40 TAC §19.2111
The Texas Department of Human Services (DHS) adopts an amendment
to §19.2111 with changes to the proposed text published in the July 14,
2000, issue of the
Texas Register
(25 TexReg
6692).
The department has authority under section 242.072, Health and Safety Code
to order the suspension of admissions to a nursing facility when violations
of the state licensing law and rules threaten the health and safety of a resident.
There is a federal Medicaid regulation that allows denial of payment for new
admissions to a facility in the Medicaid program when Medicaid requirements
are not being met. The justification of this rule is to distinguish between
the Medicaid denial of payment for new admissions and the state licensing
suspension that is not limited to new admissions. The department recognized
that there may be circumstances when it is appropriate to allow a person to
enter a facility while a suspension is in effect. Since a suspension is imposed
when resident health and safety is threatened, the department decided that
only the commissioner or his designee should decide when to grant a waiver
to the suspension.
The department received comments from the Texas Health Care Association
(THCA). A public hearing was held on September 25, 2000, and comments were
received from THCA, the Texas Chapter of the National Academy of Elder Law
Attorneys, Advocates for Nursing Home Reform, the Texas Association of Homes
and Services for the Aging, and the Legal Hotline for Older Texans. The following
is a summary of comments received both during the
Texas Register
comment period and the public hearing.
Comment: Several of the comments stated that the proposed rule may be in
conflict with federal law and supersedes federal authority.
Response: The department disagrees that there is a conflict with federal
regulations or the federal definition of new admission. The department has
authority to license facilities and to impose licensing enforcement actions
under Chapter 242, Health and Safety Code. Section 242.072 gives the department
authority to impose suspension of admissions when a violation of Chapter 242
or a rule adopted under that chapter threatens the health and safety of a
resident. Denial of payment for new admissions is a remedy in federal rules
governing the Medicaid program and may be imposed when a facility is not in
substantial compliance with Medicaid requirements. The federal rule does not
suspend admissions but provides that Medicaid payments will not be made for
new admissions. Federal regulations do not require the department to allow
a facility to accept or retain residents when there is a threat to the health
and safety of the residents. This rule does not define new admissions but
makes it clear that both new admissions and persons returning to the facility
after a 24 hour absence are covered by the suspension. While the term admissions
is used in both licensing and Medicaid actions the distinctions between the
actions warrant the different rules.
Comment: The department should amend its rule to include a non- exhaustive
list of criteria for the Commissioner to consider in his decision to grant
a waiver from the rule.
Response: The department concurs and has made the following changes in
response to comment:
(a) If the commissioner finds that a nursing facility has committed an
act for which a civil penalty may be imposed under §242.065, Health and
Safety Code, the commissioner may order the nursing facility to immediately
suspend admissions. For the purpose of this remedy, the Texas Department of
Human Services defines an admission as the entry into a facility of a new
resident or of a resident who has been absent from the facility for 24 or
more hours.
(1) A waiver to allow a resident to be admitted may be considered by the
commissioner or his designee.
(2) In determining whether to grant a waiver under paragraph (1) of this
subsection, factors that the commissioner or his or her designee may consider
include, but are not limited to:
(A) the reason(s) for which admissions at the facility are suspended;
(B) the facility's ability to correct the reasons for which admissions
at the facility are suspended;
(C) the relation between the reasons for which admissions at the facility
are suspended and the health care needs of the resident who seeks to return
to the facility;
(D) whether the resident who wants to return to the facility has a spouse
or relative in the facility; or
(E) the effect that barring the resident's return to the facility or other
alternative placement will have on the ability of the resident to maintain
contact with the resident's attending physician, family, responsible party,
and agent (if any) under a medical power of attorney.
(3) A facility, with regard to which admissions are suspended, must inform
a resident or his responsible party upon leaving that facility, that if he
leaves for more than 24 hours, he may not be able to return.
Comment: There were several comments expressing concerns that residents
would be unfairly harmed if they were out of the facility when the suspension
went into effect and could not be readmitted.
Response: The department recognizes that a suspension may adversely affect
some residents; however, the department believes that is preferable to returning
to a facility where health and safety is threatened. The department also recognizes
that there may be circumstances where return to the facility may be appropriate
so the rule allows for waiver of the suspension on a case by case basis.
The amendment is adopted under the Health and Safety Code, Chapter
242, which authorizes the department to license and regulate nursing facilities.
The amendment implements the Health and Safety Code, §§242.001-
242.268.
§19.2111.Suspension of Admissions.
(a)
If the commissioner finds that a nursing facility has committed
an act for which a civil penalty may be imposed under §242.065, Health
and Safety Code, the commissioner may order the nursing facility to immediately
suspend admissions. For the purpose of this remedy, the Texas Department of
Human Services defines an admission as the entry into a facility of a new
resident or of a resident who has been absent from the facility for 24 or
more hours.
(1)
A waiver to allow a resident to be admitted may be considered
by the commissioner or his designee.
(2)
In determining whether to grant a waiver under paragraph
(1) of this subsection, factors that the commissioner or his or her designee
may consider include, but are not limited to:
(A)
the reason(s) for which admissions at the facility are
suspended;
(B)
the facility's ability to correct the reasons for which
admissions at the facility are suspended;
(C)
the relation between the reasons for which admissions at
the facility are suspended and the health care needs of the resident who seeks
to return to the facility;
(D)
whether the resident who wants to return to the facility
has a spouse or relative in the facility; or
(E)
the effect that barring the resident's return to the facility
or other alternative placement will have on the ability of the resident to
maintain contact with the resident's attending physician, family, responsible
party, and agent (if any) under a medical power of attorney.
(3)
A facility, with regard to which admissions are suspended,
must inform a resident or his responsible party upon leaving that facility,
that if he leaves for more than 24 hours, he may not be able to return.
(b)
A suspension of admissions is effective on the date a nursing
facility receives notice of the order and of the manner in which the order
may be appealed. The Texas Department of Human Services provides an opportunity
for a hearing on the appeal of the order within 14 days of the date the suspension
becomes effective.
(c)
During the time admissions are suspended, a nursing facility
must post a notice of the suspension on all entrance and exit doors. The notice
must contain the dates of the suspension.
(d)
A person commits a Class C misdemeanor if the person does
not post the required notice or removes a notice while the suspension of admissions
is in effect.
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 January 11, 2001.
TRD-200100209
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: March 1, 2001
Proposal publication date: July 14, 2000
For further information, please call: (512) 438-3108