Earliest possible date of adoption: February 23, 2003

For further information, please call: (512) 458-7236

Subchapter T. ADMINISTRATION

40 TAC §19.1921, §19.1929

The amendments 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 amendments implement the Health and Safety Code, §§242.001-242.852

§19.1921.General Requirements for a Nursing Facility.

(a) - (c) (No change.)

(d) In the event any facility ceases operation, temporarily or permanently, voluntarily or involuntarily, notice must be provided to the residents and residents' relatives or responsible parties of closure.

(1) If the closure is voluntary, notice to residents' relatives or responsible parties must be in writing, not later than one week after the date on which the decision to close is made, giving at least seven days notice for relocation after receipt of notice.

(2) If the closure is involuntary, the facility must make the notification, whether verbally or in writing, immediately on receiving notice of the closure.

(e) Each licensed facility must conspicuously and prominently post the information listed in paragraphs (1)- (12) [ ~~(11)~~ ] of this subsection in an area of the facility that is readily available to residents, employees, and visitors. 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 to it. Any exceptions must be approved by the Texas Department of Human Services (DHS). The following items must be posted:

(1) - (11) (No change.)

(12) daily for each shift, the current number of licensed and unlicensed nursing staff directly responsible for resident care in the facility. In addition, the nursing facility must make the information required to be posted available to the public upon request.

(f) - (m) (No change.)

§19.1929.Staff Development.

Each facility must implement and maintain programs of orientation, training, and continuing in-service education to develop the skills of its staff, as described in §19.1903 of this title (relating to Required Training of Nurse Aides).

(1) As part of orientation and annually, each employee must receive instruction regarding :

(A) Human Immunodeficiency Virus (HIV), as outlined in the educational information provided by the Texas Department of Health Model Workplace Guidelines. At a minimum the HIV curriculum must include:

(i) [ ~~(A)~~ ] modes of transmission;

(ii) [ ~~(B)~~ ] methods of prevention;

(iii) [ ~~(C)~~ ] behaviors related to substance abuse;

(iv) [ ~~(D)~~ ] occupational precautions;

(v) [ ~~(E)~~ ] current laws and regulations concerning the rights of an acquired immune deficiency syndrome/HIV-infected individual; and

(vi) [ ~~(F)~~ ] behaviors associated with HIV transmission which are in violation of Texas law ; and [ . ]

(B) restraint reduction and the prevention of falls.

(2) - (4) (No change.)

(5) A rural hospital participating in the Medicaid Swing Bed Program as specified in §19.2326 [ ~~§19.2006~~ ] of this title (relating to Medicaid Swing Bed Program for Rural Hospitals) is not required to meet the requirements of this section, if the swing beds are used for no more than one 30-day length of stay per year, per resident.

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

Filed with the Office of the Secretary of State on January 10, 2003.

TRD-200300102

Earliest possible date of adoption: February 23, 2003

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

40 TAC §19.1934

The Texas Department of Human Services (DHS) proposes to amend §19.1934, concerning educational requirements for persons under age 22, in its Nursing Facility Requirements for Licensure and Medicaid Certification chapter. The purpose of the amendment is to comply with the Texas Education Code, §29.012, which requires DHS, the Texas Education Agency, the Texas Department of Mental Health and Mental Retardation, the Texas Department of Health, the Texas Department of Protective and Regulatory Services, the Interagency Council on Early Childhood Intervention, the Texas Commission on Alcohol and Drug Abuse, the Texas Juvenile Probation Commission, and the Texas Youth Commission to develop and adopt a memorandum of understanding (MOU) by rule. The MOU addresses respective roles and responsibilities of participating agencies in the sharing of information about, and coordination of services to, students with disabilities receiving special education services who live in residential facilities. The MOU establishes the respective responsibilities of school districts and of residential facilities for the provision of a free appropriate public education, as required by the Individuals with Disabilities Education Act. The amended §19.1934 adopts by reference the MOU at 19 TAC §89.1115 (relating to Memorandum of Understanding Concerning Interagency Coordination of Special Education Services to Students with Disabilities in Residential Facilities).

Bettye M. Mitchell, Deputy Commissioner for Long Term Care, has determined that, for each year of the first five years the section is in effect, the public benefit anticipated as a result of enforcing the section will be that residential care providers will work closely with school districts to ensure children who live in residential care facilities receive the best education possible. There will be no adverse economic effect on small or micro businesses as a result of enforcing or administering the section, because the MOU does not add additional requirements to existing nursing facility regulations. There is no anticipated economic cost to persons who are required to comply with the proposed section for the same reason. There is no anticipated effect on local employment in geographic areas affected by this section.

Questions about the content of this proposal may be directed to Rose Rossman at (512) 438- 3750 in DHS's Long Term Care-Policy section. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-074, Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .

The amendment is proposed under the Health and Safety Code, Chapter 242, which authorizes DHS to license and regulate convalescent and nursing homes and related institutions, and under the Texas Education Code, §29.012.

The amendment implements the Health and Safety Code, §§242.001-242.852, and the Texas Education Code, §29.012.

§19.1934.Educational Requirements for Persons under Age 22.

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

(c) In accordance with the Education Code, §29.012, DHS adopts by reference 19 TAC §89.1115 (relating to the Memorandum of Understanding Concerning Interagency Coordination of Special Education Services to Students with Disabilities in Residential Facilities).

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

Filed with the Office of the Secretary of State on January 10, 2003.

TRD-200300103

Earliest possible date of adoption: February 23, 2003

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

Chapter 77. EMPLOYMENT PRACTICES

The Texas Department of Human Services (DHS) proposes to repeal §§77.10-77.15; and proposes new Subchapter A, Introduction, §§77.1-77.2; new Subchapter B, Employee Training, §§77.11-77.17; and new Subchapter C, Education Assistance Program, §§77.31-77.44, in its Employment Practices chapter. The purpose of the repeals and new sections is to rewrite the chapter in question and answer format to make the sections easier to understand. The new sections do not contain new information or policy; they are rewordings of text found in the sections being repealed.

Charles F. Lyon, Deputy Commissioner for Support Services, 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 rules that the public can more easily understand. There will be no adverse economic effect on small or micro businesses, or businesses of any size, as a result of enforcing or administering the sections, because these rules apply only to DHS, which is a state agency, and not to businesses. 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 Alex Gillet at (512) 438- 3993 in DHS's Human Resource Services section. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-066, Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .

Subchapter A. INTRODUCTION

40 TAC §77.1, §77.2

The new sections are proposed under the Government Code, §656.048, which authorizes DHS to adopt rules relating to employee training and education.

The new sections implement the Government Code, §656.048.

§77.1.What is the purpose of this chapter?

(a) The Government Code, Chapter 656, Subchapter C, requires agencies like the Texas Department of Human Service (DHS) to publish rules about training and education policies. We offer training and education programs to:

(1) encourage your professional development;

(2) increase your job potential; and

(3) bring new technology and educational methods to the workplace.

(b) This chapter answers the following questions:

(1) Who is eligible to participate in DHS's training and education program?

(2) When I participate in a DHS training and education program, what are my obligations to DHS?

§77.2.What do the words and terms in this chapter mean?

The following words and terms in this chapter have the following meanings unless the context clearly indicates otherwise:

(1) Assistance--Financial aid provided by the Texas Department of Human Services (DHS) to its employees for education expenses.

(2) Commissioner--The commissioner of DHS.

(3) Corrective action--DHS's process to correct employee performance and work rule problems.

(4) DHS--The Texas Department of Human Services.

(5) Employee--An individual employed with DHS in either a full-time or part-time position.

(6) Full-time employee--An individual employed with DHS and working 40 or more hours per week.

(7) Hardship--A serious or catastrophic illness, family emergency, or extenuating circumstance beyond the employee's control that prevents the employee from complying with the terms of an education assistance agreement.

(8) Institution--An institution of higher education.

(9) Institution of higher education--A public or private technical institute, junior college, senior college, university, medical or dental unit, or other institution offering an associate's, baccalaureate, master's, or doctoral degree program.

(10) Part-time employee--An individual employed with DHS and working between 20 and 39 hours per week.

(11) Professional development requirement--Educational or technical training required for an employee to maintain current skills, professional standards, or license requirements.

(12) Training--Planned, structured activities designed to improve employee job performance and job-related skills by achieving specific, measurable, and predetermined learning objectives.

(13) We, us, and our--The Texas Department of Human Services.

(14) You, your, I, and my--An individual employed with DHS in either a full-time or part-time position.

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

Filed with the Office of the Secretary of State on January 10, 2003.

TRD-200300104

Earliest possible date of adoption: February 23, 2003

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

Subchapter A. EMPLOYEE TRAINING AND EDUCATION

40 TAC §§77.10 - 77.15

The repeals are proposed under the Government Code, §656.048, which authorizes DHS to adopt rules relating to employee training and education.

The repeals implement the Government Code, §656.048.

§77.10.Purpose and Scope.

§77.11.Definitions.

§77.12.Employee Training.

§77.13.Employee Training Obligations.

§77.14.Education Assistance Program.

§77.15.Employee Assistance Obligations.

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

Filed with the Office of the Secretary of State on January 10, 2003.

TRD-200300105

Earliest possible date of adoption: February 23, 2003

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

Subchapter B. EMPLOYEE TRAINING

40 TAC §§77.11 - 77.17

The new sections are proposed under the Government Code, §656.048, which authorizes DHS to adopt rules relating to employee training and education.

The new sections implement the Government Code, §656.048.

§77.11.What is the training activities program?

Through the training activities program, we offer in-house or contract training activities to provide you with opportunities to enhance your job skills and meet professional development requirements. These activities include developmental workshops, seminars, conferences, and college courses that are not counted toward a degree.

§77.12.Who is eligible to participate in the training activities program?

You may participate in training activities if the commissioner or the commissioner's designee determines that such training will:

(1) enhance your ability to perform your current job duties or qualify you to perform prospective job duties; and

(2) benefit both you and us by:

(A) providing you with opportunities to fulfill professional development requirements;

(B) providing you with greater career planning choices; or

§77.13.Who should I ask if I want to participate in the training activities program?

If you are interested in participating in either in-house or contract training, you must contact your supervisor to receive approval.

§77.14.What are my obligations if I participate in the training activities program?

If you participate in the training activities program, you must:

(1) attend and satisfactorily complete the training, which includes passing tests or other types of performance measures (if required); and

(2) at the discretion of the commissioner, complete and file with us an employee training agreement (on forms selected by us) that explains the terms and conditions of the training assistance, including:

(A) the amount of the financial assistance to be provided by us; and

(B) provisions requiring you to reimburse us for educational expenses if you fail to abide by the terms of the agreement.

§77.15.Can I get a waiver for any of my obligations?

We may waive your obligation to follow the terms of the employee training agreement if the training is:

(1) not covered by the Government Code, Chapter 656, Subchapter D, and the commissioner or the commissioner's designee determines that the waiver is in the state's best interest; or

(2) covered by the Government Code, Chapter 656, Subchapter D, and the Texas Board of Human Services determines that the waiver is:

(A) in our best interest; or

(B) warranted because you are suffering an extreme personal hardship.

§77.16.How do I get a waiver for any of my obligations?

You or your supervisor may request a waiver.

§77.17.What happens if I am placed on corrective action while I am participating in the training activities program?

If you are placed on corrective action, we may suspend your participation in the training activities program.

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

Filed with the Office of the Secretary of State on January 10, 2003.

TRD-200300106

Earliest possible date of adoption: February 23, 2003

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

Subchapter C. EDUCATION ASSISTANCE PROGRAM

40 TAC §§77.31 - 77.44

The new sections are proposed under the Government Code, §656.048, which authorizes DHS to adopt rules relating to employee training and education.

The new sections implement the Government Code, §656.048.

§77.31.What is the education assistance program?

The education assistance program offers access to professional growth opportunities, including financial aid to pursue academic degree and General Equivalency Diploma programs. The education assistance program may be offered at the discretion of the commissioner.

§77.32.Am I eligible to participate in the education assistance program?

If you wish to pursue an academic degree or continuing education through this program, then:

(1) this pursuit must benefit DHS; and

(2) you must meet the following minimum requirements:

Figure: 40 TAC §77.32(2)

§77.33.Who do I ask if I want to participate in the education assistance program?

If you are interested in participating in the education assistance program, you must contact your supervisor and receive the commissioner's or the commissioner's designee's approval.

§77.34.What am I required to do if I participate in the education assistance program?

To participate in the education assistance program, you must:

(1) sign an education assistance agreement, which states that you agree to work for us for a minimum of two years for an associate's or bachelor's degree and three years for a graduate degree, beginning 30 days after the date you receive your degree, provided you are meeting all conditions of employment and eligibility at that time;

(2) follow the terms and conditions of the education assistance agreement and requirements for continued eligibility;

(3) complete and pass each individual course;

(4) provide grade reports each semester so that we can verify that full credit was received for courses taken;

(5) provide us with fee receipts for courses to be taken;

(6) promptly report to us any outside funds received, such as grants, scholarships, or other financial aid. We will deduct from education assistance any amounts you receive through grants, scholarships, or other financial aid for tuition, required fees, and books; and

(7) remain eligible for the appropriate program as follows:

Figure: 40 TAC §77.34(7)

§77.35.What if I cannot work full time and keep my class schedule?

Upon approval of the commissioner or the commissioner's designee, you may change your status from full-time to part-time to accommodate class scheduling.

§77.36.What type of institution of higher education must I attend?

(a) If you participate in the education assistance program, you must attend a public institution in the state of Texas, unless you provide documentation to the commissioner or the commissioner's designee that:

(1) no accredited public institution offers program courses that you can reasonably attend within a normal combination work and school day;

(2) the public institution does not offer the approved courses or degree program;

(3) the admission requirements of the public institution are so restrictive that you fail to qualify for the program; or

(4) the completion of the degree or course at a private institution costs less than a public institution.

(b) If the commissioner or the commissioner's designee approves your request to attend a private institution, your education assistance agreement will state that we will only pay the equivalent of what the education costs at a public institution.

§77.37.What financial assistance is available?

If you participate in the education assistance program, we will give you financial assistance for some or all of the following expenses:

(1) tuition, including correspondence courses that fulfill degree, trade, or technical school plan requirements or are taken while pursuing a General Equivalency Diploma;

(2) College Level Equivalency Program (CLEP) exams or similar exams if you score high enough to receive college credit or a waiver of course requirements that are part of your degree plan;

(3) life experience assessments for which you obtain a credit that is part of your degree plan; and

(4) required fees and books.

§77.38.How often does DHS review my participation in the education assistance program?

The commissioner or the commissioner's designee reconsiders your participation in the education assistance program each semester.

§77.39.In what situations would DHS cancel my education assistance agreement and my participation in the program?

(a) DHS will cancel your education assistance agreement and require you to repay all funds, not including salary, received from us under the education assistance program if you:

(1) withdraw from the institution;

(2) are removed or prohibited from attending the institution;

(3) fail to comply with one or more terms of the education assistance agreement; or

(4) are terminated from DHS employment for poor performance or behavior during the duration of your education assistance agreement, including the employment period required in paragraph §77.34 (1) of this title (relating to What am I required to do if I participate in the education assistance program?)

(b) In addition, we may deny further participation if:

(1) you do not meet the requirements of subsection (a) of this section or §77.34 of this title; or

(2) your first and second line supervisors determine that your participation in a degree program is adversely affecting your job performance.

§77.40.If my participation is cancelled, will I have to repay any money to DHS?

Yes, if your participation in the education assistance program is cancelled, you will need to repay DHS as follows:

Figure: 40 TAC §77.40

§77.41.Can I get a waiver, deferment, or reduction of my repayment obligation?

(a) If the training is not covered by the Government Code, Chapter 656, Subchapter D, the commissioner or the commissioner's designee may reduce, defer, or extend your repayment obligation, though this change will not relieve you of your responsibility to repay the funds owed.

(b) If the training is covered by the Government Code, Chapter 656, Subchapter D, the Texas Board of Human Services (board) may reduce, defer, extend, or waive the repayment obligation if the board determines that this change is:

(1) in our best interest; or

(2) is warranted because you are suffering an extreme personal hardship.

§77.42.How do I ask for a waiver, deferment, or reduction?

You or your supervisor may request a waiver, deferment, or reduction.

§77.43.If my participation in the education assistance program is cancelled, can I participate in the program in the future?

If we cancel your education assistance agreement, you will no longer be eligible to participate in the education assistance program unless you repay us as required in §77.40 of this title (relating to If my participation is cancelled, will I have to repay any money to DHS?), and:

(1) you demonstrate that the cancellation was due to a hardship; or

(2) at least three years have passed since we cancelled your education assistance agreement.

§77.44.What happens if I am placed on corrective action while I am participating in the education assistance program?

If you are placed on corrective action, we may suspend your participation in the education assistance program.

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

Filed with the Office of the Secretary of State on January 10, 2003.

TRD-200300107

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: February 23, 2003

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

Chapter 92. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES

The Texas Department of Human Services (DHS) proposes to repeal Subchapter H, consisting of §§92.151-92.158, and to amend §92.3, concerning definitions; §92.15, concerning renewal procedures and qualifications; §92.16, concerning change of ownership; §92.17, concerning criteria for denying a license or renewal of a license; §92.19, concerning informal reconsideration; §92.20, concerning license fees; §92.41, concerning standards for type A, type B, and type E assisted living facilities; §92.53, concerning standards for certified Alzheimer's assisted living facilities; §92.61, concerning introduction and application; §92.62, concerning general requirements; §92.64, concerning plans, approvals, and construction procedures; and §92.82, concerning determinations and actions pursuant to inspections in its Licensing Standards for Assisted Living Facilities chapter. DHS proposes new rules in Chapter 92 consisting of Subchapter H, Enforcement, Division 1, General Information, §92.151 and §92.152; Division 2, Actions Against a License: Suspension, §§92.201- 92.220; Division 3, Actions Against a License: Revocation, §§92.251-92.267; Division 4, Actions Against a License: Temporary Restraining Orders and Injunctions, §92.301 and §92.302; Division 5, Actions Against a License: Emergency License Suspension and Closing Order, §§92.351-92.374; Division 6, Actions Against a License: Civil Penalties, §92.401 and §92.402; Division 7, Trustees: Involuntary Appointment of a Trustee, §§92.451- 92.456; Division 8, Trustees: Appointment of a Trustee by Agreement, §§92.501-92.506; Division 9, Administrative Penalties, §§92.551-92.595; and Division 10, Amelioration, §§92.601-92.616. The purpose of the repeals, amendments, and new sections is to update the content of some rules in response to legislation, to improve clarity, and to state the licensing standards for assisted living facilities rules in language that is easier for the public to understand. Proposed rules address actions against a license, trustees, administrative penalties, and amelioration.

The proposal incorporates changes to the Health and Safety Code, §§247.0025, 247.041, 247.0451-247.0455 and 247.0457 as amended by Senate Bill (SB) 527, 77th Legislature. The proposed changes allow DHS to assess administrative penalties against assisted living facilities, allow assisted living facilities to ameliorate violations, and give gradations of penalties. Subchapter H has been reorganized and divisions introduced to improve usability. The new sections include enforcement regulations for assisted living facilities. Definitions added to §92.3 incorporate legislative changes and initiatives. Changes to §§92.15, 92.16, 92.17, 92.20, 92.41, 92.53, 92.61, 92.62, 92.64, and 92.82 relate to administrative penalties, technical changes, clarification, correction of references, and changes from SB527, and add requirements for training on restraints.

The effect on state government for the first five-year period the sections will be in effect is an estimated increase in revenue of $15,835 in fiscal year (FY) 2003; $15,835 in FY 2004; $15,835 in FY 2005; $15,835 in FY 2006; and $15,835 in FY 2007. There will be no fiscal implications for local governments as a result of enforcing or administering the sections.

There will be no cost to assisted living providers (businesses) that maintain compliance with licensure requirements. The cost to persons who are assessed administrative penalties for non- compliance with these sections will be an estimated total of $15,835 in fiscal year (FY) 2003; $15,835 in FY 2004; $15,835 in FY 2005; $15,835 in FY 2006; and $15,835 in FY 2007.

Bettye M. Mitchell, Deputy Commissioner for Long Term Care, 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 that DHS will have rules in effect to implement the administrative penalties system added by the legislature and rules that the public can more easily understand. There will be an adverse economic effect on any size business, whether large, small, or micro, if an administrative penalty is assessed. There will be no economic effect on assisted living providers that maintain compliance with licensure requirements, because they will not be assessed administrative penalties. The amount of the administrative penalties will range from $100 to $1,000, depending on the penalty associated with the violation written against the facility. The penalty amounts are determined by the number of licensed beds the provider has and by the size of the business-owning entity. The establishment of administrative penalties and method of determining the penalty fee schedule were outlined in state statute. 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 Jeanoyce Wilson at (512) 438-2353 in DHS's Long Term Care Policy section. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-068, Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .

Subchapter A. INTRODUCTION

40 TAC §92.3

The amendment is proposed under the Health and Safety Code, Chapter 247, which authorizes DHS to license and regulate assisted living facilities.

The amendment implements the Health and Safety Code, §§247.001-247.068.

§92.3.Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

(1) - (6) (No change.)

(7) DHS--Texas Department of Human Services.

(8) [ ~~(7)~~ ] Dietitian--A person who currently holds a license or provisional license issued by the Texas State Board of Examiners of Dietitians.

(9) [ ~~(8)~~ ] Disclosure statement--A department-designed form for prospective residents or their representatives that [ ~~which~~ ] each assisted living facility must complete. The form contains information regarding the preadmission, admission , and discharge process; resident assessment and service plans; staffing patterns; the physical environment of the facility; resident activities; and facility services.

(10) [ ~~(9)~~ ] Facility--An establishment under the scope of Assisted Living [ ~~Personal Care~~ ] Facility Licensing Act, Health and Safety Code, Chapter 247, which furnishes room, board, and one or more personal care services.

(11) [ ~~(10)~~ ] Fire Suppression Authority--The paid or volunteer fire-fighting organization or tactical unit that is responsible for fire suppression operations and related duties once a fire incident occurs within its jurisdiction.

(12) [ ~~(11)~~ ] Governmental unit--The state or any county, municipality, or other political subdivision, or any department, division, board, or other agency of any of the foregoing.

(13) [ ~~(12)~~ ] Health care professional--An individual licensed, certified, or otherwise authorized to administer health care, for profit or otherwise, in the ordinary course of business or professional practice. The term includes a physician, registered nurse, licensed vocational nurse, licensed dietitian, physical therapist, and occupational therapist.

(14) Immediate threat--There is considered to be an immediate threat to the health or safety of a resident, or a situation is considered to put the health or safety of a resident in immediate jeopardy, if there is a situation in which an assisted living facility's noncompliance with one or more requirements of licensure has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.

(15) [ ~~(13)~~ ] Immediately available--The capacity of facility staff to immediately respond to an emergency after being notified through a communication and/or alarm system. The staff is to be no more than 600 feet from the farthest resident.

(16) [ ~~(14)~~ ] Management services--Services provided under contract between the owner of a facility and a person to provide for the operation of a facility, including administration, staffing, maintenance, or delivery of resident services. Management services do not include contracts solely for maintenance, laundry, or food services.

(17) [ ~~(15)~~ ] Manager--The individual in charge of the day-to-day operation of the facility.

(18) [ ~~(16)~~ ] Medication--Medication is any substance :

(A) [ ~~any substance~~ ] recognized as a drug in the official United States Pharmacopoeia, Official Homeopathic Pharmacopoeia of the United States, Texas Drug Code Index or official National Formulary, or any supplement to any of these official documents;

(B) [ ~~any substance~~ ] intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease;

(C) [ ~~any substance (other than food)~~ ] other than food intended to affect the structure or any function of the body;

(D) [ ~~any substance~~ ] intended for use as a component of any substance specified in this definition. It does not include devices or their components, parts, or accessories.

(19) [ ~~(17)~~ ] Medication administration--The direct application of a medication or drug to the body of a resident by an individual legally allowed to administer medication in the State of Texas.

(20) [ ~~(18)~~ ] Medication assistance or supervision--The assistance or supervision of the medication regimen by facility staff. Refer to §92.41(i) of this chapter [ ~~title~~ ] (relating to Standards for Type A, Type B, and Type E Assisted Living Facilities).

(21) [ ~~(19)~~ ] Medication (self-administration)--The capability of residents to administer their own medication/treatments without assistance from the facility staff.

(22) [ ~~(20)~~ ] NFPA 101--The 1988 publication titled "NFPA 101 Life Safety Code" published by the National Fire Protection Association, Inc., Batterymarch Park, Quincy, Massachusetts 02269.

(23) [ ~~(21)~~ ] Person--Any individual, firm, partnership, corporation, association, or joint stock association, and the legal successor thereof.

(24) [ ~~(22)~~ ] Person with a disclosable interest--Any person who owns 5.0% interest in any corporation, partnership, or other business entity that is required to be licensed under Health and Safety Code, Chapter 247. A person with a disclosable interest does not include a bank, savings and loan, savings bank, trust company, building and loan association, credit union, individual loan and thrift company, investment banking firm, or insurance company unless such entity participates in the management of the facility.

(25) [ ~~(23)~~ ] Personal care services--Assistance with meals, dressing, movement, bathing, or other personal needs or maintenance; the administration of medication or the assistance with or supervision of medication; or general supervision or oversight of the physical and mental well-being of a person who needs assistance to maintain a private and independent residence in the facility or who needs assistance to manage his or her personal life, regardless of whether a guardian has been appointed for the person.

(26) [ ~~(24)~~ ] Physician--A practitioner licensed by the Texas State Board of Medical Examiners.

(27) [ ~~(25)~~ ] Resident--Anyone accepted for care in the assisted living facility.

(28) [ ~~(26)~~ ] Respite--The provision by a facility of room, board, and care at the level ordinarily provided for permanent residents of the facility to a person for not more than 60 days for each stay in the facility.

(29) Restraints--Chemical restraints are psychoactive drugs administered for the purposes of discipline or convenience and are not required to treat the resident's medical symptoms. Physical restraints are any manual method, or physical or mechanical device, material, or equipment attached or adjacent to the resident that restricts freedom of movement.

(30) [ ~~(27)~~ ] Safety--Protection from injury or loss of life due to such conditions as fire, electrical hazard, unsafe building or site conditions, and the hazardous presence of toxic fumes and materials.

(31) Seclusion--The placement of a resident apart from other residents for any period of time in an area from which egress is prevented.

(32) [ ~~(28)~~ ] Service plan--A written description of the medical care or the supervision and non-medical [ ~~nonmedical~~ ] care needed by a person.

(33) [ ~~(29)~~ ] Short-term acute episode--An illness of less than 30 days duration.

(34) [ ~~(30)~~ ] Staff--Any employee of an assisted living facility.

(35) [ ~~(31)~~ ] Standards--The minimum licensing standards in Subchapter C of this chapter (relating to Standards for Licensure) intended to protect the health and safety of the residents.

(36) [ ~~(32)~~ ] Terminal condition--A medical diagnosis, certified by a physician, of an illness that will result in death in six months or less.

(37) [ ~~(33)~~ ] Universal precautions--An approach to infection control in which blood, any body fluids visibly contaminated with blood, and all body fluids in situations where it is difficult or impossible to differentiate between body fluids are treated as if known to be infectious for HIV, hepatitis B, and other blood-borne [ ~~bloodborne~~ ] pathogens.

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

Filed with the Office of the Secretary of State on January 10, 2003.

TRD-200300109

Earliest possible date of adoption: February 23, 2003

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

Subchapter B. APPLICATION PROCEDURES

40 TAC §§92.15 - 92.17, 92.19, 92.20

The amendments are proposed under the Health and Safety Code, Chapter 247, which authorizes DHS to license and regulate assisted living facilities.

The amendments implement the Health and Safety Code, §§247.001-247.068.

§92.15.Renewal Procedures and Qualifications.

(b) Each license holder must, at least 45 days before [ ~~prior to~~ ] the expiration of the current license, file an application for renewal with the Texas Department of Human Services (DHS). DHS considers that an individual has filed a timely and sufficient application for the renewal of a license if the license holder submits:

(1) a complete application to DHS, and DHS receives the complete application at least 45 days before the current license expires; [ or ]

(2) an incomplete application to DHS with a letter explaining the circumstances that [ ~~which~~ ] prevented the inclusion of the missing information, and DHS receives the incomplete application and letter at least 45 days before the current license expires ; or [ . ]

(3) a complete application to DHS, DHS receives the application during the 45-day period ending on the date the current license expires, and the individual pays a fine under the administrative penalties described in Subchapter H, Division 9 of this chapter (relating to Administrative Penalties).

(c) If the application is postmarked by the filing deadline, the application is [ ~~will be~~ ] considered to be timely filed if received in the Facility Enrollment [ ~~Licensing~~ ] Section of the state office of Long Term [ ~~Long-Term~~ ] Care-Regulatory, DHS [ ~~Texas Department of Human Services~~ ], within 15 days of the postmark. If the application is postmarked by the filing deadline, the application is considered to be timely filed if received in the Facility Enrollment Section of the state office of Long Term Care-Regulatory, DHS, within 30 days of the postmark and the license holder proves to the satisfaction of DHS that the delay was due to the U.S. Postal Service. It is the license holder's responsibility to ensure that the application is timely received by DHS.

(d) - (g) (No change.)

§92.16.Change of Ownership.

(b) DHS considers an individual has filed a timely and sufficient application for a license if the individual submits:

(1) a complete application to DHS, and DHS receives the complete application at least 30 days before the anticipated date of sale or other transfer of ownership;

(2) an incomplete application to DHS with a letter explaining the circumstances that prevented the inclusion of the missing information, and DHS receives the incomplete application and letter at least 30 days before the anticipated date of sale or other transfer of ownership; or

(3) a complete application to DHS, DHS receives the application during the 30-day period ending on the anticipated date of sale or other transfer of ownership, and the individual pays a fine under the administrative penalties described in Subchapter H, Division 9 of this chapter (relating to Administrative Penalties).

(c) [ ~~(b)~~ ] Pending the review of the prospective purchaser's application, the license holder must continue to meet all requirements for operation of the facility.

§92.17.Criteria for Denying a License or Renewal of a License.

(a) The Texas Department of Human Services (DHS) , after providing notice and opportunity for a hearing to the applicant or license holder, may deny an initial license or refuse to renew a license if an applicant, license holder, controlling person, or any person required to submit background and qualification information:

(1) violates Health and Safety Code, Chapter 247; a section, standard or order adopted under Chapter 247; or a license issued under Chapter 247 in either a repeated or substantial manner;

(2) commits an act described in §92.551(2)-(5) of this chapter (relating to When is an administrative penalty assessed?);

[(1) substantially fails to comply with the requirements described in §92.41 of this title (relating to Standards for Type A, Type B, and Type E Assisted Living Facilities) including, but not limited to:]

~~[(A) noncompliance that posed or poses a serious threat to health and safety, or]~~

~~[(B) a failure to maintain compliance on a continuous basis;]~~

(3) [ ~~(2)~~ ] aids, abets, or permits a substantial violation described in paragraphs (1)-(2) [ ~~paragraph (1)~~ ] of this subsection about which the applicant, manager, or affiliate had or should have had knowledge;

(4) [ ~~(3)~~ ] fails to provide the required information, facts ,or [ ~~and/or~~ ] references;

(5) [ ~~(4)~~ ] provides the following false or fraudulent information:

(A) knowingly submits false or intentionally misleading statements to DHS;

(B) uses subterfuge or other evasive means of filing;

(D) knowingly conceals a material fact related to licensure; or

(E) is responsible for fraud;

(6) [ ~~(5)~~ ] fails to pay the following fees, taxes, and assessments when due:

(A) licensing fees as described in §92.20 of this chapter [ ~~title~~ ] (relating to License Fees); or

(B) franchise taxes, if applicable;

(7) [ ~~(6)~~ ] discloses any of the following actions within the two-year period preceding the application:

(A) operation of a facility that has been decertified or [ ~~and/or~~ ] had its contract canceled under the Medicare or Medicaid program in any state;

(B) federal or state long-term care facility, assisted living facility, or similar facility sanctions or penalties, including but not limited to, monetary penalties, involuntary downgrading of the status of a facility license, proposals to decertify, directed plans of correction, or the denial of payment for new Medicaid admissions;

(D) unsatisfied final judgments, excluding judgments wholly unrelated to the provision of care rendered in long-term care facilities;

(E) eviction involving any property or space used as a facility in any state; or

(F) suspension of a license to operate a health care facility, long-term care facility, assisted living facility, or a similar facility in any state; and

(8) [ ~~(7)~~ ] violates [ ~~Texas~~ ] Health and Safety Code, §247.021.

(b) Concerning subsection (a)(7) [ ~~(a)(6)~~ ] of this section, DHS may consider exculpatory information provided by the applicant, manager, or affiliate and grant a license under subsection (a)(7) [ ~~(a)(6)~~ ] of this section if DHS finds the applicant, license holder, manager, or affiliate able to comply with the rules of this chapter.

(d) Only final actions are considered for purposes of subsections (a)(7) [ ~~(a)(6)~~ ] and (c) of this section. An action is final when routine administrative and judicial remedies are exhausted. All actions, whether pending or final, must be disclosed.

(e) - (f) (No change.)

§92.19. Opportunity to Show Compliance [ ~~Informal Reconsideration~~ ].

(a) Before the institution of proceedings to revoke or suspend a license or deny an application for the renewal of a license, the Texas Department of Human Services (DHS) gives the license holder:

(1) (No change.)

(2) an opportunity to show compliance with all requirements of law for the retention of the license by sending the director of Long Term Care-Regulatory a written request for an opportunity to show compliance [ ~~informal review~~ ]. The request must:

(A) - (B) (No change.)

(b) (No change.)

§92.20.License Fees.

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

(4) Failure to pay the trust fund fee within 90 days from the date assessed by DHS may result in an assessment of an administrative penalty under the administrative penalties described in Subchapter H, Division 9 of this chapter (relating to Administrative Penalties).

(d) - (e) (No change.)

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

Filed with the Office of the Secretary of State on January 10, 2003.

TRD-200300110

Earliest possible date of adoption: February 23, 2003

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

Subchapter C. STANDARDS FOR LICENSURE

40 TAC §92.41, §92.53

The amendments are proposed under the Health and Safety Code, Chapter 247, which authorizes DHS to license and regulate assisted living facilities.

The amendments implement the Health and Safety Code, §§247.001-247.068.

§92.41.Standards for Type A, Type B, and Type E Assisted Living Facilities.

(a) Employees.

(4) Staff training. The facility must document that staff members are competent to provide personal care before assuming responsibilities and have received the following training.

(B) Attendants must complete 16 hours of on-the-job supervision and training within the first 16 hours of employment following orientation. Training must include:

(i) - (iii) (No change.)

(iv) emergency first aid procedures, such as the Heimlich maneuver and actions to take when a resident falls, suffers a laceration, or experiences a sudden change in physical and/or mental status; [ ~~and~~ ]

(v) managing disruptive behavior ; and [ . ]

(vi) behavior management, including prevention of aggressive behavior and de- escalation techniques, or fall prevention, or alternatives to restraints.

(C) Direct care staff must complete six documented hours of education annually, based on each employee's hire date. One hour of annual training must address behavior management, including prevention of aggressive behavior and de-escalation techniques, or fall prevention, or alternatives to restraints. Subject matter must address the unique needs of the facility. Suggested topics include:

(i) - (xi) (No change.)

(D) (No change.)

(b) - (o) (No change.)

(p) Restraints. All restraints for purposes of behavioral management, staff convenience, or resident discipline are prohibited. Seclusion is prohibited. For more information regarding restraints, see §92.125 of this chapter (relating to Resident's Bill of Rights and Provider Bill of Rights).

§92.53.Standards for Certified Alzheimer's Assisted Living Facilities.

(2) Direct care staff must receive 16 hours of on-the-job supervision and training within the first 16 hours of employment following orientation. Training must cover:

(b) Staff training.

(1) (No change.)

(B) emergency and evacuation procedures specific to the dementia population; [ ~~and~~ ]

(D) behavior management, including prevention of aggressive behavior and de- escalation techniques, or fall prevention, or alternatives to restraints.

(3) Direct care staff must annually complete 12 hours of in-service [ ~~inservice~~ ] education regarding Alzheimer's disease. One hour of annual training must address behavior management, including prevention of aggressive behavior and de-escalation techniques, or fall prevention, or alternatives to restraints. Subject matter must address the unique needs of the facility. Additional suggested [ ~~Suggested~~ ] topics include:

(A) - (I) (No change.)

(e) Assessment. The facility must make a comprehensive assessment of each resident within 14 days of admission and annually. The assessment must include the items listed in §92.41(c)(1)(A)-(T) of this chapter (relating to Standards for Type A, Type B, and Type E Assisted Living Facilities). [ ~~at least the following information:~~ ]

~~[(1) medical conditions and medical history;]~~

~~[(2) physical and mental functional status;]~~

~~[(3) social history, including, but not limited to, the resident's customary routines, behaviors, preferences, and needs;]~~

~~[(4) nutritional status, including weight, and nutritional requirements;]~~

~~[(5) mental and psychosocial status; and]~~

~~[(6) activities potential.]~~

(f) Service plan. Facility staff, with input from the family, if available, must develop an individualized service plan for each resident, based upon the resident assessment, within 14 days of admission. The service plan must address the individual needs, preferences, and strengths of the resident. The service plan must be designed to help the resident maintain the highest possible level of physical, cognitive, and social functioning. The service plan must be updated annually and upon a significant change in condition, based upon an assessment of the resident.

(g) (No change.)

(h) Physical plant. Alzheimer's units, if segregated from other parts of the Type B [ ~~"B"~~ ] facility with approved security devices, must meet the following requirements within the Alzheimer's unit : [ . ]

(1) Resident living area(s) must be in compliance with §92.62(m)(3) [ ~~§92.62(l)(3)~~ ] of this chapter [ ~~title~~ ] (relating to General Requirements).

(2) Resident dining area(s) must be in compliance with §92.62(m)(4) [ ~~§92.62(l)(4)~~ ] of this chapter [ ~~title (relating to General Requirements)~~ ].

(3) Resident toilet and bathing facilities must be in compliance with §92.62(m)(2) [ ~~§92.62(l)(2)~~ ] of this chapter [ ~~title (relating to General Requirements)~~ ].

(4) - (7) (No change.)

(8) Locking devices may be used on the control doors provided the following criteria are met : [ . ]

(B) The locking device must be electronic and must be released when any one of the following occurs:

(i) - (iii) (No change.)

(9) Locking devices may be used on the exit doors provided:

(B) the following criteria are met:

(i) - (ii) (No change.)

(iii) The device must release when any one of the following occurs:

(I) - (III) (No change.)

(iv) - (vi) (No change.)

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

Filed with the Office of the Secretary of State on January 10, 2003.

TRD-200300111

Earliest possible date of adoption: February 23, 2003

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

Subchapter D. FACILITY CONSTRUCTION

40 TAC §§92.61, 92.62, 92.64

The amendments are proposed under the Health and Safety Code, Chapter 247, which authorizes DHS to license and regulate assisted living facilities.

The amendments implement the Health and Safety Code, §§247.001-247.068.

§92.61.Introduction and Application.

(b) Applicability of requirements for construction and life safety.

(4) Buildings and structures must conform to the 1988 edition [ , ] of NFPA 101, as published by the National Fire Protection Association, Inc., Batterymarch Park, Quincy, Massachusetts 02269, as follows. DHS has the option, for new construction only, of accepting compliance with later editions of the code, in their entirety, when required by local building authorities.

(A) All Type A facilities and small Type B [ ~~small~~ ] facilities must conform to Chapter 21.

(B) - (D) (No change.)

(5) - (8) (No change.)

§92.62.General Requirements.

(a) - (l) (No change.)

(m) Resident accommodations.

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

(6) Kitchen.

(B) Kitchens (main/dietary) for facilities serving 17 or more non-employees per meal [ , ] on a routine basis [ , ] must be as follows : [ . ]

(i) Kitchens are [ ~~will be~~ ] evaluated on the basis of their performance in the sanitary and efficient preparation and serving of meals to residents and compliance with provisions covering dietary service in §92.41(m)(18) [ ~~§92.41(h)(18)~~ ] of this chapter [ ~~title~~ ] (relating to Standards for Type A , [ ~~and~~ ] Type B , and Type E Assisted Living Facilities).

(I) - (II) (No change.)

(ii) - (xiv) (No change.)

(7) (No change.)

§92.64.Plans, Approvals, and Construction Procedures.

Texas Department of Human Services (DHS) reviews [ ~~will review~~ ] plans for new buildings, additions, conversion of buildings not licensed by DHS, or remodeling of existing licensed facilities. DHS informs [ ~~will, within 30 days, inform~~ ] the applicant of the results of the review within 30 days . If the plans comply with DHS's architectural requirements, DHS may not subsequently change the architectural requirement applicable to the project unless the change is required by federal law or the applicant fails to complete the project within a reasonable time.

(4) Initial survey of completed construction.

(B) After DHS surveys the completed construction [ ~~has been surveyed by DHS~~ ] and finds it [ ~~found~~ ] acceptable, DHS forwards this information [ ~~will be forwarded~~ ] to the [ ~~DHS~~ ] Facility Enrollment [ ~~Licensing~~ ] Section as part of the information needed to issue a license to the facility. In the case of additions or remodeling of existing facilities, a revision or modification to an existing license may be necessary. Note that the building, including basic furnishings and operational needs, grades, drives, and parking must [ ~~essentially~~ ] be essentially 100% complete at the time of this initial visit for occupancy approval and licensing. A facility may accept up to three residents between the time it receives initial approval from DHS and the time the license is issued unless a provisional license has been granted.

(5) (No change.)

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

Filed with the Office of the Secretary of State on January 10, 2003.

TRD-200300112

Earliest possible date of adoption: February 23, 2003

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

Subchapter E. INSPECTIONS, SURVEYS, AND VISITS

40 TAC §92.82

The amendment is proposed under the Health and Safety Code, Chapter 247, which authorizes DHS to license and regulate assisted living facilities.

The amendment implements the Health and Safety Code, §§247.001-247.068.

§92.82.Determinations and Actions Pursuant to Inspections.

(a) - (e) (No change.)

(f) The facility must submit an acceptable plan of correction to the regional director not later than 10 calendar days after receiving notice that the final exit conference has been completed. An acceptable plan of correction must address the following areas:

(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) the measures that will be put into place or systemic changes made to ensure the violation(s) will not recur;

(4) how the facility will monitor its corrective actions to ensure that the violation(s) are being corrected and will not recur; and

(5) dates when corrective action will be completed.

(g) - (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 January 10, 2003.

TRD-200300113

Earliest possible date of adoption: February 23, 2003

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

Subchapter H. ENFORCEMENT

40 TAC §§92.151 - 92.158

The repeals are proposed under the Health and Safety Code, Chapter 247, which authorizes DHS to license and regulate assisted living facilities.

The repeals implement the Health and Safety Code, §§247.001-247.068.

§92.151.Enforcement Generally.

§92.152.License Suspension.

§92.153.Revocation.

§92.154.Referrals.

§92.155.Emergency License Suspension and Closing Order.

§92.156.Referral to the Attorney General.

§92.157.Involuntary Appointment of a Trustee.

§92.158.Appointment of a Trustee by Agreement.

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

Filed with the Office of the Secretary of State on January 10, 2003.

TRD-200300114

Earliest possible date of adoption: February 23, 2003

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

Subchapter H. ENFORCEMENT

1. GENERAL INFORMATION

40 TAC §92.151, §92.152

The new sections are proposed under the Health and Safety Code, Chapter 247, which authorizes DHS to license and regulate assisted living facilities.

The new sections implement the Health and Safety Code, §§247.001-247.068.

§92.151.When may DHS take an enforcement action?

DHS may take enforcement action when a facility is in violation of:

(1) the sections of this chapter;

(2) the Health and Safety Code, Chapter 247;

(3) an order adopted under Chapter 247; or

(4) a license issued under Chapter 247.

§92.152.What enforcement actions may DHS take?

DHS may:

(1) suspend a license;

(2) order immediate closing of all or part of the facility;

(3) revoke a license;

(4) refer the violation to the Office of the Attorney General for involuntary appointment of a trustee, injunction, or for the assessment of civil penalties; or

(5) assess administrative penalties.

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

Filed with the Office of the Secretary of State on January 10, 2003.

TRD-200300115

Earliest possible date of adoption: February 23, 2003

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

2. ACTIONS AGAINST A LICENSE: SUSPENSION

40 TAC §§92.201 - 92.220

The new sections are proposed under the Health and Safety Code, Chapter 247, which authorizes DHS to license and regulate assisted living facilities.

The new sections implement the Health and Safety Code, §§247.001-247.068.

§92.201.When may DHS suspend a facility's license?

DHS may suspend a facility's license when the applicant, license holder, or a controlling person violates:

(1) the Health and Safety Code, Chapter 247; a section, standard or order adopted under Chapter 247; or a license issued under Chapter 247 in a repeated or substantial manner; or

(2) §92.551(2)-(5) of this chapter (relating to When is an administrative penalty assessed?).

§92.202.Does DHS provide notice of a license suspension and the opportunity for a hearing to the applicant, license holder, or a controlling person?

§92.203.May DHS suspend a license at the same time another enforcement action is occurring?

§92.204.How does DHS notify a license holder of a proposed suspension?

DHS notifies a license holder by certified mail.

§92.205.What information does DHS provide the license holder concerning a proposed suspension?

DHS provides the license holder with the facts or conduct alleged to warrant the suspension.

§92.206.Does the license holder have an opportunity to show compliance with all requirements for keeping the license before DHS begins proceedings to suspend a license?

§92.207.How does a license holder request an opportunity to show compliance?

A license holder must send a written request for an opportunity to show compliance to the Director of Long Term Care-Regulatory.

§92.208.How much time does a license holder have to request an opportunity to show compliance?

A request for an opportunity to show compliance must be postmarked within 10 calendar days of the date of DHS's notice and must be received in the Director of Long Term Care-Regulatory's office within 10 calendar days of the postmark.

§92.209.What must the request for an opportunity to show compliance contain?

The request must contain specific documentation showing how the facts or conduct that support the proposed suspension are incorrect.

§92.210.How does DHS conduct the opportunity to show compliance?

DHS's review is limited to documentation submitted by the license holder and information used by DHS as the basis for its proposed action. The review is not conducted as an adversary hearing.

§92.211.Does DHS give the license holder a written affirmation or reversal of the proposed action?

§92.212.How does DHS notify a license holder of its final decision to suspend a license?

DHS notifies the facility by certified mail.

§92.213.May the facility request a formal hearing?

§92.214.How long does a license holder have to request a formal hearing?

The license holder has 15 calendar days from receipt of the certified mail notice to request a hearing.

§92.215.If a license holder does not appeal, when does the suspension take effect?

The suspension takes effect after the deadline for an appeal passes.

§92.216.If a license holder appeals, when does the suspension take effect?

The status of the license remains in effect until after the appeal is complete.

§92.217.May a facility operate during a suspension?

A facility may continue to operate as long as the suspension is under appeal.

§92.218.How long is the suspension?

The suspension remains in effect until DHS determines that the reason for the suspension no longer exists, but no longer than the license expiration date.

§92.219.How does DHS decide to remove the suspension?

DHS conducts an on-site inspection.

§92.220.Must the license be returned to DHS during a license suspension?

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

Filed with the Office of the Secretary of State on January 10, 2003.

TRD-200300116

Earliest possible date of adoption: February 23, 2003

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

3. ACTIONS AGAINST A LICENSE: REVOCATION

40 TAC §§92.251 - 92.267

The new sections are proposed under the Health and Safety Code, Chapter 247, which authorizes DHS to license and regulate assisted living facilities.

The new sections implement the Health and Safety Code, §§247.001-247.068.

§92.251.When may DHS revoke a license?

DHS may revoke a license when the applicant, license holder, or a controlling person:

(1) violates section §92.551(2)-(5) of this chapter (relating to When is an administrative penalty assessed?);

(2) violates the Health and Safety Code, Chapter 247; a section, standard or order adopted under Chapter 247; or a license issued under Chapter 247 in a repeated or substantial manner;

(3) submits false statements on a license application;

(4) submits false statements on license application attachments;

(5) submits misleading statements on a license application;

(6) submits misleading statements on license application attachments;

(7) uses subterfuge or other evasive means to obtain a license;

(8) conceals a material fact on a license application that would have been the basis for denying a license under §92.17 of this chapter (relating to Criteria for Denying a License or Renewal of a License);

(9) fails to disclose information required in §92.12 of this chapter (relating to Applicant Disclosure Requirements) that would have been the basis to deny a license under §92.17 of this chapter; or

(10) violates the Health and Safety Code, §247.021.

§92.252.Does DHS provide notice of a license revocation and opportunity for a hearing to the applicant, license holder, or controlling person?

§92.253.May DHS take more than one enforcement action at a time against a license?

§92.254.How will DHS notify a license holder of a proposed revocation?

DHS will notify a license holder by certified mail.

§92.255.What information does DHS provide the license holder concerning a proposed revocation?

DHS provides the license holder with the facts or conduct alleged to warrant the revocation.

§92.256.Does the license holder have an opportunity to show compliance with all requirements for keeping the license before DHS begins proceedings to revoke a license?

§92.257.How does a license holder request an opportunity to show compliance?

A license holder must send a written request for an opportunity to show compliance to the Director of Long Term Care-Regulatory.

§92.258.How much time does a license holder have to request an opportunity to show compliance?

§92.259.What must the request for the opportunity to show compliance contain?

The request must contain specific documentation showing how the facts or conduct that support the proposed revocation are incorrect.

§92.260.How does DHS conduct the opportunity to show compliance?

DHS's review is limited to documentation submitted by the license holder and information used by DHS as the basis for its proposed action. The review is not conducted as an adversary hearing.

§92.261.Does DHS give the license holder a written affirmation or reversal of the proposed action?

§92.262.Does the license holder have an opportunity for a formal hearing?

§92.263.How long does a license holder have to request a formal hearing?

The license holder has 15 calendar days from receipt of the certified mail notice to request a hearing.

§92.264.When does the revocation take effect if the license holder does not appeal?

The revocation takes effect after the deadline for an appeal passes.

§92.265.When does the revocation take effect if the license holder appeals the revocation?

The status of the license remains in effect until after the appeal is complete.

§92.266.May a facility operate during a revocation?

A facility may continue to operate, as long as the revocation is under appeal.

§92.267.What happens to a license if it is revoked?

If revoked, the license must be returned to DHS.

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

Filed with the Office of the Secretary of State on January 10, 2003.

TRD-200300117

Earliest possible date of adoption: February 23, 2003

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

4. ACTIONS AGAINST A LICENSE: TEMPORARY RESTRAINING ORDERS AND INJUNCTIONS

40 TAC §92.301, §92.302

The new sections are proposed under the Health and Safety Code, Chapter 247, which authorizes DHS to license and regulate assisted living facilities.

The new sections implement the Health and Safety Code, §§247.001-247.068.

§92.301.Why would DHS refer a facility to the Office of the Attorney General or local prosecuting authority for a temporary restraining order or an injunction?

DHS refers a facility to the Office of the Attorney General or local prosecuting authority for a temporary restraining order or an injunction when:

(1) a violation creates an immediate threat or threat to the health and safety of residents;

(2) a facility is operating without a license; or

(3) DHS is denied entry to a facility that is alleged to be operating without a license.

§92.302.To whom does DHS refer a facility that is operating without a license?

DHS refers a facility that is operating without a license to the:

(1) district attorney;

(2) county attorney;

(3) city attorney; or

(4) Attorney General.

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

Filed with the Office of the Secretary of State on January 10, 2003.

TRD-200300118

Earliest possible date of adoption: February 23, 2003

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

5. ACTIONS AGAINST A LICENSE: EMERGENCY LICENSE SUSPENSION AND CLOSING ORDER

40 TAC §§92.351 - 92.374

The new sections are proposed under the Health and Safety Code, Chapter 247, which authorizes DHS to license and regulate assisted living facilities.

The new sections implement the Health and Safety Code, §§247.001-247.068.

§92.351.When may DHS suspend a license or order an immediate closing of all or part of a facility?

DHS may suspend a license or order an immediate closing of all or part of a facility when:

(1) the facility is operating in violation of the licensure rules; and

(2) the violation creates an immediate threat to the health and safety of a resident.

§92.352.How does DHS notify a facility of a license suspension or immediate closing of all or part of a facility?

A notice is hand-delivered to a facility staff member.

§92.353.When does an order suspending a license or closing all or part of a facility go into effect?

The order goes into effect immediately upon receipt of the hand-delivered written notice or on a later date specified in the order.

§92.354.How long is an order suspending a license or closing all or part of a facility valid?

An order is valid for 10 calendar days after the effective date of the order.

§92.355.May a license holder request a hearing?

§92.356.Where can a license holder find information about administrative hearings?

Information about administrative hearings is located in Chapter 79, Subchapter Q of this title (relating to Formal Appeals).

§92.357.Does a request for an administrative hearing suspend the effectiveness of the order?

No.

§92.358.Does anything happen to a resident's rights or freedom of choice during an emergency relocation?

No.

§92.359.Who does DHS notify if all or part of a facility is closed?

If all or part of a facility is closed, DHS notifies:

(1) the local health department director;

(2) the city or county health authority; and

(3) representatives of the appropriate state agencies.

§92.360.Who must a facility notify if all or part of the facility is closed?

A facility must notify each resident's:

(1) guardian or responsible party; and

(2) attending physician.

§92.361.Who decides where to relocate a resident?

The resident, the resident's guardian, or the resident's responsible person may designate a preference for a specific facility or for other arrangements.

§92.362.Who arranges the relocation?

DHS arranges to relocate residents to other facilities in the area.

§92.363.Is a resident's preference considered?

§92.364.What requirements must the facility a resident chooses for relocation meet?

The following apply when a facility is chosen for relocation:

(1) The facility must be in good standing with DHS.

(2) If the facility is certified under Titles XVIII and XIX of the Social Security Act, it must be in good standing under its contract.

(3) The facility must be able to meet the needs of the resident.

§92.365.Is a receiving facility allowed to temporarily exceed its licensed capacity?

§92.366.Under what conditions is a receiving facility allowed to temporarily exceed its licensed capacity?

DHS may grant a waiver to a receiving facility to temporarily exceed its licensed capacity to prevent substantial transportation of a resident.

§92.367.What requirements must a facility meet to obtain a temporary waiver?

To be eligible for a temporary waiver to exceed its licensed capacity, a facility must:

(1) not compromise the health and safety of residents; and

(2) meet the increased demands for direct care personnel and dietary services.

§92.368.How long can a facility have a temporary waiver?

A facility may have a temporary waiver until residents can be transferred to a permanent location.

§92.369.Does DHS monitor a facility with a temporary waiver?

§92.370.What records, reports, and supplies are sent to the receiving facility for transferred residents?

The following reports, records, and supplies must be sent to the receiving institution for each transferred resident:

(1) a copy of the current physician's orders for:

(A) medication;

(B) treatment;

(D) special services required;

(2) personal information, such as name and address of next of kin, guardian, or responsible party;

(3) attending physician;

(4) Medicare and Medicaid identification number, if applicable;

(5) social security number;

(6) other identification information as deemed necessary and available;

(7) a copy of the resident's current comprehensive assessment and service plan;

(8) all medications dispensed in the resident's name that have current physician's orders. Medications must be inventoried and transferred with the resident. Medications past expiration date or discontinued by physician order must be inventoried for disposition in accordance with state law. Only current prescription medications taken on a regular or as-needed basis may be transferred with the resident;

(9) the resident's personal belongings, clothing, and toilet articles. The closing facility must make an inventory of personal property and valuables; and

(10) resident trust fund accounts maintained by the closing facility. All items must be properly inventoried and receipts obtained for audit purposes by the appropriate state agency.

§92.371.May a resident return to the closed facility if it reopens within 90 calendar days?

§92.372.Do the relocated residents have any special admission rights at the closed facility?

If the closed facility is allowed to reopen within 90 calendar days, the relocated residents have the first right to return to the facility.

§92.373.What options does a relocated resident have?

Relocated residents may choose to:

(1) return to the reopened facility;

(2) stay in the receiving facility, if the facility is not exceeding its licensed capacity; or

(3) choose other accommodations.

§92.374.Are relocated residents who return to the facility considered new admissions?

Yes. Any relocated resident who returns to the facility must be treated as a new admission. All procedures regarding new admissions apply.

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

Filed with the Office of the Secretary of State on January 10, 2003.

TRD-200300119

Earliest possible date of adoption: February 23, 2003

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

6. ACTIONS AGAINST A LICENSE: CIVIL PENALTIES

40 TAC §92.401, §92.402

The new sections are proposed under the Health and Safety Code, Chapter 247, which authorizes DHS to license and regulate assisted living facilities.

The new sections implement the Health and Safety Code, §§247.001-247.068.

§92.401.When may DHS refer a facility to the Office of the Attorney General for assessment of civil penalties?

DHS may refer a facility for a violation that threatens the health and safety of a resident.

§92.402.What is the amount of the civil penalty that can be assessed for operating without a license?

A civil penalty of $1,000 to $10,000 per day may be assessed for operating without a license.

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

Filed with the Office of the Secretary of State on January 10, 2003.

TRD-200300120

Earliest possible date of adoption: February 23, 2003

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

7. TRUSTEES: INVOLUNTARY APPOINTMENT OF A TRUSTEE

40 TAC §§92.451 - 92.456

The new sections are proposed under the Health and Safety Code, Chapter 247, which authorizes DHS to license and regulate assisted living facilities.

The new sections implement the Health and Safety Code, §§247.001-247.068.

§92.451.When may DHS petition a court for the involuntary appointment of a trustee to operate a facility?

DHS may petition a court for the involuntary appointment of a trustee to operate a facility when one or more of the following conditions exist:

(1) the facility is operating without a license;

(2) the facility's license has been suspended or revoked;

(3) an imminent threat to the health and safety of the residents exists, and license suspension or revocation procedures are pending against the facility;

(4) an emergency exists that presents an immediate threat to the health and safety of the residents; or

(5) the facility is closing, whether voluntarily or through an emergency closure order, and arrangements for relocation of the residents to other licensed institutions have not been made before closure.

§92.452.When may DHS disburse emergency assistance funds?

DHS may disburse emergency assistance funds when a court order is given.

§92.453.Must a facility reimburse DHS for emergency assistance funds?

§92.454.When is reimbursement for emergency assistance funds due to DHS?

Reimbursement is due not later than one year after the date the trustee received the funds.

§92.455.Who is responsible for reimbursement?

The owner of the facility at the time the trustee was appointed is responsible for reimbursement.

§92.456.What happens if a facility does not reimburse DHS in one year?

A license holder is referred to the Office of the Attorney General. DHS also may decide the facility is not eligible for a Medicaid provider contract.

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

Filed with the Office of the Secretary of State on January 10, 2003.

TRD-200300121

Earliest possible date of adoption: February 23, 2003

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

8. TRUSTEES: APPOINTMENT OF A TRUSTEE BY AGREEMENT

40 TAC §§92.501 - 92.506

The new sections are proposed under the Health and Safety Code, Chapter 247, which authorizes DHS to license and regulate assisted living facilities.

The new sections implement the Health and Safety Code, §§247.001-247.068.

§92.501.May a facility request the appointment of a trustee to assume operation of a facility?

§92.502.Who may make the request?

A person holding a controlling interest in a facility may request that DHS assume the operation of the facility through the appointment of a trustee.

§92.503.What are the requirements for a trustee agreement?

An agreement must:

(1) specify all terms and conditions of the trustee's appointment and authority; and

(2) preserve all legal rights of the residents.

§92.504.When does an agreement for a trustee terminate?

An agreement for a trustee terminates at a time specified in the agreement or upon receipt of notice of intent to terminate sent by DHS or by the person holding a controlling interest in the facility.

§92.505.What happens if the controlling person wants to terminate the agreement, but DHS determines termination of the agreement is not in the best interest of the residents?

DHS petitions a court for an involuntary appointment of a trustee under the terms of §92.451 of this chapter (relating to When may DHS petition a court for the involuntary appointment of a trustee to operate a facility?).

§92.506.When DHS appoints a trustee, is the facility always required to pay assessed civil money penalties?

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

Filed with the Office of the Secretary of State on January 10, 2003.

TRD-200300122

Earliest possible date of adoption: February 23, 2003

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

9. ADMINISTRATIVE PENALTIES

40 TAC §§92.551 - 92.595

The new sections are proposed under the Health and Safety Code, Chapter 247, which authorizes DHS to license and regulate assisted living facilities.

The new sections implement the Health and Safety Code, §§247.001-247.068.

§92.551.When is an administrative penalty assessed?

An administrative penalty is assessed when a license holder:

(1) violates:

(A) the Health and Safety Code, Chapter 247;

(B) a section, standard or order adopted under Chapter 247; or

(2) makes a false statement of a material fact that the person knows or should know is false on:

(A) an application for a license;

(B) an attachment to the application; or

(3) refuses to let a DHS employee inspect:

(A) a book;

(B) a record;

(D) any part of the assisted living facility;

(4) willfully interferes with:

(A) the work of a DHS representative;

(B) the enforcement of this chapter; or

(C) a DHS representative preserving evidence of a violation of Chapter 247; a section of Chapter 247; a standard or order adopted under Chapter 247; or a term of a license issued under Chapter 247; or

(5) fails to pay an administrative penalty not later than the 30th calendar day after the penalty assessment becomes final.

§92.552.Who is an administrative penalty assessed against?

An administrative penalty is assessed against the license holder.

§92.553.May DHS assess an administrative penalty against a resident?

No, unless the resident also is an employee or controlling person of the facility.

§92.554.What is the time frame for paying an administrative penalty?

An administrative penalty must be paid not later than the 30th calendar day after the penalty assessment becomes final.

§92.555.What happens when a license holder fails to timely pay an administrative penalty?

DHS may assess another administrative penalty when a license holder fails to pay an administrative penalty not later than the 30th calendar day after the penalty assessment becomes final.

§92.556.Is an administrative penalty assessed under §92.555 of this chapter (relating to What happens when a license holder fails to timely pay an administrative penalty?)?

Yes, in addition to the penalty that previously was assessed and not paid in a timely manner.

§92.557.How does DHS determine the amount of the administrative penalty?

DHS considers the following in determining the amount of the administrative penalty:

(1) gradations of penalties;

(2) seriousness of the violation, which includes:

(A) nature;

(B) circumstances;

(D) gravity of the situation; and

(E) hazard or potential hazard created by the situation to the health or safety of the public;

(3) history of previous violations;

(4) deterrence of future violations;

(5) the license holder's efforts to correct the violations;

(6) size of the facility;

(7) size of the business entity that owns the facility; and

(8) any other matter that justice may require.

§92.558.Can DHS potentially impose an administrative penalty for each violation?