40 TAC §95.128
The Texas Department of Human Services (DHS) proposes new §95.128,
concerning home health medication aides, in its Medication Aides--Program
Requirements chapter. The purpose of the new section is to move policy relating
to medication aides from DHS's Chapter 97, Licensing Standards for Home and
Community Support Services Agencies, to the more appropriate medication aides
chapter.
Eric M. Bost, commissioner, has determined that for the first five- year
period the section are in effect there will be no fiscal implications for
state or local government as a result of enforcing or administering the section.
Mr. Bost also has determined that for each year of the first five years
the section are in effect the public benefit anticipated as a result of adoption
of the proposed rule will be to allow access to the medication aides rules
in one chapter. There will be no adverse economic effect on small or micro
businesses, because only the location of the rules is changing. There is no
anticipated economic cost to persons who are required to comply with the proposed
section.
Questions about the content of this proposal may be directed to Lynette
Sanders at (512) 231-5800 in DHS's Credentialing Department. Written comments
on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-083,
Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
The new section is proposed 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 new section implements the Health and Safety Code, Chapter 142.001-142.030,
Subchapter F.
§95.128.Home Health Medication Aides.
(a)
General.
(1)
A person may not administer medication to a client unless
the person:
(A)
holds a current license under state law which authorizes
the licensee to administer medication;
(B)
holds a current permit issued under this section and acts
under the delegated authority of a registered nurse (RN) licensed by the Board
of Nurse Examiners which authorizes the licensee to administer medication;
(C)
administers a medication to a client of an agency in accordance
with rules of the Board of Nurse Examiners that permit delegation of the administration
of medication to a person not holding a permit under this section; or
(D)
administers noninjectable medication under circumstances
authorized by the memorandum of understanding between the Board of Nurse Examiners
and the Texas Department of Human Services (DHS).
(2)
An agency providing licensed and certified home health
services, licensed home health services, hospice services, or personal assistance
services. If there is a direct conflict between the requirements of this chapter
and federal regulations, the requirements that are more stringent apply to
the licensed and certified home health services agency may use a home health
medication aide.
(3)
Other exemptions are as follows.
(A)
A person may administer medication to a client of an agency
without the license or permit as required in paragraph (1) of this subsection
if the person is:
(i)
a graduate nurse holding a temporary permit issued by the
Board of Nurse Examiners;
(ii)
a student enrolled in an accredited school of nursing
or program for the education of Rns who is administering medications as part
of the student's clinical experience;
(iii)
a graduate vocational nurse holding a temporary permit
issued by the Board of Vocational Nurse Examiners;
(iv)
a student enrolled in an accredited school of vocational
nursing or program for the education of vocational nurses who is administering
medications as part of the student's clinical experience; or
(v)
a trainee in a medication aide training program approved
by DHS under this chapter who is administering medications as part of the
trainee's clinical experience.
(B)
Supervision of an exempt person described in subparagraph
(A) of this paragraph is as follows.
(i)
A person described in:
(I)
subparagraph (A)(i) of this paragraph shall be supervised
by an RN;
(II)
subparagraph (A)(ii) or (iv) of this paragraph shall be
supervised by the student's instructor; or
(III)
subparagraph (A)(iii) of this paragraph shall be supervised
by an RN or licensed vocational nurse.
(ii)
Supervision must be on-site.
(C)
An exempt person described in this subsection may not be
used in a supervisory or charge position.
(b)
Required actions.
(1)
If home health medication aide services are provided, an
agency employs a home health medication aide to provide home health medication
aide services, and an RN shall be employed by or under contract with the agency
to perform the initial assessment; prepare the client care plan; establish
the medication list, medication administration record, and medication aide
assignment sheet; and supervise the home health medication aide. The RN must
be available to supervise the home health medication aide when services are
provided.
(2)
The clinical records of a patient using a home health medication
aide must include a statement signed by the client or family acknowledging
receipt of the list of permitted and prohibited acts of a home health medication
aide.
(3)
The RN must be knowledgeable regarding the rules of DHS
governing home health medication aides and must assure that the home health
medication aide is in compliance with the statute.
(4)
A permit holder must:
(A)
function under the supervision of an RN;
(B)
function in accordance with applicable law and this chapter
relating to administration of medication and operation of the agency;
(C)
comply with DHS rules applicable to personnel used in an
agency; and
(D)
comply with this section and §97.61 of this title
(relating to Home Health Aides) if the person will be used as a home health
aide and a home health medication aide.
(5)
The RN must make a supervisory visit while the medication
aide is in the client's residence in accordance with §97.21(b)(6) of
this title (relating to Licensure Requirements and Standards for Agencies
Providing Licensed Home Health, Licensed and Certified Home Health or Hospice
Services).
(c)
Permitted actions. A permit holder is permitted to:
(1)
observe and report to the agency's RN and document in the
clinical note reactions and side effects to medication shown by a client;
(2)
take and record vital signs prior to the administration
of medication which could affect or change the vital signs;
(3)
administer regularly prescribed medication which the permit
holder has been trained to administer only after personally preparing (setting
up) the medication to be administered. The medication aide must document the
administered medication in the client's clinical note;
(4)
administer oxygen per nasal cannula or a non-sealing face
mask only in emergency. Immediately after the emergency, the permit holder
must verbally notify the supervising RN and appropriately document the action
and notification;
(5)
apply specifically ordered ophthalmic, otic, nasal, vaginal,
topical, and rectal medication unless prohibited by subsection (d)(10) of
this section; and
(6)
administer medications only from the manufacturer's original
container or the original container in which the medication had been dispensed
and labeled by the pharmacy with all information mandated by the Texas State
Board of Pharmacy.
(d)
Prohibited actions. Permit holders must not:
(1)
administer a medication by any injectable route;
(2)
administer medication used for intermittent positive pressure
breathing (IPPB) treatment or any form of medication inhalation treatments;
(3)
administer previously ordered pro re nata (PRN) medication
unless authorization is obtained from the agency's RN. If authorization is
obtained, the permit holder must:
(A)
document in the client's clinical notes symptoms indicating
the need for medication and the time the symptoms occurred;
(B)
document in the client's clinical notes that the agency's
RN was contacted, symptoms were described, and permission was granted to administer
the medication and the time of contact;
(C)
obtain permission to administer the medication each time
the symptoms occur in the client; and
(D)
insure that the client's clinical record is co-signed by
the RN who gave permission within seven calendar days of incorporation of
the notes into the clinical record;
(4)
administer the initial dose of a medication that has not
been previously administered to a client. Whether a medication has been previously
administered must be determined by the client's current clinical records;
(5)
calculate a client's medication doses for administration
except that the permit holder may measure a prescribed amount of a liquid
medication to be administered or break a scored tablet for administration
to a client provided the RN has calculated the dosage. The client's medication
administration record must accurately document how the tablet must be altered
prior to administration;
(6)
crush medication unless authorization has been given in
the original physician's order or obtained from the agency's RN. The authorization
to crush the specific medication must be documented on the client's medication
administration record;
(7)
administer medications or feedings by way of a tube inserted
in a cavity of the body except as specified in §97.21(b)(6) of this title;
(8)
receive or assume responsibility for reducing to writing
a verbal or telephone order from a physician, dentist, or podiatrist;
(9)
order a client's medication from a pharmacy;
(10)
apply topical medications that involve the treatment of
skin that is broken or blistered when a specified aseptic technique is ordered
by the attending physician;
(11)
administer medications from any container other than the
manufacturer's original container or the original container in which the medication
had been dispensed and labeled by the pharmacy with all information mandated
by the Texas State Board of Pharmacy;
(12)
steal, divert, or otherwise misuse medications;
(13)
violate any provision of the statute or of this chapter;
(14)
fraudulently procure or attempt to procure a permit;
(15)
neglect to administer appropriate medications, as prescribed,
in a responsible manner; or
(16)
administer medications if the person is unable to do so
with reasonable skill and safety to clients by reasons of drunkenness, excessive
use of drugs, narcotics, chemicals, or any other type of material.
(e)
Applicant qualifications. Each applicant for a permit issued
under the statute must complete a training program. Prior to enrollment in
a training program and prior to application for a permit under this section,
all persons:
(1)
must be able to read, write, speak, and understand English;
(2)
must be at least 18 years of age;
(3)
must be free of communicable diseases and in suitable physical
and emotional health to safely administer medications;
(4)
must be a graduate of a high school or have an equivalent
diploma or higher degree; and
(5)
must have satisfactorily completed a home health aide training
and competency evaluation program or a competency evaluation program under
Chapter §97.61 (relating Home Health Aides).
(f)
Nursing graduates. A person who is a graduate of an accredited
school of nursing and who does not hold a license to practice professional
or vocational nursing meets the training requirements for issuance of a permit
under this section; if the date of graduation from the nursing school was
no earlier than January 1 of the year immediately preceding the year of application
for a permit under this section.
(1)
The applicant must submit an official application form
to DHS. The applicant must meet the requirements of subsection (e)(1)-(4)
of this section.
(2)
The application must be accompanied by the permit application
fee.
(3)
The applicant must include an official transcript documenting
graduation from an accredited school of nursing.
(4)
DHS acknowledges receipt of the application by forwarding
to the applicant a copy of this chapter and DHS's open book examination.
(5)
The applicant must complete the open book examination and
return it within 45 calendar days to DHS.
(6)
The applicant must complete DHS's written examination.
DHS determines the site of the examination. Any applicant failing to schedule
and take the examination within 45 calendar days of the examination notice
may have his or her application voided.
(7)
An open book or written examination may not be retaken
if the applicant fails.
(8)
Upon successful completion of the two examinations, DHS
evaluates all application documents submitted by the applicant.
(9)
DHS notifies the applicant in writing of the examination
results.
(g)
Nursing students. A person who is attending or has attended
an accredited school of nursing and who does not hold a license to practice
professional or vocational nursing meets the training requirements for issuance
of a permit under this section if the person:
(1)
attended the nursing school no earlier than January 1 of
the year immediately preceding the year of application for a permit under
this section;
(2)
successfully completed courses at the nursing school that
cover DHS's curriculum for a home health medication aide training program;
(3)
submits a statement that is signed by the nursing school's
administrator or other authorized individual and certifies that the person
completed the courses specified under paragraph (2) of this subsection. The
administrator is responsible for determining that the courses to which he
or she certifies cover DHS's curriculum. The statement must be submitted with
the person's application for a permit under this section; and
(4)
complies with subsection (f)(1)-(2) and (4)-(9) of this
section.
(h)
Reciprocity. A person who holds a valid license, registration,
certificate, or permit as a home health medication aide issued by another
state whose minimum standards or requirements are substantially equivalent
to or exceed the requirements of this section in effect at the time of application
may request a waiver of the training program requirement.
(1)
The graduate must submit an official application form to
DHS. The applicant must meet the requirements of subsection (e)(1)-(4) of
this section.
(2)
The application must be accompanied by the permit application
fee.
(3)
The application must include a current copy of the rules
of the other state governing its licensing and regulation of home health medication
aides, a copy of the legal authority (law, act, code, section, or otherwise)
for the state's licensing program, and a certified copy of the license or
certificate by which the reciprocal permit is requested.
(4)
DHS acknowledges receipt of the application by forwarding
to the applicant a copy of this chapter and of DHS's open book examination.
(5)
DHS may contact the issuing agency to verify the applicant's
status with the agency.
(6)
The applicant must complete DHS's open book examination
and return it within 45 calendar days to DHS.
(7)
The applicant must complete DHS's written examination.
The site of the examination shall be determined by DHS. Any applicant failing
to schedule and take the examination within 45 calendar days of the examination
notice may have his or her application voided.
(8)
An open book or written examination may not be retaken
if the applicant fails.
(9)
Upon successful completion of the two examinations, DHS
evaluates all application documents submitted by the applicant.
(10)
DHS notifies the applicant in writing of the examination
results.
(i)
Application by trainees. An applicant under subsection
(e) of this section must submit to DHS, no later than 30 calendar days after
enrollment in a training program, all required information and documentation
on official DHS forms.
(1)
DHS does not consider an application as officially submitted
until the applicant submits the nonrefundable combined permit application
and examination fee payable to the Texas Department of Human Services. The
fee required by subsection (n) of this section must accompany the application
form.
(2)
The general statement enrollment form must contain the
following application material that is required of all applicants:
(A)
specific information regarding personal data, certain misdemeanor
and felony convictions, work experience, education, and training;
(B)
a statement that all of the requirements in subsection
(e) of this section were met prior to the start of the program;
(C)
a statement that the applicant understands that application
fee submitted in the permit process is nonrefundable;
(D)
a statement that the applicant understands that materials
submitted in the application process are not returnable;
(E)
a statement that the applicant understands that it is a
misdemeanor to falsify any information submitted to DHS; and
(F)
the applicant's signature that has been dated and notarized.
(3)
The applicant must submit a certified copy or a photocopy
that has been notarized as a true and exact copy of an unaltered original
of the applicant's high school graduation diploma or transcript or an equivalent
GED diploma or higher degree unless the applicant is applying under subsection
(f) of this section.
(4)
DHS sends a notice listing the additional materials required
to an applicant who does not complete the application in a timely manner.
An application not completed within 30 calendar days after the date of the
notice will be void.
(5)
Notice of application acceptance, disapproval, or deficiency
must be in accordance with subsection (q) of this section.
(j)
Examination. DHS gives a written examination to each applicant
at a site determined DHS.
(1)
No final examination may be given to an applicant until
the applicant has met the requirements of subsections (e) and (i) of this
section, and if applicable, subsections (f), (g), or (h) of this section.
(2)
The applicant must be tested on the subjects taught in
the training program curricula and clinical experience. The examination covers
an applicant's knowledge of accurate and safe drug therapy to an agency's
clients.
(3)
A training program must notify DHS at least four weeks
prior to its requested examination date.
(4)
DHS determines the passing grade on the examination.
(5)
DHS notifies in writing an applicant who fails the examination.
(A)
An applicant under subsection (e) of this section may be
given a subsequent examination, without additional payment of a fee, upon
the applicant's written request to DHS.
(B)
A subsequent examination must be completed within 45 calendar
days from the date of the failure notification. DHS determines the site of
the examination.
(C)
Another examination will not be permitted if the student
fails the subsequent examination unless the student enrolls and successfully
completes another training program.
(6)
An applicant who is unable to attend the applicant's scheduled
examination due to unforeseen circumstances may be given an examination at
another time without payment of an additional fee upon the applicant's written
request to DHS. The examination must be completed within 45 calendar days
from the date of the originally scheduled examination. DHS determines the
site for the rescheduled examination.
(7)
An applicant whose application for a permit will be disapproved
under subsection (k) of this section is ineligible to take the examination.
(k)
Determination of eligibility. DHS receives and approves
or disapproves all applications. Notices of application approval, disapproval,
or deficiency must be in accordance with subsection (q) of this section.
(1)
An application for a permit is disapproved if the person
has:
(A)
not met the requirements of subsections (e)-(i) of this
section, if applicable;
(B)
failed to pass the examination prescribed by DHS as set
out in subsection (j) of this section;
(C)
failed to or refused to properly complete or submit any
application form, endorsement, or fee, or deliberately presented false information
on any form or document required by DHS;
(D)
violated or conspired to violate the statute or any provision
of this chapter; or
(E)
been convicted of a felony or misdemeanor if the crime
directly relates to the duties and responsibilities of a permit holder as
set out in subsection (r) of this section.
(2)
If, after review, DHS determines that the application should
not be approved, the director gives the applicant written notice of the reason
for the proposed decision and of the opportunity for a formal hearing in accordance
with subsection (r) of this section.
(l)
Permit renewal. Home health medication aides must comply
with the following permit renewal requirements.
(1)
When issued, a permit is valid for one year.
(2)
A permit holder must renew the permit annually.
(3)
The renewal date of a permit is the last day of the current
permit.
(4)
Each permit holder is responsible for renewing the permit
before the expiration date. Failure to receive notification from DHS before
the expiration date of the permit does not excuse failure to file for timely
renewal.
(5)
A permit holder must complete a seven clock-hour continuing
education program approved by DHS prior to expiration of the permit in order
to renew the permit. Continuing education hours are required for the first
renewal.
(6)
DHS denies renewal of the permit of a permit holder who
is in violation of the statute or this chapter at the time of application
for renewal.
(7)
Home health medication aide permit renewal procedures are
as follows.
(A)
At least 30 calendar days before the expiration date of
a permit, DHS sends to the permit holder at the address in DHS's records notice
of the expiration date of the permit and the amount of the renewal fee due
and a renewal form that the permit holder must complete and return with the
required renewal fee.
(B)
The renewal form must include the preferred mailing address
of the permit holder and information on certain misdemeanor and felony convictions.
It must be signed by the permit holder.
(C)
DHS issues a renewal permit to a permit holder who has
met all requirements for renewal.
(D)
DHS will not renew a permit if the permit holder does not
complete the required seven-hour continuing education requirement. Successful
completion is determined by the student's instructor. An individual who does
not meet the continuing education requirement must complete a new program,
application, and examination in accordance with the requirements of this section.
(E)
DHS will not renew a permit if renewal is prohibited by
the Texas Education Code, §57.491, concerning defaults on guaranteed
student loans.
(F)
If a permit holder fails to timely renew his or her permit
because the permit holder is or was on active duty with the armed forces of
the United States of America serving outside the State of Texas, the permit
holder may renew the permit pursuant to this subsection.
(i)
Renewal of the permit may be requested by the permit holder,
the permit holder's spouse, or an individual having power of attorney from
the permit holder. The renewal form must include a current address and telephone
number for the individual requesting the renewal.
(ii)
Renewal may be requested before or after the expiration
of the permit.
(iii)
A copy of the official orders or other official military
documentation showing that the permit holder is or was on active military
duty serving outside the State of Texas should be filed with DHS along with
the renewal form.
(iv)
A copy of the power of attorney from the permit holder
must be filed with DHS along with the renewal form if the individual having
the power of attorney executes any of the documents required in this subsection.
(v)
A permit holder renewing under this subsection must pay
the applicable renewal fee.
(vi)
A permit holder is not authorized to act as a home health
medication aide after the expiration of the permit unless and until the permit
holder actually renews the permit.
(vii)
A permit holder renewing under this subsection is not
required to submit any continuing education hours.
(8)
A person whose permit has expired for not more than two
years may renew the permit by submitting to DHS:
(A)
the permit renewal form;
(B)
all accrued renewal fees;
(C)
proof of having earned, during the expired period, seven
hours in an approved continuing education program for each year or part of
a year that the permit has been expired; and
(D)
proof of having earned, prior to expiration of the permit,
seven hours in an approved continuing education program as required in paragraph
(5) of this subsection.
(9)
A permit that is not renewed during the two years after
expiration may not be renewed.
(10)
Notices of permit renewal approval, disapproval, or deficiency
must be in accordance with subsection (q) of this section (relating to Processing
Procedures).
(m)
Changes.
(1)
Notification of changes shall be reported to DHS within
30 calendar days after a change of address or name.
(2)
DHS replaces a lost, damaged, or destroyed permit upon
receipt of a completed duplicate permit request form and permit replacement
fee.
(n)
Fees.
(1)
The schedule of fees is:
(A)
combined permit application and examination fee--$25;
(B)
renewal fee--$15; and
(C)
permit replacement fee--$5.00.
(2)
All fees are nonrefundable.
(3)
An applicant whose personal check for the combined permit
application and examination fee is not honored by the financial institution
may reinstate the application by remitting to DHS a money order or cashier's
check for the amount within 30 calendar days of the date of the applicant's
receipt of DHS's notice. An application will be considered incomplete until
the fee has been received and cleared through the appropriate financial institution.
(4)
A permit holder whose personal check for the renewal fee
is not honored by the financial institution must remit to DHS a money order
or cashier's check within 30 calendar days of the date of the licensee's receipt
of DHS's notice. If proper payment is not received, the permit will not be
renewed. If a renewal card has already been issued, it will be void.
(o)
Training program requirements.
(1)
An educational institution accredited by the Texas Education
Agency or Texas Higher Education Coordinating Board that desires to offer
a training program must file an application for approval on an official form.
Programs sponsored by state agencies for the training and preparation of its
own employees are exempt from the accreditation requirement. An approved institution
may offer the training program and a continuing education program.
(A)
All signatures on official forms and supporting documentation
must be originals.
(B)
The application includes:
(i)
the anticipated dates of the program;
(ii)
the location(s) of the classroom course(s);
(iii)
the name of the coordinator of the program;
(iv)
a list of instructors and any other person responsible
for the conduct of the program. The list must include addresses and telephone
numbers for each instructor; and
(v)
an outline of the program content and curriculum if the
curriculum covers more than DHS's established curricula.
(C)
DHS may conduct an inspection of the classroom site.
(D)
Notice of approval or proposed disapproval of the application
will be given to the program within 30 calendar days of the receipt of a complete
application. If the application is proposed to be disapproved due to noncompliance
with the requirements of the statute or of this chapter, the reasons for disapproval
must be given in the notice.
(E)
An applicant may request a hearing on a proposed disapproval
in writing within ten calendar days of receipt of the notice of the proposed
disapproval. The hearing must be in accordance with subsection (r) of this
section and the Administrative Procedure Act, Texas Government Code, Chapter
2001. If no request is made, the applicant is deemed to have waived the opportunity
for a hearing, and the proposed action may be taken.
(2)
The program includes, but is not limited to, the following
instruction and training:
(A)
procedures for preparation and administration of medications;
(B)
responsibility, control, accountability, storage, and safeguarding
of medications;
(C)
use of reference material;
(D)
documentation of medications in the client's clinical records,
including PRN medications;
(E)
minimum licensing standards for agencies covering pharmaceutical
service, nursing service, and clinical records;
(F)
federal and state certification standards for participation
under the Social Security Act, Title XVIII (Medicare), pertaining to pharmaceutical
service, nursing service, and clinical records;
(G)
lines of authority in the agency, including agency personnel
who are immediate supervisors;
(H)
responsibilities and liabilities associated with the administration
and safeguarding of medications;
(I)
allowable and prohibited practices of permit holders in
the administration of medication;
(J)
drug reactions and side effects of medications commonly
administered to home health clients;
(K)
instruction on universal precautions; and
(L)
the provisions of this chapter.
(3)
The program consists of 140 hours: 100 hours of classroom
instruction and training, 20 hours of return skills demonstration laboratory,
ten hours of clinical experience including clinical observation and skills
demonstration under the supervision of a RN in an agency, and ten more hours
in the return skills demonstration laboratory in the preceding order. A classroom
or laboratory hour constitutes 50 clock-minutes of actual classroom or laboratory
time.
(A)
Class time will not exceed four hours in a 24-hour period.
(B)
The completion date of the program must be a minimum of
60 calendar days and a maximum of 180 calendar days from the starting date
of the program.
(C)
Each program must follow the curricula established by DHS.
(4)
At least seven calendar days prior to the commencement
of each program, the coordinator must notify DHS in writing of the starting
date, the ending date, the daily hours of the program, and the projected number
of students.
(5)
A change in any information presented by the program in
an approved application including, but not limited to, location, instructorship,
and content must be approved by DHS prior to the program's effective date
of the change.
(6)
The program instructors of the classroom hours must be
an RN and registered pharmacist.
(A)
The nurse instructor must have a minimum of two years of
full-time experience in caring for the elderly, chronically ill, or pediatric
clients or been employed full time for a minimum of two years as an RN with
a home and community support services agency. An instructor in a school of
nursing may request a waiver of the experience requirement.
(B)
The pharmacist instructor must have a minimum of one year
of experience and be currently employed as a practicing pharmacist.
(7)
The coordinator must provide clearly defined and written
policies regarding each student's clinical experience to the student, the
administrator, and the director of nursing of the agency used for the clinical
experience.
(A)
The clinical experience must be counted only when the student
is observing or involved in functions involving medication administration
and under the direct, contact supervision of an RN.
(B)
The coordinator is responsible for final evaluation of
the student's clinical experience.
(8)
Upon successful completion of the program, each program
issues to each student a certificate of completion, including the program's
name, the student's name, the date of completion, and the signature of the
program coordinator.
(9)
Each program must inform DHS of the satisfactory completion
for each student within 15 calendar days of completion of the course. The
official department class roster form must be used and signed by the coordinator.
(p)
Continuing education. The continuing education training
program is as follows.
(1)
The program must consist of at least seven clock hours
of classroom instruction.
(2)
The instructor must meet the requirements in subsection
(o)(6) of this section.
(3)
Each program must follow the curricula established by DHS.
(4)
Each program must inform DHS of the name of each permit
holder who completes the course within 15 calendar days. The official department
class roster form must be used and signed by the coordinator.
(q)
Processing procedures. DHS complies with the following
procedures in processing applications of home health medication aide permits
and renewal of permits.
(1)
The following periods of time apply from the date of receipt
of an application until the date of issuance of a written notice that the
application is complete and accepted for filing or that the application is
deficient and additional specific information is required. A written notice
stating that the application has been approved may be sent in lieu of the
notice of acceptance of a complete application. The time periods are:
(A)
letter of acceptance of an application for a home health
medication aide permit--14 working days; and
(B)
letter of application or renewal deficiency--14 working
days.
(2)
The following periods of time shall apply from the receipt
of the last item necessary to complete the application until the date of issuance
of written notice approving or denying the application. The time periods for
denial include notification of proposed decision and of the opportunity, if
required, to show compliance with the law and of the opportunity for a formal
hearing. An application is not considered complete until the required documentation
and fee have been submitted by the applicant. The time periods are as follows:
(A)
the issuance of an initial permit--90 calendar days;
(B)
the letter of denial for a permit--90 calendar days; and
(C)
the issuance of a renewal permit--20 calendar days.
(3)
In the event an application is not processed in the time
period stated in paragraphs (1) and (2) of this subsection, the applicant
has the right to request reimbursement of all fees paid in that particular
application process. Request for reimbursement is made to the director of
the Home Health Medication Aide Permit Program. If the director of the Home
Health Medication Aide Permit Program does not agree that the time period
has been violated or finds that good cause existed for exceeding the time
period, the request will be denied.
(4)
Good cause for exceeding the time period is considered
to exist if the number of applications for initial home health medication
aide permits and renewal permits exceeds by 15% or more the number of applications
processed in the same calendar quarter of the preceding year; another public
or private entity relied upon by DHS in the application process caused the
delay; or any other condition exists giving DHS good cause for exceeding the
time period.
(5)
If a request for reimbursement under paragraph (3) of this
subsection is denied by the director of the Home Health Medication Aide Permit
Program, the applicant may appeal to the commissioner of DHS for a timely
resolution of any dispute arising from a violation of the time periods. The
applicant must give written notice to the commissioner at the address of DHS
that he or she requests full reimbursement of all fees paid because his or
her application was not processed within the applicable time period. The director
of the Home Health Medication Aide Permit Program must submit a written report
of the facts related to the processing of the application and of any good
cause for exceeding the applicable time period. The commissioner provides
written notice of the commissioner's decision to the applicant and the director
of the Home Health Medication Aide Permit Program. An appeal is decided in
the applicant's favor if the applicable time period was exceeded and good
cause was not established. If the appeal is decided in favor of the applicant,
full reimbursement of all fees paid in that particular application process
are made.
(6)
The time periods for contested cases related to the denial
of initial home health medication aide permits or renewal permits are not
included within the time periods stated in this subsection. The time period
for conducting a contested case hearing runs from the date DHS receives a
written request for a hearing and ends when the decision of DHS is final and
appealable. A hearing may be completed within one to four months but may extend
for a longer period of time depending on the particular circumstances of the
hearing.
(r)
Denial, suspension, or revocation.
(1)
DHS may deny, suspend, emergency suspend, or revoke a permit
or program approval if the permit holder or program fails to comply with any
provision of the statute or this chapter.
(2)
DHS may also take action under paragraph (1) of this subsection
for fraud, misrepresentation, or concealment of material fact on any documents
required to be submitted to DHS or required to be maintained or complied by
the permit holder or program pursuant to this chapter.
(3)
DHS may suspend or revoke an existing permit or program
approval or disqualify a person from receiving a permit or program approval
because of a person's conviction of a felony or misdemeanor if the crime directly
relates to the duties and responsibilities of a home health medication aide
or training program. In determining whether a conviction directly relates,
DHS must consider the elements set forth in §97.52(c) of this title (relating
to Enforcement Action).
(4)
If DHS proposes to deny, suspend, or revoke a home health
medication aide permit or to rescind a home health medication aide program
approval, the director notifies the permit holder or home health medication
aide program by certified mail, return receipt requested, of the reasons for
the proposed action and offer the permit holder or home health medication
aide program an opportunity for a hearing.
(A)
The permit holder or home health medication aide program
must request a hearing within 15 calendar days of receipt of the notice. Receipt
of notice is presumed to occur on the tenth calendar 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)
The request must be in writing and submitted to the Texas
Department of Human Services, Medication Aide Program, Mail Code 979, P.O.
Box 149030, Austin, Texas 78714-9030.
(C)
If the permit holder or home health medication aide program
does not request a hearing, in writing, within 15 calendar days of receipt
of the notice, the permit holder or home health medication aide program is
deemed to have waived the opportunity for a hearing and the proposed action
is taken.
(5)
DHS may suspend a permit to be effective immediately when
the health and safety of persons are threatened. DHS notifies the permit holder
of the emergency action by certified mail, return receipt requested, or personal
delivery of the notice and of the effective date of the suspension and the
opportunity for the permit holder to request a hearing.
(6)
All hearings must be conducted pursuant to the Administrative
Procedure Act, Texas Government Code, Chapter 2001, and DHS's formal hearing
procedures in Chapter 79 of this title (relating to Legal Services).
(7)
If the permit holder or program fails to appear or be represented
at the scheduled hearing, the permit holder or program has waived the right
to a hearing and the proposed action is taken.
(8)
If DHS suspends a home health medication aide permit, the
suspension remains in effect until DHS determines that the reason for suspension
no longer exists. DHS investigates prior to making a determination.
(A)
During the time of suspension, the suspended permit holder
must return his or her permit to DHS.
(B)
If a suspension overlaps a renewal date, the suspended
permit holder may comply with the renewal procedures in this chapter; however,
DHS may not renew the permit until DHS determines that the reason for suspension
no longer exists.
(9)
If DHS revokes or does not renew a permit, a person may
reapply for a permit by complying with the requirements and procedures in
this chapter at the time of reapplication.
(A)
DHS may refuse to issue a permit if the reason for revocation
or nonrenewal continues to exist.
(B)
Upon revocation or nonrenewal, a permit holder must return
the license or permit to DHS.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed with the Office of
the Secretary of State, on March 14, 2001.
TRD-200101535
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 29, 2001
For further information, please call: (512) 438-3108