Part I.
Texas Department of Human Services
Chapter 18.
Nursing Facility Administrators
40 TAC §§18.1, 18.11-18.14
The Texas Department of Human Services (DHS) proposes the
repeal of §18.1, concerning introduction; §18.11, concerning adverse
licensure actions; §18.12, concerning violations by an unlicensed person;
§18.13, concerning complaint procedures; §18.14, concerning monitoring
of licenses; and proposes new §18.1, concerning introduction; §18.11,
concerning complaint procedures; §18.12, concerning referral recommendations;
§18.13, concerning schedule of sanctions; and §18.14, concerning
violations by an unlicensed person; in its Nursing Facility Administrators
chapter. The purpose of the repeals and new sections is to comply with Senate
Bill 84, which was passed during the 75th Regular Session of the Texas Legislature
and which transferred all functions, obligations, rights, contracts, records,
and rules of the Texas Board of Nursing Facility Administrators to DHS, effective
September 1, 1997. These rule changes alter the complaint procedures by allowing
a complainant to be heard, and establish information that should be provided
to the complainant and a time frame for the resolution of a complaint. The
grounds for sanctioning an administrator have been expanded to include whether
a deficiency is related to an act or failure to act by the administrator,
and a procedure has been established for the referral of an administrator
for a finding of substandard quality of care during an investigation or survey.
Eric M. Bost, commissioner, has determined that for the first five-year
period the sections are in effect there will be no fiscal implications for
state or local government as a result of enforcing or administering the sections.
Mr. Bost also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of
enforcing the sections will be that the health and safety of nursing facility
residents will be better protected by ensuring the timely and efficient management
of complaints and ensuring appropriate sanctions are initiated against an
administrator for a finding of substandard quality of care and deficiency
citations that are related to an act or failure to act by the administrator.
There will be no effect on small businesses. There is no anticipated economic
cost to persons who are required to comply with the proposed sections.
Questions about the content of this proposal may be directed to Renee Clack
at (512) 231-5800 in DHS's Credentialing Department. Written comments on
the proposal may be submitted to Supervisor, Rules and Handbooks Unit-110,
Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas
78714-9030, within 30 days of publication in the
Texas Register
.
The repeals are proposed under the Texas Health and Safety Code,
Chapter 242, Subchapter I, which authorizes the department to license nursing
facility administrators.
The repeals implement the Texas Health and Safety Code, Chapter 242.301-242.322.
§18.1. Introduction.
§18.11. Adverse Licensure Actions.
§18.12. Violations by an Unlicensed Person.
§18.13. Complaint Procedures.
§18.14. Monitoring of Licenses.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 12, 1998.
TRD-9800407
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: April 15, 1998
For further information, please call: (512) 438-3765
40 TAC §§18.1, 18.11-18.14
The new sections are proposed under the Texas Health and Safety
Code, Chapter 242, Subchapter I, which authorizes the department to license
nursing facility administrators.
The new sections implement the Texas Health and Safety Code, Chapter 242.301-242.322.
§18.1. Introduction.
(a)
Purpose. The purpose of this chapter is to implement the
provisions of Texas Health and Safety Code, Chapter 242, Subchapter I.
(b)
Definitions. The following words and terms, when used
in this chapter, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Abbreviated standard survey - A survey other than a standard
survey that gathers information primarily through resident-centered techniques
on facility compliance with the requirements for participation. An abbreviated
survey may be premised on complaints, a change in ownership, management,
director of nursing, or other indicators of specific concern.
(2)
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.
(3)
Administrative Law Judge - An attorney duly designated
and appointed who conducts hearings under this chapter on behalf of the department.
(4)
Administrator - See definition for "nursing facility
administrator."
(5)
Administrator-in-training (AIT) - An applicant who
is currently undergoing an internship under the auspices of a department-approved,
certified preceptor or through a department-approved college practicum.
(6)
Applicant - A person who applies for licensure under
the Texas Health and Safety Code, Chapter 242, Subchapter I.
(7)
APA - The Administrative Procedure Act, Chapter 2001
of the Texas Government Code.
(8)
Committee - The nine-member Nursing Facility Administrators
Advisory Committee.
(9)
Complaint - An allegation that a licensed nursing
facility administrator has violated one or more provisions of the Texas Health
and Safety Code, Chapter 242, Subchapter I, or rules adopted under that chapter.
(10)
Completed application - The official nursing facility
administrator application forms, fees and all supporting documentation which
meet the criteria set out in §18.3 of this title (relating to Application
Procedures).
(11)
Contested case - A proceeding in accordance with
the APA and this chapter, including but not limited to rule enforcement and
licensing, in which the legal rights, duties, or privileges of a party are
to be determined by the Administrative Law Judge after an opportunity for
an adjudicative hearing.
(12)
Deficiency - A skilled nursing facility or nursing
facility's failure to meet a participation requirement as specified in the
Social Security Act.
(13)
Department - The Texas Department of Human Services
(DHS).
(14)
Equivalency - A level of achievement equivalent
to completion of an educational or training program equal in force, amount,
or value.
(15)
Formal hearing - A hearing or proceeding conducted
under the provisions of the APA.
(16)
Internship - The training period for an Administrator-In-Training
gaining supervised practical experience.
(17)
License - A nursing facility administrator license
or a provisional nursing facility administrator license.
(18)
Licensee - A person who is licensed under the Texas
Health and Safety Code, Chapter 242, Subchapter I.
(19)
Misappropriation of resident property - 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
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.
(20)
NAB - National Association of Boards of Examiners
for Nursing Home Administrators, Inc.
(21)
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.
(22)
Nursing facility - An institution or facility that
is licensed as a nursing facility by the department under the Texas Health
and Safety Code, Chapter 242.
(23)
Nursing facility administrator or administrator
- A person who engages in the practice of nursing facility administration
without regard to whether the person has an ownership interest in the facility
or whether the functions and duties are shared with any other person.
(24)
Party - Each person, governmental agency, or officer
or employee of a governmental agency named by the Administrative Law Judge
as having a justiciable interest in the matter being considered, or any person,
governmental agency, or officer or employee of a governmental agency meeting
the requirements of a party prescribed by applicable law.
(25)
Person - An individual, corporation, partnership,
or other legal entity.
(26)
Practice of nursing facility administration--The
performance of the acts of administering, managing, supervising, or being
in general administrative charge of a nursing facility.
(27)
Practicum - A course of study designed for the preparation
of nursing facility administrators that involves supervision by the college
of the practical application of previously studied theory in a nursing facility
setting.
(28)
Preceptor - A licensed nursing facility administrator
who meets the criteria in §18.6 of this title (relating to Administrators-in-Training).
(29)
Referral - A finding of substandard quality of care
in a nursing facility that requires Long Term Care-Regulatory to report an
administrator to its licensing authority as mandated by the Code of Federal
Regulations.
(30)
Substandard Quality of Care - Any deficiency in
Resident Behavior and Facility Practices, Quality of Life, or Quality of
Care that constitutes: immediate jeopardy to resident health or safety; or,
a pattern of widespread actual harm that is not immediate jeopardy; or, a
widespread potential for more than minimal harm that is not immediate jeopardy,
with no actual harm.
(31)
Standard survey - A periodic, resident-centered
inspection that gathers information about the quality of service furnished
in a facility to determine compliance with the requirements of participation.
(32)
Texas Open Meetings Act - The Government Code, Chapter
551, Subchapters A-G.
(33)
Texas Open Records Act - The Government Code, Chapter
552, Subchapters A-G.
(34)
Year - A calendar year.
§18.11. Complaint Procedures.
(a)
The Texas Department of Human Services (DHS), Credentialing
Department, will receive and investigate complaint allegations against a
licensed nursing facility administrator, including but not limited to, reports
of abuse, neglect, misappropriation of a resident's property, and reports
of violations of Texas Health and Safety Code, Chapter 242, Subchapter I
or DHS's rules adopted under that chapter.
(b)
A person wanting to report a complaint against a licensee
will notify the Credentialing Department by calling (512) 231-5800 (for complaints
only) or writing the department at the following address: Texas Department
of Human Services, Credentialing Department, Mail Code: Y-978, ATTN: Complaint
Investigations Section, P.O. Box 149030, Austin, TX 78714-9030.
(c)
Upon receipt of a complaint, the Credentialing Department
director or designee will send to the complainant, an official form which
the complainant will be requested to complete and return to DHS. DHS will
provide reasonable assistance to an individual wishing to file a complaint
against a licensee.
(d)
DHS will utilize the following form which standardizes
information concerning complaints made about a licensee:
Figure 1: 40 TAC 18.11(d)
(e)
The Credentialing Department director or designee will
receive and prioritize complaint allegations that are made against a licensee
in the following manner:
(1)
Priority one investigations are allegations of physical
abuse, sexual abuse, neglect, death, serious injury, or immediate jeopardy
to resident health or safety. Priority one investigations will be initiated
by the Credentialing Department within 24 hours of receipt or by the next
working day.
(2)
Priority two investigations are allegations of inadequate
resident care that are not life threatening; verbal abuse; or misappropriation
of resident property. Priority two investigations will be initiated within
14 calendar days following receipt of the complaint.
(3)
Priority three investigations are allegations of
misconduct. Priority three investigations will be initiated within 30 calendar
days following receipt of the complaint.
(f)
An investigation of the licensee and complaint allegation
will be conducted by DHS investigative staff to determine compliance with
this rule. The investigation will include contact with the complainant who
will be provided an opportunity to explain the allegations made in the complaint.
(g)
After a complaint is filed against a licensee, the Credentialing
Department will provide the following information to a complainant:
(1)
the assigned case number;
(2)
the projected time requirements for pursuing the
complaint;
(3)
any change in the schedule for pursuing the complaint;
and
(4)
DHS's final disposition of the complaint at the conclusion
of the investigation.
(h)
If special circumstances exist, DHS may utilize the services
of a private investigator to conduct complaint investigations when DHS determines
it would be an efficient and expeditious process. The private investigator
will be obtained by following DHS's usual contracting procedures.
(i)
The investigation will be initiated by no later than 30
calendar days after the date the written complaint is received by DHS.
(j)
The licensee must make all facility books, records, and
other pertinent documents maintained by or on behalf of a facility accessible
to DHS upon request.
(1)
During an investigation, DHS is authorized to photocopy
documents, photograph residents, and use any other recording devices to preserve
evidence.
(2)
Examples of records and documents which may be requested
or photocopied or otherwise reproduced are medical records, including nursing
notes, incident/accident reports, pharmacy records, physician orders, and
bookkeeping records.
(3)
When copies are requested, the facility may charge
DHS at a rate not to exceed the rate charged by DHS for copies. The administrator
will be responsible for providing copies to DHS staff. If copying requires
the records to be removed from the facility, a representative of the facility
will be expected to accompany the records and assure their order and preservation.
(4)
DHS will protect the copies for privacy and confidentiality
in accordance with recognized standards of medical records practice, applicable
state and federal laws, and DHS policy.
(k)
The licensee must not impede an investigation through
the harassment or intimidation of nursing facility employees or residents.
(l)
The Credentialing Department director or designee will
keep an information file on each complaint which will include the following
information:
(1)
all persons contacted in relation to the complaint, which
must include the person who filed the complaint and an explanation for the
allegation;
(2)
a summary of findings made at each step of the complaint
process;
(3)
an explanation of the legal basis and reason for
a complaint that is dismissed, or substantiated; and
(4)
other relevant information.
(m)
The Credentialing Department director or designee will
maintain a schedule of the projected time frames for pursuing a complaint
that must be kept in the information file for the complaint. A change in
the schedule must be recorded in the complaint information file and all parties
to the complaint must be notified not later than seven calendar days after
the date the change is made.
(n)
The Credentialing Department director or designee will
notify all parties of the status of the complaint on a quarterly basis until
final disposition of the complaint, unless notice would jeopardize an undercover
investigation.
(o)
After completion of the investigation, the person completing
the investigation will submit the findings to the Credentialing Department
director or designee. The complaint investigative report will state all relevant
facts and findings obtained during the investigation. The complaint investigative
report, facts, and findings will be presented to the committee for consideration
of adverse licensure action.
(p)
If the committee determines insufficient evidence exists
to support or act upon the complaint, the complaint will be dismissed. Written
notification of the dismissal will be provided to the complainant and licensee
or person against whom the complaint has been filed.
(q)
If the committee determines that there are sufficient
grounds to support the complaint, the committee may initiate a recommendation
for adverse licensure action or any other action as authorized by law.
(r)
The resolution of a complaint will not exceed 90 days
from the date the written complaint is received to the date of the notification
letter that informs the licensee of the department's findings and proposed
actions.
(s)
The commissioner of the Texas Department of Human Services
or designee will report to the Texas Board of Human Services quarterly on
complaints that have been dismissed by DHS.
§18.12. Referrals.
(a)
Long Term Care-Regulatory survey team findings will be
evaluated in each regional office to determine if substandard quality of
care exists and whether deficiency citations from a standard or abbreviated
standard survey are related to the following criteria which are based on
the Standards of Conduct for nursing facility administrators:
(1)
the licensee's failure to be knowledgeable and involved
in the daily management of the facility and its resources to ensure compliance;
(2)
the licensee's failure to respond in a timely manner
when aware of inadequate care or conditions in the facility which results
in actual harm to a resident;
(3)
the licensee's failure to adequately investigate
allegations of abuse, neglect, or misappropriation of a resident's property
and implement appropriate interventions for continued resident protection;
or
(4)
the licensee's failure to establish or utilize effective
delivery systems to promote quality resident care and services.
(b)
The Credentialing Department will receive and evaluate
referrals from Long Term Care- Regulatory when survey findings indicate substandard
quality of care.
(c)
The Texas Department of Human Services, upon consideration
of all factors related to a violation, will impose one or more sanctions
for a statutory or rule violation as set forth in §18.13 of this title
(relating to Schedule of Sanctions).
(d)
The procedures for notification of adverse licensure are
set forth in §18.13(e) of this title (relating to Schedule of Sanctions).
§18.13. Schedule of Sanctions.
(a)
The Texas Department of Human Services (DHS), upon consideration
of all factors related to a violation, will impose one or more of the following
sanctions for statutory or rule violations:
(1)
assessment of an administrative penalty;
(2)
revocation of a license;
(3)
suspension of a license;
(4)
denial of an application to renew a license;
(5)
issuance of a written reprimand to a licensee;
(6)
requirement of a licensee to participate in additional
continuing education programs; or
(7)
placement of a nursing facility administrator's license
on probation.
(b)
The procedures for notification of adverse licensure actions
are set forth in subsection (e) of this section. DHS will initiate sanctions
on any of the following grounds:
(1)
the licensee has wilfully or repeatedly violated a provision
of this subchapter or a rule adopted under this subchapter;
(2)
the licensee has wilfully or repeatedly acted in
a manner inconsistent with the health and safety of the residents of a facility
of which the licensee is an administrator;
(3)
the licensee obtained or attempted to obtain a license
through misrepresentation or deceit or by making a material misstatement
of fact on a license application;
(4)
the licensee's use of alcohol or drugs creates a
hazard to the residents of a facility;
(5)
a judgment of a court of competent jurisdiction finds
that the licensee is mentally incapacitated;
(6)
the licensee has been convicted in a court of competent
jurisdiction of a misdemeanor or felony involving moral turpitude;
(7)
the licensee has been negligent or incompetent in
the licensee's duties as a nursing facility administrator;
(8)
a survey indicates substandard quality of care that
is related to an act or failure to act by the licensee;
(9)
the deficiencies cited during a survey are related
to the licensee's failure to:
(A)
be knowledgeable and involved in the daily management
of the facility and its resources to ensure compliance;
(B)
respond in a timely manner when aware of inadequate care
or conditions in the facility which results in actual harm to a resident;
(C)
adequately investigate allegations of abuse, neglect,
or misappropriation of a resident's property and implement appropriate interventions
for continued resident protection; or
(D)
establish or utilize effective service delivery systems
to promote quality resident care and services.
(c)
DHS will consider the following factors before determining
a sanction for a statutory or rule violation:
(1)
the seriousness of the violation and the harm or potential
harm created to the health and safety of facility residents;
(2)
the economic harm to property or environment caused
by the violation;
(3)
the efforts of the licensee to correct the violation;
and
(4)
the licensee's history of previous violations.
(d)
Probation of sanctions. DHS may probate a sanction and
require the licensee to:
(1)
periodically report on matters that are the basis for
the probation;
(2)
limit practice to only specific areas; or
(3)
obtain continuing education until a satisfactory
degree of skill is attained in those areas that are the basis of the probation.
(e)
Procedures for adverse licensure action.
(1)
If DHS initiates an adverse licensure action, the deputy
commissioner of the Office of Program Integrity or designee will give the
licensee written notice of the reason(s) for the decision to initiate action.
(2)
The deputy commissioner of the Office of Program
Integrity or designee will provide written notification of the opportunity
to a hearing to the licensee in accordance with the provisions of the Administrative
Procedure Act and hearing procedures in Chapter 79, Subchapter Q of this
title (relating to Formal Appeals).
(f)
Opportunity for a hearing. The licensee is entitled to
a hearing in accordance with rules promulgated by the Texas Board of Human
Services before a sanction is imposed under this section.
(g)
Suspension of license for failure to pay child support.
(1)
On receipt of a final court or attorney general's order
suspending a license due to failure to pay child support, the Credentialing
Department director or designee will immediately determine if DHS has issued
a license to the obligator named on the order, and, if a license has been
issued:
(A)
record the suspension of the license in the department's
records;
(B)
report the suspension as appropriate; and
(C)
demand surrender of the suspended license.
(2)
DHS will implement the terms of a final court
or attorney general's order suspending a license without additional review
or hearing. DHS will provide notice as appropriate to the licensee or to
others concerned with the license.
(3)
DHS may not modify, remand, reverse, vacate, or stay
a court or attorney general's order suspending a license issued under the
Family Code, Chapter 232 as added by Acts 1995, 74th Legislature, Chapter
751, §85 and may not review, vacate, or reconsider the terms of an order.
(4)
A licensee who is the subject of a final court or
attorney general's order suspending his or her license is not entitled to
a refund for any fee paid to DHS.
(5)
If a suspension overlaps a license renewal period,
an individual with a license suspended under this section will comply with
the normal renewal procedures in this chapter; however, the license will
not be renewed until paragraphs (7) and (8) of this subsection are met.
(6)
An individual who continues to act as a licensed
nursing facility administrator after the issuance of a court or attorney
general's order suspending the license is liable for the same civil and criminal
penalties provided for engaging in the prohibited activity without a license
or while a license is suspended as any license holder.
(7)
On receipt of a court or attorney general's order
vacating or staying an order suspending a license, the Credentialing Department
director or designee will promptly issue the affected license to the individual
if the individual is otherwise qualified for the license.
(8)
The individual must pay a reinstatement fee set out
in §18.2 of this title (relating to Fees) prior to issuance of the license
under paragraph (7) of this subsection.
(9)
A party may appear in person or be represented by
counsel or other authorized representative.
§18.14. Violations by an Unlicensed Person.
(a)
An individual may not act as a nursing facility administrator
or represent to others that the individual is a nursing facility administrator
unless licensed under the Texas Health and Safety Code, Chapter 242, Subchapter
I.
(b)
An unlicensed person who facilitates or coordinates the
provision of professional services but does not act as a licensed nursing
facility administrator is not in violation of Texas Health and Safety Code,
Chapter 242, Subchapter I.
(c)
If a licensee is under investigation for an alleged statutory
or rule violation and allows a license to expire or voluntarily surrenders
a license before completion of the investigation, the Texas Department of
Human Services (DHS) maintains the authority to issue a written reprimand
and/or assess an administrative penalty against the individual at the conclusion
of the investigation.
(d)
DHS may file suit in its own name and avail itself of
any other action, proceeding, or remedy authorized by law to enjoin a violation
of Texas Health and Safety Code, Chapter 242, Subchapter I or rules adopted
under that chapter.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
January 12, 1998.
TRD-9800408
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: April 15, 1998
For further information, please call: (512) 438-3765
1915(c) Medicaid Home and Community-based Waiver Services for Aged and
Disabled Adults Who Meet Criteria for Alternatives to Nursing Facility Care
40 TAC §§48.6092, 48.6094, 48.6096
The Texas Department of Human Services (DHS) proposes new
§§48.6092, 48.6094, and 48.6096, concerning initiation of Community
Based Alternatives (CBA) home and community support services (HCSS), delay
of Community Based Alternatives (CBA) home and community support services
(HCSS) initiation, and service breaks, in its Community Care for Aged and
Disabled chapter. The purpose of the new sections is to establish provider
standards and performance outcomes for service delivery.
Eric M. Bost, commissioner, has determined that for the first five- year
period the proposed sections will be in effect there will be no fiscal implications
for state or local government as a result of enforcing or administering the
sections.
Mr. Bost also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of
enforcing the sections will be the establishment of the performance outcomes
of timely initiation of service, the use of trained providers, and services
delivered in accordance with the individual plan of care. There will be no
effect on small businesses. There is no anticipated economic cost to persons
who are required to comply with the proposed sections.
Questions about the content of the proposal may be directed to Anita Anderson
at (512) 438-3195 in DHS's Community Care Section. Written comments on the
proposal may be submitted to Supervisor, Rules and Handbooks Unit-124, Texas
Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
The new sections are proposed under the Human Resources Code,
Title 2, Chapters 22 and 32, which provides the department with the authority
to administer public and medical assistance programs 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 new sections implement §§22.001-22.030 and §§32.001-32.042
of the Human Resources Code.
§48.6092. Initiation of Community Based Alternatives (CBA) Home and Community Support Services (HCSS).
In order to initiate CBA HCSS services, the provider agency must:
(1)
negotiate a start date with the case manager for:
(A)
priority status applicants; or
(B)
routine status applicants needing a specific start date
as determined by the case manager;
(2)
initiate waiver services:
(A)
on or before any negotiated start date; or
(B)
within seven calendar days from the effective date on
the Texas Department of Human Services' (DHS's) Notification of CBA Services
form for routine status applicants, if no earlier start date has been negotiated;
and
(3)
ensure that the HCSS registered nurse (RN) provides
the training specified in subparagraphs (A)-(C) of this paragraph to the
attendant in the participant's home, on or before the date of initiation
of service:
(A)
information about the participant's health condition and
how it may affect the performance of tasks;
(B)
tasks to be performed, work schedule, and safety and emergency
procedures; and
(C)
symptoms or changes in the participant's health status
about which the unlicensed person should notify either the RN or the attending
physician.
§48.6094.Delay of Community Based Alternatives (CBA) Home and Community Support Services (HCSS) Initiation.
(a)
The HCSS agency must verbally notify the case manager
by the next Texas Department of Human Services (DHS) work day if services
cannot be initiated:
(1)
within seven calendar days of the effective date entered
on DHS's Notification of CBA Services form, for cases in which a service
initiation date was not negotiated; or
(2)
by the negotiated service initiation date documented
on DHS's Case Information form sent to the HCSS agency by the case manager
as part of the written authorization.
(b)
The HCSS agency must submit DHS's Case Information form
to the case manager confirming verbal agreements by the next DHS work day
of having negotiated a new service initiation date with the case manager.
§48.6096. Service Breaks.
The home and community support services (HCSS) agency must ensure
that any authorized or scheduled personal assistance services are delivered
in accordance with the Individual Service Plan unless the actions specified
in paragraphs (1)-(4) of this section occur:
(1)
services are automatically suspended;
(2)
services are suspended for cause;
(3)
the participant is not at home when services are
scheduled to be delivered; or
(4)
the participant requests that services not be provided
on specific days.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State on January
7, 1998.
TRD-9800252
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: March 15, 1998
For further information, please call: (512) 438-3765
Chapter 821.
Texas Payday Rules
The Texas Workforce Commission proposes new §§821.1-821.6,
821.21-821.28, 821.41-821.46, 821.61-821.63 and 821.81, concerning Payment
of Wages. The proposed rules interpret and clarify the provisions of Texas
Labor Code, Chapter 61, Payment of Wages.
The Commission administers the investigation, determination and collection
of unpaid wages for employees. This program is an administrative alternative
to litigation in Texas courts.
Subchapter A of the proposed rules contains provisions of general application
relating to the title and purpose of the rules, definitions of terms, jurisdiction
and the relation of Texas Labor Code, Chapter 61, to other wage and hour
laws. Subchapter B of the proposed rules interprets and clarifies statutory
provisions relating to the form and delivery of wages, the timeliness of
payment, fringe benefits and commissions, treatment of loans and advances,
and withholding wages. Subchapter C of the proposed rules interprets and
clarifies statutory provisions relating to various stages in the administrative
wage claim process. Subchapter D of the proposed rules addresses the wage
collection process. Finally, Subchapter E of the proposed rules sets out
the Commission's policy on requiring bonds of certain employers.
Randy Townsend, Director of Finance, has determined that for the first
five-year period the rules are in effect, there will be no fiscal implications
for state or local government as a result of enforcing or administering the
rules.
LaSha Barefield, Deputy Director of Labor Law Enforcement, Education &
Regulation, has determined that for each year of the first five years the
rules are in effect, the public benefit anticipated as a result of enforcing
the rules will be to provide a clear understanding of the rules implementing
and interpreting the provisions of the Texas Labor Code, Chapter 61, Payment
of Wages.
There will be no effect on small businesses.
There are no anticipated economic costs to persons who are required to
comply with the proposed rules.
Comments on the proposed rules may be submitted to LaShea Barefield, Labor
Law Enforcement, Education and Regulation Department, Texas Workforce Commission,
101 East 15th Street, Austin, Texas 78778-0001; telephone number (512) 837-9559;
facsimile number (512) 834-3632; e-mail address LaShea.Barefield@twc.state.tx.us.
The Commission will schedule a public hearing on the proposed rules to
follow the Commission's regularly scheduled meeting on February 10, 1998
in Room 644 of the TWC Building at 101 E. 15th Street in Austin, Texas.
Subchapter A. General Provisions
40 TAC §§821.1-821.6
The new rules are proposed under Texas Labor Code, Title 2,
which provides the Texas Workforce Commission with the authority to adopt,
amend, or rescind such rules as it deems necessary for the effective administration
of the Commission and compliance with Texas Labor Code, Chapter 61, Payment
of Wages.
The proposed new rules affect the Texas Labor Code, Title 2, and Texas
Labor Code, Chapter 61, Payment of Wages.
§821.1. Title and Purpose.
(a)
Title. These rules may be cited as the Texas Payday Rules.
(b)
Purpose. The purpose of these rules is to implement and
interpret the provisions of the Texas Labor Code, Chapter 61, Payment of
Wages.
§821.2. Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
Act
-- Texas Labor Code, Chapter 61, also known as the Texas
Payday Act or the Texas Payday Law.
Claimant
-- A person who has filed a wage claim under the
Act.
Commission
-- The Texas Workforce Commission.
Court of competent jurisdiction
-- a court authorized to issue
an order including, but not limited to, a legislative or statutory county
court at law, district court, small claims court, or federal court that acts
within the appropriate jurisdiction over the amount in controversy, the person,
and other appropriate subject matter.
§821.3. Jurisdiction.
(a)
The Commission shall exercise jurisdiction over wage claims
in which:
(1)
the work is performed exclusively in Texas;
(2)
the work is performed in part in Texas and in part
in other states within the United States and where the wages would be reportable
to Texas for Unemployment Insurance purposes pursuant to Texas Labor Code
§201.043; or
(3)
the work is performed by an individual who is a Texas
resident at the time the work is performed and the work is performed outside
Texas for a Texas employer or a non-resident employer over whom Texas exercises
jurisdiction pursuant to subsection (b) of this section.
(b)
The Commission shall exercise jurisdiction over a non-resident
employer pursuant to the Texas Civil Practice & Remedies Code, Chapter
17, Subchapter C, also known as the "Texas Long-Arm Statute," when all three
of the following are met:
(1)
the employer purposely does some act or consummates some
transaction in Texas;
(2)
the wage claim arises from the employer's act or
the employer's contact with Texas is continuing and systematic; and
(3)
exercising jurisdiction is consistent with:
(A)
fair play and justice as determined by the quality, nature
and extent of the employer's activities in Texas including the extent to
which the employer avails itself of the benefits and protections of Texas
law; and
(B)
the relative convenience of the parties.
(c)
The Commission shall not exercise jurisdiction over wage
claims to the extent the wages are for work performed outside the United
States.
§821.4. Political Subdivision.
(a)
An entity is a political subdivision of the state, and
therefore not an employer under the Act, if it meets the criteria in either
subsections (b) or (c) of this section.
(b)
An entity is a political subdivision of this state if
it is a governmental unit having:
(1)
the power to tax real and tangible personal property;
(2)
limited geographic and jurisdictional boundaries;
(3)
locally elected or locally appointed governing members;
and
(4)
the authority to provide a general public service
or benefit.
(c)
An entity is a political subdivision of this state if
the entity is so designated by Texas statute.
(d)
Entities that are political subdivisions of this state
include, but are not limited to:
(1)
cities;
(2)
counties;
(3)
school districts;
(4)
junior college districts;
(5)
levee improvement districts;
(6)
drainage districts;
(7)
irrigation districts;
(8)
water improvement districts;
(9)
water control and improvement districts;
(10)
water control and preservation districts;
(11)
freshwater supply districts;
(12)
navigation districts;
(13)
conservation and reclamation districts;
(14)
soil conservation districts;
(15)
municipal utility districts;
(16)
river authorities; and
(17)
other similar entities.
§821.5. Employment Status: Employee or Independent Contractor.
The Commission adopts the following form, Form C-8, as its official
guideline for use in determining employment status.
Figure 1: 40 TAC §821.5
§821.6. Wage Claims Involving Minimum Wage or Overtime.
(a)
The Commission shall consider any applicable minimum wage
and overtime requirement in determining if wages are due and unpaid.
(b)
In determining an employee's entitlement to federal minimum
wage or overtime, the Commission shall look to the Fair Labor Standards Act
(FLSA) of 1938 as amended, 29 U.S.C. 201
et seq.
, and the regulations promulgated by the United States Department of
Labor thereunder. In determining an employee's entitlement to state minimum
wage, the Commission shall look to the Texas Minimum Wage Act, located at
Texas Labor Code, Chapter 62.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
January 12, 1998.
TRD-9800400
J. Ferris Duhon
Acting Deputy Director
Texas Workforce Commission
Earliest possible date of adoption: February 23, 1998
For further information, please call: (512) 463-8812
40 TAC §§821.21-821.28
The new rules are proposed under Texas Labor Code, Title 2,
which provides the Texas Workforce Commission with the authority to adopt,
amend, or rescind such rules as it deems necessary for the effective administration
of the Commission and compliance with Texas Labor Code, Chapter 61, Payment
of Wages.
The proposed new rules affect the Texas Labor Code, Title 2, and Texas
Labor Code, Chapter 61, Payment of Wages.
§821.21. Complete and Unconditional Payment of Wages.
(a)
An employer has paid an employee's wages for purposes
of the Act if the employer has delivered the wages to the employee:
(1)
in a form authorized by Texas Labor Code § 61.016;
and
(2)
by a method authorized by Texas Labor Code §
61.017.
(b)
An employer has paid an employee's wages for purposes
of the Act if the employer has complied with subsection (a) of this section
despite the subsequent loss, misplacement or theft of the wages unless the
loss, misplacement or theft is attributable to the employer.
(c)
An employer has not paid an employee's wages for purposes
of the Act if:
(1)
the employee returns or refuses the paycheck because the
employee has good reason to believe the paycheck will be dishonored; or
(2)
the employee disagrees with the amount of the paycheck,
and has good reason to believe the employee's endorsement of the paycheck
will release the employer from further liability to the employee for wages
already earned.
(d)
An employer has not paid an employee's wages for purposes
of the Act if the employee has received the wages subject to a third party
claim because:
(1)
the paycheck has been dishonored due to insufficient funds,
a stop-payment order or any other reason attributable to the employer;
(2)
the employer has caused a direct deposit of the wages
to be reversed; or
(3)
the employer has taken other similar action to undo
the payment of wages.
§821.22. Payment Other Than on Payday.
(a)
For purposes of § 61.013 of the Act, the Commission
interprets "another regular business day" to mean any regular business day,
which is designated as being such within the customary practice of the employer,
following the employer's designated payday.
(b)
When an employee leaves employment other than by discharge
on a payday, payment of wages in full will be due the following scheduled
payday. The Commission shall consider "discharge" as dismissal or release
from employment initiated by the employer including, but not limited to,
layoff.
§821.23. Delayed Wage Payments.
(a)
An employer may delay beyond the regularly scheduled payday
the payment to an employee of wages the employer is unable to calculate solely
because of the employee's failure or refusal to submit information required
for the calculation. If the employer is able to calculate part of the employee's
wages, the employer may not delay the payment of that part of the employee's
wages.
(b)
An employer may not delay the payment of wages to an employee
under subsection (a) of this section beyond the payday immediately following
the time the employer is able to reasonably ascertain the amount of wages
due for the pay period in question.
(c)
An employer is deemed to be able to calculate the amount
of an employee's wages before a payday if the employee submits all information
required for the calculation no later than the deadline set by the employer
for that purpose.
§821.24. Electronic Funds Transfer.
(a)
An employer may not mandate that an employee accept payment
by electronic funds transfer for wages already earned. Although the Act allows
for payment of wages in the form of electronic funds transfer, it requires
the employee's written agreement to electronic funds transfer as the method
of delivery.
(b)
An employer may deduct from an employee's wages the cost
to the employer of that employee's electronic funds transfer payment of wages
when authorized in writing by the employee.
§821.25. Fringe Benefits.
(a)
For purposes of § 61.001 (7)(B) of the Act, vacation
pay and sick leave pay are payable to an employee upon separation from employment
only if a written agreement with the employer or a written policy of the
employer specifically provides for payment.
(b)
Severance pay is payment by an employer to an employee
beyond the employee's wages on termination of employment, usually based on
the employee's length of prior services, and is not attributable to any period
of time subsequent to termination. Wages in lieu of notice is not severance
pay. Wages in lieu of notice is payment by an employer to an employee beyond
the employee's wages on termination of employment when no advance notice
of termination has been given to the employee.
(c)
For purposes of § 61.001 (7)(B) of the Act, the sale
of an employer's business is a termination of employment with all of the
employer's employees. At the time of termination, the employer becomes liable
for the payment of vacation pay, holiday pay, sick leave pay, parental leave
pay, or severance pay if owed pursuant to a written agreement or written
policy between the employer and its employees.
(d)
For purposes of § 61.001 (7) of the Act, expense
reimbursements paid to employees are not wages. Expense reimbursements are
payments to the employee for costs expended by the employee directly related
to the employer's business.
(e)
Absent the inclusion of definitions of terms in a written
agreement with the employer or under a written policy of the employer, a
term will be given its ordinary meaning unless a party establishes that it
is defined in another way.
(f)
For purposes of § 61.001 (7)(B) of the Act, accrued
leave time of an employee shall carry over to subsequent years only if a
written agreement with the employer or a written policy of the employer specifically
provides for it.
§821.26. Commissions.
(a)
For purposes of § 61.015 of the Act:
(1)
Commissions are earned when the employee has met all the
required conditions set forth in the applicable agreement with the employer.
To change an agreement, there must be prior notice as to the nature and effective
date of the changes. Changes to written agreements shall be in writing.
(2)
Commissions are due to be paid, in a timely manner,
according to the terms specified in an agreement between an employer and
an employee. The terms should specify the time intervals or circumstances
(or combinations thereof) that would cause commissions to become payable,
such as, but not limited to, weekly, monthly, quarterly, when sales transactions
are recorded, upon buyer's remittance, etc.
(b)
Unless the agreement states otherwise, the employer shall
pay, after separation, commissions earned as of the time of separation.
(c)
Commissions due after separation from employment are payable
based on the routine or practice specified in the agreement when the employee
was employed, or on any special agreement made between the employee and the
employer upon separation.
(d)
Draws against commissions may be recovered from the current
or any subsequent pay period until fully reconciled.
§821.27. Loans and Advances.
(a)
An employer must comply with Texas Labor Code § 61.018,
and this chapter in order to recoup a loan the employer made to an employee.
(b)
In recouping a loan made to an employee, an employer may
count the loan repayment toward any applicable minimum or overtime wages
the employer is obligated to pay to the employee.
(c)
In recouping a loan made to an employee from any of the
employee's paychecks, including the employee's final paycheck, the employer
may not withhold or divert more than the agreed amount. The agreed amount
is the amount:
(1)
identified as the amount to be withheld from any one paycheck
in the written loan agreement between the employer and employee; or
(2)
otherwise authorized in writing by the employee for
repayment of the loan.
(d)
An employer does not need written authorization to recoup
wages the employer paid in advance to an employee.
(e)
An employer pays wages in advance only if both the employer
and employee understand and agree that the employer is advancing to the employee
wages that are unearned, or earned but not yet due for payment.
§821.28. Deductions.
(a)
The Commission provides the following guidance in determining
whether an employer is entitled to withhold or divert wages under court order,
by law or with written authorization under §61.018 of the Act:
(1)
A court is presumed to be a court of competent jurisdiction
with respect to issuing court orders. The burden shall be on the party opposing
a court order to challenge the court's authority by appealing to the issuing
court or court of appropriate review as the Commission will presume full
faith and credit applies to court orders.
(2)
State or federal law includes statutes and codes
enacted by Congress or the Texas Legislature, rules promulgated by a Texas
or federal agency, and regulations promulgated by a Texas or federal agency.
(3)
A lawful purpose is one that is authorized, sanctioned,
or not forbidden, by law.
(b)
Deductions shall be specific as to the lawful purpose
for which the employee has accepted the responsibility or liability. Written
authorizations shall include:
(1)
sufficient information to give the employee a reasonable
expectation of the amount to be withheld from pay; and
(2)
a clear indication that the deduction is to be withheld
from wages.
(c)
The employee's signed acknowledgment of receipt of company
policies can be authorization to withhold wages if the acknowledgment meets
the requirements of subsection (b) of this section. The signed acknowledgment
of receipt shall also include language that states that the employee agrees
to abide by or be bound to these company policies.
(d)
The Commission shall consider the following factors when
evaluating deductions for losses:
(1)
the employer shall provide evidence to the Commission
that the employee was responsible for the losses; and
(2)
the employer shall provide evidence to the Commission
of the dollar value or amount of the losses.
(e)
The employer shall ensure that properly withheld wages
are applied toward their authorized purpose. Properly withheld wages not
applied toward their authorized purpose will be considered unlawful deductions.
(f)
The employer shall obtain written authorization as required
under the Act to deduct credit card service charges from an employee's tips.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
January 12, 1998.
TRD-9800401
J. Ferris Duhon
Acting Deputy Director
Texas Workforce Commission
Earliest possible date of adoption: February 23, 1998
For further information, please call: (512) 463-8812
40 TAC §§821.41-821.46
The new rules are proposed under Texas Labor Code, Title 2,
which provides the Texas Workforce Commission with the authority to adopt,
amend, or rescind such rules as it deems necessary for the effective administration
of the Commission and compliance with Texas Labor Code, Chapter 61, Payment
of Wages.
The proposed new rules affect the Texas Labor Code, Title 2, and Texas
Labor Code, Chapter 61, Payment of Wages.
§821.41. Validity of Claim/Filing and Investigative Procedures.
(a)
A faxed wage claim does not meet the requirements of §
61.051 and will not be accepted as a valid claim.
(b)
A photocopy of a wage claim is not valid without original
signatures of the claimant and the witness.
(c)
A wage claim must be filled out completely, legibly, and
sufficiently to identify and allow the Commission to attempt contact with
the employer.
§821.42. Timeliness.
(a)
The Commission shall determine the filing date of a wage
claim as the date delivered in person to the Commission or the date of a
mailed wage claim based on the following:
(1)
The postmark date of a wage claim properly addressed shall
establish by a rebuttable presumption the date upon which the wage claim
was filed unless the party opposing this presumption presents evidence to
establish some other filing date.
(2)
Absent a postmark or evidence establishing some other
filing date, the date of receipt by the Commission shall control.
(b)
The Commission shall deem a wage claim invalid if filed
before the wages are due for payment.
(c)
The Commission shall suspend the time limit for filing
a wage claim only for those reasons required by law including, but not limited
to, bankruptcy stays.
§821.43. Wage Claim Withdrawal.
(a)
The Commission shall allow a claimant to withdraw a wage
claim when:
(1)
the order has not become final; or
(2)
the order has become final but the parties agree
on a settlement, part of which is the claimant's agreement to withdraw the
wage claim.
(b)
A claimant withdrawing a wage claim must submit a form
as prescribed by the Commission before the Commission levies funds to satisfy
the order. Regardless of any settlement agreement entered into by the parties,
after the Commission has collected funds to satisfy the order, the Commission
shall disburse the collected funds in accordance with the final order of
the Commission to the claimant unless otherwise ordered by a court.
(c)
The Commission shall apply the withdrawal of a wage claim
to both administrative penalties and wages.
§821.44. Bad faith.
(a)
An employer acts in bad faith in not paying wages as required
by the Act when that employer acts:
(1)
with the knowledge that the failure to pay wages is in
violation of the Act or this chapter; or
(2)
in reckless disregard for the requirements of the
Act or this chapter.
(b)
An employee brings a wage claim in bad faith when the
employee does so:
(1)
with the knowledge that the claim is groundless; or
(2)
solely to harass the employer against whom the claim
is brought.
(c)
An employee brings a wage claim by filing the claim with
the Texas Workforce Commission.
§821.45. Appeals.
(a)
If either party files an appeal to a preliminary wage
determination order, the Commission shall consider all issues, including
the amount of wages in controversy.
(b)
The Commission shall hear all timely requests for reopening
and grant such requests if it appears the petitioner has shown good cause
for his failure to appear at the prior hearing.
§821.46. Void Determination Orders and Decisions.
A preliminary wage determination order and a decision shall be void
from its inception when a non-existent entity is ordered to pay wages.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
January 12, 1998.
TRD-9800402
J. Ferris Duhon
Acting Deputy Director
Texas Workforce Commission
Earliest possible date of adoption: February 23, 1998
For further information, please call: (512) 463-8812
Chapter 48.
Community Care for Aged and Disabled
Part XX.
Texas Workforce Commission
Subchapter B. Payment of Wages
Subchapter C. Wage Claims
Subchapter D. Collection Action