Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 11.
FOOD DISTRIBUTION AND PROCESSING
Subchapter C. COMMODITY SUPPLEMENTAL FOOD PROGRAM
40 TAC §§11.7001-11.7015
The Texas Department of Human Services (DHS) adopts new Subchapter
C, §§11.7001-11.7015 without changes to the proposed text published
in the April 14, 2000, issue of the
Texas Register
(25 TexReg 3175).
Justification for the new sections is implementation of the authority of
DHS to administer the CSFP in Texas. The CSFP is an optional state administered
program funded by the United States Department of Agriculture (USDA), which
provides donated commodities and nutrition education to eligible persons through
state and local agencies. The program has historically had limited participation;
projects have been initially limited to one area of a state. The CSFP will
be implemented in eight of the poorest areas in Dallas. During fiscal years
2000 and 2001, DHS will evaluate whether the CSFP should be expanded to other
agencies or locations.
The new sections will function by increasing the availability of commodities
and nutrition education to eligible women, infants, children, and the elderly
in the Dallas area.
The new sections are adopted under the Human Resources Code,
Title 2, Chapters 22 and 33, which authorizes the department to administer
public and nutritional assistance programs.
The new sections implement the Human Resources Code, §§22.001-22.030
and §§33.001-33.024.
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 5, 2000.
TRD-200003957
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: July 1, 2000
Proposal publication date: April 14, 2000
For further information, please call: (512) 438-3108
Subchapter B. SUMMER FOOD SERVICE PROGRAM
40 TAC §12.115
The Texas Department of Human Services (DHS) adopts an amendment
to §12.115 without changes to the proposed text published in the March
24, 2000, issue of the
Texas Register
(25
TexReg 2554).
Justification for the amendment is that the state legislature authorized
payment of a financial supplement for each meal served by organizations that
participate in the Summer Food Service Program (SFSP). Payment of the financial
supplement is authorized for each year of the 2000/2001 biennium.
The amendment will function by expanding the availability of the SFSP,
as a result of an increase in the funds program sponsors receive for the meals
they serve to children who participate in the SFSP.
The department received no comments regarding the proposal.
The amendment is adopted under the Human Resources Code, Title
2, Chapters 22 and 33, which authorizes the department to administer public
and nutritional assistance programs.
The amendment implements the Human Resources Code, §§22.001-22.030
and §§33.001-33.024.
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 5, 2000.
TRD-200003956
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: July 1, 2000
Proposal publication date: March 24, 2000
For further information, please call: (512) 438-3108
40 TAC §20.112
The Texas Department of Human Services (DHS) adopts new §20.112
with changes to the proposed text published in the March 31, 2000, issue of
the
Texas Register
(25 TexReg 2767).
Justification for the new section is to implement DHS's appropriations
rider 37 regarding community care programs passed by the 76th legislature.
The section establishes procedures for providers to obtain additional funds
for increased compensation to attendants in select community care programs,
Primary Home Care, Day Activity and Health Services, and Residential Care).
Providers receiving the additional funds must demonstrate compliance with
spending the increased funds on attendant compensation. If a participating
provider's allowable attendant compensation times 1.07 is less than the revenue
accrued, the difference will be recouped by DHS. Providers who choose not
to participate will have their total direct care staff rate increase each
year limited to adjustments necessitated by increases in the minimum wage.
The section modifies the cost areas of these programs to separate the new
attendant compensation cost area from other cost areas. Changes to the Day
Activity and Health Services, Primary Home Care, and Residential Care programs
are adopted to combine some of the cost areas.
In §20.112(a), which is for non-Medicaid programs, the Deaf-Blind
Multiple Disabilities Waiver was removed from the list of eligible programs,
because it is a Medicaid program and should be included in §355.112(a),
which is for Medicaid programs.
DHS adopts related policy in Chapters 46, 47, and 98 of this title in this
issue of the
Texas Register
. The Health and
Human Services Commission adopts similar policy for Medicaid-funded services,
codified at 1 TAC §§355.112, 355.503, 355.505, 355.5902, and 355.6907,
in this issue of the
Texas Register
.
The section will function by being a mechanism for increasing compensation
to attendants in certain community care programs.
The department received comments on the proposal at a public hearing held
April 17, 2000. Comments were received from representatives of American Disabled
for Attendant Programs Today, the Texas Association for Home Care, the Adult
Day Care Association of Texas, the Institute for Disability Access, three
Day Activity and Health Services (DAHS) providers, and a Community Living
Assistance and Support Services provider. Summaries of the comments and the
responses follow.
General comments: Seven commenters were in support of increasing wages
to attendants and wanted to insure that increases in rates would be used to
increase wages for attendants.
Response: The purpose of these rules is to implement the DHS appropriations
rider 37 regarding community care passed by the 76th Legislature. This rider
directs the department to incentivize increased attendant wages and benefits
to attendants in select community care programs. These rules support the increase
of wages to attendants.
General comment: One commenter questioned how the attendant compensation
rate enhancements will reach providers in the Star+Plus Pilot in Harris County.
Response: These rules only apply to providers contracting directly with
DHS and do not apply to providers contracting with HMOs in the Star+Plus Pilot
in Harris County.
Comment concerning §20.112(b): One commenter stated that, for the
purpose of defining attendants in the DAHS program, attendants be defined
as direct care staff with duties as attendants, driver/attendants, activity
directors and kitchen attendants.
Response: The rules would include attendants and drivers that perform attendant
functions at least 80% of their total time worked. The rider directed the
department to incentivize attendant wages and benefits and not the wages and
benefits of other staff working for the provider. DHS is adopting the subsection
without change.
Comment concerning §20.112(c)(1): One commenter stated that we need
to make sure it is clear that "workers' compensation" also includes expenses
paid by the agency to or on behalf of the employee, related to on-the-job
injuries, since many employers do not participate in the workers' compensation
program and, therefore, have only actual expenses rather than paid premiums.
Response: Language at §20.112(c)(1) references §20.103(b)(1)
which identifies the allowable compensation for attendants, including workers'
compensation insurance. Language at §20.112(j) states that all Attendant
Compensation Reports must be completed in accordance with the provisions of §§
20.102-20.105 which includes §20.103(b)(10) that further defines insurance,
which includes workers' compensation, as purchased commercial insurance or
self-insurance. Self-insurance costs are allowable on a claims-paid basis
subject to the limitations specified in §20.103(b)(10). DHS is adopting
the paragraphs without change.
Comment concerning §20.112(f): One commenter suggested that the language
in this subsection be changed to specify that a Primary Home Care (Family
Care) contracted provider must specify on the enrollment contract amendment
its desire to participate in the priority one and/or non-priority component(s)
within each contract.
Response: Language has been added at §20.112 (f) and (k)to specify
that a Primary Home Care provider (which includes Family Care) must specify
its desire to participate in the attendant compensation rate enhancement for
either the priority one, non-priority, or both components within each contract.
Comment concerning §20.112(f) and (g): One commenter stated that vendor
hold was not necessary for failure to submit the enrollment contract amendment
by the deadline. The commenter indicated that if the enrollment contract amendment
was not received by the deadline, the provider would not be eligible to participate.
Response: Language has been amended in §20.112(f) and (g) to specify
that providers that fail to submit enrollment contract amendments by the end
of the enrollment period would be considered nonparticipants.
Comment concerning §20.112(h): One commenter requested that DHS keep
in mind when procedures are drafted for the six-month report and the annual
report that providers could not afford to further increase administrative
hours for preparing complicated or time-consuming reports.
Response: Rider 37 also directs HHSC to ensure that providers will comply
with the new wage rules. These reports are necessary to ensure that the funds
intended to enhance attendant wages and benefits are spent for that purpose.
These reports will capture only the information required to verify spending
on attendant compensation.
Comment concerning §20.112(h)(1) and (2), and (t): One commenter stated
that the provider should be allowed at least 60 days and preferably 90 days
from the end of the rate year to submit the annual report to assure the most
accurate data. This would allow time for late time sheets to be processed,
30 days to process payroll, and 30 days to process the report.
Response: Language has been changed in §20.112(h)(1) and (2) to change
the due date of the Attendant Compensation Reports to 60 days after the end
of the reporting period.
Comment concerning §20.112(h)(1), (2) and (4): One commenter stated
that a full vendor hold was unnecessary for participating providers who fail
to submit a report by the due date. The commenter stated that only the differential
between the participating and nonparticipating reimbursement rates should
be held until an acceptable report is received (not processed) by DHS.
Response: Vendor hold is necessary to ensure compliance with the requirements
to submit Attendant Compensation Reports which verify the required spending
on attendant compensation. DHS is adopting the paragraphs without change.
Comment concerning §20.112(i)(3): One commenter stated that the word
"accrued" was confusing and should be changed to the word "provided".
Response: The department has modified §20.112(i) to eliminate from
the rule the specificity of the information required in the Attendant Compensation
Report. The data collected on these documents could change as data needs change.
The language in §20.112(j) specifies that the reports must be completed
in accordance with the provisions of §§20.102-20.105 which require
all information on the reports to be reported on the accrual basis of accounting,
which would capture the units of service accrued or provided during the reporting
period regardless of whether they have been submitted for billing or if payment
had been received.
Comment concerning §20.112(l)(3) and (s)(1): One commenter stated
that multiplying the median attendant component by 1.044 and then establishing
the spending threshold within 7% of that number does not provide sufficient
margin of error for the setting of the attendant component, and does not take
into account the ability of the provider to cover costs in other components
and to retain the 4.4% margin provided for in the current methodology.
Response: The purpose of this rule is to direct the enhanced funds to attendant
compensation and not to enhance mark-ups or coverage of other types of costs,
directly or indirectly. DHS is adopting the paragraphs without change.
Comment concerning §20.112(n): One commenter stated that having multiple
increments for each program will be unnecessarily complicated and that a single
minimum increment should be determined for each program. The commenter stated
that the provider should be asked if they wish to participate at that level
and, if not, they should be asked to indicate the minimum level at which they
wish to participate.
Response: By having multiple increments, each provider may select the level
which best suits their particular situation. Providers may reduce their level
of participation by notifying the department in writing in accordance with §20.112(y).
DHS is adopting the subsection without change.
Comment concerning §20.112(o): One commenter stated that the phrase
"Participating contracts desiring to provide attendant compensation above
the level included in subsection (l) ..." should be replaced with "Participating
contracts may request attendant compensation enhancements above the level
included in subsection (l) ...", because participating contracts are not necessarily
desiring to provide attendant compensation above the level included in subsection
(l) since this amount includes the 1.044 incentive factor which may be used
to cross-subsidize other components or other purposes.
Response: The phrase in this subsection describes the intent of the rules
that increased attendant compensation rate increments paid to contracted providers
are to be used to increase the wages and benefits of attendants. DHS is adopting
the subsection without change.
Comment concerning §20.112(p)(2)(B): One commenter indicated that
the phrase "in a proportional manner" is not explicit enough and that the
granting of increments should be filled from the bottom up until the funds
are used. The commenter also questioned how DHS would grant enhancement options
a priority.
Response: The language at §20.112(p)(2)(B) has been revised to better
describe the granting of increments by each level, one level at a time from
the lowest level to the highest level, until funds intended for this purpose
have been distributed. As the rule states, DHS may determine priority distribution
based on attendant compensation needs.
Comment concerning §20.112(q): One commenter stated that DHS should
have time frames for notifying participating contracts since there is only
one month between the end of the open enrollment and the beginning of the
rate year.
Response: There is one month between the end of the open enrollment period
and the beginning of the rate period during which DHS will notify the contracted
provider of the outcome of the granting of enhancement levels, allowing sufficient
time for notification of enhancement levels. DHS is adopting the subsection
without change.
Comment concerning §20.112(s): One commenter suggested that each provider
should be given the same increase in the unit rate and that this additional
revenue should be spent on increased wages and benefits for attendants above
the current level of attendant compensation spending of each provider.
Response: The use of the current level of attendant compensation spending
of each provider as the basis from which additional funds would be required
to be spent would create a lower attendant spending level requirement for
providers who historically have paid lower attendant wages and benefits. Likewise,
it would create a higher spending level requirement for providers who historically
have paid higher attendant wages and benefits. DHS is adopting the subsection
without change.
Comment concerning §20.112(s)(2): One commenter questioned the meaning
of the phrase "accrued attendant compensation revenue" and stated that costs
and revenues should be consistent with the reporting period.
Response: By requiring that the revenue be accrued revenue as opposed to
cash-basis revenue ensures that revenues for the reporting period are matched
against the costs accrued for the reporting period as required for reporting
on the Attendant Compensation Reports. DHS is adopting the paragraph without
change.
Comment concerning §20.112(u): One commenter stated that exclusion
of providers from participation if their full-year report and subsequent six-month
report indicates that they have not expended 90% of their attendant compensation
rate on attendant compensation spending is very punitive for first-time offenders.
Response: The rule allows the contracted provider the rate year to come
into compliance with the 90% spending requirement; and, for those contracted
providers not coming into compliance during the rate year, an additional six
months are allowed for the contracted provider to come into compliance before
they are excluded from participation. The intent of these rules is to increase
attendant wages and benefits and to ensure that increased rates intended for
this purpose are spent on attendant compensation. DHS is adopting the subsection
without change.
In addition to the changes detailed above, the department has made the
following changes.
The department has modified §20.112(b) to add the reference to §20.105(b)(2)(B)(i)
which specifies the minimum criteria for a time study and to clarify that
failure to perform the time study for staff that are not full time attendants
performing attendant functions will result in the department considering the
staff as not being attendants.
The department has clarified in §20.112(b)(2) that in the PHC/FC,
CBA HCSS, CLASS and DBMD programs, staff other than attendants may provide
attendant services to prevent a break in service.
The department has added in §20.211(s) the phrase "and other appropriate
data sources" to allow the department to access data sources in addition to
the Attendant Compensation Report to verify amounts spent on attendant compensation.
The department has clarified in §20.112(h)(1), (o), (s), (u), (v),
(w), (x), and (y) that a contract that terminates; undergoes a contract assignment;
or is excluded from participation is handled differently for purposes of participation;
Attendant Compensation Report submittal; requesting enhancements; spending
requirements; exclusion requirements; voluntarily withdrawing from participation;
and adjusting attendant compensation requirements depending upon whether the
contracted provider's participating contracts are participating as a group
or as individuals.
The department has clarified in §20.112(f) and (k) that if a provider
serves both Residential Care (RC) and Community Based Alternatives (CBA) Assisted
Living/Residential Care (AL/RC)clients in the same facility, that their participation
includes both the RC and the CBA AL/RC.
The department has modified §20.112(g) to make attendant compensation
rates effective on the first of the month following the receipt by the department
of an acceptable enrollment contract amendment for new contracts.
The department has made editorial changes to §20.112(a), (b)(2), (c)(3),
(h)(1), and (p).
The new section 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 new section implements the Human Resources Code, §§22.001-22.030
and §§32.001-32.042.
§20.112.Attendant Compensation Rate Enhancement.
(a)
Eligible programs. Providers contracted in the Primary
Home Care, including Family Care (PHC/FC); Day Activity and Health Services
(DAHS); Residential Care (RC); Community Living Assistance and Support Services
(CLASS) - Direct Service Agency; Community Based Alternatives (CBA) - Home
and Community Support Services (HCSS); Deaf-Blind Multiple Disabilities Waiver
(DBMD); and CBA - Assisted Living/Residential Care (AL/RC) programs are eligible
to participate in the attendant compensation rate enhancement.
(b)
Definition of attendant. An attendant is the unlicensed
caregiver providing direct assistance to the clients with Activities of Daily
Living (ADL) and Instrumental Activities of Daily Living (IADL).
(1)
In the case of DAHS, RC, and AL/RC programs, the attendant
may perform some nonattendant functions. In such cases, the attendant must
perform attendant functions at least 80% of his or her total time worked.
Staff in these settings not providing attendant services at least 80% of their
total time worked are not considered attendants. Time studies must be performed
in accordance with §20.105(b)(2)(B)(i) for staff in the DAHS, RC and
AL/RC programs that are not full-time attendants but perform attendant functions
to determine if a staff member meets this 80% requirement. Failure to perform
the time studies for these staff will result in the staff not being considered
to be attendants.
(2)
Attendants do not include the director, administrator,
assistant director, assistant administrator, clerical and secretarial staff,
professional staff, other administrative staff, licensed staff, attendant
supervisors, cooks and kitchen staff, maintenance and groundskeeping staff,
and laundry and housekeeping staff. In the case of PHC/FC, CLASS, CBA HCSS,
and DBMD staff other than attendants may deliver attendant services and be
considered an attendant if they must perform attendant services that cannot
be delivered by another attendant to prevent a break in service.
(3)
An attendant also includes a driver in the DAHS program.
(c)
Attendant compensation cost center. This cost center will
include employee compensation, contract labor costs, and personal vehicle
mileage reimbursement for attendants as defined in subsection (b) of this
section.
(1)
Attendant compensation is the allowable compensation for
attendants defined in §20.103(b)(1) of this title (relating to Compensation
of Employees) and required to be reported as either salaries and/or wages,
including payroll taxes and workers' compensation, or employee benefits. Benefits
required by §20.103(b)(1)(A)(iii) of this title (relating to Specifications
for Allowable and Unallowable Costs) to be reported as costs applicable to
specific cost report line items, except as noted in paragraph (3) of this
subsection, are not to be included in this cost center.
(2)
Contract labor refers to personnel for whom the contracted
provider is not responsible for the payment of payroll taxes, such as FICA,
Medicare, and federal and state unemployment insurance, and who perform tasks
routinely performed by employees where allowed by program rules. Allowable
contract labor costs are defined in §20.103(b)(2)(C) of this title (relating
to Specifications for Allowable and Unallowable Costs).
(3)
Mileage reimbursement paid to the attendant for the
use of his or her personal vehicle and which is not subject to payroll taxes
is considered compensation for this cost center.
(d)
Rate year. The rate year begins on the first day of September
and ends on the last day of August of the following year.
(e)
Open enrollment. Open enrollment begins on the first day
of July and ends on the last day of that same July preceding the rate year
for which payments are being determined.
(f)
Enrollment contract amendment. All contracted providers
must submit an enrollment contract amendment during the open enrollment period.
On the enrollment contract amendment the provider must specify for each contract
his desire to participate or his desire not to participate. The participating
provider must specify for each program if he wishes to have all participating
contracts be considered as a group or individually for purposes related to
the attendant compensation rate enhancement. For the PHC/FC program, the participating
provider must also specify if he wishes to have either priority 1, nonpriority,
or both priority 1 and nonpriority services participating in the attendant
compensation rate enhancement. If the PHC/FC provider selects to have their
contracts participating as a group, then the provider must select to have
either priority 1, nonpriority, or both priority 1 and nonpriority services
participate for the entire group of contracts. For providers delivering services
to both RC and CBA AL/RC clients in the same facility, participation includes
both the RC and CBA AL/RC programs. The provider also must submit with the
contract amendment all required documentation to the DHS in a manner specified
by DHS. Any provider failing to submit an acceptable enrollment contract amendment
by the end of the open enrollment period will be a nonparticipating contract
for the entire rate year following the open enrollment period.
(g)
New contracts. For the purposes of this section, for each
rate year a new contract is defined as a contract delivering its first day
of service to a DHS client on or after the first day of the open enrollment
period, as defined in subsection (e) of this section, for that rate year.
Contracts that underwent a contract assignment are not considered new contracts.
New contractors must complete the enrollment contract amendment specified
in subsection (f) of this section within 30 days of notification by DHS. Any
provider failing to submit an acceptable enrollment contract amendment within
30 days of notification by DHS will be a nonparticipating contract for the
entire rate year. New contracts will receive the attendant compensation rate
as specified in subsection (l) of this section until:
(1)
based on the enrollment contract amendment information
received, participating contracts will have their attendant compensation rate
adjusted effective on the first day of the month following receipt of an acceptable
enrollment contract amendment.
(2)
based on the enrollment contract amendment information
received, nonparticipating contracts will have their attendant compensation
rate adjusted as specified in subsection (m) of this section retroactive to
the first day of their contract.
(h)
Attendant Compensation Report submittal requirements. Attendant
Compensation Reports must be submitted by participating contracted providers
as follows.
(1)
Annual report. Participating contracted providers will
provide DHS, in a method specified by DHS, an annual Attendant Compensation
Report reflecting the activities of the provider while delivering contracted
services from the first day of the rate year through the last day of the rate
year. This report must be submitted for each participating contract if the
provider requested participation individually for each contract; or, if the
provider requested participation as a group, the report must be submitted
as a single aggregate report covering all participating contracts within one
program of the provider. The aggregate report must include excluded from participation,
new, and contract assignment contracts (for the legal entity accepting the
contract assignment), as defined in subparagraphs (A)-(E) of this paragraph,
which were part of the group for any portion of the rate year. A participating
contract which has been terminated in accordance with subsection (v) of this
section or that has undergone a contract assignment in accordance with subsection
(w)(3) of this section will be considered to have participated on an individual
basis for compliance with reporting requirements. This report will be used
as the basis for determining compliance with the spending requirements and
recoupment amounts as described in subsection (s) of this section. Contracted
providers failing to submit an acceptable annual Attendant Compensation Report
within 60 days of the end of the rate year will be placed on vendor hold until
such time as an acceptable report is received and processed by DHS. Contracted
providers participating for less than a full year must provide Attendant Compensation
Reports as follows.
(A)
A participating provider whose contract is terminated either
voluntarily or involuntarily before the end of the rate year must submit an
Attendant Compensation Report covering the period from the beginning of the
rate year to the date recognized by DHS as the contract termination date.
This report will be used as the basis for determining recoupment as described
in subsection (s) of this section.
(B)
In cases where a participating provider changes ownership
through a contract assignment from one legal entity to another legal entity,
the owner prior to the change of ownership must submit an Attendant Compensation
Report, covering the period from the beginning of the rate year to the effective
date of the contract assignment as determined by DHS. The owner after the
change of ownership must submit an Attendant Compensation report within 60
days of the end of the rate year, covering the period from the effective date
of the contract assignment as determined by DHS to the end of the rate year.
This report will be used as the basis for determining recoupment as described
in subsection (s) of this section.
(C)
A participating provider who is excluded from participation
as per subsection (u) of this section must submit an Attendant Compensation
Report within 60 days from the date of notification of the exclusion, covering
the period from the beginning of the rate year to the date of exclusion as
determined by DHS. DHS will use this report as the basis for determining recoupment
as described in subsection (s) of this section.
(D)
A participating provider who voluntarily withdraws from
participation as per subsection (x) of this section must submit an Attendant
Compensation Report within 60 days from the date of withdrawal as determined
by DHS, covering the period from the beginning of the rate year through the
date of withdrawal as determined by DHS. DHS will use this report as the basis
for determining recoupment as described in subsection (s) of this section.
(E)
A participating provider who is a new contract as per subsection
(g) of this section must submit an Attendant Compensation Report within 60
days of the end of the rate year, covering the period from the sixty-first
day of the contract as determined by DHS through the end of the rate year.
(2)
Six-month report. Participating contracted providers
will provide DHS, in a method specified by DHS, a six-month Attendant Compensation
Report reflecting the activities of the provider while delivering contracted
services from the first day of the rate year through the last day of February
of the rate year. DHS will place on vendor hold contracted providers failing
to submit an acceptable six-month Attendant Compensation Report within 60
days of the last day of February of the rate year until DHS receives and processes
an acceptable report. The report must be submitted for each participating
contract if the provider requested participation individually for each contract;
or, if the provider requested participation as a group, the report must be
submitted as a single aggregate report covering all participating contracts
within one program of the provider. Participating providers will use this
six-month report to assist them in determining their level of compliance with
the spending requirements and to take any appropriate action necessary to
come into compliance with the spending requirements. The provider is responsible
for the management of attendant compensation expenditures in compliance with
the spending requirements stated in subsection (s) of this section.
(3)
Other reports. DHS may require other reports from
all contracts as needed.
(4)
Vendor hold. DHS will place on hold the vendor payments
for any contractor who does not submit an Attendant Compensation Report completed
in accordance with all applicable rules and instructions by the due dates
described in this subsection. This vendor hold will remain in effect until
an acceptable Attendant Compensation Report is received by DHS.
(i)
Attendant Compensation Report contents. Each Attendant
Compensation Report will include any information required by DHS to implement
this attendant compensation rate enhancement.
(j)
Completion of compensation reports. All Attendant Compensation
Reports must be completed in accordance with the provisions of §§20.102-20.105
of this title (relating to General Principles of Allowable and Unallowable
Costs, Specifications for Allowable and Unallowable Costs, Revenues, and General
Reporting and Documentation Requirements, Methods, and Procedures) and may
be reviewed or audited in accordance with §20.106 of this title (relating
to Basic Objectives and Criteria for Audit and Desk Review of Cost Reports).
(k)
Enrollment. Providers choosing to participate in the attendant
compensation rate enhancement must submit to DHS a signed enrollment contract
amendment as described in subsection (f) of this section. Participation is
determined separately for each program specified in subsection (a) of this
section except for providers delivering services to both RC and CBA AL/RC
clients in the same facility, participation includes both the RC and CBA AL/RC
programs. For PHC/FC participation is also determined separately for priority
1 and nonpriority services. Participation will remain in effect, subject to
availability of funds, until the provider notifies DHS, in accordance with
subsection (x) of this section, that it no longer wishes to participate or
until DHS excludes the contract from participation for reasons outlined in
subsection (u) of this section. Contracts voluntarily withdrawing from participation
will have their participation end effective with the date of withdrawal as
determined by DHS. Contracts excluded from participation will have their participation
end effective on the date determined by DHS.
(l)
Determination of attendant compensation rate component
for participating contracts. For each of the programs identified in subsection
(a) of this section DHS will calculate an attendant compensation rate component
for participating contracts from subsection (k) of this section and for the
first 60 days of a new contract from subsection (g) of this section as follows.
(1)
Determine for each contract included in the cost report
data base used in the determination of rates in effect on September 1, 1999,
the attendant compensation cost center from subsection (c) of this section.
(2)
Adjust the cost center data from paragraph (1) of
this subsection, as specified in §20.108 of this title (relating to Determination
of Inflation Indices), to inflate the costs to the prospective rate year.
(3)
For each contract included in the cost report data
base used in the determination of rates in effect on September 1, 1999, divide
the result from paragraph (2) of this subsection by the units of service and
multiply the result by 1.044 for all programs in subsection (a) of this section
except for RC and AL/RC which are multiplied by 1.07. The result is the attendant
compensation rate component for participating contracts and the first 60 days
of new contracts.
(4)
The cost base from paragraph (1) of this subsection
used in determining the attendant compensation rate component will not change
over time, except for adjustments for inflation from paragraph (2) of this
subsection. DHS may recommend adjustments to the rates in accordance with §20.109
of this title (relating to Adjusting Reimbursement When New Legislation, Regulations,
or Economic Factors Affect Costs).
(m)
Determination of attendant compensation rate component
for nonparticipating contracts. For each of the programs identified in subsection
(a) of this section DHS will calculate an attendant compensation rate component
for nonparticipating contracts as follows.
(1)
Determine for each contract included in the cost report
data base used in determination of rates in effect on September 1, 1999, the
attendant compensation cost center from subsection (c) of this section.
(2)
Adjust the cost center data from paragraph (1) of
this subsection in order to account for inflation utilizing the inflation
factors used in the determination of the September 1, 1999 rates.
(3)
For each contract included in the cost report data
base used in determination of rates in effect on September 1, 1999, divide
the result from paragraph (2) of this subsection by the units of service and
multiply the result by 1.044 for all programs in subsection (a) of this section
except for RC and AL/RC which is multiplied by 1.07. The result is the attendant
compensation rate component for nonparticipating contracts.
(4)
The attendant compensation rate component will remain
constant over time, except for adjustments necessitated by increases in the
minimum wage. In such cases, adjustments to the nonparticipating rates are
limited to ensuring that these rates are adequate to cover mandated minimum
wage levels.
(n)
Determination of attendant compensation rate enhancements.
DHS will determine attendant compensation rate enhancement increments associated
with each enhanced attendant compensation level. The attendant compensation
rate enhancement increments will be determined by using data from sources
such as cost reports, surveys, and/or other relevant sources. The attendant
compensation rate enhancement increments will be determined by taking into
consideration quality of care, labor market conditions, economic factors,
and budget constraints. The attendant compensation rate enhancement increments
will be determined on a per-unit-of-service basis applicable to each program
or service.
(o)
Enhanced attendant compensation. Participating contracts
desiring to provide attendant compensation above the level included in subsection
(l) of this section may request attendant compensation increments from an
array of enhanced attendant compensation options and associated add-on payments
determined in subsection (n) of this section during open enrollment. Participating
providers that select to have all of their contracts participate in a program
as a group must request a single attendant compensation increment for the
entire group of contracts. PHC/FC providers participating as a group must
select a single attendant compensation increment for their entire group of
contracts for the priority 1 and/or nonpriority services they have selected
for participation.
(p)
Granting additional attendant compensation rate enhancement
increments. DHS divides all requests for attendant compensation rate enhancement
increments into two groups: pre-existing rate enhancement increments which
providers requested to carry over from the prior year and newly requested
rate enhancement increments. Newly requested rate enhancement increments may
be requested by providers that were nonparticipants in the prior year or by
providers which were participants during the prior year desiring to be granted
additional rate enhancement increments. Using the process described herein,
DHS first determines the distribution of carry-over rate enhancement increments.
If funds are available after the distribution of carry-over rate enhancement
increments, DHS determines the distribution of newly requested rate enhancement
increments as follows:
(1)
DHS determines projected units of service for contracts
requesting each enhancement increment and multiplies this number by the enhancement
rate add-on amount associated with that enhancement increment as determined
in subsection (n) of this section.
(2)
DHS compares the sum of the products from paragraph
(1) of this subsection to available funds.
(A)
If the product is less than or equal to available funds,
all requested enhancements are granted.
(B)
If the product is greater than available funds, enhancements
are granted beginning with the lowest level of enhancement and granting each
successive level of enhancement until requested enhancements are granted within
available funds. Based upon an examination of existing compensation levels
and compensation needs, DHS may grant certain enhancement options priority
for proportional distribution.
(q)
Notification of granting of enhancements. Participating
contracts are notified, in a manner determined by DHS, as to the disposition
of their request for additional attendant compensation rate enhancement increments.
(r)
Total attendant compensation rate for participating contracts.
Each participating contract will receive an attendant compensation rate equal
to the attendant compensation rate component for participating contracts from
subsection (l) of this section, plus any additional attendant compensation
rate enhancement payments granted to the contract.
(s)
Spending requirements for participating contracts. DHS
will determine from the Attendant Compensation Report, as specified in subsection
(h) of this section and other appropriate data sources, the amount of attendant
compensation spending per unit of service delivered. The providers' compliance
with the spending requirement is determined based on the total attendant compensation
spending as reported on the Attendant Compensation Report for each participating
contract if the provider requested participation individually for each contract.
A participating contract that has been terminated in accordance with subsection
(v) of this section or that has undergone a contract assignment in accordance
with subsection (w)(3) of this section will be considered to have participated
on an individual basis for compliance with the spending requirement. If the
provider specified that he wished to have all participating contracts be considered
as a group for purposes related to the attendant compensation rate enhancement,
as specified in subsection (f) of this section, compliance with the spending
requirement is based on the total attendant compensation as reported on the
single aggregate attendant compensation report described in subsection (h)
of this section. Compliance with the spending requirement is determined separately
for each program specified in subsection (a) of this section. DHS will calculate
recoupment, if any, as follows.
(1)
For the rate year beginning September 1, 2000, the attendant
compensation spending per unit of service will be multiplied by 1.09 to determine
the adjusted attendant compensation per unit of service. For the rate year
beginning September 1, 2001, and thereafter, the attendant compensation spending
per unit of service will be multiplied by 1.07 to determine the adjusted attendant
compensation per unit of service.
(2)
The adjusted attendant compensation per unit of service
from paragraph (1) of this subsection will be subtracted from the accrued
attendant compensation revenue to determine the amount to be recouped by DHS.
If the adjusted attendant compensation per unit of service is greater than
or equal to the accrued attendant compensation revenue per unit of service,
there is no recoupment.
(3)
The amount paid for attendant compensation per unit
of service after adjustments for recoupment must not be less than the amount
determined in subsection (m) of this section.
(t)
Notification of recoupment. Providers will be notified
in a manner specified by DHS within 90 days of the due date of their annual
Attendant Compensation Report as described in subsection (h)(1) of this section
or within 90 days of the date the report is submitted, whichever is later,
of the amount to be repaid to DHS. If a subsequent review or audit results
in audit adjustments to the annual Attendant Compensation Report that changes
the amount to be repaid to DHS, the provider will be notified in writing of
the adjustments and the adjusted amount to be repaid to DHS. DHS will recoup
any amount owed from a provider's vendor payment(s) following the date of
the notification letter.
(u)
Exclusion from participation. If the attendant compensation
report described in subsection (h)(1) of this section indicates that the participating
provider did not spend 90% of the accrued total attendant compensation rate
described in subsection (r) of this section on attendant compensation spending
as determined from subsection (s) of this section, DHS will notify the provider
of the noncompliance. If the subsequent six-month compensation report from
subsection (h)(2) of this section indicates that the provider has not spent
90% of the attendant compensation revenue on attendant compensation spending,
the contract will be excluded from participation in the attendant rate enhancement
effective immediately upon notice of failure to meet the spending requirement.
The contract will be excluded from participation in the attendant compensation
rate enhancement and will remain a nonparticipant for the remainder of the
rate year plus an additional rate year. Providers whose contracts are participating
as a group must meet the requirements of this subsection as a group or all
the contracts of the group will be excluded.
(v)
Contract terminations. For terminating participants DHS
will place a vendor hold on the payments of the contracted provider until
DHS receives an acceptable Attendant Compensation Report, as specified in
subsection (h)(1)(A) of this section, and funds identified for recoupment
from subsection (s) of this section are repaid to DHS. DHS will recoup any
amount owed from the provider's vendor payments that are being held. In cases
where funds identified for recoupment cannot be repaid by the terminating
provider's last vendor payment, the responsible entity from subsection (cc)
of this section will be jointly and severally liable for any additional payment
due to DHS. Failure to repay the amount due or submit an acceptable payment
plan within 60 days of notification will result in placement of a vendor hold
on all DHS contracts controlled by the responsible entity and will bar the
responsible entity from enacting new contracts with DHS until repayment is
made in full.
(w)
Contract assignments. The following applies to contract
assignments.
(1)
Contracts participating under the prior legal entity will
continue participation under the legal entity accepting the contract assignment.
When the provider or legal entity accepting the contract assignment has their
contracts participating as individuals, participation in the attendant compensation
rate enhancement confers to the provider or legal entity accepting the contract
assignment. When the provider or legal entity accepting the contract assignment
has their contracts participating as a group, the contract will participate
with the group of the legal entity accepting the contract assignment for purposes
related to the attendant compensation rate enhancement.
(2)
When the contract assignment is a change only in the
organizational structure or name of the legal entity, the provider or legal
entity accepting the contract assignment is responsible for the reporting
requirements in subsection (h) of this section and for any recoupment amount
owed to DHS for the entire rate year identified, even if part of the rate
year was under the responsibility of the previous legal entity.
(3)
When the contract assignment is an ownership change
from one legal entity to a different legal entity, DHS will place a vendor
hold on the payments of the existing contracted provider until DHS receives
an acceptable Attendant Compensation Report specified in subsection (h)(1)(B)
of this section and until funds identified for recoupment from subsection
(s) of this section are repaid to DHS. DHS will recoup any amount owed from
the provider's vendor payments that are being held. In cases where funds identified
for recoupment cannot be repaid by the existing contracted provider's vendor
payments that are being held, the responsible entity from subsection (cc)
of this section will be jointly and severally liable for any additional payment
due to DHS. Failure to repay the amount due or submit an acceptable payment
plan within 60 days of notification will result in placement of a vendor hold
on all DHS contracts controlled by the responsible entity and will bar the
responsible entity from enacting new contracts with DHS until repayment is
made in full.
(x)
Voluntary withdrawal. Participating contracts wishing to
withdraw from the attendant compensation rate enhancement must notify DHS
in writing by certified mail. Contracts voluntarily withdrawing must remain
nonparticipants for the remainder of the rate year and are excluded from participation
the following rate year. Providers whose contracts are participating as a
group must request withdrawal of all the contracts in the group.
(y)
Adjusting attendant compensation requirements. Providers
that determine that they will not be able to meet their attendant compensation
requirements may request a reduction to their attendant compensation requirements
and associated enhancement payment. These requests will be effective the first
of the month following 30 days from the receipt of the request. Providers
whose contracts are participating as a group must request the same reduction
for all of the contracts in the group.
(z)
All other rate components. All other rate components will
continue to be calculated as specified in the program-specific reimbursement
methodology and will be uniform for all providers.
(aa)
Failure to document spending. Undocumented attendant compensation
expenses will be disallowed and will not be used in the determination of the
attendant compensation spending per unit of service in subsection (s) of this
section.
(bb)
Appeals. Subject matter of informal reviews and formal
appeals is limited as per §20.110 of this title (relating to Informal
Reviews and Formal Appeals).
(cc)
Responsible entities. The contracted provider, owner,
or legal entity which received the attendant compensation rate enhancement
is responsible for the repayment of the recoupment amount.
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 5, 2000.
TRD-200003952
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: June 25, 2000
Proposal publication date: March 31, 2000
For further information, please call: (512) 438-3108
Subchapter G. SUPPORT DOCUMENTS
40 TAC §46.7002
The Texas Department of Human Services (DHS) adopts an amendment
to §46.7002 without changes to the proposed text published in the March
31, 2000, issue of the
Texas Register
(25
TexReg 2771).
Justification for the new section is to implement DHS's appropriations
rider 37 regarding community care programs passed by the 76th legislature.
The section establishes procedures for providers to obtain additional funds
for increased compensation to attendants in select community care programs
(Community Based Alternatives Waiver, Community Living Assistance and Support
Services, Primary Home Care, Day Activity and Health Services, Deaf-Blind
Multiple Disabilities Waiver, and Residential Care). Providers receiving the
additional funds must demonstrate compliance with spending the increased funds
on attendant compensation. If a participating provider's allowable attendant
compensation times 1.07 is less than the revenue accrued, the difference will
be recouped by DHS. Providers who choose not to participate will have their
total direct care staff rate increase each year limited to adjustments necessitated
by increases in the minimum wage. The section modifies the cost areas of these
programs to separate the new attendant compensation cost area from other cost
areas. Changes to the Day Activity and Health Services, Primary Home Care,
and Residential Care programs are adopted to combine some of the cost areas.
DHS adopts related policy in Chapters 20, 47, and 98 of this title in this
issue of the
Texas Register
. The Health and
Human Services Commission adopts similar policy for Medicaid-funded services,
codified at 1 TAC §§355.112, 355.503, 355.505, 355.5902, and 355.6907,
in this issue of the
Texas Register
.
The section will function by being a mechanism for increasing compensation
to attendants in certain community care programs.
The department received no comments regarding the proposal.
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 amendment implements the Human Resources Code, §§22.001-22.030
and §§32.001-32.042.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 5, 2000.
TRD-200003953
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: June 25, 2000
Proposal publication date: March 31, 2000
For further information, please call: (512) 438-3108
Subchapter E. SUPPORT DOCUMENTS
40 TAC §47.5902
The Texas Department of Human Services (DHS) adopts an amendment
to §47.5902, with changes to the proposed text published in the March
31, 2000, issue of the
Texas Register
(25
TexReg 2773).
Justification for the new section is to implement DHS's appropriations
rider 37 regarding community care programs passed by the 76th legislature.
The section establishes procedures for providers to obtain additional funds
for increased compensation to attendants in select community care programs
(Community Based Alternatives Waiver, Community Living Assistance and Support
Services, Primary Home Care, Day Activity and Health Services, Deaf-Blind
Multiple Disabilities Waiver, and Residential Care). Providers receiving the
additional funds must demonstrate compliance with spending the increased funds
on attendant compensation. If a participating provider's allowable attendant
compensation times 1.07 is less than the revenue accrued, the difference will
be recouped by DHS. Providers who choose not to participate will have their
total direct care staff rate increase each year limited to adjustments necessitated
by increases in the minimum wage. The section modifies the cost areas of these
programs to separate the new attendant compensation cost area from other cost
areas. Changes to the Day Activity and Health Services, Primary Home Care,
and Residential Care programs are adopted to combine some of the cost areas.
DHS adopts related policy in Chapters 20, 46, and 98 of this title in this
issue of the
Texas Register
. The Health and
Human Services Commission adopts similar policy for Medicaid-funded services,
codified at 1 TAC §§355.112, 355.503, 355.505, 355.5902, and 355.6907,
in this issue of the
Texas Register
.
The section will function by being a mechanism for increasing compensation
to attendants in certain community care programs.
The department received no comments regarding the proposal. The department
made editorial changes to the section.
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 amendment implements the Human Resources Code, §§22.001-22.030
and §§32.001-32.042.
§47.5902.Reimbursement Methodology for Primary Home Care and Family Care Services.
(a)
General requirements. For the completion and submittal
of cost reports pertaining to providers' fiscal years ending in calendar year
1997 and subsequent years, providers must apply the information in this section.
Texas Department of Human Services (DHS) applies the general principles of
cost determination as specified in §20.101 of this title (relating to
Introduction).
(b)
Cost reporting. Providers must follow the cost-reporting
guidelines as specified in §20.105 of this title (relating to General
Reporting and Documentation Requirements, Methods and Procedures).
(1)
All contracted providers must submit a cost report unless
the number of days between the date the first DHS client received services
and the provider's fiscal year end is 30 days or fewer. The provider may be
excused from submitting a cost report if circumstances beyond the control
of the provider make cost report completion impossible, such as the loss of
records due to natural disasters or removal of records from the provider's
custody by any governmental entity. Requests to be excused from submitting
a cost report must be received by DHS's Rate Analysis Department before the
due date of the cost report.
(2)
Providers are responsible for reporting only allowable
costs on the cost report, except where cost report instructions indicate that
other costs are to be reported in specific lines or sections. Only allowable
cost information is used to determine recommended reimbursement. DHS excludes
from reimbursement determination unallowable expenses included in the cost
report and makes the appropriate adjustments to expenses and other information
reported by providers. The purpose is to ensure that the database reflects
costs and other information which are necessary for the provision of services
and are consistent with federal and state regulations.
(A)
Individual cost reports may not be included in the database
used for reimbursement determination if:
(i)
there is reasonable doubt as to the accuracy or allowability
of a significant part of the information reported; or
(ii)
an auditor determines that reported costs are not verifiable.
(B)
When material pertinent to proposed reimbursements is made
available to the public, the material will include the number of cost reports
eliminated from reimbursement determination for the reason stated in subparagraph
(A)(i) of this paragraph.
(c)
Reimbursement determination. DHS determines reimbursement
in the following manner.
(1)
Cost determination by cost area. DHS combines reported
allowable costs for Primary Home Care and Family Care into four cost areas,
after allocating payroll taxes to each salary line item on the cost report
on a pro rata basis based on the portion of that salary line item to the amount
of total salary expense and after applying employee benefits directly to the
corresponding salary line item.
(A)
Field supervisors cost area. This includes field supervisor's
salaries, wages, benefits, and mileage reimbursement expenses.
(B)
Nonpriority attendants cost area. This includes nonpriority
attendants' salaries and wages, benefits, and mileage reimbursement expenses.
This cost area is calculated as specified in §20.112 of this title (relating
to Attendant Compensation Rate Enhancement).
(C)
Priority 1 attendants cost area. This includes Priority
1 attendants' salaries and wages, benefits, mileage reimbursement, expenses.
This cost area is calculated as specified in §20.112 of this title (relating
to Attendant Compensation Rate Enhancement).
(D)
Building, administration and other service cost area. This
includes building, building equipment, and operation and maintenance costs;
administration costs; and other direct service costs. Administration expenses
equal to $0.18 per Priority 1 unit of service are allocated to Priority 1.
The administration costs remaining after this allocation are summed with the
facility and the other service costs.
(2)
Recommended reimbursement by cost area. For the
cost areas described in paragraph (1)(A) and (D) of this subsection, the following
is calculated:
(A)
Projected costs. DHS projects allowable expenses, excluding
depreciation and mortgage interest, per unit of service from each provider
agency's reporting period to the next ensuing reimbursement period. DHS determines
reasonable and appropriate economic adjusters as described in §20.108
of this title (relating to Determination of Inflation Indicies) to calculate
the projected expenses. DHS also adjusts reimbursement where new legislation,
regulations, or economic factors affect costs as specified in §20.109
of this title (relating to Adjusting Reimbursement When New Legislation, Regulations,
or Economic Factors Affect Costs).
(B)
Projected cost per unit of service. To determine the projected
cost per unit of service for each provider agency, the total projected allowable
costs for each cost area are divided by total units of service, including
nonpriority services and Priority 1 services, in order to calculate the projected
cost per unit of service for each cost area.
(C)
Projected cost arrays. DHS rank orders from low to high
all provider agencies' projected allowable costs per unit of service and each
provider agencies' corresponding units of service for each cost area.
(D)
Recommended reimbursement for each cost area component.
The hours of service used to calculate each cost area component for each provider
agency are summed until the median hour of service is reached. The corresponding
projected expense is the weighted median cost component. The cost component
for each cost area is multiplied by 1.044 to calculate the recommended reimbursement
for each cost area component.
(3)
Total recommended reimbursement.
(A)
For nonpriority clients. DHS determines the recommended
reimbursement by summing the recommended reimbursement described in paragraph
(2) of this subsection and the cost area component from paragraph (1)(B) of
this subsection.
(B)
For Priority 1 clients. DHS determines the recommended
reimbursement by summing the recommended reimbursement described in paragraph
(2) of this subsection and the cost area component from paragraph (1)(C) of
this subsection.
(4)
Reimbursement determination authority. The reimbursement
determination authority is specified in §20.101 of this title (relating
to Introduction).
(5)
Desk reviews and field audits of cost reports. DHS
performs desk reviews or field audits on all contracted providers. The frequency
and nature of the field audits are determined by DHS to ensure the fiscal
integrity of the program. Desk reviews and field audits will be conducted
in accordance with §20.106 of this title (relating to Basic Objectives
and Criteria for Audit and Desk Review of Cost Reports), and providers will
be notified of the results of a desk review or an audit in accordance with §20.107
of this title (relating to Notification of Exclusions and Adjustments). Providers
may request an informal review and, if necessary, an administrative hearing
to dispute an action taken by DHS under §20.110 of this title (relating
to Informal Reviews and Formal Appeals).
(d)
Factors affecting allowable costs. Providers must follow
the guidelines in determining whether a cost is allowable or unallowable as
specified in §20.102 this title (relating to General Principles of Allowable
and Unallowable Costs) and §20.103 of this title (relating to Specifications
for Allowable and Unallowable Costs).
(e)
Reporting revenues. Revenues must be reported on the cost
report in accordance with §20.104 of this title (relating to Revenues).
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 5, 2000.
TRD-200003954
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: June 25, 2000
Proposal publication date: March 31, 2000
For further information, please call: (512) 438-3108
The Texas Department of Human Services (DHS) adopts the repeal of §97.13,
amendments to §97.1, §97.2, §97.3, §97.11, §97.12, §97.14, §97.15, §97.16, §97.21, §97.51,
and §97.52, and new §97.13. DHS adopts the repeal of §97.13,
amendments to §97.3, §97.11, §97.12, §97.14, §97.15,
and §97.16; and new §97.13 without changes to the proposed text
published in the February 18, 2000, issue of the
Texas Register
(25 TexReg 1272). Amendments to §97.1, §97.2, §97.21,
and §97.52 are adopted with minor editorial changes, and the amendment
to §97.51(a)(1) is adopted with an administrative change to replace the
phrase "commissioner of health" with "commissioner of human services".
Most of these adopted rules implement legislation from the 76th Legislative
Session, which amended Health and Safety Code, Chapter 142, relating to licensing
and regulation of home and community support services agencies (HCSSA). The
rules that implement legislation are the rules which require agencies to provide
a written statement describing the agency's policy for drug testing of employees
who have direct contact with clients to certain individuals; require agencies
to dispose of special or medical waste generated in the home in the same manner
as they do at the agency; require agencies to report abuse, exploitation,
and neglect; prohibit retaliation against a person for filing a complaint
or presenting a grievance; and require agencies to inform residents of policies
regarding advance directives and establish a $500 administrative penalty for
failure to do so. In addition, the application procedures and the criteria
and procedures relating to change of ownership were amended to address problem
areas identified by DHS and to provide consistency with other DHS rules in
other programs licensed by the department. The problem areas identified by
DHS included unrealistic time lines for submitting applications and accompanying
documents; and failure by agencies to submit timely applications when a change
of ownership occurs.
DHS received one comment regarding the proposal from the Texas Association
for Home Care. A summary of the comment and the department's response follows.
Comment: Concerning §97.13(a)(2) relating to change of ownership,
a commenter expressed concerns with the rule language which changes the definition
of a "change of ownership" to include the sale of 50% or more of stock. Formerly
the rule stated that the sale of stock does not cause a change of ownership.
The commenter stated that a corporation is the owner of the license and that
the purchase of stock does not change that fact and that the only thing that
changes is the controlling interest for which an agency is already required
by statute to report. The change will cause a purchaser of 50% or more stock
to pay an additional $875 for the parent and for any branches effected. The
commenter further stated, "If the department is proposing to deny approval
of a stock purchase through the change of ownership process, it should have
clear criteria to be used in this decision so that parties are not caught
by surprise after making significant financial investments."
Response: DHS disagrees and believes that a change of ownership does occur
when there is a 50% or more stock purchase. DHS believes that at this percentage
change there is a high probability in change of management and direction of
a company or agency. A license is approved based on the information supplied
in an application and compliance with the statute and rules adopted thereunder.
When there is a change of ownership based on 50% or more stock purchase, this
information changes. The department believes that the agency must be re-evaluated
using the information contained in an application for a new license to ensure
that an agency under new ownership meets the requirements for a license.
Subchapter A. GENERAL PROVISIONS
40 TAC §§97.1 - 97.3
The amendments are adopted under the Health and Safety Code,
Chapter 142, which provides the department with the authority to adopt rules
for the licensing and regulation of home and community support services agencies.
The amendments implement the Health and Safety Code, Chapter 142.001-142.030.
§97.1.Purpose.
(a)
The purpose of these sections is to implement the Health
and Safety Code, Chapter 142, which requires a home and community support
services agency to be licensed by the Texas Department of Human Services.
(b)
These sections provide minimum standards for acceptable
quality of care, which include the following components:
(1)
client independence and self-determination;
(2)
humane treatment;
(3)
continuity of care;
(4)
coordination of services;
(5)
professionalism of service providers;
(6)
quality of life; and
(7)
client satisfaction with services.
(c)
Requirements established by private or public funding sources
(e.g., health maintenance organizations or other private third-party insurance,
Medicaid (Title XIX of the Social Security Act), Medicare (Title XVIII of
the Social Security Act), or state-sponsored funding programs) are separate
and apart from the requirements in this chapter for agencies. No matter what
funding sources or requirements apply to an agency, the agency must still
comply with the applicable provisions in the statute and this chapter. The
agency is responsible for researching availability of any funding source to
cover the service(s) the agency provides.
§97.2.Definitions.
The following words and terms, when used in these sections, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)
Accessible and flexible services--Services which are delivered
in the least intrusive manner possible and are provided in all settings where
individuals live, work, and recreate.
(2)
Administration of medication--The direct application
of any medication by injection, inhalation, ingestion, or any other means
to the body of a client. The preparation of medication is part of the administration
of medication and is the act or process of making ready a medication for administration,
including the calculation of a client's medication dosage; altering the form
of the medication by crushing, dissolving, or any other method; reconstitution
of an injectable medication; drawing an injectable medication into a syringe;
preparing an intravenous admixture; or any other act required to render the
medication ready for administration.
(3)
Administrative support site--A facility or site where
an agency performs administrative and other support functions but does not
provide direct home health, hospice, or personal assistance services. This
site does not require an agency license.
(4)
Administrator--The person who is responsible for the
day-to-day operations of an agency.
(5)
Advanced practice nurse--A registered nurse approved
by the Board of Nurse Examiners for the State of Texas to practice as an advanced
practice nurse on the basis of completion of an advanced educational program.
The term includes a nurse practitioner, nurse midwife, nurse anesthetist,
and clinical nurse specialist.
(6)
Affiliate--With respect to an applicant or owner which
is:
(A)
a corporation--means each officer, director, stockholder
with direct ownership of at least 5.0%, subsidiary, and parent company;
(B)
a limited liability company--means each officer, member,
and parent company;
(C)
an individual--means:
(i)
the individual's spouse;
(ii)
each partnership and each partner thereof of which the
individual or any affiliate of the individual is a partner; and
(iii)
each corporation in which the individual is an officer,
director, or stockholder with a direct ownership of at least 5.0%.
(D)
a partnership--means each partner and any parent company;
and
(E)
a group of co-owners under any other business arrangement--means
each officer, director, or the equivalent under the specific business arrangement
and each parent company.
(7)
Agency--A home and community support services
agency.
(8)
Alternate delivery site--A facility or site, including
a residential unit or an inpatient unit:
(A)
that is owned or operated by an agency providing hospice
services;
(B)
that is not the hospice's principal place of business;
(C)
that is located in the geographical area served by the
hospice; and
(D)
from which the hospice provides hospice services.
(9)
Applicant--The owner of an agency which is applying
for a license under the statute. This is the person in whose name the license
will be issued.
(10)
Assistance with medication or treatment regimen--Any
needed ancillary aid provided to a client in the client's self-administered
medication or treatment regimen, such as reminding a client to take a medication
at the prescribed time, opening and closing a medication container, pouring
a predetermined quantity of liquid to be ingested, returning a medication
to the proper storage area, and assisting in reordering medications from a
pharmacy. Such ancillary aid must not include administration of any medication,
unless the client has the cognitive ability to direct the administration of
their medication and would self-administer if not for a functional limitation.
(11)
Association--A partnership, limited liability company,
or other business entity that is not a corporation.
(12)
Audiologist--A person who is currently licensed under
Texas Civil Statutes, Article 4512j, as an audiologist.
(13)
Bereavement--The process by which a survivor of a
deceased person mourns and experiences grief.
(14)
Bereavement services--Support services offered to
a family during bereavement. Family includes a significant other(s).
(15)
Branch office--A facility or site in the service
area of a parent agency from which home health or personal assistance services
are delivered or where active client records are maintained. This does not
include inactive records which are stored at an unlicensed site.
(16)
Care plan--
(A)
a written plan prepared by the appropriate health care
personnel for a client of the home and community support services agency;
or
(B)
for home dialysis designation, a written plan developed
by the physician, registered nurse, dietitian and qualified social worker
to personalize the care for the client and enable long- and short-term goals
to be met.
(17)
Case conference--A conference among personnel
furnishing services to the client to ensure that their efforts are coordinated
effectively and support the objectives outlined in the plan of care or care
plan.
(18)
Certified agency--A home and community support services
agency that:
(A)
provides a home health service; and
(B)
is certified by an official of the Department of Health
and Human Services as in compliance with conditions of participation in Social
Security Act, Title XVIII (42 United States Code (USC) §1395 et seq.).
(19)
Certified home health services--Home health
services that are provided by a certified agency.
(20)
Client--An individual receiving home health, hospice,
or personal assistance services from a licensed home and community support
services agency. This term includes each member of the primary client's family
if the member is receiving ongoing services. This term does not include the
spouse, significant other, or other family member living with the client who
receives a one-time service (e.g., vaccine) if the spouse, significant other,
or other family member receives the service in connection with the care of
a client.
(21)
Clinical note--A dated and signed written notation
by agency personnel of a contact with a client containing a description of
signs and symptoms; treatment and medication given; the client's reaction;
other health services provided; and any changes in physical and emotional
condition.
(22)
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 an agency or other person.
(A)
A controlling person includes:
(i)
a management company, landlord, or other business entity
that operates or contracts with others for the operation of an agency;
(ii)
any person who is a controlling person of a management
company or other business entity that operates an agency or that contracts
with another person for the operation of an agency;
(iii)
any other individual who, because of a personal, familial,
or other relationship with the owner, manager, landlord, tenant, or provider
of an agency, is in a position of actual control or authority with respect
to the agency, without regard to whether the individual is formally named
as an owner, manager, director, officer, provider, consultant, contractor,
or employee of the agency.
(B)
A controlling person, as described by subparagraph (A)(iii)
of this paragraph, does not include an employee, lender, secured creditor,
or landlord, or other person who does not exercise formal or actual influence
or control over the operation of an agency.
(23)
Counselor--An individual qualified under Medicare
standards to provide counseling services, including bereavement, dietary,
spiritual, and other counseling services to both the client and the family.
(24)
Department--The Texas Department of Human Services
(DHS).
(25)
Dialysis treatment record--For home dialysis designation,
a dated and signed written notation by the person providing dialysis treatment
which contains a description of signs and symptoms, machine parameters and
pressure settings, type of dialyzer and dialysate, actual pre- and post-treatment
weight, medications administered as part of the treatment, and the client's
response to treatment.
(26)
Dietitian--A person who is currently licensed under
the laws of this state to use the title of licensed dietitian or provisional
licensed dietitian, or who is a registered dietitian.
(27)
Director--The director of the Home and Community
Support Services Agencies of the Texas Department of Human Services or his
or her designee.
(28)
End stage renal disease (ESRD)--For home dialysis
designation, the stage of renal impairment that appears irreversible and permanent
and requires a regular course of dialysis or kidney transplantation to maintain
life.
(29)
Freestanding hospice--An agency that provides hospice
services to clients of the agency who are residing at the agency's physical
location including inpatient and respite care.
(30)
Functional need--Needs of the individual which require
services without regard to diagnosis or label.
(31)
Health assessment--A determination of a client's
physical and mental status through inventory of systems.
(32)
Home and community support services agency--A person
who provides home health, hospice, or personal assistance services for pay
or other consideration in a client's residence, an independent living environment,
or another appropriate location.
(33)
Home health medication aide--A person permitted under
the Health and Safety Code, Chapter 142, Subchapter B.
(34)
Home health service--The provision of one or more
of the following health services required by an individual in a residence
or independent living environment:
(A)
nursing;
(B)
physical, occupational, speech, or respiratory therapy;
(C)
medical social service;
(D)
intravenous therapy;
(E)
dialysis;
(F)
service provided by unlicensed personnel under the delegation
of a licensed health professional;
(G)
the furnishing of medical equipment and supplies, excluding
drugs and medicines; or
(H)
nutritional counseling.
(35)
Hospice--A person licensed under this chapter
to provide hospice services, including a person who owns or operates a residential
unit or an inpatient unit.
(36)
Hospice services--Services, including services provided
by unlicensed personnel under the delegation of a registered nurse or physical
therapist, provided to a client or a client's family as part of a coordinated
program consistent with the standards and rules adopted under this chapter.
These services include palliative care for terminally ill clients and support
services for clients and their families that:
(A)
are available 24 hours a day, seven days a week, during
the last stages of illness, during death, and during bereavement;
(B)
are provided by a medically directed interdisciplinary
team; and
(C)
may be provided in a residence, nursing facility, residential
unit, independent living environment, or inpatient unit according to need.
These services do not include inpatient care normally provided in a licensed
hospital to a terminally ill person who has not elected to be a hospice client.
(37)
Independent living environment--A client's individual
residence, which may include a group home or foster home, or other settings
where a client participates in activities, including school, work, or church.
(38)
Individual/family choice and control--Individuals
and families who express preferences and make choices about how their support
service needs are met.
(39)
Inpatient unit--A facility that provides a continuum
of medical or nursing care and other hospice services to clients admitted
into the unit and that is in compliance with the conditions of participation
for inpatient units adopted under Social Security Act, Title XVIII (42 United
States Code §1395 et seq.) and standards adopted under this chapter.
(40)
Interdisciplinary team--
(A)
for home dialysis designation, the physician, the registered
nurse, the dietitian, and the qualified social worker responsible for planning
the care delivered to the home staff-assisted dialysis patient; or
(B)
a group of individuals who work together in a coordinated
manner to provide hospice services and must include a physician, registered
nurse, social worker, and counselor.
(41)
Licensed vocational nurse--A person who is currently
licensed under Texas Civil Statutes, Article 4528c, as a licensed vocational
nurse.
(42)
Long-term program--For home dialysis designation,
the written documentation of the selection of a suitable treatment modality
and dialysis setting which has been selected by the client and the interdisciplinary
team.
(43)
Manager--A person having a contractual relationship
to provide management services to a home and community support services agency
for the overall operation of a home and community support services agency
including administration, staffing, or delivery of services. Examples of contracts
for services that will not be considered to be contracts for management services
include contracts solely for maintenance, laundry, or food services.
(44)
Medication administration record--A record used to
document the administration of a client's medications.
(45)
Medication list--A list of a client's medications
that includes the recommended dosage and the frequency and method of administration.
The medication list is used to identify possible ineffective drug therapy
or adverse reactions, significant side effects, drug allergies, and contraindications.
The medication list does not include a medication profile.
(46)
Notarized copy--A sworn affidavit stating that attached
copies are true and correct copies of the original documents.
(47)
Nursing facility--An institution licensed as a nursing
home under the Health and Safety Code, Chapter 242.
(48)
Nutritional counseling--Advising and assisting individuals
or families on appropriate nutritional intake by integrating information from
the nutrition assessment with information on food and other sources of nutrients
and meal preparation consistent with cultural background and socioeconomic
status, with the goal being health promotion, disease prevention, and nutrition
education. Nutritional counseling may include, but is not limited to, the
following:
(A)
dialogue with the client to discuss current eating habits,
exercise habits, food budget and problems with food preparation;
(B)
discussion of dietary needs to help the client understand
why certain foods should be included or excluded from the client's diet and
to help with adjustment to the new or revised or existing diet plan;
(C)
a personalized written diet plan as ordered by the client's
physician or practitioner, to include instructions for implementation;
(D)
providing the client with motivation to help him or her
understand and appreciate the importance of the diet plan in getting and staying
healthy; or
(E)
working with the client or the client's family members
by recommending ideas for meal planning, food budget planning, and appropriate
food gifts.
(49)
Occupational therapist--A person who is currently
licensed under the Occupational Therapy Practice Act, Texas Civil Statutes,
Article 8851, as an occupational therapist.
(50)
Owner--One of the following persons which will hold
or does hold a license issued under the statute in the person's name or the
person's assumed name:
(A)
a corporation;
(B)
a limited liability company;
(C)
an individual;
(D)
a partnership if a partnership name is stated in a written
partnership agreement or an assumed name certificate;
(E)
all partners in a partnership if a partnership name is
not stated in a written partnership agreement or an assumed name certificate;
or
(F)
all co-owners under any other business arrangement.
(51)
Palliative care--Intervention services that
focus primarily on the reduction or abatement of physical, psychosocial, and
spiritual symptoms of a terminal illness.
(52)
Parent agency--The agency that develops and maintains
administrative controls and provides supervision of branch offices and alternate
delivery sites.
(53)
Parent company--A person, other than an individual,
who has a direct 100% ownership interest in the owner of an agency.
(54)
Person--An individual, corporation, or association.
(55)
Personal assistance services--Routine ongoing care
or services required by an individual in a residence or independent living
environment that enable the individual to engage in the activities of daily
living or to perform the physical functions required for independent living,
including respite services. The term includes health-related services performed
under circumstances that are defined as not constituting the practice of professional
nursing by the Board of Nurse Examiners through a memorandum of understanding
with DHS in accordance with Health and Safety Code, §167 142.016, and
health-related tasks provided by unlicensed personnel under the delegation
of a registered nurse or physician.
(56)
Physical therapist--A person who is currently licensed
under Texas Civil Statutes, Article 4512e, as a physical therapist.
(57)
Physician--A person who is currently licensed under
the laws of a state within the United States and in which the person practices
medicine and who holds a doctor of medicine or doctor of osteopathy degree.
(58)
Physician assistant--A person who is licensed under
the Physician Assistant Licensing Act, Texas Civil Statutes, Article 4495-1,
as a physician assistant.
(59)
Physician delegated tasks--Tasks performed in accordance
with the Medical Practice Act, Texas Civil Statutes, Article 4495d, §3.06,
including orders signed by a physician which specify the delegated task(s),
the individual to whom the task(s) is delegated, and the client's name.
(60)
Place of business--An office of a home and community
support services agency that maintains client records or directs home health,
hospice, or personal assistance services. The term does not include an administrative
support site.
(61)
Plan of care--The written orders of a practitioner
for a client who requires skilled services.
(62)
Practitioner--A person who is currently licensed
in a state in which the person practices as a physician, dentist, podiatrist,
or a physician assistant, or a person who is a registered nurse registered
with the Board of Nurse Examiners for the State of Texas as an advanced practice
nurse.
(63)
Presurvey conference--A conference held with department
staff and the applicant or his or her representatives to review licensure
standards and survey documents and provide consultation prior to the on-site
licensure survey.
(64)
Progress note--A dated and signed written notation
by agency personnel summarizing facts about care and the client's response
during a given period of time.
(65)
Psychoactive treatment--The provision of a skilled
nursing visit to a client with a psychiatric diagnosis under the direction
of a physician that includes one or more of the following:
(A)
assessment of alterations in mental status or evidence
of suicide ideations or tendencies;
(B)
teaching coping mechanisms or skills;
(C)
counseling activities; or
(D)
evaluation of the plan of care.
(66)
Registered nurse (RN)--A person who is currently
licensed under the Nursing Practice Act, Texas Civil Statutes, Article 4513
et seq. as a registered nurse.
(67)
Registered nurse delegation--Delegation by a registered
nurse in accordance with 22 TAC §§218.1-218.11 (Delegation of Selected
Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel).
(68)
Residence--A place where a person resides and includes
a home, a nursing facility, a convalescent home, an independent living environment,
or a residential unit. A residence includes a group or a foster home.
(69)
Residential unit--A facility that provides living
quarters and hospice services to clients admitted into the unit and that is
in compliance with standards adopted under the Texas Special Care Facility
Licensing Act, Health and Safety Code, Chapter 248.
(70)
Respiratory therapist--A person who is currently
licensed under Texas Civil Statutes, Article 4512l, as a respiratory care
practitioner.
(71)
Respite services--Support options that are provided
temporarily for the purpose of relief for a primary caregiver in providing
care to individuals of all ages with disabilities or at risk of abuse or neglect.
Respite services may be provided under home health, hospice, or personal assistance
services depending on the needs of the client.
(72)
Sections--Chapter 97 of this title (Home and Community
Support Services Agency).
(73)
Service area--The geographic area(s) established
by an agency in which all or some of the agency's services are available.
(74)
Skilled services--Services in accordance with a plan
of care that require the skills of a:
(A)
registered nurse;
(B)
licensed vocational nurse;
(C)
physical, occupational, or respiratory therapist;
(D)
speech-language pathologist;
(E)
audiologist;
(F)
social worker; or
(G)
dietitian.
(75)
Social worker--A person who is currently licensed
as a social worker under Human Resource Code, Chapter 50.
(76)
Speech-language pathologist--A person who is currently
licensed under the Texas Civil Statutes, Article 4512j, as a speech-language
pathologist.
(77)
Statute--The Health and Safety Code, Chapter 142.
(78)
Supervising nurse--The person responsible for supervising
skilled services provided by an agency and who has the qualifications described
in §97.21(b)(3)(C) of this title (relating to Licensure Requirements
and Standards for Agencies Providing Licensed Home Health, Licensed and Certified
Home Health, or Hospice Services). This person may also be known as the director
of nursing or similar title.
(79)
Supervision--Authoritative procedural guidance by
a qualified person for the accomplishment of a function or activity with initial
direction and periodic inspection of the actual act of accomplishing the function
or activity.
(80)
Support services--Social, spiritual, and emotional
care provided to a client and a client's family by a hospice.
(81)
Survey--An inspection or investigation conducted
by a representative of the department to determine if a licensee is in compliance
with the statute and this chapter. A survey may be conducted onsite, by mail,
by telephone or by electronic communication methods.
(82)
Terminal illness--An illness for which there is a
limited prognosis if the illness runs its usual course.
(83)
Unlicensed person--An individual who is not licensed
as a health care professional. The term includes, but is not limited to, home
health aides, medication aides permitted by the department, and other individuals
providing personal care or assistance in health services.
(84)
Volunteer--An individual who provides assistance
to a home and community support services agency without compensation other
than reimbursement for actual expenses. A volunteer must meet the same requirements
and standards in this chapter as apply to an employee of the agency doing
the same activities unless the volunteer is exempt under this chapter from
certain requirements or standards.
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 May 26, 2000.
TRD-200003794
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: June 15, 2000
Proposal publication date: February 18, 2000
For further information, please call: (512) 438-3108
40 TAC §§97.11 - 97.16
The new section and amendments are adopted under the Health
and Safety Code, Chapter 142, which authorizes the department to adopt rules
for the licensing and regulation of home and community support services agencies.
The new section and amendments implement the Health and Safety Code, Chapter
142.001-142.030.
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 May 26, 2000.
TRD-200003796
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: June 15, 2000
Proposal publication date: February 18, 2000
For further information, please call: (512) 438-3108
40 TAC §97.13
The repeal is adopted under the Health and Safety Code, Chapter
142, which authorizes the department to adopt rules for the licensing and
regulation of home and community support services agencies.
The repeal implements the Health and Safety Code, Chapter 142.001- 142.030.
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 May 26, 2000.
TRD-200003795
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: June 15, 2000
Proposal publication date: February 18, 2000
For further information, please call: (512) 438-3108
40 TAC §97.21
The amendment is adopted under the Health and Safety Code,
Chapter 142, which authorizes the department to adopt rules for the licensing
and regulation of home and community support services agencies.
The amendment implements the Health and Safety Code, Chapter 142.001-142.030.
§97.21.Licensure Requirements and Standards for Agencies Providing Licensed Home Health, Licensed and Certified Home Health, or Hospice Services.
(a)
Conditions of license. An agency licensed to provide licensed
home health, licensed and certified home health, or hospice services must
comply with the requirements in this section.
(1)
A license must be displayed in a conspicuous place in the
designated place of business.
(2)
A license may not be transferred from one location
to another without prior approval from the Texas Department of Human Services
(DHS). If an agency is considering relocation, the agency must notify the
department 30 calendar days prior to the intended relocation. DHS will provide
written notification to the agency amending the annual license to reflect
the new location.
(3)
The relocation of a branch office or alternate delivery
site to a different parent agency requires submission of a new application
for the branch office or alternate delivery site and compliance with §97.14
of this title (relating to Application and Issuance of a Branch Office License)
and §97.15 of this title (relating to Application and Issuance of an
Alternate Delivery Site License) as appropriate.
(4)
An agency must notify DHS in writing of any change
in its telephone number within 30 calendar days after the change.
(5)
An agency must notify DHS in writing of any change
in the agency administrator or chief financial officer within 15 calendar
days after the change.
(6)
A license may not be materially altered.
(7)
An agency must provide services only within its service
area.
(A)
The agency must maintain adequate staff to provide services
and to supervise the provision of services within the service area.
(B)
An agency may expand its service area at any time during
the licensure period. To expand its service area, an agency must submit to
DHS a written notice for the expansion which includes revised boundaries of
the agency's original service area, the effective date of the expansion, and
an updated list of management and supervisory personnel (including names),
if changes are made. The notice must be submitted either before or within
30 calendar days after the effective date of the expansion.
(C)
An agency may reduce its service area at any time during
the licensure period by sending DHS written notification of the reduction,
revised boundaries of the agency's original service area, and the effective
date of the reduction.
(D)
A branch office or alternate delivery site must be located
within the parent agency's service area.
(8)
A separate license is required for each principal
place of business.
(b)
Agency responsibilities.
(1)
General.
(A)
An agency must adopt, implement, and enforce the provisions
of the Human Resources Code, Chapter 102 (Rights of the Elderly).
(B)
An agency must investigate complaints made by a client
or the client's family or guardian or the client's health care provider regarding
treatment or care that is (or fails to be) furnished or regarding the lack
of respect for the client's property by anyone furnishing services on behalf
of the agency and must document the receipt of the complaint and the disposition
of the complaint. The investigation and documentation must be completed within
30 calendar days after the agency receives the complaint, unless the agency
has and documents reasonable cause for a delay.
(C)
An agency that generates special or medical waste while
providing home health services must dispose of the waste according to the
requirements in 25 TAC §§1.131-1.137 (relating to Definition, Treatment,
and Disposition of Special Waste from Health Care-Related Facilities). An
agency must provide both verbal and written instructions to the agency's clients
regarding the proper procedure for disposing of sharps. For purposes of this
subparagraph, sharps include hypodermic needles, hypodermic syringes with
attached needles, scalpel blades, razor blades, disposable razors, disposable
scissors used in medical procedures, and intravenous stylets and rigid introducers.
(D)
An agency that provides laboratory services must meet the
Clinical Laboratory Improvement Amendments of 1988, 42 United States Code, §263a,
Certification of Laboratories (CLIA 1988). CLIA 1988 applies to all agencies
with laboratories that examine human specimens for the diagnosis, prevention,
or treatment of any disease or impairment of, or the assessment of the health
of, human beings.
(E)
An agency must comply with the Nursing Practice Act, Texas
Civil Statutes, Articles 4525a and 4525b, concerning professional nurse reporting
and peer review.
(F)
An agency must comply with 22 TAC §§240.11-240.13,
concerning licensed vocational nurse peer review and reporting.
(G)
An agency can accept delegation from a physician only if
the agency receives the following from the physician:
(i)
the name of the client;
(ii)
the name of the delegating physician;
(iii)
the task(s) to be performed;
(iv)
the name of the individual(s) to perform the task(s);
(v)
the time frame for the delegation order; and
(vi)
if the task is medication administration, the medication
to be given, route, dose, and frequency.
(H)
An agency must provide a written statement describing the
agency's policy for the drug testing of employees who have direct contact
with clients to the following persons:
(i)
each person applying for services from the agency; and
(ii)
any person requesting the information.
(2)
Reports of abuse, exploitation and neglect.
(A)
In this paragraph, "abuse," "exploitation," and "neglect"
have the meanings assigned by §48.002, Human Resources Code.
(B)
An agency that has cause to believe that a client has been
abused, exploited or neglected by an employee of the agency must report the
information to:
(i)
DHS at 1-800-228-1570; and
(ii)
the Texas Department of Protective and Regulatory Services
at 1- 800-252-5400.
(3)
Retaliation prohibited.
(A)
An agency may not retaliate against a person for filing
a complaint, presenting a grievance, or providing in good faith information
relating to home health, hospice or personal assistance services provided
by the agency.
(B)
An agency is not prohibited from terminating an employee
for a reason other than retaliation.
(4)
Provision of services.
(A)
An agency must conduct an ongoing, comprehensive, integrated,
self-assessment of the quality and appropriateness of care provided, including
services provided under arrangement. The findings are to be used by the agency
to correct identified problems and to revise policies, if necessary. The agency
staff responsible for the quality assurance program must:
(i)
ensure that all service providers involved in the care
of a client (e.g., contracted health care professional or another agency)
are engaged in an effective interchange, reporting, and coordination of care
regarding the client. The agency must document the steps taken to meet this
standard;
(ii)
implement and report on activities and mechanisms for
monitoring the quality of care;
(iii)
identify and, when possible, resolve problems; and
(iv)
make suggestions for improving care.
(B)
If an agency utilizes independent contractors, there must
be a written agreement between such independent contractors (i.e., per hour,
per visit) and the agency. The agreement must be enforced by the agency and
clearly designate:
(i)
that clients are accepted for care only by the licensed
agency;
(ii)
the services to be provided;
(iii)
the necessity to conform to all applicable agency policies,
including personnel qualifications;
(iv)
the plan of care or care plan to be carried out;
(v)
the manner in which services will be coordinated and evaluated
by the licensed agency in accordance with subparagraph (A) of this paragraph;
(vi)
the procedures for submitting information and documentation
regarding the client's needs and services, including clinical and progress
notes, if required; the scheduling of visits; and periodic client evaluation
or supervision; and
(vii)
the procedures for determining charges and reimbursement.
(C)
Services provided by an agency under arrangement with another
agency or organization must be provided under a legally binding written agreement
conforming with the requirements specified in subparagraph (B) of this paragraph.
(D)
The agency must provide for back-up services when an employee
or contractor is not able to deliver the services.
(E)
A person who is not licensed to provide hospice services
may not use the word "hospice" in a title or description of a facility, organization,
program, service provider or services or use any other words, letters, abbreviations,
or insignia indicating or implying that the person holds a license to provide
hospice services.
(F)
The agency must have a written contingency plan which is
implemented in the event of dissolution to assure continuity of client care.
The plan must be consistent with subparagraph (I) of this paragraph and include
provisions for notifying the client of the agency's dissolution and for documenting
the notification, and procedures for carrying out the notification.
(G)
The agency and the client or his family must have a written
agreement for services. The agency must obtain an acknowledgment of receipt
of the agreement. The agency must comply with the terms of the agreement.
The agreement must include, but may not be limited to, the following:
(i)
notification of the Human Resources Code, Chapter 102 (Rights
of the Elderly);
(ii)
documentation concerning notification to the client of
the availability of durable power of attorney for health care, advance directive
or do-not-resuscitate (DNR) orders in accordance with the applicable law;
(iii)
services to be provided;
(iv)
supervision by the agency of services provided; and
(v)
agency charges for services rendered if the charges will
be paid in full or in part by the client or the client's family, or on request.
(H)
An agency must maintain a current list of clients which
includes the services being delivered by the agency and establish a record
for each client which is maintained in accordance with and contains the information
described in paragraph (6)(I) of this subsection.
(I)
Except in an emergency, an agency intending to transfer
or discharge a client must notify the client or the client's parent, family,
spouse, significant other, or legal representative; and the client's attending
physician not later than five days before the date on which the client will
be transferred or discharged.
(J)
An agency may transfer or discharge a client without five
days notice:
(i)
upon the client's request;
(ii)
if the client's medical needs require transfer (e.g.,
a medical emergency);
(iii)
in the event of a natural disaster where if not transferred,
the client's health and safety is at risk;
(iv)
for the protection of staff or a client after the agency
has made a documented reasonable effort to notify the client, the client's
family and physician, and appropriate state or local authorities of the agency's
concerns for staff or client safety, and in accordance with agency policy;
(v)
according to physician orders; or
(vi)
if the client fails to pay for services, except as prohibited
by federal law.
(5)
Staffing.
(A)
A personnel record must be maintained on each employee
and volunteer. All information must be kept current. A personnel record must
include, but not be limited to, the following:
(i)
job description. In lieu of the job description and qualifications
for employment, the personnel record may include a statement signed by the
employee that the employee has read the job description and qualifications
for the position accepted;
(ii)
qualifications;
(iii)
application for employment or volunteer agreement;
(iv)
verification of license, permits, reference(s), job experience,
and educational requirements as appropriate; and
(v)
performance evaluations and disciplinary actions.
(B)
The agency must appoint an administrator who must administratively
supervise the provision of all services.
(i)
The administrator must :
(I)
be a physician, registered nurse, social worker, or nursing
home administrator;
(II)
have a baccalaureate or postgraduate degree in administration
in a health or human services field and at least one year of full-time administrative
experience as the administrator of an agency or licensed health care facility;
or
(III)
have training and experience in health service administration
and at least one year of full-time supervisory or administrative experience
in home health care, hospice, or related health programs.
(ii)
The administrator must not have been employed in the last
one year as an administrator with another agency at the time the agency was
cited with violations of the statute or this chapter which resulted in enforcement
action taken against the agency. For purposes of this clause only, the term
"enforcement action" means license revocation, suspension, emergency suspension,
or denial of a license or injunction action but does not include administrative
or civil penalties. If DHS prevails in one enforcement action (e.g., injunctive
action) against the agency but also proceeds with another enforcement action
(e.g., revocation) based on some or all of the same violations, but DHS does
not prevail in the second action (e.g., the agency prevails), the prohibition
in this clause does not apply.
(iii)
The administrator must not have been convicted of a felony
or misdemeanor listed in §97.52(a)(2)(B) of this title (relating to Enforcement
Action).
(iv)
The administrator must be able to read, write and comprehend
English.
(v)
The administrator must :
(I)
organize and direct the agency's ongoing functions;
(II)
assure documentation of services provided is accurate
and timely;
(III)
employ qualified personnel and ensure adequate staff
education and evaluations;
(IV)
ensure the accuracy of public information materials and
activities;
(V)
implement an effective budgeting and accounting system;
and
(VI)
authorize in writing an assistant administrator or other
individual to act in his or her absence. The administrator, assistant administrator,
or other designee must be available during the agency's usual working hours.
The administrator's designee must be able to read, write, and comprehend English
and have at least six months of full-time supervisory or administrative experience
in home health, hospice, or related health programs.
(C)
An agency with a license to provide licensed home health,
licensed and certified home health, or hospice services must appoint a supervising
nurse. The supervising nurse must designate an alternate to serve as supervising
nurse in his or her absence, provided the alternate meets the qualifications
of this subparagraph. The supervising nurse may also be the administrator
of the agency if the supervising nurse meets the qualifications of an administrator
described in subparagraph (B) of this paragraph. The supervising nurse or
designee must:
(i)
be a registered nurse;
(ii)
have at least one year experience in nursing obtained
within the last 24 months;
(iii)
be available at all times during operating hours;
(iv)
be able to read, write, and comprehend English;
(v)
participate in activities relevant to professional services
furnished including the development of qualifications and assignment of agency
personnel;
(vi)
assure a client's plan of care is executed as written;
(vii)
assure a reassessment of a client's needs is performed
by the appropriate health care professional:
(I)
when there is a significant health status change in the
client's condition;
(II)
at the physician's request; or
(III)
after hospitalization; and
(viii)
if the agency holds the home dialysis designation, have
the qualifications described in §97.24(r)(1)(A) of this title (relating
to Standards for Home Dialysis Designation).
(D)
An agency which only provides physical, occupational, speech,
or respiratory therapy; medical social services; or nutritional counseling
is not required to comply with subparagraph (C) of this paragraph. Supervision
of these services must be provided by the applicable licensed professional
(e.g., a physical therapist supervising physical therapy services).
(6)
Client record. An agency must establish and maintain
a client record system to assure that the care and services provided to each
client is completely and accurately documented, readily available, and systematically
organized to facilitate the compilation and retrieval of information.
(A)
For each client an agency may keep a single file or separate
files for each category provided to the client and the client's family.
(B)
The agency must have written procedures which are adopted,
implemented, and enforced regarding the removal of records and the release
of information. An agency may not release any portion of a client record to
anyone other than the client except as allowed by law.
(C)
All information regarding the client's care and services
must be centralized in the client's record and be protected against loss or
damage.
(D)
The agency must establish an area for active client record
storage at the agency's place of business. The active client record must be
stored at the place of business (e.g., parent agency location, branch office,
or alternate delivery site) from which services are actually provided. Active
client records may not be stored at an administrative support site or records
storage facility.
(E)
The agency must ensure that each client's record is treated
with confidentiality, safeguarded against loss and unofficial use, and is
maintained according to professional standards of practice.
(F)
The clinical record must be an original, a microfilmed
copy, an optical disc imaging system, or a certified copy. An original record
includes manually signed paper records or electronically signed computer records.
Computerized records must meet all requirements of paper records including
protection from unofficial use and retention for the period specified in subparagraph
(J) of this paragraph. Systems must assure that entries regarding the delivery
of care or services may not be altered without evidence and explanation of
such alteration.
(G)
Each entry to the client record must be accurate, signed,
and dated with the date of entry by the individual making the entry. Correction
fluid or tape must not be used in the record. Corrections must be made by
striking through the error with a single line and must include the date the
correction was made and the initials of the person making the correction.
(H)
Inactive client records may be preserved on microfilm,
optical disc or other electronic means and may be stored at the parent agency
location, branch office, alternate delivery site, administrative support site,
or records storage facility. Security must be maintained and the record must
be readily retrievable by the agency.
(I)
Each client record must include:
(i)
appropriate identifying information;
(ii)
name of the client's practitioner;
(iii)
initial assessment;
(iv)
care plan or plan of care. The plan of care must include,
as applicable, medication, dietary, treatment, and activities orders;
(v)
clinical and progress notes, if applicable. Such notes
are to be written the day service is rendered and incorporated into the client
record on a timely basis;
(vi)
medication list and medication administration record,
if applicable;
(vii)
records of supervisory visits;
(viii)
documentation to show that effective interchange, reporting,
and coordination of care occurs as described by the agency policy required
in subsection (c)(23) of this section;
(ix)
acknowledgment of the client's receipt of a copy of the
Human Resources Code, Chapter 102, Rights of the Elderly;
(x)
acknowledgment of the client's receipt of the agency's
policy relating to the reporting of abuse, neglect or exploitation of a client;
(xi)
client agreement to and acknowledgment of services by
home health medication aides, if home health medication aides are used; and
(xii)
discharge summary, including the reason for discharge
or transfer and the agency's documented notice to the client, the client's
physician, and other individuals as required in paragraph (4)(I) of this subsection.
(J)
An agency must retain original client records for a minimum
of five years after the discharge of the client. The agency may not destroy
client records that relate to any matter that is involved in litigation if
the agency knows the litigation has not been finally resolved.
(K)
If an agency closes, there must be an arrangement for the
preservation of inactive records to insure compliance with this subsection.
The agency must send DHS written notification of the reason for closure, the
location of the client records and the name and address of the client record
custodian. If an agency closes with an active client roster, a copy of the
active client record must be transferred with the client to the receiving
agency in order to assure continuity of care and services to the client.
(7)
Financial solvency. An agency must have the financial
ability to carry out its functions.
(A)
An agency may not intentionally or knowingly pay employees
with checks from accounts with insufficient funds.
(B)
An agency must have sufficient funds to meet its payroll.
(C)
The agency must make available to the department upon request
financial records relating to its ability to carry out its functions. If there
is a question relating to the accuracy of the records or financial ability,
the department or its designee may conduct a more extensive review of the
records. Any financial review by DHS will be conducted by an individual who
has the financial qualifications to review such records.
(D)
An agency must maintain business records in their original
state. Each entry must be accurate and dated with the date of entry. Correction
fluid or tape may not be used in the record. Corrections must be made in accordance
with standard accounting practices.
(8)
Administration of medication. Administration
of medication must be ordered by the client's practitioner. A current medication
list and medication administration records may be incorporated into one document.
Notation must be made in clinical notes of medications not given and the reason.
Any untoward action must be reported to a supervisor and documented in the
client record.
(c)
Policies required. An agency must develop, adopt, implement,
and enforce a written policy(ies):
(1)
which includes written procedures governing the use and
removal of records, the release of information, and the incorporation of clinical,
progress or other notes into the client record;
(2)
describing protocols and procedures agency staff must
follow when performing physician delegated tasks. The policy shall be consistent
with subsection (b)(1)(G) of this section and address the time frame for the
timely counter signature of a physician's verbal orders;
(3)
to ensure compliance of the agency and its employees
and contractors with the Health and Safety Code, Chapter 85, Subchapter I,
concerning the prevention of the transmission of human immunodeficiency virus
and hepatitis B virus;
(4)
to ensure compliance of the agency and its employees
and contractors with the Health and Safety Code, §161.091 et seq concerning
the prohibition of illegal remuneration for securing or soliciting clients
or patronage;
(5)
for publicly known natural disaster preparedness for
clients receiving services. The written policy must include a plan for the
reasonable mechanism for triaging clients, the notification of appropriate
personnel and clients in the event of a disaster if possible, the identification
of appropriate community resources, and the identification of possible evacuation
procedures. The plan need not require that the agency actually evacuate, transport,
or triage the clients;
(6)
to ensure compliance with the rules of the Board of
Nurse Examiners for the State of Texas adopted at 22 TAC Chapter 218 (Delegation
of Selected Nursing Tasks by Registered Professional Nurses to Unlicensed
Personnel);
(7)
to ensure compliance with the rules of the Board of
Vocational Nurse Examiners adopted at 22 TAC Chapters 231-240 concerning vocational
nursing education, licensure and practice in the State of Texas;
(8)
on pronouncement of death if that function is carried
out by an agency registered nurse. The policy must be in compliance with the
Health and Safety Code, §671.001;
(9)
to ensure that the agency submits accurate billings
and insurance claims;
(10)
addressing the orientation of all personnel to the
policies, procedures, and objectives of the agency;
(11)
addressing participation by all personnel in appropriate
employee development programs;
(12)
ensuring the periodic evaluation of employee and
volunteer performance;
(13)
specifying the agency's personnel policies;
(14)
specifying the agency's client care policies;
(15)
addressing employee and volunteer disciplinary action(s)
and procedures;
(16)
to include a job description (statement of those
functions and responsibilities which constitute job requirements) and job
qualifications (specific education and training necessary to perform the job)
for each position within the agency;
(17)
addressing infection control including the prevention
of the spread of infectious and communicable disease;
(18)
to include the agency's organizational structure
and operational policies. Such policies must be clearly stated in writing
and include the lines of authority and delegation of responsibility down to
the client care level and the services provided;
(19)
to ensure a quality assurance program which provides
for accountability and desired client outcomes. The policy must meet the minimum
requirements in subsection (b)(4)(A) of this section;
(20)
to provide for back-up services when an employee
or contractor is not able to deliver the services;
(21)
describing protocols and procedures agency staff
must follow when receiving physician orders;
(22)
addressing compliance with out-of-hospital do-not-resuscitate
orders and advance directives. The policy must:
(A)
be in compliance with the Advance Directives Act, Health
and Safety Code, Chapter 166. In accordance with Health and Safety Code, §142.0145,
DHS will assess an administrative penalty of $500 against an agency that violates
Health and Safety Code, §166.004, relating to requirements for the provision
of a written statement relating to advance directives. DHS will provide notice
of administrative penalty and opportunity for a hearing in accordance with §97.52(b)(5)
of this title (relating to Enforcement Action); and
(B)
address the provision of information regarding advance
directives to its clients and assure its clients are allowed, but not required,
to formulate such directives to the extent permitted by law;
(23)
to assure that all agencies providing services
to a client are engaged in an effective interchange, reporting, and coordination
of care regarding the client;
(24)
establishing time frame(s) for the initiation of
care or services;
(25)
for the safe handling and disposal of biohazardous
waste and materials, if applicable;
(26)
to implement and enforce the Human Resources Code,
Chapter 102, concerning the rights of the elderly;
(27)
relating to the reporting of abuse, neglect or exploitation
of clients;
(28)
relating to the use of volunteers if volunteers are
used by the agency;
(29)
describing the agency's written contingency plan
developed in accordance with subsection (b)(2)(F) of this section;
(30)
relating to the provision of psychoactive treatments,
if applicable, consistent with subsection (e) of this section;
(31)
relating to the retention of records in accordance
with subsection (b)(4)(J) of this section;
(32)
relating to the provision of hospice services, if
applicable, in accordance with §97.25 of this title (relating to Standards
for Hospice Services);
(33)
relating to criminal history checks of unlicensed
personnel in accordance with §97.54 of this title (relating to Criminal
History Checks);
(34)
relating to the supervision of branch offices or
alternate delivery sites, if established. This policy must be consistent with:
(A)
for a branch office, §97.14 of this title (relating
to Application and Issuance of a Branch Office License) and §97.27 of
this title (relating to Standards for Branch Offices); or
(B)
for an alternate delivery site, §97.15 of this title
and §97.28 of this title (relating to Standards for Alternate Delivery
Sites);
(35)
relating to the agency's procedures for investigating
complaints. Such procedures must require the agency to initiate a complaint
investigation within ten days of the agency's receipt of the complaint and
to document all components of the investigation;
(36)
maintaining a current medication list and medication
administration record;
(37)
specifying the qualifications, experience, and training
in pediatrics required for any registered nurse who provides or supervises
direct care staff in the provision of services to pediatric clients; and
(38)
relating to the possession of sterile water or saline,
certain vaccines or tuberculin, and certain dangerous drugs. The policy must
comply with the provisions in subsection (g) of this section.
(d)
Medicare certification optional.
(1)
An agency which makes application for participation in
the Medicare program must comply with the regulations in the Medicare Conditions
of Participation for Home Health Agencies, 42 Code of Federal Regulations,
Part 484, pending approval of certification granted by the Health Care Financing
Administration (HCFA).
(2)
Upon DHS's receipt of written approval from HCFA,
DHS will amend the licensing status of the agency to include the licensed
and certified home health services category.
(e)
Psychoactive services. An agency that provides skilled
nursing psychoactive treatments must comply with the requirements of this
subsection.
(1)
Skilled nursing psychoactive treatments must be under the
direction of a physician. Psychoactive treatments may only be provided by
a physician or a registered nurse.
(2)
A registered nurse providing skilled nursing psychoactive
treatments must have one of the following qualifications:
(A)
a master's degree in psychiatric or mental health nursing;
(B)
a bachelor's degree in nursing with one full-time year
of experience in an active treatment unit in a mental health facility or outpatient
clinic;
(C)
a diploma or associate degree with two full-time years
of experience in an active treatment unit in a mental health facility or outpatient
clinic; or
(D)
for a registered nurse for Medicare certified agencies,
as allowed by the fiscal intermediary for Texas contracting with the United
States Department of Health and Human Services (USDHHS) Health Care Financing
Administration (HCFA).
(3)
An agency must have written documentation that
a registered nurse providing skilled nursing psychoactive treatments is qualified
under paragraph (2) of this subsection.
(4)
The initial assessment of a client receiving skilled
nursing psychoactive treatments must include:
(A)
mental status including psychological and behavioral status;
(B)
sensory and motor function;
(C)
cranial nerve function;
(D)
language function; and
(E)
other criteria established by an agency's policy.
(f)
Home intravenous therapy. An agency furnishing intravenous
therapy directly or under arrangement must comply with the following standards
of care.
(1)
A physician's order must be written specifically for intravenous
therapy.
(2)
Intravenous therapy must be provided by a licensed
nurse.
(3)
To insure that prescribed care is administered safely,
the licensed nurse must have the knowledge and documented competency to interpret
and implement the written order.
(4)
Responsibilities of the licensed nurse must be clearly
delineated in written policies and procedures.
(5)
A registered nurse must be available 24 hours per
day.
(6)
The client and caregiver must be assessed for the
ability to safely administer the prescribed intravenous therapy as per agency
written criteria.
(7)
If the client or caregiver are willing and able to
safely administer the prescribed intravenous therapy, the agency must offer
to teach the client or caregiver such administration. The teaching process
based on the client and caregiver needs may include written instructions,
verbal explanations, demonstrations, evaluation and documentation of competency,
proficiency in performing therapy, scope of physical activities and safe disposal
of equipment.
(8)
Actions must be implemented prior to and during all
intravenous therapy to minimize the risk of anaphylaxis or other adverse reactions
as stated in the agency's written policy.
(9)
An ongoing assessment of client and caregiver compliance
in performing therapy related procedures must be done at periodic intervals.
(10)
Written policies and procedures regarding the agency's
provision of intravenous therapy must include, but are not limited to, addressing
initiation, medication administration, monitoring, and discontinuation.
(11)
Care coordination must be provided in order to assure
continuity of care.
(12)
The client and caregiver must be provided with 24-hour
access to appropriate health care professionals employed by or contracted
with the agency.
(g)
Possession of sterile water or saline, certain vaccines
or tuberculin, and certain dangerous drugs.
(1)
Possession of sterile water or saline. An agency or its
employees who are registered nurses or licensed vocational nurses may purchase,
store, or transport for the purpose of administering to their home health
or hospice clients under physician's orders:
(A)
sterile water for injection and irrigation; and
(B)
sterile saline for injection and irrigation.
(2)
Possession of certain vaccines or tuberculin.
(A)
An agency or its employees who are registered nurses or
licensed vocational nurses may purchase, store, or transport for the purpose
of administering to the agency's employees, home health, or hospice clients,
or client family members under physician's standing orders the following dangerous
drugs:
(i)
hepatitis B vaccine;
(ii)
influenza vaccine; and
(iii)
tuberculin purified protein derivative for tuberculosis
testing.
(B)
An agency that purchases, stores, or transports a vaccine
or tuberculin under this section must ensure that any standing order for the
vaccine or tuberculin:
(i)
is signed and dated by the physician;
(ii)
identifies the vaccine or tuberculin covered by the order;
(iii)
indicates that the recipient of the vaccine or tuberculin
has been assessed as an appropriate candidate to receive the vaccine or tuberculin
and has been assessed for the absence of any contraindication;
(iv)
indicates that appropriate procedures are established
for responding to any negative reaction to the vaccine or tuberculin; and
(v)
orders that a specific medication or category of medication
be administered if the recipient has a negative reaction to the vaccine or
tuberculin.
(3)
Possession of certain dangerous drugs.
(A)
An agency or its employees who are registered nurses or
licensed vocational nurses may purchase, store, or transport for the purpose
of administering to their home health or hospice patients in accordance with
subparagraph (C) of this paragraph the following dangerous drugs:
(i)
any of the following items in a sealed portable container
of a size determined by the dispensing pharmacist:
(ii)
1,000 milliliters of 0.9% sodium chloride intravenous
infusion;
(iii)
1,000 milliliters of 5.0% dextrose in water injection;
or
(iv)
sterile saline; or
(v)
not more than five dosage units of any of the following
items in an individually sealed, unused portable container:
(I)
heparin sodium lock flush in a concentration of ten units
per milliliter or 100 units per milliliter;
(II)
epinephrine HCl solution in a concentration of one to
1,000;
(III)
diphenhydramine HCl solution in a concentration of 50
milligrams per milliliter;
(IV)
methylprednisolone in a concentration of 125 milligrams
per two milliliters;
(V)
naloxone in a concentration of one milligram per milliliter
in a two-milliliter vial;
(VI)
promethazine in a concentration of 25 milligrams per milliliter;
(VII)
glucagon in a concentration of one milligram per milliliter;
(VIII)
furosemide in a concentration of ten milligrams per
milliliter;
(IX)
lidocaine 2.5% and prilocaine 2.5% cream in a five-gram
tube; or
(X)
lidocaine HCl solution in a concentration of 1% in a two-milliliter
vial.
(B)
An agency or the agency's authorized employees may purchase,
store, or transport dangerous drugs in a sealed portable container only if
the agency has established policies and procedures to ensure that:
(i)
the container is handled properly with respect to storage,
transportation, and temperature stability;
(ii)
a drug is removed from the container only on a physician's
written or oral order;
(iii)
the administration of any drug in the container is performed
in accordance with a specific treatment protocol; and
(iv)
the agency maintains a written record of the dates and
times the container is in the possession of a registered nurse or licensed
vocational nurse.
(C)
An agency or the agency's authorized employee who administers
a drug listed in subparagraph (A) of this paragraph may administer the drug
only in the client's residence under physician's orders in connection with
the provision of emergency treatment or the adjustment of:
(i)
parenteral drug therapy; or
(ii)
vaccine or tuberculin administration.
(D)
If an agency or the agency's authorized employee administers
a drug listed in subparagraph (A) of this paragraph pursuant to a physician's
oral order, the agency must ensure the physician promptly sends a signed copy
of the order to the agency, and the agency must:
(i)
not later than 24 hours after receipt of the order, reduce
the order to written form and send a copy of the form to the dispensing pharmacy
by mail or facsimile transmission; and
(ii)
not later than 20 days after receipt of the order, send
a copy of the order as signed by and received from the physician to the dispensing
pharmacy.
(E)
A pharmacist that dispenses a sealed portable container
under this subsection must ensure that the container:
(i)
is designed to allow access to the contents of the container
only if a tamper-proof seal is broken;
(ii)
bears a label that lists the drugs in the container and
provides notice of the container's expiration date, which is the earlier of:
(I)
the date that is six months after the date on which the
container is dispensed; or
(II)
the earliest expiration date of any drug in the container;
and
(iii)
remains in the pharmacy or under the control of a pharmacist,
registered nurse, or licensed vocational nurse.
(F)
If an agency or the agency's authorized employee purchases,
stores, or transports a sealed portable container under this subsection, the
agency must deliver the container to the dispensing pharmacy for verification
of drug quality, quantity, integrity, and expiration dates not later than
the earlier of:
(i)
the seventh day after the date on which the seal on the
container is broken; or
(ii)
the date for which notice is provided on the container
label.
(G)
A pharmacy that dispenses a sealed portable container under
this subsection is required to take reasonable precautionary measures to ensure
that the agency receiving the container complies with subparagraph (F) of
this paragraph. On receipt of a container under subparagraph (F) of this paragraph,
the pharmacy must perform an inventory of the drugs used from the container
and will restock and reseal the container before delivering the container
to the agency for reuse.
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 May 26, 2000.
TRD-200003797
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: June 15, 2000
Proposal publication date: February 18, 2000
For further information, please call: (512) 438-3108
40 TAC §97.51, §97.52
The amendments are adopted under the Health and Safety Code,
Chapter 142, which authorizes the department to adopt rules for the licensing
and regulation of home and community support services agencies.
The amendments implement the Health and Safety Code, Chapter 142.001-142.030.
§97.51.Survey Procedures.
(a)
An on-site survey will determine if the requirements of
the statute and the rules are being met.
(1)
The Texas Department of Human Services (DHS) or its authorized
representative(s) (surveyor) may enter the premises of a license applicant
or license holder at reasonable times during business hours to conduct an
on-site survey incidental to the issuance of a license, and at other times
as it considers necessary to ensure compliance with the statute or the rules
adopted under the statute, an order of the commissioner of human services
(commissioner), a court order granting injunctive relief, or other enforcement
action. A standard-by-standard evaluation is required before the first renewal
license is issued unless waived in accordance with §97.13(b)(8) of this
title (relating to Change of Ownership or Services).
(2)
At the discretion of DHS , an on-site survey may be
conducted for renewal of a license or issuance of a branch office or alternate
delivery site license.
(3)
If there is a question relating to the accuracy of
an agency's financial records relating to the operation of the agency or the
agency's financial ability to carry out its functions, DHS or its designee
may conduct an extensive review of the records. Any financial review by DHS
will be conducted by an individual who has the financial qualifications to
review such records.
(4)
The agency administrator, supervising nurse, or other
authorized representative from the agency must be present at the time of a
survey by DHS .
(5)
DHS or a representative of DHS is entitled to access
to all books, records, or other documents maintained by or on behalf of the
agency to the extent necessary to ensure compliance with the statute, this
chapter, an order of the commissioner, a court order granting injunctive relief,
or other enforcement action. DHS will maintain the confidentiality of agency
records as applicable under federal or state law. Ensuring compliance includes
permitting photocopying by a DHS surveyor or providing photocopies to a DHS
surveyor of any records or other information by or on behalf of DHS as necessary
to determine or verify compliance with the statute or this chapter.
(6)
By applying for or holding a license, the agency consents
to entry and survey of the agency by DHS or a representative of DHS in accordance
with the statute and this chapter.
(b)
Except for a survey conducted for the purposes of issuing
a first renewal license, a survey conducted by DHS will be unannounced.
(c)
Except for the investigation of complaints, an agency licensed
by DHS is not subject to additional surveys relating to home health, hospice,
or personal assistance services while the agency maintains accreditation for
the applicable services from the Joint Commission on Accreditation of Healthcare
Organizations, the Community Health Accreditation Program or certification
as a home and community-based services or home and community-based services-OBRA
agency by the Texas Department of Mental Health and Mental Retardation (TXMHMR).
An initial survey after issuance of an initial license will be done by DHS:
(1)
if the agency is not yet accredited; or
(2)
unless waived under §97.13(a)(1)(B) of this title.
(d)
A DHS surveyor will hold a conference with the person who
is in charge of an agency prior to commencing the on-site survey for the purpose
of explaining the nature and scope of the survey. The surveyor will hold an
exit conference with the person who is in charge of the agency when the survey
is completed, and will identify any records that were duplicated. Any original
agency records that are removed from an agency must be removed only with the
consent of the agency.
(e)
A DHS authorized representative will hold an exit conference
and fully inform the person who is in charge of the agency of the preliminary
findings of the survey and will give the person a reasonable opportunity to
submit additional facts or other information to DHS's authorized representative
in response to those findings. The response will be made a part of the survey
for all purposes and must be received by DHS within ten calendar days of receipt
of the preliminary findings of the survey by the agency.
(f)
After a survey of an agency, DHS will provide the person
in charge of the agency specific and timely written notice of the findings
of the survey including:
(1)
the specific nature of the survey;
(2)
any alleged violations of a specific statute or rule;
(3)
the specific nature of any finding regarding an alleged
violation or deficiency;
(4)
if a deficiency is alleged, the severity of the deficiency;
and
(5)
if there are no deficiencies found, a statement indicating
this fact.
(g)
The surveyor will:
(1)
conduct a survey for all categories of services authorized
under the license;
(2)
conduct a minimum of three home visits unless the
agency has only three clients;
(3)
review a minimum of ten client records unless the
agency has had less than ten clients; such review must include a sample of
pediatric clients if pediatric clients are served by the agency;
(4)
obtain a client's signature consenting to the home
visit. A client may refuse a home visit without effect on the level and nature
of care or benefit to the client;
(5)
prepare a statement of deficiencies, if any;
(6)
obtain a plan of correction for deficiencies which
is provided by the agency either on-site or within ten calendar days of the
agency's receipt of the statement of deficiencies and which indicates the
date(s) by which correction(s) will be made;
(7)
obtain the signature of the person in charge of the
agency acknowledging the receipt of the statement of deficiencies and plan
of correction form. The person's signature does not indicate the person's
agreement with deficiencies stated on the form;
(8)
obtain within ten calendar days of the survey written
comments, if any, by the person in charge of the agency. Additional facts,
written comments or other information provided by the agency in response to
the findings will be made a part of the record of the survey for all purposes;
and
(9)
inform the person in charge of the agency of the agency's
right of reconsideration of any deficiency(ies) cited and of the procedures
for requesting a reconsideration. A reconsideration requested by an agency
does not excuse the agency from submitting a plan of correction required in
subsection (h)(1) of this section.
(h)
The agency must:
(1)
submit an acceptable written plan of correction for each
deficiency no later than ten days from its receipt of a statement of deficiencies.
A plan of correction date must not exceed 45 days from the date the deficiency
was cited; and
(2)
correct each deficiency no later than the plan of
correction date for that deficiency. Failure of an agency to correct each
deficiency by the plan of correction date may result in enforcement action
in accordance with §97.52 of this title (relating to Enforcement Action).
(i)
If Medicare certification is denied by the Health Care
Financing Administration (HCFA) or the agency withdraws from the Medicare
program, the agency's license will revert to the category of and be governed
by the standards for licensed home health services. The effective date of
the change will be the date indicated on the final termination letter issued
to the agency by HCFA. This change does not preclude DHS from taking enforcement
action, if appropriate, under §97.52 of this title.
(j)
If deficiencies are cited and the plan of correction is
not acceptable, DHS will notify the agency in writing and request that the
plan of correction be resubmitted no later than 30 calendar days of the agency's
receipt of DHS's written notice. Upon resubmission of an acceptable plan of
correction, DHS will send written notice to the agency acknowledging same.
(k)
DHS will provide upon completion of the review and processing
of the survey:
(1)
information on the identity, including the signature, of
each department representative conducting, reviewing, or approving the results
of the survey and the date on which the DHS representative acted on the matter;
and
(2)
if requested by the agency, copies of all documents
relating to the survey maintained by DHS or provided by DHS to any other state
or federal agency that are not confidential under state law.
(l)
DHS will verify the correction of deficiencies by mail
or by an on-site survey within 90 days of DHS's receipt of an acceptable plan
of correction.
(m)
Acceptance of a plan of correction does not preclude DHS
from taking enforcement action as appropriate under §97.52 of this title.
(n)
Except as provided by subsection (b) of this section, an
on-site survey will be conducted within 18 months after a survey for an initial
license. After that time, an on-site survey will be conducted at least every
36 months.
(o)
If a person is renewing or applying for a license to provide
more than one category under the statute or for a branch office or alternate
delivery site license, the required surveys for each of the services or location(s)
the license holder or applicant seeks to provide will be completed during
the same survey visit.
§97.52.Enforcement Action.
(a)
License denial, suspension or revocation.
(1)
The Texas Department of Human Services (DHS) may deny,
suspend, suspend on an emergency basis, or revoke a license issued to an applicant
or agency if the applicant or agency:
(A)
fails to comply with any provision of the statute;
(B)
fails to comply with any provision of this chapter;
(C)
has a provider agreement under the Social Security Act,
Title XVIII, which has been terminated by the certifying body, Health Care
Financing Administration, or if the agency withdraws its certification or
its request for certification. An agency providing licensed and certified
home health services that submits a request for a hearing as provided by this
section is governed by the requirements of the statute and the rules relating
to an agency providing licensed only home health services until suspension
or revocation is finally determined by DHS or, if the license is suspended
or revoked, until the last day for seeking review of the DHS order or a later
date fixed by order of the reviewing court;
(D)
commits fraud, misrepresentation, or concealment of a material
fact on any documents required to be submitted to DHS or required to be maintained
by the agency pursuant to this chapter;
(E)
has aided, abetted, or permitted the commission of an illegal
act;
(F)
fails to provide the required application or renewal information;
(G)
fails to comply with an order of the commissioner of health
or another enforcement procedure under the statute;
(H)
discloses action as described in §97.11(g)(2)(R) and
(S) of this title (relating to Application and Issuance of Initial License)
or §97.12(b)(2)(A) of this title (relating to Issuance and Renewal of
License);
(I)
fails to comply with the Human Resources Code, Chapter
102 (Rights to the Elderly); or
(J)
knowingly employs as the agency administrator or chief
financial officer an individual who was convicted of a felony or misdemeanor
listed in paragraph (2) of this subsection.
(2)
DHS may suspend or revoke an existing valid license
or disqualify a person from receiving a license because of a person's conviction
of a felony or misdemeanor if the crime directly relates to the duties and
responsibilities of a licensed agency.
(A)
In determining whether a criminal conviction directly relates,
the department will consider the provisions of Texas Civil Statutes, Article
6252-13c.
(B)
The following felonies and misdemeanors directly relate
because these criminal offenses indicate an inability or a tendency for the
person to be unable to own or operate an agency. These offenses also relate
to the holding of a home health medication aide permit or an entity approved
under §97.62(o) of this title (relating to Home Health Medication Aides),
to conduct a home health medication aide training program:
(i)
a misdemeanor violation of the statute;
(ii)
a conviction relating to deceptive business practices;
(iii)
a misdemeanor or felony offense involving moral turpitude;
(iv)
the misdemeanor of practicing any health-related profession
without a required license;
(v)
a conviction under any federal or state law relating to
drugs, dangerous drugs or controlled substances;
(vi)
an offense under the Texas Penal Code involving a client
or client of a health care facility or agency;
(vii)
Texas Penal Code, Chapter 19 concerning criminal homicide;
(viii)
Texas Penal Code, Chapter 20 concerning kidnapping and
false imprisonment;
(ix)
Texas Penal Code, §21.11 concerning indecency with
a child;
(x)
Texas Penal Code, §22.011 concerning sexual assault;
(xi)
Texas Penal Code, §22.02 concerning aggravated assault;
(xii)
Texas Penal Code, §22.04 concerning injury to a
child, elderly individual, or disabled individual;
(xiii)
Texas Penal Code, §22.041 concerning abandoning
or endangering child;
(xiv)
Texas Penal Code, §22.08 concerning aiding suicide;
(xv)
Texas Penal Code, §25.031 concerning agreement to
abduct from custody;
(xvi)
Texas Penal Code, §25.08 concerning sale or purchase
of a child;
(xvii)
Texas Penal Code, §28.02 concerning arson;
(xviii)
Texas Penal Code, §29.02 concerning robbery;
(xix)
Texas Penal Code, §29.03 concerning aggravated robbery;
(xx)
a misdemeanor or felony offense under the Texas Penal
Code, as follows:
(I)
Title 5, concerning offenses against the person;
(II)
Title 7, concerning offenses against property;
(III)
Title 9, concerning offenses against public order and
decency;
(IV)
Title 10, concerning offenses against public health, safety,
and morals; and
(V)
Title 4, concerning offenses of attempting or conspiring
to commit any of the offenses in clauses (i)-(xxi) of this subparagraph; and
(xxi)
other misdemeanors and felonies which indicate an inability
or tendency for the person to be unable to own or operate an agency, hold
a permit, or receive program approval under §97.62(o) of this title (relating
to Home Health Medication Aides), if action by DHS will promote the intent
of the statute, this chapter, or Texas Civil Statutes, Article 6252-13c.
(C)
Upon a licensee's felony conviction, felony probation revocation,
revocation of parole, or revocation of mandatory supervision, the license
will be revoked.
(3)
Before the institution of proceedings to revoke
or suspend a license or deny an application for the renewal of a license,
DHS will give the license holder:
(A)
notice by personal service or by registered or certified
mail of the facts or conduct alleged to warrant the proposed action; and
(B)
an opportunity to show compliance with all requirements
of law for the retention of the license by sending the director of Long Term
Care-Regulatory a written request for an informal reconsideration. The request
must:
(i)
be postmarked within 10 days of the date of DHS's notice
and be received in the state office of the director of Long Term Care- Regulatory
within 10 days of the date of the postmark; and
(ii)
contain specific documentation refuting DHS's allegations.
(4)
If the agency requests an informal reconsideration
under paragraph (3)(B) of this subsection, DHS's review will be limited to
a review of documentation submitted by the license holder and information
DHS used as the basis for its proposed action and will not be conducted as
an adversary hearing. DHS will give the license holder a written affirmation
or a reversal of the proposed action, as appropriate.
(5)
If DHS proposes to deny, suspend, or revoke a license,
DHS will notify the agency by certified mail, return receipt requested, or
personal delivery of the reasons for the proposed action and offer the agency
an opportunity for a hearing. If a notice served by mail is returned undeliverable
or DHS is unable to execute personal delivery of the notice, DHS will publish
the notice in a newspaper of general circulation serving the county in which
the agency is located based upon the last address provided by the agency.
Publication of the notice will be for seven consecutive calendar days. An
agency which fails to claim a notice sent by certified mail or refuses to
accept the notice does not make the notice null and void.
(A)
The agency must request a hearing within 15 calendar days
of receipt of the notice. The request must be in accordance with Chapter 79,
Subchapter Q of this title (relating to Formal Hearings). Receipt of the notice
is presumed to occur on the tenth day after the notice is mailed to the last
address known to DHS unless another date is reflected on a United States Postal
Service return receipt.
(B)
A hearing will be conducted pursuant to the Administrative
Procedure Act, Texas Government Code, Chapter 2001, and DHS's formal hearing
procedures in Chapter 79, Subchapter Q of this title (relating to Formal Hearings).
(C)
If the agency does not request a hearing in writing within
15 calendar days of receipt of the notice, the agency is deemed to have waived
the opportunity for a hearing and the proposed action will be taken.
(D)
If the agency fails to appear or be represented at the
scheduled hearing, the agency has waived the right to a hearing and the proposed
action will be taken.
(E)
The denial, suspension, or revocation of a license will
take effect when the deadline for appeal of the denial, suspension, or revocation
passes, unless the agency appeals the enforcement action. If the agency appeals
the enforcement action, the status of the license holder is preserved until
final disposition of the contested matter.
(6)
DHS may suspend or revoke a license to be effective
immediately when the health and safety of persons are threatened. DHS will
immediately give the chief executive officer of the agency adequate notice
of the action taken, the legal grounds for the action, and the procedure governing
appeal of the action. DHS will also notify the agency of the emergency action
including the legal grounds for the action and the procedure governing appeal
of the action by certified mail, return receipt requested, or personal delivery
of the notice and of the date of a hearing, which will be not later than seven
calendar days after the effective date of the suspension or revocation. The
effective date of the emergency action will be stated in the notice. The hearing
will be conducted pursuant to the Administrative Procedure Act, Texas Government
Code, Chapter 2001, and DHS's formal hearing procedures in Chapter 79, Subchapter
Q (of this title (relating to Formal Hearings.
(7)
If an agency has had enforcement action taken by DHS
against the agency, the agency, its owner(s), or its affiliate(s) may not
apply for an agency license for one year following the effective date of the
enforcement action. For purposes of this paragraph only, the term "enforcement
action" means license revocation, suspension, emergency suspension, or denial
or injunctive action but does not include administrative penalties or civil
penalties. If DHS prevails in one enforcement action (e.g., injunctive action)
against the agency but also proceeds with another enforcement action (e.g.,
revocation) based on some or all of the same violations, but DHS does not
prevail in the second enforcement action (e.g., the agency prevails), the
prohibition in this paragraph does not apply.
(8)
If DHS suspends a license, the suspension will remain
in effect until DHS determines that the reason for suspension no longer exists.
An authorized representative of DHS will conduct a survey of the agency prior
to making a determination.
(A)
During the time of suspension, the suspended license holder
must return the license to DHS .
(B)
If a suspension overlaps a renewal date, the suspended
license holder must comply with the renewal procedures in this chapter; however,
DHS may not renew the license until DHS determines that the reason for suspension
no longer exists.
(C)
If suspension is for more than one year, the suspended
license holder may apply to DHS for cancellation of the suspension only after
one year following the initial date of the suspension.
(9)
If DHS revokes or does not renew a license and
the one-year period described in paragraph (7) of this subsection has passed,
a person may reapply for a license by complying with the requirements and
procedures in this chapter at the time of reapplication. DHS may refuse to
issue a license if the reason for revocation or nonrenewal continues to exist.
(10)
Upon revocation or nonrenewal, a license holder must
return the license to DHS .
(b)
Administrative penalties.
(1)
General. DHS may assess an administrative penalty against
a person who violates the statute or this chapter. A person under this subsection
includes:
(A)
a licensed agency;
(B)
an unlicensed agency operating without a license;
(C)
any person who is not authorized to use the word hospice;
(D)
any person who acts as a home health medication aide in
violation of the statute; and
(E)
any person who conducts a home health medication aide training
program in violation of the statute or this chapter.
(2)
Assessment of a penalty.
(A)
Notwithstanding any other provision of the statute, DHS
may not assess an administrative penalty against an agency:
(i)
that provides only long-term care Medicaid waiver services
that are publicly funded and is certified and monitored by a state agency
that has developed standards that ensure the health and safety of service
recipients; or
(ii)
that provides home health, hospice, or personal assistance
services only to persons enrolled in a program that is funded in whole or
in part by the Texas Department of Mental Health and Mental Retardation (TXMHMR)
and is monitored by the TXMHMR or its designated local authority in accordance
with standards set by the TXMHMR.
(B)
The assessment of an administrative penalty will be in
accordance with the schedule of appropriate and graduated penalties described
in paragraph (4) of this subsection. The schedule of appropriate and graduated
penalties for each violation is based on the following criteria:
(i)
the seriousness of the violation, including the nature,
circumstances, extent, and gravity of the violation, and the hazard of the
violation to the health or safety of clients;
(ii)
the history of previous violations;
(iii)
whether the affected home and community support services
agency had identified the violation as part of its internal quality assurance
process and had made appropriate progress on correction. For purposes of this
subsection, appropriate progress is defined as making a good faith, substantial
effort to correct the violation in a timely manner;
(iv)
the amount necessary to deter future violations;
(v)
efforts made to correct the violation; and
(vi)
any others matters that justice may require.
(C)
In determining which violation(s) warrants a penalty(ies),
DHS will consider:
(i)
the seriousness of the violation(s), including the nature,
circumstances, extent, and gravity of the violation(s), and the hazard of
the violation(s) to the health or safety of a client; and
(ii)
whether the affected agency had identified the violation(s)
as part of its internal quality assurance process and had made appropriate
progress on correction.
(D)
An administrative penalty may be assessed only for a violation
occurring after the effective date of this subsection. An administrative penalty
for a subsequent occurrence may only be assessed when the subsequent occurrence
occurs within three years from the date the agency first receives oral or
written notice of the first violation.
(E)
The assessment of an administrative penalty does not preclude
DHS from suspending, revoking, or denying a license in accordance with subsection
(a) of this section.
(3)
Correction period.
(A)
Following the first day of a violation, DHS will give an
agency a reasonable period of time to correct the violation. The period of
time must be reflected in and implemented through an accepted plan of correction.
A reasonable period of time for purposes of this subsection will be as follows.
(i)
For a violation that results in serious harm to or death
of a client, constitutes an actual serious threat to the health or safety
of a client, or substantially limits the agency's capacity to provide care,
the violation must be corrected immediately or no later than seven calendar
days from the first time the agency is informed (orally or in writing) by
department staff of the violation. This is a severity level II violation.
(ii)
For a violation that has or had minor or no health or
safety significance, the violation must be corrected within 20 calendar days
from receipt of the written notice of the violation (e.g. statement of deficiencies).
This is a severity level I violation.
(iii)
An agency may request an extension in writing. An agency
may receive an extension upon DHS's approval. An extension is only appropriate
if the agency has made a good faith effort to correct the violation within
the required time period but has not been able to correct due to circumstances
beyond their control and if there is no serious harm or threat to clients.
(B)
If an agency corrects the violation within the time periods
described in subparagraph (A) of this paragraph, DHS may assess an administrative
penalty only for one level II violation that occurred before the day on which
the agency received written notice of the violation (e.g., statement of deficiencies).
No administrative penalty would be assessed for a level I violation.
(C)
A penalty(ies) assessed under this subsection may be a
severity level I penalty(ies) or a severity level II penalty(ies) or a combination
of a severity level I penalty(ies) and severity level II penalty(ies). If
an agency does not correct the violation within the time periods described
in subparagraph (A) of this paragraph, DHS may assess an administrative penalty
for:
(i)
one violation that occurred before the day on which the
agency received written notice of the violation (e.g., statement of deficiencies);
and
(ii)
for each day of the violation during the correction period
and after the time period for correction has ended.
(4)
Schedule of penalties.
(A)
Minimum and maximum amount. An administrative penalty may
not be less than $100 or more than $1,000 for each violation.
(B)
Subject matter considered. If two or more of the rules
listed in subparagraphs (C) and (D) of this paragraph relate to the same or
similar subject matter, only one administrative penalty may be assessed at
the higher severity level violation.
(C)
Severity level I. A severity level I violation is a violation
that has or has had minor or no client health or safety significance.
(i)
The penalty for a severity level I violation will be assessed
only if the violation is of a continuing nature or the violation was not corrected
in accordance with the accepted plan of correction. DHS is not required to
provide the agency an opportunity to correct subsequent violations under this
subsection.
(ii)
The penalty for a severity level I violation is $100-$250.
(iii)
A violation of each of the rules listed in the following
table may warrant a severity level I administrative penalty.
(D)
Severity level II.
(i)
The penalty for a severity level II violation will be assessed
according to following schedule:
(I)
for a violation that results in serious harm to or death
of a client, the penalty will be $1,000;
(II)
for a violation that constitutes an actual serious threat
to the health or safety of a client, the penalty will be $500 to $1,000; or
(III)
for a violation that substantially limits the agency's
capacity to provide care, the penalty will be $500 to $750.
(ii)
DHS may assess a separate level II administrative penalty
for a violation of each of the rules listed in the following table.
Figure: 40 TAC §97.52(b)(4)(D)(ii)
(5)
Notice of violation. After investigation
of a possible violation and the facts surrounding that possible violation
and the after the agency's receipt of the statement of deficiencies, if DHS
determines that a violation has occurred, DHS will give further written notice
(e.g., a notice of violation letter) to the person alleged to have committed
the violation.
(A)
The notice will include:
(i)
a brief summary of the alleged violation(s);
(ii)
a statement of the amount of the proposed penalty based
on the factors listed in paragraph (2) of this subsection; and
(iii)
a statement of the person's right to a hearing on the
occurrence of the violation(s), the amount of the penalty, or both the occurrence
of the violation(s) and the amount of the penalty.
(B)
Not later than the 20th calendar day after the date on
which the notice is received, the person notified may accept the determination
of DHS made under this subsection, including the proposed penalty amount,
or may make a written request for a hearing on that determination. A person's
acceptance of DHS's determination means that the person has sent and DHS has
received a written acceptance notice accompanied by remittance of the proposed
penalty.
(C)
If the person notified of the violation accepts the determination
of DHS or if the person fails to respond in a timely manner to the notice,
the commissioner or the commissioner's designee will issue an order approving
the determination and ordering that the person pay the proposed penalty.
(D)
If the person requests a hearing, procedures will be in
accordance with the statute, §142.0172-142.0173 and DHS's formal hearing
procedures in Chapter 79, Subchapter Q of this title (relating to Formal Hearings).
(c)
Court action.
(1)
If a person operates an agency without a license issued
under the Act, the person is liable for a civil penalty of not less than $1,000
or more than $2,500 for each day of violation.
(2)
If a person violates the licensing requirements of
the statute, DHS may petition the district court to restrain the person from
continuing the violation.
(d)
Surrender or expiration of license.
(1)
After a survey in which deficiencies were cited by the
surveyor, an agency may surrender its license before expiration or allow its
license to expire in lieu of DHS proceeding with enforcement action.
(2)
An agency may surrender before the expiration date
by returning its original license to DHS.
(3)
If an agency surrenders or allows expiration of the
license, the agency, its owner(s), and its affiliate(s) may not reapply for
a license for six months from the date of the surrender or expiration.
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 May 26, 2000.
TRD-200003798
Paul Leche
General Counsel
Texas Department of Human Services
Effective date: June 15, 2000
Proposal publication date: February 18, 2000
For further information, please call: (512) 438-3108
Subchapter I. REIMBURSEMENT METHODOLOGY FOR DAY ACTIVITY AND HEALTH SERVICES (DAHS)
Chapter 12.
SPECIAL NUTRITION PROGRAMS
Chapter 20.
COST DETERMINATION PROCESS
Chapter 46.
LICENSED PERSONAL CARE FACILITIES CONTRACTING WITH THE TEXAS DEPARTMENT OF HUMAN SERVICES TO PROVIDE RESIDENTIAL CARE SERVICES
Chapter 47.
PRIMARY HOME CARE
Chapter 97.
HOME AND COMMUNITY SUPPORT SERVICES AGENCIES
Subchapter B. APPLICATION AND ISSUANCE OF A LICENSE
Subchapter C. SERVICE STANDARDS
Subchapter D. ENFORCEMENT
Chapter 98.
ADULT DAY CARE AND DAY ACTIVITY AND HEALTH SERVICES REQUIREMENTS