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SUBCHAPTER B. DEFINITIONS

40 TAC ง19.101

The amendment is adopted under the Health and Safety Code, Chapter 242, which authorizes the department to license and regulate nursing facilities.

The amendment implements the Health and Safety Code, ง242.001-242.268.

ง19.101. Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Abuse - Any act, failure to act, or incitement to act done willfully, knowingly, or recklessly through words or physical action which causes or could cause mental or physical injury or harm or death to a resident. This includes verbal, sexual, mental/psychological, or physical abuse, including corporal punishment, involuntary seclusion, or any other actions within this definition.

(A) "Involuntary seclusion" - Separation of a resident from others or from his room against the resident’s will or the will of the resident’s legal representative. Temporary monitored separation from other residents will not be considered involuntary seclusion and may be permitted if used as a therapeutic intervention as determined by professional staff and consistent with the resident’s plan of care.

(B) "Mental/psychological abuse" - Mistreatment within the definition of "abuse" not resulting in physical harm, including, but not limited to, humiliation, harassment, threats of punishment, deprivation, or intimidation.

(C) "Physical abuse" - Physical action within the definition of "abuse," including, but not limited to, hitting, slapping, pinching, and kicking. It also includes controlling behavior through corporal punishment.

(D) "Sexual abuse" - Any touching or exposure of the anus, breast, or any part of the genitals of a resident without the voluntary, informed consent of the resident and with the intent to arouse or gratify the sexual desire of any person and includes but is not limited to sexual harassment, sexual coercion, or sexual assault.

(E) "Verbal abuse" - The use of any oral, written, or gestured language that includes disparaging or derogatory terms to a resident or within the resident’s hearing distance, regardless of the resident’s age, ability to comprehend, or disability.

(2) Act - Chapter 242 of the Health and Safety Code.

(3) Activities assessment - See Comprehensive Assessment and Comprehensive Plan of Care.

(4) Activities director - The qualified individual appointed by the facility to direct the activities program as described in ง19.702 of this title (relating to Activities).

(5) Addition - The addition of floor space to an institution.

(6) Administrator - Licensed nursing facility administrator.

(7) Admission determination of medical necessity - The decision regarding an individual’s need for medical and nursing services upon his entry into a nursing facility or upon his becoming eligible for Medicaid. The admission determination of medical necessity is valid for up to 120 days from the effective date assigned by the Utilization Review Committee.

(8) Affiliate - With respect to a:

(A) partnership, each partner thereof;

(B) corporation, each officer, director, principal stockholder, and subsidiary; and each person with a disclosable interest;

(C) natural person which includes each:

(i) person’s spouse;

(ii) partnership and each partner thereof of which said person or any affiliate of said person is a partner; and

(iii) corporation in which said person is an officer, director, principal stockholder, or person with a disclosable interest.

(9) Agent - An adult to whom authority to make health care decisions is delegated under a durable power of attorney for health care.

(10) Applicant - A person or governmental unit, as those terms are defined in the Health and Safety Code, Chapter 242, applying for a license under that chapter.

(11) APA - The Administrative Procedure Act, Texas Government Code, Chapter 2001.

(12) Attending physician - A physician, currently licensed by the Texas State Board of Medical Examiners, who is designated by the resident or responsible party as having primary responsibility for the treatment and care of the resident.

(13) Barrier precautions - Precautions including the use of gloves, masks, gowns, resuscitation equipment, eye protectors, aprons, faceshields, and protective clothing for purposes of infection control.

(14) Board - Texas Board of Human Services.

(15) CARE form - The DHS Client Assessment, Review and Evaluation (CARE) form completed by Medicaid-certified nursing facilities which allows for determination of medical necessity, reimbursement rate, initial level of the Preadmission Screening and Annual Resident Review (PASARR) and the initial medical care determination and reassessment of the 1915(c) waivers.

(16) Care and treatment - Services required to maximize resident independence, personal choice, participation, health, self-care, psychosocial functioning and reasonable safety, all consistent with the preferences of the resident.

(17) Case mix - A method of classifying recipients based upon resource and service needs and paying nursing facilities a per diem rate according to the recipient’s classification.

(18) Certification - The determination by the Texas Department of Human Services (DHS) that a nursing facility meets all the requirements of the Medicaid and/or Medicare programs.

(19) CFR - Code of Federal Regulations.

(20) Complaint - Any allegation received by DHS other than an incident reported by the facility. Such allegations include, but are not limited to, abuse, neglect, exploitation, or violation of state or federal standards.

(21) Comprehensive assessment - An interdisciplinary description of a resident’s needs and capabilities including daily life functions and significant impairments of functional capacity.

(22) Comprehensive care plan - A plan of care prepared by an interdisciplinary team that includes measurable short-term and long-term objectives and timetables to meet the resident’s needs developed for each resident after admission. The plan addresses at least the following needs: medical, nursing, rehabilitative, psychosocial, dietary, activity, and resident’s rights. The plan includes strategies developed by the team, as described in ง19.802(b)(2) of this title (relating to Comprehensive Care Plans), consistent with the physician’s prescribed plan of care, to assist the resident in eliminating, managing, or alleviating health or psychosocial problems identified through assessment. Planning includes:

(A) goal setting;

(B) establishing priorities for management of care;

(C) making decisions about specific measures to be used to resolve the resident’s problems; and/or

(D) assisting in the development of appropriate coping mechanisms.

(23) Controlled substance - A drug, substance, or immediate precursor as defined in the Texas Controlled Substance Act, Texas Health and Safety Code, Chapter 481, and/or the Federal Controlled Substance Act of 1970, Public Law 91-513.

(24) Controlling person - A person with the ability, acting alone or in concert with others, to directly or indirectly, influence, direct, or cause the direction of the management, expenditure of money, or policies of a nursing facility or other person. A controlling person does not include a person, such as an employee, lender, secured creditor, or landlord, who does not exercise any influence or control, whether formal or actual, over the operation of a facility. A controlling person includes:

(A) a management company, landlord, or other business entity that operates or contracts with others for the operation of a nursing facility;

(B) any person who is a controlling person of a management company or other business entity that operates a nursing facility or that contracts with another person for the operation of a nursing facility; and

(C) any other individual who, because of a personal, familial, or other relationship with the owner, manager, landlord, tenant, or provider of a nursing facility, is in a position of actual control or authority with respect to the nursing facility, without regard to whether the individual is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility.

(25) Dangerous drugs - Any drug as defined in the Texas Health and Safety Code, Chapter 483.

(26) Dentist - A practitioner licensed by the Texas State Dental Examiners Board.

(27) Department - Texas Department of Human Services.

(28) DHS - Texas Department of Human Services. (29) Dietitian - A qualified dietitian is one who is qualified based upon either:

(A) registration by the Commission on Dietetic Registration of the American Dietetic Association; or

(B) licensure, or provisional licensure, by the Texas State Board of Examiners of Dietitians. These individuals must have one year of supervisory experience in dietetic service of a health care facility.

(30) Direct care by licensed nurses - Direct care consonant with the physician’s planned regimen of total resident care includes:

(A) assessment of the resident’s health care status;

(B) planning for the resident’s care;

(C) assignment of duties to achieve the resident’s care;

(D) nursing intervention; and

(E) evaluation and change of approaches as necessary.

(31) Distinct part - That portion of a facility certified to participate in the Medicaid Nursing Facility program.

(32) Drug (also referred to as medication) - Any of the following:

(A) Any substance recognized as a drug in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them;

(B) Any substance intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man;

(C) Any substance (other than food) intended to affect the structure or any function of the body of man; and

(D) Any substance intended for use as a component of any substance specified in subparagraphs (A)-(C) of this definition. It does not include devices or their components, parts, or accessories.

(33) Durable power of attorney for health care - The legal document which designates an agent to make treatment decisions if the individual designator becomes incapable.

(34) Emergency - A sudden change in a resident’s condition requiring immediate medical intervention.

(35) Exploitation - The illegal or improper act or process of a caretaker using the resources of an elderly or disabled person for monetary or personal benefit, profit, or gain.

(36) Exposure (infections) - The direct contact of blood or other potentially infectious materials of one person with the skin or mucous membranes of another person. Other potentially infectious materials include the following human body fluids: semen, vaginal secretions, cerebrospinal fluid, peritoneal fluid, amniotic fluid, saliva in dental procedures, and body fluid that is visibly contaminated with blood, and all body fluids when it is difficult or impossible to differentiate between body fluids.

(37) Facility - Unless otherwise indicated, a facility is an institution that provides organized and structured nursing care and service and is subject to licensure under Health and Safety Code, Chapter 242.

(A) For Medicaid, a facility is a nursing facility which meets the requirements of ง1919(a)-(d) of the Social Security Act. A facility may not include any institution that is for the care and treatment of mental diseases except for services furnished to individuals age 65 and over and who are eligible as defined in ง19.2500 of this title (relating to Preadmission Screening and Annual Resident Review (PASARR)).

(B) For Medicare and Medicaid purposes (including eligibility, coverage, certification, and payment), the "facility" is always the entity which participates in the program, whether that entity is comprised of all of, or a distinct part of, a larger institution.

(C) "Facility" is also referred to as a nursing home or nursing facility. Depending on context, these terms are used to represent the management, administrator, or other persons or groups involved in the provision of care of the resident; or to represent the physical building, which may consist of one or more floors or one or more units, or which may be a distinct part of a licensed hospital.

(38) Facility nurse assessor - The licensed nurse in the nursing facility, who completes the Client Assessment, Review and Evaluation (CARE) forms.

(39) Family representative - An individual appointed by the resident to represent the resident and other family members, by formal or informal arrangement.

(40) Fiduciary agent - An individual who holds in trust another’s monies.

(41) Free choice - Unrestricted right to choose a qualified provider of services.

(42) Goals - Long-term: general statements of desired outcomes. Short-term: measurable time-limited, expected results which provide the means to evaluate the resident’s progress toward achieving long-term goals.

(43) Governmental unit - A state or a political subdivision of the state, including a county or municipality.

(44) HCFA - Health Care Financing Administration.

(45) Health care provider - An individual, including a physician, or facility licensed, certified, or otherwise authorized to administer health care, in the ordinary course of business or professional practice.

(46) Hearing - A contested case hearing held in accordance with the Administrative Procedure Act, Texas Government Code, Chapter 2001, and DHS’s formal hearing procedures in Chapter 79 of this title (relating to Legal Services).

(47) HIV - Human Immunodeficiency Virus.

(48) Incident - An abnormal event, including accidents or injury to staff or residents, which are documented in facility reports. An occurrence in which a resident may have been subject to abuse, neglect, or exploitation must also be reported to DHS.

(49) Infection control - A program designed to prevent the transmission of disease and infection in order to provide a safe and sanitary environment.

(50) Inspection - Any on-site visit to or survey of an institution by DHS for the purpose of licensing, monitoring, complaint investigation, architectural review, or similar purpose.

(51) Interdisciplinary care plan - See the definition of "comprehensive care plan."

(52) IV - Intravenous.

(53) Legend drug or prescription drug - Any drug that requires a written or telephonic order of a practitioner before it may be dispensed by a pharmacist, or that may be delivered to a particular resident by a practitioner in the course of the practitioner’s practice.

(54) Licensed health professional - A physician; physician assistant; nurse practitioner; physical, speech, or occupational therapist; pharmacist; physical or occupational therapy assistant; registered professional nurse; licensed vocational nurse; or licensed social worker.

(55) Licensed nursing home (facility) administrator - A person currently licensed by the Texas Board of Nursing Facility Administrators.

(56) Licensed vocational nurse (LVN) - A nurse who is currently licensed by the Board of Vocational Nurse Examiners for the State of Texas.

(57) Life Safety Code (also referred to as the Code or NFPA 101) - The Code for Safety to Life from Fire in Buildings and Structures, Standard 101, of the National Fire Protection Association (NFPA).

(58) Life safety features - Fire safety components required by the Life Safety Code, including, but not limited to, building construction, fire alarm systems, smoke detection systems, interior finishes, sizes and thicknesses of doors, exits, emergency electrical systems, and sprinkler systems.

(59) Life support - Use of any technique, therapy, or device to assist in sustaining life. (See ง19.419 of this title (relating to Directives and Durable Powers of Attorney for Health Care).)

(60) Local authorities - Persons, including, but not limited to, local health authority, fire marshal, and building inspector, who may be authorized by state law, county order, or municipal ordinance to perform certain inspections or certifications.

(61) Local health authority - The physician appointed by the governing body of a municipality or the commissioner’s court of the county to administer state and local laws relating to public health in the municipality’s or county’s jurisdiction as defined in Health and Safety Code, ง121.021.

(62) Long-term care-regulatory - A department in the long-term care division of DHS responsible for surveying nursing facilities to determine compliance with regulations for licensure and certification for Title XIX participation.

(63) Manager - A person, other than a licensed nursing home administrator, having a contractual relationship to provide management services to a facility.

(64) Management services - Services provided under con-tract between the owner of a facility and a person to provide for the operation of a facility, including administration, staffing, maintenance, or delivery of resident services. Management services do not include contracts solely for maintenance, laundry, or food service.

(65) Medicaid applicant - A person who is requesting the determination of eligibility to become a Medicaid recipient.

(66) Medicaid nursing facility vendor payment system -Electronic billing and payment system for reimbursement to nursing facilities for services provided to eligible Medicaid recipients.

(67) Medicaid recipient - A person who meets the eligibility requirements of the Title XIX Medicaid program, is eligible for nursing facility services, and resides in a Medicaid-participating facility.

(68) Medical director - A physician licensed by the Texas State Board of Medical Examiners, who is engaged by the nursing home to assist in and advise regarding the provision of nursing and health care.

(69) Medical necessity (MN) - The determination that a recipient requires the services of licensed nurses in an institutional setting to carry out the physician’s planned regimen for total care. A recipient’s need for custodial care in a 24-hour institutional setting does not constitute a medical need.

(70) Medical necessity assessment - The process by which the applicant’s or recipient’s medical condition is evaluated to deter-mine the need for nursing facility care based upon information supplied by the nursing facility.

(71) Medical-social care plan - See Interdisciplinary Comprehensive Care Plan.

(72) Medically-related condition - An organic, debilitating disease or health disorder that requires services provided in a nursing facility, under the supervision of licensed nurses.

(73) Medication aide - A person who holds a current permit issued under the Medication Aide Training Program as described in Chapter 95 of this title (relating to Medication Aides) and acts under the authority of a person who holds a current license under state law which authorizes the licensee to administer medication.

(74) Minimum data set (MDS) - See Resident Assessment Instrument (RAI).

(75) Misappropriation of funds - The taking, secretion, misapplication, deprivation, transfer, or attempted transfer to any person not entitled to receive any property, real or personal, or anything of value belonging to or under the legal control of a resident without the effective consent of the resident or other appropriate legal authority, or the taking of any action contrary to any duty imposed by federal or state law prescribing conduct relating to the custody or disposition of property of a resident.

(76) Natural Death Act - Provisions of Texas Health and Safety Code, Chapter 672.

(77) 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.

(78) NHIC - The National Heritage Insurance Corporation; the intermediary for the Texas Medicaid program.

(79) Nonnursing personnel - Persons not assigned to give direct personal care to residents; including administrators, secretaries, activities directors, bookkeepers, cooks, janitors, maids, laundry workers, and yard maintenance workers.

(80) Nurse aide - An individual providing nursing or nursing- related services to residents in a facility under the supervision of a licensed nurse. This definition does not include an individual who is a licensed health professional, a registered dietitian, or someone who volunteers such services without pay. A nurse aide is not authorized to provide nursing and/or nursing-related services for which a license or registration is required under state law.

(81) Nurse aide trainee - An individual who is attending a program teaching nurse aide skills.

(82) Nurse practitioner - A registered nurse currently li-censed by the Board of Nurse Examiners for the State of Texas, who is prepared for advanced nursing practice by nature of knowledge and skills obtained through a post-basic or advanced educational program of study acceptable to the Board and which meet the requirements of Rule 219.1 - Rules and Regulations Related to Professional Nurse Education, Licensure, and Practice from the Board of Nurse Examiners for the State of Texas. According to federal requirements (42 Code of Federal Regulations ง491.2) a nurse practitioner is a registered professional nurse who is currently licensed to practice in the State of Texas, who meets the state’s requirements governing the qualifications of nurse practitioners, and who meets one of the following conditions:

(A) is currently certified as a primary care nurse practitioner by the American Nurses’ Association or by the National Board of Pediatric Nurse Practitioners and Associates; or

(B) has satisfactorily completed a formal one-academic- year educational program that:

(i) prepares registered nurses to perform an expanded role in the delivery of primary care;

(ii) includes at least four months (in the aggregate) of classroom instruction and a component of supervised clinical practice; and

(iii) awards a degree, diploma, or certificate to per-sons who successfully complete the program; or

(C) has successfully completed a formal educational program (for preparing registered nurses to perform an expanded role in the delivery of primary care) that does not meet the requirements of paragraph (b)(2) of 42 CFR ง491.2, and has been performing an expanded role in the delivery of primary care for a total of 12 months during the 18-month period immediately preceding July 14, 1978.

(83) Nurse reviewer - The registered professional nurse employed by DHS to monitor the accuracy of the CARE assessment data.

(84) Nursing assessment - See definition of "comprehensive assessment" and "comprehensive care plan."

(85) Nursing care - Services provided by nursing personnel which include, but are not limited to, observation; promotion and maintenance of health; prevention of illness and disability; management of health care during acute and chronic phases of illness; guidance and counseling of individuals and families; and referral to physicians, other health care providers, and community resources when appropriate.

(86) Nursing facility/home - An institution that provides organized and structured nursing care and service, and is subject to licensure under Health and Safety Code, Chapter 242. The nursing facility may also be certified to participate in the Medicaid Title XIX program. Depending on context, these terms are used to represent the management, administrator, or other persons or groups involved in the provision of care to the residents; or to represent the physical building, which may consist of one or more floors or one or more units, or which may be a distinct part of a licensed hospital.

(87) Nursing facility/home administrator - See the definition of "licensed nursing home (facility) administrator."

(88) Nursing personnel - Persons assigned to give direct personal and nursing services to residents, including registered nurses, licensed vocational nurses, nurses aides, orderlies, and medication aides. Unlicensed personnel function under the authority of licensed personnel.

(89) Objectives - See definition of "goals."

(90) OBRA - Omnibus Budget Reconciliation Act of 1987, which includes provisions relating to nursing home reform, as amended.

(91) Ombudsman - An advocate who is a certified representative, staff member, or volunteer, of the Office of the State Long Term Care Ombudsman, Texas Department on Aging.

(92) Optometrist - An individual with the profession of examining the eyes for defects of refraction and prescribing lenses for correction who is licensed by the Texas Optometry Board.

(93) PASARR - Preadmission Screening and Annual Resident Review.

(94) Patient care-related electrical appliance - An electrical appliance that is intended to be used for diagnostic, therapeutic, or monitoring purposes in a patient care area, as defined in Standard 99 of the National Fire Protection Association.

(95) Person - An individual, firm, partnership, corporation, association, joint stock company, limited partnership, limited liability company, or any other legal entity, including a legal successor of those entities.

(96) Person with a disclosable interest - A person with a disclosable interest is any person who owns at least a 5.0% interest in any corporation, partnership, or other business entity that is required to be licensed under Health and Safety Code, Chapter 242. A person with a disclosable interest does not include a bank, savings and loan, savings bank, trust company, building and loan association, credit union, individual loan and thrift company, investment banking firm, or insurance company, unless these entities participate in the management of the facility.

(97) Pharmacist - An individual, licensed by the Texas State Board of Pharmacy to practice pharmacy, who prepares and dispenses medications prescribed by a physician, dentist, or podiatrist.

(98) Physical restraint - See Restraints (physical).

(99) Physician - A doctor of medicine or osteopathy currently licensed by the Texas State Board of Medical Examiners.

(100) Physician assistant (PA) -

(A) A graduate of a physician assistant training program that is accredited by the Committee on Allied Health Education and Accreditation of the Council on Medical Education of the American Medical Association, or

(B) A person who has passed the examination given by the National Commission on Certification of Physician Assistants. According to federal requirements (42 CFR ง491.2) a physician assistant is a person who meets the applicable state requirements governing the qualifications for assistant to primary care physicians, and who meets at least one of the following conditions:

(i) is currently certified by the National Commission on Certification of Physician Assistants to assist primary care physicians; or

(ii) has satisfactorily completed a program for preparing physician’s assistants that:

(I) was at least one academic year in length;

(II) consisted of supervised clinical practice and at least four months (in the aggregate) of classroom instruction directed toward preparing students to deliver health care; and

(III) was accredited by the American Medical Association’s Committee on Allied Health Education and Accreditation; or

(C) A person who has satisfactorily completed a formal educational program for preparing physician assistants who does not meet the requirements of paragraph (d)(2), 42 CFR ง491.2, and has been assisting primary care physicians for a total of 12 months during the 18-month period immediately preceding July 14, 1978.

(101) Podiatrist - A practitioner whose profession encompasses the care and treatment of feet who is licensed by the Texas State Board of Podiatry Examiners.

(102) Poison - Any substance that federal or state regulations require the manufacturer to label as a poison and is to be used externally by the consumer from the original manufacturer’s container. Drugs to be taken internally which contain the manufacturer’s poison label, but are dispensed by a pharmacist only by or on the prescription order of a physician, are not considered a poison, unless regulations specifically require poison labeling by the pharmacist.

(103) Practitioner - A physician, podiatrist, or dentist, when relating to Pharmacy Services.

(104) Preadmission medical necessity determination - The determination of need for nursing facility care before the individual’s admission into the nursing facility. This determination is valid until admission into a nursing facility or up to 30 days from the effective date.

(105) PRN (pro re nata) - As needed.

(106) Provider - The individual or legal business entity that is contractually responsible for providing Medicaid services under an agreement with DHS.

(107) Psychoactive drugs - Drugs prescribed to control mood, mental status, or behavior.

(108) Qualified surveyor - An employee of DHS who has completed state and federal training on the survey process and passed a federal standardized exam.

(109) Quality assessment and assurance committee - A group of health care professionals in a facility who develop and implement appropriate action to identify and rectify substandard care and deficient facility practice.

(110) Recipient - Any individual residing in a Medicaid certified facility or a Medicaid certified distinct part of a facility whose daily vendor rate is paid by Medicaid.

(111) Registered nurse (RN) - An individual currently licensed by the Board of Nurse Examiners for the State of Texas as a Registered Nurse in the State of Texas.

(112) Reimbursement methodology - The method by which DHS determines nursing facility per diem rates.

(113) Remodeling - The construction, removal, or relocation of walls and partitions, the construction of foundations, floors, or ceiling-roof assemblies, the expanding or altering of safety systems (including, but not limited to, sprinkler, fire alarm, and emergency systems) or the conversion of space in a facility to a different use.

(114) Renovation - The restoration to a former better state by cleaning, repairing, or rebuilding, including, but not limited to, routine maintenance, repairs, equipment replacement, painting.

(115) Representative payee - A person designated by the Social Security Administration to receive and disburse benefits, act in the best interest of the beneficiary, and ensure that benefits will be used according to the beneficiary’s needs.

(116) Resident - Any individual residing in a nursing facility.

(117) Resident assessment instrument (RAI) - An assessment tool utilized to conduct comprehensive, accurate, standardized, and reproducible assessments of each resident’s functional capacity as specified by the Secretary of the U.S. Department of Health and Human Services. At a minimum, this instrument must consist of the Minimum Data Set (MDS) core elements as specified by the Health Care Financing Administration (HCFA); utilization guidelines; and Resident Assessment Protocols (RAPS).

(118) Responsible party - An individual authorized by the resident to act for him as an official delegate or agent. Responsible party is usually a family member or relative, but may be a legal guardian or other individual. Authorization may be in writing or verbal.

(119) Restraints (chemical) - Psychoactive drugs administered for the purposes of discipline, or convenience, and not required to treat the resident’s medical symptoms.

(120) Restraints (physical) - Any manual method, or physical or mechanical device, material or equipment attached, or adjacent to the resident’s body, that the individual cannot remove easily which restricts freedom of movement or normal access to one’s body.

(121) Secretary - Secretary of Health and Human Services.

(122) Services required on a regular basis - Services which are provided at fixed or recurring intervals and are needed so frequently that it would be impractical to provide the services in a home or family setting. Services required on a regular basis include continuous or periodic nursing observation, assessment, and intervention in all areas of resident care.

(123) SNF - A skilled nursing facility or distinct part of a facility that participates in the Medicare program. SNF requirements apply when a certified facility is billing Medicare for a resident’s per diem rate.

(124) Social Security Administration - Federal agency for administration of social security benefits. Local social security administration offices take applications for Medicare, assist beneficiaries in filing claims, and provide information about the Medicare program.

(125) Social Worker - A qualified social worker is an individual who is licensed, or provisionally licensed, by the Texas State Board of Social Work Examiners as prescribed by Chapter 50 of the Human Resources Code and who has at least:

(A) a bachelor’s degree in social work, or

(B) similar professional qualifications which include a minimum educational requirement of a bachelor’s degree and one year experience met by employment providing social services in a health care setting.

(126) Standards - The minimum conditions, requirements, and criteria established in this chapter with which an institution must comply to be licensed under this chapter.

(127) State plan - A formal plan for the medical assistance program, submitted to HCFA, in which the State of Texas agrees to administer the program in accordance with the provisions of the State Plan, the requirements of Titles XVIII and XIX, and all applicable federal regulations and other official issuances of the United States Department of Health and Human Services.

(128) State survey agency - The Texas Department of Human Services is the agency, which through contractual agreement with the single state agency, is designated as the agency responsible for Title XIX survey and certification of nursing facilities and utilization review in the Title XIX nursing facilities.

(129) Supervising physician - A physician who assumes responsibility and legal liability for services rendered by a physician assistant (PA) and has been approved by the Texas State Board of Medical Examiners to supervise services rendered by specific Pas. A supervising physician may also be a physician who provides general supervision of a nurse practitioner providing services in a nursing facility.

(130) Supervision - General supervision, unless otherwise identified.

(131) Supervision (direct) - Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity within his sphere of competence. If the person being supervised does not meet assistant-level qualifications specified in this chapter and in federal regulations, the supervisor must be on the premises and directly supervising.

(132) Supervision (general) - Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity within his sphere of competence. The person being supervised must have access to the licensed and/or qualified person providing the supervision.

(133) Supervision (intermittent) - Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity within his sphere of competence, with initial direction and periodic inspection of the actual act of accomplishing the function or activity. The person being supervised must have access to the licensed and/or qualified person providing the supervision.

(134) Texas Register - A publication of the Texas Register Publications Section of the Office of the Secretary of State which contains emergency, proposed, withdrawn, and adopted rules issued by Texas state agencies. The Texas Register was established by the Administrative Procedure and Texas Register Act of 1975.

(135) Therapeutic diet - A diet ordered by a physician as part of treatment for a disease or clinical condition, in order to eliminate, decrease, or increase certain substances in the diet or to provide food which has been altered to make it easier for the resident to eat.

(136) Therapy week - A seven-day period beginning the first day rehabilitation therapy or restorative nursing care is given. All subsequent therapy weeks for a particular individual will begin on that day of the week.

(137) Threatened violation - A situation which, unless immediate steps are taken to correct, may cause injury or harm to a resident’s health and safety.

(138) TILE - Texas Index for Level of Effort; an index of 11 categories plus a default that consists of relative resource utilization groups. The index determines where a nursing facility client fits based upon service and care requirements. It determines the daily rate to be paid on behalf of the client.

(139) TILE 202 restorative nursing - Nursing care and practices, based on a plan of care developed by the restorative team, designed to maintain or improve on goals achieved during physical or occupational therapy. Examples of TILE 202 restorative nursing include training and skill practice in self-feeding, bed mobility, transfers, ambulation, dressing or grooming, and active range of motion.

(140) TILE error - Inaccuracies in a CARE form assessment of a Medicaid recipient which result in an incorrect TILE classification.

(141) Title II - Retirement Survivors’ Disability Insurance of the Social Security Act.

(142) Title XVI - Supplemental Security Income (SSI) of the Social Security Act.

(143) Title XVIII - Medicare provisions of the Social Security Act.

(144) Title XIX - Medicaid provisions of the Social Security Act.

(145) Total health status - Includes functional status, medical care, nursing care, nutritional status, rehabilitation and restorative potential, activities potential, cognitive status, oral health status, psychosocial status, and sensory and physical impairments.

(146) TXMHMR- Texas Department of Mental Health and Mental Retardation.

(147) UAR - DHS’s Utilization and Assessment Review Section.

(148) Uniform data set - See Resident Assessment Instrument (RAI).

(149) Universal precautions - The use of barrier and other precautions by long term care facility employees and/or contract agents to prevent the spread of blood-borne diseases.

(150) Utilization review committee - The group of health care professionals contracted by DHS to make individual determinations of medical necessity regarding nursing facility care. The Utilization Review Committee consists of physicians and registered nurses.

(151) Vendor payment - Payment made by DHS on a daily-rate basis for services delivered to recipients in Medicaid-certified nursing facilities. Vendor payment is based on the nursing facility’s claim approval of the DHS-generated Nursing Facility Billing Statement to DHS. The Nursing Facility Billing Statement, subject to adjustments and corrections, is prepared from information submitted by the nursing facility which is currently on file in the computer system as of the billing date. Vendor payment is made at periodic intervals, but not less than once per month for services rendered during the previous billing cycle.

(152) Working day - Any 24-hour period, Monday through Friday, excluding state and federal holidays.

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 June 28, 2000.

TRD-200004509

For further information, please call: (512) 438-3108

SUBCHAPTER C. NURSING FACILITY LICENSURE APPLICATION PROCESS

40 TAC งง19.201, 19.204, 19.205, 19.209, 19.210, 19.216

The amendments and new section are adopted under the Health and Safety Code, Chapter 242, which authorizes the department to license and regulate nursing facilities.

The amendments and new section implement the Health and Safety Code, ง242.001-242.268.

ง19.209. Exclusion from Licensure.

(a) The Texas Department of Human Services, after providing notice and opportunity for a hearing, may exclude a person from eligibility for a license if the person or any person described in ง19.201(e) of this title (relating to Criteria for Licensing) has substantially failed to comply with the rules in this chapter. Exclusion of a person must extend for at least two years, but not more that ten years.

(b) A license holder or controlling person who operates a nursing facility or an assisted living facility for which a trustee was appointed and for which emergency assistance funds, other than funds to pay the expenses of the trustee, were used is subject to exclusion from eligibility for the:

(1) issuance of an original license for a facility for which the person has not previously held a license; or

(2) renewal of the license of the facility for which the trustee was appointed.

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 June 28, 2000.

TRD-200004511

For further information, please call: (512) 438-3108

40 TAC ง19.205

The repeal is adopted under the Health and Safety Code, Chapter 242, which authorizes the department to license and regulate nursing facilities.

The repeal implements the Health and Safety Code, ง242.001- 242.268.

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 June 28, 2000.

TRD-200004510

For further information, please call: (512) 438-3108

SUBCHAPTER D. FACILITY CONSTRUCTION

40 TAC งง19.301, 19.311, 19.314, 19.321, 19.326, 19.340, 19.342

The amendments are adopted under the Health and Safety Code, Chapter 242, which authorizes the department to license and regulate nursing facilities.

The amendments implement the Health and Safety Code, ง242.001-242.268.

ง19.314. Fire Alarms, Detection Systems, and Sprinkler Systems.

Fire alarms, detection systems, and sprinkler systems must be as re-quired by the Life Safety Code, the National Fire Protection Association (NFPA) 72, and NFPA 13.

(1) Components must be compatible and laboratory listed for the use intended.
(2) Wiring and circuitry for alarm systems must meet the applicable requirements for NFPA standards, including NFPA 70, for these systems.
(3) Fire alarm systems must be installed, maintained, and repaired by an agent having a current certificate of registration with the State Fire Marshal’s Office of the Texas Commission on Fire Protection, in accordance with state law. A fire alarm installation certificate must be provided as required by the Office of the State Fire Marshal.
(4) Smoke detector sensitivity must be checked within one year after installation and every alternate year thereafter in accordance with NFPA 72. Documentation, including as-built installation drawings, operation and maintenance manuals, and a written sequence of operation for systems installed after July 1, 2000, must be available for examination by the Texas Department of Human Services (DHS).
(5) The fire alarm system must be designed so that when-ever the general alarm is sounded by activation of any device (such as manual pull, smoke sensor, sprinkler, or kitchen range hood extinguisher) the following will occur automatically:

(A) smoke and fire doors which are held open by an approved device must be released to close;
(B) air handlers (air conditioning/heating distribution fans) serving three or more rooms or any means of egress must shut down immediately;
(C) smoke dampers must close; and
(D) the alarm-initiating location must be clearly indicated on the fire alarm control panel(s) and all auxiliary panels.

(6) Consistent fire alarm bells or horns must be located throughout the building for audible coverage. Flashing alarm lights (visual alarms) must be installed to be visible in corridors and public areas including dining rooms and living rooms.
(7) A master control panel which indicates location of alarm and trouble conditions (by zone or device) must be visible at the main nurse station. All control panels must be listed in accordance with the provisions of the Underwriters Laboratories, Inc. (UL) for intended use, such as manual, automatic, and water-flow activation. Alarm and trouble zoning must be by smoke compartments and by floors in multi-story facilities.
(8) Remote annunciator panels, indicating location of alarm initiation by zone or device and common trouble signals, must be located at auxiliary or secondary nurses stations on each floor or major subdivision of single story facilities and indicate the alarm condition of adjacent zones and the alarm conditions at all other nurse stations.
(9) Manual pull stations must be provided at all exits, living rooms, dining rooms, and at or near the nurse stations.
(10) The NFPA 13 sprinkler system must be monitored for flow and tamper conditions by the fire alarm system.
(11) The kitchen range hood extinguisher must be interconnected with the fire alarm system. This interconnection may be a separate zone on the panel or combined with other initiating devices located in the same zone as the range hood is located.
(12) Partial sprinkler systems provided only for hazardous areas must be interconnected to the fire alarm system and comply with the Life Safety Code. Each partial system must have a valve with a supervisory switch to sound a supervisory signal, water-flow switch to activate the fire alarm, and an end-of-line test drain.

ง19.321. Heating, Ventilating, and Air-conditioning Systems (HVAC).

(a) The heating system must be capable of maintaining a temperature of not less than 71 degrees Fahrenheit at the resident level in all resident-use areas.

(1) Auxiliary heating devices permanently installed, such as heat strips in ducts, electric ceiling-mounted heating units, and electric baseboards, may be used to augment a central heating system as approved by the Texas Department of Human Services (DHS). See ง19.705 of this title (relating to Environment).
(2) All gas heating systems must be checked annually for proper operation and safety by persons who are licensed or approved by the State of Texas to inspect such equipment. A record of this service must be maintained by the facility. Any unsatisfactory condition must be corrected promptly.

(b) The cooling system must be capable of maintaining a temperature suitable for the comfort of the residents in resident-use areas.

(c) Air flow must be directed or adjusted so that a resident is not in direct drafts that could be harmful to the health and comfort of the resident.

(d) Unvented heating units and portable heaters are prohibited.

(e) The facility must be well ventilated through the use of windows, mechanical ventilation, or a combination of both. Rooms and areas which do not have outside windows and which are used by residents or personnel must be provided with functioning mechanical ventilation to change the air on a basis commensurate with the room usage. Air systems must provide for the induction and mixing of at least 10% outside fresh air into the facility unless otherwise approved by DHS; that is, 100% continuous recirculation of interior air in most areas is not acceptable. When certain rooms or areas are dependent on a central air system for proper ventilation, including exhaust, that central air system fan must run continuously.

(f) Operable outside windows must be provided with insect screens. Outside doors must be self-closing to control entry of insects. All exterior doors must be effectively weather stripped.

(g) Heating and air conditioning systems must be provided with clean and effective air filters.

(h) Ducts and piping subject to surface condensation must be insulated to prevent condensation at least in areas which may affect sanitation or cause building deterioration.

(i) A comfortable temperature for residents when bathing must be provided.

(j) Heating, ventilating, and air conditioning systems must comply with the provisions of applicable National Fire Prevention Association (NFPA) standards. Ducts are to be of a Class A material (noncombustible). Combustion air for gas-fired equipment must be ducted from the exterior.

(k) Air flow must be designed to prevent cross contamination within any area where applicable, such as laundries and kitchens, as well as the system or facility as a whole.

(l) In relation to adjacent areas, a positive air pressure must be provided for clean utility rooms, clean linen rooms, and medication rooms. Conditioned supply air must be introduced into these rooms.

(m) In relation to adjacent areas, a negative air pressure must be provided for soiled utility rooms, soiled laundry rooms, bathrooms, toilets, and other odor-producing rooms. Air from these rooms must not be recirculated, but instead must be exhausted through ducts to the exterior by effective means.

(n) Facility temperature must be maintained for the comfort of residents.

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 June 28, 2000.

TRD-200004512

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Effective date: August 1, 2000

Proposal publication date: March 3, 2000

For further information, please call: (512) 438-3108

SUBCHAPTER E. RESIDENT RIGHTS

40 TAC งง19.403, 19.408, 19.419

The amendments are adopted under the Health and Safety Code, Chapter 242, which authorizes the department to license and regulate nursing facilities.

The amendments implement the Health and Safety Code, ง242.001-242.268.

ง19.419. Directives and Medical Powers of Attorney.

(a) Competent adults may issue advance directives in accordance with applicable laws.

(b) The nursing facility must maintain policies and procedures regarding the following rules with respect to all adult individuals receiving services provided by the facility:

(1) the facility must maintain written policies regarding the implementation of advance directives. The policies must include a clear and precise statement of any procedure the facility is unwilling or unable to provide or withhold in accordance with an advance directive;

(2) upon admission, all individuals must be provided with the following written information:

(A) the individual’s rights under Texas law (whether statutory or as recognized by the courts of the state) to make decisions concerning medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives; and

(B) the nursing facility’s policies respecting the implementation of these rights including the written policies regarding the implementation of advance directives;

(3) the nursing facility must document in the resident’s clinical record whether or not the individual has executed an advance directive;

(4) the nursing facility must not condition the provision of care or otherwise discriminate against an individual based on whether or not the individual has executed an advance directive;

(5) the facility must ensure compliance with the requirements of Texas law, whether statutory or as recognized by the courts of Texas, respecting advance directives;

(6) the facility must provide, individually or with others, for education for staff and the community on issues concerning advance directives. For the community, this may include, but is not limited to, newsletters, articles in the newspaper, local news reports, or commercials. For educating staff, this may include, but is not limited to, in-service programs;

(7) the facility must provide the attending physician with any information relating to a known existing Directive to Physicians and/or Living Will or Medical Power of Attorney, and assist with coordinating physicians’ orders with any resident directive;

(8) when an individual is in a comatose or otherwise incapacitated state, and therefore is unable to receive information or articulate whether he has executed an advance directive:

(A) written information regarding advance directives, including facility policies regarding the implementation of advance directives, must be provided in the following order of preference, to:

(i) the resident’s legal guardian;

(ii) a person responsible for the resident’s health care decisions;

(iii) the resident’s spouse;

(iv) the resident’s adult child;

(v) the resident’s parents; or

(vi) the person admitting the resident.

(B) if the facility is unable, after diligent search, to locate an individual listed under subparagraph (A) of this paragraph, the facility is not required to give notice;

(9) if a resident, who was incompetent or otherwise incapacitated and unable to receive information regarding advance directives, including written policies regarding the implementation of advance directives, later becomes able to receive the information, the facility must provide the written information at the time the individual becomes able to receive the information; and

(10) when the resident or a relative, surrogate, or other concerned or related individual presents the facility with a copy of the individual’s advance directive, the facility must comply with the advance directive including recognition of a Medical Power of Attorney, to the extent allowed under state law. If no one comes forward with a previously executed advance directive and the resident is incapacitated or otherwise unable to receive information or articulate whether he has executed an advance directive, the facility must note that the individual was not able to receive information and was unable to communicate whether an advance directive existed.

(c) Failure to inform the resident of facility policies regarding the implementation of advance directives will result in an administrative penalty of $500.

(d) Nursing facilities that provide services to children must ensure that:

(1) prior to admission to the facility, the primary physician, who has been providing care to the child, has discussed advance directives with the family or guardian and documented this discussion; and

(2) the decision made by the family or guardian regarding advance directives is addressed in the comprehensive care plan (see ง19.802 of this title (relating to Comprehensive Care Plans)).

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 June 28, 2000.

TRD-200004513

For further information, please call: (512) 438-3108

SUBCHAPTER F. ADMISSION, TRANSFER, AND DISCHARGE RIGHTS IN MEDICAID-CERTIFIED FACILITIES

40 TAC ง19.502

The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs; the Health and Safety Code, Chapter 242, which authorizes the department to license and regulate nursing facilities; and under Texas Government Code ง531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds.

The amendment implements the Health and Safety Code, ง242.001-242.268, and the Human Resources Code, งง22.001-22.024 and 32.001-32.040.

ง19.502. Transfer and Discharge in Medicaid-certified Facilities.

(a) Definition. Transfer and discharge includes movement of a resident to a bed outside the certified facility, whether that bed is in the same physical plant or not. Transfer and discharge does not refer to movement within the same certified facility.

(b) Transfer and discharge requirements. The facility must permit each resident to remain in the facility and must not transfer or discharge the resident from the facility unless:

(1) the transfer or discharge is necessary for the resident’s welfare, and the resident’s needs cannot be met in the facility;

(2) the transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility;

(3) the safety of individuals in the facility is endangered;

(4) the health of other individuals in the facility would otherwise be endangered;

(5) the resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid;

(6) the resident, responsible party, or family or legal representative requests a voluntary transfer or discharge; or

(7) the facility ceases to operate or participate in the pro-gram which pays for the resident’s care. See ง19.2310 of this title (relating to Nursing Facility Ceases to Participate). If the facility voluntarily withdraws from participation in Medicaid, but continues to provide nursing facility services:

(A) the facility’s voluntary withdrawal from Medicaid is not an acceptable basis for the transfer or discharge of residents who were residing in the facility on the day before the effective date of the withdrawal (including those residents who were not entitled to Medicaid assistance as of such day);

(B) for individuals who begin residence in the facility after the effective date of the withdrawal, the facility must provide notice orally and in a prominent manner in writing on a separate page of the admission agreement at the time the resident begins residence and document receipt in writing, signed by the individual, and separate from other documents signed by the individual of the following information:

(i) The facility is not participating in the Medicaid program with respect to these residents.

(ii) The facility may transfer or discharge these residents if they are unable to pay the charges of the facility, even though the resident may have become eligible for Medicaid nursing facility services.

(c) Documentation. When the facility transfers or discharges a resident under any of the circumstances specified in subsection (b)(1)-(5) of this section, the resident’s clinical record must be documented. The documentation must be made by:

(1) the resident’s physician when transfer or discharge is necessary under subsection (b)(1) or (2) of this section; and

(2) a physician when transfer or discharge is necessary under subsection (b)(4) of this section.

(d) Notice before transfer. Before a facility transfers or discharges a resident, the facility must:

(1) notify the resident and, if known, a responsible party or family or legal representative of the resident about the transfer or discharge and the reasons for the move in writing and in a language and manner they will understand;

(2) record the reasons in the resident’s clinical record; and

(3) include in the notice the items described in subsection (f) of this section.

(e) Timing of the notice.

(1) Except when specified in paragraph (3) of this subsection, the notice of transfer or discharge required under subsection (d) of this section must be made by the facility at least 30 days before the resident is transferred or discharged.

(2) The requirements described in paragraph (1) of this subsection and subsection (g) of this section do not have to be met if the resident, responsible party, or family or legal representative requests the transfer or discharge.

(3) Notice may be made as soon as practicable before transfer or discharge when:

(A) the safety of individuals in the facility would be endangered, as specified in subsection (b)(3) of this section;

(B) the health of individuals in the facility would be endangered, as specified in subsection (b)(4) of this section;

(C) the resident’s health improves sufficiently to allow a more immediate transfer or discharge, as specified in subsection (b)(2) of this section;

(D) the transfer and discharge is necessary for the resident’s welfare because the resident’s needs cannot be met in the facility, as specified in subsection (b)(1) of this section, and the resident’s ur-gent medical needs require an immediate transfer or discharge; or

(E) a resident has not resided in the facility for 30 days.

(4) When an immediate involuntary transfer or discharge as specified in subsection (b)(3) or (4) of this section, is contemplated, unless the discharge is to a hospital, the facility must:

(A) immediately call the staff of the state office LTC-R Customer Service Section of the Texas Department of Human Services (DHS) to report their intention to discharge; and

(B) submit the required physician documentation regarding the discharge.

(f) Contents of the notice. For nursing facilities, the written notice specified in subsection (d) of this section must include the following:

(1) the reason for transfer or discharge;

(2) the effective date of transfer or discharge;

(3) the location to which the resident is transferred or discharged;

(4) a statement that the resident has the right to appeal the action as outlined in DHS’s Fair Hearings, Fraud, and Civil Rights Handbook by requesting a hearing through the Medicaid eligibility worker at the local DHS office within 10 days;

(5) the name, address, and telephone number of the regional representative of the Office of the State Long Term Care Ombudsman, Texas Department on Aging, and of the toll-free number of the Texas Long Term Care Ombudsman, 1-800-252-2412;

(6) in the case of a resident with mental illness or mental retardation, the address and phone number of the state mental health/mental retardation authority, which is: Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668, 1-800-252-8154; and the phone number of the agency responsible for the protection and advocacy of persons with mental illness or mental retardation and/or related conditions, which is: Advocacy Incorporated, 7800 Shoal Creek Boulevard, Suite 175-E, Austin, Texas 78757, 1-800-252-9108.

(g) Orientation for transfer or discharge. A facility must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.

(h) Notice of relocation to another room. Except in an emergency, the facility must notify the resident and either the responsible party or the family or legal representative at least five days before relocation of the resident to another room within the facility. The facility must prepare a written notice which contains:

(1) the reasons for the relocation;

(2) the effective date of the relocation; and

(3) the room to which the facility is relocating the resident.

(i) Fair hearings.

(1) Individuals who receive a discharge notice from a facility have 10 days to appeal. If the recipient appeals, he may remain in the facility, except in the circumstances described in subsections (b)(5) and (e)(3) of this section, until the hearing officer makes a final de-termination. Vendor payments and eligibility will continue until the hearing officer makes a final determination. If the recipient has left the facility, Medicaid eligibility will remain in effect until the hearing officer makes a final determination.

(2) When the hearing officer determines that the discharge was inappropriate, the facility, upon written notification by the hearing officer, must readmit the resident immediately, or to the next available bed. If the discharge has not yet taken place, and the hearing officer finds that the discharge will be inappropriate, the facility, upon written notification by the hearing officer, must allow the resident to remain in the facility. The hearing officer will also report the findings to Long Term Care-Regulatory for investigation of possible noncompliance.

(3) When the hearing officer determines that the discharge is appropriate, the resident is notified in writing of this decision. Any payments made on behalf of the recipient past the date of discharge or decision, whichever is later, must be recouped.

(j) Discharge of married residents. If two residents in a facility are married and the facility proposes to discharge one spouse to another facility, the facility must give the other spouse notice of his right to be discharged to the same facility. If the spouse notifies a facility, in writing, that he wishes to be discharged to another facility, the facility must discharge both spouses on the same day, pending availability of accommodations.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State on June 28, 2000.

TRD-200004514

For further information, please call: (512) 438-3108

SUBCHAPTER G. RESIDENT BEHAVIOR AND FACILITY PRACTICE

40 TAC ง19.602

The amendment is adopted under the Health and Safety Code, Chapter 242, which authorizes the department to license and regulate nursing facilities.

The amendment implements the Health and Safety Code, ง242.001-242.268.

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 June 28, 2000.

TRD-200004515

For further information, please call: (512) 438-3108

SUBCHAPTER H. QUALITY OF LIFE

40 TAC ง19.703

The amendment is adopted under the Health and Safety Code, Chapter 242, which authorizes the department to license and regulate nursing facilities.

The amendment implements the Health and Safety Code, ง242.001-242.268.

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 June 28, 2000.

TRD-200004516

For further information, please call: (512) 438-3108

SUBCHAPTER L. DIETARY SERVICES

40 TAC ง19.1105

The repeal is adopted under the Health and Safety Code, Chapter 242, which authorizes the department to license and regulate nursing facilities.

The repeal implements the Health and Safety Code, ง242.001- 242.268.

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 June 28, 2000.

TRD-200004517

For further information, please call: (512) 438-3108

40 TAC ง19.1109

The amendment is adopted under the Health and Safety Code, Chapter 242, which authorizes the department to license and regulate nursing facilities.

The amendment implements the Health and Safety Code, ง242.001-242.268.

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 June 28, 2000.

TRD-200004518

For further information, please call: (512) 438-3108

SUBCHAPTER M. PHYSICIAN SERVICES

40 TAC ง19.1206

The amendment is adopted under the Health and Safety Code, Chapter 242, which authorizes the department to license and regulate nursing facilities.

The amendment implements the Health and Safety Code, ง242.001-242.268.

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 June 28, 2000.

TRD-200004519

For further information, please call: (512) 438-3108

SUBCHAPTER Q. INFECTION CONTROL

40 TAC ง19.1601

The amendment is adopted under the Health and Safety Code, Chapter 242, which authorizes the department to license and regulate nursing facilities.

The amendment implements the Health and Safety Code, ง242.001-242.268.

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 June 28, 2000.

TRD-200004520

For further information, please call: (512) 438-3108

SUBCHAPTER T. ADMINISTRATION

40 TAC ง19.1911

The repeal is adopted under the Health and Safety Code, Chapter 242, which authorizes the department to license and regulate nursing facilities.

The repeal implements the Health and Safety Code, ง242.001- 242.268.

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 June 28, 2000.

TRD-200004521

For further information, please call: (512) 438-3108

40 TAC ง19.1911, ง19.1921

The new section and the amendment are adopted under the Health and Safety Code, Chapter 242, which authorizes the department to license and regulate nursing facilities.

The new section and the amendment implement the Health and Safety Code, ง242.001-242.268.

ง19.1911. Contents of the Clinical Record.

The clinical record of each resident must contain:

(1) Sufficient information to identify and care for the resident, to include at a minimum:

(A) full name of resident;

(B) full home/mailing address;

(C) social security number;

(D) health insurance claim numbers, if applicable;

(E) date of birth; and

(F) clinical record number, if applicable.

(2) A record of the resident’s assessments.

(3) The comprehensive, interdisciplinary plan of care and services provided (see also ง19.802 of this title (relating to Comprehensive Care Plans)).

(4) The results of any preadmission screening and annual resident review conducted by the Texas Department of Human Services (DHS) or the Texas Department of Mental Health and Mental Retardation (TXMHMR).

(5) Progress notes from all health care practitioners involved in the resident’s care.

(6) Any directives or durable powers of attorney as described in ง19.419 of this title (relating to Directives and Medical Powers of Attorney).

(7) Discharge information in accordance with ง19.803 of this title (relating to Discharge Summary (Discharge Plan of Care)) and a physician discharge summary, to include, at least, dates of ad-mission and discharge, admitting and discharge diagnoses, condition on discharge, and prognosis, if applicable.

(8) At admission or within 14 days, documentation of an initial medical evaluation, including history, physical examination, diagnoses and an estimate of discharge potential and rehabilitation potential and documentation of an annual medical examination.

(9) Authentication of any hospital diagnoses.

(A) This may be in the form of a signed hospital discharge summary, a signed report from the resident’s hospital or attending physician, or a transfer form signed by the physician.

(B) The facility is allowed 14 workdays after admission to receive this information from the hospital or transferring facility. If the author of such reports is not the resident’s attending physician, then the attending physician must acknowledge the report in writing by co-signing the report at his or her next scheduled visit.

(10) The physician’s signed and dated orders, including medication, treatment, diet, restorative and special medical procedures, and routine care to maintain or improve the resident’s functional abilities (required for the safety and well-being of the resident). Changes cannot be made either on a handwritten or computerized physician’s order sheet after the orders have been signed by the physician unless space allows for additional orders below the physician’s signature, including space for the physician to sign and date again.

(11) Arrangements for the emergency care of the resident in accordance with ง19.1204 of this title (relating to Availability of Physician for Emergency Care).

(12) Observations made by nursing personnel according to the time frames specified in ง19.1010 of this title (relating to Nursing Practices). Facility staff must ensure that the observations show at least the following:

(A) items as specified on the Resident Assessment Instrument and the Texas Nursing Facility Client Assessment Review and Evaluation (CARE) form; and

(B) current information including:

(i) PRN medications and results;

(ii) treatments and any notable results;

(iii) physical complaints, changes in clinical signs and behavior, mental and behavioral status, and all incidents or accidents;

(iv) flowsheets which may include bathing, restraint observation and/or release documentation, elimination, fluid intake, vital signs, ambulation status, positioning, continency status and care, and weight;

(v) the resident’s ability to participate in activities of daily living as defined in ง19.1010(e)(1) of this title (relating to Nursing Practices); and

(vi) dietary intake to include deviations from normal diet, rejection of substitutions, and physician’s ordered snacks and/or supplemental feedings.

(13) The date and hour all drugs and treatments are administered.

(14) Documentation of special procedures performed for the safety and well-being of the resident must be included in the clinical record.

ง19.1921. General Requirements for a Nursing Facility.

(a) The facility must admit and retain only residents whose needs can be met through service from the facility staff, or in cooperation with community resources or other providers under contract.

(1) In any circumstance in which a facility refuses to admit a resident being transferred due to the emergency closure of another facility, the facility must provide the regional unit manager with a written statement of the reasons for the refusal within 10 working days.

(2) Failure to submit the written statement timely or including false or misleading information in the statement will result in an administrative penalty.

(b) Individuals who have met the requirements of ง19.2500 of this title (relating to Preadmission Screening and Annual Resident Review (PASARR) and have mental and/or physical diseases which endanger other residents may be admitted or retained if adequate rooms and care are provided to protect the other residents.

(c) The term "hospital" may not be used as part of the name of a nursing facility unless it has been classified and duly licensed as a hospital by the appropriate state agency.

(d) In the event any facility ceases operation, temporarily or permanently, voluntarily or involuntarily, notice must be provided to the residents and residents’ relatives or responsible parties of closure.

(e) Each licensed facility must conspicuously and prominently post the information listed in paragraphs (1)-(11) of this subsection in an area of the facility that is readily and customarily available to the public. The posting must be in a manner that each item of information is directly visible at a single time. In the case of a licensed section that is part of a larger building or complex, the posting must be in the licensed section or public way leading thereto. Any exceptions must be approved by the Texas Department of Human Services (DHS). The following items must be posted:

(1) the facility license;

(2) a complaint sign provided by DHS giving the toll-free telephone number;

(3) a notice in a form prescribed by DHS that inspection and related reports are available at the facility for public inspection. The reports must be maintained in a well-lighted accessible location and must include:

(A) a statement of the facility’s compliance record that is updated at least bi-monthly and reflects at least one year’s compliance record, in a form required by the department; and

(B) if a facility has been cited for a violation of residents’ rights, a copy of the citation, which must remain in the reports until any regulatory action with respect to the violation is complete, and DHS has determined that the facility is in full compliance with the applicable requirement;

(4) a concise summary in non-technical language prepared by DHS of the most recent inspection report;

(5) notice of DHS’s toll-free telephone number to obtain summary reports relating to the quality of care, recent investigations, litigation and other aspects of the operation of the institution;

(6) notice that DHS can provide information about the nursing facility administrator at 512-231-5825;

(7) if a facility has been ordered to suspend admissions, a notice of the suspension, which must be posted also on all doors providing public ingress to and egress from the facility;

(8) a statement of resident rights in the form adopted by DHS;

(9) a notice in a form prescribed by DHS stating that:

(A) a person has a cause of action against a facility, or the owner or employee of the facility, that suspends or terminates the employment of the person or otherwise disciplines or discriminates against the person, for reporting the abuse or neglect of a facility resident to the person’s supervisors, to DHS, or to a law enforcement agency, in accordance with the Health and Safety Code, Chapter 242; and

(B) a person making a bad faith, malicious, or reckless report of abuse or neglect is subject to a criminal penalty, in accordance with the Health and Safety Code, Chapter 242; and

(C) the facility has available for public inspection a copy of the Health and Safety Code, Chapter 242 (E), pertaining to abuse and neglect.

(10) for a facility which advertises, markets, or otherwise promotes that it provides services to residents with Alzheimer’s disease and related disorders, a disclosure statement describing the nature of its care or treatment of residents with Alzheimer’s disease and related disorders in accordance with ง19.204(b)(4) of this title (relating to Application Requirements).

(11) at each entrance to the facility, a sign in English and Spanish, that it is unlawful to carry a handgun on the premises. The sign must appear in contrasting colors with block letters at least one inch in height and be displayed in a conspicuous manner, clearly visible to the public.

(f) For facilities serving residents with Alzheimer’s disease and related disorders, failure to post the required disclosure statement, as specified in subsection (e)(10) of this section, will result in an administrative penalty in accordance with ง19.2112 of this title (relating to Administrative Penalties).

(g) A facility which advertises, markets, or otherwise pro-motes that it provides services to residents with Alzheimer’s disease and related disorders must give the required department disclosure statement to an individual:

(1) with Alzheimer’s disease or a related disorder, seeking placement as a resident;

(2) attempting to place another individual as a resident with Alzheimer’s disease or a related disorder; or

(3) seeking information about the facility’s care or treatment of residents with Alzheimer’s disease or a related disorder.

(h) The inspection reports and related reports that will be available at the facility for public inspection must include licensing inspection reports, deficiency sheets, and plan of correction of Medicare and Medicaid participating facilities, and summaries provided by the DHS of inspections and complaint investigations. This material must cover the most current 12 months. The material available for public inspection must be available at the facility business office or administrator’s office during normal office hours. On admission to the facility, the resident and/or responsible party must be advised that these reports are available.

(i) A copy of the Health and Safety Code, Chapter 242, must be available for public reference at the facility business office or administrator’s office during normal office hours.

(j) Summaries, inspection reports, and related reports prepared by DHS must be available to the public through DHS’s public disclosure procedures.

(k) Within 72 hours of admission, the facility must prepare a written inventory of the personal property a resident brings to the facility, such as furnishings, jewelry, televisions, radios, sewing machines, and medical equipment. The facility does not have to inventory the resident’s clothing; however, the operating policies and procedures must provide for the management of resident clothing to prevent loss and/or damage. The facility administrator or his or her designee must sign and retain the written inventory and must give a copy to the resident and/or the resident’s responsible party. The facility must revise the written inventory to show if property is lost, destroyed, damaged, replaced, or supplemented. Upon discharge of the resident, the disposition of personal effects must be documented by a dated receipt bearing the signature of the resident and/or the resident’s responsible party. See ง19.416 of this title (relating to Personal Property).

(l) Persons convicted of certain crimes may not be employed in nursing facilities. As required by Chapter 250 of the Health and Safety Code and as found in งง76.101-76.106 of this title (relating to Criminal History Check of Employees in Facilities for Care of the Aged and Persons with Disabilities), the facility must, prior to an offer of employment, conduct criminal history checks on persons whose positions involve direct contact with residents, unless they are licensed under an-other law.

(m) Before a facility hires an unlicensed employee, the facility must search the employee misconduct registry established under ง253.007, Health and Safety Code, and the DHS nurse aide registry to determine whether the individual is designated in either registry as having abused, neglected, or exploited a resident or a consumer of a facility. Both registries can be contacted at 1-800-452-3934.

(1) A facility may not employ a person who is listed in either registry as having abused, neglected, or exploited a resident or a consumer of a facility.

(2) Each facility is required to provide written notification upon hiring and to all employees:

(A) about the employee misconduct registry; and

(B) that a person may not be employed if listed on the registry.

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 June 28, 2000.

TRD-200004522

For further information, please call: (512) 438-3108

SUBCHAPTER U. INSPECTIONS, SURVEYS, AND VISITS

40 TAC ง19.2004, ง19.2006

The amendments are adopted under the Health and Safety Code, Chapter 242, which authorizes the department to license and regulate nursing facilities.

The amendments implement the Health and Safety Code, ง242.001-242.268.

ง19.2004. Determinations and Actions Pursuant to Inspections.

(a) The Texas Department of Human Services (DHS) will determine if a facility meets the licensing rules, including both physical plant and facility operation requirements.

(b) Violations of regulations will be listed on forms designed for the purpose of the inspection or will be listed in letter form when administrative penalties are being proposed.

(c) At the conclusion of an inspection, survey, or investigation, the violations will be discussed in an exit conference with the facility’s management. A written list of the violations will be left with the facility at the time of the exit conference; any additional violation that may be determined during review of field notes or preparation of the official final list will be communicated to the facility in writing within 10 working days of the exit conference. DHS will give the facility an additional exit conference regarding the additional violations.

(d) Upon receipt of the final statement of violations, the facility will have 10 working days to submit an acceptable plan of correction to the regional director, except plans of correction under ง19.2112(i) of this title (relating to Administrative Penalties). An acceptable plan of correction must address the following areas:

(1) how corrective action will be accomplished for those residents affected by the violation(s);

(2) how the facility will identify other residents with the potential to be affected by the same violation(s);

(3) what measures will be put into place or systemic changes made to ensure the violation(s) will not recur;

(4) how the facility will monitor its corrective actions to ensure that the violation(s) are being corrected and will not recur; and

(5) include dates when corrective action will be completed.

(e) A clear and concise summary in nontechnical language of each licensure inspection or complaint investigation will be provided by DHS at the time the report of contact or similar document is provided.

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 June 28, 2000.

TRD-200004523

For further information, please call: (512) 438-3108

SUBCHAPTER V. ENFORCEMENT

DIVISION 2. LICENSING REMEDIES

40 TAC ง19.2112

The amendment is adopted under the Health and Safety Code, Chapter 242, which authorizes the department to license and regulate nursing facilities.

The amendment implements the Health and Safety Code, ง242.001-242.268.

ง19.2112. Administrative Penalties.

(a) The Texas Department of Human Services (DHS) may assess an administrative penalty against a person who:

(1) violates Chapter 242, Health and Safety Code or a rule, standard or order adopted or license issued under Chapter 242;
(2) makes a false statement, that the person knows or should know is false, of a material fact:

(A) on an application for issuance or renewal of a license or in an attachment to the application; or
(B) with respect to a matter under investigation by DHS;

(3) refuses to allow a representative of DHS to inspect:

(A) a book, record, or file required to be maintained by a facility; or
(B) any portion of the premises of a facility;

(4) willfully interferes with the work of a representative of DHS or the enforcement of this chapter;
(5) willfully interferes with a representative of DHS pre-serving evidence of a violation of a rule, standard, or order adopted or license issued under Chapter 242, Health and Safety Code.
(6) fails to pay a penalty assessed by DHS under chapter 242, Health and Safety Code by the 10th day after the date the assessment of the penalty becomes final.

(b) The persons against whom DHS may impose an administrative penalty include:

(1) an applicant for a license;
(2) a license holder;
(3) a partner, officer, director, or managing employee of an applicant or a license holder; and
(4) a person who controls a nursing facility.

(c) DHS recognizes the limited immunity from civil liability granted to volunteers serving as officers, directors or trustees of charitable organizations, under the Charitable Immunity and Liability Act of 1987 (Texas Civil Practice and Remedies Code, Chapter 84).

(d) In determining whether a violation warrants an administrative penalty, DHS considers the facility’s history of compliance and whether:

(1) a pattern or trend of violations exists; or
(2) the violation is recurrent in nature and type; or
(3) the violation presents danger to the health and safety of at least one resident; or
(4) the violation is of a magnitude or nature that constitutes a health and safety hazard having a direct or imminent adverse effect on resident health, safety, or security, or which presents even more serious danger or harm; or
(5) the violation is of a type established elsewhere in DHS’s rules concerning licensing standards for long term care facilities.

(e) In determining the amount of the penalty, DHS considers at a minimum:

(1) the gradations of penalties;
(2) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and the hazard or potential hazard to the health and safety of the residents;
(3) the history of previous violations;
(4) deterrence of future violations; and
(5) efforts to correct the violation.

(f) Administrative penalties may be levied for each violation found in a single survey. Each day of a continuing violation constitutes a separate violation. The administrative penalties for each day of a continuing violation cease on the date the violation is corrected. A violation that is the subject of a penalty is presumed to continue on each successive day until it is corrected. The date of correction alleged by the facility in its written plan of correction will be presumed to be the actual date of correction unless it is later determined by DHS that the correction was not made by that date or was not satisfactory.

(1) Table of administrative penalties. The following table contains the gradations of penalties in accordance with the relative seriousness of the violation.
Figure: 40 TAC 19.2112(f)(1)
(2) Definitions.
The following terms when used in this section have the following meanings, unless the context clearly indicates otherwise.

(A) Severity.

(i) No actual harm with a potential for minimal harm is a deficiency that has the potential for causing no more that a minor negative impact on the resident(s).
(ii) No actual harm with a potential for more than minimal harm is noncompliance that results in minimal physical, mental and/or psychological discomfort to the resident and/or has the potential (not yet realized) to compromise the resident’s ability to maintain and/or reach his/her highest practicable physical, mental, and/or psychosocial well-being as defined by an accurate and comprehensive resident assessment, plan of care and provision of services.
(iii) Actual harm that is not immediate jeopardy is noncompliance that results in a negative outcome that has compromised the resident’s ability to maintain and/or reach his/her highest practicable physical, mental and/or psychosocial well-being as defined by an accurate and comprehensive resident assessment, plan of care and provision of services. This does not include a deficient practice that only has limited consequence for the resident and would be included in (i) or (ii) above.
(iv) Immediate jeopardy to resident health and safety is a situation in which immediate corrective action is necessary because the facility’s non-compliance with one or more requirements has caused, or likely to cause, serious injury, harm, impairment or death to a resident receiving care in the facility.

(B) Scope.

(i) Isolated means one or a very limited number of residents are affected and/or one or a very limited number of staff are involved, or the situation has occurred only occasionally or in a very limited number of locations.
(ii) Pattern means more than a very limited number of residents are affected and/or more than a very limited number of staff are involved, or the situation has occurred in several locations, and/or the same residents have been affected by repeated occurrences of the same deficient practice. The effect of the deficient practice is not found to be pervasive throughout the facility.
(iii) Widespread means the problems causing the deficiencies are pervasive in the facility and/or represent systemic failure that affected or has the potential to affect a large portion or all of the facility’s residents.

(g) The penalties for a violation of the requirement to post notice of the suspension of admissions, additional reporting requirements found at ง19.601(a) of this title (relating to Resident Behavior and Facility Practice), or residents’ rights cannot exceed $1,000 a day for each violation, unless the violation of a resident’s right also violates a rule in Subchapter H of this chapter (relating to Quality of Life), or Sub-chapter J of this chapter (relating to Quality of Care).

(h) No facility will be penalized because of a physician’s or consultant’s nonperformance beyond the facility’s control or if documentation clearly indicates the violation is beyond the facility’s control.

(i) DHS may issue a preliminary report regarding an administrative penalty. Within 10 days of the issuance of the preliminary report, DHS will give the facility written notice of the recommendation for an administrative penalty. The notice will include:

(1) a brief summary of the violations;
(2) a statement of the amount of penalty recommended;
(3) a statement of whether the violation is subject to correction under ง19.2114 of this title (relating to Right to Correct) and if the violation is subject to correction, a statement of:

(A) the date on which the facility must file a plan of correction (POC) to be approved by DHS; and
(B) the date on which the POC must be completed to avoid assessment of the penalty; and

(4) a statement that the facility has a right to a hearing on the violation, the amount of the penalty, or both.

(j) Within 20 days after the date on which written notice of recommended assessment of a penalty is sent to a facility, the facility must give DHS written consent to the penalty, make a written request for a hearing, or if the violation is subject to correction, submit a plan of correction in accordance with ง19.2114 of this title (relating to Right to Correct). If the facility does not make a response within the 20-day period, DHS will assess the penalty.

(k) The procedures for notification of recommended assessment, opportunity for hearing, actual assessment, payment of penalty, judicial review, and remittance will be in accordance with Health and Safety Code, งง242.067-242.069. Hearings will be held in accordance with DHS’s formal hearing procedures in Chapter 79 of this title (relating to Legal Services). Interest on penalties is governed by Health and Safety Code ง242.069(g).

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State on June 28, 2000.

TRD-200004524

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Effective date: August 1, 2000

Proposal publication date: March 3, 2000

For further information, please call: (512) 438-3108

SUBCHAPTER X. REQUIREMENTS FOR MEDICAID-CERTIFIED FACILITIES

40 TAC ง19.2310, ง19.2322

The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs; the Health and Safety Code, Chapter 242, which authorizes the department to license and regulate nursing facilities; and under Texas Government Code ง531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds.

The amendments implement the Health and Safety Code, ง242.001-242.268, and the Human Resources Code, งง22.001-22.024 and 32.001-32.040.

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 June 28, 2000.

TRD-200004525

For further information, please call: (512) 438-3108

SUBCHAPTER Y. MEDICAL REVIEW AND RE-EVALUATION

40 TAC ง19.2403

The amendment implements the Health and Safety Code, ง242.001-242.268, and the Human Resources Code, งง22.001-22.024 and 32.001-32.040.

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 June 28, 2000.

TRD-200004526