PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

CHAPTER 19. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION

Subchapter C. NURSING FACILITY LICENSURE APPLICATION PROCESS

40 TAC §19.208, §19.216

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §19.208, concerning renewal procedures; and §19.216, concerning license fees, in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification.

BACKGROUND AND PURPOSE

The purpose of the amendments is, in part, to implement Senate Bill 1318, 80th Legislature, Regular Session, 2007, which amended Texas Health and Safety Code, §242.034. Texas Health and Safety Code, §242.034, was amended to allow DADS to assess a late fee against a license holder for late submission of a renewal application. The amendments also update rule language to provide for the assessment of a late fee instead of an administrative penalty.

The proposal also updates agency names and rule cross-references.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §19.208 clarifies what DADS considers to be a timely and sufficient application submission. The amendment replaces obsolete references to the Texas Department of Human Services (DHS) with references to DADS. In addition, the amendment provides for the assessment of a late fee instead of an administrative penalty for submission of a late and complete or late and incomplete renewal application. The amendment also updates a rule cross-reference.

The proposed amendment to §19.216 allows for the assessment of a late fee when an application for license renewal is submitted later than the 45th day before the expiration of the license. Section 19.216 sets the late fee at one-half of the total basic renewal fee. The total basic renewal fee is $250 plus $10 per unit of capacity or bed space. The late fee is assessed in addition to the total basic renewal fee. The amendment also updates a rule cross-reference.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments are in effect, there are no significant foreseeable implications relating to costs or revenues of state and local government.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed amendments may have an adverse economic effect on small businesses or micro-businesses, because the rule allows DADS to assess a late fee against a facility that does not comply with the rules.

DADS estimates that the number of small businesses subject to the proposed amendments is less than 981. This estimate is based on DADS records which indicate that of the 1,179 licensed nursing facilities, approximately 981 of them are formed for the purpose of making a profit, one of the requirements for being a "small business." DADS does not have specific data regarding number of employees and gross receipts to determine how many of these facilities are operated by an entity that would meet the definition of a "small business." DADS estimates that there are no micro-businesses subject to the proposed amendments.

The projected economic impact for a small business is a late fee equal to one-half of the basic license renewal fee of $250, plus $10 for each unit of capacity or bed space, but that fee is incurred only if the small business fails to submit a timely license renewal application. For that reason, DADS projects that there will be minimal economic impact to small businesses subject to the proposed amendments.

Several alternatives were considered in determining how to accomplish the objectives of the proposed rules while minimizing the adverse economic effect on small businesses. Statute gives DADS the option of assessing a late fee if a nursing facility does not comply with rules related to the submission of a renewal application. Therefore, DADS considered not imposing a late fee against a facility that does not comply with the proposed rules. DADS did not consider this option consistent with its responsibility as a regulatory agency, and specifically, determined that this option would not adequately address its need to have timely renewal applications submitted. An additional alternative considered was for DADS to impose a late fee without taking into consideration the unit capacity or bed space of a facility. DADS decided against this option as it would place more of a burden on small businesses. A third alternative considered was to impose a higher percentage, such as 75%, instead of 50% of the basic renewal fee, but DADS decided that this may also place a burden on small business.

PUBLIC BENEFIT AND COSTS

Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years the amendments are in effect, the public benefit expected as a result of enforcing the amendments is that DADS rules will reflect current law.

Ms. Durden anticipates that there may be an economic cost to persons who are required to comply with the amendments, because they allow DADS to assess a late fee of $250, plus $10 for each unit of capacity. The amendments will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

DADS has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Jennifer Morrison at (512) 438-4624 in DADS' Regulatory Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-014, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 014" in the subject line.

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Health and Safety Code, Chapter 242, which authorizes DADS to license and regulate nursing facilities.

The amendments implement Texas Government Code, §531.0055; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §242.034.

§19.208.Renewal Procedures and Qualifications.

(a) (No change.)

(b) Each license holder must, no later than the 45th day [ at least 45 days] before the expiration of the current license, file an application for renewal with DADS. DADS 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 DADS, and DADS receives the complete application no later than the 45th day before the expiration date of the current license [at least 45 days before the current license expires];

(2) an incomplete application to DADS with a letter explaining the circumstances which prevented the inclusion of the missing information, and DADS receives the incomplete application and letter no later than the 45th day before the expiration date of the current license [at least 45 days before the current license expires]; or

(3) a complete application or an incomplete application with a letter explaining the circumstances which prevented the inclusion of the missing information to DADS, DADS receives the application during the 45-day period ending on the date the current license expires, and the license holder [individual] pays the late fee established in §19.216(a)(6) of this chapter (relating to License Fees) in addition to the basic renewal fee [a $500 administrative penalty].

(c) If the application is postmarked by the filing deadline, the application will be considered to be timely if received in DADS' [DADS Regulatory Services,] Licensing and Credentialing Section, Regulatory Services Division within 15 days after the postmark.

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

§19.216.License Fees.

(a) Basic fees.

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

(4) Change of administrator. A facility must report a change of administrator within 30 days of the effective date of the change by submitting a change of administrator notice and a $20 fee to DADS' Licensing and Credentialing Section, Regulatory Services Division [the Texas Department of Human Services Facility Enrollment Section]. If DADS' Licensing and Credentialing Section, Regulatory Services Division [Facility Enrollment] does not receive the notice within 30 days of the effective date of the change, DADS [DHS] may impose a $500 administrative penalty. If the notice is postmarked within the 30-day period, 15 days will be added to the time period to receive the notice.

(5) (No change.)

(6) Late renewal fee. An applicant for license renewal that submits an application during the 45-day period ending on the date the current license expires must pay a late fee of an amount equal to one-half of the total basic renewal fee in §19.216(a)(2) of this section.

(b) Trust fund fee.

(1) In addition to the basic license fee described in subsection (a) of this section, DADS [DHS] has established a trust fund for the use of a court-appointed trustee as described in the Health and Safety Code, Chapter 242, Subchapter D.

(2) DADS [DHS] charges and collects an annual fee from each facility licensed under the Texas Health and Safety Code, Chapter 242 each calendar year if the amount of the nursing and convalescent trust fund is less than $10,000,000. The fee is based on a monetary amount specified for each licensed unit of capacity or bed space, not to exceed $20 annually, and is in an amount sufficient to provide not more than $10,000,000 in the trust fund. In calculating the fee, the amount will be rounded to the next whole cent.

(3) (No change.)

(4) DADS [DHS] may charge and collect a fee more than once a year only if necessary to ensure that the amount in the nursing and convalescent trust fund is sufficient to allow required disbursements.

(c) (No change.)

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

Filed with the Office of the Secretary of State on July 28, 2008.

TRD-200803924

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: September 7, 2008

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

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), the repeal of §19.210, concerning temporary change of ownership, in Chapter 19; and proposes new §19.210, concerning change of ownership, in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification.

BACKGROUND AND PURPOSE

The purpose of the new section and repeal, in part, is to implement Senate Bill (SB) 344, 80th Legislature, Regular Session, 2007. SB 344, in part, amended Texas Health and Safety Code, §242.0336. Texas Health and Safety Code, §242.0336, was amended to clarify that a change of ownership (CHOW) license is a 90-day temporary license; provides that DADS must issue a temporary CHOW license no later than the 31st day after receipt of the completed application; allows DADS to waive the 30-day notification from the applicant or the 30-day notification from the existing license holder under certain circumstances; and allows DADS to conduct a desk review instead of an on-site inspection or survey under certain circumstances after the issuance of a CHOW license.

The proposed new section also modifies the definition of a CHOW for different types of business entities and clarifies the documentation and time frames required for a CHOW application and issuance of a license.

The proposal rewrites and reorganizes the section and updates agency names and rule cross-references.

SECTION-BY-SECTION SUMMARY

Proposed new §19.210(a) specifies what constitutes a CHOW for each type of business entity.

Proposed new §19.210(b) specifies the documentation that a prospective new owner must submit to DADS when there is a CHOW.

Proposed new §19.210(c) requires an applicant to submit all items in subsection (b) at least 30 days before the anticipated date of the sale or other transfer to the new owner.

Proposed new §19.210(d) specifies that the 30-day notification from the applicant or license holder may be waived if DADS determines that the applicant presented sufficient evidence showing that not waiving the 30-day notification would create a threat to resident welfare or health and safety. The subsection also states that if the applicant has filed a timely and sufficient application for a CHOW license and meets all requirements, DADS issues a CHOW license effective on the date requested by the applicant.

Proposed new §19.210(e) clarifies that a CHOW license is a 90-day temporary license, and provides that, for a CHOW license, DADS may allow a desk review in lieu of an on-site inspection or survey under certain circumstances.

Proposed new §19.210(f) describes the process for acquiring a CHOW license on an expedited basis.

Proposed new §19.210(g) sets forth the procedure for a license holder that changes its name.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed new section and repeal are in effect, enforcing or administering the new section and repeal does not have foreseeable implications relating to costs or revenues of state or local governments.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed new section and repeal will not have an adverse economic effect on small businesses or micro-businesses, because the proposal does not place any new requirements on small businesses or micro-businesses.

PUBLIC BENEFIT AND COSTS

Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years the new section and repeal are in effect, the public benefit expected as a result of enforcing the new section and repeal is that the rules will reflect current law. The reformatting of §19.210 will also make the rules easier for the public to understand.

Ms. Durden anticipates that there will not be an economic cost to persons who are required to comply with the new section and repeal. The new section and repeal will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

DADS has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Jennifer Morrison at (512) 438-4624 in DADS' Regulatory Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-030, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 030" in the subject line.

40 TAC §19.210

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Department of Aging and Disability Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

STATUTORY AUTHORITY

The repeal is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS and Texas Health and Safety Code, Chapter 242, which authorizes DADS to license and regulate nursing facilities.

The repeal implements Texas Government Code, §531.0055; Texas Human Resources Code, §161.021; and Texas Health and Safety Code §242.0336.

§19.210.Temporary Change of Ownership.

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 July 23, 2008.

TRD-200803780

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: September 7, 2008

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

40 TAC §19.210

STATUTORY AUTHORITY

The new section is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Health and Safety Code, Chapter 242, which authorizes DADS to license and regulate nursing facilities.

The new section implements Texas Government Code, §531.0055; Texas Human Resources Code, §161.021; and Texas Health and Safety Code Chapter 242.

§19.210.Change of Ownership.

(a) A license holder may not transfer the license as part of a change of ownership. If there is a change of ownership, the license holder's license becomes invalid on the date of the change. The new owner must obtain a change of ownership license in accordance with subsection (b) of this section. The license holder and new license applicant must notify the Department of Aging and Disability Services before a change of ownership occurs.

(1) Sole proprietor. A change of ownership occurs if:

(A) the sole proprietor who is licensed to operate the facility sells or otherwise transfers its business of operating the facility to an entity not licensed to operate the facility; or

(B) upon the death of the sole proprietor, the facility continues to operate.

(2) General Partnership (as defined in the Texas Business Organization Code, §1.002). A change of ownership occurs if:

(A) a partner of a general partnership that is licensed to operate the facility is added or substituted;

(B) the partnership that is licensed to operate the facility is sold or otherwise transferred to an entity that is not licensed to operate the facility;

(C) the entity that is licensed to operate the facility sells or otherwise transfers its business of operating the facility to an entity that is not licensed to operate the facility;

(D) for any reason other than correction of an error, the federal taxpayer identification number changes; or

(E) the entity that is licensed to operate the facility is terminated and fails or is ineligible to be reinstated, and the facility continues to operate.

(3) Limited Partnership (as defined in the Texas Business Organization Code, §1.002). A change of ownership occurs if:

(A) a general partner of a limited partnership that is licensed to operate the facility is added or substituted;

(B) ownership of the limited partnership that is licensed to operate the facility changes by 50% or more and one or more controlling person is added;

(C) the partnership that is licensed to operate the facility is sold or otherwise transferred to an entity that is not licensed to operate the facility;

(D) the entity that is licensed to operate the facility sells or otherwise transfers its business of operating the facility to an entity that is not licensed to operate the facility;

(E) for any reason other than correction of an error, the federal taxpayer identification number changes; or

(F) the entity that is licensed to operate the facility is terminated and fails or is ineligible to be reinstated, and the facility continues to operate.

(4) Nonprofit organization. A change of ownership occurs if:

(A) the nonprofit organization that is licensed to operate the facility is sold or otherwise transferred to an entity that is not licensed to operate the facility;

(B) the entity that is licensed to operate the facility sells or otherwise transfers its business of operating the facility to an entity that is not licensed to operate the facility;

(C) for any reason other than correction of an error, the federal taxpayer identification number changes; or

(D) the entity that is licensed to operate the facility is terminated and fails or is ineligible to be reinstated, and the facility continues to operate.

(5) For-profit corporation or limited liability company. A change of ownership occurs if:

(A) ownership of the business entity that is licensed to operate the facility changes by 50% or more and one or more controlling person is added;

(B) the business entity that is licensed to operate the facility is sold or otherwise transferred to an entity that is not licensed to operate the facility;

(C) the entity that is licensed to operate the facility sells or otherwise transfers its business of operating the facility to an entity that is not licensed to operate the facility;

(D) for any reason other than correction of an error, the federal taxpayer identification number changes; or

(E) the entity that is licensed to operate the facility is terminated and fails or is ineligible to be reinstated, and the facility continues to operate.

(6) City, county, state or federal government authority, hospital district, or hospital authority. A change of ownership occurs if:

(A) the governmental entity that is licensed to operate the facility sells or otherwise transfers its business of operating the facility to an entity that is not licensed to operate the facility; or

(B) the entity that is licensed to operate the facility is terminated and the facility continues to operate.

(7) Trust, living trust, estate or any other entity type not included in paragraphs (1) - (6) of this subsection. A change of ownership occurs if:

(A) the entity that is licensed to operate the facility is sold or otherwise transferred to an entity that is not licensed to operate the facility;

(B) the entity that is licensed to operate the facility sells or otherwise transfers its business of operating the facility to an entity that is not licensed to operate the facility;

(C) for any reason other than correction of an error, the federal taxpayer identification number changes; or

(D) the entity that is licensed to operate the facility is terminated and the facility continues to operate.

(8) For license holders that have multiple-level ownership structures, a change of ownership also occurs if any action described in paragraphs (1) - (7) of this subsection occurs at any level of the license holder's entire ownership structure.

(9) For paragraphs (3)(B) and (5)(A) of this subsection, the substitution of the executor of a decedent's estate for a decedent is not the addition of a controlling person.

(10) A conversion as described in Subchapter C of Chapter 10 of the Texas Business Organization Code is not a change of ownership if no controlling person is added.

(b) The prospective new owner must submit to DADS:

(1) a complete application for a change of ownership license under §19.201 of this subchapter (relating to Criteria for Licensing) or an incomplete application with a letter explaining the circumstances that prevented the inclusion of the missing information;

(2) the application fee, in accordance with §19.216 of this subchapter (relating to License Fees); and

(3) signed, written notice from the facility's existing license holder of his intent to transfer operation of the facility to the applicant beginning on a date specified by the applicant.

(c) To avoid a facility operating while unlicensed, an applicant must submit all items in subsection (b) of this section at least 30 days before the anticipated date of the sale or other transfer to the new owner. An application is considered timely filed if the application is postmarked by the filing deadline and received in DADS' Licensing and Credentialing Section, Regulatory Services Division, within 15 days after the date of the postmark.

(d) The 30-day notification from the applicant or the 30-day notification from the existing license holder or both may be waived if DADS determines that the applicant presented evidence showing that circumstances prevented the submission of the 30-day notice and if DADS determines that not waiving the 30-day notification would create a threat to resident welfare or health and safety. If the applicant has filed a timely and sufficient application for a change of ownership license and meets all requirements for a license, DADS issues a change of ownership license effective on the date requested by the applicant.

(e) A change of ownership license is a 90-day temporary license issued to an applicant who proposes to become the new operator of a nursing facility that exists on the date the application is filed. Upon receipt of a complete application, fee, and signed, written notice from the facility's existing license holder of the intent to transfer the operation of the facility to the applicant beginning on a date specified by the applicant, DADS issues a change of ownership license to the prospective new owner if DADS finds that the prospective new owner and any other persons listed in §19.201(f) of this subchapter meet the requirements in §19.201(e)(2) and §19.201(g) of this subchapter.

(1) All applications must be made on forms prescribed by and available from DADS. Each application must be completed in accordance with DADS' instructions, signed, and notarized, and must contain all forms required by DADS.

(2) DADS approves or denies an application for a change of ownership license not later than the 31st day after the date of receipt of the complete application, fee, and signed, written notice from the facility's existing license holder of his intent to transfer the operation of the facility to the applicant beginning on a date specified by the applicant. The effective date of the license is the later of the date requested in the application or the 31st day after the date DADS receives the application, fee, and signed, written notice from the existing license holder, unless waived in accordance with subsection (d) of this section. The effective date of the change of ownership license cannot precede the date the application is received in DADS' Licensing and Credentialing Section, Regulatory Services Division.

(3) If the applicant meets the requirements of §19.201 of this subchapter and passes an initial inspection, desk review, or a subsequent inspection before the change of ownership license expires, a regular two-year license is issued. The effective date of the regular two-year license is the same date as the effective date of the change of ownership and cannot precede the date the application is received by DADS' Licensing and Credentialing Section, Regulatory Services Division.

(4) When an applicant has not previously held a license in Texas, a probationary license is issued following the change of ownership license. The effective date of the probationary one-year license is the same date as the change of ownership license and cannot precede the date the application is received in DADS' Licensing and Credentialing Section, Regulatory Services Division.

(5) A change of ownership license expires on the 90th day after its effective date.

(6) DADS conducts an on-site inspection to verify compliance with the requirements after issuing a change of ownership license.

(7) DADS may allow a desk review in lieu of an on-site inspection or survey if:

(A) the facility specifically requests a desk review and submits evidence during the application process that no new controlling person is added;

(B) DADS determines the change does not involve a new controlling person; and

(C) the facility meets the standards for operation based on the most recent on-site inspection.

(f) A nursing facility license holder may be eligible to acquire, on an expedited basis, a license to operate another existing nursing facility. A license holder that appears on the expedited change of ownership list may be granted expedited approval in obtaining a change of ownership license to operate another existing nursing facility in Texas.

(1) DADS maintains and keeps current a list of nursing facility license holders that operate an institution in Texas and that have met the criteria to qualify for an expedited change of ownership according to the information available to DADS.

(2) In order to establish and maintain the expedited change of ownership list, DADS uses the criteria found in §19.2322(e) of this chapter (relating to Medicaid Bed Allocation Requirements). A nursing facility license holder meeting these criteria appears on the list and is eligible to be issued, on an expedited basis, a change of ownership license to operate another existing institution in Texas.

(3) A nursing facility license holder appearing on the list must submit an affidavit that demonstrates the license holder continues to meet the criteria established for being listed on the expedited change of ownership list, and continues to meet the requirements in §19.201(e)(2) and (g) of this subchapter.

(4) DADS processes a change of ownership license application on an expedited basis for a nursing facility license holder on the list if DADS finds that the license holder and any other persons listed in §19.201(f) of this subchapter meet the requirements in §19.201(e)(2) and (g) of this subchapter.

(5) If the nursing facility license holder requesting a change of ownership license on an expedited basis complies with subsections (b) - (e) of this section, DADS approves or denies the application for a change of ownership license not later than the 15th day after the date of receipt of the complete application, fee, and signed, written notice from the facility's existing license holder of the intent to transfer the operation of the facility to the applicant beginning on a date requested in the application. The effective date of the license is the later of the date requested in the application or the 31st day after the date DADS receives the application fee, and signed, written notice from the existing license holder, unless waived in accordance with subsection (d) of this section. The effective date of the change of ownership license cannot precede the date the application is received in DADS' Licensing and Credentialing Section, Regulatory Services Division.

(6) An applicant for a change of ownership license on an expedited basis must meet all applicable requirements that an applicant for renewal of a license must meet. Any requirement relating to inspections or to an accreditation review applies only to institutions operated by the license holder at the time the application is made for the change of ownership license.

(g) If a license holder changes its name, but does not undergo a change of ownership, the license holder must notify DADS and submit a copy of a certificate of amendment from the Secretary of State's office. On receipt of the certificate of amendment, the current license will be re-issued in the license holder's new name.

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 July 23, 2008.

TRD-200803779

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: September 7, 2008

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

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §§97.245 - 97.247, 97.249, 97.250, 97.282, 97.283, 97.501, 97.507, 97.525, and 97.527, concerning staffing policies, personnel records, verification of employability of unlicensed persons, reportable conduct, investigations, client conduct and responsibility and client rights, advance directives, survey frequency, agency cooperation with a survey, survey procedures, and post-survey procedures; new §97.502 and §97.602, concerning state agency investigations of complaints and self-reported incidents and administrative penalties; and the repeal of §97.602, concerning administrative penalties, in Chapter 97, Licensing Standards for Home and Community Support Services Agencies (HCSSAs).

BACKGROUND AND PURPOSE

The purpose of the amendments, new rules and rule repeal is to implement portions of Senate Bill (SB) 1318, 80th Legislature, Regular Session, 2007. SB 1318, in part, amended the Texas Health and Safety Code, §142.009, to add that complaints investigated by DADS regarding the provision of services include allegations of abuse, neglect, or exploitation of a child. The proposed amendments and new section on the topic of abuse, neglect, and exploitation were written to address the prevention, reporting and investigation of abuse, neglect and exploitation of a HCSSA client by a HCSSA employee, volunteer, or contractor.

The amendments and new section on this topic were also written to address provisions in other Texas laws that apply to state agencies and HCSSAs regarding reports and investigations of abuse, neglect and exploitation. These state laws include the Texas Human Resources Code, Chapter 48, concerning investigations and protective services for elderly and disabled persons; the Texas Family Code, Chapter 261, Subchapter E, concerning investigations of abuse, neglect or exploitation of a child in certain facilities; the Texas Health and Safety Code, Chapter 250, concerning the nurse aide registry and criminal history checks of employees and applicants for employment in certain facilities serving the elderly or persons with disabilities; and the Texas Health and Safety Code, Chapter 253, concerning the employee misconduct registry.

The amendments and new section on abuse, neglect and exploitation were also written in response to HHSC's rules in the Texas Administrative Code, Title 1, Chapter 351, concerning coordinated planning and delivery of health and human services, specifically, §351.503, concerning minimum standards for investigations.

SB 1318, in part, also amended the Texas Health and Safety Code, §142.017, to add criteria for which DADS may assess an administrative penalty without providing a reasonable period of time to correct the violation before assessing a penalty. One of the criteria provides a HCSSA up to 30 days to submit an acceptable plan of correction after DADS notifies the HCSSA that the previously submitted plan of correction is not acceptable. The proposed amendments, new rules, and repeal on the topic of administrative penalties clarify and update language on an administrative penalty for a violation of law relating to advance directives, add criteria for which DADS may assess a penalty before providing an opportunity to correct the violation, add and amend violations that meet the added criteria, and reorganize into one rule section violations that meet criteria related to agency cooperation with a survey.

The purpose of one amendment in §97.527 is to implement a portion of SB 344, 80th Legislature, Regular Session, 2007, which amended the Texas Health and Safety Code, §142.009 to change a reference to the "preliminary findings" of the survey to "official findings." The proposed amendment removes the superfluous explanation of "preliminary findings."

SECTION-BY-SECTION SUMMARY

The amendment to §97.245 updates the cross-reference to the amended title of §97.247 and makes minor technical corrections.

The amendment to §97.246 removes the requirements for a HCSSA to maintain a criminal history report and an employee misconduct registry check and the nurse aide registry check in the personnel record for an unlicensed employee or volunteer with face-to-face contact with a client.

The amendment to §97.247 renames the rule and specifies the requirements for conducting a criminal history check and searches of the nurse aide and employee misconduct registries to verify the employability of unlicensed applicants for employment and employees and to verify the use of volunteers and contractors whose duties include face-to-face contact with clients. The amended rule also requires that unlicensed staff receive written information about the employee misconduct registry, including a statement that if listed, a person cannot be employed or used by a HCSSA. The amended rule also specifies the different effective dates of rules that require an agency to search the nurse aide and employee misconduct registries for unlicensed applicants for employment and employees and to conduct a criminal history check and searches of the nurse aide and employee misconduct registries for unlicensed volunteers and contractors. It also specifies that an agency must provide documentation of compliance with the rules in this section upon request by DADS.

The amendment to §97.249 renames the rule to clarify that an agency must report allegations of abuse, neglect and exploitation as defined in the statutory references specified in the rule and deletes "reportable conduct," because this term applies only to unlicensed staff for the purpose of referrals by a state agency to the employee misconduct registry.

The amendment to §97.250 renames the rule section that pertains to agency (HCSSA) investigations of complaints and reports alleging abuse, neglect and exploitation of a client to avoid confusion with new §97.502 regarding investigations by a state agency. The amendment reorganizes the rule language and clarifies that rules related to a HCSSA completing a complaint investigation also apply to completing investigations of allegations of abuse, neglect and exploitation.

The amendment to §97.282 requires a HCSSA to protect and promote a client's rights, which include the right to be free from abuse, neglect and exploitation by an agency employee, volunteer, or contractor. The amendment also specifies that provisions in the Texas Human Resources Code, Chapter 102, related to rights of the elderly, apply to a person who is 60 years of age or older.

The amendment to §97.283 changes the term "individual", which is used in the Texas Health and Safety Code, Chapter 166, Advance Directives, to "client", the term used in the HCSSA statute and chapter to refer to an individual receiving services from a HCSSA. The amendment removes the phrase "relating to requirements for the provision of a written statement relating to advance directives" and formats the rule similar to §166.004. The amendment also specifies that DADS will assess a $500 administrative penalty as provided in §142.0145 of the statute without providing an opportunity to correct a violation of that section.

The amendment to §97.501 adds that surveys conducted by DADS include surveys to investigate a complaint alleging abuse, neglect or exploitation of a client and that DADS investigates self-reported incidents that include allegations of abuse, neglect or exploitation. The amendment also specifies that these investigations are conducted as described in new §97.502, concerning state agency investigations of complaints and self-reported incidents. The amendment also reorganizes rule language regarding complaints alleging violations of the state statute, Chapter 97, or federal requirements, and corrects a reference to a subchapter.

The amendment to §97.507 adds rules regarding cooperation with a survey, which were deleted from §97.525. The amendment also adds new rules DADS can cite as violations that meet criteria in new §97.602, relating to administrative penalties with no opportunity to correct, for making a false statement during an investigation by DADS, refusing to allow DADS to inspect records required to be maintained, and willfully interfering with a representative of DADS during a survey. The amendment also specifies that enforcement actions by DADS for violations of provisions in that section include an administrative penalty without an opportunity to correct.

The amendment to §97.525 deletes language related to cooperation with a survey, which was added in the amendment to §97.507. The amendment also removes a reference to "required agency personnel" for an entrance conference held at the beginning of a survey because the rules in §97.523 specify the personnel requirements for an entrance conference. The amendment also makes technical corrections to the titles of Texas state statutes and reformats the rule.

The amendment to §97.527 removes the superfluous explanation of "preliminary findings of the survey." The amendment also deletes unnecessary language describing enforcement actions and requests for hearings because these are specified in §97.601, relating to enforcement actions, and in new §97.602, relating to administrative penalties. The amendment also increases the time frame for a HCSSA to submit an acceptable plan of correction after written notice from DADS of an unacceptable plan of correction.

Proposed new §97.502 defines what is meant by a "facility regulated by DADS" and specifies the statutory responsibilities of the Texas Department of Family and Protective Services and DADS under the Texas Human Resources Code, Chapter 48, and the Texas Family Code, Chapter 261, to conduct investigations of reports alleging abuse, neglect or exploitation of a child and an adult served by a HCSSA when the alleged perpetrator is a HCSSA employee, volunteer, or contractor. The proposal also states what investigations conducted by DADS may include, to meet requirements in Chapter 48 of the Texas Human Resources Code and in Chapter 261 of the Texas Family Code for a state agency to adopt such rules.

Proposed new §97.602 updates the rule related to administrative penalties. The new rule on administrative penalties describes: (1) when DADS provides a HCSSA with an opportunity to correct a violation; (2) when DADS may assess a penalty for a minor violation; (3) the types of violations for which an agency may not have an opportunity to correct; (4) what constitutes a Severity Level A violation; and (5) what constitutes a Severity Level B violation. The new rule also sets the amount of an administrative penalty at $500 for violations that may not meet the definition of what constitutes a Severity Level B violation but are the types of violations listed in the rule for which an agency may not have an opportunity to correct. The new rule also updates and corrects rules cites and subject matter listed on the Level A and Level B penalty schedules.

The repeal of §97.602 deletes the existing rule, which is replaced by new §97.602.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the amendments, repeal and proposed new sections are in effect, there are fiscal implications for state government as a result of enforcing or administering the section. There are no foreseeable implications relating to costs or revenues of local governments.

The effect on state government for the first five years the proposed amendments, new section, and repeal are in effect is an estimated increase in revenue of $75,750 in fiscal year (FY) 2009; $79,500 in FY 2010; $83,250 in FY 2011; $87,000 in FY 2012; and $90,750 in FY 2013.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed amendments, new section, and repeal may have an adverse economic effect on small and micro-businesses because they allow DADS to assess an administrative penalty against a HCSSA that violates a licensure rule, without giving the HCSSA an opportunity to correct the violation, if the violation meets one of the criteria listed in §97.602(e).

DADS estimates that the number of small and micro-businesses subject to the proposed amendments, new section, and repeal is less than 3,472. This estimate is based on DADS records, which indicate that of the 3,742 licensed HCSSAs, approximately 3,472 of them are formed for the purpose of making a profit, one of the requirements for being a small or micro-business. DADS does not have information regarding the number of employees or gross receipts to determine what percentage of these HCSSAs are operated by an entity that would meet the definition of a "small business" or "micro-business."

The potential economic impact for a small or micro-business is an administrative penalty of $500 - $1,000 for each violation, depending on the severity of the violation, but a penalty is incurred only if the small or micro-business violates a licensure rule and the violation meets one of the criteria listed in §97.602(e). Therefore, DADS projects that there will be minimal economic impact to small and micro-businesses subject to these amendments and new rule.

Several regulatory options were considered in determining how to accomplish the objectives of the proposed rules, while minimizing the adverse economic effect on small and micro-businesses. The Texas Health and Safety Code, Chapter 142, §142.017(j) allows DADS to assess an administrative penalty without giving a HCSSA an opportunity to correct the violation if the violation meets one of the criteria set forth in statute, as proposed in §97.602(e)(1) - (5). DADS is proposing that the penalty for a violation that meets any one of the criteria in §97.602(e)(1) - (3) is $500 - $1000, depending on the severity of the violation, as described in §97.602(h)(3)(C), and the penalty for a violation that meets the criteria in §97.602(e)(4) or (5) is $500. Therefore, DADS considered imposing a penalty lower than $500 for a violation that meets any one of the criteria in §97.602(e)(4) or (5). DADS determined, however, that imposition of a penalty lower than $500 would not be effective in encouraging compliance with licensure rules. DADS also considered imposing a penalty range lower than $500 - $1000 for a violation that meets any one of the criteria in §97.602(e)(1) - (3). DADS determined, however, that decreasing the penalty range, for violations that result in death or harm, constitute a serious threat, or decreases a HCSSA's capacity to provide safe, effective care is not consistent with DADS' responsibility to enforce standards to promote client health and safety. Finally, DADS considered the use of graduated penalties based on the severity of the violation and the size of a HCSSA, but determined that implementation of such a system would have additional administrative costs associated with it that outweigh the benefits of such a system, especially since a small business can avoid the penalty all together by complying with the licensing rules.

PUBLIC BENEFIT AND COSTS

Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years the amendments, new sections, and repeal are in effect, the public benefit expected as a result of enforcing the amendments, new sections, and repeal is that HCSSAs will have clearer and easier-to-follow rules concerning abuse, neglect, and exploitation and administrative penalties. The amendments are proposed to address the health and safety needs, including protection from abuse, neglect, and exploitation, of HCSSA clients who reside outside of a facility regulated by DADS or are admitted to or residing in a hospice inpatient unit or residential unit. The public will also benefit from updated and clarified rules that are more accurate and easier for the public and HCSSAs to use and understand.

Ms. Durden anticipates that there will be an economic cost to persons who are required to comply with the amendments, new sections, and repeal. The probable economic cost to persons required to comply with the amendments, new sections and repeal for each year of the first five years the amendments, new sections and repeal are in effect will be a potential final payment of an administrative penalty of $500 to $1000 for each violation at this penalty severity level. For such violations, an agency will not be given an opportunity to come into compliance to avoid assessment of the penalty. The amendments, new sections, and repeal will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

DADS has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Sylvia Trevino at (361) 878-3419 in DADS' Regulatory Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-002, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 002" in the subject line.

SUBCHAPTER C. MINIMUM STANDARDS FOR ALL HOME AND COMMUNITY SUPPORT SERVICES AGENCIES

DIVISION 3. AGENCY ADMINISTRATION

40 TAC §§97.245 - 97.247, 97.249, 97.250

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Health and Safety Code, Chapter 142, which provides the Aging and Disability Services Council with the authority to make recommendations regarding rules governing licensing and regulation of home and community support services agencies.

The amendments implement Texas Government Code, §531.0055; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, Chapter 142.

§97.245.Staffing Policies.

(a) An agency must adopt and enforce written staffing policies that govern all personnel used by the agency, including employees, volunteers, and contractors.

(b) An agency's written staffing policies must:

(1) include requirements for orientation to the policies, procedures, and objectives of the agency;

(2) include requirements for participation by all personnel in job-specific training. Agency training program policies must:

(A) ensure personnel are properly oriented to tasks performed;

(B) ensure demonstration of competency for tasks when competency cannot be determined through education, license, certification, or experience;

(C) ensure a continuing systematic program for the training of all personnel; and

(D) ensure personnel are informed of changes in techniques, philosophies, goals, client's rights, and products relating to client's care;

(3) address participation by all personnel in appropriate employee development programs;

(4) include a written job description (statement of those functions and responsibilities which constitute job requirements) and job qualifications (specific education and training necessary to perform the job) for each position within the agency;

(5) include procedures for processing criminal history checks and searches of the nurse aide registry and the employee misconduct registry for unlicensed personnel in accordance with §97.247 of this subchapter [title] (relating to [ Verification of] Employability and Use of Unlicensed Persons);

(6) ensure annual evaluation of employee and volunteer performance;

(7) address employee and volunteer disciplinary action and procedures;

(8) if volunteers are used by the agency, address the use of volunteers. The policy must be in compliance with §97.248 of this subchapter [title] (relating to Volunteers);

(9) address requirements for providing and supervising services to pediatric clients. Services provided to pediatric clients must be provided by staff who have been instructed and have demonstrated competency [competence] in the care of pediatric clients; and

(10) include a requirement that all personnel who are direct care staff and who have direct contact with clients (employed by or under contract with the agency) sign a statement that they have read, understand, and will comply with all applicable agency policies.

§97.246.Personnel Records.

(a) A personnel record must be maintained on each individual who is employed by or volunteers for the agency. All information must be kept current. A personnel record must include the following:

(1) job description and qualifications or a statement signed by the employee or volunteer that he has read the job description and qualifications for the position accepted;

(2) application for employment or volunteer agreement;

(3) verification of license, permits, references, job experience, and educational requirements as appropriate; and

(4) performance evaluations and disciplinary actions.[; and]

[(5) for an unlicensed person having face-to-face contact with clients who is employed by or volunteers for the agency:]

[(A) a criminal history report;]

[(B) an employee misconduct registry check; and]

[(C) a nurse aide registry check.]

(b) Original personnel files may be kept in any location as determined by the agency. Original personnel files must be accessible and readily retrievable for inspection by DADS at the site of the survey.

§97.247.[ Verification of ] Employability and Use of Unlicensed Persons.

(a) An agency must do the following for unlicensed applicants for employment and employees.

(1) Conduct [An agency must conduct ] the criminal history check authorized under the Texas Health and Safety Code, Chapter 250 (relating to Nurse Aide Registry and Criminal History Checks of Employees and Applicants for Employment in Certain Facilities Serving the Elderly or Persons with Disabilities) on an unlicensed applicant for employment at the agency whose duties would or do involve face-to-face contact with a client. [An agency must also conduct the verification of employability required under Health and Safety Code §253.008. ]

(2) Conduct the authorized criminal history check on an unlicensed employee when job duties change so that they would or do include face-to-face contact with a client.

(3) As required by Texas Health and Safety Code §250.006, ensure the agency does not employ an unlicensed person whose criminal history record information includes a conviction that bars employment.

(4) Before an agency hires or rehires an unlicensed employee whose duties would or do involve face-to-face contact with a client on or after February 2, 2002, the agency must search the nurse aide registry (NAR) and the employee misconduct registry (EMR) by calling DADS' toll-free number, 1-800-452-3934, or by using DADS' Employability Status Search website at http://www.dads.state.tx.us/providers/employability/esearch.cfm, to verify that the applicant is not listed with a finding concerning abuse, neglect, or exploitation or mistreatment of a client of an agency or a facility, or misappropriation of a client's property as required by Texas Health and Safety Code §253.008.

(5) Provide written information about the EMR to all unlicensed employees, including a statement that a person listed in the EMR is not employable.

(6) As required by Texas Health and Safety Code §250.003, when the agency becomes aware of a finding or conviction, immediately discharge any employee:

(A) who is designated in the NAR or the EMR with a finding concerning abuse, neglect, or exploitation or mistreatment of a client of an agency or a facility, or misappropriation of a client's property; or

(B) whose criminal history check reveals conviction of a crime that bars employment or that the agency determines is a contraindication to employment.

(b) An agency must ensure the following for unlicensed volunteers with face-to-face client contact starting on or after June 1, 2006.

(1) Conduct a criminal history check on unlicensed volunteers whose duties would or do involve face-to-face contact with a client.

(2) Ensure that the criminal history check specified in paragraph (1) of this subsection is conducted prior to the unlicensed volunteer's first face-to-face contact with a client of the agency.

(3) Ensure the agency does not use an unlicensed volunteer whose criminal history information includes a conviction that would bar employment in a facility under Texas Health and Safety Code §250.006.

(4) Before using an unlicensed volunteer whose duties would or do involve face-to-face contact with a client, search the NAR and the EMR by calling DADS' toll-free number, 1-800-452-3934, or by using DADS' Employability Status Search website at http://www.dads.state.tx.us/providers/employability/esearch.cfm, to verify that the unlicensed volunteer is not listed with a finding concerning abuse, neglect, or exploitation or mistreatment of a client of an agency or a facility, or misappropriation of a client's property.

(5) Provide written information about the EMR to all unlicensed volunteers, including a statement that a person listed in the EMR cannot be used by the agency.

(6) When the agency becomes aware of a finding or conviction, immediately stop using an unlicensed volunteer:

(A) who is designated in the NAR or the EMR with a finding concerning abuse, neglect, or exploitation or mistreatment of a client of an agency or a facility, or misappropriation of a client's property; or

(B) whose criminal history check reveals conviction of a crime listed in Texas Health and Safety Code §250.006.

(c) An agency must ensure the following for unlicensed contractors with face-to-face client contact starting on or after the effective date of this rule.

(1) That a criminal history check is conducted on an unlicensed contractor whose duties would or do involve face-to-face contact with a client of the agency.

(2) That the criminal history check specified in paragraph (1) of this subsection is conducted prior to the unlicensed contractor's first face-to-face contact with a client of the agency.

(3) Ensure the agency does not use an unlicensed contractor whose criminal history information includes a conviction that would bar employment in a facility under Texas Health and Safety Code §250.006.

(4) Before using an unlicensed contractor whose duties would or do involve face-to-face contact with a client, that a search of the NAR and the EMR is conducted by calling DADS' toll-free number, 1-800-452-3934, or by using DADS' Employability Status Search website at http://www.dads.state.tx.us/providers/employability/esearch.cfm, to verify that the unlicensed contractor is not listed with a finding concerning abuse, neglect, or exploitation or mistreatment of a client of an agency or a facility, or misappropriation of a client's property.

(5) That written information about the EMR is provided to all unlicensed contractors, including a statement that a person listed in the EMR cannot be used by the agency.

(6) When the agency becomes aware of a finding or conviction, immediately stop using an unlicensed contractor:

(A) who is designated in the NAR or the EMR with a finding concerning abuse, neglect, or exploitation or mistreatment of a client of an agency or a facility, or misappropriation of a client's property; or

(B) whose criminal history check reveals conviction of a crime listed in Texas Health and Safety Code §250.006.

(d) Upon request by a DADS surveyor, the agency must provide documentation to demonstrate compliance with subsections (a)-(c) of this section.

[(b) To verify that an applicant is not listed with a finding concerning abuse, neglect, or mistreatment of a consumer of an agency or a facility licensed under the Health and Safety Code, Chapter 142, or misappropriation of a consumer's property, an agency must search the nurse aide registry and the employee misconduct registry by calling DADS' toll-free number, 1-800-452-3934.]

[(c) Criminal history checks and registry searches of employees or applicants for employment must be kept with the agency's personnel records.]

§97.249. Self-Reported Incidents of Abuse, Neglect, and Exploitation [ Reportable Conduct ].

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

(1) Abuse, neglect, and exploitation of a client 18 years of age and older[, and neglect] have the meanings assigned by the Texas Human Resources Code, §48.002.

(2) Abuse, neglect, and exploitation of a child have the meanings assigned by the Texas Family Code, §261.401.

[(2) Cause to believe means that an individual knows or suspects.]

(3) Employee means an individual directly employed by an agency, a contractor, or a volunteer.

(4) Cause to believe means that an agency knows, suspects, or receives an allegation regarding abuse, neglect, or exploitation.

[(4) Reportable conduct has the meanings assigned by Human Resources Code, §48.401.]

(b) An agency must adopt and enforce a written policy relating to the agency's procedures for reporting alleged acts of abuse, neglect, and exploitation of a client [clients and reportable conduct] by an employee of the agency.

(c) If an [An] agency [that] has cause to believe that a client served by the agency has been abused, neglected, or exploited [, or neglected] by an agency employee, the agency must report the information immediately to:

(1) the Department of Family and Protective Services at 1-800-252-5400 [Department of Aging and Disability Services at 1-800-458-9858]; and

(2) DADS at 1-800-458-9858 [Department of Family and Protective Services at 1-800-252-5400, or other appropriate state agency as required by Human Resources Code, §48.051].

§97.250.Agency Investigations.

(a) Written policy.

(1) An agency must adopt and enforce a written policy relating to the agency's procedures for investigating complaints and reports of abuse, neglect, and exploitation.

(2) The policy must meet the requirements of this section.

(b) Reports of abuse, neglect, and exploitation (ANE).

(1) Immediately upon witnessing the act or upon receipt of the allegation, an [An] agency must initiate an investigation of known and alleged acts of ANE by agency employees, including volunteers and contractors. [, immediately upon witnessing the act or upon receipt of the allegation.]

[(2) An agency must send a written report of the investigation to DADS state office no later than the tenth day after reporting the act to DADS and the Department of Family and Protective Services.]

(2) [(3)] An agency must complete DADS' [ the written report using the] Provider Investigation Report form and include the following information:

(A) incident date;

(B) the alleged victim;

(C) the alleged perpetrator;

(D) any witnesses;

(E) the allegation;

(F) any injury or adverse affect;

(G) any assessments made;

(H) any treatment required;

(I) the investigation summary; and

(J) any action taken.

(3) An agency must send the completed DADS' Provider Investigation Report form to DADS' Complaint Intake Unit no later than the 10th day after reporting the act to the Department of Family and Protective Services and DADS.

(c) Agency complaint [Other] investigations.

(1) An agency must investigate complaints made by a client, a client's family or guardian, or a client's health care provider, in accordance with this subsection, regarding:

(A) treatment or care that was furnished by the agency;

(B) treatment or care that the agency failed to furnish; or

(C) a lack of respect for the client's property by anyone furnishing services on behalf of the agency.

(2) An agency must:

(A) document [the] receipt of the complaint and initiate a complaint investigation within 10 days after the agency's receipt of the complaint; and

(B) document all components of the investigation.[; and]

(d) [(C)] Completing agency investigations. An agency must complete the investigation and documentation within 30 days after the agency receives a [ the] complaint or report of abuse, neglect, and exploitation, unless the agency has and documents reasonable cause for a delay.

(e) [(d)] Retaliation.

(1) An agency may not retaliate against a person for filing a complaint, presenting a grievance, or providing, in good faith, information relating to home health, hospice, or personal assistance services provided by the agency.

(2) An agency is not prohibited from terminating an employee for a reason other than retaliation.

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 July 28, 2008.

TRD-200803918

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: September 7, 2008

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