TITLE 25.HEALTH SERVICES

Part 1. TEXAS DEPARTMENT OF HEALTH

Chapter 134. PRIVATE PSYCHIATRIC HOSPITALS AND CRISIS STABILIZATION UNITS

The Texas Department of Health (department) proposes amendments to §§134.2, 134.22, 134.23, 134.26, 134.81 and 134.83, and new §134.47, concerning private psychiatric hospitals and crisis stabilization units.

These amendments and new section are required as a result of revisions to the Health and Safety Code, Chapter 577, pursuant to House Bill (HB) 1614, HB 2292, and Senate Bill 162, 78th Legislature, 2003. Amendments to §134.2 include additional definitions for action plan, adverse event, medical error, reportable event, and root cause analysis. Amendments to §§134.22 and 134.23 implement the process for converting to two-year licensing renewal cycles beginning January 1, 2005, and adds a requirement to submit to the department an annual events report, and a best practices report prior to the expiration of the license. Amendments to §134.26 increase licensing fees in order to implement the full cost recovery requirement for licensing programs. New §134.47 includes requirements related to development and implementation of a patient safety program, and establishes annual reporting requirements related to specific events occurring at the facility, and submission of best practice reports. The amendment to §134.81 clarifies limitations on the department's access related to a root analysis and action plan. Amendments to §134.83 reflect the addition of probation to the list of enforcement actions that can be taken against a facility.

Lisa Subia, Associateship for Consumer Health Protection, has determined that for each year of the first five years the sections are in effect, there will be fiscal implications as a result of administering the sections. The effect on state government will be related to the proposed increase in licensing fees to provide for cost recovery of expenses and the conversion to the two-year renewal cycle. Assuming an effective date of June 1, 2004, for the revised fee schedule, the increase in revenue for fiscal year 2004 will be approximately $47,550. In fiscal year 2005, there will be an increase in revenue of $190,200 related to the fee increase. Since fiscal year 2005 will be the first year in a two-year phase-in process for the two-year renewal cycle, there will be an additional temporary increase in revenue of approximately $95,100, bringing the total estimated revenue to $285,300. This estimate is based on the fact that during fiscal year 2005, one-half of the facilities will be renewing their licenses to be effective for two years, and will pay a corresponding fee to cover the two-year license period. The remainder of the facilities will be renewing their licenses for a one-year period in fiscal year 2005, which will result in the temporary additional revenue. This second group of facilities will renew their licenses for the two-year period in fiscal year 2006, so the anticipated additional revenue in fiscal years 2006 through 2009 will be approximately $190,200 per year. There will be no effect on local government unless the local government operates a private psychiatric hospital or crisis stabilization unit. In that case, the local government would be subject to the proposed new fees and other requirements.

Ms. Subia has also determined that for each year of the first five years the sections are in effect, the public benefit will be to improve patient safety in the regulated facilities, and to provide the public with basic information about the occurrence of certain medical errors in these facilities. There will be economic costs for micro-businesses, small businesses and persons who are required to comply with the new sections. These costs are related to the increase in licensing fees and conversion to two-year renewal cycles. All regulated facilities will be subject to the fee increase, with the total increase ranging from $2,000 per year for the smallest facility to $13,515 per year for the largest facility. Once conversion to the two-year renewal cycle begins, facilities will be required to pay the fee for the two-year period. This increase for each facility will range from $4,000 per two-year licensing period for the smallest facility to $27,030 per two-year licensing period for the largest facility. There will be no anticipated impact on local employment.

Comments on the proposal may be submitted to Cindy Bednar, Director of Hospital Programs, Health Facility Licensing and Compliance Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas, 78756-3182, (512) 834-6648. Comments will be accepted for 30 days following the publication of this proposal in the Texas Register .

Subchapter A. GENERAL PROVISIONS

25 TAC §134.2

The amendment is proposed under Health and Safety Code, Chapter 577, concerning private mental hospitals and other mental health facilities; and Health and Safety Code, §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health.

The amendment affects the Health and Safety Code, Chapters 577 and 12.

§134.2.Definitions.

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

(1) Action plan--A written document that includes specific measures to correct identified problems or areas of concern; identifies strategies for implementing system improvements; and includes outcome measures to indicate the effectiveness of system improvements in reducing, controlling or eliminating identified problem areas.

(2) Adverse event--Untoward incident, therapeutic misadventure or other adverse occurrence directly associated with care or services provided within the hospital system, which may result from acts of commission or omission.

(3) [ (1) ] Applicant--The person legally responsible for the operation of the facility, whether by lease or ownership, who seeks a license from the department.

(4) [ (2) ] Board--The Texas Board of Health.

(5) [ (3) ] Community center--A center established under Health and Safety Code, Chapter 534, Subchapter A.

(6) [ (4) ] Contaminated linen--Linen which has been soiled with blood or other potentially infectious materials or may contain sharps. Other potentially infectious materials means:

(A) the following human body fluids: semen, vaginal secretions, cerebrospinal fluid, synovial fluid, pleural fluid, pericardial fluid, peritoneal fluid, amniotic fluid, saliva in dental procedures, any body fluid that is visibly contaminated with blood, and all body fluids in situations where it is difficult or impossible to differentiate between body fluids;

(B) any unfixed tissue or organ (other than intact skin) from a human (living or dead); and

(C) Human Immunodeficiency Virus (HIV)-containing cell or tissue cultures, organ cultures, and HIV or Hepatitis B Virus (HBV) containing culture medium or other solutions; and blood, organs, or other tissues from experimental animals infected with HIV or HBV.

(7) [ (5) ] Crisis stabilization unit (CSU)--A mental health facility operated by a community center or other entity designated by the Texas Department of Mental Health and Mental Retardation in accordance with Texas Health and Safety Code, §534.054, that provides treatment to individuals who are the subject of a protective custody order issued in accordance with Texas Health and Safety Code, §574.022.

(8) [ (6) ] Dentist--A person licensed to practice dentistry by the State Board of Dental Examiners. This includes a doctor of dental surgery or a doctor of dental medicine.

(9) [ (7) ] Department--The Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3199.

(10) [ (8) ] Dietitian--A person who is currently licensed by the Texas State Board of Examiners of Dietitians as a licensed dietitian or provisional licensed dietitian, or who is a registered dietitian with the American Dietetic Association.

(11) [ (9) ] Director--The director of the Health Facility Licensing and Compliance Division, Texas Department of Health.

(12) [ (10) ] Division--The Health Facility Licensing and Compliance Division, Texas Department of Health.

(13) [ (11) ] Emergency medical condition--A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances or symptoms of substance abuse) such that the absence of immediate medical attention could reasonably be expected to result in one or all of the following:

(A) placing the health of the individual (or with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy;

(B) serious impairment to bodily functions;

(C) serious dysfunction of any bodily organ or part; or

(D) with respect to a pregnant woman who is having contractions:

(i) that there is inadequate time to effect a safe transfer to another hospital before delivery; or

(ii) that transfer may pose a threat to the health or safety of the woman or the unborn child.

(14) [ (12) ] Facility--A private psychiatric hospital or a crisis stabilization unit.

(15) [ (13) ] Facility administration--Administrative body of a facility headed by an individual who has the authority to represent the facility and who is responsible for the operation of the facility according to the policies and procedures of the facility governing body.

(16) [ (14) ] Fast-track projects--A construction project in which it is necessary to begin initial phases of construction before later phases of the construction documents are fully completed in order to establish other design conditions or because of time constraints such as mandated deadlines.

(17) [ (15) ] Governing body--The governing authority of a facility which is responsible for the facility's organization, management, control, and operation, including appointment of the medical staff; includes the owner or partners for facilities owned or operated by an individual or partners.

(18) [ (16) ] Governmental unit--A political subdivision of the state, including a hospital district, county, or municipality, and any department, division, board, or other agency of a political subdivision.

(19) [ (17) ] Hospital--A private psychiatric hospital.

(20) [ (18) ] Inpatient services--Services provided to a patient admitted to a hospital for an intended length of stay of 24 hours or greater.

(21) [ (19) ] Learning disability--When a severe discrepancy exists when the individual's assessed intellectual ability is above the mentally retarded range, but where the individual's assessed educational achievement in areas specified is more than one standard deviation below the individual's intellectual ability.

(22) [ (20) ] Legally reproduced form--A medical record retained in hard copy, microform (microfilm or microfiche), or other electronic medium.

(23) [ (21) ] Licensed vocational nurse--An individual who is currently licensed as a licensed vocational nurse (LVN) by the Board of Vocational Nurse Examiners in accordance with Texas Occupations Code, Chapter 302.

(24) [ (22) ] Licensee--A person or governmental unit who has been granted a private psychiatric hospital license or crisis stabilization unit license.

(25) Medical error--An adverse event that was preventable with the current state of medical knowledge.

(26) [ (23) ] Medical staff--Licensed physicians and other licensed practitioners permitted by law and by the facility to provide medical care independently in the facility.

(27) [ (24) ] Mental health services--All services concerned with research, prevention, and detection of mental disorders and disabilities and all services necessary to treat, care for, supervise, and rehabilitate persons who have a mental illness.

(28) [ (25) ] Mental illness--An illness, disease, or condition (other than a sole diagnosis of epilepsy, senility, substance use disorder, mental retardation, autism, or pervasive developmental disorder) that:

(A) substantially impairs a person's thought, perception of reality, emotional process, or judgment; or

(B) grossly impairs an individual's behavior as demonstrated by recent disturbed behavior.

(29) [ (26) ] Mental retardation--Significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period.

(30) [ (27) ] Minor--A person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes.

(31) [ (28) ] Mobile unit--Any pre-manufactured structure, trailer, or self-propelled unit equipped with a chassis on wheels and intended to provide shared medical services to the community on a temporary basis. Some of these units are equipped with expanding walls, and designed to be moved on a daily basis.

(32) [ (29) ] Oral surgeon--A person licensed by the State Board of Dental Examiners in the specialty of dentistry which includes the diagnosis, surgical and adjunctive treatment of diseases, injuries, and defects involving both the functional and esthetic aspects of the hard and soft tissues of the oral and maxillofacial regions.

(33) [ (30) ] Outpatient services--Services provided to patients whose medical needs can be met in less than 24 hours and are provided within the facility.

(34) [ (31) ] Owner--One of the following persons which will hold or does hold a license issued under Health and Safety Code, Chapter 577, in the person's name or the person's assumed name:

(A) a corporation;

(B) a governmental unit;

(C) a limited liability company;

(D) an individual;

(E) a partnership if a partnership name is stated in a written partnership agreement or an assumed name certificate;

(F) all partners in a partnership if a partnership name is not stated in a written partnership agreement or an assumed name certificate; or

(G) all co-owners under any other business arrangement.

(35) [ (32) ] Patient--An individual who is receiving mental health services under this chapter.

(36) [ (33) ] Person--An individual, firm, partnership, corporation, association, joint stock company, joint venture, or local authority, and includes a receiver, trustee, assignee, or other similar representative of those entities.

(37) [ (34) ] Pharmacist--A person who is licensed to practice pharmacy by the Texas Board of Pharmacy in accordance with Texas Occupations Code, Chapter 558.

(38) [ (35) ] Physician--An individual who is:

(A) licensed as a physician by the Texas State Board of Medical Examiners in accordance with Chapter 155 of the Texas Occupations Code; or

(B) authorized to perform medical acts under an institutional permit at a Texas postgraduate training program approved by the Accreditation Council on Graduate Medical Education, the American Osteopathic Association, or the Texas State Board of Medical Examiners.

(39) [ (36) ] Podiatrist--A podiatrist licensed by the Texas State Board of Podiatry Examiners.

(40) [ (37) ] Political subdivision--A county, municipality, or hospital district in this state but does not include a department, board, or agency of the state that has statewide authority and responsibility.

(41) [ (38) ] Practitioner--A health care professional licensed in the State of Texas, other than a physician.

(42) [ (39) ] Premises--A premises may be any of the following:

(A) a single building where inpatients receive hospital services; or

(B) multiple buildings where inpatients receive hospital services, provided that the following criteria are met:

(i) all inpatient buildings and inpatient services are subject to the control and direction of the governing body of the hospital;

(ii) all inpatient buildings are within a 30-mile radius of the main address of the licensee;

(iii) there is integration of the organized medical staff of the hospital;

(iv) there is a single chief executive officer who reports directly to the governing body and through whom all administrative authority flows and who exercises control and surveillance over all administrative activities of the hospital;

(v) there is a single chief medical officer who reports directly to the governing body and who is responsible for all medical staff activities of the hospital; and

(vi) each building that is geographically separate from other buildings contains at least one nursing unit for inpatients, unless providing only diagnostic or laboratory services, or a combination thereof, in the building for hospital inpatients.

(43) [ (40) ] Private psychiatric hospital--A hospital that provides inpatient mental health services to individuals with a mental illness or with a substance use disorder except that, at all times, a majority of the individuals admitted are individuals with a mental illness. Such services include psychiatric assessment and diagnostic services, physician services, professional nursing services, and monitoring for patient safety provided in a restricted environment.

(44) [ (41) ] Registered nurse--An individual who is licensed as a registered nurse by the Board of Nurse Examiners in accordance with Texas Occupations Code, Chapter 301.

(45) [ (42) ] Relocatable unit--Any structure, not on wheels, built to be relocated at any time and provide medical services. These structures vary in size.

(46) Reportable event--A medical error or adverse event or occurrence which the hospital is required to report to the Department, as set out in §134.47 of this title (relating to Patient Safety Program).

(47) Root cause analysis--An interdisciplinary review process for identifying the basic or contributing causal factors that underlie a variation in performance associated with an adverse event or reportable event. It focuses primarily on systems and processes, includes an analysis of underlying cause and effect, progresses from special causes in clinical processes to common causes in organizational processes, and identifies potential improvements in processes or systems.

(48) [ (43) ] Stabilize--With respect to an emergency medical condition, to provide such medical treatment of the condition necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility, or that the woman has delivered the child and the placenta.

(49) [ (44) ] Transfer--The movement (including the discharge) of an individual outside a facility at the direction of any person employed by (or affiliated or associated, directly or indirectly, with) the facility, but does not include such a movement of an individual who has been declared dead, or leaves the facility without the permission of any such person.

(50) [ (45) ] Transportable unit--Any pre-manufactured structure or trailer, equipped with a chassis on wheels, intended to provide shared medical services to the community on an extended temporary basis. These units are designed to be moved periodically, depending on need.

(51) [ (46) ] Universal precautions--Procedures for disinfection and sterilization of reusable medical devices and the appropriate use of infection control, including hand washing, the use of protective barriers, and the use and disposal of needles and other sharp instruments as those procedures are defined by the Centers for Disease Control (CDC) of the United States Public Health Service. This term includes standard precautions as defined by CDC which are designed to reduce the risk of transmission of blood borne and other pathogens in facilities.

(52) [ (47) ] Violation--Failure to comply with the licensing statute, a rule or standard, special license provision, or an order issued by the commissioner of health or the commissioner's designee, adopted or enforced under the licensing statute. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

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 2, 2004.

TRD-200400003

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 15, 2004

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


Subchapter B. APPLICATION AND ISSUANCE OF A LICENSE

25 TAC §§134.22, 134.23, 134.26

The amendments are proposed under Health and Safety Code, Chapter 577, concerning private mental hospitals and other mental health facilities; and Health and Safety Code, §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health.

The amendments affect the Health and Safety Code, Chapters 577 and 12.

§134.22.Application and Issuance of Initial License.

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

(d) Issuance of license. When it is determined that the facility has complied with subsections (a)-(c) of this section, the department shall issue the license to the applicant.

(1) (No change.)

(2) Expiration date.

(A) For initial licenses issued prior to January 1, 2005. [ If the effective date of the license is the first day of a month, the license expires on the last day of the month preceding the issuance month of the next year. For example, if a license is effective September 1, the license expires on August 31 of the next year and every year thereafter unless a change of ownership occurs. ]

(i) If the effective date of the license is the first day of a month, the license expires on the last day of the 11th month after issuance.

(ii) If the effective date of the license is the second or any subsequent day of a month, the license expires on the last day of the 12th month after issuance.

(B) For initial licenses issued January 1, 2005 or after. [ If the effective date of the license is the second or any subsequent day of a month, the license expires on the last day of the month of the next year. For example, if the license is effective September 2, the license expires on September 30 of the next year and every year thereafter unless a change of ownership occurs. ]

(i) If the effective date of the license is the first day of a month, the license expires on the last day of the 23rd month after issuance.

(ii) If the effective date of the license is the second or any subsequent day of a month, the license expires on the last day of the 24th month after issuance.

(e) - (g) (No change.)

§134.23.Application and Issuance of Renewal License.

(a) (No change.)

(b) Renewal license. The department shall issue a renewal license to a facility which meets the minimum requirements for a license.

(1) The facility shall submit the following to the department prior to the expiration date of the license:

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

(C) the renewal license fee; [ and ]

(D) documentation of accreditation by the Joint Commission on Accreditation of Healthcare Organizations, if applicable ; [ . ]

(E) an annual events report in accordance with §134.47(b)(1) of this title (relating to Patient Safety Program); and

(F) a best practices report in accordance with §134.47(b)(2) of this title.

(2) (No change.)

(3) Renewal licenses issued prior to January 1, 2005, will be valid for 12 months.

(4) Renewal licenses issued January 1, 2005, through December 31, 2005, will be valid for either 12 or 24 months, to be determined by the department prior to the time of license renewal.

(5) Renewal licenses issued January 1, 2006, or after will be valid for 24 months.

(c) (No change.)

§134.26.Fees.

(a) (No change.)

(b) License fees.

(1) The fee for an initial license or a renewal license is $100 [ $15 ] per bed per 12 months based upon the designed bed capacity. The total fee may not be less than $3,000 per 12 months [ $1,000 ]. The designed bed capacity is determined as follows.

(A) - (C) (No change.)

(2) - (3) (No change.)

(c) - (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 2, 2004.

TRD-200400004

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 15, 2004

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


Subchapter C. OPERATIONAL REQUIREMENTS

25 TAC §134.47

The new section is proposed under Health and Safety Code, Chapter 577, concerning private mental hospitals and other mental health facilities; and Health and Safety Code, §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health.

The new section affects the Health and Safety Code, Chapters 577 and 12.

§134.47.Patient Safety Program.

(a) General.

(1) The facility must develop, implement, maintain and enforce an effective, ongoing, organization-wide, data driven Patient Safety Program (PSP).

(A) The governing body must ensure that the PSP reflects the complexity of the facility's organization and services, including those services furnished under contract or arrangement, and focuses on the prevention and reduction of medical errors and adverse events.

(B) The PSP must be in writing, approved by the governing body and made available for review by the department. It must include the following components:

(i) the definition of medical errors, adverse events and reportable events;

(ii) the process for reporting medical errors, adverse events and reportable events;

(iii) a list of events and occurrences which staff are required to report;

(iv) time frames for reporting medical errors, adverse events and reportable events;

(v) consequences for failing to report events in accordance with facility policy;

(vi) the support systems available for staff members who have been involved in a medical error or adverse event;

(vii) mechanisms for preservation and collection of event data;

(viii) the process for conducting root cause analysis;

(ix) the process for communicating action plans; and,

(x) the process for feedback to staff regarding the root cause analysis and action plan.

(C) The PSP program must include education of patients regarding shared responsibility for their own safety.

(D) All clinical and administrative staff must receive patient safety education and training. Training must include all PSP components as set out in subparagraph (B) of this paragraph.

(2) The facility must designate an individual qualified by training or experience to serve as the Patient Safety Program Coordinator (PSPC). The PSCP shall:

(A) coordinate all patient safety activities;

(B) facilitate assessment and appropriate response to reported events;

(C) monitor root cause analysis and resulting action plans; and

(D) serve as liaison among facility departments and committees to ensure facility-wide integration of the PSP.

(3) Within 45 days of becoming aware of a reportable event specified under subsection (b)(1)(A) of this section, the hospital must:

(A) complete a root cause analysis to examine the cause and effect of the event through an impartial process; and

(B) develop an action plan identifying the strategies that the facility intends to employ to reduce the risk of similar events occurring in the future. The action plan must:

(i) designate responsibility for implementation and oversight;

(ii) specify time frames for implementation; and

(iii) include a strategy for measuring the effectiveness of the actions taken.

(C) must make the root cause analysis and action plan available for on-site review by department representatives.

(b) Reporting requirements. The following requirements are effective July 1, 2004.

(1) Annual events report.

(A) On the renewal of the facility's license, or the anniversary of the facility's licensing date, the facility shall submit to the department a report that lists the number of occurrences at the hospital, including any outpatient facility owned or operated by the hospital, of each of the following events occurring during the preceding year:

(i) a medication error resulting in a patient's unanticipated death or major permanent loss of bodily function in circumstances unrelated to the natural course of the illness or underlying condition of the patient;

(ii) the suicide of a patient in a setting in which the patient received care 24 hours a day;

(iii) the sexual assault of a patient during treatment or while the patient was on the premises of the hospital or facility;

(iv) a hemolytic transfusion reaction in a patient resulting from the administration of blood or blood products with major blood group incompatibilities;

(v) a patient death or serious disability associated with the use or function of a device designed for patient care that is used or functions other than as intended.

(B) The hospital is not required to include any information other than the total number of occurrences of each of the events listed under subparagraph (A) of this paragraph.

(2) Best practices report.

(A) On the renewal of the facility's license, or the anniversary of the facility's licensing date, the facility shall submit to the department a minimum of one best practice and safety measure related to a reported event.

(B) The best practice report may be submitted on a form to be prescribed by the department, or the facility may submit a copy of a report submitted to a patient safety organization.

(C) Facilities may voluntarily report additional best practices and safety measures.

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 2, 2004.

TRD-200400005

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 15, 2004

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


Subchapter E. ENFORCEMENT

25 TAC §134.81, §134.83

The amendments are proposed under Health and Safety Code, Chapter 577, concerning private mental hospitals and other mental health facilities; and Health and Safety Code, §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health.

The amendments affect the Health and Safety Code, Chapters 577 and 12.

§134.81.Survey and Investigation Procedures.

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

(d) General.

(1) The department may make any survey, or investigation that it considers necessary. A department representative(s) may enter the premises of a facility at any reasonable time to make a survey or an investigation to ensure compliance with or prevent a violation of HSC, Chapter 577, this chapter, an order or special order of the commissioner, a special license provision, a court order granting injunctive relief, or other enforcement procedures. Ensuring compliance includes permitting photocopying of any records or other information by or on behalf of the department as necessary to determine or verify compliance with the statute or rules adopted under the statute , except that the department may not photocopy, reproduce, remove or dictate from any part of the root cause analysis or action plan required under §134.47 of this title (relating to Patient Safety Program) .

(2) - (3) (No change.)

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

§134.83.Enforcement.

Enforcement is a process by which a sanction is proposed, and if warranted, imposed on an applicant or licensee regulated by the department for failure to comply with statutes, rules and orders applicable to them.

(1) Denial, suspension or revocation of a license. The department has jurisdiction to enforce violations of the Acts or the Rules adopted under this chapter. The department may deny, suspend, or revoke a license for, but not limited to, the following reasons:

(A) - (G) (No change.)

(H) fails to pay administrative penalties in accordance with HSC, Chapter 571; [ or ]

(I) fails to implement plans of corrections to deficiencies cited by the department ; or [ . ]

(J) fails to comply with applicable requirements within a designated probation period.

(2) - (3) (No change.)

(4) Probation. In lieu of suspending or revoking the license, the department may schedule the facility for a probation period of not less than 30 days if the facility is found in repeated non-compliance and the facility's noncompliance does not endanger the health and safety of the public.

(5) [ (4) ] Administrative penalty. The department has jurisdiction to impose an administrative penalty against a person licensed or regulated under this chapter for violations of the HSC, Chapters 577 and 571, this chapter (25 TAC, Chapter 134), or for any reasons outlined in paragraphs (1) through (3) of this subsection. The imposition of an administrative penalty shall be in accordance with the provisions of the HSC, §571.025 and §577.060 .

(6) [ (5) ] Licensure of persons with criminal backgrounds. The department may deny a person a license or suspend or revoke an existing license on the grounds that the person has been convicted of a felony or misdemeanor that directly relates to the duties and responsibilities of the ownership or operation of a facility. The department shall apply the requirements of the Texas Occupations Code, Chapter 53.

(A) The department is entitled to obtain criminal history information maintained by the Texas Department of Public Safety (Government Code, §411.122), the Federal Bureau of Investigation Identification Division (Government Code, §411.087) or any other law enforcement agency to investigate the eligibility of an applicant for an initial or renewal license and to investigate the continued eligibility of a licensee.

(B) In determining whether a criminal conviction directly relates, the department shall consider the provisions of Occupations Code, §§53.022 and 53.023.

(C) The following felonies and misdemeanors directly relate because these criminal offenses indicate an inability or a tendency for the person to be unable to own or operate a facility:

(i) a misdemeanor violation of HSC, Chapter 571;

(ii) a misdemeanor or felony involving moral turpitude;

(iii) a misdemeanor or felony relating to deceptive business practices;

(iv) a misdemeanor or felony of practicing any health-related profession without a required license;

(v) a misdemeanor or felony under any federal or state law relating to drugs, dangerous drugs, or controlled substances;

(vi) a misdemeanor or felony under the Texas Penal Code (TPC), Title 5, involving a patient or a client of any health care facility, a home and community support services agency or a health care professional;

(vii) a misdemeanor or felony under the TPC:

(I) Title 4 - offenses of attempting or conspiring to commit any of the offenses in this clause;

(II) Title 5 - offenses against the person;

(III) Title 7 - offenses against property;

(IV) Title 8 - offenses against public administration;

(V) Title 9 - offenses against public order and decency;

(VI) Title 10 - offenses against public health, safety or morals; or

(VII) Title 11 - offenses involving organized crime.

(viii) Offenses listed in subparagraph (C) of this paragraph are not exclusive in that the department may consider similar criminal convictions from other state, federal, foreign or military jurisdictions which indicate an inability or tendency for the person to be unable to own or operate a facility.

(ix) A license holder's license shall be revoked on the license holder's imprisonment following a felony conviction, felony community supervision revocation, revocation of parole, or revocation of mandatory supervision.

(7) [ (6) ] Notice. If the department proposes to deny, suspend or revoke a license, the department shall send a notice of the proposed action by certified mail, return receipt requested, at the address shown in the current records of the department or the department may personally deliver the notice. The notice to deny, suspend, or revoke a license shall state the alleged facts or conduct to warrant the proposed action, provide an opportunity to demonstrate or achieve compliance, and shall state that the applicant or license holder has an opportunity for a hearing before taking the action.

(8) [ (7) ] Acceptance. Within 20 days after receipt of the notice, the applicant or license holder may notify the department, in writing, of acceptance of the department's determination.

(9) [ (8) ] Hearing request.

(A) A request for a hearing by the applicant or license holder, shall be in writing and submitted to the department within 20 calendar days of receipt of the notice. Receipt of the notice is presumed to occur on the 30th day after the notice is mailed by the department to the last address known of the applicant or license holder.

(B) A hearing shall be conducted pursuant to the Administrative Procedure Act, Government Code, Chapter 2001.

(10) [ (9) ] No response to notice. If the applicant or license holder fails to timely respond to the notice or does not request a hearing in writing within 30 days after proper notice, the person is deemed to have waived the opportunity for a hearing as outlined in the notice and the proposed action shall be taken by default.

(11) [ (10) ] Notification of department's decision. The department shall send the license holder or applicant a copy of the department's decision for denial, suspension or revocation of license by registered mail, which shall include the findings and conclusions on which the department based its decision.

(12) [ (11) ] Admission of new patients upon suspension or revocation. Upon the department's determination to suspend or revoke a license, the license holder may not admit new patients until the license is reissued.

(13) [ (12) ] Return of original license. Upon suspension, revocation or non-renewal of the license, the original license shall be returned to the department upon the effective date of the department's determination.

(14) [ (13) ] Reapplication following denial or revocation.

(A) One year after the department's decision's to deny or revoke, or the voluntary surrender of a license by a facility while enforcement action is pending, a facility may petition the department, in writing, for a license. Expiration of a license prior to the department's decision becoming final shall not affect the one-year waiting period required before a petition can be submitted.

(B) The department may allow a reapplication for licensure if there is proof that the reasons for the original action no longer exist.

(C) The department may deny reapplication for licensure if the department determines that:

(i) the reasons for the original action continues;

(ii) the petitioner has failed to offer sufficient proof; or

(iii) the petitioner has demonstrated a repeated history of failure to provide patients a safe environment or has violated patient rights.

(D) If the department allows a reapplication for licensure, the petitioner shall be required to meet the requirements as described in §134.22 of this title (relating to Application and Issuance of Initial License).

(15) [ (14) ] Expiration of a license during suspension. A facility whose license expires during a suspension period may not reapply for license renewal until the end of the suspension period.

(16) [ (15) ] Surrender of a license. In the event that enforcement, as defined in this subsection, is pending or reasonably imminent, the surrender of a facility license shall not deprive the department of jurisdiction in regard to enforcement against the facility.

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 2, 2004.

TRD-200400006

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 15, 2004

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