Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part I. Texas Department of Public Safety Chapter 23. Vehicle Inspection Vehicle Inspection Station Licensing 37 TAC sec.23.7 The Texas Department of Public Safety adopts an amendment to sec.23.7 concerning vehicle inspection, with changes to the proposed text as published in the October 30, 1992, issue of the Texas Register (17 TexReg 7655). The adoption of this amendment will ensure the public that vehicle inspection inspectors adequately inspect vehicles that have sunscreening installed by using a tint metering device. In response to public comment, Subsection (f)(9) is amended by adding language exempting government inspection stations that provide the department annual written certification that the government entity has no vehicles equipped with a sunscreening device. The amendment adds paragraph (9) to subsection (f) which requires equipment for measuring the light transmission of sunscreening devices to be owned and maintained by the vehicle inspection station. One comment was received which suggested that state agencies and institutions be exempt from the amendment requiring sunscreen measurement. The comment further stated that those stations are licensed to perform vehicle inspections on state-owned vehicles only and the likelihood of ever having a vehicle with sunscreening devices to inspect is virtually nonexistent. Commenting against the amendment was the University of Texas Health Science Center at San Antonio. The Public Safety Commission agrees that government stations which have no vehicles with sunscreening devices to inspect should be exempt from the requirements to own and maintain a department-approved device for measuring the light transmission of sunscreening and to inspect the sunscreening using the device. However, the department is aware that there is no prohibition against installing sunscreening on state-owned vehicles and that some state vehicles do have sunscreening devices. Therefore, the section is amended to exempt government stations which have provided the department with annual written certification that none of the government entities' vehicles are equipped with a sunscreening device. The amendment is adopted under Texas Civil Statutes, Article 6701d, Article XV, sec.142, which provide the Texas Department of Public Safety with the authority to adopt rules necessary for the administration and enforcement of this Act. sec.23.7. Equipment Requirements for All Classes of Vehicle Inspection Stations. (a) Applicant shall be informed of the required equipment including such items as approved testing devices, tools, measuring devices, display board, brake machines, marked brake test area, and marked inspection test area. (b) The minimum tools, equipment, and approved testing devices shall be kept and maintained in proper working condition at all times in the vehicle inspection station area. (c) All testing equipment shall be approved by the department. All testing equipment shall be installed and used in accordance with the manufacturer's and department's recommendation. Equipment shall be arranged and located at or near the approved inspection area to obtain maximum efficiency. (d) If equipment is used during the inspection procedure, the vehicle inspection station owner shall be responsible for its use, accuracy, and general maintenance. When equipment adjustments and calibrations are needed, the manufacturer's and department's specifications shall be followed. Defective equipment shall not be used until such deficiencies are corrected. (e) Every certified inspector shall have a working knowledge of all testing devices used during inspections. (f) Each vehicle inspection station is required to own and maintain, as a minimum, the equipment listed below: (1) tools for making tests, repairs, and adjustments ordinarily encountered on those types of vehicles to be inspected; (2) a measured and marked brake test area which has been approved by the department, or an approved brake inspecting device; (3) a measuring device clearly indicating measurements of 12 inches, 15 inches, 20 inches, 24 inches, 54 inches, 60 inches, 72 inches, and 80 inches to measure reflector height, clearance lamps, side marker lamps, and turn signal lamps on all vehicles-motorcycle vehicle inspection stations are not required to have an 80-inch measure; (4) a laundry marking pen for completing the reverse side of the windshield inspection certificate; (5) a scraping device for removing the old inspection certificate; (6) a gauge for measuring tire tread depth; (7) a 1/4 inch round hole punch if motorcycle-trailer certificates are issued; (8) a brake pedal reserve checker with one-inch and two-inch clearances (except motorcycle inspection stations); and (9) a department approved device for measuring the light transmission of sunscreening devices. This paragraph does not apply to government stations which have provided the department annual written certification that the governmental entity has no vehicles equipped with a sunscreening device. The effective date for implementation of this paragraph is January 1, 1994. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 29, 1992. TRD-9317258 James R. Wilson Director Texas Department of Public Safety Effective date: January 27, 1993 Proposal publication date: October 30, 1992 For further information, please call: (512) 465-2000 Inspection Items, Procedures, and Requirements 37 TAC sec.23.42 The Texas Department of Public Safety adopts new sec.23.42, concerning vehicle inspection, with changes to the proposed text as published in the October 30, 1992, issue of the Texas Register (17 TexReg 7655). The adoption of this section will ensure the public that front side windows of vehicles equipped with sunscreening devices that do not meet the requirements of Texas Civil Statutes, Article 6701d, sec.134C, will be rejected. In response to public comment, subsection (e) is added exempting government inspection stations that provide the department annual written certification that the governmental entity has no vehicles equipped with a sunscreening device. Subsection (f) is added to establish the effective date for implementation of this section. This section establishes guidelines for inspecting vehicles equipped with sunscreening devices to the left and right of the driver on all 1988 or newer vehicles. This inspection will be performed using an approved metering device. One comment was received which suggested that state agencies and institutions be exempt from the amendment requiring sunscreen measurement. The comment further stated that those stations are licensed to perform vehicle inspections on state-owned vehicles only and the likelihood of ever having a vehicle with sunscreening devices to inspect is virtually nonexistent. The Public Safety Commission agrees that government stations which have no vehicles with sunscreening devices to inspect should be exempt from the requirements to own and maintain a department-approved device for measuring the light transmission of sunscreening and to inspect the sunscreening using the device. However, the department is aware that there is no prohibition against installing sunscreening on state-owned vehicles and that some state vehicles do have sunscreening devices. Therefore, the section is amended to exempt government stations which have provided the department with annual written certification that none of the government entities' vehicles are equipped with a sunscreening device. The new section is adopted under Texas Civil Statutes, Article 6701d, Article XV, sec.142, which provide the Texas Department of Public Safety with the authority to adopt rules necessary for the administration and enforcement of this Act. sec.23.42. Inspection of Sunscreening Devices (Glass Tinting) by Official Vehicle Inspection Stations. (a) All official vehicle inspection stations that inspect passenger cars, trucks, truck tractors, and buses, will inspect the sunscreening using an approved metering device on all 1988 or newer vehicles. (b) The official vehicle inspection station will inspect all front side windows to the immediate left and right of the driver which open so that a one- piece metering device approved by the department may be used and reject if the light transmittance is less than 20%. (c) The official vehicle inspection station will inspect glass coating or sunscreening devices on windshields and reject if: (1) it extends downward past the AS-1 line or more than five inches; or (2) it is red or amber in color. (d) All official vehicle inspection stations will calibrate each metering device daily and will check calibration after a vehicle fails and before rejecting the vehicle. (e) This section does not apply to government stations which have provided the department annual written certification that the governmental entity has no vehicles equipped with a sunscreening device. (f) The effective date for implementation of this section will be January 1, 1994. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 29, 1992. TRD-9317257 James R. Wilson Director Texas Department of Public Safety Effective date: January 27, 1993 Proposal publication date: October 30, 1992 For further information, please call: (512) 465-2000 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 19. Long-Term Care Nursing Facility Requirements for Licensure and Medicaid Certification The Texas Department of Human Services (DHS) adopts amendments to sec.sec.19.101, 19.203, 19.208, 19.301, 19.401, 19. 602, 19.603, 19.701, 19.1101, 19.1501, and 19.1917 concerning definitions, notice of rights and services, examination of survey results, admissions policy, resident behavior and facility practice, comprehensive care plans, discharge summary (discharge plan of care), quality of care, provision of specialized rehabilitative services, general requirements, and quality assessment and assurance. The justification for the amendments is to incorporate recent federal technical changes to the Omnibus Budget Reconciliation Act of 1987. The amendments will function by ensuring that the Long Term Care Nursing Facility Requirements contain current federal requirements. Subchapter B. Definitions 40 TAC sec.19.101 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. The amendment is adopted to be effective September 23, 1992, in compliance with federal regulations. sec.19.101. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Facility-Unless otherwise indicated, a nursing facility (NF) which meets the requirements of the Social Security Act, sec.1919(a)-(d). (A) "Facility" may include a distinct part of a facility as specified in sec.440.40 of 42 Code of Federal Regulations (Code of Federal Regulations), but does not include an institution for the mentally retarded or persons with related conditions described in 42 CFR sec.440.150. (B)-(E) (No change. ) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 6, 1993. TRD-9317237 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: September 23, 1992 For further information, please call: (512) 450-3765 Subchapter C. Resident Rights 40 TAC sec.19.203, sec.19.208 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. The amendments are adopted to be effective September 23, 1992, in compliance with federal regulations. sec.19.203. Notice of Rights and Services. (a)-(d) (No change. ) (e) The resident or his legal representative has the following rights: (1) upon an oral or written request, to access all records pertaining to himself, including clinical records, within 24 hours (excluding weekends and holidays); and (2) (No change.) (f)-(n) (No change.) sec.19.208. Examination of Survey Results. The resident has the right to: (1) examine the results of the most recent survey of the facility conducted by federal or state surveyors and any plan of correction in effect with respect to the facility. The facility must make the results available for examination in a place readily accessible to residents, and must post a notice of their availability; and (2) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 6, 1993. TRD-9317238 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: September 23, 1992 For further information, please call: (512) 450-3765 Subchapter D. Admission, Transfer, and Discharge Rights 40 TAC sec.19.301 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. The amendment is adopted to be effective September 23, 1992, in compliance with federal regulations. sec.19.301. Admissions Policy. (a) The facility must: (1) (No change.) (2) not require oral or written assurance that residents or potential residents are not eligible for, or will not apply for, Medicare or Medicaid benefits. (b)-(d) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 6, 1993. TRD-9317239 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: September 23, 1992 For further information, please call: (512) 450-3765 Subchapter E. Resident Behavior and Facility Practice 40 TAC sec.19.401 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. The amendment is adopted to be effective September 23, 1992, in compliance with federal regulations. sec.19.401. Resident Behavior and Facility Practice. (a)-(b) (No change.) (c) Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect and abuse of residents, and misappropriation of residents' property. (1) The facility must: (A) (No change.) (B) not employ individuals who have: (i) been found guilty of abusing, neglecting, or mistreating residents by a court of law; or (ii) (No change.) (C) report any knowledge it has of actions by a court of law against an employee, which would indicate unfitness for service as a nurse aide or other staff to the state nurse aide registry or licensing authority. (2)-(4) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 6, 1993. TRD-9317240 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: September 23, 1992 For further information, please call: (512) 450-3765 Subchapter G. Resident Assessment 40 TAC sec.19.602, sec.19.603 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. The amendments are adopted to be effective September 23, 1992, in compliance with federal regulations. sec.19.602. Comprehensive Care Plans. (a) The facility must develop a comprehensive care plan for each resident that includes measurable short-term and long-term objectives and timetables to meet a resident's medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment. The care plan must describe the following: (1) services that are to be furnished to attain or maintain the resident's highest practicable physical, mental, and psychosocial well-being as required under sec.19.1702 of this title (relating to Additional Charges (Items and Services Excluded from Vendor Payment)); and (2) any services that would otherwise be required under sec.19.1701 but are not provided due to the resident's exercise of rights, including the right to refuse treatment under sec.19.203(g) of this title (relating to Exercise of Rights). (b)-(d) (No change.) sec.19.603. Discharge Summary (Discharge Plan of Care). (a) When the facility anticipates discharge, the resident must have a discharge summary that includes: (1)-(3) (No change.) (b) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 6, 1993. TRD-9317241 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: September 23, 1992 For further information, please call: (512) 450-3765 Subchapter H. Quality of Care 40 TAC sec.19.701 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. The amendment is adopted to be effective September 23, 1992, in compliance with federal regulations. sec.19.701. Quality of Care. Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, as defined by and in accordance with the comprehensive assessment and plan of care. (1)-(6) (No change.) (7) Naso-gastric tube. Based on the comprehensive assessment of the resident, the facility must ensure that: (A) (No change.) (B) a resident who is fed by a naso-gastric or gastrostomy tube receives the appropriate treatment and services to prevent aspiration pneumonia, diarrhea, vomiting, dehydration, metabolic abnormalities, and nasal-pharyngeal ulcers, and to restore, if possible, normal eating skills. (8)-(13) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 6, 1993. TRD-9317242 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: September 23, 1992 For further information, please call: (512) 450-3765 Subchapter L. Specialized Rehabilitative 40 TAC sec.19.1101 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. The amendment is adopted to be effective September 23, 1992, in compliance with federal regulations. sec.19.1101. Provision of Specialized Rehabilitative Services. (a) Provision of services. If specialized rehabilitative services, such as, but not limited to, physical therapy, speech/language pathology, occupational therapy, mental health rehabilitative services for mental illness and mental retardation are required in the resident's comprehensive plan of care, the facility must: (1)-(2) (No change.) (b)-(c) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 6, 1993. TRD-9317243 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: September 23, 1992 For further information, please call: (512) 450-3765 Subchapter P. Physical Plant and Environment 40 TAC sec.19.1501 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. The amendment is adopted to be effective September 23, 1992, in compliance with federal regulations. sec.19.1501. General Requirements. The facility must be designed, constructed, equipped, and maintained to protect the health and ensure the safety of residents, personnel, and the public. (See also sec.19.505 of this title (relating to Environment)). (1) Life safety from fire. The facility must meet the applicable provisions of the 1985 edition of the Life Safety Code of the National Fire Protection Association (which is incorporated by reference). Incorporation of the 1985 edition of the National Fire Protection Association's Life Safety Code (published February 7, 1985; ANSI/NFPA) was approved by the Director of the Federal Register in accordance with 5 United States Code 552(a) and 1 Code of Federal Regulations Part 51 that govern the use of incorporation by reference. The code is available for inspection at the Office of the Federal Register Information Center, Room 8301, 1110 L Street NW, Washington, D.C. Copies may be obtained from the National Fire Protection Association, Batterymarch Park, Quincy, Massachusetts 02200. If any changes in this code are also to be incorporated by reference, a notice to that effect will be published in the Federal Register. (A) After consideration of the state survey agency findings, the Health Care Financing Administration (HCFA) may waive specific provisions of the Life Safety Code which, if rigidly applied, would result in unreasonable hardship upon the facility but only if the waiver does not adversely affect the health and safety of residents or personnel. (B) (No change.) (2)-(3) (No change.) (4) Resident rooms. Resident rooms must be designed and equipped for adequate nursing care, comfort and privacy of residents. (A) Bedrooms must: (i)-(iv) (No change.) (v) in facilities initially certified after March 31, 1992, except in private rooms, have ceiling-suspended curtains for each bed, which extend around the bed to provide total visual privacy, in combination with adjacent walls and curtain (see clause (iv) of this subparagraph); (vi)-(vii) (No change.) (B)-(N) (No change.) (5)-(19) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 6, 1993. TRD-9317244 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: September 23, 1992 For further information, please call: (512) 450-3765 Subchapter T. Administration 40 TAC sec.19.1917 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. The amendment is adopted to be effective September 23, 1992, in compliance with federal regulations. sec.19.1917. Quality Assessment and Assurance. (a)-(c) (No change.) (d) Good faith attempts by the committee to identify and correct quality deficiencies may not be used as a basis for sanctions. (e) The Quality Assessment and Assurance Committee, or a subcommittee thereof, will establish and monitor an infection control program according to sec.19.1401 of this title (relating to Infection Control), and will monitor the pharmaceutical services of the facility according to sec.19.1301 of this title (relating to Pharmacy Services). (f) See sec.19.701(12) and (13) of this title (relating to Quality of Care) and sec.19.1923 of this title (relating to Incident or Accident Reporting) for additional items that should be monitored by the Quality Assessment and Assurance Committee. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 6, 1993. TRD-9317245 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: September 23, 1992 For further information, please call: (512) 450-3765 Subchapter U. State and Local Requirements 40 TAC sec.sec.19.2005, 19.2007-19.2009 The Texas Department of Human Services (DHS) adopts amendments to sec.sec.19.2005 and 19.2007-19.2009 concerning contract requirements, effective dates for provider contracts, change of ownership, and nursing facility ceases to participate. The justification for the amendments is to incorporate changes mandated by a recent ruling by the Health Care Financing Administration prohibiting time- limited agreements. The amendments will function by ensuring that the Long Term Care Nursing Facility Requirements comply with current federal requirements. The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. The amendments are adopted to be effective August 26, 1992, in compliance with federal regulations. sec.19.2005. Contract Requirements. (a) The Texas Department of Human Services (DHS) may enter into contracts with the facility. Three types of contracts are permitted: (1) a non-time-limited agreement; (2) a probationary contract period of 30 days; and (3) a contract for a specified period, as determined by the state licensing agency or DHS. (b)-(d) (No change.) sec.19.2007. Effective Dates of Provider Contracts. (a) The effective date of the provider contract for an initial certification is the date the on-site survey is completed if the facility meets: (1) all federal health and safety standards; and (2) any other requirements imposed by the Texas Department of Human Services (DHS). (b) If the facility does not meet any of the requirements specified for an initial certification, the contract is effective on the earlier of the following dates: (1) the day the facility meets all requirements; or (2) the day the facility's correction plan, approvable waiver request, or both are accepted by the state official of the Texas Department of Health (TDH) authorized to make certification decisions. The facility must have met all requirements imposed by DHS. sec.19.2008. Change of Ownership. An ownership change is any change in the business organization that changes the legal entity responsible for the operation of the facility. (1) (No change.) (2) Obligation of the purchaser. If a change in ownership occurs, DHS issues a new contract to the purchaser effective on the date of the ownership transfer. DHS issues this new contract only if the purchaser has met the requirements in paragraph (1) of this section, the requirements of the new contract, and the requirements for participation that are a part of that new contract. If DHS fails to receive prior written notification of the ownership change as specified in paragraph (1) of this section, the contract effective date is established by DHS and may be a date as many as 30 days after the date DHS receives the written notice of ownership change. The purchaser's new contract is subject to the previous owner's contract terms and conditions that were in effect at the time of transfer of ownership, including, but not limited to, the following: (A) (No change.) (B) compliance with health and safety standards; (C) compliance with the ownership and financial interest disclosure requirements of 42 Code of Federal Regulations sec.sec.455. 104, 455.105, and 1002.3; (D) compliance with civil rights requirements in 45 Code of Federal Regulations, Parts 80, 84, and 90; (E) compliance with additional requirements imposed by DHS; and (F) any sanctions as specified in this chapter relating to remedies for violations of Title XIX nursing facility provider agreements, including deficiencies, vendor holds, compliance periods, notification for correction of contract violations, probationary contracts, and history of deficiencies. (3)-(6) (No change.) sec.19.2009. Nursing Facility Ceases to Participate. A nursing facility may lose its status as a participating facility if any of the following conditions are met: (1) (No change.) (2) TDH terminates certification of the facility; (3) the nursing facility's license expires; (4) the Texas Department of Health (TDH) revokes the facility's license. TDH notifies DHS of the action taken, and DHS assumes responsibility for canceling the facility's status as a participating facility; (5) the nursing facility (NF) is a Title XIX/XVIII provider of services, and Medicare (Title XVIII) terminates the contract because of contract violation; (6) DHS cancels the contract because DHS determines that the nursing facility is in breach of the contract. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 6, 1993. TRD-9317246 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: August 26, 1992 For further information, please call: (512) 450-3765 Chapter 69. Contracted Services Subchapter L. Contract Administration The Texas Department of Human Services (DHS) adopts the repeal of sec.sec.69.275-69.277 and new sec.sec.69. 275-69.279. New sec.69.275 and sec.69.276 are adopted with changes to the proposed text as published in the July 7, 1992, issue of the Texas Register (17 TexReg 4871). The repeals and new sec.sec.69.277-69.279 are adopted without changes to the proposed text, and will not be republished. The justification for the repeals and new sections is to revise and expand DHS's existing rules concerning suspension or debarment of contractors and potential contractors that have a history of poor performance or that have been convicted of or have pled guilty to criminal offenses. The repeals and new sections will function by improving control by DHS of contracts involving expenditures of public funds to benefit needy individuals. During the public comment period, DHS received comments from the Texas Pharmaceutical Association, Texas Health Care Association, Texas Hospital Association, Texas Association for Home Care, and an attorney representing community care providers. A summary of the comments and DHS's responses follows: COMMENT: Two commenters stated that the proposed rules are vague and overbroad. RESPONSE: The rules are intended to be limited in scope; however, DHS believes that the rules as proposed provide reasonable notice of the acts that will cause the rules to be imposed. COMMENT: One commenter cited provisions of a federal directive for the proposition that DHS does not have statutory authority to implement the proposed rules. RESPONSE: The provisions cited apply to how the federal government debars its contractors, but those provisions do not apply to DHS in relation to its proposed rules. COMMENT: One commenter noted that while the initial approval of the Board of Human Services appeared to apply only to criminal offenses, the proposed rules were expanded in application to actions that are not criminal offenses. RESPONSE: The Board of Human Services has approved application of the proposed rules to actions that are not criminal offenses, as well as to criminal offenses. COMMENT: Two commenters stated that the proposed rules should not apply to nursing facilities, which have their own sanctions. RESPONSE: DHS agrees with the comment as it applies to currently contracted providers. DHS, however, disagrees with the comment as it applies to potential or former contractors. This position is also stated in DHS's proposed nursing facility remedies rules (40 Texas Administrative Code sec.sec.19.2201-19.2209 and 19.2211-19.2216). Only the nursing facility remedies rules will apply to nursing facilities with current contracts, and the debarment rules would apply to all other contracts, or potential contractors. DHS is adopting sec.69.275(a) with a clarifying statement that these rules do not apply to nursing facilities with current contracts. COMMENT: One commenter recommended that only actions occurring after the effective date of the rules be considered for establishing a pattern of nonperformance. The same commenter stated that the Human Resources Code sec.22. 019(a) precludes the application of the rules to any actions occurring before the effective date of the rules. RESPONSE: DHS is adopting sec.69.276(a)(3)(B) with a clarifying statement that for purposes of establishing a pattern of misconduct (a new ground for a sanction), the rules will apply only to actions occurring after the effective date of the rules. Staff disagree with the comment as it applies to actions that are themselves existing grounds for contract termination or are criminal actions. COMMENT: Two commenters stated that a due process hearing should always precede any suspension of providers' rights, unless the public health and safety are in jeopardy. One commenter stated that the rules are too subjective and that their application should always follow a due process investigation and hearing. RESPONSE: Due process considerations are met by offering a hearing after imposing a suspension, which is a temporary remedy. A due process hearing will be offered prior to debarment, which is a long-term sanction. To avoid subjective application of the rules, a report will be made to the Board of Human Services each time the rules are applied. COMMENT: One commenter stated that it is not fair to terminate a contract with no performance problems just because there are performance problems involving a different kind of contract. RESPONSE: DHS is in partial agreement with this comment. When a legal entity has good performance in one contract and poor performance in a separate and unrelated contract, only the most severe circumstances would warrant the application of debarment sanctions to any areas except the area with poor performance. However, criminal activities and debarment by other governmental entities would be adequate cause to include all contracts in a debarment action. COMMENT: Two commenters stated that only the conduct of the corporate or individual owner, not the owner's employees, should be considered in deciding whether to suspend or debar, since it would be inequitable to hold a contractor responsible for acts of one of its employees, especially when that act occurs off duty. RESPONSE: Implementing this comment would largely negate the rule's effect. Employers should be responsible for the conduct of their employees. The employer's response to an employee's conduct will be considered before invoking these rules. COMMENT: One commenter stated that any sanctions for submitting cost reports containing unallowable costs should be applied only when there is proven intent to increase the amount of payment the individual or industry receives. RESPONSE: DHS agrees in principle, but believes that the actual intent of the contractor should not have to be proved in each case, if a contractor has a pattern of continual mistakes. In that situation, intent to receive additional funds may be inferred and the rules applied, depending upon the facts of the case. For single instances of an alleged mistake, intent will have to be proved. There is no plan to suspend or debar a contractor for making a legitimate mistake. DHS is adopting sec.69.276(a)(3)(B)(vi) with a clarifying statement that intent to increase individual or statewide rates or fees by submission of unallowable costs must be shown for a single cost report, but intent may be inferred when a pattern of submitting cost reports with unallowable costs is shown. COMMENT: One commenter states that the rules should have some set time period that a provider is debarred. RESPONSE: DHS believes that it should have flexibility to impose a sanction commensurate with the severity of the contractor's action. DHS believes that a six-year maximum debarment period is appropriate, except in cases in which a federal exclusion is for a longer period. DHS is adopting sec.19.275(b)(2) with a clarifying statement concerning the period of debarment. 40 TAC sec.sec.69.275-69.277 The repeals are adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 6, 1993. TRD-9317247 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: January 27, 1993 Proposal publication date: July 7, 1992 For further information, please call: (512) 450-3765 40 TAC sec.sec.69.275-69.279 The new sections are adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. sec.69.275. Debarment and Suspension of Current and Potential Contractor's Rights. (a) Applicability. Requirements in this section are applicable to all types of contracts with the Texas Department of Human Services (DHS). These requirements are in addition to, and do not supersede, rules in Chapter 79, Subchapter V of this title (relating to Fraud or Abuse Involving Medical Providers), and rules in this chapter relating to remedies for violations of Title XIX nursing facility provider agreements, unless so specified in those subchapters. This subchapter does not apply to nursing facilities with current contracts. (b) Definitions. The following words and terms, when used in sec.sec.69.275- 69.279 of this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Contractor and subcontractor-Individuals or legal entities who have existing DHS contracts or are otherwise participating providers, including managers of contractors' operations, such as managers and administrators of nursing facilities. (2) Debarment-Termination of rights to continue an existing contract, to receive a new contract, to participate as a provider or manager, or to make a bid, offer, application or proposal for a DHS contract. The debarment is for a specified time commensurate with the seriousness of the violation, the extent of the violation, prior impositions of sanctions or penalties, willingness to comply with program rules and directives, and other pertinent information. The maximum period of debarment is six years, unless a longer time is mandated by requirements other than those in this subchapter. (3) Potential contractor-Individuals or legal entities who wish to submit a bid, offer, application, or proposal for a DHS contract or subcontract, or otherwise request participation as a provider, including managers of contractors' operations, such as managers and administrators of nursing facilities. (4) Suspension of contractual rights-Temporary suspension of a contractor's or potential contractor's right to conduct business with DHS. A suspension is in effect until an investigation, hearing, or trial is concluded and DHS can make a determination about: (A) the contractor's future right to contract or subcontract; or (B) a potential contractor's future right to have DHS consider its offer, bid, proposal, or application. (c) Scope. For purposes of both suspension of contractual rights and debarment, DHS may impute the conduct of an individual, corporation, partnership, or other association to the contractor, potential contractor, or the responsible component or entity of the contractor or potential contractor with whom the individual, corporation, partnership, or other association is employed or otherwise associated. Even though the underlying conduct may have occurred while an individual, corporation, partnership, or other association was not associated with the contractor or potential contractor, suspension of contractual rights or debarment may be imposed. Remedial actions taken by the responsible officials of the contractor or potential contractor will be considered in determining whether either suspension of contractual rights or debarment is warranted. (d) Choice of sanction. Severe violations of the type specified in sec.69.276 of this title (relating to Causes and Conditions for Debarment) may be the basis for suspension of contract rights or debarment even if there is only a single occurrence. However, isolated and less severe violations of DHS contract provisions do not necessarily lead to suspension and/or debarment. Sanctions for isolated and less severe violations may be found in DHS's rules governing the specific program area in which the violations occurred. sec.69.276. Causes for and Conditions of Debarment. (a) Causes for debarment. The Texas Department of Human Services (DHS) may remove contractual rights from an individual or legal entity for causes including, but not limited to, the following: (1) being found guilty, pleading guilty, pleading nolo contendere, or receiving a deferred adjudication in a criminal court, relating to: (A) obtaining, attempting to obtain, or performing a public or private contract or subcontract; (B) embezzlement, theft, forgery, bribery, falsification or destruction of records, any form of fraud, receipt of stolen property, or any other offense indicating moral turpitude or a lack of business integrity or honesty; (C) dangerous drugs, controlled substances, or other drug-related offense; (D) federal antitrust statutes arising from the submission of bids or proposals; or (E) any physical or sexual abuse or neglect offense; (2) being debarred from contracting by any unit of the federal government or any unit of a state government; (3) violating DHS contract provisions including failing to perform according to the terms, conditions, and specifications or within the time limit(s) specified in the DHS contract, including, but not limited to, the following: (A) failing to abide by applicable federal and state statutes, such as those regarding persons with disabilities and those regarding civil rights; (B) having a record of failure to perform or of unsatisfactory performance according to the terms of one or more contracts or subcontracts, if that failure or unsatisfactory performance has occurred within five years preceding the determination to debar. Application of this subsection will be made only for actions occurring after the effective date of these rules. Failure to perform and unsatisfactory performance includes, but is not limited to, the following: (i) failing to correct contract performance deficiencies after receiving written notice about them from DHS or its authorized agents; (ii) failing to repay or make and follow through with arrangements satisfactory to DHS to repay identified overpayments or other erroneous payments, or assessed liquidated damages or penalties; (iii) failing to meet standards that are required for licensure or certification, or that are required by state or federal law, DHS rule, or DHS policy concerning DHS contractors; (iv) failing to execute amendments required by DHS; (v) billing for services or merchandise not provided to the client or DHS; (vi) submitting cost reports containing costs not associated with and/or not covered by the contract or DHS rules and instructions. Intent to increase individual or statewide rates or fees by submission of unallowable costs must be shown for a single cost report, but intent may be inferred when a pattern of submitting cost reports with unallowable costs is shown; (vii) submitting a false statement or misrepresentation which, if used, may increase individual or statewide rates or fees; (viii) charging client or patient fees contrary to DHS rules or policy; (ix) failing to notify and reimburse DHS or its agents for services DHS paid for when the contractor received reimbursement from a liable third party; (x) failing to disclose or make available, upon demand, to DHS or its representatives (including appropriate federal and state agencies) any records the contractor is required to maintain; (xi) failing to provide and maintain services within standards required by statute, regulation, or contract; or (xii) violating the Human Resources Code provisions applicable to the contract or any rule or regulation issued under the Code; (4) submitting an offer, bid, proposal or application that contains a false statement or misrepresentation or omits pertinent facts or documents that are material to the procurement; (5) engaging in any abusive or neglectful practice that results in or could result in death or injury to the clients served by the contractor; or (6) violating any of the provisions outlined in sec.79.2105 of this title (relating to Grounds for Fraud Referral and Administrative Sanction). For purposes of this subsection, any reference in sec.79.2105 to a violation of the Medicaid (Title XIX), Medicare (Title XVIII), or Title XX programs is expanded to include an identical violation within any programs of federal or state governments; (7) knowingly and willingly using a debarred person or entity as an employee, independent contractor, or agent to perform a contract with DHS. (b) Conditions of debarment. Individuals, parts of entities, and entities that have been debarred may not: (1) receive a contract; (2) be allowed to retain a contract which has been awarded before debarment; (3) bid or otherwise make offers to receive a contract or subcontract; (4) participate in DHS programs which do not require the provider to sign a contract or agreement; or (5) either personally or through a clinic, group, corporation or other association bill to or receive payment from DHS for any services or supplies provided by the debarred entity on or after the effective date of the debarment. Additionally, DHS will not pay for any services ordered, prescribed, or delivered by the debarred entity for DHS recipients after the date of debarment. No costs associated with a debarred entity, including the salary, fringe, overhead, payments to, or any other costs associated with an employee, owner, officer, director, board member, independent contractor, manager, or agent who was debarred may be included in a DHS cost report or any other document which will be used to determine an individual payment rate, a statewide payment rate, or a fee. (c) Entities that may be debarred. Debarment may be applied against an individual, an entire legal entity, or a specified part of a legal entity. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 6, 1993. TRD-9317248 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: January 27, 1993 Proposal publication date: July 7, 1992 For further information, please call: (512) 450-3765