Part I.
Texas Department of Human Services
Chapter 19.
Nursing Facility Requirements for Licensure and Medicaid Certification
Subchapter X. Requirements for Medicaid-Certified Facilities
40 TAC §19.2322, §19.2324
The Texas Department of Human Services (DHS) proposes amendments
to §19.2322, concerning allocation, reallocation, and decertification
requirements, and §19.2324, concerning selection and contracting procedures
for adding beds in high-occupancy areas, in its Nursing Facility Requirements
for Licensure and Medicaid Certification chapter. The purpose of the amendments
is to make necessary corrections and changes to the rules adopted by the Texas
Board of Human Services in April 1998. The moratorium rules comply with Senate
Bill 190, passed by the 75th Legislature, by establishing procedures to control
the number of Medicaid-certified nursing facility beds and the decertification
and reallocation of unused Medicaid beds. These amendments add definitions
for nursing facility operator, controlling person, and nursing facility chain
to the current bed allocation rules. The current rule regarding the history
of quality care test is expanded to add a new exception for instances where
the applicant has no prior history. Another new portion of that test addresses
cases of multiple ownership in which the department will take into consideration
the overall record of the nursing facility chain. A new provision clarifies
that an Alzheimer's facility requesting an increase in beds will be approved
for an increase in Medicaid beds for Alzheimer purposes only. The history
of quality care test is applied to facilities requesting "spenddown" beds.
The current provision regarding the loss of bed allocation due to sanctions
is amended to allow for a further ground for waiver of the provision. The
rules are also clarified to the effect that facilities that voluntarily decertify
beds must apply for beds under the same conditions as any other new applicant
and that DHS may require written approval of the owner of the physical plant
before approving any action that would affect the status of a facility's Medicaid
beds.
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 has determined that for each year of the first five years these
amendments are in effect the public benefit anticipated as a result of enforcing
these amendments will be the more efficient and fair enforcement of the rule
on the distribution, allocation, and reallocation of Medicaid beds. An additional
public benefit will be that additional Medicaid-certified beds will be available
in facilities providing a high quality of care. There is no anticipated economic
cost to persons who are required to comply with the proposed sections. There
will be no effect on small businesses, as unused Medicaid beds are not economically
feasible to the nursing facility; however, fewer beds at the time of sale
for a nursing facility could mean less property value. There is no anticipated
economic cost to persons who are required to comply with the proposed sections.
Despite the fact that the allocation of beds is in the exclusive discretion
of the state and the state recognizes no property interest in the beds and
although nursing facilities would not incur any additional costs to comply
with the proposed rules, an argument could be made that Medicaid certification
adds value to nursing facility beds through access to a larger pool of potential
residents and the associated streams of revenue and potential profit. Consequently,
according to this line of argument, amendments affecting decertification of
beds might constitute a devaluation of those assets. This could cause a speculative
"adverse economic effect" if that phrase is understood to mean an effect on
the facility other than the cost of complying with the proposed rules.
A number of factors determine the market value of a nursing facility. For
example, as real property, a nursing facility has value due to its location,
the condition and potential uses of the building or buildings, and other factors.
Bed decertification does not undermine value from this perspective, because
it does not affect the physical assets and their ownership. More importantly
in the present context, the market value of a nursing facility is also determined
by the nature of the business as an ongoing enterprise generating present
and future revenue and profit streams. For many homes where Medicaid residents
are a large part of the census, Medicaid certification is a crucial factor
in determining whether adequate revenue streams will be available to continue
the operation. However, the rules decertify only a limited number of beds
that have been chronically unoccupied. Thus, no change in the facility's revenues,
costs or profits would occur, although the Medicaid certification of the decertified
beds might add to the speculative value of a facility on sale, the loss in
speculative value of unused beds would not undermine the value of individual
nursing facilities, large or small.
A related argument could be made that decertification of beds would decrease
the availability or increase the cost of credit to finance nursing facility
purchases. Once again, it is hard to see how the limited decertification of
unused beds generating no revenues and no profits would substantially after
a lender's risk assessment of such a business entity.
The current rules also effect the manner in which facilities may apply
for additional bed allocations. Applicant facilities are required to have
demonstrated a history of quality care. The provisions relating to the history
of quality care are altered by these amendments but the opportunity for additional
bed allocations are, by definition, new opportunities or benefits and will
thus not have an adverse impact.
The department has determined that these rules regarding bed allocations
will not affect any real property interests. Accordingly, no takings impact
assessment is required under §2007.043 of the Government Code and §2.19
of the Attorney General's Guidelines under the Private Real Property Rights
Preservation Act. See 21 TexReg 387,390 (1996).
Questions about the content of this proposal may be directed to Maxcine
Tomlinson at (512) 438-3169 in DHS's Long Term Care Section. Written comments
on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-129,
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 amendments are proposed 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, specifically §32.0213.
§19.2322.Allocation, Reallocation, and Decertification Requirements.
(a)
Definitions. The words and terms defined below, when used
in this section, will have the following meanings, unless the context clearly
indicates otherwise.
(1)
Nursing Facility Operator (NFO) -
The entity that
is:
(A)
an applicant for licensure by the Texas
Department of Human Services (DHS) under Chapter 242 of the Texas Health and
Safety Code and Medicaid certification;
(B)
licensed by DHS; or
(C)
licensed and holds the contract to provide
Medicaid services.
[
(2)-(3)
(No change.)
(4)
Controlling person - As defined in
§242.0021 of the Texas Health and Safety Code.
(5)
Nursing facility chain - An entity
that owns, controls, or operates under lease two or more nursing facilities
within or across state lines.
(b)
Purpose. The purpose of these rules is to control the number
of Medicaid beds for which DHS contracts. The allocation of certified beds
represents an opportunity to contract to serve a specific number of residents.
The Medicaid beds for which an NFO is certified are strictly limited to the
physical plant at which they were originally certified, unless their transfer
by the NFO in the county is expressly approved by DHS. The beds remain at
the physical plant even if the bed allocation was obtained by or through the
action of the NFO. When the NFO's business is sold, the allocation of certified
beds remains at the physical address at which they were originally certified.
Any transfer must meet the requirements contained in subsection
(i)
[
(c)
(No change.)
(d)
Quality of care.
(1)
History of quality of care. For purposes of
this section, an NFO demonstrates a history of quality care if, within the
two years preceding a request for additional capacity:
(A)
the NFO has not received any of the following
sanctions:
(i)
termination of Medicaid certification;
(ii)
termination of Medicaid contract;
(iii)
civil penalty pursuant to §242.065 of
the Texas Health and Safety Code;
(iv)
Medicaid monetary penalty;
(v)
denial of payment for new admissions;
(vi)
denial of facility's license; or
(vii)
denial of new admissions, as described in
§242.012 of the Texas Health and Safety Code; and
(B)
DHS does not find a clear pattern of substantial
or repeated licensing and Medicaid sanctions including administrative penalties,
and/or other sanctions.
(2)
Exceptions to history of quality of
care.
(A)
Regardless of any sanctions imposed in subsection
(d)(1)(A) of this section. DHS may grant an application in a county with four
or fewer facilities, where none of the facilities would meet all of the requirements
in subsection (d) of this section for increased capacity, upon finding a clear
pattern of decreasing numbers of substantial or repeated licensing and Medicaid
sanctions including administrative penalties, and/or other sanctions on the
part of the NFO.
(B)
Subsection (d)(1)(A) of this section does not
apply to sanctions that are administratively withdrawn or subsequently reversed
upon administrative or judicial appeal.
(C)
In the case of sanctions that are appealed,
either administratively or judicially, an application to DHS for an allocation
of Medicaid certified beds will be suspended until the appeal has been finally
resolved.
(D)
Subsection (d)(1) of this section will not apply
if all the following are met:
(i)
The applicant NFO has changed ownership within
that period;
(ii)
The new owner of the NFO has demonstrated a
history of quality care in that nursing facility for at least one year preceding
the application for increased capacity; and
(iii)
The new owner of the NFO has demonstrated
to DHS's satisfaction a record of compliance in other nursing facilities it
owns or operates.
(E)
In instances where the NFO, waiver applicant,
or other entity has no history of providing care, as outlined in subsection
(d)(1) of this section, DHS will review the overall record of other facilities
that the controlling person or persons owns, operates, or controls in order
to determine the ability to provide quality care.
(3)
Multiple ownership. Where an NFO,
waiver applicant, or other entity to which subsection (d) applies is owned,
operated under lease or otherwise controlled by nursing facility chain DHS
will:
(A)
apply the criteria as outlined in subsection
(d)(A) of this section to the facility at issue; and
(B)
examine the overall record of the nursing facility
chain in order to determine the ability to provide quality care.
(e)
[
(1)
NFOs that change ownership. Except as otherwise provided
in this section, DHS limits contracting with the new owner to no more certified
Medicaid beds than the prior owner had when the ownership change occurred.
(2)
NFOs whose Medicaid contracts have been terminated.
DHS limits contracting to no more than the number of certified Medicaid beds
on the effective date of termination. The NFO must meet certification and
contract requirements within 90 days of the effective date of the termination
in order to retain the allocation of Medicaid beds. The loss of the bed allocation
after 90 days is dependant upon the NFO having failed two surveys within that
period, so long as these surveys were requested within sufficient time for
DHS
[
(3)
Replacement beds. DHS limits contracting of the replacement
beds to the county in which the original physical plant was located and to
no more than the number of certified Medicaid beds being replaced. The replacement
beds must be recertified in the replacement physical plant within 24 months
from the date of the DHS letter of approval to transfer beds. Potential NFOs
previously issued waivers have 18 months from the effective date of this rule
to be licensed and certified. DHS may grant an extension for extenuating circumstances,
at the discretion of the DHS commissioner.
(4)
Low capacity. For reasons of efficiency, DHS will
accept an application to contract up to 60 beds from a small facility of less
than 60 licensed beds if the NFO:
(A)
has a Medicaid contract to provide nursing facility services;
and
(B)
has not had remedies imposed, as specified in subsection
(d)
[
(5)
Teaching facilities. Facilities approved and
contracted to operate as teaching nursing facilities from March 1, 1989, through
January 1, 1993, must continue to meet their affiliation agreements.
(6)
Special commissioner's waiver.
(A)
The commissioner of DHS has authority to waive the restriction
on contracting in subsection (c) of this section and direct DHS to enter into
Medicaid contracts with NFOs that satisfy the requirements specified in this
subparagraph. In a manner acceptable to DHS, each of these NFOs must:
(i)
document that there is a crisis and immediate need for
additional Medicaid nursing-facility beds in the NFO's community;
(ii)
document that there are problems with the quality of care
available in the NFO's community, and show that new Medicaid beds will remedy
these problems;
(iii)
demonstrate that Medicaid residents in their community
do not have reasonable access to quality nursing facility care;
(iv)
document strong community support for a new Medicaid nursing
facility; and
(v)
demonstrate a history of quality care, as specified in
subsection
(d)
[
(B)
DHS applies the following criteria when granting special
DHS commissioner's waivers:
(i)
If the physical plant has not completed construction requirements,
and if the NFO has not been licensed and certified within 24 months of the
date on the DHS letter approving the waiver, the DHS commissioner will rescind
the approvals for all such waivers granted.
(ii)
DHS may grant an extension for extenuating circumstances,
at the discretion of the DHS commissioner.
(7)
Criminal justice and underserved minorities.
The commissioner may grant a waiver of these restrictions for a contract if
the commissioner determines that beds are necessary for the following circumstances:
(A)
to meet the need identified and determined by the Texas
Department of Criminal Justice (TDCJ) as necessary to serve persons under
the supervision of TDCJ who have been released on parole, mandatory supervision,
or special needs parole under the Code of Criminal Procedure, Article 42.18;
or
(B)
to meet the documented demand in underserved minority communities
where beds are not available from existing resources. For purposes of this
waiver, the term minority shall mean all persons who are black, hispanic,
Asian or Pacific islander, American Indian, or Alaskan native. The facility
must:
(i)
be located in a county with a total population of at least
1,000,000, according to the
most recent
[
(ii)
serve a zip code whose minority population is greater
than 50%, according to the
most recent
[
(iii)
document that minority residents in the zip code in which
the facility is located are unable to attain Medicaid long term care services
in that specific location, due to lack of such service availability; and
(iv)
be the only waived facility, as defined in this paragraph,
in that county.
(C)
NFOs granted waivers must be licensed and certified within
24 months of the approval letter.
(D)
Potential NFOs previously issued waivers have 18 months
from the effective date of this rule to be licensed and certified.
(8)
Alzheimer's facilities.
An Alzheimer's facility,
established under this waiver that seeks to increase its Medicaid bed allocation
will receive an increase of Medicaid beds as Alzheimer beds only.
DHS
waives a restriction imposed by state law on the authority to contract under
the state Medicaid program for nursing home beds based on the percentage of
beds that are occupied in a geographical area if the NFO:
(A)
is affiliated with a medical school operated by the state;
(B)
is participating in research programs for the care and
treatment of persons with Alzheimer's disease;
(C)
is designed to separate and treat Alzheimer's disease by
stage and functional level; and
(D)
documents to DHS the need for the specific number of beds
requested.
(9)
Medicaid eligible residents for whom no Medicaid
bed is available. Facilities may obtain certified beds to serve residents
by meeting the following criteria:
(A)
The resident must:
(i)
have been a resident of the nursing facility for at least
six consecutive months before becoming eligible for Medicaid; and
(ii)
not have been eligible for Medicaid at the time of admission
to the nursing facility.
(B)
The NFO must:
(i)
request certification of currently non-certified Medicaid
beds;
(ii)
meet requirements for Medicaid participation;
(iii)
obtain a Medicaid contract; and
(iv)
have demonstrated to DHS a satisfactory [
(C)
The certification of the bed is in effect until the resident's
death or permanent discharge from the nursing facility or a Medicaid bed in
the nursing facility becomes available.
(D)
The number of Medicaid-certified beds under this paragraph
may not exceed 10% of the total number of licensed beds in the nursing facility
at any one time.
(f)
[
(g)
[
(1)
Six months after the effective date of the adopted rule,
an NFO with an average occupancy rate for the preceding six months of less
than 70% will have a specific number of its beds decertified. The number of
beds to be decertified will be calculated by subtracting the preceding six-month
average occupancy rate of Medicaid certified beds in the facility from 70%
of the number of allocated certified beds and dividing the difference by 2,
rounding the final figure down if necessary. For example: for a facility with
100 Medicaid-certified beds and a 50% occupancy rate, the difference between
70% (70 beds) and 50% (50 beds) is 20 beds, divided by 2, equals 10 beds to
be decertified.
(2)
NFO occupancy rates may be reviewed annually and if
the average occupancy rate is below 70% for the previous six months, the decertification
process will occur.
(3)
Medicaid-certified beds in new or replacement physical
plants and newly constructed wings in existing physical plants will be exempt
from this decertification process until they have been certified for two years.
(4)
Facilities that have had beds decertified under this
subsection are also eligible to receive an increased allocation of certified
beds if the requirements in subsection
(d)
[
(5)
Facilities that voluntarily decertify
existing Medicaid beds must apply for Medicaid beds under the same conditions
as any other new applicant for licensure and certification.
(h)
[
(1)
A Medicaid-certified NFO must have an average occupancy
rate of 90% of the current number of its certified beds for nine out of the
previous 12 months. The request for additional beds must be no greater than
10% of the current number of certified beds in a nursing facility;
(2)
An
[
(3)
NFOs may reapply for additional Medicaid-certified
beds, having met the requirements in paragraphs (1) or (2) of this subsection,
no sooner than nine months from the date of the prior allocation.
(4)
To qualify for increased bed capacity the NFOs must,
in addition to meeting the criteria in paragraph (1) or (2) of this subsection,
demonstrate a history of quality care
, as defined in subsection
(d)
of this section.
[
[
the NFO has not received any
of the following sanctions:]
[
termination of Medicaid certification; ]
[
termination of Medicaid contract;]
[
civil penalty pursuant to §242.065 of
the Texas Health Safety Code; ]
[
Medicaid monetary penalty;]
[
denial of payment for new admissions; ]
[
denial of facility's license; or]
[
denial of new admissions, as described in
§242.012 of the Texas Health and Safety Code; and ]
[
[
Exceptions to history of quality
of care.]
[
Regardless of any sanctions imposed in subparagraph
(A) of this paragraph, DHS may grant an application in a county with four
or fewer facilities, where none of the facilities would meet all of the requirements
in subparagraph (A) of this paragraph for increased capacity, upon finding
a clear pattern of decreasing numbers of substantial or repeated licensing
and Medicaid sanctions including administrative penalties, and/or other sanctions
on the part of the NFO. ]
[
Subparagraph (A)(i)-(ii) of this paragraph
does not apply to sanctions that are administratively withdrawn or subsequently
reversed upon administrative or judicial appeal.]
[
In the case of sanctions that are appealed,
either administratively or judicially, an application to DHS for an allocation
of Medicaid-certified beds will be suspended until the appeal has been finally
resolved.]
[
Subparagraph (A)(i)-(ii) of this paragraph
will not apply if all the following are met: ]
[
The applicant NFO has changed ownership within
that period; ]
[
The new owner of the NFO has demonstrated
a history of quality care in that nursing facility for at least one year preceding
the application for increased capacity; and ]
[
The new owner of the NFO has demonstrated
to DHS's satisfaction a record of compliance in other nursing facilities it
owns or operates.]
(i)
[
(1)
Certified Medicaid beds may be transferred within a county
if the owners of the physical plants involved approve the transfer in writing.
[
(2)
DHS must expressly approve the transfer specified
in paragraph (1) of this subsection. To have a transfer approved, the physical
plant owners and NFOs involved in the transaction must establish a history
of quality of care as defined in subsection
(d)
[
(j)
DHS may require written approval of the
owner of the physical plant before approving any action that would affect
the status of the Medicaid beds.
§19.2324.Selection and Contracting Procedures for Adding Beds in High-Occupancy Areas.
(a)
Definitions. The words and terms defined below, when used
in this section, will have the following meanings, unless the context clearly
indicates otherwise.
(1)
Nursing Facility Operator (NFO) -
The entity that
is:
(A)
an applicant for licensure by DHS, under
Chapter 242 of the Texas Health and Safety Code, and Medicaid-certification;
(B)
licensed by the Texas Department of Human
Services (DHS); or
(C)
licensed and holds the contract to provide
Medicaid services.
[
(2)-(6)
(No change.)
(b)
Primary selection process - conversion of existing licensed
beds. When DHS determines that the occupancy rate in a county exceeds the
threshold during any six- month period, DHS places a public notice in the
(1)
(No change.)
(2)
Potential contractors seeking to contract in an area
identified in the public notice must demonstrate a history of quality of care,
as specified in §19.2322
(d)
[
(A)-(C)
(No change.)
(3)
(No change.)
(c)
Secondary selection process - new construction. When there
are insufficient available beds after the primary selection, potential contractors
may participate in a secondary selection process. The secondary selection
is for potential contractors who wish to construct a nursing facility or an
addition to an existing nursing facility.
(1)
(No change.)
(2)
Potential contractors seeking to contract to construct
a nursing facility or an addition to an existing nursing facility in a high-
occupancy area must demonstrate a history of quality care, as specified in
§19.2322
(d)
[
(A)-(C)
(No change.)
(3)-(11)
(No change.)
(12)
Providers may request an informal review of DHS actions
involving this section and §19.2322 of this title (relating to Allocation,
Reallocation, and Decertification Requirements) by writing to Manager, Long
Term Care
-Regulatory, Mail Code E-342
[
(d)
(No change.)
(e)
Requesting occupancy reports. DHS computes occupancy rates
by using the information contained in DHS's Nursing Facility Monthly Occupancy
Report form. Monthly copies of occupancy-rate information for a particular
county are available on request. Requests may be sent to Long Term Care Bed
-Regulatory, Mail Code E-342
[
(f)
(No change.)
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
April 19, 1999.
TRD-9902266
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: July 1, 1999
For further information, please call: (512) 438-3765
Subchapter A. General Procedures
The Texas Department of Human Services (DHS) proposes the repeal of
§75.1 and §75.2, concerning licensing investigations and investigation
of unlicensed operating facilities; and proposes an amendment to §75.3,
concerning investigations referred by commissioner, in its Investigations
chapter. The purpose of the repeals is to delete obsolete rules because the
Office of the Inspector General no longer investigates licensed or unlicensed
operating facilities. The purpose of the amendment to §75.3 is to change
the name in the rule from the Texas Department of Human Resources to the Texas
Department of Human Services to reflect the current name of the agency responsible
for the rule.
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 to eliminate obsolete provisions and correct obsolete
references. There will be no effect on small businesses because these rules
relate to procedural and operational changes within DHS. 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 June Pence
at (512) 231-5778 in DHS's Office of Inspector General, Office of Program
Integrity. Written comments on the proposal may be submitted to Supervisor,
Rules and Handbooks Unit- 159, Texas Department of Human Services E-205, P.O.
Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the
40 TAC §75.1, §75.2
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Human Services or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Human Resources
Code, Title 2, Chapter 21, which provides the department with the authority
to allocate and re-allocate functions of the agency.
The repeal implements §21.005 of the Human Resources Code.
§75.1.Licensing Investigations.
§75.2.Investigation of Unlicensed Operating Facilities.
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
April 16, 1999.
TRD-9902237
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: August 15, 1999
For further information, please call: (512) 438-3765
40 TAC §75.3
The amendment is proposed under the Human Resources Code,
Title 2, Chapter 21, which provides the department with the authority to allocate
and re-allocate functions of the agency.
The amendment implements §21.001 of the Human Resources Code.
§75.3.Investigations Referred by Commissioner.
The Investigations Division,
Texas Department of Human Services
(DHS)
[
(1)-(4)
(No change.)
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
April 16, 1999.
TRD-9902238
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: August 15, 1999
For further information, please call: (512) 438-3765
Chapter 106.
Contract Administration
Subchapter A. Acquisition of Client Goods and Services
The entity that holds the contract to provide
Medicaid services and is licensed by the Texas Department of Human Services
(DHS) under Chapter 242 of the Texas Health and Safety Code.
]
(h)
] of this section.
(d)
] Exemptions. If the NFO meets
all criteria, DHS may grant the following exemptions from the policy stated
in subsection (c) of this section.
the department
] to complete them within 90 days, consistent
with federal requirements. Until an NFO has qualified to re-enter the Medicaid
program, the allocation of beds to that facility is suspended and any sale
of either the NFO or the physical plant will not transfer or convey the bed
allocation to a buyer. However,
DHS
[
the department
]
may make an affirmative finding that good cause exists to waive this requirement
to facilitate a change in ownership to protect residents of the facility or
for other good cause.
(g)(4)
] of this section, which have resulted in contract
cancellation in the 24-month period immediately preceding the month of application.
(g)(4)
] of this section. An applicant
that has not owned or operated a nursing facility may apply; however, DHS
will evaluate the applicant and any controlling person [
as defined in
Texas Health and Safety Code §242.0021,
] to determine if the applicant
has the capacity to provide quality care.
1990
] U.S.
census;
1990
] U.S. census;
compliance
] history
of quality of care as specified in subsection (d) of
this section
.
(e)
] Loss of allocation due to
sanctions. An NFO whose license has been denied or revoked loses the allocation
of certified beds on the effective date of the denial or revocation and may
not contract with DHS at the physical plant for which those beds were allocated.
No beds are transferred to the buyer when an NFO whose license has been revoked
or denied is sold. If the owner of the physical plant also operates the facility,
the denial of the license will result in the loss of the owner's bed allocation
at that facility. If the owner of the physical plant leases to an NFO, the
owner will lose the allocation of beds when, within any 42-month period, one
or more NFOs has two of any of the following: license denials, license revocations,
or contract terminations. However, DHS may make an affirmative finding that
good cause exists to waive this requirement to facilitate a change in ownership
to protect residents of a facility
or to ensure access to quality care
in the community
.
(f)
] Decertification of unused
beds.
(g)(4)
]
of this section are met.
(g)
] Reallocations. NFOs that wish
to increase the number of allocated certified beds must meet the following
criteria.
A non-certified
] NFO's request
for Medicaid-certified beds must be no greater than 10% of the current number
of its licensed beds.
(A)
History of quality of care. For purposes
of this section, an NFO demonstrates a history of quality care if, within
the two years preceding a request for additional capacity:
]
(i)
(I)
(II)
(III)
(IV)
(V)
(VI)
(VII)
(ii)
DHS does not find a clear pattern of
substantial or repeated licensing and Medicaid sanctions including administrative
penalties, and/or other sanctions.
]
(B)
(i)
(ii)
(iii)
(iv)
(I)
(II)
(III)
(h)
] Transfer of allocation of
Medicaid beds within a county. Subject to approval by DHS, the NFO has the
opportunity to contract for Medicaid-certified beds under the following conditions:
However, if the same entity owns all the physical plants involved, written
approval of the transfer is not required.
]
(g)(4)
]
of this section.
The entity that holds the contract to provide
Medicaid services and is licensed by the Texas Department of Human Services
(DHS) under Chapter 242 of the Texas Health and Safety Code.
]
(g)(4)
] of this title
(relating to Allocation, Reallocation, and Decertification Requirements),
and must make written reply to the public notice. The reply must be received
by Long Term Care
-Regulatory, Mail Code E-342
[
Bed Allocation
Services, Mail Code W-530
], Texas Department of Human Services, P.O.
Box 149030, Austin, Texas 78714-9030, before the close of business on the
published ending date of the open solicitation period. The reply must include
the following information:
(g)(4)
] of this title (relating to
Allocation, Reallocation and Decertification Requirements). This rule does
not eliminate a new potential NFO who has no history of providing care. The
NFO must make written reply to the public notice. The reply must be received
by Long Term Care
-Regulatory, Mail Code E-342
[
Bed Allocation
Services, Mail Code W-530
], Texas Department of Human Services, P.O.
Box 149030, Austin, Texas 78714- 9030, before the close of business on the
published ending date of the open solicitation period. The reply must include
the following information:
Bed Allocation Services
], Texas Department of Human Services, [
Mail Code W-530,
]
P.O. Box 149030, Austin, Texas 78714-9030. The review must be requested within
30 days of the DHS action.
Allocation Services, Mail Code W-530
], Texas Department of Human Services, P.O. Box 149030, Austin, Texas
78714-9030.
Chapter 75.
Investigations
DHR
], performs investigations as may be referred by
the commissioner,
DHS
[
DHR
]. These may include:
Part II.
Texas Rehabilitation Commission