Part I.
Texas Department of Human Services
Chapter 90.
Intermediate Care Facilities for Persons with Mental Retardation or Related Conditions
The Texas Department of Human Services (DHS) adopts amendments to
§§90.11, 90.42, 90.192, 90.211, 90.212, and 90.216 without changes
to the proposed text published in the December 18, 1998 issue of the
Justification for the amendments is as follows.
Section 90.11(a)(5) adds as a criteria for licensing that services will
not be disrupted as a result of the inability of equipment to recognize the
date January 1, 2000. The potential problems created by a potential combination
of equipment failures, and disruptions to the delivery of goods, services,
utilities, and financial transactions exceed the normal disaster relief plans
currently required of facilities. The department has received recommendations
from the Office of the Governor and the Department of Information Resources
to exercise due diligence to ensure that providers will be able to operate
and supply goods and services as they were prior to the millennium change.
The department thus chose to add this as a rule rather than a contract amendment
because the department does not have contracts with ICF/MR facilities. The
department is adding this requirement in its licensing rules because of the
critical need for providers to develop comprehensive year 2000 business continuation
plans. It is more efficient to make a rule change than to individually change
every one if the department's contracts.
The ICF/MR Licensure rules were changed effective May 1, 1998, pursuant
to Senate Bill 1248. The May 1, 1998, rules required that at least one staff
person per shift be trained in Cardiopulmonary Resuscitation (CPR). The ICF/MR
providers requested that the rules be clarified to specify what type of training
would meet the requirement of the regulation. The providers also requested
that language be added to the rule that specified that staff were required
to maintain their certification. The department did not want to be prescriptive
regarding which type of training was required, so it elected to revise the
rule language to give examples of acceptable training such as that certified
by the American Heart Association or the Red Cross would meet the standard
for CPR training. The department then added language that specified that certification
must be maintained in accordance with the guidelines set forth by the training
organization. This was added to the rule to ensure that staff met the continuing
education requirements to maintain their certification in CPR.
Section 90.192(d) was changed to reflect that any facility may refute violations
through the Informal Review Process as outlined in §96.6 (Relating to
Informal Review Process). The informal review process was adopted on May 1,
1998, and §90.192 was not revised to reflect the new process. That former
rule stated that a provider had seven days to request a review but the informal
review period actually allows ten days for the request to be received. The
department has changed this section to reference §96.6, relating to the
Informal Review Process, because it is the source of the processes and time
frames for the reviews.
Section 90.211(3) was changed to specify that the director of the facility
was the person whose name was reflected on the license. A workgroup was formed
that consisted of providers, advocates, and state agency staff from DHS and
the Texas Department of Mental Health and Mental Retardation (TDMHMR). This
workgroup discussed several possible interpretations regarding who could be
the administrator of the facility. Some facilities use house managers as administrators
and others use Qualified Mental Retardation Professionals (QMRPs). No requirement
exists in the ICF/MR program for someone to have the title "administrator."
The department chose to say that the administrator is the person who is designated
to be responsible for day-to-day operations and/or whose name appears on the
facility's license. It is important to know who the administrator is, because
he is the person who accepts or rejects the investigation.
The adopted rules contain new definitions for abuse and neglect which are
comparable to the definitions of abuse and neglect found in 25 TAC 417.504,
relating to Abuse, Neglect, and Exploitation in TDMHMR facilities. Since March
of 1996, the department has moved to standardize definitions used between
the department, TDMHMR, and the Texas Department of Protective and Regulatory
Services so that all three agencies have consistent reporting systems. The
advocates felt that the standardized definitions would improve their ability
to track abuse and neglect in ICFs/MR. The department concurred and changed
the definitions in §90.211 of "unfounded" and added definitions for "classifications"
and "inconclusive" to align with the TDMHMR rules.
Section 90.212(b)(4) was revised to clarify that DHS must be notified immediately,
if possible, but no more than one hour after the administrator learns that
abuse or neglect may have occurred. A provider claimed that a deficiency was
received because an administrator notified the department several hours after
learning of the allegation. The department chose to expand on the definition
of "immediately," which is the criteria established in 42 CFR §483.420
(d)(2). The adopted rules provide an operational definition for administrators
who may have interpreted "immediately" as during the same morning, or on the
same day.
The adopted rules in §90.212(c) made substantive changes to clarify
who could conduct investigations in private ICF/MR facilities. The adopted
rules clearly specify that the investigator of abuse can not be a person who
owns the facility by proxy, a person who is named on the license, or a family
member of an owner. These were added because advocates and TDMHMR staff felt
there could be a conflict of interest if persons related to the owner conducted
the investigation. The department considered not adding this provision but
decided to include it to preserve the integrity of the investigation.
The group working on abuse and neglect rule revisions recommended that
the investigator must be a person who had recent experience in mental retardation.
Some group members felt that a person who had been out of the field for several
years may not be able to adequately interview either cognitively impaired
victims or witnesses. The department concurred and added the requirement that
a person who had been trained but who had not been employed in the field for
two years must be retrained.
The May 1, 1998, rules included a provision that the person who conducted
the facility investigations must have evidence that he completed training.
The providers criticized the rule as being vague. The department considered
whether it would be possible to develop a registry for trained investigators
but concluded that this would have been administratively burdensome and costly.
The department added a provision that the evidence must be a certificate or
letter of attendance that the department considers adequate to answer the
concerns presented.
Subparagraph (A) of §90.212(d)(1), regarding abuse complaints that
are referred to law enforcement agencies, has been problematic for facilities
that have had allegations of abuse turn into criminal investigations. Facilities
have been ordered to cease facility investigations when law enforcement agencies
begin a criminal investigation. The department agreed that the facility must
abide by the order of the law enforcement agency and amended the rule language
accordingly.
The group working on the rules emphasized that the investigator needed
to act independently during the investigation. The department agreed that
the investigation could be adversely impacted if the investigator was required
to complete too many other job duties. However, the department does not want
to state that the investigator's sole job duty must be the investigation,
because it would be too confining. The department chose to add language that
the investigator must report directly to the administrator during the course
of the investigation since it is in the administrator's best interest to obtain
a timely, high-quality investigation.
Section 90.212(d)(3)(F) was expanded to include a provision that the investigator
should make recommendations as to how the allegations could be classified
but could not recommend disciplinary action; §90.212 (d)(7) specified
that DHS would actually classify the allegation. The department determined
that the investigator can provide an opinion on the classification of the
allegation but felt the final determination needed to be made by regulatory
staff. The department finds that any disciplinary action that results from
an allegation of the abuse or neglect is the purview of the facility administrator.
The May 1, 1998, rules stated that the administrator should ensure that
the medical and psychological needs of the victim are met. The group commented
that the rule did not specify the role of the QMRP, who is responsible for
the client's overall active treatment program. The department agreed with
these comments and reorganized the section to outline the role of the administrator
and the role of the QMRP. The department sees this additional requirement
as strengthening the protections afforded residents of ICFs/MR.
Section 90.212(f)(1) and (2) were amended to provide a time frame for the
facility administrator to provide the victim and perpetrator the results of
the report. The department determined that it was important to give the victim,
his legally authorized representatives, and the perpetrator a time frame in
which to expect a report from the allegation. The former rules only specified
that a written report had to be provided but did not say when it was due.
The department feels the time frame is reasonable and adds a measure of accountability
to both the victim and the accused perpetrator.
Section 90.212(f)(3), regarding the confidentiality of the reports, records,
working papers, and deliberations, was added to further assure the confidential
nature of the investigation. The department considered the volatile nature
of the investigations and concluded that the elements that led to a recommendation
must remain confidential to encourage thorough investigations.
Section 90.212(g)(1) added a requirement that the facility have policy
and procedures on investigative process. This requirement ensures that documents
will exist that outline how abuse and neglect investigations will occur within
the facility. The turnover of investigators and administrators was one of
the issues identified by the stakeholder group who worked on the rules. These
policies and procedures would enable a new administrator to know how investigations
have occurred in the past. The department expects these documents to promote
consistency among investigations, thus improving the overall quality of the
investigations. These policies and procedures are particularly crucial to
small facilities that rarely conduct an investigation.
The language of §90.212(g)(3) was clarified to note that the interdisciplinary
team recommends degrees of restriction on visitation to the Specially Constituted
Committee. The department notes that this is a technical clarification because
the federal regulations found in 42 CFR §483.440 (f)(3) already require
this committee's approval prior to implementation of restrictions to rights.
Section 90.212(h)(3) added time frames for requests to review the facility's
investigation and set a deadline for when the complainant will receive a determination
of the review. The group working on the abuse and neglect rules felt that
more accountability was required for both a possible complaint about an investigation
and the role of DHS once a complaint was received. The department agreed and
added a 10- day time frame for receipt of a complaint and a 30-day time frame
for a determination regarding the complaint. The department supports both
time frames as reasonable for all parties concerned.
Section 90.216(a)(2), concerning confidentiality, was revised to allow
a resident or the legal representative of a resident who is the subject of
a final report to request their identity not be deleted when the department
releases the report. Prior to this revision, the resident's identity was deleted
when the final report was released even if the resident consented to release
of their identity. A similar change was made in the nursing facility rules
because of the numerous requests the department was receiving for reports
from residents. The department determined that if the resident or their legal
representative voluntarily consents to release of the resident's identity,
the department did not have a compelling reason to refuse to comply with this
consent. This change was codified later in the nursing facility law. The department
believes it is consistent to follow the same practice for ICF-MR facility
reports.
The amendments will function by complying with Senate Bill 1248, effective
May 1, 1998, to include definitions, technical changes, and substantive changes
to §90.212.
The department received no comments regarding adoption of the amendments.
Subchapter B. Application Procedures
40 TAC §90.11
The amendment is adopted under the Health and Safety Code,
Chapter 252, which provides the department with the authority to license intermediate
care facilities serving persons with mental retardation or a related condition.
The amendment implements the Health and Safety Code, §§252.001
- 252.186.
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 February
26, 1999.
TRD-9901209
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: April 1, 1999
Proposal publication date: December 18, 1998
For further information, please call: (512) 438-3765
40 TAC §90.42
The amendment is adopted under the Health and Safety Code,
Chapter 252, which provides the department with the authority to license intermediate
care facilities serving persons with mental retardation or a related condition.
The amendment implements the Health and Safety Code, §§252.001-252.186.
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 February
26, 1999.
TRD-9901210
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: April 1, 1999
Proposal publication date: December 18, 1998
For further information, please call: (512) 438-3765
40 TAC §90.192
The amendment is adopted under the Health and Safety Code,
Chapter 252, which provides the department with the authority to license intermediate
care facilities serving persons with mental retardation or a related condition.
The amendment implements the Health and Safety Code, §§252.001-252.186.
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 February
26, 1999.
TRD-9901211
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: April 1, 1999
Proposal publication date: December 18, 1998
For further information, please call: (512) 438-3765
40 TAC §§90.211, 90.212, 90.216
The amendments are adopted under the Health and Safety Code,
Chapter 252, which provides the department with the authority to license intermediate
care facilities serving persons with mental retardation or a related condition.
The amendments implement the Health and Safety Code, §§252.001-252.186.
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 February
26, 1999.
TRD-9901212
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: April 1, 1999
Proposal publication date: December 18, 1998
For further information, please call: (512) 438-3765
Chapter 114.
Transition Planning Program
40 TAC §§114.1-114.3
The Texas Rehabilitation Commission (TRC) adopts new §§114.1-114.3,
concerning the Transition Planning Program, without changes to the proposed
text as published in the January 29, 1999, issue of the
Texas Register
(24 TexReg 548).
The new sections are being adopted to provide information concerning assistance
to school district and Education Service Center personnel planning effectively
with students who have disabilities and would benefit from referral to TRC
programs.
No comments were received regarding adoption of the new sections.
The new sections are adopted under the Texas Human Resources
Code, Title 7, Chapter 111, §111.018 and §111.023, which provides
the Texas Rehabilitation Commission with the authority to promulgate rules
consistent with Title 7, Texas Human Resources Code.
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 March
1, 1999.
TRD-9901237
Charles Schiesser
Chief of Staff
Texas Rehabilitation Commission
Effective date: March 21, 1999
Proposal publication date: January 29, 1999
For further information, please call: (512) 424-4050
Chapter 732.
Contracted Services
Subchapter L. Contract Administration
Subchapter C. Standards for Licensure
Subchapter F. Inspections, Surveys, and Visits
Subchapter G. Abuse, Neglect, and Exploitation; Complaint and Incident Reports and Investigations
Part II.
Texas Rehabilitation Commission
Part XIX.
Texas Department of Protective and Regulatory Services