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
The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §19.208 and §19.216 in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification. The amendment to §19.208 is adopted with changes to the proposed text published in the August 8, 2008, issue of the Texas Register (33 TexReg 6341). The amendment to §19.216 is adopted without changes to the proposed text.
The amendments are adopted 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 adoption also updates agency names and rule cross-references.
Changes were made to the text of §19.208(b) and (c) to clarify and improve the accuracy of the section. In particular, "file" was changed to "submit" for consistency within the section.
DADS received no comments regarding adoption of the amendments.
The amendments are adopted 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.
§19.208.Renewal Procedures and Qualifications.
(a) Each license issued under this chapter must be renewed every two years. Each license expires two years from the date issued. A license issued under this chapter is not automatically renewed.
(b) Each license holder must, no later than the 45th day before the expiration of the current license, submit an application for renewal with DADS. DADS considers that an individual has submitted 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;
(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; 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 pays the late fee established in §19.216(a)(6) of this chapter (relating to License Fees) in addition to the basic renewal fee.
(c) If the application is postmarked by the submission deadline, the application will be considered timely if received in DADS' Licensing and Credentialing Section, Regulatory Services Division within 15 days after the postmark.
(d) The appropriate license fee must be paid upon submission of the renewal application.
(e) The renewal of a license may be denied for the same reasons an original application for a license may be denied. See §19.214 of this subchapter (relating to Criteria for Denying a License or Renewal of a License).
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 22, 2008.
TRD-200806667
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: January 15, 2009
Proposal publication date: August 8, 2008
For further information, please call: (512) 438-3734
The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §§90.15, 90.19, 90.192, 90.236, and 90.240 in Chapter 90, Intermediate Care Facilities for Persons with Mental Retardation or Related Conditions. The amendment to §90.15 is adopted with changes to the proposed text published in the August 1, 2008, issue of the Texas Register (33 TexReg 6096). The amendments to §§90.19, 90.192, 90.236, and 90.240 are adopted without changes to the proposed text.
The amendments are adopted to implement provisions of Senate Bill (SB) 1318 and SB 344, 80th Legislature, Regular Session, 2007. SB 1318 amended Texas Health and Safety Code, §252.034, to provide that a license holder who submits an application for license renewal later than the 45th day before the expiration of a current license is subject to a late fee in an amount equal to one-half of the basic renewal fee. SB 1318 also amended Texas Health and Safety Code, §252.065, to add violations for which DADS may assess an administrative penalty and for which DADS is not required to provide the facility time to correct prior to assessment of that penalty.
SB 344 amended Texas Health and Safety Code, §252.044, to require that DADS hold an exit conference in person if additional violations are identified after an initial exit conference. SB 344 also amended Texas Health and Safety Code, §252.044, to change the time period for a facility to submit a plan of correction for licensure violations from 10 calendar days to 10 working days after the facility receives a final, official statement of violations.
DADS received no comments regarding adoption of the amendments. However, §90.15(b)(3) is being changed to allow a license holder to submit to DADS an incomplete application with a letter explaining the circumstances that prevented the inclusion of the missing information if DADS receives the application during the 45-day period ending on the date the current license expires. In §90.15(b) and (c), words related to "filing" an application are being changed to reflect "submission" of an application for consistency within the section.
SUBCHAPTER B. APPLICATION PROCEDURES
The amendments are adopted 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 252, which provides the Aging and Disability Services Council with the authority to make recommendations regarding rules governing licensing and regulation of intermediate care facilities for persons with mental retardation.
§90.15.Renewal Procedures and Qualifications.
(a) Each license issued under this chapter must be renewed every two years. Each license expires two years from the date issued. A license issued under this chapter is not automatically renewed.
(b) Each license holder must, at least 45 days before the expiration of the current license, submit an application for renewal with DADS. DADS considers that an individual has submitted a timely and sufficient application for the renewal of a license if the license holder:
(1) submits a complete application to DADS, and DADS receives the complete application at least 45 days before the current license expires;
(2) submits 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 at least 45 days before the current license expires; or
(3) submits a complete application or 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 pays the late renewal fee established in §90.19(a)(4) of this subchapter (relating to License Fees) in addition to the basic renewal fee.
(c) If the application is postmarked by the submission deadline, the application will be considered to be timely if received by DADS' Regulatory Services Licensing and Credentialing Section within 15 days after the postmark. If the application is postmarked by the submission deadline, the application will be considered to be timely if received in DADS' Regulatory Services Licensing and Credentialing Section, within 30 days after the postmark and the license holder proves to the satisfaction of the department that the delay was due to the fault of the United States Postal Service. It is the responsibility of the license holder to ensure that his application is timely received by DADS.
(d) The appropriate license fee must be paid upon submission of the renewal application.
(e) The renewal of a license may be denied for the same reasons an original application for a license may be denied. See §90.17 of this subchapter (relating to Criteria for Denying a License or Renewal of a License).
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 22, 2008.
TRD-200806668
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: January 15, 2009
Proposal publication date: August 1, 2008
For further information, please call: (512) 438-3734
The amendment is adopted 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 252, which provides the Aging and Disability Services Council with the authority to make recommendations regarding rules governing licensing and regulation of intermediate care facilities for persons with mental retardation.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 22, 2008.
TRD-200806669
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: January 15, 2009
Proposal publication date: August 1, 2008
For further information, please call: (512) 438-3734
The amendments are adopted 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 252, which provides the Aging and Disability Services Council with the authority to make recommendations regarding rules governing licensing and regulation of intermediate care facilities for persons with mental retardation.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 22, 2008.
TRD-200806670
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: January 15, 2009
Proposal publication date: August 1, 2008
For further information, please call: (512) 438-3734
The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts new §§92.1 - 92.6; 92.11 - 92.20, 92.54; and 92.551 and the repeal of §§92.2 - 92.4; 92.10 - 92.23; 92.551 - 92.595; and 92.601 - 92.616 in Chapter 92, Licensing Standards for Assisted Living Facilities. New §§92.1 - 92.3, 92.5, 92.11, 92.14 - 92.18, and §92.551 are adopted with changes to the proposed text published in the August 1, 2008, issue of the Texas Register (33 TexReg 6101). New §§92.4, 92.6, 92.12, 92.13, 92.19, 92.20, 92.54 and the repeal of §§92.2 - 92.4; 92.10 - 92.23; 92.54; 92.551 - 92.595; and 92.601 - 92.616 are adopted without changes to the proposed text and will not be republished.
The new sections and repeal are adopted, in part, to implement some of the provisions of Senate Bill (SB) 1318, 80th Legislature, Regular Session, 2007, which amended the Texas Health and Safety Code, Chapter 247. The rules are rewritten to update agency names, rule citations, and definitions; clarify criteria for licensing; reflect current application procedures; and reorganize the rules to place them in a more logical order.
Several changes were made to §92.2. Specifically, the definition of "applicant" was reworded slightly in §92.2(5). The definition of "bedfast" was removed from §92.2. "And in the facility while on duty" was added to the definition of "immediately available" in §92.2(23). "Transportation" was added to a list of service contracts that are not considered "management services" in §92.2(26). The definition for "ombudsman" was amended in §92.2(33) to include a reference to the current definition in §85.2 of this title. The definition for "outside resource" was removed from the section. The phrase "by a person licensed to administer medications" was added to the definition of "personal care services" in §92.2(36) to clarify that a person must be licensed to administer medication.
New §92.3(b) and (e) were changed to add a cross reference to evacuation requirements that a resident in a Type A or Type E facility must meet. In addition, §92.3(e) was changed to clarify and improve the accuracy of the section.
Section 92.5 was changed to delete "outside resource" and in its place, "a home and community support services agency licensed under Chapter 142 or with an independent health professional" was added to use language in Texas Health and Safety Code, §247.067(c).
Section 92.11(c)(1)(A)(iii) was changed to add "based on an onsite inspection by DADS," which provides clarification about the inspection in accordance with the Life Safety Code (LSC). In addition, "staff" was deleted from §92.11(c)(1)(B) because it is not necessary to the rule.
Section 92.11 was changed to add new subsection (e) and new paragraph (h)(9), which were inadvertently left out of the proposal but are provisions in the current assisted living facility licensing rules. Minor edits were made to the section and the section was relettered to reflect the addition of subsection (e) and paragraph (h)(9).
References to "filing" an application, in §§92.14, 92.15, 92.17, and 92.18, were changed to "submitting" an application, which clarifies and improves the accuracy of the section.
Section 92.14(f) was amended to clarify that the referenced Subchapter D relates to facility construction.
Section 92.15 had several minor editorial changes made that clarify and improve the accuracy of the section.
Section 92.15(d)(3) was amended to allow a license holder to submit an incomplete application with a letter explaining the circumstances that prevented the inclusion of the missing information during the 45-day period ending on the date the current license expires. This provision is consistent with other licensing rules of DADS.
Section 92.551(g)(1) was changed to add "and" to clarify and improve the accuracy of the section.
DADS received written comments from the Texas Association of Residential Care Communities, Texas Association for Home Care, and from two individuals. A summary of the comments and the responses follow.
Comment: Regarding the new definition of "bedfast" in §92.2(8), a commenter suggested deleting the word "permanently" from the new definition because it did not reflect actual circumstances.
Response: The agency has deleted the new definition of "bedfast" proposed in §92.2(8). The agency will solicit input from stakeholders regarding use of the term "bedfast" in current §92.4(2)(D) and in new §92.3(c) to assess the need for a definition.
Comment: Regarding the definition of "immediately available" in §92.2(23), two individuals suggested the addition of language to clarify staff that must be in the building while on duty.
Response: The agency amended the definition of "immediately available" in §92.2(23) by adding the phrase "and in the facility while on duty" to the end of the current definition to provide further clarification that is consistent with §92.41(a)(2)(A).
Comment: Regarding the definition "management services" in §92.2(26), a commenter suggested adding "transportation" to the list of sole contracts that are not considered management services.
Response: The agency agreed with the suggestion and changed the definition of "management services" to exclude transportation.
Comment: A commenter asked if the agency plans to update the "NPFA 101" definition in §92.2(32) to reference the 2000 edition of the LSC.
Response: The 1988 publication is the version currently in use by DADS. The agency did not change the rule in response to this comment.
Comment: Regarding the new definition of "outside resource" in §92.2(35), a commenter suggested clarifying who a resident has the right to contract with for health care services by changing the phrase "health care professional" to "health care entity or professional."
Response: The agency deleted the definition of "outside resource" in §92.2(35), and its use of the term in §92.5(b), and amended §92.5(b) to use the language in Health and Safety Code §247.067 to more clearly implement the statute, which states who a resident has the right to contract with for health care services and clearly defines a "health care professional."
Comment: Regarding the definition for "physician" in §92.2(37), a commenter stated the definition was too prescriptive and limiting and suggested broadening the definition to include the same body of physicians permitted in the home and community support services agency (HCSSA) rule language.
Response: The HCSSA definition for physician found in Chapter 90, which includes physicians from contiguous states that border Texas, reflects a unique situation that is limited to home health or hospice services delivered by a home and community support services agency licensed in the state of Texas, and is authorized by the Texas Occupations Code, §151.056(b)(4) and the Texas Medical Board's rule, Title 22, §172.12(f)(g). The agency did not make the suggested change.
Comment: Regarding the definition "working day" in §92.2(53), a commenter suggested using the term "business day" instead.
Response: The term "working day" is used in Health and Safety Code Chapter 247 governing assisted living facilities. The agency feels the use of the term "working day" in §92.2(53) meets the intent of the statute. The agency did not change the proposed rule in response to this comment.
Comment: A commenter suggested deleting the words "health" and "staff" used in §92.11(c)(1)(B) because the terms are unnecessary.
Response: Section 92.11(c)(1)(B) applies to an initial application. The agency retained the word "health" in §92.11(c)(1)(B) to distinguish the visit required in §92.11(c)(1)(B), for the purpose of observing resident care, from the initial LSC visit required in §92.11(c)(1)(A)(iii) for the purpose of ensuring the building is safe to occupy. However, the agency amended §92.11(c)(1)(A)(iii), to provide clarification about the LSC visit and also deleted the word "staff" in §92.11(c)(1)(B).
Comment: A commenter suggested revising the rule language in §92.11(c)(2) so that it does not offer the presumption that all facilities are accredited.
Response: The "or" at the end of §92.11(c)(1)(B) provides the applicant the option to affirmatively show that the facility meets §92.11(c)(1), the DADS licensing standards, or §92.11(c)(2), the standards for accreditation. The agency did not make the suggested change.
Comment: A commenter suggested revising §92.11(h)(7)(A) and §92.11 (h)(7)(E) to capture the history of the applicant "in any state."
Response: The history of the applicant in any state is addressed in §92.11(h)(7). The agency did not change the rule in response to this comment.
Comment: A commenter suggested adding language to §92.12(c) to emphasize the need for the application to include written approval from the local fire authority.
Response: The agency feels the rule language in proposed §92.12(c) sufficiently conveys the requirement. The agency did not change the rule in response to this comment.
Comment: A commenter suggested shortening the timeframe in §92.13(b), which states the agency denies an application that remains incomplete 120 days after the date that the DADS Licensing and Credentialing Section receives the application.
Response: The agency declined to shorten the timeframe at this time, but may consider making the change in the future. The agency did not change the rule in response to this comment.
Comment: A commenter suggested adding language to §92.14(d) to emphasize the agency will not conduct an on-site LSC inspection until the applicant has satisfied the application filing requirements, which includes submitting written approval from the local fire authority.
Response: The agency feels the rule language in §92.14(d) sufficiently conveys that the LSC inspection occurs after an applicant has met the requirements of §92.11 and §92.12. The agency did not change the rule in response to this comment.
Comment: A commenter suggested adding language to §92.14(f) to clarify the number of residents that can be admitted to a facility for a health inspection after a facility has met the licensure requirements in Subchapter D.
Response: The agency feels the rule language in proposed §92.14(f) sufficiently conveys the requirement. However, the agency amended §92.14(f) to clarify that Subchapter D relates to Facility Construction requirements.
Comment: Regarding §92.14(e), a commenter requested flexibility in the rule language and suggested substituting the word "denies" with the words "may deny."
Response: A current rule at §92.10(c) states that "an application which remains incomplete after 120 days will be denied." The language in §92.14(e) adopts current practice as rule and clarifies that "if the facility fails to meet the LSC requirements within 120 days after the LSC inspection, DADS denies the application for an increase in capacity." The agency did not make the suggested change.
Comment: A commenter suggested substituting "one year" for "12 months" and "24 months" for "two years" in §92.15(a)(1) and (b)(1) and (2).
Response: The agency has determined that the language used in §92.15(a)(1) and §92.15(b)(1) and (2) sufficiently conveys the intended meaning. The agency did not change the rule in response to this comment.
Comment: A commenter suggested deleting the word "health" used in §92.16(f), stating the term was inappropriate as used.
Response: The rule language proposed in §92.16(f) applies to a change of ownership application. DADS retained the word "health" in §92.16(f) to distinguish between the on-site visit required for the purpose of observing resident care from the LSC visit that DADS may also conduct if the facility is out of compliance with the Life Safety Code licensure requirements in Subchapter D (relating to Facility Construction). However, the agency amended §92.16(f) to provide clarification about the LSC visit.
Comment: A commenter stated that the rule language in §92.18(e) was unnecessarily restrictive and suggested substituting the word "denies" with the words "may deny."
Response: Current requirements in §92.10(c) indicate that "an application which remains incomplete after 120 days will be denied." The language in §92.18(e) adopts current practice as rule and clarifies that "if the facility fails to meet the LSC requirements within 120 days after the LSC inspection, DADS denies the application for an increase in capacity." DADS did not change the rule in response to this comment.
SUBCHAPTER A. INTRODUCTION
The new sections are adopted 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 247, which authorizes DADS to license and regulate assisted living facilities.
§92.1.Purpose and Application.
(a) The purpose of this chapter is to establish:
(1) the criteria and application procedure for licensing an assisted living facility;
(2) the licensing standards with which an assisted living facility must comply and that serve as a basis for licensure inspections, including:
(A) operation and resident care standards; and
(B) facility construction standards;
(3) the inspections and investigations DADS may conduct as a regulatory authority; and
(4) enforcement actions DADS may take against an assisted living facility.
(b) This chapter applies to an assisted living facility licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 247. Assisted living services are driven by a philosophy that emphasizes personal dignity and autonomy to age in place in a residential setting while receiving increasing or decreasing levels of services as the person's needs change.
§92.2.Definitions.
The following words and terms, when used in this chapter, have the following meaning, unless the context clearly indicates otherwise.
(1) Accreditation commission--Has the meaning given in Texas Health and Safety Code, §247.032.
(2) Advance directive--Has the meaning given in Texas Health and Safety Code, §166.002.
(3) Affiliate--With respect to:
(A) a partnership, each partner thereof;
(B) a corporation, each officer, director, principal stockholder, subsidiary, and each person with a disclosable interest, as the term is defined in this section; and
(C) a natural person:
(i) said person's spouse;
(ii) each partnership and each partner thereof of which said person or any affiliate of said person is a partner; and
(iii) each corporation in which said person is an officer, director, principal stockholder, or person with a disclosable interest.
(4) Alzheimer's facility--A type B assisted living facility that is certified to provide specialized services to residents with Alzheimer's or a related condition.
(5) Applicant--A person applying for a license to operate an assisted living facility under Texas Health and Safety Code, Chapter 247.
(6) Attendant--A facility employee who provides direct care to residents. This employee may serve other functions, including cook, janitor, porter, maid, laundry worker, security personnel, bookkeeper, activity director, and manager.
(7) Authorized electronic monitoring (AEM)--The placement of an electronic monitoring device in a resident's room and using the device to make tapes or recordings after making a request to the facility to allow electronic monitoring.
(8) Behavioral emergency--Has the meaning given in §92.41(p)(2) of this chapter (relating to Standards for Type A, Type B, and Type E Assisted Living Facilities).
(9) Change of ownership--A change of ownership is:
(A) a change of sole proprietorship that is licensed to operate a facility;
(B) a change of 50 percent or more in the ownership of the business organization that is licensed to operate the facility;
(C) a change in the federal taxpayer identification number; or
(D) relinquishment by the license holder of the operation of the facility.
(10) Co-mingles--The laundering of apparel or linens of two or more individuals together.
(11) Controlling person--A person with the ability, acting alone or with others, to directly or indirectly influence, direct, or cause the direction of the management, expenditure of money, or policies of an assisted living facility or other person. A controlling person includes:
(A) a management company, landlord, or other business entity that operates or contracts with others for the operation of an assisted living facility;
(B) any person who is a controlling person of a management company or other business entity that operates an assisted living facility or that contracts with another person for the operation of an assisted living facility; and
(C) any other individual who, because of a personal, familial, or other relationship with the owner, manager, landlord, tenant, or provider of an assisted living facility, is in a position of actual control or authority with respect to the facility, without regard to whether the individual is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility, except an employee, lender, secured creditor, landlord, or other person who does not exercise formal or actual influence or control over the operation of an assisted living facility.
(12) Covert electronic monitoring--The placement and use of an electronic monitoring device that is not open and obvious, and the facility and DADS have not been informed about the device by the resident, by a person who placed the device in the room, or by a person who uses the device.
(13) DADS--The Department of Aging and Disability Services.
(14) DHS--Formerly, this term referred to the Texas Department of Human Services; it now refers to DADS.
(15) Dietitian--A person who currently holds a license or provisional license issued by the Texas State Board of Examiners of Dietitians.
(16) Disclosure statement--A DADS form for prospective residents or their legally authorized representatives that a facility must complete. The form contains information regarding the preadmission, admission, and discharge process; resident assessment and service plans; staffing patterns; the physical environment of the facility; resident activities; and facility services.
(17) Electronic monitoring device--Video surveillance cameras and audio devices installed in a resident's room, designed to acquire communications or other sounds that occur in the room. An electronic, mechanical, or other device used specifically for the nonconsensual interception of wire or electronic communication is excluded from this definition.
(18) Facility--An entity required to be licensed under the Assisted Living Facility Licensing Act, Texas Health and Safety Code, Chapter 247.
(19) Fire suppression authority--The paid or volunteer fire-fighting organization or tactical unit that is responsible for fire suppression operations and related duties once a fire incident occurs within its jurisdiction.
(20) Governmental unit--The state or any county, municipality, or other political subdivision, or any department, division, board, or other agency of any of the foregoing.
(21) Health care professional--An individual licensed, certified, or otherwise authorized to administer health care, for profit or otherwise, in the ordinary course of business or professional practice. The term includes a physician, registered nurse, licensed vocational nurse, licensed dietitian, physical therapist, and occupational therapist.
(22) Immediate threat--There is considered to be an immediate threat to the health or safety of a resident, or a situation is considered to put the health or safety of a resident in immediate jeopardy, if there is a situation in which an assisted living facility's noncompliance with one or more requirements of licensure has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.
(23) Immediately available--The capacity of facility staff to immediately respond to an emergency after being notified through a communication or alarm system. The staff are to be no more than 600 feet from the farthest resident and in the facility while on duty.
(24) Large facility--A facility licensed for 17 or more residents.
(25) Legally authorized representative--A person authorized by law to act on behalf of a person with regard to a matter described in this chapter, and may include a parent, guardian, or managing conservator of a minor, or the guardian of an adult.
(26) Management services--Services provided under contract between the owner of a facility and a person to provide for the operation of a facility, including administration, staffing, maintenance, or delivery of resident services. Management services do not include contracts solely for maintenance, laundry, transportation, or food services.
(27) Manager--The individual in charge of the day-to-day operation of the facility.
(28) Medication--
(A) Medication is any substance:
(i) recognized as a drug in the official United States Pharmacopoeia, Official Homeopathic Pharmacopoeia of the United States, Texas Drug Code Index or official National Formulary, or any supplement to any of these official documents;
(ii) intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease;
(iii) other than food intended to affect the structure or any function of the body; and
(iv) intended for use as a component of any substance specified in this definition.
(B) Medication includes both prescription and over-the-counter medication, unless otherwise specified.
(C) Medication does not include devices or their components, parts, or accessories.
(29) Medication administration--The direct application of a medication or drug to the body of a resident by an individual legally allowed to administer medication in the state of Texas.
(30) Medication assistance or supervision--The assistance or supervision of the medication regimen by facility staff. Refer to §92.41(j) of this chapter.
(31) Medication (self-administration)--The capability of a resident to administer the resident's own medication or treatments without assistance from the facility staff.
(32) NFPA 101--The 1988 publication titled "NFPA 101 Life Safety Code" published by the National Fire Protection Association, Inc., 1 Batterymarch Park, Quincy, Massachusetts 02169.
(33) Ombudsman--has the meaning given in §85.2 of this title (relating to Definitions).
(34) Person--Any individual, firm, partnership, corporation, association, or joint stock association, and the legal successor thereof.
(35) Person with a disclosable interest--Any person who owns 5.0 percent interest in any corporation, partnership, or other business entity that is required to be licensed under Texas Health and Safety Code, Chapter 247. A person with a disclosable interest does not include a bank, savings and loan, savings bank, trust company, building and loan association, credit union, individual loan and thrift company, investment banking firm, or insurance company unless such entity participates in the management of the facility.
(36) Personal care services--Assistance with meals, dressing, movement, bathing, or other personal needs or maintenance; the administration of medication by a person licensed to administer medications or the assistance with or supervision of medication; or general supervision or oversight of the physical and mental well-being of a person who needs assistance to maintain a private and independent residence in the facility or who needs assistance to manage his or her personal life, regardless of whether a guardian has been appointed for the person.
(37) Physician--A practitioner licensed by the Texas Medical Board.
(38) Practitioner--An individual who is currently licensed in a state in which the individual practices as a physician, dentist, podiatrist, or a physician assistant; or a registered nurse approved by the Texas Board of Nursing to practice as an advanced practice nurse.
(39) Qualified medical personnel--An individual who is licensed, certified, or otherwise authorized to administer health care. The term includes a physician, registered nurse, and licensed vocational nurse.
(40) Resident--An individual accepted for care in a facility.
(41) Respite--The provision by a facility of room, board, and care at the level ordinarily provided for permanent residents of the facility to a person for not more than 60 days for each stay in the facility.
(42) Restraint hold--
(A) A manual method, except for physical guidance or prompting of brief duration, used to restrict:
(i) free movement or normal functioning of all or a portion of a resident's body; or
(ii) normal access by a resident to a portion of the resident's body.
(B) Physical guidance or prompting of brief duration becomes a restraint if the resident resists the guidance or prompting.
(43) Restraints--Chemical restraints are psychoactive drugs administered for the purposes of discipline or convenience and are not required to treat the resident's medical symptoms. Physical restraints are any manual method, or physical or mechanical device, material, or equipment attached or adjacent to the resident that restricts freedom of movement. Physical restraints include restraint holds.
(44) Safety--Protection from injury or loss of life due to such conditions as fire, electrical hazard, unsafe building or site conditions, and the hazardous presence of toxic fumes and materials.
(45) Seclusion--The involuntary separation of a resident from other residents and the placement of the resident alone in an area from which the resident is prevented from leaving.
(46) Service plan--A written description of the medical care, supervision, or nonmedical care needed by a resident.
(47) Short-term acute episode--An illness of less than 30 days duration.
(48) Small facility--A facility licensed for 16 or fewer residents.
(49) Staff--Employees of an assisted living facility.
(50) Standards--The minimum conditions, requirements, and criteria established in this chapter with which a facility must comply to be licensed under this chapter.
(51) Terminal condition--A medical diagnosis, certified by a physician, of an illness that will result in death in six months or less.
(52) Universal precautions--An approach to infection control in which blood, any body fluids visibly contaminated with blood, and all body fluids in situations where it is difficult or impossible to differentiate between body fluids are treated as if known to be infectious for HIV, hepatitis B, and other blood-borne pathogens.
(53) Working day--Any 24-hour period, Monday through Friday, excluding state and federal holidays.
§92.3.Types of Assisted Living Facilities.
(a) Basis for licensure type. An assisted living facility must be licensed as a Type A, Type B, Type C, or Type E facility. A facility's licensure type is based on the capability of the residents to evacuate the facility or the types of services the facility provides, or both, as described in this section.
(b) Type A. In a Type A facility, a resident:
(1) must be physically and mentally capable of evacuating the facility without physical assistance from staff, which may include an individual who is mobile, although non-ambulatory, such as an individual who uses a wheelchair or an electric cart, and has the capacity to transfer and evacuate himself or herself in an emergency;
(2) does not require routine attendance during nighttime sleeping hours; and
(3) must be capable of following directions under emergency conditions.
(4) must be able to demonstrate to DADS that they can meet the evacuation requirements described in §92.62(b) of this chapter.
(c) Type B. In a Type B facility, a resident may:
(1) require staff assistance to evacuate;
(2) require attendance during nighttime sleeping hours;
(3) be incapable of following directions under emergency conditions; and
(4) require assistance in transferring to and from a wheelchair, but must not be permanently bedfast.
(d) Type C. A Type C facility is a four-bed facility that:
(1) has an active contract with DADS to provide adult foster care services as described in Chapter 48, Subchapter K of this title (relating to Minimum Standards for Adult Foster Care); and
(2) must be contracted with DADS to provide adult foster care services before it can be licensed.
(e) Type E.
(1) In a Type E facility, a resident:
(A) must be physically and mentally capable of evacuating the facility without physical assistance from staff, which may include an individual who is mobile, although non-ambulatory, such as an individual who uses a wheelchair or an electric cart and has the capacity to transfer and evacuate himself or herself in an emergency;
(B) must not require routine attendance during nighttime sleeping hours;
(C) must be capable of following directions under emergency conditions; and
(D) must be able to demonstrate to DADS that they can meet the evacuation requirements described in §92.72(b) of this chapter.
(2) Notwithstanding any other provision in this chapter, a Type E facility:
(A) provides only:
(i) medication supervision, in accordance with Texas Health and Safety Code, §247.002(5)(B); and
(ii) general supervision of residents' welfare, in accordance with Texas Health and Safety Code §247.002(5)(C); and
(B) must not provide substantial assistance with the activities of daily living, as described by Texas Health and Safety Code §247.002(5)(A) (assistance with meals, dressing, movement, bathing, or other personal needs or maintenance).
§92.5.Health Care Professional.
(a) A health care professional, may provide services to a resident within the professional's scope of practice; however, the facility must not provide ongoing services to a resident that are comparable to the services available in a nursing facility licensed under Texas Health and Safety Code, Chapter 242.
(b) A resident may contract with a home and community support services agency licensed under Chapter 142 or with an independent health professional to have health care services delivered to the resident at the facility.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 23, 2008.
TRD-200806680
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: January 15, 2009
Proposal publication date: August 1, 2008
For further information, please call: (512) 438-3734
The new sections are adopted 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 247, which authorizes DADS to license and regulate assisted living facilities.
§92.11.Criteria for Licensing.
(a) A person must be licensed to establish or operate an assisted living facility in Texas.
(1) An assisted living facility is an establishment that:
(A) furnishes, in one or more facilities, food and shelter to four or more persons who are unrelated to the proprietor of the establishment; and
(B) provides personal care services.
(2) DADS considers one or more facilities to be part of the same establishment and, therefore, subject to licensure as an assisted living facility, based on the following factors:
(A) common ownership;
(B) physical proximity;
(C) shared services, personnel, or equipment in any part of the facilities' operations; and
(D) any public appearance of joint operations or of a relationship between the facilities.
(3) The presence or absence of any one factor in paragraph (2) of this subsection is not conclusive.
(b) To obtain a license, a person must follow the application requirements in this subchapter and meet the criteria for a license.
(c) An applicant must affirmatively show that the applicant, license holder, controlling person, and any person required to submit background and qualification information meet the criteria and eligibility for licensing, in accordance with this section, and:
(1) affirmatively show that:
(A) the building in which the facility is housed:
(i) meets local fire ordinances;
(ii) is approved by the local fire authority; and
(iii) meets DADS licensing standards in accordance with Subchapter D of this chapter (relating to Facility Construction) based on an onsite inspection by DADS; and
(B) operation of the facility meets DADS licensing standards based on an on-site health inspection by DADS, which must include observation of the care of a resident; or
(2) affirmatively show that the facility meets the standards for accreditation based on an on-site accreditation survey by the accreditation commission.
(d) An applicant that chooses the option allowed in subsection (c)(2) of this section must contact DADS to determine which accreditation commissions are available to meet the requirements of subsection (c)(2) of this section.
(e) DADS issues a license to a facility meeting all requirements of this chapter. The facility must not exceed the maximum allowable number of residents specified on the license.
(f) DADS denies an application for an initial license or for the renewal of a license if:
(1) the applicant, license holder, controlling person, or any person required to submit background and qualification information has been debarred or excluded from the Medicare or Medicaid programs by the federal government or a state;
(2) a court has issued an injunction prohibiting the applicant, license holder, controlling person, or any person required to submit background and qualification information from operating a facility; or
(3) during the five years preceding the date of the application, a license to operate a health care facility, long-term care facility, assisted living facility, or similar facility in any state held by the applicant, license holder, controlling person, or any person required to submit background and qualification information has been revoked.
(g) A license holder or controlling person who operates a nursing facility or an assisted living facility for which a trustee was appointed and for which emergency assistance funds, other than funds to pay the expenses of the trustee, were used is subject to exclusion from eligibility for:
(1) the issuance of an initial license for a facility for which the person has not previously held a license; and
(2) the renewal of the license of the facility for which the trustee was appointed.
(h) DADS may deny an application for an initial license or refuse to renew a license if an applicant, license holder, controlling person, or any person required to submit background and qualification information:
(1) violates Texas Health and Safety Code, Chapter 247; a section, standard or order adopted under Chapter 247; or a license issued under Chapter 247 in either a repeated or substantial manner;
(2) commits an act described in §92.551(a)(2) - (7) of this chapter (relating to Administrative Penalties);
(3) aids, abets, or permits a substantial violation described in paragraphs (2) - (3) of this subsection about which the person had or should have had knowledge;
(4) fails to provide the required information, facts, or references;
(5) provides the following false or fraudulent information:
(A) knowingly submits false or intentionally misleading statements to DADS;
(B) uses subterfuge or other evasive means of filing an application for licensure;
(C) engages in subterfuge or other evasive means of filing on behalf of another who is unqualified for licensure;
(D) knowingly conceals a material fact related to licensure; or
(E) is responsible for fraud;
(6) fails to pay the following fees, taxes, and assessments when due:
(A) license fees as described in §92.4 of this chapter (relating to License Fees); or
(B) franchise taxes, if applicable;
(7) during the five years preceding the date of the application, has a history in any state or other jurisdiction of any of the following:
(A) operation of a facility that has been decertified or has had its contract canceled under the Medicare or Medicaid program;
(B) federal or state long-term care facility, assisted living facility, or similar facility sanctions or penalties, including monetary penalties, involuntary downgrading of the status of a facility license, proposals to decertify, directed plans of correction, or the denial of payment for new Medicaid admissions;
(C) unsatisfied final judgments, excluding judgments wholly unrelated to the provision of care rendered in long-term care facilities;
(D) eviction involving any property or space used as a facility; or
(E) suspension of a license to operate a health care facility, long-term care facility, assisted living facility, or a similar facility;
(8) violates Texas Health and Safety Code, §247.021 by operating a facility without a license; or
(9) has a state or federal criminal conviction for any offense that provides a penalty of incarceration.
(i) For the grounds for denial of an application for an initial license or an application for renewal of a license set out in subsection (h)(8) of this section, DADS considers exculpatory information provided by an applicant, a license holder, a person with a disclosable interest, or a manager and may grant a license if DADS finds the applicant, license holder, person with a disclosable interest, affiliate, or manager able to comply with the rules in this chapter.
(j) For the grounds for denial of an application for an initial license or an application for renewal of a license set out in subsections (f) and (h)(8) of this section, DADS considers only final actions. An action is final when routine administrative and judicial remedies are exhausted. An applicant must disclose all actions, whether pending or final.
(k) If an applicant owns multiple facilities, DADS examines the overall record of compliance in all of the applicant's facilities. An overall record poor enough to deny issuance of a new license does not preclude the renewal of a license of a facility with a satisfactory record.
§92.14.Initial License Application Procedures and Requirements.
(a) An applicant must complete the DADS pre-licensure training course before submitting an application for an initial license. An applicant that is currently licensed under Texas Health and Safety Code, Chapter 247 is exempt from this requirement.
(b) An applicant for an initial license must submit an application in accordance with §92.12 of this subchapter (relating to General Application Requirements) and include the fees required in §92.4 of this chapter (relating to License Fees).
(c) DADS reviews an application for an initial license within 30 days after the date DADS' Licensing and Credentialing Section receives the application and notifies the applicant if additional information is needed to complete the application.
(d) The applicant must send written notice to DADS indicating that the facility is ready for a Life Safety Code (LSC) inspection. The written notice must be submitted with the application or within 120 days after DADS' Licensing and Credentialing Section receives the application. After DADS has received the written notice and the applicant has satisfied the application submission requirements in §92.11 of this subchapter (relating to Criteria for Licensing) and §92.12 of this subchapter, DADS staff conduct an on-site LSC inspection of the facility to determine if the facility meets the licensure requirements in Subchapter D of this chapter (relating to Facility Construction).
(e) If the facility fails to meet the licensure requirements within 120 days after the initial LSC inspection, DADS denies the application for a license.
(f) After a facility has met the licensure requirements in Subchapter D of this chapter (relating to Facility Construction) and has admitted at least one but no more than three residents, the applicant must send a written notice to DADS indicating the facility is ready for a health inspection.
(1) DADS staff conduct an on-site health inspection to determine if the facility meets the licensure requirements for standards of operation and resident care in Subchapter C of this chapter (relating to Standards for Licensure).
(2) If the facility fails to meet the licensure requirements for standards of operation and resident care within 120 days after the initial health inspection, DADS denies the application for a license.
(g) DADS issues a license within 30 days after DADS determines that the applicant and the facility have met the licensure requirements of this section. The issuance of a license constitutes DADS' official written notice to the facility of the approval of the application.
(h) DADS may deny an application for an initial license if the applicant, controlling person, or any person required to submit background and qualification information fails to meet the criteria for a license established in §92.11 of this subchapter.
(i) If DADS denies an application for an initial license, DADS sends the applicant a written notice of the denial and informs the applicant of the applicant's right to request an administrative hearing to appeal the denial. The administrative hearing is held in accordance with Texas Health and Human Services Commission rules at 1 TAC Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act).
§92.15.Renewal Procedures and Qualifications.
(a) A license issued under this chapter:
(1) expires two years after the date issued, except as provided by subsection (b) of this section;
(2) must be renewed before the license expiration date; and
(3) is not automatically renewed.
(b) A facility must submit an application for license renewal and a renewal license will be valid as follows:
(1) For two years beginning September 1, 2008, a facility with a facility identification number that ends in an odd number (1, 3, 5, 7, or 9) must submit an application to renew its license before the expiration date on the license in accordance with this section. The facility's first renewal license issued beginning September 1, 2008, is valid for one year, and subsequent renewal licenses are valid for two years.
(2) A facility with a facility identification number that ends in an even number (0, 2, 4, 6, or 8) must submit an application to renew its license before the expiration date on the license in accordance with this section. The facility's renewal licenses are valid for two years.
(c) An application for renewal must comply with the requirements of §92.12 of this subchapter (relating to General Application Requirements) and §92.13 of this subchapter (relating to Time Periods for Processing All Types of License Applications). The submission of a license fee alone does not constitute an application for renewal.
(d) To renew a license, a license holder must submit an application for renewal with DADS before the expiration date. DADS considers the license holder has met the renewal application submission deadline if the license holder submits to DADS:
(1) a complete application for renewal no later than 45 days before the expiration of the current license;
(2) an incomplete application for renewal, with a letter explaining the circumstances that prevented the inclusion of the missing information, and DADS receives the incomplete application and the letter no later than 45 days before the expiration of the current license; 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, and DADS receives the application during the 45-day period ending on the date the current license expires, and the license holder pays the late fee established in §92.4(b) of this chapter (relating to License Fees) in addition to the basic renewal fee.
(e) If the application is postmarked on or before the submission deadline, the application is considered to be timely if it is received in DADS' Licensing and Credentialing Section, Regulatory Services Division, within 15 days after the date of the postmark, or within 30 days after the date of the postmark and the license holder proves to the satisfaction of DADS that the delay was due to the shipper. It is the license holder's responsibility to ensure that the application is timely received by DADS.
(f) For purposes of Texas Government Code, §2001.054, DADS considers that an individual has submitted a timely and sufficient application for the renewal of a license if the license holder's application has met the submission deadlines in subsections (d) and (e) of this section. Failure to submit a timely and sufficient application will result in the expiration of the license.
(g) An application for renewal submitted after the expiration date of the license is considered to be an application for an initial license and must comply with the requirements for an initial license in §92.14 of this subchapter (relating to Initial License Application Procedures and Requirements).
(h) DADS reviews an application for a renewal license within 30 days after the date DADS' Licensing and Credentialing Section receives the application and notifies the applicant if additional information is needed to complete the application.
(i) A license holder applying for a license renewal must affirmatively show that the facility meets DADS licensing standards based on an on-site inspection by DADS, which must include an observation of the care of a resident.
(j) If an applicant is relying on §92.11(c)(2) of this subchapter (relating to Criteria for Licensing) to comply with the requirements for licensure, the application for the renewal of a license must include a copy of the license holder's required accreditation report from the accreditation commission.
(k) DADS may pend action on an application for the renewal of a license for up to six months if the facility has not met licensure requirements during an on-site inspection.
(l) The issuance of a license constitutes DADS' official written notice to the facility of the approval of the application.
(m) DADS may deny an application for the renewal of a license if the applicant, controlling person, or any person required to submit background and qualification information fails to meet the criteria for a license established in §92.11 of this subchapter.
(n) Before denying an application for renewal of a license, DADS gives the license holder:
(1) notice by personal service or by registered or certified mail of the facts or conduct alleged to warrant the proposed action; and
(2) an opportunity to show compliance with all requirements of law for the retention of the license.
(o) To request an opportunity to show compliance, the license holder must send its written request to the director of the Enforcement Section, Regulatory Services Division. The request must:
(1) be postmarked within 10 days after the date of DADS' notice and be received in the office of the director of the Enforcement Section, Regulatory Services Division, within 10 days after the date of the postmark; and
(2) contain specific documentation refuting DADS' allegations.
(p) The opportunity to show compliance is limited to a review of documentation submitted by the license holder and information DADS used as the basis for its proposed action and is not conducted as an adversary hearing. DADS gives the license holder a written affirmation or reversal of the proposed action.
(q) If DADS denies an application for the renewal of a license, the applicant may request:
(1) an informal reconsideration by the Health and Human Services Commission; and
(2) an administrative hearing to appeal the denial.
§92.16.Change of Ownership.
(a) A license is not transferable as part of a change of ownership as defined in §92.2 of this chapter (relating to Definitions).
(b) At least 30 days before the anticipated date of the change of ownership, the prospective owner must notify DADS of the change of ownership by submitting an application for an initial license based on a change of ownership under §92.14 of this subchapter (relating to Initial Application Procedures and Requirements) and the fee required in §92.4 of this chapter (relating to License Fees).
(c) To avoid a facility operating while unlicensed, an applicant must submit an application for an initial license based on a change of ownership at least 30 days before the anticipated date of the sale or other transfer to the new owner. The effective date of the change of ownership cannot precede the date the application is received by DADS' Licensing and Credentialing Section, Regulatory Services Division.
(d) DADS may assess an administrative penalty in accordance with Subchapter H, Division 9 of this chapter (relating to Administrative Penalties) against a person who fails to notify DADS before the effective date of the change of ownership.
(e) Pending DADS' review of the application for an initial license based on a change of ownership, the current license holder must continue to meet all requirements for operation of the facility.
(f) After reviewing the application for an initial license based on a change of ownership, DADS conducts an on-site health inspection to determine if the facility meets the standards for operation and resident care. If the facility is out of compliance with Life Safety Code licensure requirements in Subchapter D of this chapter (relating to Facility Construction), DADS also conducts an on-site Life Safety Code inspection of the facility.
(g) DADS issues the license within 30 days after DADS determines that the applicant and the facility have met the licensure requirements of this section. The issuance of a license constitutes DADS' official written notice to the facility of the approval of the application for a change of ownership.
(h) DADS may deny an application for a change of ownership if the applicant, controlling person, or any person required to submit background and qualification information fails to meet the criteria for a license established in §92.11 of this subchapter (relating to Criteria for Licensing).
(i) If DADS denies an application for an initial license based on a change of ownership, DADS sends the applicant a written notice of the denial and informs the applicant of the applicant's right to request an administrative hearing to appeal the denial. The administrative hearing is held in accordance with Texas Health and Human Services Commission rules at 1 TAC Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act).
§92.17.Relocation.
(a) Relocation is the closing of a facility and the movement of its residents to another location.
(b) A license holder must not relocate a facility without approval from DADS.
(c) Before a relocation, the license holder must submit an application for an initial license for the new location in accordance with §92.14 of this subchapter (relating to Initial Application Procedures and Requirements) and the fee required in §92.4 of this chapter (relating to License Fees).
(d) Residents must not be relocated until the new building has been inspected and approved as meeting the Life Safety Code licensure requirements in Subchapter D of this chapter (relating to Facility Construction).
(e) Following Life Safety Code approval by DADS, the license holder must notify DADS of the date the residents will be relocated.
(f) DADS issues a license for the new facility if the new facility meets the standards of operation and resident care based on an on-site health inspection. The effective date of the license is the date all residents are relocated.
(g) The license holder must continue to maintain the license at the current location and must continue to meet all requirements for operation of the facility until DADS has approved the relocation. The issuance of a license constitutes DADS' approval of the relocation. The license for the current location becomes invalid upon issuance of the new license for the new location.
§92.18.Increase in Capacity.
(a) A license holder must not increase a facility's licensed capacity without approval from DADS.
(b) The license holder must submit an application for an increase in capacity in accordance with §92.12 (relating to General Application Requirements) and the fee required in §92.4 of this chapter (relating to License Fees).
(c) The license holder must arrange for an inspection of the facility by the local fire marshal and provide the signed fire marshal approval to DADS.
(d) After DADS' review of an application and after the applicant notifies DADS in writing that the facility is ready for a Life Safety Code (LSC) inspection, DADS staff conduct an on-site LSC inspection of the facility to determine if the facility meets the LSC licensure requirements in Subchapter D of this chapter (relating to Facility Construction).
(e) If the facility fails to meet the LSC licensure requirements within 120 days after the LSC inspection, DADS denies the application for an increase in capacity.
(f) After a facility has met LSC licensure requirements, DADS staff conduct an on-site health inspection to determine if the facility meets the licensure requirements for standards of operation and resident care in Subchapter C of this chapter (relating to Standards for Licensure).
(g) DADS issues a new license with an increased capacity within 30 days after DADS determines that all licensure requirements have been met. DADS may grant approval to occupy the increased capacity once DADS determines that all licensure requirements have been met.
(h) In order to meet the residents' health and safety needs in the event of a fire, natural disaster, or catastrophic event, DADS may grant approval to temporarily exceed a facility's licensed capacity provided the health and safety of residents are not compromised and the facility can meet the required health care service needs of all residents. A facility may exceed its licensed capacity under this circumstance, monitored by DADS, until residents can be transferred to a permanent location. DADS will issue authorization for the temporary increase in the facility's licensed capacity. The authorization to temporarily increase the capacity ends when the facility receives written notice from DADS ending the authorization.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 23, 2008.
TRD-200806682
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: January 15, 2009
Proposal publication date: August 1, 2008
For further information, please call: (512) 438-3734
DIVISION 9. ADMINISTRATIVE PENALTIES
The new section is adopted 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 247, which authorizes DADS to license and regulate assisted living facilities.
§92.551.Administrative Penalties.
(a) Assessment of an administrative penalty. DADS may assess an administrative penalty if a license holder:
(1) violates:
(A) Texas Health and Safety Code, Chapter 247;
(B) a rule, standard, or order adopted under Texas Health and Safety Code, Chapter 247; or
(C) a term of a license issued under Texas Health and Safety Code, Chapter 247;
(2) makes a false statement of material fact that the license holder knows or should know is false:
(A) on an application for issuance or renewal of a license;
(B) in an attachment to the application; or
(C) with respect to a matter under investigation by DADS;
(3) refuses to allow a DADS representative to inspect:
(A) a book, record, or file that a facility must maintain; or
(B) any portion of the premises of a facility;
(4) willfully interferes with the work of a DADS representative or the enforcement of this chapter;
(5) willfully interferes with a DADS representative preserving evidence of a violation of Texas Health and Safety Code, Chapter 247; a rule, standard, or order adopted under Texas Health and Safety Code, Chapter 247; or a term of a license issued under Texas Health and Safety Code, Chapter 247;
(6) fails to pay an administrative penalty not later than the 30th calendar day after the penalty assessment becomes final; or
(7) fails to notify DADS of a change of ownership before the effective date of the change of ownership.
(b) Criteria for assessing an administrative penalty. DADS considers the following in determining the amount of an administrative penalty:
(1) the gradations of penalties established in subsection (d) of this section;
(2) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the situation, and the hazard or potential hazard created by the situation to the health or safety of the public;
(3) the history of previous violations;
(4) deterrence of future violations;
(5) the license holder's efforts to correct the violation;
(6) the size of the facility and of the business entity that owns the facility; and
(7) any other matter that justice may require.
(c) Late payment of an administrative penalty. A license holder must pay an administrative penalty within 30 calendar days after the penalty assessment becomes final. If a license holder fails to timely pay the administrative penalty, DADS may assess an administrative penalty under subsection (a)(6) of this section, which is in addition to the penalty that was previously assessed and not timely paid.
(d) Administrative penalty schedule. DADS uses the schedule of appropriate and graduated administrative penalties in this subsection to determine which violations warrant an administrative penalty.
(e) Administrative penalty assessed against a resident. DADS does not assess an administrative penalty against a resident, unless the resident is also an employee of the facility or a controlling person.
(f) Proposal of administrative penalties.
(1) DADS issues a preliminary report stating the facts on which DADS concludes that a violation has occurred after DADS has:
(A) examined the possible violation and facts surrounding the possible violation; and
(B) concluded that a violation has occurred.
(2) DADS may recommend in the preliminary report the assessment of an administrative penalty for each violation and the amount of the administrative penalty.
(3) DADS provides a written notice of the preliminary report to the license holder not later than 10 calendar days after the date on which the preliminary report is issued. The written notice includes:
(A) a brief summary of the violation;
(B) the amount of the recommended administrative penalty;
(C) a statement of whether the violation is subject to correction in accordance with subsection (g) of this section and, if the violation is subject to correction, a statement of:
(i) the date on which the license holder must file with DADS a plan of correction for approval by DADS; and
(ii) the date on which the license holder must complete the plan of correction to avoid assessment of the administrative penalty; and
(D) a statement that the license holder has a right to an administrative hearing on the occurrence of the violation, the amount of the penalty, or both.
(4) Not later than 20 calendar days after the date on which a license holder receives a written notice of the preliminary report, the license holder may:
(A) give DADS written consent to the preliminary report, including the recommended administrative penalty; or
(B) make a written request to the Texas Health and Human Services Commission (HHSC) for an administrative hearing.
(5) If a violation is subject to correction under subsection (g) of this section, the license holder must submit a plan of correction to DADS for approval not later than 10 calendar days after the date on which the license holder receives the written notice described in paragraph (3) of this subsection.
(6) If a violation is subject to correction under subsection (g) of this section, and after the license holder reports to DADS that the violation has been corrected, DADS inspects the correction or takes any other step necessary to confirm the correction and notifies the facility that:
(A) the correction is satisfactory and DADS will not assess an administrative penalty; or
(B) the correction is not satisfactory and a penalty is recommended.
(7) Not later than 20 calendar days after the date on which a license holder receives a notice under paragraph (6)(B) of this subsection (notice that the correction is not satisfactory and recommendation of a penalty), the license holder may:
(A) give DADS written consent to DADS' report, including the recommended administrative penalty; or
(B) make a written request to HHSC for an administrative hearing.
(8) If a license holder consents to the recommended administrative penalty or does not timely respond to a notice sent under paragraph (3) of this subsection (written notice of the preliminary report) or paragraph (6)(B) of this subsection (notice that the correction is not satisfactory and recommendation of a penalty):
(A) the commissioner or the commissioner's designee assesses the recommended administrative penalty;
(B) DADS gives written notice of the decision to the license holder; and
(C) the license holder must pay the penalty not later than 30 calendar days after the written notice given in subparagraph (B) of this paragraph.
(g) Opportunity to correct.
(1) A license holder has an opportunity to correct a violation, except a violation described in paragraph (2) of this subsection, and to avoid paying an administrative penalty, if the license holder corrects the violation not later than 45 calendar days after the date the facility receives the written notice described in subsection (f)(3) of this section.
(2) A license holder does not have an opportunity to correct a violation:
(A) that DADS determines results in serious harm to or death of a resident;
(B) described by subsection (a)(2) - (7) of this section;
(C) related to advance directives as described in §92.41(g);
(D) that is the second or subsequent violation of:
(i) a right of the same resident under §92.125 of this chapter (relating to Advance Directives); or
(ii) the same right of all residents under §92.125 of this chapter; or
(E) a violation that is written because of an inappropriately placed resident, except as described in §92.41(f) of this chapter (relating to Inappropriate Placement).
(3) Maintenance of violation correction.
(A) A license holder that corrects a violation must maintain the correction. If the license holder fails to maintain the correction until at least the first anniversary of the date the correction was made, DADS may assess and collect an administrative penalty for the subsequent violation.
(B) An administrative penalty assessed under this paragraph is equal to three times the amount of the original administrative penalty that was assessed but not collected.
(C) DADS is not required to offer the license holder an opportunity to correct the subsequent violation.
(h) Hearing on an administrative penalty. If a license holder timely requests an administrative hearing as described in subsection (f)(3) or (f)(7) of this section, the administrative hearing is held in accordance with HHSC rules at 1 TAC Chapter 357, Subchapter I (relating to Hearings under the Administrative Procedure Act).
(i) DADS may charge interest on an administrative penalty. The interest begins the day after the date the penalty becomes due and ends on the date the penalty is paid in accordance with Texas Health and Safety Code, §247.0455(e).
(j) Amelioration of a violation.
(1) In lieu of demanding payment of an administrative penalty, the commissioner may allow a license holder to use, under DADS' supervision, any portion of the administrative penalty to ameliorate the violation or to improve services, other than administrative services, in the facility affected by the violation. Amelioration is an alternate form of payment of an administrative penalty, not an appeal, and does not remove a violation or an assessed administrative penalty from a facility's history.
(2) A license holder cannot ameliorate a violation that DADS determines constitutes immediate jeopardy to the health or safety of a resident.
(3) DADS offers amelioration to a license holder not later than 10 calendar days after the date a license holder receives a final notification of the recommended assessment of an administrative penalty that is sent to the license holder after an informal dispute resolution process but before an administrative hearing.
(4) A license holder to whom amelioration has been offered must:
(A) submit a plan for amelioration not later than 45 calendar days after the date the license holder receives the offer of amelioration from DADS; and
(B) agree to waive the license holder's right to an administrative hearing if DADS approves the plan for amelioration.
(5) A license holder's plan for amelioration must:
(A) propose changes to the management or operation of the facility that will improve services to or quality of care of residents;
(B) identify, through measurable outcomes, the ways in which and the extent to which the proposed changes will improve services to or quality of care of residents;
(C) establish clear goals to be achieved through the proposed changes;
(D) establish a time line for implementing the proposed changes; and
(E) identify specific actions the license holder will take to implement the proposed changes.
(6) A license holder's plan for amelioration may include proposed changes to:
(A) improve staff recruitment and retention;
(B) offer or improve dental services for residents; and
(C) improve the overall quality of life for residents.
(7) DADS may require that an amelioration plan propose changes that would result in conditions that exceed the requirements of this chapter.
(8) DADS approves or denies a license holder's amelioration plan not later than 45 calendar days after the date DADS receives the plan. If DADS approves the amelioration plan, any pending request the license holder has submitted for an administrative hearing must be withdrawn by the license holder.
(9) DADS does not offer amelioration to a license holder:
(A) more than three times in a two-year period; or
(B) more than one time in a two-year period for the same or a similar violation.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 23, 2008.
TRD-200806684
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: January 15, 2009
Proposal publication date: August 1, 2008
For further information, please call: (512) 438-3734
The repeal is adopted 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 247, which authorizes DADS to license and regulate assisted living facilities.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 23, 2008.
TRD-200806681
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: January 15, 2009
Proposal publication date: August 1, 2008
For further information, please call: (512) 438-3734
The repeal is adopted 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 247, which authorizes DADS to license and regulate assisted living facilities.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 23, 2008.
TRD-200806683
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: January 15, 2009
Proposal publication date: August 1, 2008
For further information, please call: (512) 438-3734
DIVISION 9. ADMINISTRATIVE PENALTIES
The repeal is adopted 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 247, which authorizes DADS to license and regulate assisted living facilities.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 23, 2008.
TRD-200806685
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: January 15, 2009
Proposal publication date: August 1, 2008
For further information, please call: (512) 438-3734
The repeal is adopted 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 247, which authorizes DADS to license and regulate assisted living facilities.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 23, 2008.
TRD-200806686
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: January 15, 2009
Proposal publication date: August 1, 2008
For further information, please call: (512) 438-3734
The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §§97.3, 97.17, 97.25, and 97.31 in Chapter 97, Licensing Standards for Home and Community Support Services Agencies. The amendment to §97.17 is adopted with changes to the proposed text published in the September 19, 2008, issue of the Texas Register (33 TexReg 7983). The amendments to §§97.3, 97.25, and 97.31 are adopted without changes to the proposed text and will not be republished.
The amendments are adopted to implement portions of Senate Bill (SB) 1318, 80th Legislature, Regular Session, 2007, which, in part, amended Texas Health and Safety Code, §142.0105. Texas Health and Safety Code, §142.0105, specifies a timeframe of not later than the 45th day before the expiration date of the license for submitting a license renewal application; allows DADS to set a late fee if a license renewal application is submitted later than the 45th day before the expiration date of the license; increases the number of days before the date a license expires for DADS to send notice to an HCSSA of the impending expiration of a license; and adds that the written notice of license expiration includes a license renewal application and instructions.
Two minor editorial changes were made to the text of §97.17(g)(1) and (g)(2) to clarify and improve the accuracy of the section.
DADS received written comments from the Texas Association for Home Care in support of the adoption.
SUBCHAPTER A. GENERAL PROVISIONS
The amendment is adopted 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.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 23, 2008.
TRD-200806691
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: January 15, 2009
Proposal publication date: September 19, 2008
For further information, please call: (512) 438-3734
The amendments are adopted 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.
§97.17.Application Procedures for a Renewal License.
(a) A renewal license is valid for two years, except as provided by subsection (b)(1) of this section. In order to continue providing services to clients, an agency must renew its license.
(b) An agency must submit an application for license renewal and a renewal license will be valid as follows:
(1) For two years beginning September 1, 2008, an agency with a license that ends in an odd number (1, 3, 5, 7, or 9) must submit an application to renew its license before the expiration date on the license in accordance with this section. The agency's first renewal license issued beginning September 1, 2008, is valid for one year, and subsequent renewal licenses are valid for two years.
(2) An agency with a license that ends in an even number (0, 2, 4, 6, or 8) must submit an application to renew its license before the expiration date on the license in accordance with this section. The agency's renewal licenses are valid for two years.
(c) For each license period, an agency must provide services to at least one client.
(d) DADS does not require an agency to admit a client under each category authorized under the license as a condition for renewal of the license.
(e) An agency must document the provision of services and keep documentation readily available for review by a DADS surveyor.
(f) With each renewal application, an accredited agency must submit documentation of its current accreditation by an accreditation organization approved by DADS.
(g) DADS sends written notice of expiration of a license to an agency at least 120 days before the expiration date of the license. The written notice includes an application to renew the license and instructions for completing the application.
(1) If an agency does not receive notice of expiration from DADS at least 90 days before the expiration date of a license, the agency must notify DADS and submit a written request for a renewal application.
(2) An agency must submit a complete and correct renewal application to DADS that is postmarked no later than the 45th day before the expiration date of the license.
(3) If an agency submits a renewal application that is postmarked later than the 45th day before the expiration date of a license, but no later than the expiration date of the license, DADS assesses the late fee set out in §97.3(c) of this chapter for failure to comply with paragraph (2) of this subsection.
(4) All documents submitted with the renewal application must be notarized copies or originals.
(h) Upon receipt of a renewal application and the renewal license fee, DADS reviews the application to determine whether it is complete and correct. A complete and correct renewal application includes all documents and information that DADS requests as part of the application process. If DADS receives a partial fee, the renewal application and monies are returned.
(1) DADS processes the renewal application according to the time frames in §97.31 of this chapter (relating to Time Frames for Processing and Issuing a License).
(2) If an agency decides not to continue the application process for a renewal license after submitting the renewal application and the renewal license fee, the agency must submit to DADS a written request to withdraw the renewal application. DADS does not refund the renewal license fee.
(3) If an agency receives written notice from DADS that some or all of the information required by this section is missing or incomplete, the required information must be submitted to DADS and postmarked no later than 30 days after the date of the notice. If an agency fails to submit the required information to DADS postmarked no later than 30 days after the date of the notice, DADS considers the renewal application incomplete and denies the application. If DADS denies the renewal application, DADS does not refund the renewal license fee.
(4) If an agency receives a written notice from DADS that a late fee is assessed in accordance with subsection (g) of this section, the agency's late fee must be postmarked no later than 30 days after the date of the notice or DADS considers the renewal application incomplete and denies the application. If DADS denies the renewal application, DADS does not refund the renewal license fee.
(i) If an agency submits a renewal application to DADS that is postmarked after the expiration date of the license, DADS denies the renewal application and does not refund the renewal license fee. The agency is not eligible to renew the license and must cease operation on the date the license expires. An agency whose license expires must apply for an initial license in accordance with §97.13 of this subchapter (relating to Application Procedures for an Initial License).
(j) If an agency submits a timely renewal application in accordance with this section, and an action to revoke, suspend, or deny renewal of the license is pending, the agency may continue to operate, and the license is valid until the agency has had an opportunity for a formal hearing as described in §97.601 of this chapter (relating to Enforcement Actions). Until the action to revoke, suspend, or deny renewal of the license is completed, the agency must continue to submit a renewal application in accordance with this section. DADS issues a renewal license only if DADS determines the reason for the proposed action no longer exists.
(k) If a license holder fails to submit a timely renewal application in accordance with this section because the license holder is or was on active duty with the armed forces of the United States of America outside the state of Texas, the license holder may renew the license pursuant to this subsection.
(1) An individual having power of attorney from the license holder or other authority to act on behalf of the license holder may request renewal of the license. The renewal application must include a current address and telephone number for the individual requesting the renewal.
(2) An agency may request a renewal application before or after the expiration of the license.
(3) A copy of the official orders or other official military documentation showing that the license holder is or was on active military duty serving outside the state of Texas must be filed with DADS along with the renewal application.
(4) A copy of the power of attorney from the license holder or other authority to act on behalf of the license holder must be filed with DADS along with the renewal application.
(5) A license holder renewing under this subsection must pay the applicable renewal fee.
(6) A license holder is not authorized to operate the agency for which the license was obtained after the expiration of the license unless and until the license holder actually renews the license.
(7) This subsection applies to a license holder who is an individual or a partnership comprised of individuals, all of whom are or were on active duty with the armed forces of the United States of America serving outside the state of Texas.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 23, 2008.
TRD-200806692
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: January 15, 2009
Proposal publication date: September 19, 2008
For further information, please call: (512) 438-3734
The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §§97.245 - 97.247, 97.249, 97.250, 97.282, 97.283, 97.501, 97.507, 97.525, and 97.527; new §97.502 and §97.602; and the repeal of §97.602 in Chapter 97, Licensing Standards for Home and Community Support Services Agencies (HCSSAs). The amendments to §§97.247, 97.249, and 97.525; and new §97.602, are adopted with changes to the proposed text published in the August 8, 2008, issue of the Texas Register (33 TexReg 6346). The amendments to §§97.245, 97.246, 97.250, 97.282, 97.283, 97.501, 97.507, 97.527, new §97.502, and the repeal of §97.602 are adopted without changes to the proposed text and will not be republished.
The amendments, new sections and repeal are adopted to comply with certain sections in Senate Bill 1318, 80th Legislature, 2007, which amended the Texas Health and Safety Code, Chapter 142. Texas Health and Safety Code, §142.009, was amended to add that complaints investigated by DADS include allegations of abuse, neglect, or exploitation of a child. The amendments and a new section on abuse, neglect, and exploitation are adopted to clarify DADS' authority to investigate allegations of abuse, neglect, or exploitation of a child served by a HCSSA and allegations of abuse, neglect, or exploitation of an elderly or disabled client in a facility regulated by DADS. In addition, the amendments and new section on abuse, neglect, and exploitation are adopted to address the prevention, reporting and investigation of abuse, neglect and exploitation of a client by a HCSSA employee, volunteer, or contractor in accordance with provisions in the HCSSA statute and other Texas laws and rules that apply to HCSSAs, DADS, and the Department of Family and Protective Services (DFPS).
Texas Health and Safety Code, §142.017, was amended to add criteria for which DADS may assess an administrative penalty without providing time to correct a violation before assessing the penalty. The amendments, new rules, and repeal on the topic of administrative penalties are adopted to clarify and update language on an administrative penalty for a violation of law relating to advance directives, to add criteria for which DADS may assess a penalty without providing an opportunity to correct the violation, and to add, update and amend violations that meet the added criteria.
The amendment to §97.247 is changed to add "whose duties would or do include face-to-face contact with a client" to the text of §97.247(a) to clarify that the rules in subsection (a) only apply to employees who have face-to-face contact with a client. "The effective date of this rule" in §97.247(c) is changed to "January 15, 2009."
The amendment to §97.249 is changed to add to subsection (c) that "immediately," as used in this rule, means within 24 hours, to improve clarity and compliance with the rule by providing a standardized timeframe for reporting abuse, neglect, and exploitation. Section 97.249(c)(1) is changed to add the secure website of DFPS and its toll-free number, for a HCSSA to use to report abuse, neglect, and exploitation of a client.
The amendment to §97.525 is changed to add a cross-reference in subsection (a) to §97.523, the rule that describes the requirements for HCSSA personnel to participate in an entrance conference held by a DADS surveyor.
The new §97.602 is changed to clarify and improve the accuracy of the rule cite for §97.248(a) - (b)(1) - (4) and the subject matter descriptions for rule cites §97.292(a) and §97.292(b) on the Severity Level A Violations table.
DADS received written comments from the Texas Association of Home Care, from one HCSSA administrator, and from one individual commenter. A summary of the comments and the responses follow.
Comment: Two commenters suggested adding "who will have face-to-face contact with a client" after "immediately discharge any employee" to §97.247(a)(6) to clarify that employees without face-to-face contact with a client may continue to work in a HCSSA in other capacities that would not, or do not, involve face-to-face contact with a client.
Response: The agency added "whose duties would or do include face-to-face contact with a client" to the rule text in §97.247(a) to clarify that the rules in subsection (a) only apply to applicants and employees whose duties would or do include face-to-face contact with a client.
Comment: A commenter voiced concern about removing the definition of "reportable conduct" from §97.249 since it provides clear guidance on what is considered reportable abuse, neglect and exploitation and because removing this definition will require a HCSSA to report abuse, neglect, and exploitation that may not be reportable to the Employee Misconduct Registry maintained by DADS under the Texas Health and Safety Code, Chapter 253.
Response: The agency deleted "reportable conduct" from §97.249 because the statutory definitions for "reportable conduct" are for referrals by DADS and DFPS to the employee misconduct registry and are not the definitions used by a HCSSA to determine what is considered reportable under §97.249. The proposed amendment to §97.249 provides the statutory references for the definitions of abuse, neglect and exploitation of a client that a HCSSA must use to report incidents of abuse, neglect and exploitation for both an adult and a child. The agency did not make a change based on this comment.
Comment: Two commenters suggested adding a paragraph (5) to §97.249(a) to define that "immediately," as used in subsection (c), means within 24 hours, to allow for consistent application of the rule in terms of a reporting timeframe.
Response: To allow for consistent application of the rule in terms of a reporting timeframe, §97.249(c) was changed to state that "immediately" means within 24 hours because the rule in subsection (c) specifically requires reporting abuse, neglect, and exploitation. Further, because DFPS allows reports to be made via their secure website, this method of reporting was added to §97.249(c)(1).
Comment: A commenter suggested defining "immediately" in §97.250(b)(1) for HCSSA investigations of abuse, neglect, and exploitation as meaning within 24 hours to eliminate any confusion. The commenter compared this suggestion to the suggestion to define "immediately" in §97.249.
Response: Section 97.250(b)(1) requires a HCSSA to immediately initiate its own investigation of known and alleged acts of abuse, neglect, and exploitation by HCSSA employees, volunteers and contractors upon witnessing the act or upon the HCSSA's receipt of the allegation. The agency did not make the change suggested because a HCSSA in certain situations may need to respond in less than 24 hours to protect a client from an alleged perpetrator of abuse, neglect, or exploitation who is an agency employee, volunteer, or contractor.
Comment: Two commenters suggested adding "adult surrogate," as defined in the Texas Health and Safety Code, Chapter 313, to §97.282, subsections (e) and (f), to clarify that a surrogate does not need a legal power of attorney to act as a client's "legal representative."
Response: "Legal representative," as used in §97.282(e), (f)(1), (f)(2)(A), and (h), means a person who may exercise the rights of a client of any age to the extent permitted by law. The agency did not make a change based on this comment because the term "legal representative" includes an adult surrogate as allowed by the Texas Health and Safety Code, Chapter 313.
Comment: A commenter suggested adding a new subsection to §97.283, relating to Advance Directives. The new subsection would not be a mandate, but would inform a HCSSA that under Section 683 of the Texas Probate Code, it may refer an incompetent or otherwise incapacitated adult client, who does not have a medical power of attorney or a legal guardian, to the court in the client's county that hears guardianship applications. The comment also included that this new subsection is consistent with DADS' Provider Letter 2002-10 and would help ensure other rights of such a client, such as the right to participate in planning care, a core right of persons receiving services funded by Medicaid and Medicare and who are sixty years of age and older.
Response: The HCSSA licensing standards in §97.282 require a HCSSA to adopt and enforce written policies to protect and promote a client's rights, including the rights of the elderly for a person sixty years of age and older, and to ensure that any legal representative may exercise the client's rights to the extent permitted by law in the case of a client who has not been adjudged incompetent. If a HCSSA recognizes that an elderly or disabled client is incompetent, and is in need of a legal guardian, the HCSSA could refer the client to DFPS, or under Section 683 of the Texas Probate Code, to the court in the client's county that hears guardianship applications. DADS' Provider Letter 2002-10 provides this information specifically to nursing facilities. The agency did not make the change suggested because this is information DADS can provide without amending the HCSSA rules.
Comment: Two commenters suggested deleting §97.501(a)(4), thought to be a duplication of §97.501(a)(3)(i), regarding surveys and investigations conducted by DADS.
Response: Section 97.501(a)(3)(i) addresses complaints and §97.501(a)(4) addresses self-reported incidents, for which DADS' investigative procedures differ. The agency did not make the change suggested because these are not duplicative rules.
Comment: A commenter suggested clarifying the word "days" in §97.527(g)(3) and (4) regarding a HCSSA submitting an acceptable plan of correction since in §97.527(f) it is clear that DADS has 10 "working" days to provide official written notification of the survey findings. The commenter also suggested clarifying "business" versus "working" days.
Response: The definitions in §97.2 include a definition for "day" to clarify that any reference to a "day," unless otherwise specified in the text, means a calendar day, which includes weekends and holidays. "Working day" is defined in §97.2 as any day except Saturday, Sunday, a state holiday, or a federal holiday. "Business days" is not used in Chapter 97 rules. The agency did not make a change based on this comment because the clarification requested is provided in the definitions.
Comment: Two commenters opposed the deletion of "required agency personnel" from §97.525(a) to ensure a DADS surveyor does not start an entrance conference without the required agency personnel as specified in §97.523, relating to Personnel Requirements for a Survey.
Response: The agency deleted "required agency personnel" from §97.525(a) because the rule does not specify who the required agency personnel are. However, the required personnel for conducting an entrance conference are specified in §97.523, so the agency added a cross-reference to §97.523 in §97.525(a) in response to this comment.
Comment: According to the HCSSA statute and new §97.602, all Severity Level B violations are subject to an administrative penalty with no right to correct. Therefore, careful consideration must be given to whether the violations listed on the Severity Level B violations table meet the definition of a Severity Level B violation as described in §97.602(h)(3)(B).
Response: The criteria in §97.602(e)(1) - (3), for which DADS may assess an administrative penalty without providing an opportunity to correct a violation, are the same as the definition of a Severity Level B violation as described in §97.602(h)(3)(B). Therefore, the agency carefully considered the violations listed on the Severity Level B violations table in new §97.602 as violations that have the potential to meet the definition of a Level B violation. However, it is the actual outcome or potential outcome of a violation on the health and safety of a client, and on the HCSSA's capacity to provide care, that determines the seriousness of the violation. Therefore, a HCSSA may be given the opportunity to correct a Level B violation if DADS determines the actual outcome or potential outcome of a violation listed on the Severity Level B table did not meet the criteria in §97.602(e)(1) - (3). Also, §97.602(b) specifies the criteria used by DADS for assessing penalties and what DADS considers in determining which violation warrants a penalty. The agency did not make a change based on this comment.
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
The amendments are adopted 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.
§97.247.Employability and Use of Unlicensed Persons.
(a) An agency must do the following for unlicensed applicants for employment and employees whose duties would or do include face-to-face contact with a client.
(1) 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.
(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 January 15, 2009.
(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.
§97.249.Self-Reported Incidents of Abuse, Neglect, and Exploitation.
(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 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.
(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.
(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 by an employee of the agency.
(c) If an agency has cause to believe that a client served by the agency has been abused, neglected, or exploited by an agency employee, the agency must report the information immediately, meaning within 24 hours, to:
(1) the Department of Family and Protective Services (DFPS) at 1-800-252-5400, or through the DFPS secure website at www.txabusehotline.org; and
(2) DADS at 1-800-458-9858.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 23, 2008.
TRD-200806693
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: January 15, 2009
Proposal publication date: August 8, 2008
For further information, please call: (512) 438-3734
The amendments are adopted 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.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 23, 2008.
TRD-200806694
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: January 15, 2009
Proposal publication date: August 8, 2008
For further information, please call: (512) 438-3734
40 TAC §§97.501, 97.502, 97.507
The amendments and new section are adopted 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.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 23, 2008.
TRD-200806695
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: January 15, 2009
Proposal publication date: August 8, 2008
For further information, please call: (512) 438-3734
The amendments are adopted 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.
§97.525.Survey Procedures.
(a) Before beginning a survey, a surveyor holds an entrance conference, as specified in §97.523 of this subchapter (relating to Personnel Requirements for a Survey), to explain the purpose of the survey and the survey process and provides an opportunity to ask questions.
(b) During a survey, a surveyor:
(1) conducts at least three home visits to determine an agency's compliance with licensing requirements;
(2) reviews any agency records that the surveyor believes are necessary to determine an agency's compliance with licensing requirements; and
(3) evaluates an agency's compliance with each standard.
(c) An agency accredited by CHAP or JCAHO must have the documentation of accreditation available at the time of a survey.
(d) DADS keeps agency records confidential, except as allowed by Texas Health and Safety Code, §142.009(d).
(e) A surveyor may remove original agency records from an agency only with the consent of the agency as provided in Texas Health and Safety Code, §142.009(e).
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 23, 2008.
TRD-200806696
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: January 15, 2009
Proposal publication date: August 8, 2008
For further information, please call: (512) 438-3734
The repeal is adopted 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.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 23, 2008.
TRD-200806697
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: January 15, 2009
Proposal publication date: August 8, 2008
For further information, please call: (512) 438-3734
The new section is adopted 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.
§97.602.Administrative Penalties.
(a) Assessing penalties. DADS may assess an administrative penalty against a person who violates:
(1) the statute;
(2) a provision in this chapter for which a penalty may be assessed; or
(3) Occupations Code, §102.001, Soliciting Patients, if related to the provision of home health, hospice, or personal assistance services.
(b) Criteria for assessing penalties. DADS assesses administrative penalties in accordance with the schedule of appropriate and graduated penalties established in this section.
(1) The schedule of appropriate and graduated penalties for each violation is based on the following criteria:
(A) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and the hazard of the violation to the health or safety of clients;
(B) the history of previous violations by a person or a controlling person with respect to that person;
(C) whether the affected agency identified the violation as part of its internal quality assurance process and made a good faith, substantial effort to correct the violation in a timely manner;
(D) the amount necessary to deter future violations;
(E) efforts made to correct the violation; and
(F) any other matters that justice may require.
(2) In determining which violation warrants a penalty, DADS considers:
(A) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and the hazard of the violation to the health or safety of clients; and
(B) whether the affected agency identified the violation as part of its internal quality assurance program and made a good faith, substantial effort to correct the violation in a timely manner.
(c) Opportunity to correct. Except as provided in subsections (e) and (f) of this section, DADS provides an agency with an opportunity to correct a violation in accordance with the time frames established in §97.527(g)(2) of this chapter (relating to Post-Survey Procedures) before assessing an administrative penalty if a plan of correction has been implemented.
(d) Minor violations.
(1) DADS may not assess an administrative penalty for a minor violation unless the violation is of a continuing nature or is not corrected in accordance with an accepted plan of correction.
(2) DADS may assess an administrative penalty for a subsequent occurrence of a minor violation when cited within three years from the date the agency first received written notice of the violation.
(3) DADS does not assess an administrative penalty for a subsequent occurrence of a minor violation when cited more than three years from the date the agency first received written notice of the violation.
(e) No opportunity to correct. DADS may assess an administrative penalty without providing an agency with an opportunity to correct a violation if DADS determines that the violation:
(1) results in serious harm to or death of a client;
(2) constitutes a serious threat to the health or safety of a client;
(3) substantially limits the agency's capacity to provide care;
(4) involves the provisions of Texas Human Resources Code, Chapter 102, Rights of the Elderly;
(5) is a violation in which a person:
(A) makes a false statement, that the person knows or should know is false of a material fact:
(i) on an application for issuance or renewal of a license or in an attachment to the application; or
(ii) with respect to a matter under investigation by DADS;
(B) refuses to allow a representative of DADS to inspect a book, record, or file required to be maintained by an agency;
(C) willfully interferes with the work of a representative of DADS or the enforcement of this chapter;
(D) willfully interferes with a representative of DADS preserving evidence of a violation of this chapter or a rule, standard, or order adopted or license issued under this chapter;
(E) fails to pay a penalty assessed by DADS under this chapter not later than the 10th day after the date the assessment of the penalty becomes final; or
(F) fails to submit:
(i) a plan of correction not later than the 10th day after the date the person receives a statement of licensing violations; or
(ii) an acceptable plan of correction not later than the 30th day after the date the person receives notification from DADS that the previously submitted plan of correction is not acceptable.
(f) Violations relating to Advance Directives. As provided in Texas Health and Safety Code, §142.0145, DADS assesses an administrative penalty of $500 for a violation of §97.283 of this chapter (relating to Advance Directives) without providing an agency with an opportunity to correct the violation.
(g) Penalty calculation and assessment.
(1) Each day that a violation occurs before the date on which the person receives written notice of the violation is considered one violation.
(2) Each day that a violation occurs after the date on which an agency receives written notice of the violation constitutes a separate violation.
(h) Schedule of appropriate and graduated penalties.
(1) If two or more rules listed in paragraphs (2) and (3) of this subsection relate to the same or similar matter, one administrative penalty may be assessed at the higher severity level violation.
(2) Severity Level A violations.
(A) The penalty range for a Severity Level A violation is $100 - $250 per violation.
(B) A Severity Level A violation is a violation that has or has had minor or no client health or safety significance.
(C) DADS assesses a penalty for a Severity Level A violation only if the violation is of a continuing nature or was not corrected in accordance with an accepted plan of correction.
(D) DADS may assess a separate Severity Level A administrative penalty for each of the rules listed in the following table.
Figure: 40 TAC §97.602(h)(2)(D)
(3) Severity Level B violations.
(A) The penalty range for a Severity Level B violation is $500 - $1,000 per violation.
(B) A Severity Level B violation is a violation that:
(i) results in serious harm to or death of a client;
(ii) constitutes an actual serious threat to the health or safety of a client; or
(iii) substantially limits the agency's capacity to provide care.
(C) The penalty for a Severity Level B violation that:
(i) results in serious harm to or death of a client is $1,000;
(ii) constitutes an actual serious threat to the health or safety of a client is $500 - $1,000; and
(iii) substantially limits the agency's capacity to provide care is $500 - $750.
(D) As provided in subsection (e) of this section, a Severity Level B violation is a violation for which DADS may assess an administrative penalty without providing an agency with an opportunity to correct the violation.
(E) DADS may assess a separate Severity Level B administrative penalty for each of the rules listed in the following table.
Figure: 40 TAC §97.602(h)(3)(E)
(i) Violations for which DADS may assess an administrative penalty of $500.
(1) DADS may assess an administrative penalty of $500 for each of the violations listed in subsection (e)(4) and (5) of this section, without providing an agency with an opportunity to correct the violation.
(2) A separate penalty may be assessed for each of these violations.
(j) Proposal of administrative penalties.
(1) If DADS assesses an administrative penalty, DADS provides a written notice of violation letter to an agency. The notice includes:
(A) a brief summary of the violation;
(B) the amount of the proposed penalty; and
(C) a statement of the agency's right to a formal administrative hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.
(2) An agency may accept DADS' determination not later than 20 days after the date on which the agency receives the notice of violation letter, including the proposed penalty, or may make a written request for a formal administrative hearing on the determination.
(A) If an agency notified of a violation accepts DADS' determination, the DADS commissioner or the DADS commissioner's designee issues an order approving the determination and ordering that the agency pay the proposed penalty.
(B) If an agency notified of a violation does not accept DADS' determination, the agency must submit to the Health and Human Services Commission a written request for a formal administrative hearing on the determination and must not pay the proposed penalty. Remittance of the penalty to DADS is deemed acceptance by the agency of DADS' determination, is final, and waives the agency's right to a formal administrative hearing.
(C) If an agency notified of a violation fails to respond to the notice of violation letter within the required time frame, the DADS commissioner or the DADS commissioner's designee issues an order approving the determination and ordering that the agency pay the proposed penalty.
(D) If an agency requests a formal administrative hearing, the hearing is held in accordance with the statute, §142.0172, §142.0173, and the formal hearing procedures in 1 TAC Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act).
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 23, 2008.
TRD-200806698
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: January 15, 2009
Proposal publication date: August 8, 2008
For further information, please call: (512) 438-3734
The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §§98.15, 98.21, and 98.82; and adopts new §98.63, in Chapter 98, Adult Day Care and Day Activity and Health Services Requirements. The amendments to §98.15 and §98.82 are adopted with changes to the proposed text published in the September 19, 2008, issue of the Texas Register (33 TexReg 7987). The amendment to §98.21 and new §98.63 are adopted without changes to the proposed text.
The amendments and new section are adopted to implement portions of Senate Bill (SB) 1318, 80th Legislature, Regular Session, 2007. SB 1318, in part, amended Texas Human Resources Code, §103.007, to provide that an applicant for renewal of an adult day care facility license that submits an application for renewal later than the 45th day before the expiration date of the license is subject to a late fee in accordance with DADS rules. The proposed amendments establish the conditions under which an applicant for license renewal would have to pay a late fee and set the amount of the late fee at $25.
The amendment to §98.82 is adopted to provide clear direction to adult day care facilities about the procedure for submitting a plan of correction and to establish in rule what the plan of correction must address.
New §98.63 is adopted to ensure that adult day care facilities comply with the provisions of Texas Occupations Code, §303.0015, added by SB 993, 80th Legislature, Regular Session, 2007, which relates to nursing peer review, and ensure that employees or contractors of an adult day care facility comply with their professional practice acts or title acts relating to reporting and peer review.
DADS received no comments regarding adoption of the amendments and new section. However, minor editorial changes were made to the text of §98.15 to clarify and improve the accuracy of the section. References to an application being "filed" were changed to reflect that an application is "submitted" for consistency within the section. Two typographical errors were corrected in §98.82.
SUBCHAPTER B. APPLICATION PROCEDURES
The amendments are adopted 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 Human Resources Code, Chapter 103, which provides the Aging and Disability Services Council with the authority to make recommendations regarding rules governing licensing and regulation of adult day care facilities.
§98.15.Renewal Procedures and Qualifications.
(a) Each license issued under this chapter must be renewed before the license expiration date. Each license expires two years from the date issued, except as provided by subsection (b)(1) of this section. A license issued under this chapter is not automatically renewed.
(b) A facility must submit an application for license renewal and a renewal license will be valid as follows:
(1) For two years beginning September 1, 2008, a facility with a facility identification number that ends in an odd number (1, 3, 5, 7, or 9) must submit an application to renew its license before the expiration date on the license in accordance with this section. The facility's first renewal license issued beginning September 1, 2008, is valid for one year, and subsequent renewal licenses are valid for two years.
(2) A facility with a facility identification number that ends in an even number (0, 2, 4, 6, or 8) must submit an application to renew its license before the expiration date on the license in accordance with this section. The facility's renewal licenses are valid for two years.
(c) The submission of a license fee alone does not constitute an application for renewal.
(d) To renew a license, a license holder must submit an application for renewal with DADS no later than the 45th day before the expiration date of the current license. DADS considers that an application for renewal has met the submission deadline, if the license holder:
(1) submits a complete application to DADS, and DADS receives that complete application no later than the 45th day before the expiration date of the current license;
(2) submits an incomplete application to DADS with a letter explaining the circumstances that 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; or
(3) submits a complete application or an incomplete application with a letter explaining the circumstances that 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 pays a late fee in accordance with §98.21(b) of this subchapter (relating to License Fees) in addition to the license renewal fee.
(e) If the application is postmarked by the submission deadline, the application will be considered to be timely filed if received in DADS' Regulatory Services Licensing and Credentialing Section within 15 days after the postmark, or within 30 days after the date of the postmark and the license holder proves to the satisfaction of DADS that the delay was due to the shipper. It is the license holder's responsibility to ensure that the application is timely received by DADS.
(f) For purposes of Texas Government Code, §2001.054, DADS considers that an individual has submitted a timely and sufficient application for the renewal of a license if the license holder's application has met the submission deadlines in subsections (d) and (e) of this section. Failure to submit a timely and sufficient application will result in the expiration of the license on the expiration date listed on the license.
(g) An application for renewal submitted after the expiration date of the license is considered to be an application for an initial license and must comply with the requirements for an initial license in §98.11 of this subchapter (relating to Criteria for Licensing) and §98.13 of this subchapter (relating to Application Disclosure Requirements).
(h) The application for renewal must contain the same information required for an original application and the license fee as described in §98.21 of this subchapter.
(i) The renewal of a license may be denied for the same reasons an original application for a license may be denied (see §98.19 of this subchapter (relating to Criteria for Denying a License or Renewal of a License)).
(j) The facility must have an annual inspection by the local fire marshal and must submit a copy of the most current inspection as part of the renewal procedures.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 22, 2008.
TRD-200806664
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: January 15, 2009
Proposal publication date: September 19, 2008
For further information, please call: (512) 438-3734
The new section is adopted 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 Human Resources Code, Chapter 103, which provides the Aging and Disability Services Council with the authority to make recommendations regarding rules governing licensing and regulation of adult day care facilities.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 22, 2008.
TRD-200806665
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: January 15, 2009
Proposal publication date: September 19, 2008
For further information, please call: (512) 438-3734
The amendment is adopted 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 Human Resources Code, Chapter 103, which provides the Aging and Disability Services Council with the authority to make recommendations regarding rules governing licensing and regulation of adult day care facilities.
§98.82.Determinations and Actions Pursuant to Inspections.
(a) DADS determines if a facility meets the licensing rules, including both physical plant and facility operation requirements.
(b) Violations of regulations are listed on forms designed for the purpose of the inspection.
(c) At the conclusion of an inspection or survey, the violations are discussed in an exit conference with the facility's management. A written list of the violations is left with the facility at the time of the exit conference.
(d) If, after the initial exit conference, additional violations are cited, the violations are communicated to the facility within 10 working days after the initial exit conference.
(e) DADS provides a clear and concise summary in nontechnical language of each licensure inspection, inspection of care, and complaint investigation, if applicable. The summary outlines significant violations noted at the time of the inspection or survey, but does not include names of clients, staff, or any other information that would identify individual clients or other prohibited information under general rules of public disclosure. The summary is provided to the facility at the time the report of contact or similar document is provided.
(f) Upon receipt of the final statement of violations, the facility has 10 working days to submit an acceptable plan of correction to the DADS Regulatory Services regional director. An acceptable plan of correction must address the following:
(1) how the facility will accomplish the corrective action for those clients affected by each violation;
(2) how the facility will identify other clients with the potential to be affected by the same violation;
(3) how the facility will put the corrective measure into practice or make systemic changes to ensure that the violation does not recur;
(4) how the facility will monitor the corrective action to ensure that the violation is corrected and will not recur; and
(5) the date the corrective action will be completed.
(g) If the provider and the inspector cannot resolve a dispute regarding a violation of regulations, the provider is entitled to an informal dispute resolution (IDR) at the regional level for all violations. For a violation that resulted in an adverse action, the provider is entitled to an IDR at either the regional or state office level.
(1) A written request and all supporting documentation must be submitted to the Regional Director, Regulatory Services, for a regional IDR; or to Regulatory Services, Texas Department of Aging and Disability Services, P.O. Box 149030, E-351, Austin, Texas 78714-9030, for a central office IDR, no later than the tenth day after receipt of the official statement of violations.
(2) DADS completes the IDR process no later than the 30th day after receipt of a request from a facility.
(3) Violations deemed invalid in an IDR will be so noted in DADS' records.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 22, 2008.
TRD-200806666
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: January 15, 2009
Proposal publication date: September 19, 2008
For further information, please call: (512) 438-3734