Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 19.
NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
The Texas Department of Human Services (DHS) adopts an amendment to §19.401,
and new §19.422 and §19.1207 in its Nursing Facility Requirements
for Licensure and Medicaid Certification chapter with changes to the proposed
text published in the February 8, 2002, issue of the
Texas Register
(27 TexReg 882).
Justification for the amendment and new sections is to implement Senate
Bill (SB) 177 (Health and Safety Code, §§242.841-242.851), 77th
Legislature, which requires nursing facilities to allow a resident, the resident's
guardian, or legal representative to monitor the resident's room through the
use of an electronic monitoring device. The adoption also implements SB 355
(Health and Safety Code, §242.505), 77th Legislature, which requires
nursing facility residents to give informed consent before psychoactive medication
is administered. The adopted amendment to the Statement of Resident Rights
in §19.401 implements SB 177 and SB 355 (Health and Safety Code, §242.501),
which add the right to informed consent to the administration of psychoactive
medication and the right to conduct electronic monitoring to the list of Resident
Rights.
The change to §19.401(b) makes a nonsubstantive grammatical change,
which adds the word "to" before the colon that introduces resident rights
in the Statement of Resident Rights and deletes the word "to" from the beginning
of the following paragraphs. The change to §19.422 replaces "authorized
electronic monitoring" with the previously introduced acronym in the "Can
a resident be discharged or refused admittance for requesting AEM?" segment
of the DHS Information Regarding Authorized Electronic Monitoring form.
DHS received comments from the Coalition for Nurses in Advanced Practice,
the Texas Health Care Association, the Texas Association of Residential Care
Communities, the Texas Association of Homes and Services for the Aging, Advocacy
Inc., the Citizens Commission on Human Rights and two individuals. A summary
of the comments and DHS's responses follow.
Comment: The preamble to the proposed rules indicates there is neither
economic cost nor new requirements for nursing facilities as a result of enforcing
or administering the new rules. The additional paperwork requirements and
workload for staff add additional costs to the facility. Costs are associated
with copying three different forms, one of them five pages, and the additional
staff time to locate the proper individuals to sign the forms, explain the
process and to implement the authorized electronic monitoring. The January
1, 2003, deadline to have all facility residents informed of this process
certainly will require a large amount of staff time, in addition to the other
provisions.
Response: DHS acknowledges that facilities will incur minor expenses in
the implementation of these rules. DHS estimates these costs to be $1.42 per
resident, which means a first-year cost of $142 for a 100-bed facility. Costs
will diminish after the first year of implementation because only new admissions
will be given the five-page informational form. DHS has changed the time frame
to July 1, 2003, for all current residents, which gives facilities one full
year to comply with the requirement to inform current residents about authorized
electronic monitoring.
Comment: The proposed rule at §19.101 (27) and (36) fails to address
what appear to be conflicts with the Federal Wiretap Act, 8 USC Sec. 2511.
Unless everyone who goes into the room is told that their statements are under
surveillance, thus removing the expectation of not being monitored, the audio
surveillance portion of the proposed rules may violate federal law.
Response: The cited proposed rules are definitions based on the Health
and Safety Code, §242.843 and §242.842(2). The proposed rules do
require notice of possible electronic monitoring at the entrance to all facilities
and notice at the doors of rooms where authorized electronic monitoring (AEM)
is being conducted. DHS's position is that the proposed rules are not in conflict
with the federal wiretap law.
Comment: In §19.422(c), a January 1, 2003, requirement is imposed
that all residents sign the Information Regarding Authorized Electronic Monitoring
notice form (the five-page document). The time required to determine which
residents have capacity to understand such form or find the responsible party
or guardian; explain the form to the resident, responsible party or guardian;
and process the form to the residents' medical record will be costly to providers.
Due to the complexity of steps needed to complete efforts to inform representatives
of residents who lack capacity, we recommend the time frame be changed to
June 1, 2003, for residents who lack capacity.
Response: DHS changed the time frame to July 1, 2003, for all current residents,
giving facilities one full year to comply with the new requirement.
Comment: The proposed rules at §19.422(d) and (e) refer to the form
as a DHS Request for AEM and DHS Consent to AEM. For clarification, these
rules should specify that a state- issued form is required. There is critical
information from the legislation that is included in the Information Regarding
Authorized Electronic Monitoring form that currently is not in the rules.
We are concerned that the rules do not clarify that this is a state-issued
form. Without this being added to the rules, there is no prohibition that
the facility or the state may make changes to the form at any time. Therefore,
we recommend that information in this document also be included in rules.
For example, information listed under "What is required for the use of a tape
or recording by an agency or court?" such as date and time stamp should also
be included in rules.
Response: The terms "DHS Request for AEM" and "DHS Consent to AEM" make
it clear that these are DHS forms. There is no need for further clarification.
The "Information Regarding Electronic Monitoring" form has been published
as part of the proposed rules, so there can be no misunderstanding that this
is a required state form and that facilities are not at liberty to make changes
to it. This document does contain information that is not in the nursing facility
rules themselves. Some of the information in the law is pertinent to consumers,
but does not require anything of the nursing facility. Such information was
included in the form, but not in the rules. The information about what is
required for the use of a tape by an agency or court is pertinent to consumers
who conduct electronic monitoring, but not to nursing facilities. It is DHS's
philosophy to include as little extraneous information as possible in rules.
Comment: In §19.422(e)(2), change "condition" to "conditionally."
Response: DHS retains the language as proposed. "Condition" is the term
used in the statute.
Comment: In §19.422(e)(4), add the following: "Therefore, the facility
may terminate the electronic monitoring until consent or conditional consent
is obtained from the other resident or the resident's guardian or legal representative."
Response: DHS retains the language as proposed. The suggested language
is redundant. The rule clearly states, "the monitoring must cease until the
new resident, or the resident's guardian or legal representative, consents."
Comment: In §19.422(f)(2), modify this provision to read as follows:
"The resident, or the resident's guardian or legal representative, must pay
for all costs associated with conducting AEM including installation in compliance
with life safety and electrical codes, maintenance, removal of the equipment,
posting and removal of the notice, or repair following removal of the equipment
and notice, other than the cost of electricity."
Response: DHS added the suggested language to §19.422(f)(2) and to
the corresponding portion of the DHS Information Regarding Authorized Electronic
Monitoring form.
Comment: Modify §19.422(f)(4)(B) to read as follows: "reasonable access
to power sources, to the extent such sources are available in the resident's
room, for the video surveillance camera or other electronic monitoring device."
Response: DHS will retain the language as proposed. In §19.422(f)(2),
the resident is required to absorb all costs associated with electronic monitoring.
If a power source is not readily available in a resident's room, the facility
can make the changes necessary to provide the power source, provided the resident
is willing to pay for such changes. The statute and the proposed rules provide
the facility protection from wholesale structural changes by requiring the
facility to make reasonable accommodation for AEM.
Comment: Regarding §19.422(i), these rules repeatedly deal with the
matter of notice, consent and privacy, yet when covert monitoring is discovered,
the rules allow it to continue without interruption. Add a new (1) and (2)
as follows and renumber the other subsections: (1) Inform the resident, or
the resident's guardian or legal representative in person or by telephone,
followed by a letter or facsimile, that covert electronic monitoring is not
allowed by statute or rules and that the monitoring must cease. (2) Notify
the DHS regional office by telephone, followed by a letter or facsimile, that
covert monitoring has been discovered and that the resident or their responsible
party has been notified that monitoring must cease.
Response: DHS disagrees with the suggestion and did not make the changes.
The statute requires the facility to allow electronic monitoring. It is a
resident right that does not distinguish between open and covert monitoring.
The statute further provides that a person who conducts covert monitoring
or the person who acquiesces to covert monitoring has waived any privacy right
the person may have in connection with the images or sounds acquired by the
monitoring device. The facility cannot be held civilly liable in connection
with the covert monitoring. A facility cannot discharge a person for conducting
covert monitoring.
Comment: In §19.422(i), the rules aren't clear in the instance when
covert monitoring is discovered, thereby making it no longer covert. In those
instances, the monitoring, in essence, becomes overt and all the rules of
authorized electronic monitoring should be enforced, including authorization
from other resident(s) in the room.
Response: DHS rewrote §19.422(i) and the corresponding portion of
the DHS Information Regarding Authorized Electronic Monitoring form as follows:
(i) A facility may not discharge a resident because covert electronic monitoring
is being conducted by or on behalf of a resident. If a facility discovers
a covert electronic monitoring device and it is no longer covert as defined
in §242.843, Health and Safety Code, the resident must meet all the requirements
for AEM before monitoring is allowed to continue.
Comment: In §19.422(i), add the following and then renumber: "(1)
if the room is occupied by another resident(s), terminate the electronic monitoring
until consent or conditional consent is obtained from the other resident(s),
or the resident's guardian or legal representative."
Response: DHS's revision to §19.422(i) (see previous comment) addresses
this issue.
Comment: Regarding §19.422(i), once covert monitoring is discovered
and the roommate is notified of the covert monitoring, what does the facility
do if the roommate refuses to have monitoring in their room? Moving to another
room is not an option, since the roommate has a right to stay in that room
and has a right not to have monitoring in his/her room. This issue is not
addressed in the rules.
Response: If the roommate refuses to have monitoring in the room, no authorized
monitoring occurs and no further action is required of the facility.
Comment: The proposed rule fails to identify who is responsible for obtaining
the roommate's consent or conditional consent. Moreover, if the resident is
incapacitated, a facility generally is prohibited from disclosing who the
legal representative, guardian, etc., is to others because of the resident's
privacy rights. The proposed rule should provide appropriate assurances to
protect a resident or resident's legal representative from undue pressure.
Response: Both the rule and the statute state the resident is required
to obtain the consent of other residents in the room. The facility can either
give the resident or family member the information, or can notify the roommate's
guardian or legal representative of the request.
Comment: Four commenters objected to the language in §19.1207(c)(4)(A)
and (B), which address how long consent to psychoactive medication is valid.
One commenter stated the proposed language can be used as a loophole for a
facility or practitioner to get blanket consent once for a psychoactive drug
and then give that drug again at any point in the future without obtaining
informed consent again. Another commenter stated the original wording of SB
355 handles the problem of blanket consent very well. The bill ensures that
standard mental health codes apply in the nursing home situation, and guarantees
informed consent each and every time a drug is prescribed and a course of
treatment begins. A third commenter stated the stipulation that informed consent
is valid until revoked will result in an effective bypass of the intent of
the law for two reasons. First, the memories of the elderly often are impaired
and the "standing consent" language appears to take advantage of this. Secondly,
the drugs at issue have the potential for profound negative effects on cognitive
functioning. The lack of opportunities to formally reconsider informed consent
denies the residents (or their families) the chance to re-evaluate the risks
and benefits of ongoing drug treatment. Three commenters requested the language
that deviates from the bill's language be deleted. Another commenter stated
the proposed language will allow a physician to get consent for a medication
once, discontinue use of that medication for months or years, restart the
medication and not re-inform the client of the medication's side effects.
This commenter stated if a physician discontinues a medication, he or she
should speak to the individual before reordering the medication, even if the
interval between the prescription of the medication is only a few days. If
this does not occur, the patient may not be cognizant of certain side effects
or understand his or her care plan. This is especially true when a physician
is dealing with an aging population whose short-term memory is often compromised.
Response: In response to comment, DHS staff met with representatives from
advocacy groups and provider associations and developed compromise language.
DHS did not delete the language that addresses how long consent is valid,
but rewrote §19.1207(c)(4) as follows, which addresses the expressed
concerns:
(4) the consent is evidenced in the resident's clinical record by a signed
form prescribed by the facility, or by a statement of the person who prescribes
the medication or that person's designee, that documents consent was given
by the appropriate person and the circumstances under which the consent was
obtained.
(A) Consent is valid until:
(i) consent is withdrawn; or
(ii) the practitioner has discontinued the medication.
(B) For purposes of this rule, a medication will be considered to be discontinued
if therapy has been suspended for more than 70 days. If the suspended therapy
is resumed within the 70- day period, an oral explanation of side effects
should be documented in the clinical record.
Comment: In §19.1207(c)(4)(B)(ii), after "the" and before "has," substitute
"physician" with "practitioner." Any practitioner legally authorized to prescribe
a medication is also authorized to discontinue that medication. It is important
to recognize all appropriate providers.
Response: The cited section has been changed in response to a previous
comment. The term "practitioner" is used, rather than physician.
Comment: It appears that the proposed rules at §19.1207(c)(4) require
a person to consent to a class of medications instead of a specific medication.
The regulations should indicate that "informed medication consent will not
be obtained by the class of the medication, but by each individual medication."
Response: DHS followed the language of the statute in §19.1207(c)(4),
except for the additions that address the length of time consent is valid.
DHS does not intend residents to consent to classes of medications and does
not see that the rules can be construed that way. Consequently, no change
is necessary.
Subchapter E. RESIDENT RIGHTS
40 TAC §19.401, §19.422
The amendment and new section are adopted under the Health
and Safety Code, Chapter 242, which authorizes the department to license and
regulate convalescent and nursing homes and related institutions.
The amendment and new section implement the Health and Safety Code, §242.501
and §§242.841-242.851.
§19.401.Introduction.
(a)
The resident has a right to a dignified existence, self-determination,
and communication with and access to persons and services inside and outside
the facility. A facility must protect and promote the rights of each resident.
(b)
The Texas Department of Human Services (DHS) has developed
the following statement of the rights of a resident.
Figure: 40 TAC §19.401(b)
(c)
The facility must give a copy of the Statement of Resident
Rights to each resident, next of kin or guardian, and facility staff member.
The facility must maintain a copy of the statement, signed by the resident
or the resident's next of kin or guardian, in the facility records.
(d)
The Statement of Resident Rights must be posted in accordance
with §19.1921 of this title (relating to General Requirements for a Nursing
Facility).
§19.422.Authorized Electronic Monitoring (AEM).
(a)
A facility must permit a resident or the resident's guardian
or legal representative to monitor the resident's room through the use of
electronic monitoring devices.
(b)
A facility may not refuse to admit an individual and may
not discharge a resident because of a request to conduct authorized video
monitoring.
(c)
The Texas Department of Human Services (DHS) Information
Regarding Authorized Electronic Monitoring form must be signed by or on behalf
of all new residents upon admission. The form must be completed and signed
by or on behalf of all current residents by July 1, 2003. A copy of the form
must be maintained in the active portion of the resident's clinical record.
Figure: 40 TAC §19.422(c)
(d)
A resident, or the resident's guardian or legal representative,
who wishes to conduct AEM must request AEM by giving a completed, signed,
and dated DHS Request for Authorized Electronic Monitoring form to the administrator
or designee. A copy of the form must be maintained in the active portion of
the resident's clinical record.
(1)
If a resident has capacity to request AEM and has not been
judicially declared to lack the required capacity, only the resident may request
AEM, notwithstanding the terms of any durable power of attorney or similar
instrument.
(2)
If a resident has been judicially declared to lack the
capacity required to request AEM, only the guardian of the resident may request
AEM.
(3)
If a resident does not have capacity to request AEM and
has not been judicially declared to lack the required capacity, only the legal
representative of the resident may request AEM.
(A)
A resident's physician makes the determination regarding
the capacity to request AEM. Documentation of the determination must be made
in the resident's clinical record.
(B)
When a resident's physician determines the resident lacks
capacity to request AEM, a person from the following list, in order of priority,
may act as the resident's legal representative for the limited purpose of
requesting AEM:
(i)
a person named in the resident's medical power of attorney
or other advance directive;
(ii)
the resident's spouse;
(iii)
an adult child of the resident who has the waiver and
consent of all other qualified adult children of the resident to act as the
sole decision-maker;
(iv)
a majority of the resident's reasonably available adult
children;
(v)
the resident's parents; or
(vi)
the individual clearly identified to act for the resident
by the resident before the resident became incapacitated or the resident's
nearest living relative.
(e)
A resident, or the resident's guardian or legal representative,
who wishes to conduct AEM also must obtain the consent of other residents
in the room, using the DHS Consent to Authorized Electronic Monitoring form.
When complete, the form must be given to the administrator or designee. A
copy of the form must be maintained in the active portion of the resident's
clinical record.
(1)
Consent to AEM may be given only by:
(A)
the other resident or residents in the room;
(B)
the guardian of the other resident, if the resident has
been judicially declared to lack the required capacity; or
(C)
the legal representative of the other resident, determined
by following the same procedure established under (d)(3) of this section.
(2)
Another resident in the room may condition consent on:
(A)
pointing the camera away from the consenting resident,
when the proposed electronic monitoring is a video surveillance camera; and
(B)
limiting or prohibiting the use of an audio electronic
monitoring device.
(3)
AEM must be conducted in accordance with any limitation
placed on the monitoring as a condition of the consent given by or on behalf
of another resident in the room. The resident's roommate, their guardian,
or legal representative assumes responsibility for assuring AEM is conducted
according to the designated limitations.
(4)
If AEM is being conducted in a resident's room, and another
resident is moved into the room who has not yet consented to AEM, the monitoring
must cease until the new resident, or the resident's guardian or legal representative,
consents.
(f)
When the completed Request for Authorized Electronic Monitoring
form and the Consent to Authorized Electronic Monitoring form, if applicable,
have been given to the administrator or designee, AEM may begin.
(1)
Anyone conducting AEM must post and maintain a conspicuous
notice at the entrance to the resident's room. The notice must state that
the room is being monitored by an electronic monitoring device.
(2)
The resident, or the resident's guardian or legal representative,
must pay for all costs associated with conducting AEM, including installation
in compliance with life safety and electrical codes, maintenance, removal
of the equipment, posting and removal of the notice, or repair following removal
of the equipment and notice, other than the cost of electricity.
(3)
The facility must meet residents' requests to have a video
camera obstructed to protect their dignity.
(4)
The facility must make reasonable physical accommodation
for AEM, which includes providing:
(A)
a reasonably secure place to mount the video surveillance
camera or other electronic monitoring device; and
(B)
access to power sources for the video surveillance camera
or other electronic monitoring device.
(g)
All facilities, regardless of whether AEM is being conducted,
must post an 8-inch by 11-inch notice at the main facility entrance. The notice
must be entitled "Electronic Monitoring" and must state, in large, easy-to-read
type, "The rooms of some residents may be monitored electronically by or on
behalf of the residents. Monitoring may not be open and obvious in all cases."
(h)
A facility may:
(1)
require an electronic monitoring device to be installed
in a manner that is safe for residents, employees, or visitors who may be
moving about the room, and meets all local and state regulations;
(2)
require AEM to be conducted in plain view;
(3)
place a resident in a different room to accommodate a request
for AEM.
(i)
A facility may not discharge a resident because covert
electronic monitoring is being conducted by or on behalf of a resident. If
a facility discovers a covert electronic monitoring device and it is no longer
covert as defined in §242.843, Health and Safety Code, the resident must
meet all the requirements for AEM before monitoring is allowed to continue.
(j)
DHS may assess an administrative penalty of $500 against
a facility for each instance in which the facility:
(1)
refuses to permit a resident, or the resident's guardian
or legal representative, to conduct AEM;
(2)
refuses to admit an individual or discharges a resident
because of a request to conduct AEM;
(3)
discharges a resident because covert electronic monitoring
is being conducted by or on behalf of the resident; or
(4)
violates any other provision related to AEM.
(k)
All instances of abuse or neglect must be reported to DHS,
as required by §19.602 of this title (relating to Incidents of Abuse
and Neglect Reportable to the Texas Department of Human Services (DHS) by
Facilities). For purposes of the duty to report abuse or neglect and the criminal
penalty for the failure to report abuse or neglect, established under the
Health and Safety Code, §242.122, the following apply:
(1)
A person who is conducting electronic monitoring on behalf
of a resident is considered to have viewed or listened to a tape or recording
made by the electronic monitoring device on or before the 14th day after the
date the tape or recording is made.
(2)
If a resident, who has capacity to determine that the resident
has been abused or neglected and who is conducting electronic monitoring,
gives a tape or recording made by the electronic monitoring device to a person
and directs the person to view or listen to the tape or recording to determine
whether abuse or neglect has occurred, the person to whom the resident gives
the tape or recording is considered to have viewed or listened to the tape
or recording on or before the seventh day after the date the person receives
the tape or recording.
(3)
A person is required to report abuse based on the person's
viewing of or listening to a tape or recording only if the incident of abuse
is acquired on the tape or recording. A person is required to report neglect
based on the person's viewing of or listening to a tape or recording only
if it is clear from viewing or listening to the tape or recording that neglect
has occurred.
(4)
If abuse or neglect of the resident is reported to the
facility and the facility requests a copy of any relevant tape or recording
made by an electronic monitoring device, the person who possesses the tape
or recording must provide the facility with a copy at the facility's expense.
The cost of the copy must not exceed the community standard. If the contents
of the tape or recording are transferred from the original technological format,
a qualified professional must do the transfer.
(5)
A person who sends more than one tape or recording to DHS
must identify each tape or recording on which the person believes an incident
of abuse or evidence of neglect may be found. Tapes or recordings should identify
the place on the tape or recording that an incident of abuse or evidence of
neglect may be found.
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 April 30, 2002.
TRD-200202669
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: July 1, 2002
Proposal publication date: February 8, 2002
For further information, please call: (512) 438-3734
40 TAC §19.1207
The new section is adopted under the Health and Safety Code,
Chapter 242, which authorizes the department to license and regulate convalescent
and nursing homes and related institutions.
The new section implements the Health and Safety Code, §242.505.
§19.1207.Prescription of Psychoactive Medication.
(a)
In this section, the following words and terms have the
following meanings, unless the context clearly indicates otherwise:
(1)
Medication-related emergency--A situation in which it is
immediately necessary to administer medication to a resident to prevent:
(A)
imminent probable death or substantial bodily harm (emotional
or physical) to the resident; or
(B)
imminent physical or emotional harm to another because
of threats, attempts, or other acts the resident overtly or continually makes
or commits.
(2)
Psychoactive medication--A medication prescribed for the
treatment of symptoms of psychosis or other severe mental or emotional disorders
and used to exercise an effect on the central nervous system to influence
and modify behavior, cognition, or affective state when treating the symptoms
of mental illness. The term includes the following categories when used as
described by this subdivision:
(A)
anti-psychotics or neuroleptics;
(B)
antidepressants;
(C)
agents for control of mania or depression;
(D)
anti-anxiety agents;
(E)
sedatives, hypnotics, or other sleep-promoting drugs; and
(F)
psychomotor stimulants.
(b)
A person may not administer a psychoactive medication to
a resident who does not consent to the prescription unless:
(1)
the resident is having a medication-related emergency;
or
(2)
the person authorized by law to consent on behalf of the
resident has consented to the prescription.
(c)
Consent to the prescription of psychoactive medication
given by a resident, or by a person authorized by law to consent on behalf
of the resident, is valid only if:
(1)
the consent is given voluntarily and without coercive or
undue influence;
(2)
the person who prescribes the medication, or that person's
designee, provides the resident and, if applicable, the person authorized
by law to consent on behalf of the resident, with the following information
in a single document identified as being for the purpose of consent to treatment
with psychoactive medication:
(A)
the specific condition to be treated;
(B)
the beneficial effects on that condition expected from
the medication;
(C)
the probable clinically significant side effects and risks
associated with the medication, as reported in widely available pharmacy databases
or the manufacturer's package insert; and
(D)
the proposed course of the medication;
(3)
the resident and, if appropriate, the person authorized
by law to consent on behalf of the resident, are informed in writing that
consent may be revoked; and
(4)
the consent is evidenced in the resident's clinical record
by a signed form prescribed by the facility, or by a statement of the person
who prescribes the medication or that person's designee, that documents consent
was given by the appropriate person and the circumstances under which the
consent was obtained.
(A)
Consent is valid until:
(i)
consent is withdrawn; or
(ii)
the practitioner has discontinued the medication.
(B)
For purposes of this rule, a medication will be considered
to be discontinued if therapy has been suspended for more than 70 days. If
the suspended therapy is resumed within the 70-day period, an oral explanation
of side effects should be documented in the clinical record.
(d)
The Health and Safety Code, Chapter 313, Consent to Medical
Treatment, provides guidance on treatment decisions when a resident is comatose,
incapacitated, or otherwise mentally or physically incapable of communication.
An ethics committee also may prove helpful in such situations.
(e)
A resident's refusal to consent to receive psychoactive
medication must be documented in the resident's clinical record.
(f)
If a person prescribes psychoactive medication to a resident
without the resident's consent because the resident is having a medication-related
emergency:
(1)
the person must document the necessity of the order in
the resident's clinical record in specific medical or behavioral terms; and
(2)
treatment of the resident with the psychoactive medication
must be provided in the manner, consistent with clinically appropriate medical
care, least restrictive of the resident's personal liberty.
(g)
A physician, or a person designated by the physician, is
not liable for civil damages or an administrative penalty and is not subject
to disciplinary action for a breach of confidentiality of medical information
for a disclosure of the information provided under subsection (c)(2) made
by the resident, or the person authorized by law to consent on behalf of the
resident, that occurs while the information is in the possession or control
of the resident or the person authorized by law to consent on behalf of the
resident.
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 April 30, 2002.
TRD-200202670
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: July 1, 2002
Proposal publication date: February 8, 2002
For further information, please call: (512) 438-3734
2.
LICENSING REMEDIES
40 TAC §19.2115
The Texas Department of Human Services (DHS) adopts an amendment
to §19.2115 in its Nursing Facility Requirements for Licensure and Medicaid
Certification chapter. The amendment is adopted without changes to the proposed
text published in the November 23, 2001, issue of the
Texas Register
(26 TexReg 9535).
Justification for the amendment is to comply with Senate Bill 1839, 77th
Legislature, which amended the law regarding amelioration of violations that
are subject to administrative penalties in nursing facilities and intermediate
care facilities for persons with mental retardation. The adopted amendment
outlines the conditions under which DHS must allow violators to use all or
part of the administrative penalty to correct violations. The amendment stipulates
the minimum elements that must be contained in a plan for amelioration.
DHS received no comments regarding adoption of the amendment.
The amendment is adopted under the Health and Safety Code, Chapter
242, which authorizes the department to license and regulate convalescent
and nursing homes and related institutions.
The amendment implements the Health and Safety Code, §242.071.
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 3, 2002.
TRD-200202763
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: June 1, 2002
Proposal publication date: November 23, 2001
For further information, please call: (512) 438-3734
The Texas Department of Human Services (DHS) adopts amendments to §90.19
and §90.236 in its Intermediate Care Facilities for Persons with Mental
Retardation or Related Conditions chapter. The amendments are adopted without
changes to the proposed text published in the November 23, 2001, issue of
the
Texas Register
(26 TexReg 9536).
Justification for the amendments is to incorporate the quality assurance
fee as a license for intermediate care facilities for persons with mental
retardation or related conditions (ICF/MR) as directed by the Health and Safety
Code, §§252.202-252.208.
DHS received one written comment from the Private Provider Association
of Texas. A summary of the comment and DHS's response follows.
Comment: The administrative penalty applied for failure to pay the quality
assurance fee should not be included in the administrative penalty schedule.
Response: The fine is an administrative penalty stated in the Health and
Safety Code, §252.205, and must be included on the schedule.
Subchapter B. APPLICATION PROCEDURES
40 TAC §90.19
The amendment is adopted under the Health and Safety Code,
Chapter 252, which authorizes the department to license and regulate intermediate
care facilities for persons with mental retardation or related conditions.
The amendment implements the Health and Safety Code, §§252.202-252.208.
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 3, 2002.
TRD-200202764
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: June 1, 2002
Proposal publication date: November 23, 2001
For further information, please call: (512) 438-3734
Subchapter M. PHYSICIAN SERVICES
Subchapter V. ENFORCEMENT
Chapter 90.
INTERMEDIATE CARE FACILITIES FOR PERSONS WITH MENTAL RETARDATION OR RELATED CONDITIONS
Subchapter H. ENFORCEMENT