Part I.
Texas Department of Human Services
Chapter 19.
Nursing Facility Requirements for Licensure and Medicaid Certification
The Texas Department of Human Services (DHS) adopts the repeal of
§19.2147; amendments to §§19.1, 19.101, 19.201, 19.204, 19.210,
19.212, 19.214, 19.216, 19.326, 19.401, 19.403, 19.408, 19.415, 19.502,
19.503, 19.601, 19.602, 19.801, 19.1001, 19.1010, 19.1101, 19.1104, 19.1912,
19.1918, 19.1920, 19.1921, 19.2002, 19.2004, 19.2008, 19.2102, 19.2104,
19.2106, 19.2110, 19.2112, 19.2146, 19.2308, 19.2320; and new 19.205, 19.209,
19.2111, 19.2114, 19.2115, 19.2147, and 19.2148, concerning Nursing Facility
Requirements for Licensure and Medicaid Certification. The repeal of §19.2147;
amendments to §§19.1, 19.201, 19.204, 19.210, 19.212, 19.216,
19.326, 19.401, 19.403, 19.408, 19.415, 19.503, 19.601, 19.801, 19.1001,
19.1010, 19.1101, 19.1912, 19.1918, 19.1920, 19.1921, 19.2002, 19.2004,
19.2008, 19.2102, 19.2146, 19.2308, 19.2320; and new §§19.205,
19.209, 19.2111, 19.2114, 19.2115, and 19.2147 are adopted without changes
to the proposed text published in the November 7, 1997, issue of the
The justification for the repeals, amendments, and new sections is that
the department is implementing new legislation which gives DHS additional
authority to deny, suspend, or revoke the licenses of providers of poor quality
care and also provides greater enforcement remedies for providers who violate
licensure rules. Texas nursing facility residents will be better protected
through these amendments.
The amendments and new sections will function by implementing the changes
to the Health and Safety Code mandated by major parts of Senate Bill 190
and Senate Bill 118 passed during the 75th legislative session and by making
other minor changes.
The department received the following comments from Advocates for Nursing
Home Reform, the National Committee to Preserve Social Security and Medicare,
the Texas Health Care Association, the Texas Dietetic Association, the American
Association of Retired Persons, Texas Advocates for Nursing Home Residents,
the Texas Association of Homes and Services for the Aged, the Texas Association
of Licensed Facility Administrators and individuals at the December 3, 1997,
public hearing and during the comment period:
Comment: Numerous commenters expressed concern about the term "willful"
in the proposed definition of "abuse" because it sets a very high standard
for proving culpability in cases of alleged abuse. Retaining the former definition
which contains the terms "knowingly" and "recklessly" will provide broader
protection for the residents.
Response: The department concurs and will retain the current language.
Comment: Regarding §19.101, since the definitions for abuse, neglect
and misappropriation have changed, a new letter to nursing facilities (NFs)
advising them on when to report abuse, neglect and misappropriation of resident
property is needed. The current letter of instruction is inconsistent with
the proposed change in definitions.
Response: The department's response to the previous comment will make a
new letter unnecessary.
Comment: Numerous commenters asked to retain the language proposed to be
deleted at §19.502, regarding notifying the department when a facility
is planning to discharge a resident with less than 30 days notice. The commenters
stated that the current rule has served as a deterrent to unnecessary immediate
discharges.
Response: The department concurs and will retain the current language.
Comment: Retain the current language at §19.1912(e)(1)(C) regarding
starting a new medication sheet after a resident returns to a facility from
a brief hospitalization. The current language provides some hope that staff
will be actively aware of what medications a readmitted resident is to have.
Response: The department does not concur and will adopt the rule as proposed.
The deleted language requires nursing staff to spend time on an unnecessary
task: copying a medication record on to a new sheet. Deleting the requirement
will allow nursing staff to make a notation of the hospitalization, delete
any discontinued medications, add any new medications prescribed as a result
of the hospitalization, and continue the previously prescribed medications.
This method will actually promote nursing staff's awareness of all medications
of a readmitted resident.
Comment: Regarding §19.1001, adopt the Consumer's Minimum Staffing
Standard for every nursing facility, which includes a full- time RN Director
of Nursing, a full-time RN Assistant Director of Nursing in facilities of
100 beds or more, a full-time RN Director of In-service Education in facilities
of 100 beds or more, an RN nursing supervisor on duty at all times, and the
following ratios: Direct Caregivers (licensed nurse or certified nurse aide)
to resident - day: 1 to 5; evening: 1 to 10; and night: 1 to 15; and Licensed
Nurse to Resident - day: 1 to 15; evening: 1 to 25; and night: 1 to 35.
Response: Nursing facilities in Texas utilize a case-mix system. The impact
of this is that each NF has a different staffing need based on the service
requirements of its residents. This difference in case-mix makes it difficult
to propose any one minimum standard that would be meaningful. However, the
department will study this issue seriously and will make recommendations
prior to the 76th legislative session.
Comment: Change §19.601(a)(1) to require that restrained residents
be observed at least every ten minutes, with restraints released and the
resident repositioned every hour.
Response: The language at §19.601(a)(1) will be retained. The current
language requires that "restraints must be released and the resident repositioned
as needed to prevent deterioration in the resident's condition." The rules
further state that at a minimum restraints should be released and the resident
repositioned every two hours. This rule does not preclude releasing the restraints
more often than every two hours.
Comment: In §19.801, please specify that the full Resident Assessment
Instrument be used, including the Minimum Data Set and the Resident Assessment
Protocols, and that assessment reviews be routinely required every three
months.
Response: The current rules require the above. No changes are necessary.
Comment: The workgroup's consensus document includes, at §19.210(a)(2),
the requirement that a "change in the owner holding the facility license"
is a change in ownership which requires the submission of a full license
application. The proposed rule omits this language. We therefore recommend
modifying §19.210(a) to reflect the consensus document. In this regard,
it may be necessary to add a provision to §19.2308 indicating that among
the requirements to transfer ownership is the full re-licensure of the new
owner. The functional definition of a "change in ownership" should be consistent
in both §19.210 and §19.2308.
Response: The new wording does not reflect a change in the meaning of this
rule. Draft subparts (a)(1) and (2) were combined to clarify that the department
considers a change of ownership to be a change of 50% or more in the ownership
of the business organization that is licensed to operate the facility, or,
if the entity licensed to operate the facility is an actual person rather
than some type of business entity, a change from that person to either another
person or a business organization. The functional definition of "change of
ownership" is consistent in §19.210 and §19.2308.
Comment: Add the sentence "Each day of a continuing violation constitutes
a separate violation" to §19.2112(f) as the second sentence in that
subsection, immediately after the sentence "Administrative penalties may
be levied for each violation found in a single survey." This sentence was
dropped from the workgroup's consensus document.
Response: The department has made the suggested change.
Comment: §19.214(a)(4) carries forward the outdated phrase "applicant,
manager or affiliate." Change this to "person."
Response: The department has made the suggested change.
Comment: §19.1104(a), regarding Dietary Consultant Requirements, needs
further modification to satisfy fully the mandate of Senate Bill 190, which
required, at §242.403, "nutrition services...in scheduled consultation
with (a licensed dietitian) as frequently and for such time as the department
shall determine necessary to assure each resident a diet that meets the daily
nutritional and special dietary needs of each resident." Therefore, we recommend
the following changes to the first sentence of the proposed language:
"The facility must ensure that a qualified dietitian is available as frequently
and for such time as is necessary to assure each resident a diet that meets
the daily nutritional and special dietary needs of each resident, based upon
the acuity and clinical needs of the resident."
Response: The department concurs and has made the suggested change.
Comment: The department should supply the bimonthly facility compliance
record which §19.1921(e)(3)(A) requires a facility to post.
Response: The department does not concur and will propose that the facility
will be responsible for the record.
Comment: Regarding §19.101 and §19.2110, change the definition
of threatened violation to more closely follow the statute in Section 242.063(a)(1
) and (2) so that it reads,"a situation which, unless immediate steps are
taken to correct, the department has reason to believe creates a threat of
injury or harm to a resident's health and safety."
Response: The proposed language was agreed upon in the SB 190 workgroup.
The department will retain the proposed language.
Comment: Regarding §19.201(f), clarification is needed that based
on the applicant's personal judgement he/she is signing the sworn affidavit
of a satisfactory compliance history. Add to this section; "the applicant
swears or affirms that in his personal judgement."
Response: The actual language of the affidavit on the application, which
includes the affidavit of compliance history, is: My name is (person's name).
I am over the age of 18, legally competent and in all respects qualified
and authorized to make this affidavit. The facts set forth in the foregoing
application are true and correct. I understand that submission of false information
in the foregoing application will constitute grounds for denial, suspension,
or revocation of my nursing facility license.
The department needs to receive accurate information so the application
can be properly processed and evaluated. It is the responsibility of the
applicant to be sure the information on the application is true and correct.
If the applicant questions whether the information is true and correct, he
should resolve the questions or verify the information before signing the
affidavit.
Comment: Regarding §19.204 (c), the wording of this section for additional
background information is too vague. It specifies that "at the request of
DHS, an applicant or license holder must provide to the department any additional
background information within 30 days of the request." This rule needs to
specify that additional information as outlined by the application process
can be requested.
Response: The department retains the right to request any and all information
it deems necessary in investigating the background of an applicant. The language
will be retained as proposed.
Comment: Regarding §19.205 (2), which proposes that all facilities
must complete the supplemental licensure application information form and
submit it to the Licensing Section of Long Term Care-Regulatory within 90
days. Instead of having the supplementation due within 90 days of the effective
date of the regulation, we recommend that each license holder submit supplemental
information at the time of renewal. At the end of item (2) delete "within
90 days" and add "at the time of renewal."
Response: The department does not concur. The recommendation above would
take two years to implement because licenses are renewed every two years.
All facilities must comply with the requirements of SB 190 as soon as possible.
Comment: Regarding §19.209 (a), the section on exclusion from licensure
for two to ten years should only be applied when the failure is persistent
and permeating throughout the operation. Add to the end of (a) "and this
failure is persistent and permeating throughout the operation."
Response: The SB 190 workgroup fully discussed the language suggested above,
but agreed upon the proposed language instead. The department will retain
the proposed language.
Comment: Regarding §19.214 (a)(1)(A) and (B), a history of satisfactory
compliance should be determined by conditions over the five-year period and
not just a single incident or an isolated snapshot of the facility. The focus
should be on the cumulative history and not a single violation. The department
should look to see if there is a pattern of threat or a failure to fix problems
and not a single violation. Other remedies are available to the department
(i.e. revocation of a license) if there is a situation that warrants immediate
remedies. Change (A) and (B) to reflect a pattern rather than a single incident.
Response: The department does not concur. A single violation is a part
of a facility's compliance history, and as such, the department needs be
aware of it. The department will retain the proposed language.
Comment: Regarding §19.214 (a)(1)(E), what is a "reasonable period
of time?" This requirement should be more specific and tied to deadlines
in the rules that are in accordance with promulgated guidelines.
Response: The department concurs and will change "reasonable period of
time" to "an acceptable period of time, as specified in the plan of correction
or credible allegation of compliance, whichever is appropriate."
Comment: Regarding §19.214 (a)(7)(B), this section should be limited
to imposed (and not proposed) federal or state nursing facility sanctions
or penalties. In item (c) of this section it states that only final actions
are considered for the purposes of (a) (7). We agree with this and recommend
that only final actions be reported. Add the word "final actions" at the
beginning of (B).
Response: The department does not concur. The items listed under §19.214(a)(7)
are instances for which the department may deny a license. As part of the
decision-making process, the department needs to know if a facility has had
sanctions or penalties proposed.
Comment: Regarding §19.401(b), the Statement of Resident Rights, the
list of rights should follow the language in the bill for clarity. The bill
speaks to residents not giving up their constitutional, civil, and legal
rights. The proposed language is "You, the resident do not give up any rights
when you enter a nursing facility." Change the wording to read: "You the
resident do not give up constitutional, civil, and legal rights when you
enter a nursing facility."
Also, resident right number 1 "to all care necessary for you to have the
highest possible level of health" is not in the statute. This concept follows
a rule from the OBRA statute and is already in state and federal rules. Delete
number 1 from the list of resident rights.
There was discussion during the workgroup to incorporate all resident rights
lists into this list. The department's list of resident rights needs to be
an accumulation of all resident rights legislation that has been passed so
the facility will only have to hand out one list of resident rights instead
of multiples. This will assist the resident in understanding their rights.
Has this been accomplished so facilities can give residents one list?
Response: The first two points were raised in the SB 190 workgroup. The
consensus of the group was that "all rights" is a simpler and more easily
understood way of saying "constitutional, civil, and legal rights." The first
right listed is a paraphrasing of the OBRA statute, and as such, the department
wishes to retain it as proposed. A consolidation of all rights has not been
accomplished at this time, but may occur when the Texas Department on Aging
completes its listing of rights pursuant to the revisions of Chapter 102
of the Human Resources Code.
Comment: Regarding §19.1921(e)(4), what is the summary required in
this rule as "non-technical language prepared by DHS?"
Response: The summary is Licensure Form 3630.
Comment: Regarding §19.2008, we recommend that the department encourage
the complainant to identify himself/herself so the department can provide
a follow-up on the complaint and obtain additional information if necessary.
We also suggest that the following language from the SB 190 statute, found
at §242.551(b), be added so that the department will encourage persons
making an oral complaint to also submit a written, signed complaint: "The
department shall encourage a person who makes an oral complaint to submit
a written, signed complaint."
Response: The department does not disagree with the comments; however,
they pertain more to TDHS's internal procedures than to rule language. As
to the first comment, the department already encourages individuals to identify
themselves upon initial contact. The other comment will be pilot-tested.
Comment: Regarding §19.2110, Referral to the Attorney General, add
language from Appendix Q that the facility has the opportunity to correct.
The referral for injunctions and restraining orders would occur if the facility
were unable or not willing to comply with the requirements of participation.
Response: The department does not concur. Senate Bill 190 does not contain
the opportunity to correct in relation to a referral to the Attorney General.
Comment: Regarding §19.2112, to effectively implement the administrative
penalties system that is being proposed, we suggest that a comprehensive
set of guidelines be developed. These guidelines can provide department staff
the tools they need to implement a system that is consistent throughout the
state.
Response: The department is developing a set of guidelines which should
be available by February 1998.
Comment: Regarding §19.2114(d)(1)(B), the words "serious threat to
health and safety of resident" and "substantially limits the facility's capacity
to provide care" are not defined. Add definitions to the above phrases.
Response: The department does not wish to define the two terms listed above.
In order to protect the department's ability to address the wide range of
circumstances which might occur in one of Texas' 1100 NFs, it is important
that the terms be subject to broad interpretation.
Comment: Regarding §19.2115, direction is needed on the use of amelioration
of fines. Add the following language to clarify the amelioration of violation
section: "If the facility has a history of correcting violations in a timely
fashion, the Commissioner will allow amelioration of the fine. The department
will direct the facility to use appropriate funds to correct the violation
in lieu of assessing an administrative penalty."
Response: Many factors will be given consideration when making the decision
to allow amelioration; your recommendation will be one of those factors.
However, each situation will be different and the department does not want
to limit in any way the Commissioner's discretion to use the amelioration
of fines.
Comment: Regarding §19.2320(e)(2)(C), the wording in this item could
require the nursing facility to obtain a prior-authorization for transport
for everyone with nonemergency ambulance transportation needs. Some patients
will require medical transportation indefinitely and prior-authorization
would be unnecessary. The Texas Department of Health acknowledges this and
does allow for an annual prior- authorization. Add the following sentence
to the end of item (C): " For the resident that has a chronic or permanent
medical condition that will require transportation by way of ambulance indefinitely,
TDH shall grant "permanent certificate of permission."
Response: The department does not concur. Details about the prior- authorization
procedure will be contained in the Medicaid Provider Manual, and therefore,
are not needed in the rule.
Comment: The definition of "controlling person" and the language at §19.2116(b)
regarding administrative penalties poses a problem to the extent that a licensed
facility administrator could possibly be a "person in a position of actual
control or authority with respect to a nursing facility" and also could be
said to be a "managing employee of a licensed nursing facility." If so, then
an administrator could be twice penalized for a single act of omission: the
administrator could be subject to administrative penalties under §19.2112
and under the sanctions in the regulatory program for licensed facility administrators
established by Senate Bill 84, currently found at 42 TAC §241.11 and
§241.20. This effectively puts the administrator in double jeopardy.
Any and all administrative penalties against administrators should be assessed
only through the regulatory scheme set in place under Senate Bill 84. We
seek a specific exemption in §19.2112 for administrators or a statement
in the adoption of proposed rules to the effect that any and all potential
disciplinary actions, including the possibility of administrative penalties,
against administrators will be conducted exclusively according to the requirements
of Senate Bill 84 and rules implemented under that legislation.
Response: Both the definition of "controlling person" and §19.2112
were taken directly from statute. As such, the department cannot exempt administrators
from their provisions.
In addition, the department made changes to several sections. In §19.101,
Definitions, the department has deleted the proposed language of abuse, misappropriation
of resident property, and neglect, and added the former definitions of abuse,
misappropriation of funds, and neglect. In §19.214(a)(1), the department
has changed the comma after nursing home regulations to a period and capitalized
the word "in." In §19.602(d) the phone number is now 1-800-458-9858.
In both §19.2104 and §19.2106 the reference in (a)(2) to §19.214(a)(2)-(6)
now reads §19.2112(a)(2)-(6) of this title (relating to Administrative
Penalties). In §19.2110, the department deleted "it" in the first sentence
to clarify the sentence. In §19.2112(i) the department deleted "or"
in the first sentence to correct a
Texas Register
error that left out the deletion in the proposal. In §19.2148
the department corrected the reference to 1 TAC Chapter 163 that was erroneously
deleted by the
Texas Register
.
Subchapter A. Basis and Scope
40 TAC §19.1
The amendment is adopted under the Health and Safety Code,
Chapter 242, which provides the department with the authority to license
nursing facilities; under the Human Resources Code, Title 2, Chapters 22
and 32, which authorizes the department to administer public and medical
assistance programs; and under Texas Government Code §531.021, which
provides the Health and Human Services Commission with the authority to administer
federal medical assistance funds.
The amendment implements the Health and Safety Code, §§242.001-
242.804, and the Human Resources Code, §§22.001-22.030 and §§32.001-32.042.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
28, 1998.
TRD-9801297
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: March 1, 1998
Proposal publication date: November 7, 1997
For further information, please call: (512) 438-3765
40 TAC §19.101
The amendment is adopted under the Health and Safety Code,
Chapter 242, which provides the department with the authority to license
nursing facilities; under the Human Resources Code, Title 2, Chapters 22
and 32, which authorizes the department to administer public and medical
assistance programs; and under Texas Government Code §531.021, which
provides the Health and Human Services Commission with the authority to administer
federal medical assistance funds.
The amendment implements the Health and Safety Code, §§242.001-
242.804, and the Human Resources Code, §§22.001-22.030 and §§32.001-32.042.
§19.101. Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
Abuse
- Any act, failure to act, or incitement to act done
willfully, knowingly, or recklessly through words or physical action which
causes or could cause mental or physical injury or harm or death to a resident.
This includes verbal, sexual, mental/psychological, or physical abuse, including
corporal punishment, involuntary seclusion, or any other actions within this
definition.
(A)
"Involuntary seclusion" - Separation of a resident
from others or from his room against the resident's will or the will of the
resident's legal representative. Temporary monitored separation from other
residents will not be considered involuntary seclusion and may be permitted
if used as a therapeutic intervention as determined by professional staff
and consistent with the resident's plan of care.
(B)
"Mental/psychological abuse" - Mistreatment within
the definition of "abuse" not resulting in physical harm, including, but
not limited to, humiliation, harassment, threats of punishment, deprivation,
or intimidation.
(C)
"Physical abuse" - Physical action within the definition
of "abuse," including, but not limited to, hitting, slapping, pinching, and
kicking. It also includes controlling behavior through corporal punishment.
(D)
"Sexual abuse" - Any touching or exposure of the
anus, breast, or any part of the genitals of a resident without the voluntary,
informed consent of the resident and with the intent to arouse or gratify
the sexual desire of any person and includes but is not limited to sexual
harassment, sexual coercion, or sexual assault.
(E)
"Verbal abuse" - The use of any oral, written, or
gestured language that includes disparaging or derogatory terms to a resident
or within the resident's hearing distance, regardless of the resident's age,
ability to comprehend, or disability.
Controlling person
- A person with the ability, acting alone
or in concert with others, to directly or indirectly, influence, direct,
or cause the direction of the management, expenditure of money, or policies
of a nursing facility or other person. A controlling person does not include
a person, such as an employee, lender, secured creditor, or landlord, who
does not exercise any influence or control, whether formal or actual, over
the operation of a facility. A controlling person includes:
(A)
a management company, landlord, or other business
entity that operates or contracts with others for the operation of a nursing
facility;
(B)
any person who is a controlling person of a management
company or other business entity that operates a nursing facility or that
contracts with another person for the operation of a nursing facility; and
(C)
any other individual who, because of a personal,
familial, or other relationship with the owner, manager, landlord, tenant,
or provider of a nursing facility, is in a position of actual control or
authority with respect to the nursing facility, without regard to whether
the individual is formally named as an owner, manager, director, officer,
provider, consultant, contractor, or employee of the facility.
Misappropriation of funds
- The taking, secretion, misapplication,
deprivation, transfer, or attempted transfer to any person not entitled to
receive any property, real or personal, or anything of value belonging to
or under the legal control of a resident without the effective consent of
the resident or other appropriate legal authority, or the taking of any action
contrary to any duty imposed by federal or state law prescribing conduct
relating to the custody or disposition of property of a resident.
Neglect
- A deprivation of life's necessities of food, water,
or shelter, or a failure of an individual to provide services, treatment,
or care to a resident which causes or could cause mental or physical injury,
or harm or death to the resident.
Person
- An individual, firm, partnership, corporation, association,
joint stock company, limited partnership, limited liability company, or any
other legal entity, including a legal successor of those entities.
Threatened violation
- A situation which, unless immediate
steps are taken to correct, may cause injury or harm to a resident's health
and safety.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of the Secretary of State on January
28, 1998.
TRD-9801298
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: March 1, 1998
Proposal publication date: November 7, 1997
For further information, please call: (512) 438-3765
40 TAC §§19.201, 19.204, 19.205, 19.209, 19.210, 19.212, 91.214, 91.216
The amendments and new sections are adopted under the Health
and Safety Code, Chapter 242, which provides the department with the authority
to license nursing facilities.
The amendments and new sections implement the Health and Safety Code, §§242.001-242.804.
§19.214. Criteria for Denying a License or Renewal of a License.
(a)
The Texas Department of Human Services (DHS) may deny
an initial license or refuse to renew a license if an applicant, or any person
required to submit background and qualification information:
(1)
does not have a satisfactory history of compliance with
state and federal nursing home regulations. In determining whether there
is a history of satisfactory compliance with federal or state regulations,
DHS at a minimum may consider:
(A)
whether any violation resulted in significant harm or
a serious and immediate threat to the health, safety, or welfare of any resident;
(B)
whether the person promptly investigated the circumstances
surrounding any violation and took steps to correct and prevent a recurrence
of a violation;
(C)
the history of surveys and complaint investigation findings
and any resulting enforcement actions;
(D)
repeated failure to comply with regulation;
(E)
inability to attain compliance with cited deficiencies
within an acceptable period of time as specified in the plan of correction
or credible allegation of compliance, whichever is appropriate;
(F)
the number of violations relative to the number of facilities
the applicant or any other person named in §19.201(e) of this title
(relating to Criteria for Licensing) has been affiliated with during the
last five years; and
(G)
any exculpatory information deemed relevant by DHS;
(2)
has committed any act described in §19.2112(a)(2)-(6)
of this title (relating to Administrative Penalties);
(3)
violated Chapter 242 of the Texas Health and Safety
Code in either a repeated or substantial manner;
(4)
aids, abets, or permits a substantial violation described
in paragraph (3) of this subsection about which the person had or should
have had knowledge;
(5)
fails to provide the required information and facts
and/or references;
(6)
fails to pay the following fees, taxes, and assessments
when due:
(A)
licensing fees as described in §19.216 of this title
(relating to License Fees);
(B)
reimbursement of emergency assistance funds within one
year from the date on which the funds were received by the trustee in accordance
with the provisions of §19.2116(e) and (f) of this title (relating to
Involuntary Appointment of a Trustee); or
(C)
franchise taxes;
(7)
discloses any of the following actions within
the five-year period preceding the application:
(A)
operation of a facility that has been decertified and/or
had its contract canceled under the Medicare or Medicaid program in any state;
(B)
federal or state nursing facility sanctions or penalties,
including, but not limited to, monetary penalties, downgrading the status
of a facility license, proposals to decertify, directed plans of correction
or the denial of payment for new Medicaid admissions;
(C)
state or federal criminal convictions for any offense
that provides a penalty of incarceration;
(D)
unsatisfied final judgments;
(E)
eviction involving any property or space used as a facility
in any state; or
(F)
suspension of a license to operate a health care facility,
long- term care facility, personal care facility, or a similar facility in
any state.
(b)
DHS will not issue a license to an applicant to operate
a new facility if the applicant discloses any of the following actions during
the five-year period preceding the application:
(1)
revocation of a license to operate a health care facility,
long- term care facility, personal care facility, or similar facility in
any state;
(2)
debarment or exclusion from the Medicare or Medicaid
programs by the federal government or a state; or
(3)
a court injunction prohibiting the applicant or manager
from operating a facility.
(c)
Only final actions are considered for purposes of subsections
(a)(7) and (b) of this section. An action is final when routine administrative
and judicial remedies are exhausted. All actions, whether pending or final,
must be disclosed.
(d)
If an applicant for a new license owns multiple facilities,
the overall record of compliance in all of the facilities will be examined.
Denial of an application for a new license will not preclude the renewal
of licenses of other of the applicant's facilities with satisfactory records.
(e)
If DHS denies a license or refuses to issue a renewal
of a license, the applicant or licensee may request an administrative hearing.
Administrative hearings are held under the provisions of the Administrative
Procedures Act (APA), Title 10 of the Texas Government Code, §§2001.051
et seq, and DHS's formal hearing rules in §§79.1601 - 79.1614 of
this title (relating to Formal Hearings).
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
28, 1998.
TRD-9801299
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: March 1, 1998
Proposal publication date: November 7, 1997
For further information, please call: (512) 438-3765
40 TAC §19.326
The amendment is adopted under the Health and Safety Code,
Chapter 242, which provides the department with the authority to license
nursing facilities.
The amendment implements the Health and Safety Code, §§242.001-
242.804.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
28, 1998.
TRD-9801300
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: March 1, 1998
Proposal publication date: November 7, 1997
For further information, please call: (512) 438-3765
40 TAC §§19.401, 19.403, 19.408, 19.415
The amendments and new section are adopted under the Health
and Safety Code, Chapter 242, which provides the department with the authority
to license nursing facilities; under the Human Resources Code, Title 2, Chapters
22 and 32, which authorizes the department to administer public and medical
assistance programs; and under Texas Government Code §531.021, which
provides the Health and Human Services Commission with the authority to administer
federal medical assistance funds.
The amendments and new section implement the Health and Safety Code, §§242.001-242.804,
and the Human Resources Code, §§22.001-22.030 and §§32.001-32.042.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
28, 1998.
TRD-9801301
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: March 1, 1998
Proposal publication date: November 7, 1997
For further information, please call: (512) 438-3765
40 TAC §19.502, §19.503
The amendments are adopted under the Human Resources Code,
Title 2, Chapters 22 and 32, which authorizes the department to administer
public and medical assistance programs; and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The amendments implement the Human Resources Code, §§22.001-
22.030 and §§32.001-32.042.
§19.502. Transfer and Discharge in Medicaid-certified Facilities.
(a)-(d)
(No change.)
(e)
Timing of the notice.
(1)
(No change.)
(2)
The requirements described in paragraph (1) of this
subsection and subsection (g) of this section do not have to be met if the
resident, responsible party, or family or legal representative requests the
transfer or discharge.
(3)
(No change.)
(4)
When an immediate involuntary transfer or discharge
as specified in subsection (b)(3) or (4) of this section, is contemplated,
unless the discharge is to a hospital, the facility must:
(A)
immediately call the staff of the Quality Assurance Review
and Investigations Section of the Texas Department of Human Services' (DHS's)
state office to report their intention to discharge; and
(B)
submit the required physician documentation regarding
the discharge.
(f)-(g)
(No change.)
(h)
Notice of relocation to another room. Except in an emergency,
the facility must notify the resident and either the responsible party or
the family or legal representative at least five days before relocation of
the resident to another room within the facility. The facility must prepare
a written notice which contains:
(1)-(3)
(No change.)
(i)
Fair hearings.
(1)
Individuals who receive a discharge notice from a facility
have 10 days to appeal. If the recipient appeals, he may remain in the facility,
except in the circumstances described in subsections (b)(5) and (e)(3) of
this section, until the hearing officer makes a final determination. Vendor
payments and eligibility will continue until the hearing officer makes a
final determination. If the recipient has left the facility, Medicaid eligibility
will remain in effect until the hearing officer makes a final determination.
(2)
When the hearing officer determines that the discharge
was inappropriate, the facility, upon written notification by the hearing
officer, must readmit the resident immediately, or to the next available
bed. If the discharge has not yet taken place, and the hearing officer finds
that the discharge will be inappropriate, the facility, upon written notification
by the hearing officer, must allow the resident to remain in the facility.
The hearing officer will also report the findings to Long Term Care-Regulatory
for investigation of possible noncompliance.
(3)
When the hearing officer determines that the discharge
is appropriate, the resident is notified in writing of this decision. Any
payments made on behalf of the recipient past the date of discharge or decision,
whichever is later, must be recouped.
(j)
Discharge of married residents. If two residents in a
facility are married and the facility proposes to discharge one spouse to
another facility, the facility must give the other spouse notice of his right
to be discharged to the same facility. If the spouse notifies a facility,
in writing, that he wishes to be discharged to another facility, the facility
must discharge both spouses on the same day, pending availability of accommodations.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
28, 1998.
TRD-9801302
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: March 1, 1998
Proposal publication date: November 7, 1997
For further information, please call: (512) 438-3765
40 TAC §19.601, §19.602
The amendments are adopted under the Health and Safety Code,
Chapter 242, which provides the department with the authority to license
nursing facilities; under the Human Resources Code, Title 2, Chapters 22
and 32, which authorizes the department to administer public and medical
assistance programs; and under Texas Government Code §531.021, which
provides the Health and Human Services Commission with the authority to administer
federal medical assistance funds.
The amendments implement the Health and Safety Code, §§242.001-
242.804, and the Human Resources Code, §§22.001-22.030 and §§32.001-32.042.
§19.602. Incidents of Abuse and Neglect Reportable to the Texas Department of Human Services (DHS) by Facilities.
(a)
Any facility staff member who has cause to believe that
the physical or mental health or welfare of a resident has been or may be
adversely affected by abuse or neglect caused by another person must report
the abuse or neglect. Facility staff must also report conduct or conditions
resulting in:
(1)
exploitation of residents;
(2)
serious accidental injury to residents; or
(3)
hospitalization of residents.
(b)
Each employee of a facility must sign a statement which
states:
(1)
the employee may be criminally liable for failure to report
abuses; and
(2)
under the Health and Safety Code, Title 4, §242.133,
the employee has a cause of action against a facility, its owner(s) or employee(s)
if he is suspended, terminated, disciplined, or discriminated or retaliated
against as a result of:
(A)
reporting any action described in subsection (a) of this
section to DHS or a law enforcement agency;
(B)
reporting the abuse or neglect or other complaint to the
person's supervisors; or
(C)
for initiating or cooperating in any investigation or
proceeding of a governmental entity relating to care, services, or conditions
at the nursing facility.
(c)
The statements described in subsection (b) of this section
must be available for inspection by DHS.
(d)
Reports described in subsection (a) of this section are
to be made to the DHS state office, Austin, Texas, at 1-800-458-9858. The
person reporting must make an oral report immediately on learning of the
alleged abuse or neglect.
(e)
The facility must conduct an investigation of the reported
acts in subsection (a) of this section. A written report of the investigation
must be sent no later than the fifth calendar day after the oral report.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
28, 1998.
TRD-9801303
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: March 1, 1998
Proposal publication date: November 7, 1997
For further information, please call: (512) 438-3765
40 TAC §19.801
The amendment is adopted under the Human Resources Code, Title
2, Chapters 22 and 32, which authorizes the department to administer public
and medical assistance programs; and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The amendment implements the Human Resources Code, §§22.001-
22.030 and §§32.001-32.042.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
28, 1998.
TRD-9801304
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: March 1, 1998
Proposal publication date: November 7, 1997
For further information, please call: (512) 438-3765
40 TAC §19.1001, §19.1010
The amendments are adopted under the Health and Safety Code,
Chapter 242, which provides the department with the authority to license
nursing facilities; under the Human Resources Code, Title 2, Chapters 22
and 32, which authorizes the department to administer public and medical
assistance programs; and under Texas Government Code §531.021, which
provides the Health and Human Services Commission with the authority to administer
federal medical assistance funds.
The amendments implement the Health and Safety Code, §§242.001-
242.804, and the Human Resources Code, §§22.001-22.030 and §§32.001-32.042.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
28, 1998.
TRD-9801305
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: March 1, 1998
Proposal publication date: November 7, 1997
For further information, please call: (512) 438-3765
40 TAC §19.1101, §19.1104
The amendments are adopted under the Health and Safety Code,
Chapter 242, which provides the department with the authority to license
nursing facilities; under the Human Resources Code, Title 2, Chapters 22
and 32, which authorizes the department to administer public and medical
assistance programs; and under Texas Government Code §531.021, which
provides the Health and Human Services Commission with the authority to administer
federal medical assistance funds.
The amendments implement the Health and Safety Code, §§242.001-
242.804, and the Human Resources Code, §§22.001-22.030 and §§32.001-32.042.
§19.1104. Dietary Consultant Requirements.
(a)
The facility must ensure a qualified dietitian is available
as frequently and for such time as is necessary to assure each resident a
diet that meets the daily nutritional and special dietary needs of each resident,
based upon the acuity and clinical needs of the resident. The facility must
ensure that dietary consultant hours are provided, at a minimum, as follows:
(1)-(2)
(No change.)
(b)-(d)
(No change.)
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
28, 1998.
TRD-9801306
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: March 1, 1998
Proposal publication date: November 7, 1997
For further information, please call: (512) 438-3765
40 TAC §§19.1912, 19.1918, 19.1920, 19.1921
The amendments are adopted under the Health and Safety Code,
Chapter 242, which provides the department with the authority to license
nursing facilities; under the Human Resources Code, Title 2, Chapters 22
and 32, which authorizes the department to administer public and medical
assistance programs; and under Texas Government Code §531.021, which
provides the Health and Human Services Commission with the authority to administer
federal medical assistance funds.
The amendments implement the Health and Safety Code, §§242.001-
242.804, and the Human Resources Code, §§22.001-22.030 and §§32.001-32.042.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
28, 1998.
TRD-9801307
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: March 1, 1998
Proposal publication date: November 7, 1997
For further information, please call: (512) 438-3765
40 TAC §§19.2002, 19.2004, 19.2008
The amendments are adopted under the Health and Safety Code,
Chapter 242, which provides the department with the authority to license
nursing facilities.
The amendments implement the Health and Safety Code, §§242.001-
242.804.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
28, 1998.
TRD-9801308
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: March 1, 1998
Proposal publication date: November 7, 1997
For further information, please call: (512) 438-3765
Enforcement Generally
40 TAC §19.2102
The amendment is adopted under the Health and Safety Code,
Chapter 242, which provides the department with the authority to license
nursing facilities; under the Human Resources Code, Title 2, Chapters 22
and 32, which authorizes the department to administer public and medical
assistance programs; and under Texas Government Code §531.021, which
provides the Health and Human Services Commission with the authority to administer
federal medical assistance funds.
The amendment implements the Health and Safety Code, §§242.001-
242.804, and the Human Resources Code, §§22.001-22.030 and §§32.001-32.042.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
28, 1998.
TRD-9801309
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: March 1, 1998
Proposal publication date: November 7, 1997
For further information, please call: (512) 438-3765
40 TAC §§19.2104, 19.2106, 19.2110-19.2112, 19.2114, 19.2115
The amendments and new sections are adopted under the Health
and Safety Code, Chapter 242, which provides the department with the authority
to license nursing facilities.
The amendments and new sections implement the Health and Safety Code, §§242.001-242.804.
§19.2104. Suspension of a License.
(a)
The Texas Department of Human Services (DHS) may suspend
a facility's license when the license holder, or any other person described
in §19.201(e) of this title (relating to Criteria for Licensing), has:
(1)
violated the requirements in either a repeated or substantial
manner; or
(2)
committed any act described in §19.2112(a)(2)-(6)
of this title (relating to Administrative Penalties).
(b)-(e)
(No change.)
§19.2106. Revocation of a License.
(a)
The Texas Department of Human Services (DHS) may revoke
a facility's license when the license holder, or any other person described
in §19.201(e) of this title (relating to Criteria for Licensing), has:
(1)
violated the requirements of the Health and Safety Code,
Chapter 242, or the rules adopted under that chapter, in either a repeated
or substantial manner; or
(2)
committed any act described in §19.2112(a)(2)-(6)
of this title (relating to Administrative Penalties).
(b)
Revocation of a license may occur simultaneously with
any other enforcement provision available to DHS.
(c)
The facility will be notified by certified mail of DHS's
intent to revoke the license, including the facts or conduct alleged to warrant
the revocation. The facility has an opportunity to show compliance with all
requirements of law for the retention of the license as provided in §19.215
of this title (relating to Informal Reconsideration). If the facility requests
an informal reconsideration, DHS will give the license holder a written affirmation
or reversal of the proposed action.
(d)
The facility will be notified by certified mail of DHS's
revocation of the facility's license. The facility has 15 days from receipt
of the certified mail notice to request a hearing in accordance with §§79.1601-79.1614
of this title (relating to Formal Hearings). The revocation will take effect
when the deadline for appeal of the revocation passes, unless the facility
appeals the revocation. If the facility appeals the revocation, the status
of the license holder is preserved until final disposition of the contested
matter. Upon revocation, the license must be returned to DHS.
§19.2110. Referral to the Attorney General.
In this section, "threatened violation" means a situation which, unless
immediate steps are taken to correct, may cause injury or harm to a resident's
health and safety. The Texas Department of Human Services (DHS) may refer
a facility to the attorney general who may petition a district court for:
(1)
a temporary restraining order to restrain a person from
a violation or threatened violation of the requirements or any other law
affecting residents if DHS reasonably believes that the violation or threatened
violation creates an immediate threat to the health and safety of a resident;
(2)
an injunction to restrain a person from a violation
or threatened violation of the requirements or any other law affecting residents
if DHS reasonably believes that the violation or threatened violation creates
a threat to the health and safety of a resident; or
(3)
the assessment of civil penalties under the Texas
Health and Safety Code, §242.065, for a violation that threatens the
health and safety of a resident. DHS recognizes the limited immunity from
civil liability granted to volunteers serving as officers, directors, or
trustees of charitable organizations, under the Charitable Immunity and Liability
Act of 1987 (Texas Civil Practice and Remedies Code, Chapter 84).
§19.2112. Administrative Penalties.
(a)
The Texas Department of Human Services (DHS) may assess
an administrative penalty against a person who:
(1)
violates Chapter 242, Health and Safety Code or a rule,
standard or order adopted or license issued under Chapter 242;
(2)
makes a false statement, that the person knows or
should know is false, of a material fact:
(A)
on an application for issuance or renewal of a license
or in an attachment to the application; or
(B)
with respect to a matter under investigation by DHS;
(3)
refuses to allow a representative of DHS to
inspect:
(A)
a book, record, or file required to be maintained by a
facility; or
(B)
any portion of the premises of a facility;
(4)
willfully interferes with the work of a representative
of DHS or the enforcement of this chapter;
(5)
willfully interferes with a representative of DHS
preserving evidence of a violation of a rule, standard, or order adopted
or license issued under Chapter 242, Health and Safety Code.
(6)
fails to pay a penalty assessed by DHS under chapter
242, Health and Safety Code by the 10th day after the date the assessment
of the penalty becomes final.
(b)
The persons against whom DHS may impose an administrative
penalty include:
(1)
an applicant for a license;
(2)
a license holder;
(3)
a partner, officer, director, or managing employee
of an applicant or a license holder; and
(4)
a person who controls a nursing facility.
(c)
DHS recognizes the limited immunity from civil liability
granted to volunteers serving as officers, directors or trustees of charitable
organizations, under the Charitable Immunity and Liability Act of 1987 (Texas
Civil Practice and Remedies Code, Chapter 84).
(d)
In determining whether a violation warrants an administrative
penalty, DHS considers the facility's history of compliance and whether:
(1)
a pattern or trend of violations exists; or
(2)
the violation is recurrent in nature and type; or
(3)
the violation presents danger to the health and safety
of at least one resident; or
(4)
the violation is of a magnitude or nature that constitutes
a health and safety hazard having a direct or imminent adverse effect on
resident health, safety, or security, or which presents even more serious
danger or harm; or
(5)
the violation is of a type established elsewhere
in DHS's rules concerning licensing standards for long term care facilities.
(e)
In determining the amount of the penalty, DHS considers
at a minimum:
(1)
the gradations of penalties;
(2)
the seriousness of the violation, including the nature,
circumstances, extent, and gravity of the violation and the hazard or potential
hazard to the health and safety of the residents;
(3)
the history of previous violations;
(4)
deterrence of future violations; and
(5)
efforts to correct the violation.
(f)
Administrative penalties may be levied for each violation
found in a single survey. Each day of a continuing violation constitutes
a separate violation. The following table contains the gradations of penalties
in accordance with the relative seriousness of the violation. The penalties
for a violation of the requirement to post notice of the suspension of admissions,
additional reporting requirements found at §19.601(a) of this title
(relating to Resident Behavior and Facility Practice), or residents' rights
cannot exceed $1,000 a day for each violation, unless the violation of a
resident's right also violates a rule in Subchapter H, Quality of Life, or
Subchapter J, Quality of Care.
Figure: 40 TAC 19.2112(f)
(g)
No facility will be penalized because of a physician's
or consultant's nonperformance beyond the facility's control or if documentation
clearly indicates the violation is beyond the facility's control.
(h)
DHS may issue a preliminary report regarding an administrative
penalty. Within 10 days of the issuance of the preliminary report, DHS will
give the facility written notice of the recommendation for an administrative
penalty. The notice will include:
(1)
a brief summary of the violations;
(2)
a statement of the amount of penalty recommended;
(3)
a statement of whether the violation is subject to
correction under §19.2114 of this title (relating to Right to Correct)
and if the violation is subject to correction, a statement of:
(A)
the date on which the facility must file a plan of correction
(POC) to be approved by DHS; and
(B)
the date on which the POC must be completed to avoid assessment
of the penalty; and
(4)
a statement that the facility has a right to
a hearing on the violation, the amount of the penalty, or both.
(i)
Within 20 days after the date on which written notice
of recommended assessment of a penalty is sent to a facility, the facility
must give DHS written consent to the penalty, make a written request for
a hearing, or if the violation is subject to correction, submit a plan of
correction in accordance with §19.2114 of this title. If the facility
does not make a response within the 20-day period, DHS will assess the penalty.
(j)
The procedures for notification of recommended assessment,
opportunity for hearing, actual assessment, payment of penalty, judicial
review, and remittance will be in accordance with Health and Safety Code,
§§242.067 - 242.069. Hearings will be held in accordance with DHS's
formal hearing procedures in Chapter 79 of this title (relating to Legal
Services). Interest on penalties is governed by Health and Safety Code §242.069(g).
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
28, 1998.
TRD-9801310
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: March 1, 1998
Proposal publication date: November 7, 1997
For further information, please call: (512) 438-3765
40 TAC §§19.2146-19.2148
The amendment and new sections are adopted under the Human
Resources Code, Title 2, Chapters 22 and 32, which authorizes the department
to administer public and medical assistance programs; and under Texas Government
Code §531.021, which provides the Health and Human Services Commission
with the authority to administer federal medical assistance funds.
The amendment and new sections implement the Human Resources Code, §§22.001-22.030
and §§32.001-32.042.
§19.2148. Arbitration.
A facility may elect arbitration as provided in 1 TAC Chapter 163 (concerning
Arbitration Procedures for Certain Enforcement Actions of the Department
of Human Resources).
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
28, 1998.
TRD-9801312
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: March 1, 1998
Proposal publication date: November 7, 1997
For further information, please call: (512) 438-3765
Subchapter B. Definitions
Subchapter C. Nursing Facility Licensure Application Process
Subchapter D. Facility Construction
Subchapter E. Resident Rights
Subchapter F. Admission, Transfer, and Discharge Rights in Medicaid-Certified Facilities
Subchapter G. Resident Behavior and Facility Practice
Subchapter I. Resident Assessment
Subchapter K. Nursing Services
Subchapter L. Dietary Services
Subchapter T. Administration
Subchapter U. Inspections, Surveys, and Visits
Subchapter V. Enforcement
Licensing Remedies
Remedies in Medicaid-Certified Facilities