ADOPTED RULES 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 16. ECONOMIC REGULATION Part VIII. Texas Racing Commission Chapter 305. Licenses for Pari-mutuel Wagering Subchapter B. Individual Licenses General Provisions 16 TAC sec.305.35 The Texas Racing Commission adopts an amendment to sec.305.35, concerning license fees, without changes to the proposed text as published in the February 18, 1994, issue of the Texas Register (19 TexReg 1159). The amendment is adopted to ensure the Commission's occupational licensing program will operate efficiently and effectively. The amendment establishes new licensing categories, lowers the fees for some categories, and alphabetizes the category list. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.5.01, which authorizes the Commission to prescribe reasonable license fees for each category of license; sec.7.02, which authorizes the Commission to adopt categories of licenses for the various occupations licensed by the Commission; and sec.7.05, which authorizes the Commission to adopt by rule a fee schedule for occupational licenses. 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 April 7, 1994. TRD-9438792 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: April 28, 1994 Proposal publication date: February 18, 1994 For further information, please call: (512) 794-8461 Specific Licensees 16 TAC sec.305.44 The Texas Racing Commission adopts an amendment to sec.305.44, concerning trainer or assistant trainer, without changes to the proposed text as published in the February 18, 1994, issue of the Texas Register (19 TexReg 1164). The amendment is adopted to ensure the integrity of pari-mutuel racing is protected. The amendment requires an applicant for an assistant trainer's license to be qualified in all respects for a trainer's license. The amendment also clarifies that an assistant trainer's license carries all the privileges and responsibilities of a trainer's license. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.7.02, which authorizes the Commission to adopt rules setting the qualifications for the various categories of occupational licenses. 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 April 7, 1994. TRD-9438791 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: April 28, 1994 Proposal publication date: February 18, 1994 For further information, please call: (512) 794-8461 16 TAC sec.305.45 The Texas Racing Commission adopts an amendment to sec.305.45, concerning authorized agent, without changes to the proposed text as published in the February 18, 1994, issue of the Texas Register (19 TexReg 1164). The amendment is adopted to ensure the integrity of pari-mutuel racing is protected. The amendment provides that an agency appointment expires on December 31 of each year unless revoked earlier by the principal. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of a pari-mutuel racetrack. 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 April 7, 1994. TRD-9438790 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: April 28, 1994 Proposal publication date: February 18, 1994 For further information, please call: (512) 794-8461 16 TAC sec.305.49 The Texas Racing Commission adopts an amendment to sec.305.49, concerning emergency license, without changes to the proposed text as published in the February 18, 1994, issue of the Texas Register (19 TexReg 1164). The amendment is adopted to ensure the integrity of pari-mutuel racing is protected. The amendment prohibits an owner from obtaining an emergency license more than once. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of a pari-mutuel racetrack. 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 April 7, 1994. TRD-9438789 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: April 28, 1994 Proposal publication date: February 18, 1994 For further information, please call: (512) 794-8461 Chapter 309. Operation of Racetracks Subchapter B. Horse Racetracks Operations 16 TAC sec.309.199 The Texas Racing Commission adopts an amendment to sec.309.199, concerning the horsemen's bookkeeper, without changes to the proposed text as published in the February 18, 1994, issue of the Texas Register (19 TexReg 1165). The amendment is adopted to ensure the integrity of pari-mutuel is protected. The amendment requires an association to provide an accounting to each owner and the Commission within 30 days after the end of a race meeting. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of a pari-mutuel racetrack. 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 April 7, 1994. TRD-9438788 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: April 28, 1994 Proposal publication date: February 18, 1994 For further information, please call: (512) 794-8461 Subchapter C. Greyhound Racetracks Operations 16 TAC sec.309.355 The Texas Racing Commission adopts an amendment to sec.309.355, concerning the grading system, without changes to the proposed text as published in the February 25, 1994, issue of the Texas Register (19 TexReg 1360). The amendment is adopted to ensure the integrity of pari-mutuel racing is protected. The amendment authorizes the racing secretary to grade a greyhound transferring from another racetrack at an appropriate grade considering the competition at each of the racetracks. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of a pari-mutuel racetrack. 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 April 6, 1994. TRD-9438787 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: April 28, 1994 Proposal publication date: February 25, 1994 For further information, please call: (512) 794-8461 Chapter 311. Conduct and Duties of Individual Licensees Subchapter B. Specific Licensees General Provisions 16 TAC sec.311.106 The Texas Racing Commission adopts an amendment to sec.311.106, concerning stable or kennel names, without changes to the proposed text as published in the February 18, 1994, issue of the Texas Register (19 TexReg 1165). The amendment is adopted to ensure the Commission's occupational licensing program will operate efficiently and effectively. The amendment eliminates the references to kennel names. No comments were received regarding adoption of the amendment. The amendment is proposed under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of a pari-mutuel racetrack. 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 April 7, 1994. TRD-9438786 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: April 28, 1994 Proposal publication date: February 18, 1994 For further information, please call: (512) 794-8461 Licensees for Horse Racing 16 TAC sec.311.153 The Texas Racing Commission adopts new sec.311.153, concerning owner/trainers, with changes to the proposed text published in the February 18, 1994, issue of the Texas Register (19 TexReg 1165). The new section is adopted to ensure that pari-mutuel racing will be of the utmost integrity. The new section prohibits an owner/trainer from having his or her horses in the care, custody, or control of another trainer at the same racetrack. The changes from the proposed text change the words "participating in racing" to "training horses." Oral comments on the proposal were received from the Texas Horsemen's Benevolent and Protective Association. A representative of the organization suggested that the term "participating in racing" was not clear enough and suggested a change to clarify the Commission's intent. The Commission agreed with the comment and incorporated a change into the adoption. The new section is adopted under Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of a pari-mutuel racetrack. sec.311.153. Owner/Trainer. A person licensed as an owner/trainer who is training horses at a racetrack may not have any horse owned by the owner/trainer under the care, custody or control of another trainer at that racetrack. 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 April 7, 1994. TRD-9438785 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: April 28, 1994 Proposal publication date: February 18, 1994 For further information, please call: (512) 794-8461 Licensees for Greyhound Racing 16 TAC sec.311.172 The Texas Racing Commission adopts an amendment to sec.311.172, concerning use of Texas-bred greyhounds, without changes to the proposed text as published in the February 18, 1994, issue of the Texas Register (19 TexReg 1166). The amendment is adopted to ensure the integrity of pari-mutuel racing is protected. The amendment clarifies the powers of the racing judges to enforce the provisions of the section. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.3.07, which authorizes racing judges to impose sanctions on occupational licensees; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of a pari-mutuel racetrack. 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 April 7, 1994. TRD-9438784 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: April 28, 1994 Proposal publication date: February 18, 1994 For further information, please call: (512) 794-8461 Chapter 319. Veterinary Practices and Drug Testing Subchapter B. Treatment of Horses 16 TAC sec.319.111 The Texas Racing Commission adopts an amendment to sec.319.111, concerning bleeders and the furosemide (Lasix) program, without changes to the proposed text as published in the February 18, 1994, issue of the Texas Register (19 TexReg 1166). The amendment is adopted to ensure pari-mutuel racing is safe for race horses. The amendment makes several changes to the Commission's bleeder program, including extending the period of time after a race or exercise that a horse may exhibit signs of bleeding to be classified as a bleeder. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of a pari-mutuel racetrack; and sec.14.03, which authorizes the Commission to adopt rules relating to the use of medication in race animals. 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 April 7, 1994. TRD-9438783 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: April 28, 1994 Proposal publication date: February 18, 1994 For further information, please call: (512) 794-8461 Chapter 321. Pari-mutuel Wagering Subchapter B. Distribution of Pools 16 TAC sec.321.109 The Texas Racing Commission adopts an amendment to sec.321.109, concerning exacta pools, without changes to the proposed text as published in the February 18, 1994, Texas Register (19 TexReg 1167). The amendment is adopted to ensure the integrity of pari-mutuel racing is protected. The amendment clarifies the method of payout of the exacta pool when no tickets are sold selecting the correct first- and second-place finishing animals. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of a pari-mutuel racetrack; and sec.11.01, which authorizes the Commission to adopt rules relating to pari-mutuel wagering. 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 April 7, 1994. TRD-9438782 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: April 28, 1994 Proposal publication date: February 18, 1994 For further information, please call: (512) 794-8461 Subchapter C. Simulcast Wagering Common Pool Wagering 16 TAC sec.321.273 The Texas Racing Commission adopts an amendment to sec.321.273, concerning distribution of common pool, without changes to the proposed text as published in the February 18, 1994, issue of the Texas Register (19 TexReg 1167). The amendment is adopted to ensure the integrity of pari-mutuel racing is protected. The amendment clarifies that a wager made into a common pool is made at the location where the pool originates. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of a pari-mutuel racetrack; sec.11.01, which authorizes the Commission to adopt rules relating to pari-mutuel wagering; and sec.11.011, which authorizes the Commission to adopt rules to regulate wagering on simulcast races and to facilitate the intermingling of pari-mutuel pools. 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 April 7, 1994. TRD-9438781 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: April 28, 1994 Proposal publication date: February 18, 1994 For further information, please call: (512) 794-8461 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 115. Home Health Care Agencies The Texas Department of Health (department) adopts the repeal of existing sec.sec.115.1-115.19 and new sec.sec.115.1-115.5, 115.11-115.15, 115.21-115.28, 115. 51-115.54, 115.61, and 115.62, concerning home and community support services agencies. The repeal of existing sec.sec.115.1-115.19 and new sec. sec.115.2-115.4, 115. 11-115.15, 115.21-115.28, 115.51-115.54, 115.61, and 115.62 are adopted with changes to the proposed text as published in the December 7, 1993, issue of the Texas Register (18 TexReg 9046). New sec.115.1 and sec.115.5 are adopted without changes and will not be republished. The repeal enables the department to reorganize Chapter 115 and to establish new rules to implement legislative mandates in Acts 1993, 73rd Legislature, Chapter 800 (House Bill 1551) and Chapter 747 (House Bill 1510). The legislative provisions include renaming of the agencies once known as home health agencies to home and community support services agencies (H&CSSA) which reflects more accurately the services provided by the agencies; adding hospice and personal assistance services to the categories of services that may be offered by agencies; deleting references to Class A and Class B agencies; adding language that authorizes an agency which provides hospice services to own or operate a residential unit or inpatient unit at the licensed site; recognition of accreditation by the Joint Commission on Accreditation of Healthcare Organizations and the Community Health Accreditation Program and certification by another state agency if those standards meet or exceed the requirement for licensing and inspection purposes; providing for surveys every three years after an agency has been in operation for more than 18 months; creating a memorandum of understanding between the department and other state agencies which are under the Health and Human Services Commission (which must be approved by the Health & Human Services Commission), the purpose of which is to eliminate or reduce duplication of standards or conflicts between standards and of functions in license, certification or compliance surveys and complaint investigations; establishing a mechanism for immediate suspension or revocation of a license when the health and safety of persons are threatened; establishing a memorandum of understanding between the department and the Board of Nurse Examiners governing the circumstances under which the provision of health-related tasks or services do not constitute the practice of professional nursing; mandating processing of criminal history checks for nonlicensed individuals who are potential employees or employees of a H&CSSA and who will have direct contact with agency clients, a client's family member or the visitor of a client; and establishing administrative reviews for a person who has a criminal conviction that may bar the person from employment by an agency. The new sections contain existing language and add definitions for applicant, owner, parent company and nursing facility. The new sections also provide that an agency is not required to be licensed in more than one category of services if the agency's category of service covers the provided services; information regarding the competence and financial resources of an applicant are confidential and may not be disclosed by the department to the public; the department may conduct an on-site survey following approval of a category of service; agencies are required to adopt, implement and enforce a written policy to ensure compliance with the rules of the Board of Nurse Examiners relating to delegation of selected nursing tasks; agencies may keep a single or separate file for each category of service provided to the client and the client's family; a description of the existing and new agencies assimilation to the issuance of a home and community support services agency license on or after July 1, 1994; the statutory prohibition of the word "hospice" if an agency is not licensed to provide hospice services; the educational and work experience criteria necessary to perform supervisory duties; the requirements an alternate delivery site must independently meet; the statutory timeframes for the conduct of an on-site survey and the coordination of multiple surveys. Further, the new sections update and clarify existing language. Changes made to the proposed text result from comments received during the comment period. The details of the changes are described in the summary of comments that follow. Other minor editorial changes were made for clarification purposes. The following comments were received concerning the proposed rules. Comment: Concerning the definitions of "administration of medication" and "home and community support services agency" in sec.115.2, three commenters were concerned that the definitions seem to describe the practice of pharmacy. One commenter stated the definition of administration of medications was subject to an interpretation which could prohibit a pharmacist from practicing pharmacology, since the definition includes activities which are a part of the practice of pharmacy. Response: The department disagrees with the commenters that the definitions have any affect on the practice of pharmacy. The Texas Pharmacy Act governs the practice of pharmacy and pharmacists are allowed to perform whatever activities are allowed by the Act. Comment: Concerning the definition of "administration of medication" in sec.115.2, one commenter stated that "pouring a quantity of liquid to be ingested" should not be part of the definition because it is part of assistance with medication and not the actual administration of medication. The commenter suggested deleting the language and adding the language to the definition of "assistance with medication or treatment regimen." Response: The department agrees and has deleted the language from "administration of medication" and added modified language to the definition of "assistance with medication or treatment regimen." The language added was "pouring a predetermined quantity of a liquid to be ingested." Comment: Concerning the definitions of "administrator" and "home health services," one commenter requested that the department correct the terminology used in the definitions relating to speech pathology. The commenter stated the correct reference is speech-language pathology. Response: The department agrees and has substituted the correct term in the definition of "administrator." The department did not change the reference in the definition of "home health services" because the definition is statutory language. Comment: Concerning the definition of "affiliate," one commenter was concerned that the definition could be subject to an unintentionally broad interpretation and suggested the department add additional definitions for "principal stockholder," "person with a disclosable interest" and "parent company." The commenter also requested confirmation that the term "affiliate," when used elsewhere in the proposed regulations, refers only to an affiliate of a particular agency and does not include affiliates of any such affiliate. Response: The department agrees in part with the commenter. The definition of "affiliate" was modified to delete the terms "principal" and "person with a disclosable interest;" language was added regarding direct ownership of at least 10%; definitions were added in the section for "owner" and "parent company;" and changes were made in sec.115.11(g) for clarification purposes. The department confirms that the term "affiliate" when used elsewhere in the proposed rules refers only to an affiliate of a particular agency and does not include affiliates of any such affiliate. Comment: One commenter requested that "applicant" be defined. Response: The department agrees and has added the definition to the section. Comment: Concerning the definition of "bereavement," one commenter requested that the definition be modified to include a significant other as the term family is not defined. Response: The department agrees with the commenter's concerns; however, the modification was made instead to the definition of "bereavement services." Comment: Concerning the definition of "case conference," two commenters requested that the word "all" be deleted from the definition. One commenter was concerned that the absence of one or more persons would prevent a conference from occurring among personnel furnishing services to the client if all personnel were required to attend. The other commenter stated the requirement is more restrictive than Medicare and requested the state's definition be consistent with the Medicare definition in order to avoid confusion and to facilitate compliance. Response: The department agrees with both commenters and has deleted the word "all" from the definition. Comment: One commenter requested that a definition for "certified occupational therapy assistant" be added to the rules. Response: The department disagrees with the commenter's request to add the definition as therapy assistants are covered under current licensure laws specific to therapists and therapy assistants. Comment: Concerning the definition of "client," several commenters requested the definition be expanded to include the primary client's family. Response: The department agrees with the commenters and has expanded the definition as requested. Comment: Concerning the definitions of "clinical note" and "dialysis treatment record," one commenter requested that language be added to the definitions that the written notations be signed. Another commenter requested the definition of "dialysis treatment record" be modified to include pertinent patient information. Response: The department agrees with both commenters and has added the suggested language to the definition. Comment: Concerning the definition of "delegation," several commenters requested that the department reference the Board of Nurse Examiners rules relating to the standards for delegation of selected nursing tasks to unlicensed personnel in sec.115.21. Response: The department agrees with the commenters and has made the change in sec.115.21. Because the BNE rules define the term "delegation," the department has deleted the definition of "delegation" from these rules. Comment: Concerning the definition of "dietitian," one commenter requested that the definition be changed to require Texas licensure. Response: The department disagrees with the commenter. To require licensure would be more stringent than Medicare regulations and the higher standard may place an undue burden on rural communities. Comment: Concerning the definition of "freestanding hospice," one commenter believed the definition was too broad and suggested language that would meet the intent which was meant to apply only to a hospice providing inpatient services to clients of the hospice who are residing at the hospice's physical location. Response: The department agrees with the commenter and has added the commenter's suggested language to the definition. Comment: Concerning the definition of "home health aide," one commenter requested the deletion of the definition. The commenter pointed out that the entirety of sec.115.61 relates to Home Health Aides and that "home health aides" are included in the definition of "unlicensed person." Response: The department agrees with the commenter and has deleted the definition of "home health aide." Comment: Concerning the definition of "home health service," two commenters requested clarification of a durable medical equipment (DME) company's license exemption versus the terminology of subparagraph (G) in the definition. Response: The department responds that DME companies providing DME services are exempt from the statute, and, therefore, subparagraph (G) under the definition of "home health service" does not apply. The provision by a DME of any of the other listed home health services would require a home and community support services agency license. Comment: Concerning the definition of "home health service," one commenter requested clarification concerning the definition and assurance that an agency that is licensed to provide hospice services, and that is providing one or more of the health services listed in the definition in connection with the provision of such hospice services, does not need to have a license to provide home health services in addition to its license to provide hospice services. Response: The department confirms that an agency is not required to be licensed in more than one category of service if the category of service for which the agency is licensed covers the provided services. The department has provided clarifying language in sec.115.11(d) of this title (relating to Application and Issuance of Temporary License for First-Time Applicants (Unregulated Agencies, New Agencies, and Certain Relocations)). Comment: Concerning the definition of "hospice services," one commenter requested that the definition include "independent living environment" as an appropriate location for the provision of hospice services. Response: The department agrees with the commenter and has added the language to the definition of "hospice services." The term "home" in the definition was replaced with "residence" which is defined in the rules. Comment: Concerning the definition of "intermediate care facility," one commenter requested that the definition be deleted from the rules and that "nursing facility" be defined. Response: The department agrees in part with the commenter and has deleted the definitions of "intermediate care facility" and "skilled nursing facility, " and has added a definition for "nursing facility." The department has also modified the language in the definitions of "hospice services" and "residence, " and in adopted sec.115.25(x)(1)(B) and (2)(B) of this title (relating to Standards for Hospice Services). Comment: One commenter requested that a definition for "licensed physical therapy assistant" be added to the rules. Response: The department disagrees with the commenter's request to add the definition as therapy assistants are covered under current licensure laws specific to therapists and therapy assistants. Comment: Concerning the definitions of "manager" and "management services," one commenter requested the deletion of the definitions. Another commenter suggested modifications to the definition of "management services" to clarify that the specified contracts are merely examples and that other types of contracts also might not be considered contracts for management services. Response: The department agrees in part with the commenters. The two definitions were combined into one definition for "manager" and the definition has been clarified with regard to contracts. Comment: Concerning the definition of "medication list," one commenter requested modification of the language in the definition to "contraindications" rather than "contraindicated medication." Response: The department agrees with the commenter and has modified the definition. Comment: One commenter requested that the term "nursing facility" be defined. Response: The department agrees with the commenter and has added a definition for "nursing facility." Comment: One commenter requested that the term "owner" be defined. Response: The department agrees with the commenter and has added a definition for "owner." Comment: One commenter requested that the term "parent company" be defined. Response: The department agrees with the commenter and has added a definition for "parent company." Comment: Concerning the definition of "physician," one commenter recommended to change the definition to include physicians who are licensed in the state in which they practice rather than limit a physician to only a Texas license. Response: The department agrees in part with the commenter and has modified the definition to permit licensure in other states within the United States in which the person practices. However, the physicians who are medical directors of agencies that offer home dialysis services (sec.115.24) and medical directors of hospices (sec.115.25) must be licensed in the State of Texas. Comment: Concerning the definition of "practitioner," one commenter believed the definition should include advanced nurse practitioners. Response: The department responds that the home and community support services agency rules do not prohibit an advanced nurse practitioner from initiating skilled home health services in accordance with established protocols with a physician. Licensed and certified agencies are required to obtain a physician's signature or countersignature for services or items provided to Medicare recipients. The definition of "practitioner" was modified to include advanced nurse practitioners. Comment: Concerning the definition of "presurvey conference," one commenter suggested modifying the definition to require that at least one individual attend the presurvey conference who will actually be responsible for carrying out and implementing the regulations. Response: The department agrees with the commenter and has added the commenter's suggested language to the definition of "presurvey conference." Comment: Concerning the definition "progress note," one commenter suggested the definition should be clarified to indicate that the progress note should not only be dated, it should also be signed. Response: The department agrees with the commenter and has added the requirement for the progress note to be signed. Comment: Concerning the definition of "residence," one commenter suggested that the definition include an independent living environment" because the proposed regulations make reference to an independent living environment as a type of client's residence. Response: The department agrees and has modified the definition to include an independent living environment. Comment: Concerning the definition of "respite services," one commenter wanted the definition clarified that respite can be performed under home health, hospice or personal assistance categories of service. Response: The department agrees and has added the clarifying language. Comment: Concerning the definition of "skilled nursing facility," one commenter requested that the definition be deleted. Response: The department agrees with the commenter and has deleted the definition of "skilled nursing facility." Comment: Concerning the definition of "stable and predictable," one commenter requested the deletion of the definition as the term is already defined in the Board of Nurse Examiners rules. Response: The department agrees and has deleted the definition. Comment: Concerning the definition of "supervision," two commenters suggested deleting "health professional" from the definition and adding the term "qualified person" because supervisors of personal assistance services do not have to be health professionals. Response: The department agrees with the commenters and has modified the definition accordingly. Comment: Concerning the definition of "unlicensed person," two commenters requested that the definition be changed. The commenters want the definition to identify the unlicensed person as one who is not a health care professional. The commenters also requested that the language relating to the person who functions in a complementary or assistive role to the RN in providing direct client care or carrying out common nursing functions be deleted because unlicensed persons providing personal assistance services may not have a RN supervisor and, therefore, would not be functioning in a complementary or assistive role to the RN. Response: The department agrees with the commenters and has modified the definition as suggested. Comment: Concerning the definition of "volunteer," two commenters requested clarification and modification of the definition. Response: The department has added language to the definition of "volunteer" to clarify that a volunteer must meet the same requirements as an employee doing the same activities unless the volunteer is exempt from certain requirements or standards. A specific instance is where a volunteer performs the activities of a home health aide for a licensed and certified agency, the volunteer does not have to be competency evaluated. Another instance is that a volunteer is not required to have a criminal background investigation. Comment: Concerning sec.115.3(a)(1) and (2), one commenter stated that the proposed rules are discriminatory against small agencies because the fees are not staggered as allowed by the Act. Response: The department disagrees with the commenter. The cost to the department is the same to license, inspect, and conduct complaint investigations for a small agency versus a large agency. The department requests the commenter and other interested parties to submit suggested criteria and fee schedules for consideration in the future as proposed rules on fees. Comment: Concerning sec.115.3(b), one commenter requested changing "application fee" to "licensing fee." Response: The department agrees with the commenter and has made the suggested change; there is no statutory authority to charge an application fee. Comment: Concerning sec.115.4, six commenters recommended to either reference the statutory license exemptions or to add the complete statutory exemption list to the rules. Response: The department agrees in part with the commenters and has added language in sec.115.4(a) to include a statutory reference to the licensure exemptions. Comment: Concerning sec.115.11(c), one commenter requested that the singular term "category" be changed to indicate an applicant may apply for more than one category of service. Response: The department agrees with the commenter and has made the requested change. Comment: Concerning sec.115.11(f), one commenter recommended multiple changes. Because the term "owner" is not defined in the rules, the commenter recommended that the term "principal stockholder" be substituted, and that the rule should state specifically the persons for whom the requested information must be disclosed. Response: The department agrees in part with the commenter, however, the suggested term refers only to a corporation; an agency may be owned by a sole proprietor, a partnership, or other types of entities. As previously mentioned, the department has defined the terms "applicant" and "owner" in sec.115.2 of this title (relating to Definitions) and has made multiple modifications in the redesignated sec.115.11(g) for clarification purposes. The department has also amended subsection (g)(7)(I) to identify the persons for whom the requested information must be disclosed to include the real property lessors, affiliates and managers of the applicant. Comment: Concerning sec.115.11, one commenter requested that a new subsection (t) be added to address the statutory provisions relating to the confidentiality of certain information received by the department in connection with a license application. Response: The department agrees with the commenter. Modifications were made to the redesignated subsection (h) for editorial purposes and confidentiality provisions were added within that subsection rather than adding a new subsection. Comments: Concerning sec.115.11(n), one commenter believed since there is no statutory provision which mandates an initial survey of an agency within three months of the issuance of a temporary license, that the department should have the flexibility to conduct the surveys in the most cost effective, efficient and timely manner. Response: The department agrees and has deleted the restrictive language. Comment: Concerning sec.115.11(r), one commenter suggested that language be added to the section to clarify that a licensed hospice does not need an additional license in order to provide routine home health services. Response: The agency agrees in part with the commenter. The commenter's recommended language has been modified and added in a new subsection (d) to clarify that an agency does not have to be licensed in more than one category of services if the category of service for which the agency is licensed covers the provided services. Comment: Concerning sec.115.11, one commenter requested a new subsection (s) be added to the rules to provide that a person who is not licensed to provide hospice services may not use the term "hospice" or otherwise indicate that the person hold a license to provide hospice services. Response: The department agrees with the commenter, however, the language has been added as a new subsection (bb) in sec.115.21 of this title (relating to Licensure Requirements and Standards for All Home and Community Support Services Agencies) rather than in the recommended section. Comment: Concerning sec.115.12(a), one commenter considered the subsection unclear and offered suggested clarifying language. Response: The department disagrees with the commenter and considers the proposed language to accurately reflect the requirement that a home and community support services agency must comply with the licensure rules, and, if the agency elects to participate in the Medicare Program, the agency must also comply with the Medicare conditions of participation. Comment: Concerning sec.115.12(d)(1), one commenter sought clarification that the items required in sec.115.11(f)(7)(I) and (J) of this title (relating to Application and Issuance of Temporary License for First-Time Applicants (Unregulated Agencies, New Agencies, and Certain Relocations)) concerning disclosure information and ownership and management information do not have to be submitted unless the information is different than what was submitted in the original license application. Response: The department confirms that only updated information is required for renewal of the license. Comment: Concerning sec.115.12(d), one commenter requested that paragraphs (2) and (6) be deleted because the items are not required for renewal applications. Response: The department agrees that paragraph sec.115.12(d)(2) is not required for renewals and has deleted the paragraph. However, paragraph sec.115. 12(d)(6) is required under the Business and Commerce Code and Board of Health rules. Comment: Concerning sec.115.13(a), one commenter noted there is no provision for issuance of an annual license following a change of ownership and suggested clarification concerning which license becomes void. Another commenter noted that paragraphs (2) and (4) appear to conflict. Response: The department agrees with the commenters and has added a provision for issuance of an annual license. Paragraph (2) was deleted and changes were made in paragraph (4), which was renumbered (3), to indicate the distinctions among the provisions. Comment: Concerning sec.115.13(b), one commenter requested that the subsection contain a specific time period for the agency to notify the department of the specific occurrences. Response: The department agrees with the commenter and has substituted the specific timeframe of "30 calendar days." Comment: Concerning sec.115.13(c), one commenter recommended adding language that allows the department to conduct an on-site survey following the approval of a new category of service. Response: The department agrees and has added the suggested language. Comment: Concerning sec.115.21(a)(2), one commenter suggested that "principal stockholder" be substituted for the undefined term "owner." Response: The department disagrees with the commenter and has retained the proposed language. However, as discussed previously, the term "owner" is now defined in sec.115.2 of this title (relating to Definitions). Comment: Concerning sec.115.21(a)(4), one commenter requested the singular term "category" be changed to plural because agencies may be licensed for more than one category of service. Response: The department agrees with the commenter and has made the change. Comment: Concerning sec.115.21(b), one commenter requested that the subsection reflect the language in the Health and Safety Code which states the department's approval is not necessary in order to transfer an agency's license from one location to another location. Response: The department agrees with the commenter and has modified the language accordingly. Comment: Concerning sec.115.21(d), one commenter requested that the subsection contain a specific time period for the agency to notify the department of changes in its telephone number. Response: The department agrees with the commenter and has substituted the specific timeframe of "30 calendar days." Comment: Concerning sec.115.21(j), one commenter requested deletion of the last sentence of the subsection which prohibits the solicitation of referrals by coercion or harassment because there is no specificity in what is prohibited. Response: The department agrees with the commenter and has deleted the sentence. Comment: Concerning sec.115.21, one commenter suggested the addition of a new subsection (k) to require an agency to respect the rights and privileges of other agencies and of the clients. Response: The department disagrees with the commenter. The department believes the language in subsection (f) of the section should adequately address the department's role in preserving the rights of an agency's clients, and that the proposed language is too vague to be enforceable. Comment: Concerning sec.115.21(m), six commenters requested the department to delete subsection (m) as written and reference instead the Board of Nurse Examiners governing the standards for delegation of nursing tasks to unlicensed persons. Response: The department agrees with the commenters. The proposed subsection (m) has been deleted. Subsection (m) now requires an agency to adopt, implement and enforce a written policy to ensure compliance with the rules of the Board of Nurse Examiners for the State of Texas adopted at 22 T.A. C., Chapter 218, Delegation of Selected Nursing Tasks, as these rules were effective December 16, 1992. Comment: Concerning sec.115.21(p), one commenter stated according to the Nursing Practice Act, Texas Civil Statutes, Articles 4525a and 4525b, the correct language is "professional nurse reporting and peer review" rather than "peer review and mandatory reporting requirements." Response: The department agrees with the commenter and has made the correction. Comment: Concerning sec.115.21(r), one commenter requested that the subsection be deleted because quality assurance programs are not required by statute, do not belong in licensure rules, can be cost prohibitive to agencies, and offers an opportunity for surveyors to make arbitrary judgments as to what the agency's outcome indicators should be. Response: The department disagrees with the commenter as quality assurance is an ongoing process of health care providers to insure safe, affordable and quality health care. For home and community support services agencies to exist in the mainstream of health care reform, the process of quality assurance is a viable tool. Comment: Concerning sec.115.21(r), one commenter requested that the term "patient" to be changed to "client" for consistency throughout the rules. Response: The department agrees with the commenter and has made the change. Comment: Concerning sec.115.21(r)(2)(B), one commenter expressed concern that a quality assurance program cannot always resolve problems. Response: The department agrees in part with the commenter and has added language that requires those responsible for the quality assurance program to resolve problems when possible. Comment: Concerning sec.115.21(s), one commenter stated the subsection was not clear if the dispensing of an intravenous drug to a patient in the home by a pharmacy is the "provision of home intravenous therapy." The commenter also requested that the rules should specify that intravenous drugs should be provided only by a pharmacy licensed by the Texas State Board of Pharmacy. Response: The department disagrees with the commenter and considers the current language to adequately cover any reference or deference to the Texas Pharmacy Act. Comment: Concerning sec.115.21(s)(4), one commenter felt the term "nursing supervision" was unclear and recommended language that would require a registered nurse to be available. Response: The department agrees with the commenter and has made the suggested change. Because of other changes to the subsection, the modified language now appears in sec.115.21(s)(5). Comment: Concerning sec.115.21(s)(1)-(11), one commenter stated the proposed language requires unnecessary documentation and duplicates other requirements in the section. Response: The department agrees with the commenter and has modified the subsection accordingly. Comment: Concerning sec.115.21(t)(4) and (5), one commenter stated the paragraphs were redundant and should be deleted; personnel policies do not need to include personnel policies and client care policies. Response: The department disagrees with the commenter's recommendation for deletion, however, modifications have been made to the subsection for clarification. Comment: Concerning sec.115.21(t)(8), one commenter stated the paragraph describes an infection control policy and the descriptive language should be added to the rule. The commenter also stated the word "prohibition" was not appropriate as used and suggested the word "prevention" be substituted. Response: The department agrees with the commenter and has added the suggested language and made the requested change. Comment: Concerning sec.115.22(b) and (b)(1), one commenter stated that the provisions relate to all agencies and should be relocated to sec.115.21 (relating to Licensure Requirements and Standards for All Home and Community Support Services Agencies). Response: The department agrees in part with the commenter and has relocated the proposed subsection (b) to sec.115.21 as new subsection (u). Paragraph sec.115.22(b)(1) pertains specifically to licensed home health services and remains in the section and has become the new subsection (b). Comment: Concerning sec.115.22(b)(2), two commenters stated that the provision relates to all agencies and should be relocated to sec.115.21 (relating to Licensure Requirements and Standards for All Home and Community Support Services Agencies). Another commenter requested that "or letters of commendation" be changed to "and letters of commendation" to make the personnel record inclusive of any or all of the documents listed. Response: The department agrees with both commenters and has made the suggested editorial change and relocated the proposed paragraph sec.115.22(b)(2) to sec.115.21 as new subsection (v). Comment: Concerning sec.115.22(b)(3), one commenter stated that the provisions relate to all agencies and should be relocated to sec.115.21 (relating to Licensure Requirements and Standards for All Home and Community Support Services Agencies). Two commenters recommended changes to (b)(3)(D)-(F) . Response: The department agrees in part with the commenters and has relocated the proposed paragraph sec.115.22(b)(3) to sec.115.21 as new subsection (x). Other modifications were made to the new subsection for clarification. Comment: Concerning sec.115.22(b)(4), one commenter stated that the provision relates to all agencies and should be relocated to sec.115.21 (relating to Licensure Requirements and Standards for All Home and Community Support Services Agencies). Response: The department agrees with the commenter and has relocated the proposed paragraph sec.115.22(b)(4) to sec.115.21 as new subsection (y). Comment: Concerning sec.115.22(c)(1), two commenters commented on the paragraph. One commenter stated that written statements of consumer complaints should not be required to be a part of the clinical record. Another commenter requested that "record of supervisory visits" be moved from the first sentence of the paragraph to the second sentence which lists the items that should be included in the clinical record, if applicable. Response: The department agrees with both commenters and has made the requested changes. Comment: Concerning sec.115.22(c)(2), one commenter recommended that the rule should require records to be maintained at a designated place. Response: The department agrees with the commenter and has added appropriate language to address the requirement. Comment: Concerning sec.115.22(c), one commenter recommended the addition of a new paragraph to allow an agency to maintain one client file for the client receiving both personal assistance services and skilled home health services. Response: The department agrees in part with the commenter. However, the rule was modified to allow an agency to keep a single file or separate files for each category of service provided to the client and the client's family and was added as a new subsection (w) under sec.115.21 of this title (relating to Licensure Requirements and Standards for All Home and Community Support Services Agencies). Comment: Concerning sec.115.22(f)(1), one commenter recommended that the rule require an agency to adopt, implement and enforce a policy on the timeframe for commencement of services to a client. Another commenter recommended the deletion of the first sentence of subsection (f) and combining paragraph (1) because, according to the commenter, in many situations there is not a reasonable expectation that all of the client's needs can be met adequately, whether in the home or in any other site. Response: The department agrees with the first commenter and has added the requirement for a policy to the subsection. The department disagrees with the second commenter because the current language distinguishes between the acceptance of a client versus the referral or initial communication with a client. The new policy required will contain the timeframes for the initiation of services. Additional editorial changes were made in the subsection and paragraph. Comment: Concerning sec.115.22(f)(1)(A), one commenter recommended the deletion of the requirement for the "date of resolution" in the care plan because the requirement serves no purpose and is not used by agencies. Response: The department disagrees with the commenter that the requirement serves no purpose but has added the term "projected" before the phrase "date of resolution." Comment: Concerning sec.115.22(f)(1)(B), one commenter recommended the paragraph include a provision that appropriate health care personnel shall perform services as specified in the plan of care. Response: The department agrees with the commenter and has added the provision. Comment: Concerning sec.115.22(f)(2)(D), one commenter suggested rewording of the subparagraph to clarify the charges for service of which the agency needs to inform the client or his family. Response: The department disagrees with the commenter's suggested change and has left the proposed language unchanged. The recommended change would place an additional requirement for the agency to inform the client of charges for all services whether or not the client or the family is expected to pay the charges. Comment: Concerning sec.115.22(g), one commenter stated the word "care" should be changed to "case" for consistency in describing conferences. Response: The department agrees with the commenter and has made the terminology change to "case" conferences. Comment: Concerning sec.115.22(i)(6), one commenter supported the suggested new language. Response: The department responds that the proposed language did not change. Comment: Concerning sec.115.22(i)(7), one commenter requested deletion of the term "home health aide" throughout the paragraph and references to "unlicensed persons" and "qualified person" be substituted. The commenter stated the recommended language is consistent with the definitions and provides licensed home and community support services agencies the opportunity to utilize the personal attendant as appropriate. Response: The department agrees with the commenter and has modified the paragraph accordingly. Comment: Concerning sec.115.23(a), one commenter pointed out the omission of the word "and." Response: The department acknowledges the omission and has made the correction. Comment: Concerning sec.115.23(d)(3), one commenter requested clarification of the paragraph. Response: The department clarifies for the commenter that a volunteer shall meet the same requirements and standards in the rules as applies to an employee of the agency except where specifically exempted. A volunteer providing home health aide services does not have to be competency evaluated but an agency may not be reimbursed for services provided by volunteers. Additional clarification has been provided in the definition of "volunteer" in sec.115.2 of this title (relating to Definitions). Comment: Concerning sec.115.24(b), one commenter suggested the subsection be clarified with respect to the approval of the appointment and termination of members by the governing body and governing body minutes. Response: The department agrees with the commenter. The subsection has been amended to require the approval of new medical staff members and termination of current medical staff members on occurrence; requires the governing body on a biannual basis to review and consider for approval continuing privileges of the agency's medical staff; and requires the governing body minutes to be maintained on file in the agency office. Comment: Concerning sec.115.24(j)(2), one commenter requested that the paragraph be amended to delete the requirement for Texas licensure of physicians other than the medical director and the addition of other clarifying language. Response: The department agrees with the commenter and has amended the paragraph accordingly. Comment: Concerning sec.115.24(m), one commenter recommended the requirement relating to the written confirmation of a verbal order within 14 calendar days of the physician's order be changed to permit a reasonable timeframe. Response: The department agrees with the commenter and has modified the paragraph to allow an agency a reasonable timeframe which is based upon the agency's policy that is to be adopted, implemented and enforced relating to the timeframe for the timely countersignature of a physician's order. Comment: Concerning sec.115.24(n), one commenter requested to substitute the language "weight to be maintained" with "dry weight" in the list of items that should be included in the orders for home staff assisted dialysis. Response: The department agrees with the commenter and has substituted the suggested language in the subsection. Comment: Concerning sec.115.24(o), one commenter recommended changes to the examples used in the plan for non-stabilized clients. Response: The department agrees with the commenter's suggested language and has substituted the suggested language in the text. Comment: Concerning sec.115.24(p)(5), one commenter stated the last sentence of the paragraph relating to disputes and their resolution is not necessary because the provision is covered in sec.115.21(f). Response: The department agrees with the commenter and has deleted the last sentence of the paragraph. Comment: Concerning sec.115.24(q), one commenter suggested changes to the third sentence of the subsection for clarification purposes. Response: The department agrees with the commenter and has made the suggested changes. Comment: Concerning sec.115.24(r), one commenter recommended that language be added to the subsection to require that the registered nurse and designated alternate be "qualified." The commenter stated it was not safe to have a registered nurse with no experience in dialysis available for these patients. Response: The department agrees with the commenter and has added the language to subsections (r), (s), (v), (w) and (dd)(1). Comment: Concerning sec.115.24(r)(3)(A) and (B), one commenter stated if the intent is to require one year of experience in dietetics, then the subparagraphs should be eliminated and the paragraph be modified to reflect the intent. Response: The department agrees with the commenter and has made the suggested modifications. Comment: Concerning sec.115.24(t)(16), one commenter recommended deleting the term "clotting time" as it is not a waivered test and would require that the agency have a certificate for a moderately complex lab under the provisions of Federal Public Law 100-578, Clinical Laboratory Improvement Amendments of 1988 (CLIA 1988). Response: The department agrees with the commenter and has deleted the term. Comment: Concerning sec.115.24(v)(4), one commenter stated the rule should include a requirement for satisfactory performance of the skills prior to independent performance on a patient. Response: The department agrees with the commenter and has added appropriate language. Comment: Concerning sec.115.24(w), one commenter recommended adding "qualified" before dietitian for consistency within the subsection. Response: The department agrees with the commenter and has added the word. Comment: Concerning sec.115.24(x), one commenter recommended the rule include a requirement for assurance of proper disposal of waste. Response: The department agrees with the commenter. Certain provisions in the subsection have been deleted and replaced by a requirement that the agency adopt, implement and enforce policies and procedures for safe handling and disposal of hazardous waste and materials. Comment: Concerning sec.115.24(y)(2), one commenter recommended the addition of the approval date of the publication of the Association for the Advancement of Medical Instrumentation (AAMI) standards. Response: The department agrees with the commenter and has added the date. Comment: Concerning sec.115.24(bb)(1), one commenter recommended adding language which requires the laboratory to be approved according to Federal Public Law 100-578, Clinical Laboratory Improvement Amendments of 1988 (CLIA 1988). Response: The department agrees with the commenter and has added the language. Comment: Concerning sec.115.24(bb)(3), one commenter requested the deletion of the term "clotting times" and the addition of a reference to sec.115.21(k) of this title (relating to Licensure Requirements and Standards for All Home and Community Support Services Agencies). Response: The department agrees with the commenter and has added the appropriate language. Comment: Concerning sec.115.25(b), one commenter recommended clarification of the subsection if the department did not adopt the commenter's suggestion regarding the definition of "freestanding hospice." Response: As stated previously, the department agrees with the commenter's recommendations for modification to the definition of "freestanding hospice." However, due to other comments concerning organizational structure and operational policies, subsection (b) was deleted; similar language now appears in new subsection (u) in sec.115.21 of this title (relating to Licensure Requirements and Standards for All Home and Community Support Services Agencies). Comment: Concerning sec.115.25(g)(2)(D), one commenter stated the term "care conference" should be changed to "case conference" to be consistent with the definition. Response: The department agrees with the commenter and has made the requested change. Due to redesignation within the section, the change appears in subsection (f). Comment: Concerning sec.115.25(m)(5), one commenter stated the initial sentence is somewhat confusing and recommended clarification. Response: The department agrees with the commenter and has added language to clarify the sentence. Due to redesignation within the section, the language appears in subsection (l). Comment: Concerning sec.115.25(o), one commenter recommended that services provided to the client's family are to be documented in the clinical record. Response: The department agrees with the commenter and has added the provision to the rule which, due to redesignation within the section, appears in subsection (n). Comment: Concerning sec.115.25(t)(1)(A), one commenter requested that the department rephrase for clarity. Response: The department agrees with the commenter and has modified the requirement in the last sentence of the rule as suggested by the commenter. Also, the department added the mandatory "shall" to the requirement of supervision of bereavement counseling. Due to redesignation, the language now appears in subsection (s). Comment: Concerning sec.115.25(t)(2), one commenter stated the proposed wording lowers the qualification set out in sec.115.2 for dietetics. The commenter opposes creation of a lower level of credentials for these individuals. Response: The department disagrees with the commenter because requiring a license would be more stringent than Medicare provisions and may place an undue burden on rural communities. Editorial changes were made to the paragraph which, due to redesignation in the subsections, appears in subsection (s). Comment: Concerning sec.115.25(z)(4), one commenter requested that the edition of the Life Safety Code of the National Fire Protection Association be changed from 1981 to 1985 to coincide with the Code of Federal Regulations. Response: The department agrees with the commenter and has made the requested change. Due to redesignation within the section, the corrected language appears in subsection (y). Comment: Concerning sec.115.25(z)(11)(C)(i), one commenter stated the current RDA should be used for menu planning to ensure nutritional needs are met. The commenter also recommended that language be added to address approval of the menus by a dietitian and require hospices to use written guidelines for substitutions that are approved by the dietitian. The dietitian, not the food service supervisor, is the individual with the education and training to determine if the nutritional requirements have been met. Response: The department agrees with the commenter and has made the suggested changes and additions. Due to redesignation within the section, the change appears in subsection (y). Comment: Concerning sec.115.25(z)(11)(D), one commenter suggested language that reflects a more efficient use of professional staff and reflects current standards of practice. Response: The department agrees with the commenter and has substituted the commenter's suggested language. Due to redesignation within the section, the change appears in subsection (y). Comment: Concerning sec.115.25(z)(12)(E)(ii), one commenter requested deletion of the reference and substitution of a reference to the BNE delegation rules. Response: The department agrees in part with the commenter but retains the reference to sec.115.21(m) which now references the BNE delegation rules. Due to redesignation within the section, the change appears in subsection (y). Comment: Concerning sec.115.26(b), because the term "attendants" is not defined, two commenters requested that the term "unlicensed persons" be substituted. The commenters also requested that the word "are" be replaced with "may be" to allow for other individuals to provide the service. Response: The department agrees with the commenters and has incorporated the suggested language. Comment: Concerning sec.115.26(c), one commenter recommended rewording of the rule for clarity. Response: The department agrees with the commenter and has reworded the first sentence to clearly identify for whose needs personal assistance services are designed. The second sentence clarifies personal assistance services is a category of service. Comment: Concerning sec.115.26(c)(1) and (2), two commenters requested that the paragraphs be combined and that the restrictive language "where it is not provided as support to skilled services in a plan of care" be deleted. One commenter stated personal assistance services should be available to individuals who are also receiving skilled services. Response: The department agrees with the commenters. Personal assistance services may be provided under another category of service if that other category of service covers the provided service. Comment: Concerning sec.115.26(c)(3), two commenters requested the rule reference the BNE delegation rules. Response: The department agrees with the commenters and has made reference to sec.115.21(m) which now references the BNE delegation rules. Comment: Concerning sec.115.26(c)(4), one commenter requested deletion of the paragraph. The commenter stated the tasks should not be included in the licensing standards. Response: The department agrees with the commenter and has deleted the paragraph. Comment: Concerning sec.115.26(c)(5), one commenter recommended the deletion of the paragraph; the meaning and intent was not understood. Response: The department agrees with the commenter and has deleted the paragraph. Comment: Concerning sec.115.26(c), one commenter suggested a new rule be added to make reference to the health related tasks that can be performed under the memorandum of understanding (MOU) for respite and personal assistance services. Response: The department agrees with the commenter. However, the suggested language was modified to provide that the tasks provided under the personal assistance services category of services are tasks that are not the practice of professional nursing under the MOU between the department and the Board of Nurse Examiners. The new language appears in sec.115.25(c)(3). Comment: Concerning sec.115.26(d), two commenters stated the language was redundant of sec.115.26(n)(2) and should be deleted. Response: The department agrees with the commenters and has deleted the subsection. Comment: Concerning sec.115.26(e)-(h), two commenters felt that these subsections should be applicable to all agencies and should appear in sec.115. 21 of this title (relating to Licensure Requirements and Standards for All Home and Community Support Services Agencies). Response: The department agrees in part with the commenters. Subsections (f) and (h) were relocated to sec.115.21. Subsections (e) and (g) pertain specifically to the provision of personal assistance services and remain in the section as redesignated subsections (d) and (e). Comment: Concerning sec.115.26(i), one commenter stated the subsection is unnecessary as the agency's obligation is to be in compliance with the individualized service plan. Response: The department agrees in part with the commenter and has deleted subsection (i). A provision which requires the agency to adopt, implement and enforce a policy for back-up services was relocated to sec.115.21(z) of this title (relating to Licensure Requirements and Standards for All Home and Community Support Services Agencies). Comment: Concerning sec.115.26(j), one commenter stated each client needs a separate file even if two or more clients are in the same family and requested that the term "or family" be deleted. Response: The department disagrees with the commenter. The agency should have the flexibility to maintain its client's files according to its own policies. The word "separate" has been removed from the subsection to allow an agency to keep the client and family records in the same or separate files. Due to redesignation in the section, the language appears in subsection (f). Clarification has also been provided in sec.115.21(w) of this title (relating to Licensure Requirements and Standards for All Home and Community Support Services Agencies). Comment: Concerning sec.115.26(j)(2), one commenter recommended deletion of "client's rights and responsibilities." The commenter stated that the current language suggests that the client's rights and responsibilities is a standard form or procedure. The commenter felt that each agency was responsible for developing their own rights and responsibilities. Response: The department agrees with the commenter and has struck the language from the paragraph. Due to redesignation in the section, the new language appears in subsection (f). Comment: Concerning sec.115.26(j)(4), one commenter requested that a new subparagraph be added for plan of supervision. Response: The department agrees with the commenter and has added the new subparagraph. Due to redesignation in the section, the new language appears in subsection (f). Comment: Concerning sec.115.26(k), numerous comments were received regarding the subsection including the recommendation to relocate the rule to sec.115.21. Response: The department agrees with the commenter and has deleted subsection (k). The issue of independent contractors and the other suggestions for changes to the rule are addressed in sec.115.21(x). Comment: Concerning sec.115.26(l), one commenter requested that the subsection be relocated to sec.115.21. Response: The department agrees with the commenter and has relocated the rule to sec.115.21(y). Comment: Concerning sec.115.26(m)(1), one commenter recommended changing "or" to "and" and deleting "provided by the agency" to clarify the meaning of the paragraph. Another commenter stated orientation of personnel should require the agency to review infection control procedures. Response: The department agrees with the first commenter and has made the appropriate change, and due to redesignation in the section, the changed language appears in subsection (g). The department also agrees with the second commenter but has added the appropriate language to sec.115.21(t)(8). Comment: Concerning sec.115.26(m)(2), one commenter requested deletion of the word "sufficient" because it is meaningless. Response: The department agrees with the commenter and has deleted the word. Due to redesignation in the section, the rule now appears in subsection (g). Comment: Concerning sec.115.26(n)(2), two commenters commented on the subsection. The first commenter recommended language that clarifies the definition and is in use by another state agency. The second commenter stated the intent is to have college education and experience in a health care setting. Response: The department agrees with the first commenter and has substituted the suggested language in redesignated subsection (h). The department disagrees with the second commenter that the intent was college education and experience. Experience in a supervisory capacity in a health care facility, agency, or community based agency is considered appropriate. Comment: Concerning sec.115.27(c)(1), one commenter suggested adding language to the third sentence to clarify that supervision must be provided by the administrator or licensed professional who is in a supervisory position. Otherwise, any licensed person could provide branch supervision. Response: The department agrees with the commenter and has added the suggested language and has deleted the term "will" and included the term "shall." Comment: Concerning sec.115.27(e), one commenter recommended adding "categories of services" to the sentence to clarify what services the branch offices may offer. Response: The department agrees with the commenter and has added the suggested language. Comment: Concerning sec.115.28(a), one commenter stated the rule appears to mean that the alternate delivery site must meet sec.115.25 regulations in their entirety. The commenter suggested stating the specific requirements that must be met by the alternate delivery site and which can be met by the parent office. Response: The department agrees with the commenter and has clarified the requirements the alternate delivery site shall independently meet as sec.115. 25(c), (f)(1), (g) and (n) in sec.115.28(b). Comment: Concerning sec.115.28(c)(1), one commenter suggested adding language to the second sentence to clarify that supervision should be provided by the administrator or licensed professional who is in a supervisory position. Otherwise, any licensed person could provide branch supervision. Another commenter recommended the language concerning on-site supervision and supervision provided by the administrator or licensed professional should be mandatory language. Response: The department agrees with both commenters and has added the suggested language. Comment: Concerning sec.115.28(c)(3), one commenter stated the clinical records of the alternate delivery site need to be kept at the alternate delivery site. Response: The department agrees with the commenter and has made the appropriate changes. Comment: Concerning sec.115.51(b), one commenter wanted clarification added to the rules regarding accreditation of an agency by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) and by the Community Health Accreditation Program (CHAP). The commenter also suggested that a statement be added that surveys by JCAHO, CHAP and other state agencies (whose standards meet or exceed the requirements for licensing and inspection) will satisfy the legislative licensing survey requirement. Response: The department responds to the commenter that an agency would be required to have an initial survey by the department. Except for complaint investigations and initial surveys, an agency licensed by the department is not subject to additional surveys relating to home health, hospice, or personal assistance services while the agency maintains accreditation for the applicable services from the JCAHO, CHAP or other accreditation organizations that meet or exceed the standards adopted under this chapter. The department agrees in part with the commenter that language should be added regarding the timeframes for licensure inspections; the language has been added in sec.115. 51(n) noting the exceptions in sec.115.51(b). The department has also added clarification in sec.115.51(b) to assure that agencies will be subject to complaint investigations and initial surveys. Comment: Concerning sec.115.51(c), one commenter recommended that the last sentence of the subsection be clarified to indicate the agency records being addressed by the rule are the original agency records. Response: The department agrees with the commenter and has added the word "original" to the rule. Comment: Concerning sec.115.51(e), one commenter pointed out that final findings are not addressed in the section. Response: The department agrees with the commenter that final findings were not addressed. The department has resolved the oversight by removing the word "preliminary" from the rule and modifying the language in subsection (c) and (d). The department's representative was clarified in sec.115.51(c) to be a "surveyor." Comment: Concerning sec.115.51(f)(1), one commenter requested that the rule address the time period by which the department must prepare a statement of deficiencies and recommended that within 10 days. Response: The department disagrees with the commenter because the surveyor prepares the statement of deficiencies on-site in the majority of the surveys that are conducted. Comment: Concerning sec.115.51(f)(2), two commenters stated that an agency should have a sufficient and specified amount of time in order to develop a plan of correction following a survey. One of the commenters recommended 30 days be allowed. Response: The department agrees with the commenters that an agency should have a sufficient amount of time to prepare a plan of correction and has added language to allow an agency to provide the plan of correction at the time of the on-site survey or within ten calendar days. The department believes that 30 days is excessive. Comment: Concerning sec.115.51(f)(3), one commenter stated that signing the receipt for the statement of deficiencies does not indicate any agreement with the statement of deficiencies. The commenter requested that a disclaimer be added to the rule. Response: The department agrees with the commenter and has added the disclaimer. Comment: Concerning sec.115.51(g), one commenter stated that 10 days does not provide sufficient time within which to revise and resubmit a plan of correction and recommended that the rule be revised to provide that the plan of correction may be submitted within 30 days. Response: The department agrees with the commenter and has modified the language to state that an unacceptable plan of correction may be resubmitted no later than 30 calendar days of the agency's receipt of the department's written notice. Comment: Concerning sec.115.51(m), one commenter recommended that the rule be revised to clarify and narrow the circumstances under which the department may initiate disciplinary action once a plan of correction is accepted and completed. Response: The department agrees in part with the commenter. The department should have the flexibility in its regulatory responsibility if necessary to initiate licensure action even if a plan of correction has been accepted and completed. However, the department has added additional language that clarifies action will be taken only if there is harm or potential harm to the client. Comment: Concerning sec.115.51, one commenter recommended that the section contain a rule concerning the timing of surveys. Response: The department agrees with the commenter and has added a new subsection (n) which provides that an on-site survey be conducted within 18 months after a survey for an initial license and after that at least every 36 months. Comment: Concerning sec.115.51, one commenter stated that the statute provides that if an agency has a license to provide more than one service, the survey for each service must be completed during the same surveyor visit. The proposed regulations do not make reference to this requirement. The commenter recommended that a rule be added regarding the timing of multiple surveys. Response: The department agrees with the commenter and has added a new subsection (o). The language was slightly modified from the commenter's suggested language. Comment: Concerning sec.115.52, one commenter recommended that the section be renamed "Disciplinary Action." Response: The department agrees with the commenter, has renamed the section and corrected the references to the section throughout the rules. Comment: Concerning sec.115.52(b)(2), one commenter stated the grounds for denial of a license that are set forth in the rule are overly vague. The commenter recommended the regulations should state specifically the persons for whom the actions must be disclosed. Response: The department agrees with the commenter and has made the suggested changes to the language. Comment: Concerning sec.115.52(e), one commenter stated the safeguards that are available to an agency in the event that the department orders the immediate suspension or revocation of the agency's license, as provided in the statute, are not included in the rule. The commenter recommended that the rule include the safeguards. Response: The department agrees with the commenter and has added the suggested language and included additional language regarding notice for the grounds of the action and procedures for appeal. Comment: Concerning sec.115.53(a), one commenter pointed out the word "client" was incorrect in the first sentence and recommended that the word be changed to "personal." Response: The department agrees with the commenter and has made the correction. Comment: Concerning sec.115.53, one commenter stated the statute provides that certain reports and other documents used or developed in an investigation are confidential and may only be released under certain conditions. The commenter recommended that the confidentiality provision be added to the section. Response: The department disagrees with the commenter as statutory language does not need to be repeated in the rules. The statutory requirement provides direction to the department not to home and community support services agencies regarding confidentiality and release of records. Comment: Concerning sec.115.54, one commenter requested that the section be deleted from the rules and republished as emergency rules. The commenter's rationale for the request was that the department has the responsibility to make the rules concerning criminal history checks and administrative review pursuant to House Bill 1510 and not House Bill 1551. Response: The department disagrees with the commenter as Chapter 115 of this title covers several laws including criminal history checks. All rules pertaining to home and community support services agencies should be incorporated in Chapter 115 of this title. Comment: Concerning sec.115.54(b), one commenter requested that the rule specify calendar days in describing the waiting period. Response: The department agrees with the commenter and has added the word "calendar" to the rule. Comment: Concerning sec.115.54(b)(1), three commenters expressed concern with the rule. One commenter was concerned that the 60-day waiting period would result in a lost opportunity to expand staff which may result in an agency missing a chance to enhance its quality of services and its ability to meet the needs of the patient population in its community if a job applicant decided to go elsewhere to seek employment. The other two commenters were concerned that the term "direct contact" goes beyond the scope of the provisions of House Bill 1510 and should be limited to those who provide hands-on care to clients. Response: The department disagrees with the first commenter. House Bill 1510 requires a 60-day waiting period before employment of a person in a position the duties of which involve direct contact with a client, family member, or visitor of a client, except in an emergency requiring immediate employment. The statute does not define an emergency requiring immediate employment. The department has taken the position that the agency determines an emergency requiring immediate employment to occur when staffing falls below a desired level and thus putting a client's health and safety at risk. The department agrees with one of the other two commenters and has deleted the phrase "or the property of such persons" in this rule and in subsections (j)(2) and (n) of the section. The client's family and the client's visitors are part of the statutory definition and cannot be deleted. Comment: Concerning sec.115.54(b)(4), one commenter was concerned the requirement for a criminal history check for a person each time an offer of employment is made to that person would create additional costs to the department and to home and community support services agencies because many professionals work for numerous agencies simultaneously. The commenter recommended that the department establish certain criteria which would allow agencies to waive the required background checks for applicants already employed by an agency. Response: The statute does not allow the department to waive background checks for applicants who may be employed by another agency. The department clarifies as of September 1, 1993, an agency is not required to conduct a criminal history check for current employees. In addition, agencies are not required to obtain a criminal history check for licensed professionals. Comment: Concerning sec.115.54(c), one commenter expressed concern with the emergency hire provisions and stated that other measures should be considered and implemented to lessen the burden on agencies in meeting the 60-day waiting period. Response: The department's response to the commenter is the same as the response to sec.115.54(b)(1). Comment: Concerning sec.115.54(c)(1), two commenters stated the term "staffing ratios" is not applicable to home care programs; agencies do not establish "staffing ratios" as an inpatient or other physical facility would. Response: The department agrees with the commenters and has deleted the term "ratio." See rationale in response to sec.115.54(b)(1). Comment: Concerning sec.115.54(c)(2), two commenters stated the requirement for sworn affidavits will be expensive and administratively overburdensome for agencies to have all hiring personnel be notary publics or send the application to a notary. Response: The department agrees with the commenters and has deleted the term "affidavit" and added the term "written statement." Due to a previous comment, the department also clarified calendar days in this rule and in sec.115.54(h)- (j). Comment: Concerning sec.115.54(d)(2) and (3), numerous comments were received regarding the collection of a fee to process the criminal history check requests. One commenter stated that home and community support services agencies are being treated unequally because the Texas Department of Human Services does not charge nursing home, personal care homes, attendant care programs for the service. Another commenter was concerned that the higher costs associated with the program will continue to be passed on to the agencies. Response: The department agrees with the commenters and has deleted (d)(1) - (3). The language in the proposed paragraph (1) was incorporated into subsection (d). Comment: Concerning sec.115.54(i), one commenter stated the department should be required to submit all background results to the requesting agency. The notification should not be limited to those which bar employment. Response: The department disagrees with the commenter as Sections 250.005 and 250.006 of the statute only requires the department to notify the agency if the applicant is believed to be barred from employment. Comment: Concerning sec.115.61(c), one commenter stated there is no need for the subsection because subsection (d) references the BNE delegation rules and regulations. Response: The department agrees with the commenter and has deleted the subsection and redesignated the remaining subsections. Comment: Concerning sec.115.62(b)(1) and (2), one commenter stated the RN should be able to offer the services of a home health medication aide when appropriate and when the family consents without the family requesting the service. Response: The department agrees in part with the commenter and has deleted the entire first sentence of the paragraph (b)(1) and has made appropriate modifications by deletion of similar language in (b)(2). Comment: Concerning sec.115.62(b)(5), one commenter stated the decision as to whether medications may be administered by a home health medication aide is within the RN's delegation powers and does not require a practitioner's orders. Response: The department agrees with the commenter and has deleted the requirement. Comment: Concerning sec.115.62(b)(6), one commenter stated a home health medication aide may be utilized in personal assistance services situations in lieu of other unlicensed personnel. The medication aide should not have to be supervised more frequently just because the person is a home health medication aide. Response: The department agrees in part with the commenter and has modified the paragraph to reference sec.115.21(m) of this title (relating to Licensure Requirements and Standards for All Licensed Home and Community Support Services Agencies). The rule does not prohibit a medication aide from fulfilling the duties and responsibilities of an unlicensed person. Comment: Concerning sec.115.62(d)(7), one commenter recommended that the rule reference the Board of Nurse Examiners delegation rules. Response: The department agrees with the commenter and has referenced sec.115.21(m) which references the BNE delegation rules. Comment: Concerning sec.115.62(q) and (r), one commenter suggested clarification of the rules referring to time periods. Response: The department agrees with the commenter and has added the word "calendar" to clarify the time periods. Comment: Concerning the rules in general, one commenter stated since it appears there may be substantial changes to the rules, recommended that the rules be republished once changes have been made, and that another comment period be offered. Response: The department disagrees with the commenter. While there are numerous changes to the rules, they are not considered to be substantive and, therefore, do not warrant reproposal. Comment: Concerning the rules in general, one commenter stated the combining of the two classes of agencies is discriminatory against small agencies and has no basis in law or legislative intent. To support the view, the commenter cited the statute regarding the setting of license fees in amounts that are reasonable to meet the costs of administering the chapter and the board shall consider the size of the home and community support service agency, the number of clients served, the number of services provided. The commenter was concerned that should the proposed rules become regulation, then most pharmacies that license their nursing staff as an agency will not continue to license, thus limiting and/or withdrawing services from some communities. Response: The department disagrees with the commenter. The department believes the rules reflect the intent of the statute. The issue of fees has been addressed earlier in the comments concerning sec.115.3. Comment: Concerning the rules in general, one commenter stated that although House Bill 1551 has provisions that relate to the issuance and renewal of licenses until July 1, 1994, it does not provide any guidance as to how such licenses will be treated after that date. The commenter requested confirmation from the department that a currently licensed home health agency may receive its license as a home and community support services agency in accordance with the license renewal provisions set forth in sec.115.12 rather than the initial license application provisions set forth in sec.115.11. The commenter further requested that a provision be added to the proposed rules. Response: The department confirms to the commenter that currently licensed agencies will not be considered initial applicants but will have to provide the information for reissuance of a new license by July 1, 1994. No additional fee will be charged unless it is also time for renewal of the license. Language has been added in sec.115.21(aa) to address the process. Comment: Concerning the rules in general, one commenter stated that before the rules are finalized they should include pediatric requirements, much like the proposed "qualifications for an agency that provides skilled nursing psychoactive treatment" and "standards for home dialysis designation." Response: The department considers the addition of pediatric rules at this time to be a substantive change. The department will consider adding pediatric requirements when the rules are proposed again and welcomes suggested language from the commenter. Comment: Concerning the rules in general, one commenter believed that when drug therapy is a part of the home health care service, pharmacist involvement is crucial to achieving optimal patient outcomes. The commenter suggested that consideration be given to include in the final rules a requirement for agencies to employ a pharmacist to perform drug use reviews and drug therapy monitoring and evaluation as is currently required in licensed nursing homes. Response: The department disagrees with the commenter and has not included the request in the rules. Comment: Concerning the rules in general, one commenter recommended that Subchapter E should come before Subchapter D because it would flow better. Response: The department disagrees with the commenter and has not made the change. The comments on the proposed rules received by the department during the comment period were submitted by individuals; the Board of Nurse Examiners; Gulf Gate Health Care; Home Health Services and Staffing Association; Home Intensive Care Pharmacy; Home IV Therapy; Keystone Home Health Management, Inc. ; Personal Assistance Services/Respite Rules Work Group; State Board of Examiners for Speech-Language Pathology and Audiology; Texas Association for Home Care; Texas Association of Medical Equipment Dealers; The Texas Council of Community Mental Health and Mental Retardation Centers, Inc.; Texas Department of Health, Children's Health Division; Texas Department of Human Services; Texas Health and Human Services Commission; Texas State Board of Examiners of Dietitians; Texas State Board of Pharmacy; Visiting Nurses Association, Dallas; VITAS Healthcare Corporation, and department staff. The commenters were neither for nor against the rules in their entirety; however, they raised questions, expressed concerns, offered comments for clarification, and made recommendations concerning specific provisions of the rules. Licensing and Regulation 25 TAC sec.sec.115.1-115.19 The repeals are adopted under the Health and Safety Code, sec.142.012, which provides the Texas Board of Health (board) with authority to adopt rules to establish and enforce minimum standards for the licensing of home and community support services agencies; and sec.12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law upon the board, the department and the commissioner of health. The repeals affect Health and Safety Code, sec.142.012. 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 April 11, 1994. TRD-9438949 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Effective date: June 1, 1994 Proposal publication date: December 7, 1993 For further information, please call: (512) 834-6650 Chapter 115. Home and Community Support Services Agencies Subchapter A. General Provisions 25 TAC sec.sec.115.1-115. 5 The new sections are adopted under the Health and Safety Code, sec.142. 012, which provides the Texas Board of Health (board) with authority to adopt rules to establish and enforce minimum standards for the licensing of home and community support services agencies; and sec.12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law upon the board, the department and the commissioner of health. sec.115.2. Definitions. The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise. Accessible and flexible services-Services which are delivered in the least intrusive manner possible and are provided in all settings where individuals live, work, and recreate. Administration of medication-The direct application of any medication by injection, inhalation, ingestion, or any other means to the body of a client. The preparation of medication is part of the administration of medication and is the act or process of making ready a medication for administration, including the calculation of a client's medication dosage; altering the form of the medication by crushing, dissolving, or any other method; reconstitution of an injectable medication; drawing an injectable medication into a syringe; preparing an intravenous admixture; or any other act required to render the medication ready for administration. Administrative support site-A facility or site where a home and community support services agency performs administrative and other support functions but does not provide direct home health, hospice, or personal assistance services. Administrator-A person who is a physician, registered nurse, licensed vocational nurse, physical therapist, occupational therapist, speech-language pathologist, audiologist, social worker, or nursing home administrator; or has a baccalaureate or postgraduate degree in administration or a health or human services field; or has one year of administrative experience in a health care setting. Affiliate-With respect to an applicant or owner which is: (A) a corporation-means each officer, director, stockholder with a direct ownership of at least 10%, subsidiary, and parent company; (B) a limited liability company-means each officer, member, and parent company; (C) an individual-means: (i) the individual's spouse; (ii) each partnership and each partner thereof of which the individual or any affiliate of the individual is a partner; and (iii) each corporation in which the individual is an officer, director, or stockholder with a direct ownership of at least 10%; (D) a partnership-means each partner and any parent company; and (E) a group of co-owners under any other business arrangement -means each officer, director, or the equivalent under the specific business arrangement and each parent company. Agency-A home and community support services agency. Alternate delivery site-A facility or site, including a residential unit or an inpatient unit: (A) that is owned or operated by a hospice; (B) that is not the hospice's principal place of business; (C) that is located in the geographical area served by the hospice; and (D) from which the hospice provides hospice services. Applicant-The owner of an agency which is applying for a license under the statute. Assistance with medication or treatment regimen -Any needed ancillary aid provided to a client in the client's self-administered medication or treatment regimen, such as reminding a client to take a medication at the prescribed time, opening and closing a medication container, pouring a predetermined quantity of liquid to be ingested, returning a medication to the proper storage area, and assisting in reordering medications from a pharmacy. Such ancillary aid shall not include administration of any medication. Association-A partnership, limited liability company or other business entity that is not a corporation. Bereavement-The process by which a survivor of a deceased person mourns and experiences grief. Bereavement services -Support services offered to a family during bereavement. Family includes a significant other(s). Branch office-A facility or site in the geographical area served by a home and community support services agency where home health or personal assistance services are delivered or active client records are maintained. Care plan- (A) a written plan prepared by the appropriate health care personnel for a client of the home and community support services agency; or (B) for home dialysis designation, a written plan developed by the physician, registered nurse, dietitian and qualified social worker to personalize the care for the client and enable long- and short-term goals to be met. Case conference -A conference among personnel furnishing services to the client to ensure that their efforts are coordinated effectively and support the objectives outlined in the plan of care or care plan. Certified agency -A home and community support services agency that: (A) provides a home health service; and (B) is certified by an official of the Department of Health and Human Services as in compliance with conditions of participation in Social Security Act, Title XVIII (42 United States Code (U.S.C.), sec.1395 et seq). Certified copy -A sworn affidavit stating that attached copies are true and correct copies of original documents. Certified home health services-Home health services that are provided by a certified agency. Client-An individual receiving home health, hospice, or personal assistance services from a licensed home and community support services agency. This term includes each member of the primary client's family if the member is receiving services. Clinical note-A dated and signed written notation by agency personnel of a contact with a client containing a description of signs and symptoms; treatment and medication given; the client's reaction; other health services provided; and any changes in physical and emotional condition. Council-The Home and Community Support Services Advisory Council. Counselor-An individual qualified under Medicare standards to provide counseling services, including bereavement, dietary, spiritual, and other counseling services to both the client and the family. Department-The Texas Department of Health. Dialysis treatment record-For home dialysis designation, a dated and signed written notation by the person providing dialysis treatment which contains a description of signs and symptoms, machine parameters and pressure settings, type of dialyzer and dialysate, actual pre and post treatment weight, medications administered as part of the treatment, and the client's response to treatment. Dietitian-A person who is currently licensed under the laws of this state to use the titles of licensed dietitian or provisional licensed dietitian, or who is a registered dietitian. Director-The director of the Health Facility Licensure and Certification Division of the Texas Department of Health or his or her designee. End stage renal disease (ESRD)-For home dialysis designation, the stage of renal impairment that appears irreversible and permanent and requires a regular course of dialysis or kidney transplantation to maintain life. Freestanding hospice -An agency that provides hospice services to clients of the agency who are residing at the agency's physical location including inpatient and respite care. Functional need -Services which are based on the functional needs of the individual rather than on diagnosis or label. Health assessment -A determination of a client's physical and mental status through inventory of systems. Home and community support services agency-A person who provides home health, hospice, or personal assistance services for pay or other consideration in a client's residence, an independent living environment, or another appropriate location. Home health medication aide-A person permitted under the Health and Safety Code, Chapter 142, Subchapter B. Home health service-The provision of one or more of the following health services required by an individual in a residence or independent living environment: (A) nursing; (B) physical, occupational, speech, or respiratory therapy; (C) medical social service; (D) intravenous therapy; (E) dialysis; (F) service provided by unlicensed personnel under the delegation of a licensed health professional; (G) the furnishing of medical equipment and supplies, excluding drugs and medicines; or (H) nutritional counseling. Hospice-A person licensed under this chapter to provide hospice services, including a person who owns or operates a residential unit or an inpatient unit. Hospice services -Services, including services provided by unlicensed personnel under the delegation of a registered nurse or physical therapist, provided to a client or a client's family as part of a coordinated program consistent with the standards and rules adopted under this chapter. These services include palliative care for terminally ill clients and support services for clients and their families that: (A) are available 24 hours a day, seven days a week, during the last stages of illness, during death, and during bereavement; (B) are provided by a medically directed interdisciplinary team; and (C) may be provided in a residence, nursing facility, residential unit, independent living environment or inpatient unit according to need. These services do not include inpatient care normally provided in a licensed hospital to a terminally ill person who has not elected to be a hospice client. Independent living environment-A client's individual residence, which may include a group home or foster home, or other settings where a client participates in activities, including school, work, or church. Individual/family choice and control-Individuals and families who express preferences and make choices about how their support service needs are met. Inpatient unit -A facility that provides a continuum of medical or nursing care and other hospice services to clients admitted into the unit and that is in compliance with the conditions of participation for inpatient units adopted under Social Security Act, Title XVIII (42 United States Code, sec.1395 et seq) and standards adopted under this chapter. Interdisciplinary team - (A) for home dialysis designation, the physician, the registered nurse, the dietitian, and the qualified social worker responsible for planning the care delivered to the home staff-assisted dialysis patient; or (B) a group of individuals who work together in a coordinated manner to provide hospice services and must include a physician, registered nurse, social worker, and counselor. Investigation-An inspection or survey conducted by a representative of the department to determine if a licensee is in compliance with this chapter. Licensed vocational nurse-A person who is currently licensed under the laws of this state to use the title licensed vocational nurse. Long-term program -For home dialysis designation, the written documentation of the selection of a suitable treatment modality and dialysis setting which has been selected by the client and the interdisciplinary team. Manager-A person having a contractual relationship to provide management services to a home and community support services agency for the overall operation of a home and community support services agency including administration, staffing, or delivery of services. Examples of contracts for services that will not be considered to be contracts for management services shall include contracts solely for maintenance, laundry, or food services. Medication administration record-A record used to document the administration of a client's medications. Medication list -A list of a client's medications that includes the recommended dosage and the frequency and method of administration. The medication list is used to identify possible ineffective drug therapy or adverse reactions, significant side effects, drug allergies, and contraindications. Nursing facility -An institution licensed as a nursing home under the Health and Safety Code, Chapter 242. Occupational therapist -A person who is currently licensed under the laws of this state to practice occupational therapy. Owner-One of the following persons which will hold or does hold a license issued under the statute in the person's name or the person's assumed name: (A) a corporation; (B) a limited liability company; (C) an individual; (D) a partnership if a partnership name is stated in a written partnership agreement or an assumed name certificate; (E) all partners in a partnership if a partnership name is not stated in a written partnership agreement or an assumed name certificate; or (F) all co-owners under any other business arrangement. Palliative care -Intervention services that focus primarily on the reduction or abatement of physical, psychosocial, and spiritual symptoms of a terminal illness. Parent agency-The agency that develops and maintains administrative controls and provides supervision of branch offices and alternate delivery sites. Parent company -A person, other than an individual, who has a direct 100% ownership interest in the owner of an agency. Person-An individual, corporation, or association. Personal assistance services-Routine ongoing care or services required by an individual in a residence or independent living environment that enable the individual to engage in the activities of daily living or to perform the physical functions required for independent living, including respite services. The term includes health-related services performed under circumstances that are defined as not constituting the practice of professional nursing by the Board of Nurse Examiners through a memorandum of understanding with the department in accordance with Health and Safety Code, sec.142.016, and health-related tasks provided by unlicensed personnel under the delegation of a registered nurse. Physical therapist -A person who is currently licensed under the laws of this state as a physical therapist. Physician-A person who is currently licensed under the laws of a state within the United States and in which the person practices medicine and who holds a doctor of medicine or doctor of osteopathy degree. Place of business -An office of a home and community support services agency that maintains client records or directs home health, hospice, or personal assistance services. The term does not include an administrative support site. Plan of care -The written orders of a practitioner for a client who requires skilled services. Practitioner-A person who is currently licensed in a state in which the person practices as a physician, dentist, podiatrist, or a person who is a registered nurse registered with the Board of Nurse Examiners for the State of Texas as an advanced nurse practitioner. Presurvey conference -A conference held with department staff and the applicant or his or her representatives to review licensure standards and survey documents and provide consultation prior to the on-site licensure survey. Those present who represent the applicant shall include at least an individual who will be responsible for the day-to-day administration or supervision of care for the agency. Progress note-A dated and signed written notation by agency personnel summarizing facts about care and the client's response during a given period of time. Psychoactive treatment -The provision of a skilled nursing visit to a client with a psychiatric diagnosis under the direction of a psychiatrist that includes one or more of the following: (A) assessment of alterations in mental status or evidence of suicide ideations or tendencies; (B) teaching coping mechanisms or skills; (C) counseling activities; or (D) evaluation of the plan of care. Registered nurse (RN)-A person who is currently licensed under the laws of this state as a registered nurse. Residence-A place where a person resides and includes a home, a nursing facility, a convalescent home, an independent living environment, or a residential unit. A residence includes a group or a foster home. Residential unit -A facility that provides living quarters and hospice services to clients admitted into the unit and that is in compliance with standards adopted under the Texas Special Care Facility Licensing Act, Health and Safety Code, Chapter 248. Respiratory therapist -A person who is currently licensed under Chapter 123 of this title (relating to Respiratory Care Practitioner Certification) as a respiratory care practitioner. Respite services -Support options that are provided temporarily for the purpose of relief for a primary caregiver in providing care to individuals of all ages with disabilities or at risk of abuse or neglect. Respite services may be provided under home health, hospice, or personal assistance services depending on the needs of the client. Sections-Chapter 115 of this title (relating to Home and Community Support Services Agency). Skilled services -Services in accordance with a plan of care that require the skills of a: (A) registered nurse; (B) licensed vocational nurse; (C) physical, occupational or respiratory therapist; (D) speech-language pathologist; (E) audiologist; (F) social worker; or (G) dietitian. Social worker-A person who is currently licensed as a social worker under Human Resource Code, Chapter 50. Speech-language pathologist or audiologist-A person who is currently licensed under the laws of this state as a speech-language pathologist or audiologist. Statute-The Health and Safety Code, Chapter 142. Supervision-Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity with initial direction and periodic inspection of the actual act of accomplishing the function or activity. Support services -Social, spiritual, and emotional care provided to a client and a client's family by a hospice. Terminal illness -An illness for which there is a limited prognosis if the illness runs its usual course. Unlicensed person -An individual who is not licensed as a health care professional. The term includes, but is not limited to, home health aides, medication aides permitted by the department, and other individuals providing personal care or assistance in health services. Volunteer-An individual who provides assistance to a home and community support services agency without compensation other than reimbursement for actual expenses. A volunteer shall meet the same requirements and standards in this chapter as apply to an employee of the agency doing the same activities unless the volunteer is exempt under this chapter from certain requirements or standards. sec.115.3 Licensing Fees. (a) The schedule of fees for licensure of an agency authorized to provide one or more services is as follows: (1) initial license fee-$875; (2) renewal license fee-$875; (3) initial branch office license fee-$500; (4) renewal branch office license fee-$300; (5) initial alternate delivery site license fee-$500; and (6) renewal alternate delivery site license fee-$300. (b) The Texas Department of Health (department) will not consider an application as officially submitted until the applicant pays the licensing fee. The fee must accompany the application form. (c) Fees paid to the department are not refundable. (d) Any remittance submitted to the department in payment of a required fee must be in the form of a certified check, money order, or personal check made out to the Texas Department of Health. sec.115.4. Exemptions. (a) If a person submits to the Texas Department of Health (department) a written claim for exemption, the claim shall include all documentation supporting the exemption. Persons who are exempt from licensing requirements are listed in the Health and Safety Code, sec.142.003. (b) The department shall evaluate the claim for exemption and notify the person by certified mail, return receipt requested, of the proposed decision to grant or deny the claim within 30 calendar days following the department's receipt of the claim for exemption. If the documentation submitted is determined to be insufficient by the department, the person shall be so notified in writing within 30 calendar days of the department's receipt of the documentation and shall have ten calendar days to respond. Following receipt of the response, if any, the department shall notify the person in writing within ten calendar days of the proposed denial or the approval of the claim. The department may conduct an on-site investigation to ascertain if home health, hospice, or personal assistance services are provided. (c) If the claim for exemption is proposed to be denied, the person shall have the right to request informal reconsideration of the decision by the department. The request shall be made by written letter within ten calendar days of the receipt of the denial and shall include any further documentation supporting exemption. 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 April 11, 1994. TRD-9438950 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Effective date: June 1, 1994 Proposal publication date: December 7, 1993 For further information, please call: (512) 834-6650 Subchapter B. Application and Issuance of a License 25 TAC sec.sec.115.11-115.15 The new sections are adopted under the Health and Safety Code, sec.142.012, which provides the Texas Board of Health (board) with authority to adopt rules to establish and enforce minimum standards for the licensing of home and community support services agencies; and sec.12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law upon the board, the department and the commissioner of health. sec.115.11. Application and Issuance of Temporary License for First-Time Applicants (Unregulated Agencies, New Agencies, and Certain Relocations). (a) All first-time applications for licensing are applications for a temporary license. The application for a temporary license is also an application for the first annual license. (b) Upon written request, the Texas Department of Health (department) shall furnish a person with an application form for an agency license. (c) The applicant shall apply for a license which may include the following category(ies) of service: (1) licensed and certified home health services; (2) licensed home health services which may include home dialysis designation; (3) hospice services which may include residential or inpatient units; (4) personal assistance services; or (5) any combination of services. (d) An agency is not required to be licensed in more than one category of services if the agency's category of service covers the provided services. (e) The applicant shall be at least 18 years of age if the applicant is an individual. (f) The applicant shall retain a copy of all documentation that is submitted to the department. (g) The applicant shall submit the following to the department: (1) an accurate and complete application. The address provided on the application must be the address from which the agency will be operating. The applicant shall provide the address in the State of Texas of its place of business to be licensed by the department; (2) a nonrefundable license fee; (3) the name of the owner of the agency; (4) a list of names of all persons who own at least a 10% interest in the applicant; (5) a list of any businesses with which the applicant subcontracts and in which the persons listed under paragraph (4) of this subsection hold as much as 5.0% of the ownership; (6) if the applicant is a direct or indirect subsidiary of a publicly held corporation, the name of that publicly held corporation and the names of each subsidiary of the publicly held corporation that owns an interest in the applicant; (7) for an application other than an alternate delivery site or a branch office license: (A) a proposed budget covering the period of time of the license; (B) a notarized affidavit attesting to the following: (i) that the applicant has not been adjudged insolvent or bankrupt in a state or federal court; (ii) that the applicant is not a party in a state or federal court to a bankruptcy or insolvency proceeding with respect to the applicant; and (iii) that the applicant has the financial resources to meet its proposed budget, and to provide the services required by the statute and by the department during the term of the license; (C) its organizational structure, a list of management personnel, and a job description of each administrative and supervisory position. The job description must contain at a minimum the job title, qualifications including education and training, and job responsibilities. The applicant must submit a plan to provide annual continuing education and training for management personnel; (D) a written plan for the orderly transfer of care of the applicant's clients and clinical records if the applicant is unable to maintain services under the license; (E) a notarized statement attesting that the applicant is capable of meeting the requirements of this chapter for the provision of home health, hospice, or personal assistance services under the statute; (F) if an applicant is a corporation, a current letter from the state comptroller's office stating the corporation is in good standing or a notarized certification that the tax owed to the state under the Tax Code, Chapter 171, is not delinquent or that the corporation is exempt from the payment of the tax and is not subject to the Tax Code, Chapter 171; (G) if accredited, documentation from the accrediting body indicating the agency is accredited; (H) if certified by a state agency that has certification standards which meet or exceed the requirements of this chapter and the statute for licensure, documentation from the state agency indicating the applicant is certified; (I) for the two-year period preceding the application date, data concerning the applicant and the real property lessors, affiliates, and managers of the applicant, without regard to whether the data required relates to current or previous events: (i) denial, suspension, or revocation of an agency license or a license for any health care facility in any state; (ii) federal or state Medicaid or Medicare sanctions or penalties; (iii) state or federal criminal convictions which imposed incarceration; (iv) federal or state tax liens; (v) unsatisfied final judgments; (vi) operation of an agency that has been decertified in any state under Medicare or Medicaid; (vii) debarment, exclusion, or contract cancellation in any state from Medicare or Medicaid; (viii) eviction involving any property or space used as an agency in any state; (ix) unresolved final state or federal Medicare or Medicaid audit exceptions; or (x) injunctive orders from any court; and (J) ownership and management information including: (i) the name and business address of: (I) each limited partner and general partner if the applicant is a partnership; and (II) each director and officer if the applicant is a corporation; (ii) if the applicant has held or holds an agency license or has been or is an affiliate of another licensed agency, the relationship, including the name and current or last address of the other agency and the date such relationship commenced and, if applicable, the date it was terminated; (iii) if the applicant is a subsidiary of another organization, the names and addresses of the parent organization and the names and addresses of the officers and directors of the parent organization; (iv) if the facility is operated by or proposed to be operated under a management contract, the names and addresses of any person and organization having an ownership interest of 5.0% or more in the management company; and (v) the provisions of subparagraphs (I) and (J) of this paragraph shall not apply to an applicant who is a bank, trust company, financial institution, title insurer, escrow company, or underwriter title company to which a license will be issued in a fiduciary capacity except for provisions that require disclosure relating to the manager of the agency. (h) Upon receipt of the application, including the required documentation and the fee, the department shall review the material to determine whether it is complete. (1) All documents submitted with the original application shall be certified copies or originals. (2) The time periods for processing an application shall be in accordance with sec.113.2 of this title (relating to Time Periods for Processing and Issuing Licenses for Health Care Providers). (3) Information received by the department relating to the competence and financial resources of the applicant is confidential and may not be disclosed to the public. (i) Once the application is complete and correct, a presurvey conference may be held at the office designated by the department. All applicants are required to attend a presurvey conference unless the designated survey office waives the requirement. The surveyor shall verify compliance with the applicable provisions of the rules and recommend that the agency be issued a temporary license or that the application be denied pursuant to sec.115.52 of this title (relating to Disciplinary Action). If the surveyor recommends issuance of a temporary license, the department will issue a temporary license within 30 calendar days. The temporary license is valid for six months from the date of issuance and is not renewable. The department shall mail the temporary license to the licensee. (j) If a person is in the process of becoming certified by the Department of Health and Human Services so as to qualify as a certified agency, the person may be issued a temporary license authorizing the person to provide licensed and certified home health services to be effective in accordance with this chapter. (k) The license will designate the categories of services the agency is authorized to provide at or from the designated place of business. (l) Continuing compliance with the minimum standards and the provisions of the rules for the services authorized to be provided under the license is required during the temporary licensing period in order for an annual license to be issued. (m) The agency shall comply with sec.115.21 of this title (relating to Licensure Requirements and Standards for All Home and Community Support Services Agencies). (n) If the department determines that compliance with minimum standards and the provisions of the rules is not substantiated after the issuance of a temporary license, the department shall propose to deny the annual license and shall notify the applicant of a license denial as provided in sec.115.52 of this title. (o) A department surveyor shall inspect the agency after the issuance of the temporary license. All first-time applicants for an annual license must be providing services to one or more clients at the time of the survey. No initial annual license shall be issued until an owner has complied with sec.115.51 of this title (relating to Surveys and Investigation Procedures). (p) If an applicant decides not to continue the application process for a temporary, initial annual, or renewal of an annual license, the application may be withdrawn. If a temporary or annual license has been issued, the applicant shall return the temporary or annual license to the department with its written request to withdraw. The department shall acknowledge receipt of the request to withdraw. (q) If the holder of a temporary license to provide licensed and certified home health services withdraws the holder's application for certification under the Social Security Act, Title XVIII, the department may propose to revoke or suspend the temporary license and to deny the application for an annual license in accordance with sec.115.52 of this title. (r) If the holder of a temporary license to provide licensed and certified home health services has withdrawn the holder's application for certification under the Social Security Act, Title XVIII, and then reapplies for certification the subsequent application is considered a new application for certification and the person must apply for a new temporary license to provide licensed and certified home health services based on the subsequent application for certification. The application for a new temporary license to provide licensed and certified home health services shall be in accordance with this section. (s) A person may not engage in the business of providing home health, hospice, or personal assistance services, or represent to the public that the person is a provider of home health, hospice, or personal assistance services for pay or other consideration without a license issued under the statute. sec.115.12. Issuance and Renewal of Annual License. (a) A first annual license shall be issued to an agency with a temporary license which meets the minimum standards for a license as determined after a survey or through the successful completion of a survey to determine compliance with the Medicare conditions of participation for licensed and certified home health agencies or certified hospices. The first annual license supersedes the temporary license and shall expire one year from the date of issuance of the temporary license. (b) An annual license may be issued when an agency has met the requirements for renewal of an annual license. To be eligible for license renewal, the agency must show proof that services have been provided under the license within the previous 12 months. The agency shall document that services have been provided to one or more clients. (c) The Texas Department of Health (department) will send notice of expiration to an agency at least 60 calendar days before the expiration date of an annual license. If the agency has not received notice of expiration from the department 45 calendar days prior to the expiration date, it is the duty of the agency to notify the department and request a renewal application for a license. (d) The agency shall submit to the department postmarked no later than 30 calendar days prior to the expiration date of the license: (1) an application renewal form which includes updated disclosure information and ownership and management information as required by sec.115. 11(g)(7)(I) and (J) of this title (relating to Application and Issuance of Temporary License for First-Time Applicants (Unregulated Agencies, New Agencies, and Certain Relocations)); (2) the renewal license fee; (3) if accredited, documents from the accreditation body indicating the agency's accreditation; (4) if certified by a state agency that has certification standards that meet or exceed the requirements of the statute and this chapter for licensure, documentation from the state agency indicating the agency's certification; and (5) if an applicant is a corporation, a current letter from the state comptroller's office stating the corporation is in good standing or a notarized certification that the tax owned to the state under the Tax Code, Chapter 171, is not delinquent or that the corporation is exempt from the payment of the tax and is not subject to the Tax Code, Chapter 171. (e) All documents submitted with the renewal application shall be certified copies or originals. The time periods for processing an application shall be in accordance with sec.113.2 of this title (relating to Time Periods for Processing and Issuing Licenses for Health Care Providers.) (f) The department shall issue an annual license to an agency which meets the minimum standards for a license. (g) If the agency fails to submit the application and fee within 15 calendar days prior to the expiration date of the license, the department shall send a certified notice to the agency that the agency must cease operation upon the expiration of the agency's license unless the license is renewed. (h) If an agency wishes to provide home health, hospice or personal assistance services after the expiration date of its license, it must apply for a temporary license under sec.115.11 of this title. (i) If a licensee fails to timely renew his or her license on or after August 1, 1990, because the licensee is or was on active duty with the armed forces of the United States of America serving outside the State of Texas, the licensee may renew the license pursuant to this subsection. (1) Renewal of the license may be requested by the licensee, the licensee's spouse, or an individual having power of attorney from the licensee. The renewal form shall include a current address and telephone number for the individual requesting the renewal. (2) Renewal may be requested before or after the expiration of the license. (3) A copy of the official orders or other official military documentation showing that the licensee is or was on active military duty serving outside the State of Texas shall be filed with the department along with the renewal form. (4) A copy of the power of attorney from the licensee shall be filed with the department along with the renewal form if the individual having the power of attorney executes any of the documents required in this section. (5) A licensee renewing under this subsection shall pay the applicable renewal fee. (6) A licensee is not authorized to operate the agency for which the license was obtained after the expiration of the license unless and until the licensee actually renews the license. (7) This subsection applies to a licensee who is a sole practitioner or a partnership with only individuals as partners where all of the partners were on active duty with the armed forces of the United States serving outside the State of Texas. (j) A license shall not be renewed if renewal is prohibited by the Texas Education Code, sec.57.491 relating to defaults on guaranteed student loans. sec.115.13. Change of Ownership or Services. (a) No license may be transferred from one person to another person. (1) A person who desires to receive a license in its name for an agency currently licensed under the name of another person or to change the ownership of any agency must comply with the following provisions. (A) The person must submit a license application at least 60 calendar days prior to the desired date of licensure. The application shall be, if applicable, in accordance with sec.115. 11(g) of this title (relating to Application and Issuance of Temporary License for First-Time Applicants (Unregulated Facilities, New Agencies, and Certain Relocations)), sec.115.14 of this title (relating to Branch Office Licenses) or sec.115.15 of this title (relating to Alternate Delivery Site Licenses). (B) The on-site inspection required by sec.115.11(o) of this title may be waived by the department. (C) When the person has complied with the provisions of sec.115.11, the department shall issue a temporary license which shall be effective the date of the change of ownership unless the department waives the inspection in accordance with subparagraph (B) of this paragraph. If the inspection is waived, the department shall issue an annual license, in lieu of the temporary license, effective the date of the change of ownership. (D) The previous owner's license shall be void on the effective date of the new temporary license or annual license and must be surrendered to the department. (2) The sale of stock of a corporate licensee does not cause this subsection to apply. (3) A change of ownership of a licensed agency under this subsection occurs when the name of the licensed person or entity as reflected on the license certificate and original application will be changed, unless a corporate licensee is simply amending its articles of incorporation to revise its name. (4) The provisions of this subsection are in addition to any applicable federal law or regulations relating to change of ownership or control. (b) An agency shall notify the department in writing and within 30 calendar days of any of the following: (1) change in state agency certification or accreditation status; and (2) cessation of operation of the agency, branch office or alternate delivery site. The temporary license or annual license shall be mailed or returned to the department at the end of the day services were terminated. (c) An agency which wishes to add or delete a category of service to the license shall inform the department in writing 30 calendar days prior to the addition or deletion of the category of service. The department will approve or disapprove the addition of a category of service. At the discretion of the department an on-site survey may be conducted following the approval of a category of service. (d) If an agency changes the name under which it is licensed but not the ownership, it must notify the department within five business days after the effective date of the name change. The department shall determine if the change is a transfer under subsection (a) of this section. sec.115.14. Branch Office Licenses. (a) The Texas Department of Health (department) may issue a branch office license to a person who holds a current agency license to provide home health or personal assistance services. (b) Upon written request, the department shall furnish a license holder with an application for a branch office license. (c) The applicant shall submit to the department: (1) a complete application; and (2) the required license fee. (d) The applicant shall retain a copy of all documentation that is submitted to the department. (e) The department shall notify the designated survey office of the agency's request to establish a branch office. (f) The designated survey office will conduct a review of the applicant's request to establish a branch office. The survey office will recommend to approve or disapprove the branch office request. (g) If the recommendation is to disapprove the branch office application, the department shall propose denial of the application according to sec.115.52 of this title (relating to Disciplinary Action). (h) The department will issue the branch office an annual license, to expire on the same expiration date as the parent agency's annual license and shall be renewed with the parent agency's annual license. (i) The department will mail the branch office license to the licensee. sec.115.15. Alternate Delivery Site Licenses. (a) The department may issue an alternate delivery site license to a person who holds a current agency license to provide hospice services. (b) Upon written request, the department shall furnish a license holder with an application for an alternate delivery site license. (c) The applicant shall submit to the department: (1) a complete application; and (2) the required license fee. (d) The applicant shall retain a copy of all documentation that is submitted to the department. (e) The department shall notify the designated survey office of the hospice's request to establish an alternate delivery site. (f) The designated survey office shall conduct a review of the applicant's request to establish an alternate delivery site. The survey office will recommend to approve or disapprove the alternate delivery site request. (g) If the recommendation is to disapprove the alternate delivery site application, the department shall propose denial of the application according to sec.115.52 of this title (relating to Disciplinary Action). (h) The department will issue the alternate delivery site an annual license, to expire on the same expiration date as the hospice's annual license, and shall be renewed with the hospice's annual license. (i) The designated survey office will conduct an on-site expansion survey after a license has been issued to verify compliance with sec.115.25 of this title (relating to Standards for Hospice Services). (j) If the designated survey office recommends that the licensed alternate delivery site seek a license as a hospice, a written report supporting the recommendation shall be submitted to the department for review. 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 April 11, 1994. TRD-9438948 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Effective date: June 1, 1994 Proposal publication date: December 7, 1993 For further information, please call: (512) 834-6650 Subchapter C. Service Standards 25 TAC sec.sec.115. 21-115.28 The new sections are adopted under the Health and Safety Code, sec.142.012, which provides the Texas Board of Health (board) with authority to adopt rules to establish and enforce minimum standards for the licensing of home and community support services agencies; and sec.12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law upon the board, the department and the commissioner of health. sec.115.21. Licensure Requirements and Standards for All Home and Community Support Services Agencies. (a) A license shall be displayed in a conspicuous place in the designated place of business and must show: (1) the name and address of the licensee; (2) the name of the owner or owners, if different from the information provided under paragraph (1) of this subsection; (3) the license expiration date; and (4) the categories of services authorized to be provided under the license. (b) A license may be transferred from one location to another without prior approval from the Texas Department of Health (department). If an agency is considering relocation, the agency shall notify the department 30 calendar days prior to the intended relocation. The department will provide written notification to the agency amending the annual license to reflect the new location. (c) The relocation of branch offices and alternate delivery sites to a different parent agency shall require submission of a new application and shall comply with sec.115.14 of this title (relating to Branch Office Licenses) and sec.115.15 of this title (relating to Alternate Delivery Site Licenses) as appropriate. (d) An agency must notify the department in writing of any change in its telephone number within 30 calendar days. (e) An agency shall implement and enforce the provisions of the Human Resources Code, Chapter 102 (relating to Rights of the Elderly), for clients 55 years and older. (f) An agency shall investigate complaints made by a client or the client's family or guardian or the client's health care provider regarding treatment or care that is (or fails to be) furnished or regarding the lack of respect for the client's property by anyone furnishing services on behalf of the agency and must document the receipt of the complaint and the resolution of the complaint. An agency shall not materially misrepresent the qualifications, abilities, or other attributes of another agency, health care facility, or health care professional. (g) A license shall not be materially altered. (h) An agency shall meet the requirements set forth by the department in sec.sec.1.131-1.137 of this title (relating to Definition, Treatment and Disposition of Special Waste from Health Care-Related Facilities). This requirement does not apply to disposition of special waste in a client's place of residence, but would apply to any special waste disposed of from an agency's office location. (i) An agency shall adopt, implement, and enforce a written policy to ensure compliance of the agency and its employees and contractors with the Health and Safety Code, Chapter 85, Subchapter I, relating to the prevention of the transmission of human immunodeficiency virus and hepatitis B virus. (j) An agency shall adopt, implement, and enforce a written policy to ensure compliance of the agency and its employees and contractors with the Health and Safety Code, sec.161.091 et seq relating to the prohibition of illegal remuneration for securing or soliciting clients or patronage. (k) An agency that provides laboratory services must meet the requirements of Federal Public Law 100-578, Clinical Laboratory Improvement Amendments of 1988 (CLIA 1988). CLIA 1988 applies to all agencies with laboratories that examine human specimens for the diagnosis, prevention, or treatment of any disease or impairment of, or the assessment of the health of, human beings. (l) An agency shall adopt, implement, and enforce a written policy for publicly known natural disaster preparedness for clients receiving services. The written policy shall include a plan for the reasonable mechanism for triaging clients, the notification of appropriate personnel and clients in the event of a disaster if possible, the identification of appropriate community resources, and the identification of possible evacuation procedures. The plan need not require that the agency actually evacuate, transport, or triage the clients. (m) An agency shall adopt, implement and enforce a written policy to ensure compliance with the rules of the Board of Nurse Examiners for the State of Texas adopted at 22 TAC Chapter 218, Delegation of Selected Nursing Tasks, as these rules were effective December 16, 1992. (n) An agency shall adopt, implement, and enforce a policy on pronouncement of death if that function is carried out by an agency RN. The policy shall be in compliance with the Health and Safety Code, sec.671.001. (o) An agency shall adopt, implement, and enforce a written policy to ensure that the agency submits accurate billings and insurance claims. (p) An agency shall comply with the Nursing Practice Act, Texas Civil Statutes, Articles 4525a and 4525b, relating to professional nurse reporting and peer review. (q) An agency that provides skilled nursing psychoactive treatments under the direction of a psychiatrist shall comply with the following requirements under this subsection. (1) A registered nurse providing skilled nursing psychoactive treatments must meet one of the following qualifications: (A) a master's degree in psychiatric or mental health nursing; (B) a bachelor's degree in nursing with one full-time year of experience in an active treatment unit in a mental health facility or outpatient clinic; (C) a diploma or associate degree with two full-time years of experience in an active treatment unit in a mental health facility or outpatient clinic; or (D) a person that has been approved to meet the qualifications of psychiatric nurse by an intermediary under contract with the Health Care Financing Administration (HCFA). (2) An agency shall have written documentation of qualifications of a registered nurse providing skilled nursing psychoactive treatments under the direction of a psychiatrist. (3) The initial assessment of a client receiving skilled nursing psychoactive treatments shall include: (A) mental status including psychological and behavioral status; (B) sensory and motor function; (C) cranial nerve function; (D) language function; and (E) other criteria established by an agency's policy. (r) An agency shall adopt, implement, and enforce a policy on a quality assurance program which provides for accountability and desired client outcomes. (1) An agency shall conduct an ongoing, comprehensive, integrated, self- assessment of the quality and appropriateness of care provided, including services provided under arrangement. The findings are to be used by the agency to correct identified problems and to revise policies, if necessary. (2) Those responsible for the quality assurance program shall: (A) implement and report on activities and mechanisms for monitoring the quality of care; (B) identify and when possible resolve problems; and (C) make suggestions for improving care. (s) An agency furnishing home intravenous therapy directly or under arrangement shall comply with the following standards of care: (1) A physician's order shall be written specifically for home intravenous therapy. (2) Home intravenous therapy shall be provided by a licensed nurse. (3) To insure that prescribed care is administered safely, the nurse shall have the knowledge and demonstrated competency to interpret and implement the written order. (4) Responsibilities of the home infusion nurse shall be clearly delineated in written policies and procedures. (5) A registered nurse shall be available through all clinical aspects of intravenous administration and available 24 hours per day. (6) The client and/or caregiver shall be assessed for the ability to safely administer the prescribed home intravenous therapy as per agency written criteria. (7) The teaching process based on the client and/or caregiver needs may include written instructions, verbal explanations, demonstrations, evaluation and documentation of competency, proficiency in performing therapy, scope of physical activities and safe disposal of equipment. (8) Actions shall be implemented prior to and during all home infusion therapy to minimize the risk of anaphylaxis/adverse reactions as stated in the agency's written policy. (9) An ongoing assessment of client and/or caregiver(s) compliance in performing therapy related procedures shall be done at periodic intervals depending on client condition and therapy. (10) Written policies and procedures regarding home intravenous therapy shall include, but are not limited to, the following: initiation, medication administration, monitoring and discontinuation. (11) Care coordination shall be provided in order to assure continuity of care. (12) The client and/or caregiver shall be provided with 24 hour access to appropriate health care professionals. (t) Policies shall be developed in writing and enforced by the agency and shall address the following subjects: (1) orientation of all personnel to the policies and objectives of the agency; (2) participation by all personnel in appropriate employee development programs; (3) periodic evaluation of employee performance; (4) personnel policies; (5) client care policies; (6) disciplinary action(s) and procedures; (7) a job description (statement of those functions and responsibilities which constitute job requirements) and job qualifications (specific education and training necessary to perform the job) for each position within the agency; and (8) infection control policies including the prevention of the spread of infectious and communicable disease from agency personnel to clients. (u) Organizational structure and operational policies of the agency must be clearly stated in writing. An agency shall adopt, implement, and enforce its operational policies. The policies must include the lines of authority and delegation of responsibility down to the client care level and the services provided. (v) A personnel record shall be maintained on each employee. A personnel record shall include, but not be limited to, the following: job description; qualifications; application for employment; verification of license, permits, reference(s), job experience, and educational requirements as appropriate; performance evaluations and disciplinary actions; and letters of commendation. All information shall be kept current. In lieu of the job description and qualifications for employment, the personnel record may include a statement signed by the employee that the employee has read the job description and qualifications for the position accepted. (w) For each client an agency may keep a single file or separate files for each category of service provided to the client and the client's family. (x) If an agency utilizes independent contractors, there shall be a written agreement between such independent contractors (i.e. per hour, per visit) and the agency. The agreement shall be enforced by the agency and clearly designate: (1) that clients are accepted for care only by the primary agency; (2) the services to be provided; (3) the necessity to conform to all applicable agency policies, including personnel qualifications; (4) the plan of care, care plan, or individualized service plan to be carried out; (5) the manner in which services will be coordinated and evaluated by the primary agency; (6) the procedures for submitting information and documentation regarding the client's needs and services, including clinical and progress notes, if required; the scheduling of visits; and periodic client evaluation or supervision; and (7) the procedures for determining charges and reimbursement. (y) Services provided by an agency under arrangement with another agency or organization must be subject to a written agreement conforming with the requirements specified in subsection (x) of this section. (z) The agency shall adopt, implement and enforce a policy to provide for back-up services when the employee or contractor is not able to deliver the services. (aa) The following addresses the conversion of licenses under the statute. (1) An agency already licensed under the statute on June 1, 1994, shall provide the information requested by the department relating to the agency's categories of services and the relinquishment of any licenses. This information shall be provided by July 1, 1994. A replacement license as a home and community support services agency shall then be issued in accordance with this chapter. (2) Paragraph (1) of this subsection shall not apply to: (A) changes of ownership; (B) changing a branch office license to a parent agency; (C) changing a parent agency license to a branch office or alternate delivery site license; and (D) establishing a new agency, rather than just moving an existing agency to a new location. (3) The actions under paragraph (2) of this subsection shall require a new application and fee for the appropriate license. (4) No refunds of fees shall be made under this subsection. (bb) A person who is not licensed to provide hospice services may not use the word "hospice" in a title or description of a facility, organization, program, service provider or services or use any other words, letters, abbreviations, or insignia indicating or implying that the person holds a license to provide hospice services. sec.115.22. Standards for Licensed Home Health Services. (a) An agency providing licensed home health services shall meet the standards of this section. (b) The administrator of an agency will administratively supervise the provision of all health services. The administrator shall organize and direct the agency's ongoing functions; employ qualified personnel and ensure adequate staff education and evaluations; ensure the accuracy of public information materials and activities; and implement an effective budgeting and accounting system. A person who meets the qualifications of an administrator shall be authorized in writing by the administrator to act in his or her absence. (c) The agency shall maintain a current roster of clients and have a clinical record for each client which is maintained according to professional standards. (1) A clinical record shall include appropriate identifying information; name of practitioner; initial assessment, plan of care (which shall include as applicable medication, dietary, treatment, and activities orders) or a care plan; clinical and progress notes; and medication list. The following shall be included if applicable: records of supervisory visits; medication administration record; record of case conference; acknowledgement of receipt of a copy of the Human Resources Code, Chapter 102, Rights of the Elderly, for clients 55 years or older; client agreement to and acknowledgement of services by home health medication aides; and discharge summary. All entries shall be signed and dated by the person making the entry and supervisory personnel as is necessary. (2) Records shall be retained for five years at a designated place and safeguarded against loss and unofficial use. The agency shall have written procedures which are enforced governing the use and removal of records and the release of information. (3) An agency shall provide a copy of the clinical record to a person who has obtained consent from the client or authorized representative for the release of the record. (4) The clinical record shall be either an original, a microfilmed copy, an optical disc imaging system copy, or a certified copy. If the clinical record is microfilmed or maintained on an optical disc imaging system, the microfilm and the equipment needed to read the record must be accessible at the time and at the office of the on-site survey of the agency. (5) Clinical notes are to be written the day service is rendered and incorporated into the clinical record on a timely basis. An agency shall adopt, implement, and enforce a policy on incorporation of clinical notes into the clinical record. (d) The agency must have the financial ability to carry out its functions. (e) The agency must have a written contingency plan which is implemented in the event of dissolution for continuity of client care. All records shall be retained even if the agency discontinues operations. (f) The agency shall accept a client for home health services on the basis of a reasonable expectation that the client's medical, nursing, and social needs can be met adequately in the client's residence. The agency shall start providing licensed home health services to a client within a reasonable time from acceptance of the client. The initiation of licensed home health services shall be based on the client's health service needs. An agency shall adopt, implement, and enforce a policy on the time frame for the initiation of home health services. (1) An initial assessment shall be performed in the client's residence by the appropriate health care professional prior to or at the time that licensed home health services are initially provided to the client. The assessment shall determine whether the agency has the ability to provide the necessary services. (A) If a practitioner has not ordered skilled care for a client, then the appropriate health care professional shall prepare a care plan. The care plan shall be developed after consultation with the client and the client's family and shall include potential services to be rendered, the frequency of visits or hours of service, identified problems, method of intervention, and projected date of resolution. The care plan is revised as necessary, but it shall be reviewed and updated by all appropriate staff members involved in client care at least annually. (B) If a practitioner orders skilled treatment, then the appropriate health care professional shall prepare a plan of care. The plan of care must be signed and approved by a practitioner in a timely manner. The plan of care shall be developed in conjunction with agency staff and shall cover all pertinent diagnoses, including mental status, types of services and equipment required, frequency of visits at the time of admission, prognoses, functional limitations, activities permitted, nutritional requirements, medications and treatments, any safety measures to protect against injury, and any other appropriate items. The appropriate health care personnel shall perform services as specified in the plan of care. The plan of care shall be revised as necessary, but it shall be reviewed and updated at least every six months. An agency shall adopt, implement, and enforce a policy on the time frame for the timely countersignature of a practitioner's verbal orders. (2) The agency will inform the client or his family in writing of the terms of their agreement for services and obtain an acknowledgement of receipt of the agreement. The agency shall comply with the terms of the agreement. The agreement shall include, but not be limited to, the following: (A) Human Resources Code, Chapter 102 (relating to Rights of the Elderly), for clients 55 years of age and older; (B) health services to be provided; (C) supervision by the agency of services provided; and (D) agency charges for services rendered if the charges will be paid in full or in part by the client or his family, or on request. (g) A clinical record or minutes of case conferences shall show that effective interchange, reporting, and coordination of care occurs. An agency shall adopt, implement and enforce a policy on documentation of coordination of care. (h) Administration of medication must be ordered by the client's practitioner. An agency shall adopt, implement, and enforce a policy on maintaining a current medication list and medication administration records. A current medication list and medication administration records shall be maintained and incorporated into the clinical record. A current medication list and medication administration records may be incorporated into one document. Notation will be made in clinical notes of medications not given and the reason. Any untoward action will be reported to a supervisor and documented. (i) An agency shall provide at least one home health service. All services shall be rendered and supervised by qualified personnel. The appropriate health professional shall be available to supervise as needed, when services are provided. (1) If nursing service is provided, a registered nurse shall be employed by or under contract with the agency to provide services or supervision. (2) If physical therapy service is provided, a physical therapist shall be employed by or under contract with the agency to provide services or supervision. (3) If occupational therapy service is provided, an occupational therapist shall be employed by or under contract with the agency to provide services or supervision. (4) If speech-language pathology or audiology services are provided, a speech-language pathologist or audiologist shall be employed by or under contract with the agency to provide services or supervision. (5) If medical social service is provided, a social worker shall be employed by or under contract with the agency to provide services or supervision. (6) If nutritional counseling is provided, a dietitian shall be employed by or under contract with the agency to provide services or supervision. (7) If services are provided by unlicensed personnel, a qualified person shall be employed by or under contract with the agency to provide the service and a registered nurse shall be employed by or under contract with the agency to perform the initial assessment, prepare the client care plan, as appropriate, and supervise the unlicensed personnel. (8) If respiratory therapy service is provided, a respiratory care practitioner shall be employed by or under contract with the agency to provide services. sec.115.23. Standards for Licensed and Certified Home Health Services. (a) An agency providing licensed and certified home health services shall comply with the requirements of the Social Security Act and the federal regulations in Title 42 of the Code of Federal Regulations. Copies of the regulations adopted by reference in this section are indexed and filed in the Health Facility Licensure and Certification Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, and are available for public inspection during regular working hours. (b) An agency providing licensed and certified home health services that plans to implement a home health aide training and competency evaluation program shall meet the requirements in sec.115.61(d)-(f) of this title (relating to Home Health Aides). (c) An agency providing licensed and certified home health services that plans to implement a competency evaluation program shall comply with sec.115.61(f) of this title (relating to Home Health Aides). (d) An agency providing licensed and certified home health services may not use an individual as a home health aide unless: (1) the individual has met the federal requirements under subsection (a) of this section; (2) the individual qualifies as a home health aide on the basis of a: (A) training and competency evaluation program, and the program meets the requirements of subsection (b) of this section; or (B) competency evaluation program, and the program meets the requirements of subsection (c) of this section; or (3) the individual is a licensed health care provider or a volunteer. (e) Since the individual's most recent completion of a training and competency evaluation program or a competency evaluation program, if there has been a continuous period of 24 consecutive months during which the individual has not furnished home health services as defined by federal law, the individual shall not be considered as having completed a training and competency evaluation program or a competency evaluation program. (f) If a person who is not an agency providing licensed and certified home health services desires to implement a home health aide training and competency evaluation program or a competency evaluation program, the person shall meet the requirements of this section in the same manner as set forth for an agency. (g) If there is a conflict between the federal requirements under subsection (a) of this section and the requirements of subsections (b)-(e) of this section relating to home health aides in an agency providing licensed and certified home health services, the federal requirements shall apply. sec.115.24. Standards for Home Dialysis Designation. (a) An agency may only provide peritoneal dialysis and treatments provided by licensed personnel, but shall not provide other home dialysis services unless the agency is licensed and designated to provide home dialysis services. In order to receive a home dialysis designation, the agency shall meet the licensing standards specified in this section and the standards for home health services in accordance with sec.115.22 of this title (relating to Standards for Licensed Home Health Services) except for the standards sec.115. 22(f)(1)(A) and (B), (g), and (i)(1)(7). In the event there is a conflict between the standards specified in this section and those specified in sec.115. 22 of this title, the standards specified in this section shall apply to the home dialysis services. (b) The agency shall have a governing body. The governing body shall appoint a medical director and the physicians who are on the agency's medical staff. The governing body shall annually approve the medical staff policies and procedures. Approval of new medical staff members and termination of current medical staff members shall be made on occurrence. The governing body on a biannual basis shall review and consider for approval continuing privileges of the agency's medical staff. The minutes from the governing body of the agency shall be on file in the agency office. (c) Provisions concerning written agreements relating to hospital services are as follows. (1) There must be an effective procedure for the immediate transfer to a local Medicare certified hospital for clients requiring emergency medical care. The agency must have a written transfer agreement with such a hospital, or all physician members of the agency's medical staff must have admitting privileges at such a hospital. (2) An agency which supplies home staff assisted dialysis shall have a written affiliation agreement with a Medicare certified hospital based End Stage Renal Disease (ESRD) center for the provision of inpatient care and other hospital services. Similar agreements may be made with other hospitals if desired. This agreement must provide for the following: (A) the responsibility of a client's care; (B) ready acceptance of clients in emergency situations; (C) timely acceptance and admission, when determined medically appropriate by the attending physician; (D) medical information, including the long term program and client care plan, being transferred within one working day; and (E) security and accountability for a client's personal effects. (d) The agency which supplies home staff assisted dialysis shall have an agreement with a Medicare-certified ESRD center or facility to provide backup outpatient dialysis services. (e) A home staff assisted dialysis agency must provide for the exchange of medical and other information necessary or useful in the care and treatment of clients transferred between treating facilities. This provision must also include the transfer of the client care plan and long term program. (f) The agency shall ensure that the names of clients awaiting cadaveric donor transplantation are entered in a participating recipient registry program. (g) There shall be routine testing to ensure detection of hepatitis in employees and clients. All direct client care employees shall have current CPR certification. (h) The medical director must be a physician who is licensed in the State of Texas, is eligible for certification or is certified in internal medicine or pediatrics by a professional board, and has at least 12 months of experience or training in the care of clients at an ESRD facility. (i) The medical director shall be responsible for: (1) participating in the selection of a suitable treatment modality for all clients; (2) assuring adequate training of nurses and technicians in dialysis techniques; (3) assuring adequate monitoring of the client and the dialysis process; and (4) assuring the development and availability of a client care policy and procedures manual and its implementation. (j) All physicians, including the medical director, shall have on file the following: (1) a curriculum vitae which documents undergraduate, medical school, and all pertinent post graduate training; (2) evidence of current licensure, and evidence of current United States Drug Enforcement Administration certification, Texas Department of Public Safety registration, and eligibility to the appropriate board; and (3) evidence of 12 months experience or training in the care of the renal client. (k) Assessment of the client's residence shall be made to ensure a safe physical environment for the performance of dialysis. The initial admission assessment shall be performed by a qualified registered nurse. (l) The agency shall develop a long term program for each client admitted to home dialysis. Criteria shall be defined in writing which shall guide the agency in the selection of clients suitable for home staff assisted dialysis and in noting changes in a client's condition which would require discharge from the program. (m) If home staff assisted dialysis is selected, then the physician shall prepare orders outlining specifics of prescribed treatment. If these physician's orders are received verbally, they must be confirmed in writing within a reasonable time frame. An agency shall adopt, implement, and enforce a policy on the time frame for the timely countersignature of a physician's verbal orders. Medical orders for home staff assisted dialysis shall be revised as necessary but reviewed and updated at least every six months. (n) The initial orders for home staff assisted dialysis must be received prior to the first treatment and shall cover all pertinent diagnoses, including mental status, prognosis, functional limitations, activities permitted, nutritional requirements, medications and treatments, and any safety measures to protect against injury. Orders for home staff assisted dialysis shall include frequency and length of treatment, dry weight, type of dialyzer, dialysate, heparin dosage, blood flow rate, and shall specify the level of preparation required for the care given (i.e. qualified dialysis technician, licensed vocational nurse, or registered nurse). (o) The client care plan shall be developed after consultation with the client or the client's family by the interdisciplinary team. The plan shall implement the medical orders and shall include potential services to be rendered, such as the identification of problems, methods of intervention, and the assignment of health care personnel. The client care plan shall be personalized for the individual and reflect the ongoing psychological, social and functional needs of the client. The initial client care plan shall be completed by the interdisciplinary team within ten calendar days after the first home dialysis treatment. The plan for non-stabilized clients (e.g. change in modality, unacceptable laboratory work, uncontrolled weight changes, infections, and a change in family status) shall be reviewed at least monthly by the interdisciplinary team. For a stable client, the care plan shall be reviewed every six months. The long term program shall be revised as needed and reviewed annually. (p) An agency shall provide to each client a statement of client's rights and responsibilities, which shall include the following: (1) the right to be informed of all rules and regulations governing client conduct and responsibilities, services available in the facility, and the client's medical condition unless medically contraindicated; (2) the opportunity to participate in planning his or her medical treatment and to be transferred only for medical reasons, the client's welfare or that of other clients, or nonpayment of fees. Clients shall be given advance notice to ensure orderly transfer or discharge; (3) the right to be treated with consideration, respect, and full recognition of his or her individuality and personal needs; (4) the right to confidential treatment of his or her personal and medical records; and (5) the right to have assistance in understanding and exercising his or her rights. There shall be a written grievance mechanism under which a client can participate without fear of reprisal. (q) Medications will be administered only if such medication is ordered by the client's physician. Qualified dialysis technicians may administer only those medications routinely necessary for the performance of dialysis. Specifically, these medications are lidocaine, which must be administered subcutaneously, and heparin and normal saline, which must be administered intravenously. Such administration shall be in accordance with the provisions of the Medical Practice Act, Texas Civil Statutes, Article 4495b. The Act, sec.3.06(d)(1), specifically refers to delegation of medical acts by a licensed physician in the State of Texas. Upon request by a client or his family for assistance with medications, the RN may assign a dialysis technician to assist with administration of oral medications which are ordinarily self-administered. The request shall be documented in the client's clinical record. The record of the administration of drugs routinely given as part of dialysis treatment (e.g. lidocaine, heparin, and normal saline) shall be contained in the dialysis treatment record. (r) An agency which provides home staff assisted dialysis shall, at a minimum, provide nursing service, nutritional counseling, and medical social service. These services shall be provided as necessary and appropriate at the client's home, by phone, or by a client's visit to the ESRD center or unit. A qualified registered nurse shall be available whenever dialysis treatments are in progress in a client's home. The agency administrator shall designate a qualified alternate to this registered nurse. A qualified social worker and a dietitian shall be employed by or under contract with the agency to provide services. (1) A qualified registered nurse is a person who is licensed as a registered nurse in Texas and has at least 12 months' experience in clinical nursing and an additional six months of experience in nursing care of a client with permanent kidney failure. (2) A qualified social worker is a person who: (A) is currently licensed under the laws of the State of Texas as a social worker and has a master's of science of social work (MSSW) from a graduate school of social work accredited by the Council on Social Work Education; or (B) has served for at least two years as a social worker, one year of which was in a dialysis unit or transplantation program prior to September 1, 1976, and has established a consultative relationship with a certified MSSW. (3) A qualified dietitian must meet the definition in sec.115.2 of this title (relating to Definitions) and have at least one year of experience in clinical nutrition. (s) A qualified dialysis technician shall be employed by or under contract with the agency to provide dialysis care for a client in the home under the supervision of a qualified RN or a licensed physician and shall meet the following requirements. (1) A qualified home dialysis technician shall have: (A) a minimum of a high school education or GED and two years of full- time dialysis experience; or (B) a minimum of a high school education or GED and one year full-time dialysis experience with one additional year of direct client care in a hospital. (2) If the dialysis technician is performing peritoneal dialysis (e.g. intermittent peritoneal dialysis, continuous ambulatory peritoneal dialysis, or continuous cycles peritoneal dialysis), one of the two years of full-time experience shall be with peritoneal dialysis. (3) A dialysis technician shall not: (A) initiate hemodialysis via subclavian catheter administration; (B) administer blood products, antibiotics, albumin, or insulin; (C) perform non-access site venipuncture; (D) draw arterial blood gases; (E) administer deferoxamine mesylate; (F) utilize the technique of tight heparinization; or (G) initiate home education on dialysis procedures, diagnosis, safety, and medications. (t) All personnel providing direct client care shall receive orientation and training and demonstrate knowledge of the following: (1) anatomy and physiology of the normal kidney; (2) fluid, electrolyte, and acid-base balance; (3) pathophysiology of renal disease; (4) acceptable laboratory values for the client with renal disease; (5) theoretical aspects of dialysis; (6) vascular access and maintenance of blood flow; (7) technical aspects of dialysis; (8) peritoneal dialysis catheter (tenckhoff) and peritoneal dialysis clearance, if applicable; (9) the monitoring of clients during treatment (treatment initiation and termination); (10) the recognition of dialysis complications, emergency conditions, and institution of the appropriate corrective action (emergency equipment is available and staff is trained in its use); (11) psychological, social, financial, and physical complications of the long- term dialysis; (12) care of the client with chronic renal failure; (13) dietary modifications and medications for the uremic client ; (14) alternative forms of treatment for ESRD; (15) the role of renal health team members (physician, nurse, technician, social worker, and dietitian); (16) performance of laboratory tests (hematocrit and blood glucose); and (17) the theory of blood products and blood administration. (u) Physician delegation of medical acts to a dialysis technician shall be as follows. (1) The medical director shall attest that each dialysis technician demonstrates competency in subsection (t)(1)-(17) of this section. This evidence shall be documented in writing and maintained in each individual dialysis technician personnel file and updated at least annually. (2) If a physician delegates a medical act to a technician not employed by the agency, the governing body of the agency shall delineate the dialysis technician's privileges according to approved medical staff policies and procedures. (3) The dialysis technician shall contact the registered nurse if there is a change in a client's condition. The registered nurse shall notify the physician of a client's status to obtain orders if necessary. (v) The requirements concerning an orientation and training period are as follows. (1) The agency shall develop an 80-hour written orientation program including classroom theory and direct observation of the dialysis technician or nurse performing procedures on a client in the home. The orientation program shall be provided by a qualified registered nurse. A written skills examination or competency evaluation shall be administered to the dialysis technician or nurse at the conclusion of the orientation program and prior to the time the nurse or technician delivers independent client care. (2) The nurse or dialysis technician shall complete the required theory of the classroom component as described in subsection (t)(1)-(5), (11) -(15), and (17) of this section and satisfactorily return demonstrate the skills described in subsection (t)(6)-(10) and (16) of this section. The orientation program may be waived by written examination as described in paragraph (1) of this subsection. (3) A qualified registered nurse shall complete an orientation competency skills checklist relating to the dialysis technician or nurse in order to reflect the progression of learned skills, as described in subsection (t)(1)- (17) of this section. (4) Prior to the delivery of independent client care, the qualified registered nurse shall directly supervise the dialysis technician or nurse for a minimum of three dialysis treatments and ensure satisfactory performance. Dependent upon the trainee's experience and accomplishments on the skills checklist, additional supervised dialysis treatments may be required. (5) Continuing education for employees shall be quarterly. Performance evaluations shall be annually. The registered nurse shall directly (on-site) supervise the licensed vocational nurse and qualified dialysis technician monthly or more often if necessary. (w) Records of home staff assisted dialysis clients shall include the following: a medical history and physical, clinical progress notes by the physician, qualified registered nurse, qualified dietitian, and qualified social worker, dialysis treatment records, laboratory reports, client care plan, long term program, and documentation of supervisory visits. (x) The agency shall ensure that biohazardous waste (needles, syringes, artificial kidneys, arterial and venous lines, and any other blood contaminated material) is disposed according to state and local regulations and ordinances (i.e. incineration, Type 1 landfill, steam sterilization), as appropriate. An agency shall adopt, implement, and enforce policies and procedures for safe handling and disposal of biohazardous waste and materials. (y) Water treatment for home dialysis shall be as follows. (1) Water used for dialysis purposes shall be analyzed periodically and treated as necessary to maintain a continuous water supply that is biologically and chemically compatible with acceptable dialysis techniques. (2) Water used to prepare dialysate shall meet the requirements set forth in sec.3.2 and sec.4.2 of the American National Standards for Hemodialysis Systems, published by the Association for the Advancement of Medical Instrumentation (AAMI), approved March 16, 1992, 1909 North Fort Meyer Drive, Suite 602, Arlington, Virginia 22209, and approved by the American National Standards Institute, Inc. (ANSI). Additionally, frequency of monitoring water purity shall be in accordance with the suggestions in Appendix B, sec.B5 of the same standards. Copies of the standards are indexed and filed in the Health Facility Licensure and Certification Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756 and are available for public inspection during regular working hours. (3) Records of test results and equipment maintenance shall be maintained at the agency. (z) Preventive maintenance for home dialysis equipment shall be as follows. (1) A planned program of preventive maintenance of dialysis equipment shall be established. (2) Preventive maintenance of home dialysis equipment shall be in accordance with the machine manufacturer's suggestions and on an as needed basis. In the absence of specific manufacturer's recommendations, preventive maintenance shall be in accordance with the guidelines published by the Emergency Care Research Institute in Health Devices, July 1978, Volume 7, Number 9. Copies of the standards are indexed and filed in the Health Facility Licensure and Certification Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, and are available for public inspection during regular working hours. (3) In the event that the water used for dialysis purposes or home dialysis equipment is found not to meet safe operating parameters, and corrections can not be effected to ensure safe care promptly, the client shall be transferred to a medicare certified ESRD facility or center until such time as the water or equipment is found to be operating within safe parameters. (aa) Reuse or reprocessing of disposable medical devices, including but not limited to, dialyzers, end-caps and blood lines shall be in accordance with the medicare conditions of participation for ESRD. (bb) Provision of laboratory services shall be as follows. (1) All laboratory services ordered for the client by a physician shall be performed by a laboratory approved according to the requirements of Federal Public Law 100-578, Clinical Laboratory Improvement Amendments of 1988 (CLIA 1988) and in accordance with a written arrangement or agreement with the agency. (2) Copies of all laboratory reports shall be maintained in the client's medical record. (3) Hematocrit and blood glucose tests may be performed at the client's home by the dialysis technician in accordance with sec.115.21(k) of this title (relating to Licensure Requirements and Standards for All Home and Community Support Services Agencies). Results of these tests shall be recorded in the client's medical record and signed by the technician. Maintenance, calibration and quality control studies shall be performed according to the equipment manufacturer's suggestions, and the results shall be maintained at the agency. (4) Blood and blood products shall only be administered to dialysis clients in their homes by licensed personnel. (cc) Supplies for home dialysis shall meet the following requirements. (1) All drugs, biologicals, and legend medical devices shall be obtained for each client pursuant to a physician's prescription in accordance with applicable rules of the Texas Board of Pharmacy. (2) In conjunction with the client's attending physician, it shall be the agency's responsibility to ensure that there are sufficient supplies maintained in the client's home to perform the scheduled dialysis treatments and to provide a reasonable number of back-up items for replacements, if needed, due to breakage contamination or defective products. (A) All dialysis supplies, including medications shall be delivered directly to the client's home by a vendor of such products. (B) Agency personnel may transport prescription items from a vendor's place of business to the client's home for the client's convenience, so long as the item is properly labeled with the client's name and direction for use. Agency personnel may transport medical devices for reuse. (dd) The agency shall have policies and procedures for emergencies addressing fire, natural disaster, and medical emergencies, as follows. (1) The agency personnel, the client, and his or her family must be familiar with the agency's procedures. Procedures shall be individualized for each client to include the appropriate evacuation from the home and emergency telephone numbers. Emergency telephone numbers shall be posted at each client's home and shall include 911 if available, the number of the physician, the ambulance, the qualified registered nurse on call for home dialysis, and any other phone number deemed as an emergency number. (2) The client or family must be familiar with the procedure disconnecting the dialysis equipment. (3) The agency personnel and the client shall have knowledge of emergency call procedures. (4) Home dialysis clients shall have a telephone for immediate access to communicate emergency situations. (5) In the event of a medical emergency requiring transport to a hospital for care, the physician shall assure the following: (A) the receiving hospital is given advance notice of the client's arrival; (B) the receiving hospital is given a description of the client's health status; and (C) the selection of personnel, vehicle, and equipment are appropriate to affect a safe transfer. sec.115.25. Standards for Hospice Services. (a) An agency providing hospice services shall meet the standards of this section. (b) The hospice shall be primarily engaged in providing the care and services as described: nursing; medical social service; counseling; volunteer care; bereavement counseling; and coordination of short-term inpatient care. The hospice shall provide all other covered services which are available on a 24- hour basis to the extent necessary to meet the needs of clients for care that is reasonable and necessary for the palliation and management of terminal illness and related conditions. (c) The hospice shall be primarily engaged in providing the care and services described in subsection (b) of this section, and shall also provide nursing services, physician services, and medications which are routinely available on a 24-hour basis. These services shall be provided in a manner consistent with accepted standards of practice. (d) The hospice shall have a governing body that assumes full legal responsibility for determining, implementing and monitoring policies governing the hospice's total operation. The governing body shall designate an individual who is responsible for the day to day management of the hospice program. The governing body shall ensure that all services provided are consistent with accepted standards of practice. (e) The medical director shall be a hospice employee who is a doctor of medicine or osteopathy licensed in the State of Texas, who assumes overall responsibility for the medical component of the hospice's client care program. (f) Subject to subsections (o) and (t) of this section, the hospice may arrange for another individual or entity to furnish services to the hospice clients. If services are provided under arrangement, the hospice shall meet the following standards. (1) The hospice program shall assure the continuity of client and family care in home and outpatient and inpatient settings. (2) The hospice shall have a legally binding written agreement for the provision of arranged services. The agreement shall be signed by authorized representatives of the hospice as well as the contracting party. The legally binding agreement shall include the following: (A) identification of the services to be provided; (B) a stipulation that services may be provided only with the express authorization of the hospice; (C) the manner in which the contracted services are coordinated, supervised and evaluated by the hospice; (D) the delineation of the role(s) of the hospice and the contractor in the admission process, client and family assessment, and the interdisciplinary team case conferences; (E) requirements for documentation that services are furnished in accordance with the agreement; and (F) the qualifications of the personnel providing the services. (3) The hospice shall retain professional management responsibility for arranged services and ensure that they are furnished in a safe and effective manner by persons meeting the qualifications under these standards, and in accordance with the client's plan of care and the other requirements of this subsection. (4) The hospice shall retain responsibility for payment for services. (5) The hospice shall ensure that inpatient care is furnished only in a facility which meets the requirements of subsection (x) of this section, and the hospice's arrangement for inpatient care shall be described in a legally binding written agreement and shall meet the requirements of paragraph (2) of this subsection. The written agreement, at minimum, shall meet the following requirements: (A) that the hospice furnishes to the inpatient provider a copy of the client's plan of care and specifies the inpatient services to be furnished; (B) that the inpatient provider has established policies consistent with those of the hospice and agrees to abide by the client care protocols established by the hospice for its clients; (C) that the medical record includes a record of all inpatient services and events, and that a copy of the discharge summary and, if requested, a copy of the medical record are provided to the hospice; (D) the party responsible for implementation of the provisions of the agreement; and (E) that the hospice retains responsibility for appropriate hospice care training of the personnel who provide the care under the agreement. (g) A written plan of care shall be established and maintained for each client admitted to the hospice program, and the care provided to a client shall be in accordance with the plan. (1) The plan shall be established by the attending physician, the medical director or physician designee and interdisciplinary team prior to providing care. (2) The plan shall be reviewed and updated, at intervals specified in the plan, by the attending physician, the medical director or physician designee and interdisciplinary team. These reviews shall be documented. (3) The plan shall include an assessment of the client's needs and identification of the services including the management of discomfort and symptom relief. The plan shall state in detail the scope and frequency of services needed to meet the client's and family's needs. (h) The hospice shall not discontinue or diminish care provided to a client because of the client's inability to pay for that care. (i) The hospice shall demonstrate respect for a client's rights by ensuring that an informed consent form that specifies the type of care and services that may be provided as hospice care during the course of the illness has been obtained for every client, either from the client or representative (a person, who because of the client's mental or physical incapacity, is authorized in accordance with state law to execute or revoke an election for hospice care or terminate medical care on behalf of the terminally ill client). The client or representative shall sign or mark the consent form. (j) The hospice shall provide a continuing systematic program for the training of its employees. The staff including volunteers shall be properly oriented to tasks performed, and these individuals are informed of changes in techniques, philosophies, goals and products, as it relates to the client's care. (k) The hospice shall designate an interdisciplinary team or teams composed of individuals who provide or supervise the care and services offered by the hospice. (1) The interdisciplinary team or teams shall include at least the following individuals who are employees of the hospice: (A) a physician; (B) a registered nurse; (C) a social worker; and (D) a pastor or counselor. (2) The interdisciplinary team shall be responsible for: (A) participation in the establishment of the plan of care; (B) provision and supervision of hospice care and services; (C) periodic reviews and updates of the plan of care for each client receiving hospice care; and (D) establishment of policies governing the day to day provision of hospice care and services. (3) If the hospice has more than one interdisciplinary team, the hospice shall designate in advance the team it chooses to execute the functions described in paragraph (2)(D) of this subsection. (4) The hospice shall designate a registered nurse to coordinate the implementation of the plan of care for each client. (l) The hospice shall use volunteers in defined roles under the supervision of a designated hospice employee. (1) The hospice shall provide appropriate orientation and training that is consistent with acceptable standards of hospice practice. (2) Volunteers shall be used in administrative and direct client care roles. (3) The hospice shall document active and ongoing efforts to recruit and retain volunteers. (4) The hospice shall document the cost savings achieved through the use of volunteers. Documentation shall include the following: (A) the identification of necessary positions which are occupied by volunteers; (B) the work time spent by volunteers occupying those positions; and (C) estimates of the dollar costs which the hospice would have incurred if paid employees occupied the positions identified in subparagraph (A) of this paragraph for the amount of time specified in subparagraph (B) of this paragraph. (5) The hospice shall provide volunteer activity at the level and in the manner described below. (A) The hospice shall document and maintain a volunteer staff sufficient to provide administrative and direct client care in an amount that at a minimum, equals 5.0% of the total client care hours of all paid hospice employees and contract staff. (B) The hospice shall document a continuing level of volunteer activity. (C) The hospice shall record expansion of care and services achieved through the use of volunteers, including the type of services and the time worked. (6) The hospice shall make reasonable efforts to arrange for visits of clergy and other members of religious organizations in the community to clients who request such visits and shall advise clients of this opportunity. (m) The hospice and all its employees shall be currently licensed in accordance with applicable federal, state and local laws and regulations. (n) In accordance with accepted principles of practice, the hospice shall establish and maintain a clinical record for every client receiving care and services. Services provided to the client's family shall be documented in the clinical record. The record shall be complete, promptly and accurately documented, readily accessible and systematically organized to facilitate retrieval. (1) Each clinical record shall contain a comprehensive compilation of information. Entries shall be made for all services provided. Entries shall be made and signed by the person providing the services. The record shall include all services whether furnished directly or under arrangements made by the hospice. Each client's record shall contain: (A) the initial and subsequent assessments; (B) the plan of care; (C) identification data; (D) consent and authorization and election forms; (E) pertinent medical history; and (F) complete documentation of all services and events (including evaluations, treatments and progress notes). (2) The hospice shall safeguard the clinical record against loss, destruction and unauthorized use. (o) The hospice shall ensure that substantially all the core services described in subsections (p)-(s) of this section are routinely provided directly by hospice employees. The hospice may use contracted staff if necessary to supplement its employees in order to meet the needs of clients during periods of peak client loads or under extraordinary circumstances. If contracting is used, the hospice shall maintain professional, financial, and administrative responsibility for the services and assure that the qualifications of staff and services provided meet the requirements specified in subsections (p)-(s) of this section. (p) The hospice shall provide nursing care and services by or under the supervision of a registered nurse. (1) Nursing services shall be directed and staffed to assure that the nursing needs of the clients are met. (2) Client care responsibilities of nursing personnel shall be specified. (3) Services shall be provided in accordance with recognized standards of practice. (q) Medical social services shall be provided by a social worker under the direction of a physician. (r) In addition to palliation and management of terminal illness and related conditions, physician employees of the hospice, including physician member(s) of the interdisciplinary team shall meet the general medical needs of the clients to the extent that these needs are not met by the attending physician. (s) Counseling services shall be available to both the client and the family. Counseling includes bereavement counseling provided after the client's death as well as dietary, spiritual, and any other counseling services for the client and family provided while the client is enrolled in the hospice program. (1) Bereavement counseling service shall be available to the family. (A) There shall be an organized program for the provision of bereavement services under the supervision of a qualified professional. Bereavement counseling shall be supervised by the interdisciplinary team, social worker, a mental health professional, counselor, or other person with documented evidence of training and experience in dealing with bereavement and structured training in bereavement counseling. Persons providing bereavement counseling shall have documented evidence of training in personnel folders. (B) The plan of care for these services shall reflect family needs, as well as a clear delineation of services to be provided and the frequency of service delivery (up to one year following the death of the client). (2) Dietary counseling, when required, shall be provided by a qualified individual. Dietary counseling shall be planned by a registered or licensed dietitian, a person who is eligible for registration by the American Dietetic Association, or an individual who has documented equivalency in education or training. Dietary counseling shall meet specific client needs as described in the client's plan of care. Although a dietitian need not be a full-time employee, there shall be a record of this individual's credentials on file in the hospice. (3) Spiritual counseling shall include notice to clients as to the availability of clergy as required under subsection (l)(6) of this section. Spiritual counseling may be conducted by a clergy of the client's choice. (4) Counseling may be provided by other members of the interdisciplinary team as well as by other qualified professionals as determined by the hospice. Counseling, other than bereavement, dietary, or spiritual shall be provided by qualified persons and in accordance with the client's plan of care. The counseling requirements do not preclude other members of the interdisciplinary team or other professionals from serving in the capacity of counselor. If the need is for hand holding, a nonprofessional volunteer may be utilized. (t) The hospice shall ensure that the services described in subsections (u)- (x) of this section are provided directly by hospice employees or under arrangements made by the hospice as specified in subsection (f) of this section. (u) Physical therapy services, occupational therapy services, and speech- language pathology services shall be available, and when provided, shall be offered in a manner consistent with accepted standards of practice. (v) Home health aide and homemaker services shall be available and adequate in frequency to meet the needs of the clients. A home health aide shall be a person who meets the training and competency evaluation requirements or the competency evaluation requirements as specified in sec.115.61(d)-(f) of this title (relating to Home Health Aides). (1) A registered nurse shall visit the residence site at least every two weeks when aide services are being provided, and the visit shall include an assessment of the aide services. The aide need not be present each supervisory visit. (2) Written instructions for client care shall be prepared by a registered nurse. (w) Medical supplies and appliances, including medications, shall be provided as needed for the palliation and management of the terminal illness and related conditions. (1) All medications shall be administered in accordance with accepted standards of practice. (2) The hospice shall have and enforce a policy for the disposal of controlled medications maintained in the client's residence when those medications are no longer needed by the client. (3) Medications shall be administered only by the following individuals: (A) a licensed nurse or physician; (B) a permitted home health medication aide; (C) the client if his or her attending physician has approved; or (D) another individual acting in accordance with applicable federal and state laws, or as specified in sec.115. 21(m) of this title (relating to Licensure Requirements and Standards for All Home and Community Support Services Agencies). (4) The persons who are authorized to administer medications shall be specified in the client's plan of care. (x) The inpatient care shall be available for pain control, symptom management, and respite purposes and shall be provided in a nursing facility, as appropriate. (1) Inpatient care for pain control and symptom management shall be provided by: (A) a hospice that meets the requirements in subsection (y) of this section for providing inpatient care directly; or (B) a hospital or a nursing facility that also meets the requirements specified in subsection (y)(1) and (5) of this section, regarding 24-hour nursing service and client areas. (2) Inpatient care for respite purposes shall be provided by: (A) a provider specified in paragraph (1) of this subsection; or (B) a nursing facility that also meets the requirements specified in subsection (y)(1) and (5) of this section, regarding 24-hour nursing services and client areas. (3) The total number of inpatient days used by clients who elect hospice coverage in any 12-month period preceding a survey in a particular hospice shall not exceed 20% of the total number of hospice days for clients receiving care. (y) A freestanding hospice that provides inpatient care directly shall comply with the following standards. (1) A freestanding hospice that provides inpatient care directly shall have on-site 24-hour nursing service provided by registered nurses and licensed vocational nurses. (A) The facility shall provide 24-hour nursing services which are sufficient to meet total nursing needs and which are in accordance with the client's plan of care. Each client shall receive treatments, medications, and diet as prescribed, and shall be kept comfortable, clean, well-groomed, and protected from accident, injury and infection. (B) Each shift shall include a registered nurse who provides and supervises direct client care. (2) The hospice shall have a written plan, periodically rehearsed with staff, with procedures to be followed in the event of an internal or external disaster and for the care of casualties (clients and personnel) arising from such disasters. (3) The hospice shall meet all federal, state, and local laws, regulations, and codes pertaining to health and safety, such as provisions regulating the following: (A) construction, maintenance, and equipment for the hospice; (B) sanitation; (C) communicable and reportable diseases; and (D) post-mortem procedures. (4) Except as provided in this subsection, the hospice shall meet the health care occupancy provisions of the 1985 edition of the Life Safety Code of the National Fire Protection Association which is incorporated by reference. (A) The department recognizes the Health Care Financing Administration (HCFA) waiver of specific provisions of the Life Safety Code required by this paragraph, for a certified hospice, for as long as it considers appropriate, if the waiver would not adversely affect the health and safety of the clients; and rigid application of specific provisions of the Code would result in unreasonable hardship for the hospice. The department may waive specific provisions of the Life Safety Code for a licensed hospice, if the waiver would not adversely affect the health and safety of the clients; and rigid application of specific provisions of the Code would result in unreasonable hardship for the hospice. (B) Any facility of two or more stories that is not of fire-resistive construction and is participating on the basis of a waiver of construction type or height, may not house blind, nonambulatory, or physically disabled clients above the street-level floor unless the facility is one of the following construction types (as defined in the Life Safety Code): (i) type II (1,1,1)-protected noncombustible; (ii) fully-sprinklered Type II (0,0,0)-noncombustible; (iii) fully-sprinklered Type III (2,1,1)-Type III (2,1,1)-protected ordinary; (iv) fully-sprinklered Type V (1,1,1)-protected wood frame; or (v) achieves a passing score on the Fire Safety Evaluation System (FSES). (5) The hospice shall design and equip areas for the comfort and privacy of each client and family member. The hospice shall include the following: (A) physical space for private client and family visiting; (B) accommodations for family members to remain with the client throughout the night; (C) accommodations for family privacy after a client's death; (D) decor which is homelike in design and function; and (E) accommodations where clients are permitted to receive visitors at any hour, including small children. (6) Client rooms shall be designed and equipped for adequate nursing care and the comfort and privacy of clients. Each client's room shall: (A) be equipped with or conveniently located near toilet and bathing facilities; (B) be at or above grade level; (C) contain a suitable bed for each client and other appropriate furniture; (D) have closet space that provides security and privacy for clothing and personal belongings; (E) contain no more than four beds; (F) measure at least 100 square feet for a single room or 80 square feet for each client for a multiclient room; and (G) be equipped with a device for calling the staff member on duty. (7) For an existing building, the department recognizes the HCFA waiver for the space and occupancy requirements of paragraph (6)(E) and (F) of this subsection for a certified hospice, for as long as it is considered appropriate, if it finds that the requirements would result in unreasonable hardship on the hospice if strictly enforced, and the waiver serves the particular needs of the clients and does not adversely affect their health and safety. For an existing building, the department may waive the space and occupancy requirements of paragraph (6)(E) and (F) of this subsection for a licensed hospice for as long as it is considered appropriate, if it finds that the requirements would result in unreasonable hardship on the hospice if strictly enforced and the waiver serves the particular needs of the clients and does not adversely affect their health and safety. (8) The hospice shall provide bathroom facilities. The bathroom facilities shall include the following: (A) an adequate supply of hot water at all times for client use; and (B) plumbing fixtures with control valves that automatically regulate the temperature of the hot water used by clients. (9) The hospice shall have available at all times, a quantity of linen essential for the proper care and comfort of clients. Linens shall be handled, stored, processed and transported in such a manner as to prevent the spread of infection. (10) The hospice shall make provisions for isolating clients with infectious diseases. (11) The hospice shall provide and supervise meal service and menu planning. The hospice shall: (A) serve at least three meals or their equivalent each day at regular times, with not more than 14 hours between a substantial evening meal and breakfast; (B) procure, store, prepare, distribute, and serve all food under sanitary conditions; (C) have a staff member trained or experienced in food management or nutrition if the staff member responsible for dietary services is not a dietitian. The person shall be a graduate of a dietetic technician or dietetic assistant training program, correspondence or classroom, approved by the American Dietetic Association; or shall be a graduate of a State-approved course that provided 90 or more hours of classroom instruction in food service supervision and shall have experience as a supervisor in a health care institution with consultation from a dietitian; or shall have training and experience in food service supervision and management in a military service equivalent in content to the program in this paragraph. This staff member shall be responsible for: (i) planning menus that meet the nutritional needs of each client, following the orders of the client's physician and, to the extent medically possible, the recommended dietary allowances of the Food and Nutrition Board of the National Research Council, National Academy of Sciences (Recommended Dietary Allowances (10th ed., 1989 that is available from the Printing and Publications Office, National Academy of Sciences, Washington, D.C. 20418). The menus shall be approved by a dietitian. The hospice shall use written guidelines for substitutions that are approved by the dietitian; and (ii) supervising the meal preparation and service that is conducted to ensure that the menu plan is followed; and (D) have the menus for those clients who require medically prescribed special diets planned by a dietitian who monitors the preparation and serving of meals to ensure that the client accepts the special diet. (12) The hospice shall provide appropriate methods and procedures for dispensing and administering medications. Whether medications are obtained from community or institutional pharmacists or stocked by the facility, the facility shall be responsible for medications for its clients, insofar as they are covered under the program, and for ensuring that pharmaceutical services are provided in accordance with accepted professional principles and appropriate federal and state laws. (A) The hospice shall employ a licensed pharmacist or have a formal agreement with a licensed pharmacist to advise the hospice on ordering, storage, administration, disposal, and recordkeeping of medications. (B) A physician shall order all medications for the client. (C) If the medication order is verbal, the physician shall give it only to a licensed nurse, pharmacist, or another physician. (D) If the medication order is verbal, the individual receiving the order shall record and sign it immediately and have the prescribing physician sign it in a manner consistent with good medical practice. (E) Medications shall be administered only by one of the following individuals: (i) a licensed nurse or physician; (ii) a permitted home health medication aide or an employee as specified in sec.115.21(m) of this title (relating to Licensure Requirements and Standards for All Home and Community Support Services Agencies); or (iii) the client if his or her attending physician has approved. (F) The pharmaceutical service shall have procedures for control and accountability of all medications throughout the facility. Medications shall be dispensed in compliance with federal and state laws. Records of receipt and disposition of all controlled medications shall be maintained in sufficient detail to enable an accurate reconciliation. The pharmacist shall determine that medication records are in order and that an account of all controlled medications is maintained and reconciled. (G) The labeling of medications shall be based on currently accepted professional principles, and shall include the appropriate accessory and cautionary instructions, as well as the expiration date when applicable. (H) In accordance with state and federal laws, all medications shall be stored in locked compartments under proper temperature controls and only authorized personnel shall have access to the keys. Separately locked compartments shall be provided for storage of controlled medications listed in Schedule II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 United States Code, sec.801 et seq and other medications subject to abuse, except under single-unit package medication distribution systems in which the quantity stored is minimal and a missing dose is readily detected. An emergency medication kit shall be kept readily available. (I) Controlled medications no longer needed by the client shall be disposed of in compliance with state requirements. The pharmacist and registered nurse shall dispose medications and prepare a record of the disposal. sec.115.26. Standards for Personal Assistance Services. (a) An agency providing personal assistance services shall meet the standards of this section. (b) Personal assistance services may be performed by an unlicensed person who is at least 18 years of age and is competent to perform the tasks assigned by the supervisor. (c) Personal assistance services are designed to meet the needs of a person with functional disabilities and the person's family, allowing the person and the family to engage in activities of daily living. The following tasks may be performed under a personal assistance services category: (1) personal care (feeding, preparing meals, transferring, toileting, ambulation and exercise, grooming, bathing, dressing, routine care of hair and skin, and assistance with medications that are normally self administered); (2) health-related tasks which may be delegated by an RN in accordance with the agency's policy pursuant to sec.115.21(m) of this title (relating to Licensure Requirements and Standards for All Home and Community Support Services Agencies) except for nursing tasks that may not be delegated and nursing tasks that may not be routinely delegated; and (3) health related tasks that are not the practice of professional nursing under the memorandum of understanding between the Texas Department of Health and the Board of Nurse Examiners. (d) The agency shall develop organizational, operational, programmatic, and personnel policies consistent with the principles of individual and family choice and control, functional need, and accessible and flexible services. (e) The agency shall have an individual or individuals who assume full legal responsibility for the overall conduct of the agency and are responsible for compliance with all applicable laws and rules of the department. (1) The administrator of the agency will administratively supervise the provision of services. The administrator organizes and directs the agency's ongoing functions; employs qualified staff; ensures adequate education and evaluations; ensures the accuracy of public information materials and activities; and implements an effective budgeting and accounting system. (2) A person who meets the qualifications of an administrator shall be authorized in writing by the administrator to act on his or her absence. (f) The agency shall maintain a file for each client or family with all entries kept current, dated and signed by the recorder. The file shall include the following: (1) application for services including, but not limited to: full name; sex; date of birth; name, address, and telephone number of parent(s) of a minor child, or legal guardian, or other(s) as identified by the individual; physician's name and telephone numbers, including emergency numbers; and services requested; (2) documentation that client or family has received a copy of the complaint procedures, and Human Resources Code, Chapter 102 (relating to Rights of the Elderly), for clients 55 years and older; (3) documentation of determination of services based on an on-site visit by the supervisor where services will be primarily delivered; (4) an individualized service plan developed, agreed upon, and signed by the client or family and the agency to include, but not limited to, the following: (A) types of services, supplies, and equipment to be provided; (B) locations of services; (C) frequency and duration of services, including the planned date of service initiation; (D) charges for services rendered if the charges will be paid in full or in part by the client or significant other(s), or on request; and (E) plan of supervision; and (5) documentation that the services have been provided according to the individualized service plan, and to include a medication record, if applicable. (g) The agency shall provide services with personnel who meet the qualifications and competencies to perform requested and agreed upon services of the client or family. The agency is responsible for the following regarding personnel services: (1) orientation of personnel to their job responsibilities including, but not limited to: the philosophy and values of community integration and consumer- driven care; report of abuse or neglect; and change in the client's health condition requiring emergency procedures or health services; and (2) maintenance of documentation to demonstrate that an individual is competent in those services he or she performs. (h) Personnel shall be supervised in accordance with the agency's policies and applicable laws. (1) The agency shall adopt, enforce, and implement a policy on supervision of personnel with input from the client or family on frequency of supervision. (2) Supervisors must be licensed nurses or have completed two years of full- time study at an accredited college or university. Individuals with a high school diploma or general equivalence diploma (GED) may substitute one year of full-time employment in a supervisory capacity in a health care facility, agency, or community-based agency for each required year of college. (3) Unlicensed persons performing health related tasks that fall within the practice of professional nursing shall be supervised by an RN. sec.115.27. Standards for Branch Offices. (a) A branch office providing licensed home health or personal assistance services shall comply with the requirements of the rules relating to the parent agency and the standards relating to the provided services. (b) A branch office providing licensed and certified home health services shall comply with the standards for certified agencies in sec.115.23 of this title (relating to Standards for Licensed and Certified Home Health Services). (c) A parent agency and a branch office providing home health or personal assistance services shall meet the following requirements. (1) On-site supervision of the branch office shall be conducted by the parent agency at least monthly. More frequent supervision may be required considering the size of the service area and the scope of services provided by the parent agency. Supervision shall be provided by the administrator or licensed professional who is in a supervisory position. The supervisory visits must be documented and include the date of the visit, the content of the consultation, the individuals in attendance, and the recommendations of the staff. (2) Original personnel files may be kept in any location, as determined by the agency. Original personnel files shall be accessible and readily retrievable for inspection by the department at the site of the survey. (3) The clinical record shall be an original, a microfilmed copy, an optical disc imaging system copy, or a certified copy. If the clinical record is microfilmed or maintained on an optical disc imaging system, the microfilm and the equipment needed to read the record must be accessible at the time and at the office of the on-site survey of the agency. The clinical record may be kept at the branch or parent agency, as determined by the agency. Duplicate records are not required. (d) The department shall issue to or renew a branch office license for applicants who meet the requirements of this section. (e) A branch office may offer fewer health services or categories of services than the parent office but may not offer health services or categories of services that are not also offered by the parent agency. sec.115.28. Standards for Alternate Delivery Sites. (a) An alternate delivery site providing hospice services shall comply with the requirements of sec.115.25 of this title (relating to Standards for Hospice Services). (b) An alternate delivery site shall independently meet sec.115.25(c), (f)(1), (g), and (n) of this title (relating to Standards for Hospice Services). (c) A parent agency and an alternate delivery site providing hospice services shall meet the following requirements. (1) On-site supervision of the alternate delivery site shall be conducted by the parent agency at least monthly. More frequent supervision may be required considering the size of the service area provided by the parent agency. Supervision shall be provided by the administrator or licensed professional who is in a supervisory position. The supervisory visits must be documented and include the date of the visit, the content of the consultation, the individuals in attendance, and the recommendations of the staff. (2) Original personnel files may be kept in any location, as determined by the agency. Original personnel files shall be accessible and readily retrievable for inspection by the department at the site of the survey. (3) The clinical record shall be an original, a microfilmed copy, an optical disc imaging system copy, or a certified copy. If the clinical record is microfilmed or maintained on an optical disc imaging system, the microfilm and the equipment needed to read the record must be accessible at the time and at the office of the on-site survey of the agency. The clinical record must be kept at the alternate delivery site office. Duplicate records are not required. (d) The department shall issue to or renew an alternate delivery site license for applicants who meet the requirements of this section. 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 April 11, 1994. TRD-9438947 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Effective date: June 1, 1994 Proposal publication date: December 7, 1993 For further information, please call: (512) 834-6650 Subchapter D. Enforcement 25 TAC sec.sec.115.51-115.54 The new sections are adopted under the Health and Safety Code, sec.142.012, which provides the Texas Board of Health (board) with authority to adopt rules to establish and enforce minimum standards for the licensing of home and community support services agencies; and sec.12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law upon the board, the department and the commissioner of health. sec.115.51. Surveys and Investigation Procedures. (a) An on-site survey shall determine if the requirements of the statute and the rules are being met. (1) The Texas Department of Health (department) or its authorized representatives may enter the premises of a license applicant or license holder at reasonable times to conduct an on-site survey incidental to the issuance of a license, and at other times as it considers necessary to ensure compliance with the statute and the rules adopted under the statute. A standard-by-standard evaluation is required before the initial annual license is issued unless waived in accordance with sec.115.13(a)(1)(B) of this title (relating to Change of Ownership or Services). (2) At the discretion of the department, an on-site survey may be conducted for renewal of a license or issuance of a branch office or alternate delivery site license. (b) Except for the investigation of complaints and initial surveys, an agency licensed by the department is not subject to additional surveys relating to home health, hospice, or personal assistance services while the agency maintains accreditation for the applicable services from the Joint Commission on Accreditation of Healthcare Organizations, the Community Health Accreditation Program, or other accreditation organizations that meet or exceed the standards adopted under this chapter. (c) The department's authorized representative (surveyor) shall hold a conference with the person who is in charge of an agency prior to commencing the on-site survey or investigation for the purpose of explaining the nature and scope of the survey. The department's representative shall hold an exit conference with the person who is in charge of the agency when the survey is completed, and the department's representative shall identify any records that were duplicated. Any original agency records that are removed from an agency shall be removed only with the consent of the agency. (d) The department's authorized representative shall hold an exit conference and fully inform the person who is in charge of the agency of the preliminary findings of the survey and shall give the person a reasonable opportunity to submit additional facts or other information to the department's authorized representative in response to those findings. The response shall be made a part of the survey for all purposes and must be received by the department within ten calendar days of receipt of the preliminary findings of the survey by the agency. (e) After a survey or investigation of an agency, the department shall provide the person in charge of the agency specific and timely written notice of the findings of the survey including: (1) the specific nature of the survey; (2) any alleged violations of a specific statute or rule; (3) the specific nature of any finding regarding an alleged violation or deficiency; (4) if a deficiency is alleged, the severity of the deficiency; and (5) if there are no deficiencies found, a statement indicating this fact. (f) The surveyor shall: (1) prepare a statement of deficiencies, if any; (2) obtain a plan of correction for deficiencies which is provided by the agency either on-site or within ten calendar days and indicates the date(s) by which correction(s) will be made; (3) obtain the signature of the person in charge of the agency acknowledging the receipt of the statement of deficiencies and plan of correction form. The person's signature does not indicate the person's agreement with deficiencies stated on the form; and (4) obtain within ten calendar days of the survey or investigation written comments, if any, by the person in charge of the agency. Additional facts, written comments or other information provided by the agency in response to the findings shall be made a part of the record of the survey for all purposes. (g) If deficiencies are cited and the plan of correction is not acceptable, the department shall notify the agency in writing and request that the plan of correction be resubmitted no later than 30 calendar days of the agency's receipt of the department's written notice. Upon resubmission of an acceptable plan of correction, written notice will be sent by the department to the agency acknowledging same. (h) The department will provide upon completion of the review and processing of the survey: (1) information on the identity, including the signature, of each department representative conducting, reviewing, or approving the results of the survey and the date on which the department representative acted on the matter; and (2) if requested by the agency, copies of all documents relating to the survey maintained by the department or provided by the department to any other state or federal agency that are not confidential under state law. (i) If the survey relates to the issuance of the initial annual license, the agency shall come into compliance no later than 30 calendar days prior to the expiration of the temporary license. If evidence of compliance is not provided to the department prior to expiration of the temporary license, an initial annual license shall be denied to the applicant in accordance with sec.115.52 of this title (relating to Disciplinary Action). (j) If the survey relates to the issuance of the renewal license or a complaint investigation, the agency shall come into compliance 30 calendar days prior to the expiration date of the license or no later than the dates designated in the plan of correction, whichever comes first. If evidence of compliance is not provided to the department, an annual license may be revoked, suspended, or denied, in accordance with sec.115.52 of this title. (k) The Texas Department of Health (department) shall verify the correction of deficiencies by mail or by an on-site survey. (l) If a subsequent survey results in evidence of further deficiencies, a plan of correction may be requested in accordance with the provisions of this section or the department may propose action to deny, suspend, or revoke the license. (m) Even if a plan of correction is accepted and completed, the department may initiate disciplinary action if the deficiencies resulted in physical, mental or emotional harm to a client of the agency or if there is the potential for such harm. (n) Except as provided by subsection (b) of this section, an on-site survey must be conducted within 18 months after a survey for an initial license. After that time, an on-site survey must be conducted at least every 36 months. (o) If a person is renewing or applying for a license to provide more than one category of service under the statute, the required surveys for each of the services the license holder or applicant seeks to provide shall be completed during the same survey visit. sec.115.52. Disciplinary Action. (a) The Texas Department of Health (department) may deny, suspend, suspend on an emergency basis, or revoke a temporary, annual, branch office or alternate delivery site license issued to an applicant or agency if the applicant or agency: (1) fails to comply with any provision of the statute; (2) fails to comply with any provision of this chapter; (3) has a provider agreement under the Social Security Act, Title XVIII, which has been terminated by the certifying body, Health Care Financing Administration, or if the agency withdraws its certification or its request for certification. An agency providing licensed and certified home health services that submits a request for a hearing as provided by this section is governed by the requirements of the statute and the rules relating to an agency providing licensed only home health services until suspension or revocation is finally determined by the department or, if the license is suspended or revoked, until the last day for seeking review of the department order or a later date fixed by order of the reviewing court; (4) commits fraud, misrepresentation, or concealment of a material fact on any documents required to be submitted to the department or required to be maintained by the agency pursuant to this chapter; (5) has aided, abetted or permitted the commission of an illegal act; or (6) fails to comply with an order of the commissioner of health or another enforcement procedure under the statute. (b) The department may deny a license (temporary or annual) if the applicant or licensee: (1) fails to provide the required application or renewal information; or (2) discloses any of the following actions against or by the applicant or the licensee or against or by affiliate(s), or manager(s) of the applicant or the licensee within the two-year period preceding the application: (A) operation of an agency that has been decertified or had its contract cancelled under the Medicare or Medicaid program in any state; (B) federal Medicare or state Medicaid sanctions or penalties; (C) state or federal criminal convictions which imposed incarceration; (D) federal or state tax liens; (E) unsatisfied final judgement; (F) eviction involving any property or space used by an agency in any state; (G) unresolved state Medicaid or federal Medicare audit exceptions; (H) denial, suspension, or revocation of an agency license or a license for any health care facility or agency in any state; or (I) a court injunction prohibiting ownership or operation of an agency. (c) The department may suspend or revoke an existing valid license or disqualify a person from receiving a license because of a person's conviction of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of a licensed agency. (1) In determining whether a criminal conviction directly relates, the department shall consider the provisions of Texas Civil Statutes, Article 6252- 13c. (2) The following felonies and misdemeanors directly relate because these criminal offenses indicate an inability or a tendency for the person to be unable to own or operate an agency. These offenses also relate to the holding of a home health medication aide permit or an entity approved under sec.115.62(o) of this title (relating to Home Health Medication Aides), to conduct a home health medication aide training program: (A) a misdemeanor violation of the statute; (B) a conviction relating to deceptive business practices; (C) a misdemeanor or felony offense involving moral turpitude; (D) the misdemeanor of practicing any health-related profession without a required license; (E) a conviction under any federal or state law relating to drugs, dangerous drugs or controlled substances; (F) an offense under the Texas Penal Code, Title 5, involving a client or client of a health care facility or agency; (G) a misdemeanor or felony offense under various titles of the Texas Penal Code, as follows: (i) Title 5, concerning offenses against the person; (ii) Title 7, concerning offenses against property; (iii) Title 9, concerning offenses against public order and decency; (iv) Title 10, concerning offenses against public health, safety, and morals; (v) Title 4, concerning offenses of attempting or conspiring to commit any of the offenses in clauses (i)-(iv) of this subparagraph; and (vi) other misdemeanors and felonies which indicate an inability or tendency for the person to be unable to own or operate an agency, hold a permit, or receive program approval under sec.115. 62(o) of this title (relating to Home Health Medication Aides), if action by the department will promote the intent of the statute, this chapter, or Texas Civil Statutes, Article 6252-13c. (3) Upon a licensee's felony conviction, felony probation revocation, revocation of parole, or revocation of mandatory supervision, the license shall be revoked. (d) If the department proposes to deny, suspend, or revoke a license, the department shall notify the agency by certified mail, return receipt requested, or personal delivery of the reasons for the proposed action and offer the agency an opportunity for a hearing. (1) The agency must request a hearing within 30 calendar days of receipt of the notice. Receipt of the notice is presumed to occur on the tenth day after the notice is mailed to the last address known to the department unless another date is reflected on a United States Postal Service return receipt. (2) The request for a hearing must be in writing and submitted to the Director, Health Facility Licensure and Certification Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. (3) A hearing shall be conducted pursuant to the Administrative Procedure Act, Texas Government Code, Chapter 2001, and the department's formal hearing procedures in Chapter 1 of this title (relating to the Texas Board of Health). (4) If the agency does not request a hearing in writing within 30 calendar days of receipt of the notice, the agency is deemed to have waived the opportunity for a hearing and the proposed action shall be taken. (5) If the agency fails to appear or be represented at the scheduled hearing, the agency has waived the right to a hearing and the proposed action shall be taken. (e) The department may suspend or revoke a license to be effective immediately when the health and safety of persons are threatened. The department shall immediately give the chief executive officer of the agency adequate notice of the action taken, the legal grounds for the action, and the procedure governing appeal of the action. The department shall also notify the agency of the emergency action including the legal grounds for the action and the procedure governing appeal of the action by certified mail, return receipt requested, or personal delivery of the notice and of the date of a hearing, which shall be within seven calendar days of the effective date of the suspension or revocation. The effective date of the emergency action shall be stated in the notice. The hearing shall be conducted pursuant to the Administrative Procedure Act, Texas Government Code, Chapter 2001, and the department's formal hearing procedures in Chapter 1 of this title (relating to the Texas Board of Health). (f) If a person violates the licensing requirements of the Act, the department may petition the district court to restrain the person from continuing the violation. (g) If a person operates an agency without a license issued under the Act, the person is liable for a civil penalty of not less than $1,000 nor more than $2,500 for each day of violation. (h) A person who has had an agency license revoked under this section may not apply for an agency license for one year following the date of revocation. (i) If the department suspends a license, the suspension shall remain in effect until the department determines that the reason for suspension no longer exists. An authorized representative of the department shall investigate prior to making a determination. (1) During the time of suspension, the suspended license holder shall return the license to the department. (2) If a suspension overlaps a renewal date, the suspended license holder shall comply with the renewal procedures in this chapter; however, the department may not renew the license until the department determines that the reason for suspension no longer exists. (j) If the department revokes or does not renew a license, a person may reapply for a license by complying with the requirements and procedures in this chapter at the time of reapplication. The department may refuse to issue a license if the reason for revocation or nonrenewal continues to exist. (k) Upon revocation or nonrenewal, a license holder shall return the license to the department. sec.115.53. Complaints. (a) An agency shall provide to each person who receives home health, hospice, or personal assistance services a written statement that informs the consumer that a complaint against the agency may be directed to the Texas Department of Health (department). The statement shall be provided at the time of admission and shall direct the consumer to register complaints with the director, Health Facility Licensure and Certification Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, 1-800-228-1570. (b) A complaint containing allegations which are a violation of the statute or this chapter will be investigated by the department. (c) A complaint containing allegations which are not a violation of the statute or this chapter will not be investigated by the department but shall be referred to law enforcement agencies or other agencies, as appropriate. (d) The department shall inform in writing a complainant who identifies himself by name and address of the following information: (1) the receipt of the complaint; (2) whether the complainant's allegations allege potential violations of the statute or this chapter warranting an investigation; (3) whether the complaint will be investigated by the department; (4) whether and to whom the complaint will be referred; and (5) the findings of the complaint investigation. (e) Procedures concerning complaints about permitted home health medication aides, home health medication aide programs or another person shall be as follows. (1) The initial notification of a complaint may be in writing or by telephone. The complaint may be submitted to the Director, Health Facility Licensure and Certification Division, 1100 West 49th Street, Austin, Texas 78756-3183, 1-800- 228-1570. (2) Anonymous complaints may be investigated by the department if the complainant provides sufficient information. (3) If the department determines that the complaint does not come within the department's jurisdiction, the department shall advise the complainant and, if possible, refer the complainant to the appropriate governmental agency for handling such a complaint. (4) The department shall, at least as frequently as quarterly, notify the parties to the complaint of the status of the complaint until its final disposition. (5) If the department determines that there are insufficient grounds to support the complaint, the complaint shall be dismissed and written notice of the dismissal shall be given to the home health medication aide permit holder or person against whom the complaint has been filed and the complainant. (6) If the department determines that there are sufficient grounds to support the complaint, the department may propose to deny, suspend, emergency suspend, revoke, or not renew a home health medication aide permit or rescind a home health medication aide program approval. sec.115.54. Criminal History Checks and Administrative Review. (a) An agency must comply with the Health and Safety Code, Chapter 250, Nurse Aide Registry and Criminal History Checks of Employees and Applicants for Employment in Certain Facilities Serving the Elderly or Persons with Disabilities. Failure to comply shall be grounds for denial, suspension, or revocation of the agency's license. (b) An agency may not employ a person in a position, the duties of which involve direct contact with a consumer, unless the agency has applied for a criminal history check on the applicant for employment and has received a response from the Texas Department of Health (department) unless there is an emergency situation or the 60 calendar days waiting period described in subsection (h) of this section has expired. (1) The requirement to request a criminal history check only applies if the person to be employed will have direct contact with a consumer in the agency. This means that the person must have direct contact with a client of the agency, the client's family, or the client's visitors. (2) A criminal history check is not required if the applicant for employment is licensed under Texas law and will be working within the scope of that license. (3) Criminal history checks may be requested only for applicants for employment to whom an offer of employment is made or employees. Criminal history checks may not be requested for persons who will not be employed by the agency, such as volunteers or independent contractors. An employee or applicant for employment is a person for whom the agency is or will be required to issue a W-2 form on behalf of the person. (4) A previous criminal history check on the person done under this section or through other means does not satisfy the requirements of the law or this section. A new criminal history check must be requested for any person each time an offer of employment is made to that person. (c) An agency may employ an applicant prior to receiving a response to the request for a criminal history check only in an emergency situation requiring immediate employment. (1) An emergency requiring immediate employment is a situation in which the urgent need to hire an individual exists as a result of a survey deficiency on staffing or the potential of the facility to fall below its desired staff, thus putting a client's health and safety at risk. (2) The prospective employee must furnish to the agency a written statement stating that he or she has no conviction for an offense described in the Health and Safety Code, sec.250.005, which lists the types of offenses which bar employment. (3) The written statements should be maintained in the agency personnel records at least until the 60 calendar days waiting period described in subsection (h) of this section has expired. (4) The agency must request the criminal history check within 72 hours of employment for a person employed in an emergency situation. (d) An agency shall file a request for a criminal history check on official forms of the department. The requests shall be forwarded to the designated representative of the department. The request must be completely filled out including the mailing address of the applicant or employee. (e) An agency must inform each person that applies for employment that the agency is required to conduct a criminal history check before it may make an offer of employment to the applicant and that the agency will request a criminal history check on each applicant to whom an offer of employment is made. (f) The department shall review the criminal history received from the Department of Public Safety (DPS) to determine if a conviction on the record bars the person from employment in an agency under the Health and Safety Code, sec.250.005 or sec.250.006. (g) Convictions which are not reflected on the criminal history received from DPS do not trigger the requirements of this section or the Health and Safety Code, Chapter 250. (h) If no response has been received by the agency from the department within 60 calendar days of submission of the request for a criminal history check, the agency may assume that it is likely that no conviction barring employment was found and that the person is employable by the agency. (1) No notice will be sent by the department that the person is employable. (2) Subsections (i) and (j) of this section shall apply to a criminal history received after the 60 calendar day period. (i) If the department receives a criminal history from DPS that indicates that the person has been convicted of an offense under the Health and Safety Code, sec.250.005, which bars employment, the department shall notify the person who was the subject of the check and the agency requesting the check of the results. (1) The notice shall be a preliminary finding that the person is unemployable. (2) If the person believes that the conviction does not fall within the Health and Safety Code, sec.250.005, the person (not the agency) may object by filing a written request for informal review with the director, Health Facility Licensure and Certification Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. (3) The written request must be submitted to the department not later than 20 calendar days after the date the notice from the department is received by the person. That person is presumed to have received the notice on the tenth day after it was mailed to the person unless another date appears on the United States Postal Service return receipt. (4) If the person makes a timely request for informal review, the department shall review the criminal history only to verify that the conviction falls within the Health and Safety Code, sec.250.005. (A) If the conviction does fall within that section, the department shall issue a notice of a final finding to the person and the agency that the person is unemployable by the agency. (B) If the department finds that an error was made and that the person is employable, the department shall notify the person and the agency. (C) If the department determines that the conviction does not fall under the Health and Safety Code, sec.250.005, but falls under the Health and Safety Code, sec.250.006, which makes the person potentially unemployable, the department shall follow the procedures in subsection (j) of this section relating to an administrative review panel. (5) If the person fails to request an informal review, the department shall issue a notice of final finding that the person is unemployable. The notice shall be sent to the person and the agency. (j) If the conviction is a potential bar to employment under the Health and Safety Code, sec.250.006, the department will notify the person and the agency of this preliminary finding. (1) The notice shall allow the person who was the subject of the criminal history check the opportunity to appeal to an administrative review panel established by the department. (2) The purpose of the panel will be to determine if mitigating circumstances existed at the time of the offense or whether the person has been substantially rehabilitated since that time. The panel will determine whether the person is likely to be a threat to clients, their families or their visitors. (3) The person (not the agency) may request appeal to the administrative review panel by submitting a written request to the director, Health Facility Licensure and Certification Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. (4) One original and five copies of the request must be submitted to the department no later than 20 calendar days after the date the person receives the notice from the department. The person is presumed to have received the notice on the tenth day after it was mailed to the person unless another date appears on the United States Postal Service return receipt. (5) The request must include six copies of any written documentation which the person wishes to have the administrative review panel consider. Such documentation may include information on the following: (A) whether the conviction was a misdemeanor or felony; (B) the person's age when the offense was committed; (C) the length of time since the offense was committed; (D) what the person did when he or she committed the offense; (E) any court imposed punishment and whether the person has completed that punishment; (F) any rehabilitation since the offense; (G) any mitigating circumstances when the offense was committed; (H) any other convictions since the time of the offense; (I) the person's employment history, especially in a health care facility or agency, since the offense; and (J) such other matters as the person may wish to submit. (6) The criminal history received from DPS and the documentation submitted by the person shall be forwarded to the administrative review panel for its review. The panel shall determine whether the person remains potentially unemployable by the agency or is employable. (A) If the panel decides that the person is now employable by the agency, the person and the agency will be notified of that decision in writing. (B) If the panel determines that the person remains potentially unemployable by the agency, the person will be notified of the opportunity to personally appear before the panel. The notice shall include the date, time and place where the person can meet with the panel. After the opportunity for an appearance and if the panel determines that the person is unemployable by the agency, the department will notify the agency and the person of the final finding in writing. (C) The person or the agency may not contact any member of the panel directly except at the personal appearance before the panel. (D) Quorum of the panel is three members. Any decision of the panel must be by agreement of three members. (E) Deliberations of the panel are not subject to the Open Meetings Act, Government Code, Chapter 551. (7) If the person fails to request an administrative review panel after notice that the person is potentially unemployable or if the person fails to exercise his or her opportunity to personally appear before the panel, the department shall send a notice of unemployability to the agency and the person. (8) If the person fails to appeal to the administrative review panel, the department shall issue a final finding of unemployability to the agency and the person. (k) The initial notice to the person and the agency under subsection (i) and (j) of this section shall inform the person how corrections to the criminal history may be made by contacting DPS. (1) Such corrections may include updating or making accurate the conviction information or clarifying that the conviction is actually the conviction of another person. (2) The department cannot provide assistance in correcting a criminal history; however, the department will receive a copy of any corrected criminal history and will reevaluate the information received in the same manner that the original criminal history was evaluated. (3) It is the responsibility of the applicant for employment or the employee to correct errors of fact or identity in the criminal history received from DPS. The person should contact DPS directly and provide whatever positive identification information may be required for a verification of the record and request a corrected criminal history. (4) A person should request a review by the department under subsections (i) or (j) of this section of the finding of potentially unemployable or unemployable at the same time that a correction of the record by DPS is being requested. (A) The request to the department should indicate that the person is seeking a correction of the records by DPS. (B) The corrected criminal history should be presented to the department as part of the documentation submitted by the person. (l) If an agency receives a preliminary finding under subsections (i) or (j) of this section on a person who is no longer employed by the agency or is no longer an applicant with an offer of employment, the agency shall immediately inform the department in writing of this fact. (A) Since the Health and Safety Code, Chapter 250, and this section do not apply to a person who is not an employee of or an applicant with an offer of employment from the agency requesting the criminal history check, the department shall immediately cease all procedures under this section upon receiving notice from an agency pursuant to this subsection. (B) The department shall notify the person who was the subject of the criminal history check and the agency of the cessation of procedures. (m) The special provisions of the Health and Safety Code, Chapter 250, relating to nurse aides and the nurse aide registry do not apply to persons hired as home health aides. (n) An agency must immediately discharge any employee in a position the duties of which involve direct contact with a client, a client's family, or a client's visitors if the criminal history reveals a conviction of a crime that bars employment as designated by the department in its letter to the person and the agency with a final finding (not a preliminary finding) of unemployability. The law does not require discharge of an employee when the finding is only preliminary. (o) It is not necessary for the agency to notify the department of any actions taken in response to the results of the criminal history on any individual. (p) The criminal history records are for the exclusive use of the department and the requesting agency. The criminal history records and the information they contain may not be released or otherwise disclosed to any person or entity except on court order or with the written consent of the person being investigated. (1) An agency may not share information with another agency or other providers except with the written consent of the person who is the subject of the criminal history check. (2) It is a criminal offense to release information in violation of the law. 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 April 11, 1994. TRD-9438946 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Effective date: June 1, 1994 Proposal publication date: December 7, 1993 For further information, please call: (512) 834-6650 Subchapter E. Home Health Aides and Medication Aides 25 TAC sec.115.61, sec.115.62 The new sections are adopted under the Health and Safety Code, sec.142.012, which provides the Texas Board of Health (board) with authority to adopt rules to establish and enforce minimum standards for the licensing of home and community support services agencies; and sec.12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law upon the board, the department and the commissioner of health. The new sections affect Health and Safety Code, sec.142.012. sec.115.61. Home Health Aides. (a) A home health aide may be used by an agency providing licensed home health services if the aide meets one of the following requirements: (1) a minimum of one year full-time experience in direct client care in an institutional setting (hospital or nursing facility); (2) one year full-time experience within the last five years in direct client care in an agency setting; (3) satisfactorily completed a training and competency evaluation program which complies with the requirements of this section; (4) satisfactorily completed a competency evaluation program which complies with the requirements of this section; (5) submitted to the agency documentation from the director of programs or the dean of a school of nursing that states that the individual is a nursing student who has demonstrated competency in providing basic nursing skills in accordance with the school's curriculum; or (6) be on the department's nurse aide registry with no finding against the aide relating to client abuse or neglect or misappropriation of client property. (b) Tasks to be performed by a home health aide shall be assigned by and performed under the supervision of a registered nurse who shall be responsible for the client care provided by a home health aide. (c) A home health aide may perform those tasks that are delegated and supervised by a registered nurse in accordance with sec.115. 21(m) of this title (relating to Licensure Requirements and Standards for All Home and Community Support Services Agencies). (d) The training portion of a training and competency evaluation program for home health aides must be conducted by or under the general supervision of a registered nurse who possesses a minimum of two years of nursing experience, at least one year of which must be in the provision of home health care. The training program may contain other aspects of learning, but shall contain the following: (1) a minimum of 75 hours as follows: (A) an appropriate number of hours of classroom instruction; and (B) a minimum of 16 hours of clinical experience which will include in-home training and shall be conducted in a home, a hospital, a nursing home, or a laboratory; (2) completion of at least 16 hours of classroom training before a home health aide begins clinical experience working directly with clients under the supervision of qualified instructors; (3) if licensed vocational nurse instructors are used for the training portion of the program, the following qualifications and supervisory requirements apply: (A) a licensed vocational nurse may provide the home health aide classroom training under the supervision of a registered nurse who has two years of nursing experience, at least one year of which must be in the provision of home health care; (B) licensed vocational nurses, as well as registered nurses, may supervise home health aide candidates in the course of the clinical experience; and (C) a registered nurse must maintain overall responsibility for the training and supervision of all home health aide training students; and (4) an assessment that the student knows how to read and write English and carry out directions. (e) The classroom instruction and clinical experience content of the training portion of a training and competency evaluation program must include, but is not limited to: (1) communications skills; (2) observation, reporting, and documentation of a client's status and the care or service furnished; (3) reading and recording temperature, pulse, and respiration; (4) basic infection control procedures and instruction on universal precautions; (5) basic elements of body functioning and changes in body function that must be reported to an aide's supervisor; (6) maintenance of a clean, safe and healthy environment; (7) recognizing emergencies and knowledge of emergency procedures; (8) the physical, emotional, and developmental needs of and ways to work with the populations served by the agency including, the need for respect for the client and his or her privacy and property; (9) appropriate and safe techniques in personal hygiene and grooming that include: (A) bed bath; (B) sponge, tub, or shower bath; (C) shampoo, sink, tub, or bed; (D) nail and skin care; (E) oral hygiene; and (F) toileting and elimination; (10) safe transfer techniques and ambulation; (11) normal range of motion and positioning; (12) adequate nutrition and fluid intake; (13) any other task that the agency may choose to have the home health aide perform in accordance with sec.115.21(m) of this title (relating to Licensure Requirements and Standards for All Home and Community Support Services Agencies); and (14) the rights of the elderly. (f) This section addresses the requirements for the competency evaluation program or the competency evaluation portion of a training and competency evaluation program. (1) The competency evaluation must be performed by a registered nurse. (2) The competency evaluation must address each of the subjects listed in subsection (e)(2)-(13) of this section. (3) Each of the areas described in subsection (e)(3) and (e)(9)-(11) of this section must be evaluated by observation of the home health aide's performance of the task with a client or person. (4) Each of the areas described in subsection (e)(2), (4)-(8), (12) and (13) of this section may be evaluated through written examination, oral examination, or by observation of a home health aide with a client. (5) A home health aide is not considered to have successfully completed a competency evaluation if the aide has an unsatisfactory rating in more than one of the areas described in subsection (e) (2)-(13) of this section. (6) If an aide receives an unsatisfactory rating, the aide shall not perform that task without direct supervision by a registered nurse or licensed vocational nurse until the aide receives training in the task for which he or she was evaluated as unsatisfactory and successfully completes a subsequent competency evaluation with a satisfactory rating on the task. (7) If an individual fails to complete the competency evaluation satisfactorily, the individual shall be advised of the areas in which he or she is inadequate. (g) If a person who is not an agency desires to implement a home health aide training and competency evaluation program or a competency evaluation program, the person shall meet the requirements of this section in the same manner as set forth for an agency. sec.115.62. Home Health Medication Aides. (a) General. (1) A person may not administer medication to a client unless the person: (A) holds a current license under state law which authorizes the licensee to administer medication; (B) holds a current permit issued under this section and acts under the delegated authority of a registered nurse licensed by the Board of Nurse Examiners which authorizes the licensee to administer medication; (C) performs duties of a qualified dialysis technician within the scope authorized under sec.115.24 of this title (relating to Standards for Home Dialysis Designation); (D) administers a medication to a client of an agency in accordance with rules of the Board of Nurse Examiners that permit delegation of the administration of medication to a person not holding a permit under this section; or (E) administers noninjectable medication under circumstances authorized by the memorandum of understanding between the Board of Nurse Examiners and the department. (2) A home health medication aide may be utilized in an agency providing licensed and certified home health services, licensed home health services, hospice services, or personal assistance services. If there is a direct conflict between the requirements of this chapter and federal regulations, the requirements which are more stringent shall apply to the licensed and certified home health services agency. (3) Other exemptions shall be as follows. (A) A person may administer medication to a client of an agency without the license or permit as required in paragraph (1) of this subsection if the person is: (i) a graduate nurse holding a temporary permit issued by the Board of Nurse Examiners; (ii) a student enrolled in an accredited school of nursing or program for the education of registered nurses who is administering medications as part of the student's clinical experience; (iii) a graduate vocational nurse holding a temporary permit issued by the Board of Vocational Nurse Examiners; (iv) a student enrolled in an accredited school of vocational nursing or program for the education of vocational nurses who is administering medications as part of the student's clinical experience; or (v) a trainee in a medication aide training program approved by the Texas Department of Health (department) under this chapter who is administering medications as part of the trainee's clinical experience. (B) An exempt person described in subparagraph (A) of this paragraph shall be supervised as follows. (i) A person described in: (I) subparagraph (A)(i) of this paragraph shall be supervised by a registered nurse; (II) subparagraph (A)(ii) or (iv) of this paragraph shall be supervised by the student's instructor; or (III) subparagraph (A)(iii) of this paragraph shall be supervised by a registered nurse or licensed vocational nurse. (ii) Supervision must be on-site. (C) An exempt person described in this subsection may not be used in a supervisory or charge position. (b) Required actions. (1) If home health medication aide services are provided, a home health medication aide shall be employed by the agency to provide home health medication aide services, and a registered nurse shall be employed by or under contract with the agency to perform the initial assessment; prepare the client care plan; establish the medication list, medication administration record, and medication aide assignment sheet; and supervise the home health medication aide. The registered nurse shall be available to supervise the home health medication aide when services are provided. (2) The clinical records of a patient utilizing a home health medication aide shall include a statement signed by the client or family acknowledging receipt of the list of permitted and prohibited acts of a home health medication aide. (3) The registered nurse (RN) shall be knowledgeable regarding the rules of the department governing home health medication aides and shall assure that the home health medication aide is in compliance with the statute. (4) A permit holder must: (A) function under the supervision of a registered nurse; (B) function in accordance with applicable law and this chapter relating to administration of medication and operation of the agency; (C) comply with department rules applicable to personnel used in an agency; and (D) comply with this section and sec.115.61 of this title (relating to Home Health Aides) if the person will be used as a home health aide and a home health medication aide. (5) The RN shall make a supervisory visit while the medication aide is in the client's residence in accordance with sec.115.21(m) of this title (relating to Licensure Requirements and Standards for All Home and Community Support Services Agencies). (c) Permitted actions. A permit holder is permitted to: (1) observe and report to the agency's registered nurse and document in the clinical note reactions and side effects to medication shown by a client; (2) take and record vital signs prior to the administration of medication which could affect or change the vital signs; (3) administer regularly prescribed medication which the permit holder has been trained to administer only after personally preparing (setting up) the medication to be administered. The medication aide shall document the administered medication in the client's clinical note; (4) administer oxygen per nasal cannula or a non-sealing face mask only in emergency. Immediately after the emergency, the permit holder shall verbally notify the supervising registered nurse and appropriately document the action and notification; (5) apply specifically ordered ophthalmic, otic, nasal, vaginal, topical, and rectal medication unless prohibited by subsection (d)(10) of this section; and (6) administer medications only from the manufacturer's original container or the original container in which the medication had been dispensed and labeled by the pharmacy with all information mandated by the Texas State Board of Pharmacy. (d) Prohibited actions. Permit holders shall not: (1) administer a medication by any injectable route; (2) administer medication used for intermittent positive pressure breathing (IPPB) treatment or any form of medication inhalation treatments; (3) administer previously ordered pro re nata (PRN) medication unless authorization is obtained from the agency's registered nurse. If authorization is obtained, the permit holder must: (A) document in the client's clinical notes symptoms indicating the need for medication and the time the symptoms occurred; (B) document in the client's clinical notes that the agency's registered nurse was contacted, symptoms were described, and permission was granted to administer the medication and the time of contact; (C) obtain permission to administer the medication each time the symptoms occur in the client; and (D) insure that the client's clinical record is co-signed by the registered nurse who gave permission within seven calendar days of incorporation of the notes into the clinical record; (4) administer the initial dose of a medication that has not been previously administered to a client. Whether a medication has been previously administered shall be determined by the client's current clinical records; (5) calculate a client's medication doses for administration except that the permit holder may measure a prescribed amount of a liquid medication to be administered or break a tablet for administration to a client provided the registered nurse has calculated the dosage. The client's medication administration record shall accurately document how the tablet must be altered prior to administration; (6) crush medication unless authorization has been given in the original physician's order or obtained from the agency's registered nurse. The authorization to crush the specific medication shall be documented on the client's medication administration record; (7) administer medications or feedings by way of a tube inserted in a cavity of the body except as specified in sec.115.21(m) of this title (relating to Licensure Requirements and Standards for All Home and Community Support Services Agencies); (8) receive or assume responsibility for reducing to writing a verbal or telephone order from a physician, dentist or podiatrist; (9) order a client's medication from a pharmacy; (10) apply topical medications that involve the treatment of skin that is broken or blistered when a specified aseptic technique is ordered by the attending physician; (11) administer medications from any container other than the manufacturer's original container or the original container in which the medication had been dispensed and labeled by the pharmacy with all information mandated by the Texas State Board of Pharmacy; (12) steal, divert, or otherwise misuse medications; (13) violate any provision of the statute or of this chapter; (14) fraudulently procure or attempt to procure a permit; (15) neglect to administer appropriate medications, as prescribed, in a responsible manner; or (16) administer medications if the person is unable to do so with reasonable skill and safety to clients by reasons of drunkenness, excessive use of drugs, narcotics, chemicals, or any other type of material. (e) Applicant qualifications. Each applicant for a permit issued under the statute must complete a training program. Prior to enrollment in a training program and prior to application for a permit under this section, all persons: (1) must be able to read, write, speak, and understand English; (2) must be at least 18 years of age; (3) must be free of communicable diseases and in suitable physical and emotional health to safely administer medications; (4) must be a graduate of a high school or have an equivalent diploma or higher degree; and (5) must have satisfactorily completed a home health aide training and competency evaluation program or a competency evaluation program under sec.115. 61 of this title (relating to Home Health Aides). (f) Nursing graduates. A person who is a graduate of an accredited school of nursing and who does not hold a license to practice professional or vocational nursing meets the training requirements for issuance of a permit under this section; provided, however, the date of graduation from the nursing school must have been no earlier than January 1 of the year immediately preceding the year of application for a permit under this section. (1) An official application form shall be submitted to the department by the applicant. The applicant must meet the requirements of subsection (e)(1)-(4) of this section. (2) The application shall be accompanied by the permit application fee. (3) The applicant must include an official transcript documenting graduation from an accredited school of nursing. (4) The department shall acknowledge receipt of the application by forwarding to the applicant a copy of this chapter and the department's open book examination. (5) The applicant shall complete the open book examination and return it within 45 calendar days to the department. (6) The applicant shall complete the department's written examination. The site of the examination shall be determined by the department. Any applicant failing to schedule and take the examination within 45 calendar days of the examination notice may have his or her application voided. (7) An open book or written examination shall not be retaken if the applicant fails. (8) Upon successful completion of the two examinations, the department will evaluate all application documents submitted by the applicant. (9) The department shall notify the applicant in writing of the examination results. (g) Nursing students. A person who is attending or has attended an accredited school of nursing and who does not hold a license to practice professional or vocational nursing meets the training requirements for issuance of a permit under this section if the person: (1) attended the nursing school no earlier than January 1 of the year immediately preceding the year of application for a permit under this section; (2) successfully completed courses at the nursing school which cover the department's curriculum for a home health medication aide training program; (3) submits a statement which is signed by the nursing school's administrator or other authorized individual and certifies that the person completed the courses specified under paragraph (2) of this subsection. The administrator is responsible for determining that the courses to which he or she certifies cover the department's curriculum. The statement shall be submitted with the person's application for a permit under this section; and (4) complies with subsection (f)(1)-(2), and (f)(4)-(9) of this section. (h) Reciprocity. A person who holds a valid license, registration, certificate, or permit as a home health medication aide issued by another state whose minimum standards or requirements are substantially equivalent to or exceed the requirements of this section in effect at the time of application, may request a waiver of the training program requirement. (1) An official application form shall be submitted to the department by the graduate. The applicant must meet the requirements of subsection (e)(1) -(4) of this section. (2) The application shall be accompanied by the permit application fee. (3) The application must include a current copy of the rules of the other state governing its licensing and regulation of home health medication aides, a copy of the legal authority (law, act, code, section, or otherwise) for the state's licensing program, and a certified copy of the license or certificate by which the reciprocal permit is requested. (4) The department shall acknowledge receipt of the application by forwarding to the applicant a copy of this chapter and of the department's open book examination. (5) The department may contact the issuing agency to verify the applicant's status with the agency. (6) The applicant shall complete the department's open book examination and return it within 45 calendar days to the department. (7) The applicant shall complete the department's written examination. The site of the examination shall be determined by the department. Any applicant failing to schedule and take the examination within 45 calendar days of the examination notice may have his or her application voided. (8) An open book or written examination shall not be retaken if the applicant fails. (9) Upon successful completion of the two examinations, the department will evaluate all application documents submitted by the applicant. (10) The department shall notify the applicant in writing of the examination results. (i) Application by trainees. An applicant under subsection (e) of this section must submit to the department, no later than 30 calendar days after enrollment in a training program, all required information and documentation on official department forms. (1) The department will not consider an application as officially submitted until the applicant submits the non-refundable combined permit application and examination fee payable to the Texas Department of Health. The fee required by subsection (n) of this section must accompany the application form. (2) The general statement enrollment form shall contain the following application material which is required of all applicants: (A) specific information regarding personal data, certain misdemeanor and felony convictions, work experience, education, and training; (B) a statement that all of the requirements in subsection (e) of this section were met prior to the start of the program; (C) a statement that the applicant understands that application fee submitted in the permit process is non-refundable; (D) a statement that the applicant understands that materials submitted in the application process are not returnable; (E) a statement that the applicant understands that it is a misdemeanor to falsify any information submitted to the department; and (F) the applicant's signature which has been dated and notarized. (3) A certified copy or a photocopy which has been notarized as a true and exact copy of an unaltered original of the applicant's high school graduation diploma or transcript or an equivalent GED diploma or higher degree shall be submitted unless the applicant is applying under subsection (f) of this section. (4) The department will send a notice listing the additional materials required to an applicant who does not complete the application in a timely manner. An application not completed within 30 calendar days after the date of the notice shall be voided. (5) Notice of application acceptance, disapproval, or deficiency shall be in accordance with subsection (q) of this section. (j) Examination. A written examination shall be given by the department to each applicant at a site determined by the department. (1) No final examination shall be given to an applicant until the applicant has met the requirements of subsections (e) and (i) of this section, and if applicable, subsections (f), (g), or (h) of this section. (2) The applicant shall be tested on the subjects taught in the training program curricula and clinical experience. The examination shall cover an applicant's knowledge of accurate and safe drug therapy to an agency's clients. (3) A training program shall notify the department at least four weeks prior to its requested examination date. (4) The department shall determine the passing grade on the examination. (5) An applicant who fails the examination shall be notified in writing by the department. (A) An applicant under subsection (e) of this section may be given a subsequent examination, without additional payment of a fee, upon the applicant's written request to the department. (B) A subsequent examination shall be completed within 45 calendar days from the date of the failure notification. The site of the examination shall be determined by the department. (C) Another examination shall not be permitted if the student fails the subsequent examination unless the student enrolls and successfully completes another training program. (6) An applicant who is unable to attend the applicant's scheduled examination due to unforeseen circumstances may be given an examination at another time without payment of an additional fee upon the applicant's written request to the department. The examination shall be completed within 45 calendar days from the date of the originally scheduled examination. The rescheduled examination shall be at a site determined by the department. (7) An applicant, whose application for a permit will be disapproved under subsection (k) of this section is ineligible to take the examination. (k) Determination of eligibility. The department shall receive and approve or disapprove all applications. Notices of application approval, disapproval or deficiency shall be in accordance with subsection (q) of this section. (1) An application for a permit shall be disapproved if the person has: (A) not met the requirements of subsections (e)-(i) of this section, if applicable; (B) failed to pass the examination prescribed by the department as set out in subsection (j) of this section; (C) failed to or refused to properly complete or submit any application form, endorsement, or fee, or deliberately presented false information on any form or document required by the department; (D) violated or conspired to violate the statute or any provision of this chapter; or (E) been convicted of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of a permit holder as set out in subsection (r) of this section. (2) If, after review, the department determines that the application should not be approved, the director shall give the applicant written notice of the reason for the proposed decision and of the opportunity for a formal hearing in accordance with subsection (r) of this section. (l) Permit renewal. Home health medication aides shall comply with the following permit renewal requirements. (1) When issued, a permit is valid for one year. (2) A permit holder must renew the permit annually. (3) The renewal date of a permit shall be the last day of the current permit. (4) Each permit holder is responsible for renewing the permit before the expiration date. Failure to receive notification from the department prior to the expiration date of the permit shall not excuse failure to file for timely renewal. (5) A permit holder must complete a seven clock hour continuing education program approved by the department prior to expiration of the permit in order to renew the permit. Continuing education hours are required for the first renewal. (6) The department shall deny renewal of the permit of a permit holder who is in violation of the statute or this chapter at the time of application for renewal. (7) Home health medication aide permit renewal procedures are as follows. (A) At least 30 calendar days prior to the expiration date of a permit, the department will send to the permit holder at the address in the department's records, notice of the expiration date of the permit and the amount of the renewal fee due and a renewal form which the permit holder must complete and return with the required renewal fee. (B) The renewal form shall include the preferred mailing address of the permit holder and information on certain misdemeanor and felony convictions. It must be signed by the permit holder. (C) The department shall issue a renewal permit to a permit holder who has met all requirements for renewal. (D) A permit shall not be renewed if the permit holder does not complete the required seven-hour continuing education requirement. Successful completion shall be determined by the student's instructor. An individual who does not meet the continuing education requirement shall complete a new program, application, and examination in accordance with the requirements of this section. (E) A permit shall not be renewed if renewal is prohibited by the Texas Education Code, sec.57.491 relating to defaults on guaranteed student loans. (F) If a permit holder fails to timely renew his or her permit, because the permit holder is or was on active duty with the armed forces of the United States of America serving outside the State of Texas, the permit holder may renew the permit pursuant to this subsection. (i) Renewal of the permit may be requested by the permit holder, the permit holder's spouse, or an individual having power of attorney from the permit holder. The renewal form shall include a current address and telephone number for the individual requesting the renewal. (ii) Renewal may be requested before or after the expiration of the permit. (iii) A copy of the official orders or other official military documentation showing that the permit holder is or was on active military duty serving outside the State of Texas should be filed with the department along with the renewal form. (iv) A copy of the power of attorney from the permit holder shall be filed with the department along with the renewal form if the individual having the power of attorney executes any of the documents required in this subsection. (v) A permit holder renewing under this subsection shall pay the applicable renewal fee. (vi) A permit holder is not authorized to act as a home health medication aide after the expiration of the permit unless and until the permit holder actually renews the permit. (vii) A permit holder renewing under this subsection shall not be required to submit any continuing education hours. (8) A person whose permit has expired for not more than two years may renew the permit by submitting to the department: (A) the permit renewal form; (B) all accrued renewal fees; (C) proof of having earned, during the expired period, seven hours in an approved continuing education program for each year or part of a year that the permit has been expired; and (D) proof of having earned, prior to expiration of the permit, seven hours in an approved continuing education program as required in subsection (l)(5) of this section. (9) A permit that is not renewed during the two years after expiration may not be renewed. (10) Notices of permit renewal approval, disapproval, or deficiency shall be in accordance with subsection (q) of this section (relating to Processing Procedures). (m) Changes. (1) Notification of changes shall be reported to the department within 30 calendar days after a change of address or name. (2) The department will replace a lost, damaged, or destroyed permit upon receipt of a completed duplicate permit request form and permit replacement fee. (n) Fees. (1) The schedule of fees is as follows: (A) combined permit application and examination fee -$25; (B) renewal fee-$15; and (C) permit replacement fee-$5.00. (2) All fees are nonrefundable. (3) An applicant whose personal check for the combined permit application and examination fee is not honored by the financial institution may reinstate the application by remitting to the department a money order or cashier's check for the amount within 30 calendar days of the date of the applicant's receipt of the department's notice. An application will be considered incomplete until the fee has been received and cleared through the appropriate financial institution. (4) A permit holder whose personal check for the renewal fee is not honored by the financial institution shall remit to the department a money order or cashier's check within 30 calendar days of the date of the licensee's receipt of the department's notice. If proper payment is not received, the permit shall not be renewed. If a renewal card has already been issued, it shall be voided. (o) Training program requirements. (1) An educational institution accredited by the Texas Education Agency or Texas Higher Education Coordinating Board which desires to offer a training program shall file an application for approval on an official form. Programs sponsored by state agencies for the training and preparation of its own employees are exempt from the accreditation requirement. An approved institution may offer the training program and a continuing education program. (A) All signatures on official forms and supporting documentation must be originals. (B) The application shall include: (i) the anticipated dates of the program; (ii) the location(s) of the classroom course(s); (iii) the name of the coordinator of the program; (iv) a list of instructors and any other person responsible for the conduct of the program. The list must include addresses and telephone numbers for each instructor; and (v) an outline of the program content and curriculum if the curriculum covers more than the department's established curricula. (C) The department may conduct an inspection of the classroom site. (D) Notice of approval or proposed disapproval of the application will be given to the program within 30 calendar days of the receipt of a complete application. If the application is proposed to be disapproved due to noncompliance with the requirements of the statute or of this chapter the reasons for disapproval shall be given in the notice. (E) An applicant may request a hearing on a proposed disapproval in writing within ten calendar days of receipt of the notice of the proposed disapproval. The hearing shall be in accordance with subsection (r) of this section and the Administrative Procedure Act, Texas Government Code, Chapter 2001. If no request is made, the applicant is deemed to have waived the opportunity for a hearing, and the proposed action may be taken. (2) The program shall include, but shall not be limited to, the following instruction and training: (A) procedures for preparation and administration of medications; (B) responsibility, control, accountability, storage, and safeguarding of medications; (C) use of reference material; (D) documentation of medications in the client's clinical records, including PRN medications; (E) minimum licensing standards for agencies covering pharmaceutical service, nursing service, and clinical records; (F) federal and state certification standards for participation under the Social Security Act, Title XVIII (Medicare) pertaining to pharmaceutical service, nursing service, and clinical records; (G) lines of authority in the agency, including agency personnel who are immediate supervisors; (H) responsibilities and liabilities associated with the administration and safeguarding of medications; (I) allowable and prohibited practices of permit holders in the administration of medication; (J) drug reactions and side effects of medications commonly administered to home health clients; (K) instruction on universal precautions; and (L) the provisions of this chapter. (3) The program shall consist of 140 hours: 100 hours of classroom instruction and training, 20 hours of return skills demonstration laboratory, ten hours of clinical experience including clinical observation and skills demonstration under the supervision of a registered nurse in an agency, and ten more hours in the return skills demonstration laboratory in the preceding order. A classroom or laboratory hour shall constitute 50 clock minutes of actual classroom or laboratory time. (A) Class time shall not exceed four hours in a 24-hour period. (B) The completion date of the program shall be a minimum of 60 calendar days and a maximum of 180 calendar days from the starting date of the program. (C) Each program shall follow the curricula established by the department. (4) At least seven calendar days prior to the commencement of each program, the coordinator shall notify the department in writing of the starting date, the ending date, the daily hours of the program, and the projected number of students. (5) A change in any information presented by the program in an approved application including, but not limited to, location, instructorship, and content must be approved by the department prior to the program's effective date of the change. (6) The program instructors of the classroom hours shall be a registered nurse and registered pharmacist. (A) The nurse instructor shall have a minimum of two years of full-time experience in caring for the elderly, chronically ill, or pediatric clients or been employed full time for a minimum of two years with a home and community support services agency. An instructor in a school of nursing may request a waiver of the experience requirement. (B) The pharmacist instructor shall have a minimum of one year of experience and be currently employed as a pharmacist. (7) The coordinator shall provide clearly defined and written policies regarding each student's clinical experience to the student, the administrator, and the director of nursing of the agency used for the clinical experience. (A) The clinical experience shall be counted only when the student is observing or involved in functions involving medication administration and under the direct, contact supervision of a registered nurse. (B) The coordinator shall be responsible for final evaluation of the student's clinical experience. (8) Each program shall issue to each student, upon successful completion of the program, a certificate of completion, which shall include the program's name, the student's name, the date of completion, and the signature of the program coordinator. (9) Each program shall inform the department of the satisfactory completion for each student within 15 calendar days of completion of the course. The official department class roster form shall be used and signed by the coordinator. (p) Continuing education. The continuing education training program is as follows: (1) The program shall consist of at least seven clock hours of classroom instruction. (2) The instructor shall meet the requirements in subsection (o)(6) of this section. (3) Each program shall follow the curricula established by the department. (4) Each program shall inform the department of the name of each permit holder who completes the course within 15 calendar days. The official department class roster form shall be used and signed by the coordinator. (q) Processing procedures. The department shall comply with the following procedures in processing applications of home health medication aide permits and renewal of permits. (1) The following periods of time shall apply from the date of receipt of an application until the date of issuance of a written notice that the application is complete and accepted for filing or that the application is deficient and additional specific information is required. A written notice stating that the application has been approved may be sent in lieu of the notice of acceptance of a complete application. The time periods are as follows: (A) letter of acceptance of an application for a home health medication aide permit-14 working days; and (B) letter of application or renewal deficiency-14 working days. (2) The following periods of time shall apply from the receipt of the last item necessary to complete the application until the date of issuance of written notice approving or denying the application. The time periods for denial include notification of proposed decision and of the opportunity, if required, to show compliance with the law and of the opportunity for a formal hearing. An application is not considered complete until the required documentation and fee have been submitted by the applicant. The time periods are as follows: (A) the issuance of an initial permit-90 calendar days; (B) the letter of denial for a permit-90 calendar days; and (C) the issuance of a renewal permit-20 calendar days. (3) In the event an application is not processed in the time period stated in paragraphs (1) and (2) of this subsection, the applicant has the right to request reimbursement of all fees paid in that particular application process. Request for reimbursement shall be made to the director of the Home Health Medication Aide Permit Program. If the director of the Home Health Medication Aide Permit Program does not agree that the time period has been violated or finds that good cause existed for exceeding the time period, the request will be denied. (4) Good cause for exceeding the time period is considered to exist if the number of applications for initial home health medication aide permits and renewal permits exceeds by 15% or more the number of applications processed in the same calendar quarter of the preceding year; another public or private entity relied upon by the department in the application process caused the delay; or any other condition exists giving the department good cause for exceeding the time period. (5) If a request for reimbursement under paragraph (3) of this subsection is denied by the director of the Home Health Medication Aide Permit Program, the applicant may appeal to the commissioner of the department for a timely resolution of any dispute arising from a violation of the time periods. The applicant shall give written notice to the commissioner at the address of the department that he or she requests full reimbursement of all fees paid because his or her application was not processed within the applicable time period. The director of the Home Health Medication Aide Permit Program shall submit a written report of the facts related to the processing of the application and of any good cause for exceeding the applicable time period. The commissioner shall provide written notice of the commissioner's decision to the applicant and the director of the Home Health Medication Aide Permit Program. An appeal shall be decided in the applicant's favor if the applicable time period was exceeded and good cause was not established. If the appeal is decided in favor of the applicant, full reimbursement of all fees paid in that particular application process shall be made. (6) The time periods for contested cases related to the denial of initial home health medication aide permits or renewal permits are not included within the time periods stated in this subsection. The time period for conducting a contested case hearing runs from the date the department receives a written request for a hearing and ends when the decision of the department is final and appealable. A hearing may be completed within one to four months, but may extend for a longer period of time depending on the particular circumstances of the hearing. (r) Denial, suspension, or revocation. (1) The department may deny, suspend, emergency suspend, or revoke a permit or program approval if the permit holder or program fails to comply with any provision of the statute or this chapter. (2) The department may also take action under paragraph (1) of this subsection for fraud, misrepresentation, or concealment of material fact on any documents required to be submitted to the department or required to be maintained or complied by the permit holder or program pursuant to this chapter. (3) The department may suspend or revoke an existing permit or program approval or disqualify a person from receiving a permit or program approval because of a person's conviction of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of a home health medication aide or training program. In determining whether a conviction directly relates, the department shall consider the elements set forth in sec.115.52(c) of this title (relating to Disciplinary Action). (4) If the department proposes to deny, suspend, or revoke a home health medication aide permit or to rescind a home health medication aide program approval, the director shall notify the permit holder or home health medication aide program by certified mail, return receipt requested, of the reasons for the proposed action and offer the permit holder or home health medication aide program an opportunity for a hearing. (A) The permit holder or home health medication aide program must request a hearing within 30 calendar days of receipt of the notice. Receipt of notice is presumed to occur on the tenth calendar day after the notice is mailed to the last address known to the department unless another date is reflected on a United States Postal Service return receipt. (B) The request must be in writing and submitted to the Director, Health Facility Licensure and Certification Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. (C) If the permit holder or home health medication aide program does not request a hearing, in writing, within 30 calendar days of receipt of the notice, the permit holder or home health medication aide program is deemed to have waived the opportunity for a hearing and the proposed action shall be taken. (5) The department may suspend a permit to be effective immediately when the health and safety of persons are threatened. The department shall notify the permit holder of the emergency action by certified mail, return receipt requested, or personal delivery of the notice and of the effective date of the suspension and the opportunity for the permit holder to request a hearing. (6) All hearings shall be conducted pursuant to the Administrative Procedure Act, Texas Government Code, Chapter 2001, and the department's formal hearing procedures in Chapter 1 of this title (relating to the Texas Board of Health). (7) If the permit holder or program fails to appear or be represented at the scheduled hearing, the permit holder or program has waived the right to a hearing and the proposed action shall be taken. (8) If the department suspends a home health medication aide permit, the suspension shall remain in effect until the department determines that the reason for suspension no longer exists. The department shall investigate prior to making a determination. (A) During the time of suspension, the suspended permit holder shall return his or her permit to the department. (B) If a suspension overlaps a renewal date, the suspended permit holder may comply with the renewal procedures in this chapter; however, the department may not renew the permit until the department determines that the reason for suspension no longer exists. (9) If the department revokes or does not renew a permit, a person may reapply for a permit by complying with the requirements and procedures in this chapter at the time of reapplication. (A) The department may refuse to issue a permit if the reason for revocation or non-renewal continues to exist. (B) Upon revocation or non-renewal, a permit holder shall return the license or permit to the department. 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 April 11, 1994. TRD-9438945 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Effective date: June 1, 1994 Proposal publication date: December 7, 1993 For further information, please call: (512) 834-6650 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 311. Watershed Protection Subchapter E. Colorado River Watershed 30 TAC sec.311.43 The Texas Natural Resource Conservation Commission (Commission) adopts an amendment to sec.311.43, with changes to the proposed text as published in the December, 10, 1993, issue of the Texas Register (18 TexReg 9168). Section 311.43 relates to Effluent Requirements for All Tributaries of Segment 1428 of the Colorado River and Segment 1427, Onion, Creek, and Its Tributaries, of the Colorado River Basin. A public hearing was held on January 4, 1994, at the Stephen F. Austin Building, 1700 North Congress Avenue, Austin, Texas. One comment was received by the City of Austin in support of the amendment but requesting that the proposed deadline of October 1, 1994 be extended to October 1, 1997. The Commission's staff has agreed to extend the deadline to October 1, 1997. The amendment is adopted under the Texas Water Code, sec. sec.5.103, 5.105, and 5.120, which provides the Commission with the authority to promulgate rules as necessary to carry out its powers and duties under the Texas Water Code and other laws of the state and to establish and approve all general policies of the commission. The proposed amendment will not affect any other codes, articles, or statutes. sec.311.43. Effluent Requirements for All Tributaries of Segment 1428 of the Colorado River and Segment 1427, Onion Creek, and Its Tributaries, of the Colorado River Basin. (a) (No change.) (b) Subsection (a) of this section does not apply to any existing facilities which discharge treated domestic sewage effluent into tributaries of Segment 1428 of the Colorado River or Segment 1427, Onion Creek, and its tributaries, of the Colorado River Basin, so long as that facility remains at its permitted flow for the facility currently constructed. However, Subsection (a) of this section shall apply to all permitted facilities and phased facility expansions, not under substantial construction as of September 25, 1986, no later than June 1, 1990. This subsection shall not preclude the commission from imposing more stringent treatment levels to such facilities in the future if the results of water quality studies show that such is necessary. (c) The City of Austin's Walnut Creek wastewater treatment facility, located at the south side of FM Road 969, approximately one mile east of the intersection of FM Road 969 and United States Highway 183 in Travis County, Texas must by October 1, 1997 meet, at a minimum, the effluent treatment level in Subsection (a) of this section unless the discharge is relocated to the main stem of the Colorado River. (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 April 8, 1994. TRD-9438891 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: April 29, 1994 Proposal publication date: December 10, 1993 For further information, please call: (512) 239-0653 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part I. General Land Office Chapter 9. Exploration and Leasing of Oil and Gas 31 TAC sec.9.7 The School Land Board adopts an amendment to sec.9.7, concerning the potential reduction of penalty and interest, with changes to the proposed text as published in the January 28, 1994, issue of the Texas Register (19 TexReg 573). The School Land Board finds it necessary under its statutory authority to establish standards by which assessments of penalties and/or interest can be fairly reduced to encourage the payment of delinquent or underpaid royalties owed the Permanent School Fund. This amendment will provide a standard for the School Land Board to reduce the penalty and/or interest assessed on outstanding sums due and owing the General Land Office for underpaid or delinquent royalties. This amendment is intended to encourage the prompt payment to the General Land Office of these sums. Only one comment was received by the School Land Board. The first portion of the comment expressed concern that the language of the rule did not clearly show that the proposed rule would allow reduction of not only penalties and/or interest assessed under sec.52.131 of the Texas Natural Resources Code, but also other penalties and/or interest assessed by the Commissioner. As a result of this comment, the rule has been changed to more clearly encompass all situations where penalties and/or interest may be assessed by the Commissioner. The second portion of the comment posed a question concerning the meaning of the phrase "assessed by the Commissioner". The commenter was concerned that the term required a formal audit assessment before a reduction could be granted. The commenter is correct that the School Land board had not intended to require a formal audit as a precondition to a reduction. However, we do not agree that the rule as written requires a formal audit. The amounts due and owing will have to be calculated or assessed in some manner in order for the School Land Board to determine what amounts of penalties and/or interest to reduce, if any. The use of the phrase "assessed by the Commissioner" is the phrase used in the statute under which this rule is proposed. Based on the above, the phrase was not changed. The amendment is adopted under the Texas Natural Resources Code, Title 2, Subtitle D, sec.52.131(j), which provides the School Land Board the authority to provide procedures and standards for reduction of penalties and interest assessed by the Commissioner relating to unpaid or delinquent royalties. sec.9.7. Royalty and Reporting Obligations to the State. (a) (No change.) (b) Monetary royalties and reports. (1)-(2) (No change.) (3) Penalties and interest. (A)-(D) (No change.) (E) Reduction of Penalty and/or Interest. The School Land Board may reduce penalties and/or interest assessed under Texas Natural Resources Code, sec.52.131, and/or any other penalties or interest relating to delinquent or unpaid royalties that have been assessed by the Commissioner in the following circumstances: (i) when a lessee brings a deficiency to the General Land Office's attention voluntarily; and/or (ii) when a lessee and the General Land Office have reached an agreement regarding the reduction as part of a resolution of an outstanding audit issue. (4)-(5) (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 April 7, 1994. TRD-9438722 Garry Mauro Commissioner General Land Office Effective date: April 27, 1994 Proposal publication date: January 28, 1994 For further information, please call: (512) 305-9129 Chapter 10. Exploration and Development of State Minerals Other Than Oil and Gas 31 TAC sec.10.8 The School Land Board adopts an amendment to sec.10.8, concerning the potential reduction of penalty and interest, with changes to the proposed text as published in the January 28, 1994, issue of the Texas Register (19 TexReg 573). The School Land Board finds it necessary under its statutory authority to establish standards by which assessments of penalties and/or interest can be fairly reduced to encourage the payment of delinquent or underpaid royalties owed the Permanent School Fund. This amendment will provide a standard for the School Land Board to reduce the penalty and/or interest assessed on outstanding sums due and owing the General Land Office for underpaid or delinquent royalties. This amendment is intended to encourage the prompt payment to the General Land Office of these sums. No comments were received on this rule. However, one comment was received by the School Land Board on the identical companion rule found in sec.9.7 of this title (relating to Royalty and Reporting Obligations to the State). Section 10.8 has been changed to be consistent with sec.9.7 of this title (relating to Royalty and Reporting Obligations to the State). The first portion of the comment on sec.9.7 of this title (relating to Royalty and Reporting Obligations to the State) expressed concern that the language of the rule did not clearly show that the proposed rule would allow reduction of not only penalties and/or interest assessed under Natural Resources Code, sec.52.131, but also other penalties and/or interest assessed by the Commissioner. As result of this comment, the rule has been changed to more clearly encompass all situations where penalties and/or interest may be assessed by the Commissioner. The second portion of the comment on sec.9.7 of this title (relating to Royalty and Reporting Obligations to the State) posed a question concerning the meaning of the phrase "assessed by the Commissioner". The commenter was concerned that the term required a formal audit assessment before a reduction could be granted. The commenter is correct that the School Land Board had not intended to require a formal audit as a precondition to a reduction. However, we do not agree that the rule as written requires a formal audit. The amounts due and owing will have to be calculated or assessed in some manner in order for the School Land Board to determine what amounts of penalties and/or interest to reduce, if any. The use of the phrase "assessed by the Commissioner" is the phrase used in the statute under which this rule is proposed. Based on the above, the phrase was not changed. The amendment to sec.10.8 is adopted under the Texas Natural Resources Code, Title 2, Subtitle D, sec.52.131(j), which provides the School Land Board the authority to provide procedures and standards for reduction of penalties and interest assessed by the Commissioner relating to unpaid or delinquent royalties. sec.10.8. Assignments Releases, Reports, Royalty Payments, Inspections, Forfeitures, and Reinstatements. (a)-(d) (No change.) (e) Reduction of Penalty and/or Interest. The School Land Board may reduce penalties and/or interest assessed under the Texas Natural Resources Code, sec.52.131, and/or any other penalties or interest relating to delinquent or unpaid royalties that have been assessed by the Commissioner in the following circumstances: (1) when a lessee brings a deficiency to the General Land Office's attention voluntarily; and/or (2) when a lessee and the General Land Office have reached an agreement regarding the reduction as part of a resolution of an outstanding audit issue. 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 April 7, 1994. TRD-9438723 Garry Mauro Commissioner General Land Office Effective date: April 27, 1994 Proposal publication date: January 28, 1994 For further information, please call: (512) 305-9129 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter F. Motor Vehicle Sales Tax 34 TAC sec.3.94 The Comptroller of Public Accounts adopts new sec.3.94, concerning filing motor vehicle reports, without changes to the proposed text as published in the January 28, 1994, issue of the Texas Register (19 TexReg 574). The new section is necessary to inform certain sellers of their reporting responsibilities which were established by recent legislative changes. No comments were received regarding adoption of the new section. The new section is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The new section implements the Tax Code, sec.152.047. 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 April 12, 1994 TRD-9439019 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: May 3, 1994 Proposal publication date: January 28, 1994 For further information, please call: (512) 463-4028 Subchapter O. State Sales and Use Tax 34 TAC sec.3.316 The Comptroller of Public Accounts adopts an amendment to sec.3.316, concerning occasional sales, without changes to the proposed text as published in the December 14, 1993, issue of the Texas Register (18 TexReg 9264). The addition of subsection (g) to the Tax Code, sec.151.304, provides that a person holding a permit who makes a purchase in a transaction on which the seller is not required to collect tax under sec.151.304(b)(1) must accrue tax on the transaction and remit the tax to the comptroller. The amendment to the Tax Code is effective September 1, 1993. No comments were received regarding adoption of the amendment. The amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendment implements the Tax Code, sec.151.304 and sec.151.055. 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 April 12, 1994 TRD-9439020 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: May 3, 1994 Proposal publication date: December 14, 1993 For further information, please call: (512) 463-4028 Chapter 5. Funds Management (Fiscal Affairs) Claims Processing-Travel Vouchers 34 TAC sec.5.22 The Comptroller of Public Accounts adopts an amendment to sec.5.22, concerning incorporation by reference of the "State of Texas Travel Allowance Guide," without changes to the proposed text as published in the October 29, 1993, issue of the Texas Register (18 TexReg 7526). The amendment is necessary so that a new edition of the "State of Texas Travel Allowance Guide" can be incorporated by reference as a section. The new edition reflects changes made by the 73rd Legislature, 1993, and includes more detailed information, requirements, and restrictions than was included in previous editions. The new edition should help state agencies and state employees avoid the incurrence of travel expenses that are not payable or reimbursable. The General Services Commission (GSC) has provided two comments about the "State of Texas Travel Allowance Guide" (the Guide). The GSC's first comment is that the second sentence of the first paragraph of sec.1.14 of the Guide is incorrect. The sentence says, "Institutions of higher education are required to participate in the commission's contracts for travel agency or other travel services only when purchased with general revenue funds or educational and general funds." The comptroller believes that the sentence accurately reflects Texas Civil Statutes, Article 601b, sec.14.02(c). The statute says that state agencies in the executive branch of state government shall participate in the GSC's contracts for travel services. However, institutions of higher education are not required to participate in the "commission's contracts for travel agency services or other travel services purchased from funds other than general revenue funds or educational and general funds...." However, that statute also authorizes the GSC to adopt rules to exempt state agencies from required participation. The GSC has recently adopted a rule that partially exempts institutions of higher education. The pertinent passage from the rule is as follows: "[S]tate agencies in the executive branch of state government shall participate in the program and use the travel agency, charge card, rental car, airline, hotel, and other travel service contracts that are effective for at least a 12-month term. Institutions of higher education are not required to use the travel agency contracts, but are required to use all other contracts when such purchases are made using general revenue funds or educational and general funds as defined by the Education Code, sec.51.009." (18 TexReg 9179, 1993, to be codified as an amendment to 1 TAC sec.125.19, concerning Participation by State Agencies). Because the GSC clearly has statutory authority to adopt the preceding rule, the rule must be given full legal effect. Therefore, institutions of higher education are not required to use the GSC's travel agency contracts, regardless of the type of funding used to purchase travel services through travel agents. The GSC's second comment was about the Guide's requirement for original passenger receipts to be attached to travel vouchers when state agencies request reimbursement or payment of commercial airline transportation. The GSC believes the requirement will considerably increase state agencies' burden when paying their commercial airline transportation bills. The GSC believes that photocopies of passenger receipts, copies of invoices and itineraries supplied by travel agencies, and facsimile copies of ticket charge forms from credit card issuers should be accepted instead of requiring original passenger receipts. The comptroller disagrees with the GSC for the following reasons. The original receipt requirement should not increase the burden of state agencies because it is not a new requirement. It has been in effect since at least the 1972-1973 fiscal biennium. Therefore, state agencies should already be following procedures for gathering the original receipts. In addition, the original receipt requirement reflects the requirements of the General Appropriations Act, Article V, sec.14(3)(b). Therefore, the comptroller does not have discretion to routinely accept copies of receipts instead of originals. The amendment is adopted under the Texas Government Code, sec.660.021, which requires the comptroller to adopt rules to administer the travel regulations of the Texas Government Code, Chapter 660, and of the General Appropriations Act. The amendment implements those travel regulations for the 1994-1995 fiscal biennium. 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 April 12, 1994 TRD-9439012 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: May 3, 1994 Proposal publication date: October 29, 1993 For further information, please call: (512) 463-4028 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part IX. Texas Commission on Jail Standards Chapter 259. New Construction Rules Temporary Emergency Housing-Buildings 37 TAC sec.sec.259.401-259.422 The Texas Commission on Jail Standards adopts repeal of sec.sec.259.401-259. 422 concerning new construction rules without changes to the proposed text as published in the March 4, 1994, issue of the Texas Register (19 TexReg 1536). Repeal of these rules allows for adoption of new rules for temporary housing. The repeal functions to allow adoption of new rules which will allow counties to construct temporary facilities at reduced cost. No comments were received regarding adoption of the repeals. The repeals are adopted under Government Code, sec.511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance, and operation of county jails. 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 April 4, 1994. TRD-9438814 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: April 28, 1994 Proposal publication date: March 4, 1994 For further information, please call: (512) 463-5505 Temporary Housing 37 TAC sec.sec.259.500-259.522, 259.600-259.622 The Texas Commission on Jail Standards adopts new sec. sec.259.500-259.522 and 259.600-259.622, concerning New Construction Rules, with changes to the proposed text as published in the March 4, 1994, issue of the Texas Register (19 TexReg 1536). The new rules revise requirements for temporary tents and buildings to allow counties to construct the facilities at a reduced cost. The new rules function to provide construction standards for temporary facilities that can be easily understood. Two comments were received from the attorney general's office. To be consistent with other sections, the term high-risk was added under sec.259.606. To clarify square footage requirements, the phrase "allowed access at a specific time" was added to sec.259.508 and sec.259.608. The new rules are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance and operation of county jails. sec.259.500. Qualifications for Use. (a) The commission may approve the use of tents for the temporary housing of inmates when a need is clearly identified by the sheriff and commissioners court. The county shall submit a plan to the commission for approval indicating long range solutions with time frames for implementation. (b) The commission may approve the use of tents for temporary housing of inmates in connection with specific correctional programs which include work camps, wilderness camps, forestry camps or boot camps. The county shall submit a plan outlining the specific correctional program and intended length of stay of inmates. sec.259.501. Time Period. Tents used under authority of sec.259. 500(a) of this title (relating to Qualifications for Use) shall not be used in excess of three years without review and approval by the commission. sec.259.502. Classification. Inmates housed in tents shall be classified as low-risk as required by Chapter 271 of this title (relating to Classification and Separation of Inmates) or assigned to the specific correctional programs. sec.259.503. Compound Security. A security perimeter should be provided around the tent compound area to deter inmate escapes and the introduction of contraband. Secure storage space shall be provided for disposition of weapons. sec.259.504. Construction Approval. The county shall submit, for approval by the commission, drawings and specifications of the proposed tents in sufficient detail to demonstrate that the completed construction meets the requirements of sec.sec.259.500-259.522 of this title (relating to Temporary Housing). sec.259.505. Site Requirements. The site shall be of sufficient size to provide for adequate spacing of tents and support structures to facilitate access of emergency and service vehicles and equipment. Site shall provide adequate drainage to maintain sanitary and safe conditions. sec.259.506. Construction Materials. Tent fabric shall be of durable, waterproof, and fire-resistant material and shall be maintained in good condition. Tent supports shall be structurally sound and fire-resistant. Tent floors shall be constructed of fire-resistant solid material. Tent floors shall be raised or constructed to prevent site runoff water from entering tents. Tent construction shall incorporate measures which protect against the entrance and infestation of vermin. sec.259.507. Sleeping Areas. Tents used for inmate sleeping areas shall provide a minimum of 40 square feet of clear floor space for the first bunk plus 18 square feet of clear floor space for each additional bunk. sec.259.508. Day Rooms. All inmate living areas shall be provided with or allowed access to day rooms. Day rooms shall provide 40 square feet of clear floor space for one inmate plus 18 square feet of clear floor space for each additional inmate allowed access at a specific time. Day rooms may be contiguous with inmate sleeping areas. sec.259.509. Dimensions. Minimum ridge height shall be seven feet above the floor. Distance between furnishings shall be three feet when used for exit path. Distance between tents shall be 16 feet, exclusive of any obstruction. sec.259.510. Capacity. Maximum capacity of a tent shall not exceed 24 inmates unless operated as a direct supervision unit. Tents for direct supervision units shall not exceed a capacity of 48 inmates. sec.259.511. Tent Openings. Entrances to tents shall be of adequate size to allow for passage of emergency medical equipment. Openings shall be capable of being fastened and provided with insect screens. Maximum distance tent to an exit shall not exceed 50 feet. sec.259.512. Furnishings. A fire-resistive bunk and mattress or cot not less than two feet-three inches wide and six feet-three inches long shall be provided for each inmate confined. Additional furnishings may be provided. Drinking water shall be provided in all inmate sleeping and day room areas. Day rooms shall be provided with fire-resistive table and seating to accommodate the number of inmates confined. sec.259.513. Storage. Provisions shall be made for the storage of inmate property, uniforms, towels, bedding, linens, and janitorial supplies. sec.259.514. Guard Stations. Guard stations shall be provided within sufficient proximity to inmate living and day room areas. sec.259.515. Support Areas. Provisions shall be made for inmate services and activities to include: (1) food service; (2) laundry; (3) medical examination and treatment; (4) recreation and exercise; (5) public and attorney visitation; (6) inmate programs, activities, counseling and interviews; (7) telephone; (8) commissary; (9) correspondence; (10) religious services; (11) education; and (12) library. sec.259.516. Sanitary Facilities. A shower, toilet and lavatory, which are accessible at all times, shall be provided for each group or increment of 12 inmates. Warm water shall be provided at all lavatories and showers. Warm water temperature shall be between 100 and 120 degrees Fahrenheit. Sanitary facilities should be within the inmate living and day room areas. Sanitary facilities shall be within reasonable proximity to inmate living and day room areas and accessible by walkways which are protected from inclement weather, or accessible by other means which will protect inmates from inclement weather. A separate toilet should be available for staff. sec.259.517. Temperature Control. Reasonable temperature levels shall be maintained. Heating equipment, if provided, shall be approved in writing by local or state fire officials. sec.259.518. Medical Space and Equipment. Adequate space for first aid equipment shall be provided. Space and equipment for medical examination, treatment and convalescent care shall be provided or provisions contained in the medical services plan. Adequate secure storage for medical supplies and drugs shall be provided. sec.259.519. Life Safety Equipment. (a) Self alarming smoke detectors shall be provided for each inmate living and day room area. (b) Plans and drills for emergencies shall be provided as required by sec.sec.263. 40-263.44 of this title (relating to Life Safety). (c) Fire extinguishers of adequate number and type to meet NFPA 10 shall be provided at appropriate locations. Fire department connections in proximity to the tent as approved in writing by local fire official shall be provided. sec.259.520. Audible Communication. Two-way voice communication shall be available at all times between inmates and corrections officers. sec.259.521. Lighting. Normal lighting sufficient for reading, writing and other activities shall be provided in all inmate occupied areas. Night lights and emergency illumination shall be provided. Adequate exterior lighting shall be provided. sec.259.522. Electrical Wiring. All electrical wiring shall be in suitable conduit and comply with local electrical codes or the National Electric Code. sec.259.600. Qualifications for Use. The commission may approve the use of buildings for the temporary housing of inmates when a need is clearly identified by the sheriff and commissioners court. The county shall submit a plan to the commission for approval indicating long range solutions with time frames for implementation. sec.259.601. Time Period. Buildings shall not be used in excess of three years without review and approval by the commission. sec.259.602. Classification and Separation. Facilities shall provide separate cells and day rooms of capacities for inmates to provide adequate separation of different classifications of male and female inmates as required by Chapter 271 of this title (relating to Classification and Separation of Inmates). Temporary buildings may house high, medium, and low-risk inmates. sec.259.603. Security Requirements. (a) Buildings should protect inmates from one another, protect custodial personnel from inmates, and deter or prevent escapes. Separate secure storage space shall be provided for disposition of weapons. (b) A low-risk facility need not be designed and maintained as a special security unit. It does not require a security perimeter. When built in conjunction with other jail or lockup functions, the integrity of the security perimeter of the higher security facility shall not be compromised. (c) A security perimeter to restrict the movement of inmates and unauthorized persons and to prevent the introduction of contraband into the facility shall be maintained in medium and high-risk facilities. Safety vestibules shall be provided for each inmate living area and day room used for confinement of three or more inmates within a medium or high-risk facility. sec.259.604. Construction Approval. The county shall submit, for approval by the commission, drawings and specifications of the proposed building construction in sufficient detail to demonstrate that the completed building construction meets the requirements of sec.sec.259.600-259.622 of this title (relating to Temporary Housing). sec.259.605. Site Requirements. The site shall be of sufficient size for the buildings and to facilitate access of emergency and service vehicles and equipment. Site shall provide adequate drainage to maintain sanitary and safe conditions. sec.259.606. Construction Materials and Methods. Buildings shall be designed, constructed, and maintained in a manner to provide a safe, sanitary, secure, and structurally sound environment. Class A finishes are required on exterior and interior surfaces. Floor drains should be provided at wet areas. Building construction shall incorporate measures which protect against the entrance and infestation of vermin. (1) Inmate housing areas and day rooms in low-risk facilities may be constructed of conventional construction materials. Plywood floors with a fire- retardant vinyl covering may be used for the building floor. (2) Inmate housing areas and day rooms in medium and high-risk facilities may be constructed of conventional construction materials which are comparable to metal, masonry, or concrete. The purpose of a particular wall or partition and the type of security sought to be achieved shall determine the selection of appropriate materials. sec.259.607. Sleeping Areas. Inmate sleeping areas shall provide a minimum of 40 square feet of clear floor space for the first bunk, plus 18 square feet of clear floor space for each additional bunk. sec.259.608. Day Rooms. All inmate living areas shall be provided with or allowed access to day rooms. Day rooms shall provide 40 square feet of clear floor space for one inmate plus 18 square feet of clear floor space for each additional inmate allowed access at a specific time. Day rooms may be contiguous with inmate sleeping areas. sec.259.609. Dimensions. All cells and day rooms shall be not less than eight feet from finished floor to ceiling and five feet-six inches from wall to wall. sec.259.610. Capacity. Maximum capacity of any living area shall not exceed 24 inmates unless operated as a direct supervision unit. A living area operated as a direct supervision unit shall not exceed a capacity of 48 inmates. sec.259.611. Openings. All doors shall have commercial grade or detention hardware to provide the level of security sought to be achieved. All exit doors shall have a minimum width of 36 inches. Key override feature shall be available on all electric or mechanical locks. Maximum in the building to an exit shall not exceed 150 feet. All swinging doors shall be installed to swing in the direction of exit traffic. Where provided, operable windows shall be equipped with insect screens. Adequate mechanical ventilation shall be provided when operable windows are not provided. sec.259.612. Furnishings. A fire-resistive bunk not less than two feet-three inches wide and six feet-three inches long with a fire-resistive mattress shall be provided for each inmate confined. Additional furnishings may be provided. Drinking water shall be provided in all inmate sleeping and day room areas. Day rooms shall be provided with fire-resistive table and seating to accommodate the number of inmates confined. Furnishings shall be securely anchored in all areas that house inmates other than low-risk, except direct supervision housing areas. sec.259.613. Storage. Provisions shall be made for the storage of inmate property, uniforms, towels, bedding, linens, and janitorial supplies. sec.259.614. Guard Stations. Guard stations shall be provided within sufficient proximity to inmate living and day room areas. They should be so arranged that visibility into the housing areas is provided. sec.259.615. Support Areas. Provisions shall be made for inmate services and activities to include: (1) food service; (2) laundry; (3) medical examination and treatment; (4) recreation and exercise; (5) public and attorney visitation; (6) inmate programs, activities, counseling, and interviews; (7) telephone; (8) commissary; (9) correspondence; (10) religious services; (11) education; and (12) library. sec.259.616. Sanitary Facilities. A shower, toilet and lavatory, which are accessible at all times, shall be provided for each group or increment of 12 inmates. In housing areas other than low-risk or direct supervision, showers, toilets and lavatories shall be constructed in such manner and of such material so as to resist vandalism. Warm water shall be provided at all lavatories and showers. Warm water temperature shall be between 100 and 120 degrees Fahrenheit. Sanitary facilities should be within the inmate living and day room areas. Sanitary facilities shall be within reasonable proximity to inmate living and day room areas and accessible by walkways which are covered or other means provided which will protect inmates from inclement weather. A separate toilet should be available for staff. sec.259.617. Temperature Control. Temperature level shall be reasonably maintained between 65 degrees Fahrenheit and 85 degrees Fahrenheit in all occupied areas. sec.259.618. Medical Space and Equipment. Adequate space for first aid equipment shall be provided. Space and equipment for medical examination, treatment and convalescent care shall be provided or provisions contained in the medical services plan. Adequate secure storage for medical supplies and drugs shall be provided. sec.259.619. Life Safety. (a) Provisions shall be made for the rapid removal of occupants by such reliable means as the remote control of doors or by keying all locks to keys readily available to jail staff who are continually on duty and have un dergone emergency drills. There shall be not less than two exits on each floor as remote as practicable from one another. Travel distance between any point on the floor of the facility to an exit shall not exceed 150 feet. Travel distance between any room door and an exit may be increased by 50 feet in fully sprinklered facilities not to exceed 200 feet of total travel distance. (b) Access to exits shall be marked by readily visible signs at all locations where the exit is not readily visible from outer cell doors. (c) Interior stairways serving as emergency exits for new facilities and new additions shall be separated by a 2-hour fire rated enclosure and self-closing fire doors. (d) Hazardous area protection shall be provided as required by sec.263.21 of this title (relating to Life Safety). (e) Self alarming smoke detectors or smoke detectors which are part of an automatic fire detection and alarm system shall be provided for each inmate living and day room area in sufficient numbers to provide prompt warning to occupants and staff. The alarm systems should be tested in accordance with the manufacturer's recommendation, but shall be tested at least on calendar quarterly intervals and test results made a matter of record to include date and results of test, and signature of the person testing the equipment. (f) Plans and drills for emergencies shall be provided as required by sec.sec.263.40-263.44 of this title (relating to Life Safety). (g) A manually operated or automatic smoke removal system shall be provided. (Exception: Single story low-risk facility buildings which provide direct exiting to the exterior of the building from the inmate living and day room areas and whose exit doors are incapable of being locked are not required to provide a smoke removal system.) (h) Fire extinguishers of adequate number and type to meet NFPA 10 shall be provided at appropriate locations. Fire department connections in proximity to the building as approved in writing by local fire official shall be provided. A standpipe and hose system with a one inch non-collapsible or one one-half inches collapsible hose utilizing a minimum of two inches domestic water system shall be provided. (i) All life safety equipment shall be out of reach of inmates, or otherwise secured from unauthorized tampering. At least one self-contained breathing apparatus shall be available and maintained in or near each facility control station. All jail staff shall be trained and quarterly drills conducted in the use of this equipment. A minimum of one unit shall be provided for each building or a multi-building facility. All life safety equipment shall be inspected, maintained and tested by persons qualified to do so (whether under vendor contract, by state or private agency or otherwise) in order that such equipment shall be safe, secure, and fully operative at all times. (j) Records and reports shall be maintained as required by sec.263.70 and sec.263.71 of this title (relating to Life Safety). sec.259.620. Audible Communication. Two-way voice communication shall be available at all times between inmates and corrections officers. sec.259.621. Lighting. Normal lighting sufficient for reading, writing and other activities shall be provided in all inmate occupied areas. Night lights and emergency illumination shall be provided. All corridors, passages to exits, discharging stairways, other means of egress and exit signs shall be continuously illuminated. Adequate exterior lighting shall be provided. sec.259.622. Electrical Power. All electrical wiring shall be in a suitable conduit and comply with local electrical codes or the National Electrical Code. Emergency power shall be provided, as applicable, for electrical door locks, smoke detection, smoke removal, emergency lighting, communication, and ventilation. A non-automatic start generator system may be used. 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 April 4, 1994. TRD-9438815 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: April 28, 1994 Proposal publication date: March 4, 1994 For further information, please call: (512) 463-5505 Temporary Emergency Housing-Tents 37 TAC sec.sec.259.501-259.524 The Texas Commission on Jail Standards adopts repeal of sec.sec.259.501-259. 524, concerning new construction rules, without changes to the proposed text as published in the March 4, 1994, issue of the Texas Register (19 TexReg 1539). Repeal of these rules allows for adoption of new rules for temporary housing. The repeal functions to allow adoption of new rules which will allow counties to construct temporary facilities at reduced cost. No comments were received regarding adoption of the repeals. The repeals are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance, and operation of county jails. 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 April 4, 1994. TRD-9438813 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: April 28, 1994 Proposal publication date: March 4, 1994 For further information, please call: (512) 463-5505 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 3. Income Assistance Services Subchapter KK. Support Documents The Texas Department of Human Services (DHS) adopts the repeal of and new sec.3.3701, concerning Aid to Families with Dependent Children (AFDC) program standard budgetary allowances, without changes to the proposed text as published in the March 8, 1994, issue of the Texas Register (19 TexReg 1644). The justification for the repeal and new section is to increase the budgetary needs allowances for cases certified effective March 1, 1994. The increase is in response to the Family Support Act of 1988 which requires states to evaluate the AFDC needs standard every three years, and adjust it accordingly. The repeal and new section will function by extending AFDC benefits to more needy households and increasing the grants to currently eligible households. No comments were received regarding adoption of the repeal and new section. 40 TAC sec.3.3701 The repeal is adopted under the Human Resources Code, Title 2, Chapters 22 and 31, which provides the department with the authority to administer public and financial assistance programs. The repeal implements the Human Resources Code, sec.22.001 and sec.31.003. 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 April 8, 1994. TRD-9438849 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: May 1, 1994 Proposal publication date: March 8, 1994 For further information, please call: (512) 450-3765 The new section is adopted under the Human Resources Code, Title 2, Chapters 22 and 31, which provides the department with the authority to administer public and financial assistance programs. The new section implements the Human Resources Code, sec.22.001 and sec.31. 003. 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 April 8, 1994. TRD-9438850 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: May 1, 1994 Proposal publication date: March 8, 1994 For further information, please call: (512) 450-3765 Subchapter G. Resources 40 TAC sec.3.704 The Texas Department of Human Services (DHS) adopts an amendment to sec.3. 704, concerning types of resources that are countable in determining eligibility of applicants for and recipients of Aid to Families with Dependent Children (AFDC) program benefits, without changes to the proposed text as published in the March 8, 1994, issue of the Texas Register (19 TexReg 1644). The justification for the amendment is to exempt personal property, retained for business purposes, from consideration in determining AFDC eligibility. DHS is adopting the amendment in its Income Assistance Services rule chapter in response to a federal policy interpretation. This change will make the policy the same in the AFDC and Food Stamp programs. The amendment will function by deleting conflicting resource policies in the AFDC and Food Stamp programs and simplifying the eligibility determination process. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 31, which provides the department with the authority to administer public and financial assistance programs. The amendment implements the Human Resources Code, sec.22.001 and sec.31.003. 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 April 8, 1994. TRD-9438848 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: May 1, 1994 Proposal publication date: March 8, 1994 For further information, please call: (512) 450-3765