURSING FACILITY NAME) premises or
while on (NURSING FACILITY NAME) business will be subject to immediate discharge.
(B)
Any employee found through drug testing to have in his
or her body a detectable amount of an illegal drug will be subject to discipline
up to and including discharge. An employee may be offered a one-time opportunity
to enter and successfully complete a rehabilitation program, approved by (NURSING
FACILITY NAME), at the employee's expense. During rehabilitation, the employee
will be subject to unannounced drug testing. Upon return to work from rehabilitation,
the employee may be subject to unannounced drug testing at (NURSING FACILITY
NAME) expense for a period of 12 months. Any employee whose test is confirmed
as positive during or following rehabilitation will be subjected to immediate
discharge.
(8)
Drug testing for job applicants.
(A)
All applicants for employment, including applicants for
part-time and seasonal positions and applicants who are former employees,
are subject to drug testing.
(B)
If an applicant refuses to take a drug test, or if evidence
of the use of illegal drugs by an applicant is discovered, either through
testing or other means, the pre-employment process will be terminated.
(C)
An applicant must pass the drug test to be considered for
employment.
(D)
An applicant will be provided written notice of this policy
and, by signature, will be required to acknowledge receipt and understanding
of the policy before being tested.
(9)
Drug testing of employees.
(A)
(NURSING FACILITY NAME) will notify employees of this policy
by:
(i)
providing them with a copy of the policy and obtaining
written acknowledgement that the policy has been received and read.
(ii)
announcing the policy in written communications and making
presentations at employee meetings.
(B)
(NURSING FACILITY NAME) will perform drug testing:
(i)
of any employee who exhibits "reasonable belief" behavior;
(ii)
of each employee who has direct contact with residents
annually;
(iii)
of any employee who is subject to drug testing pursuant
to federal or state rules, regulations, or laws;
(iv)
on a random basis of any employee.
(C)
An employee's consent to submit to drug testing is required
as a condition of employment and the employee's refusal to consent may result
in disciplinary action, including discharge, for a first refusal or any subsequent
refusal.
(D)
An employee who is tested in a "reasonable belief" situation
may be suspended pending receipt of written test results and inquiries that
may be required.
(10)
Appeal of a drug test result.
(A)
An applicant or employee whose drug test was positive will
have an opportunity to explain why the positive finding could have resulted
from a cause other than drug use. (NURSING FACILITY NAME) will judge whether
the employee's explanation merits further inquiry.
(B)
An applicant or employee whose drug test is reported positive
will be offered the opportunity to:
(i)
obtain and independently test, at their expense, the remaining
portion of the urine specimen that yielded the positive result; and
(ii)
obtain the written test result and submit it to an independent
medical review, at their expense.
(C)
During an appeal and any resulting inquiries, the pre-employment
selection process for an applicant will be placed on hold, and the employment
status of an employee may be suspended. An employee who is suspended pending
appeal may use any available annual leave to remain in an active pay status.
If the employee has no annual leave or chooses not to use it, the suspension
will be without pay.
(11)
Confidentiality. All information related to drug testing
or the identification of persons as users of drugs will be protected by (NURSING
FACILITY NAME) as confidential unless otherwise required by law or overriding
public health and safety concerns, or authorized in writing by the persons
in question.
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 22, 2002.
TRD-200202453
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: June 2, 2002
For further information, please call: (512) 438-3734
Chapter 334.
REVIEW OF FIRE FIGHTER TESTS
and
]
Part 11.
TEXAS COMMISSION ON HUMAN RIGHTS