Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 19.
NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
The Texas Department of Human Services (DHS) proposes to amend §19.101,
concerning definitions; §19.2302, concerning requirements for a contracted
Medicaid provider; and §19.2320, concerning medical transportation; and
proposes new §19.1113, concerning paid feeding assistants; and §19.1115,
concerning requirements for training of paid feeding assistants, in its Nursing
Facility Requirements for Licensure and Medicaid Certification chapter.
The purpose of the amendments and the new sections is to comply with federal
guidelines and to implement changes mandated by the 78th Legislature. The
amendment to §19.101 adds the definition of "paid feeding assistant"
and revises the definition of "nurse aide" to indicate that it does not include
paid feeding assistants. New §19.1113 states the facility may use paid
feeding assistants if the feeding assistant has successfully completed a state-approved
training course, works under the supervision of a registered nurse or a licensed
vocational nurse, only feeds residents who do not have complicated feeding
problems, and only feeds residents in the dining room. New §19.1115 outlines
training course contents, length of course, and required record maintenance
for paid feeding assistants. The amendment to §19.2302 adds a requirement
for facilities to comply with solicitation guidelines in Occupations Code,
Chapter 102, as required by the Government Code, §531.116. The amendment
to §19.2320 holds the facility responsible for payment of nonemergency
ambulance services when the facility fails to obtain prior authorization.
The facility must make payment if presented with the bill that was denied
under the medical assistance program.
Gordon Taylor, Chief Financial Officer, has determined that, for the first
five-year period the proposed sections are in effect, there are no fiscal
implications for state or local government as a result of enforcing or administering
the sections.
Bettye M. Mitchell, Deputy Commissioner for Long Term Care, has determined
that, for each year of the first five years the sections are in effect, the
public benefits anticipated as a result of enforcing the sections are that:
(1) facility residents who require assistance with feeding will be fed by
individuals who have been trained in proper feeding techniques and are knowledgeable
about other aspects of care related to feeding so that residents will be fed
in a safe manner; (2) residents will be protected from solicitation, and client
acceptance for services will not be based on remuneration of any kind; (3)
facilities will have an incentive to obtain prior authorization for nonemergency
ambulance transportation, and ambulance companies will receive payment in
a more timely manner for services rendered; and (4) DHS will have rules that
comply with current state law.
There is a potential adverse economic effect and a potential positive economic
effect on small or micro businesses, or on businesses of any size, as a result
of enforcing or administering the sections. Adding rules to allow for paid
feeding assistants has the potential to improve residents' food intake and
free nurse aides to perform other tasks. There should be no additional costs
to facilities associated with the implementation of paid feeding assistants
as facilities are not required to hire paid feeding assistants. Facilities
may be able to save money by not having to hire additional nurse aides or
other staff at a higher rate of pay for the task of feeding residents. No
costs will be associated with nonemergency ambulance transportation when the
facility receives prior authorization. The cost of nonemergency ambulance
transportation will be paid by the facility if prior authorization is not
obtained. There are no costs associated with meeting the requirements of Occupations
Code, Chapter 102, pertaining to solicitation. There is no anticipated economic
cost to persons who are required to comply with the proposed sections. There
is no anticipated effect on local employment in geographic areas affected
by these sections.
Questions about the content of this proposal may be directed to Marcia
Bowen at (512) 438- 3529 in DHS's Long Term Care-Regulatory Policy section.
Written comments on the proposal may be submitted to Supervisor, Rules Unit-070,
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 Government Code, DHS has determined that
Chapter 2007 of the Government Code does not apply to these rules. Accordingly,
DHS is not required to complete a takings impact assessment regarding these
rules.
These rules are promulgated by DHS. This state agency is currently scheduled
to be merged sometime in 2004 into two successor agencies, the Texas Health
and Human Services Commission (HHSC) and the Texas Department of Aging and
Disability Services. This change is mandated by legislation passed by the
78th Legislature.
At the time of that transition, HHSC will have complete authority for these
and all related rules. This may result in these rules being changed from one
chapter of the Texas Administrative Code to another or other changes.
Subchapter B. DEFINITIONS
40 TAC §19.101
The amendment is proposed under the Human Resources Code,
Chapters 22 and 32, and the Health and Safety Code, Chapter 242, which authorizes
DHS to administer public and medical assistance programs and to license and
regulate convalescent and nursing homes and related institutions; and under
Government Code, §531.021, which provides the Texas Health and Human
Services Commission with the authority to administer federal medical assistance
funds.
The amendment affects the Human Resources Code, §§22.0001-22.040
and §§32.001-32.067, and the Health and Safety Code, §§242.001-242.852.
§19.101.Definitions.
The following words and terms, when used in this chapter, have the
following meanings, unless the context clearly indicates otherwise.
(1)-(83)
(No change.)
(84)
Nurse aide--An individual who provides nursing or nursing-related
services to residents in a facility under the supervision of a licensed nurse.
This definition does not include an individual who is a licensed health professional,
a registered dietitian, or someone who volunteers such services without pay.
A nurse aide is not authorized to provide nursing and/or nursing-related services
for which a license or registration is required under state law.
Nurse
aides do not include those individuals who furnish services to residents only
as paid feeding assistants.
(85)-(96)
(No change.)
(97)
Paid feeding assistant--An
individual who meets the requirements of §19.1113 of this chapter (relating
to Paid Feeding Assistants) and who is paid to feed residents by a facility
or who is used under an arrangement with another agency or organization.
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(A)
A graduate of a physician assistant training program who
is accredited by the Committee on Allied Health Education and Accreditation
of the Council on Medical Education of the American Medical Association, or
(B)
A person who has passed the examination given by the National
Commission on Certification of Physician Assistants. According to federal
requirements (42 CFR §491.2) a physician assistant is a person who meets
the applicable state requirements governing the qualifications for assistant
to primary care physicians, and who meets at least one of the following conditions:
(i)
is currently certified by the National Commission on Certification
of Physician Assistants to assist primary care physicians; or
(ii)
has satisfactorily completed a program for preparing physician
assistants that:
(I)
was at least one academic year in length;
(II)
consisted of supervised clinical practice and at least
four months (in the aggregate) of classroom instruction directed toward preparing
students to deliver health care; and
(III)
was accredited by the American Medical Association's
Committee on Allied Health Education and Accreditation; or
(C)
A person who has satisfactorily completed a formal educational
program for preparing physician assistants who does not meet the requirements
of paragraph (d)(2), 42 CFR §491.2, and has been assisting primary care
physicians for a total of 12 months during the 18-month period immediately
preceding July 14, 1978.
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(A)
a bachelor's degree in social work, or
(B)
similar professional qualifications, which include a minimum
educational requirement of a bachelor's degree and one year experience met
by employment providing social services in a health care setting.
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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 5, 2004.
TRD-200401730
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 18, 2004
For further information, please call: (512) 438-3734
(97)
] PASARR--Preadmission Screening
and Resident Review.
(98)
] Palliative Plan of Care--Appropriate
medical and nursing care for residents with advanced and progressive diseases
for whom the focus of care is controlling pain and symptoms while maintaining
optimum quality of life.
(99)
] Patient care-related electrical
appliance--An electrical appliance that is intended to be used for diagnostic,
therapeutic, or monitoring purposes in a patient care area, as defined in
Standard 99 of the National Fire Protection Association.
(100)
] Person--An individual,
firm, partnership, corporation, association, joint stock company, limited
partnership, limited liability company, or any other legal entity, including
a legal successor of those entities.
(101)
] Person with a disclosable
interest--A person with a disclosable interest is any person who owns at least
a 5.0% interest in any corporation, partnership, or other business entity
that is required to be licensed under Health and Safety Code, Chapter 242.
A person with a disclosable interest does not include a bank, savings and
loan, savings bank, trust company, building and loan association, credit union,
individual loan and thrift company, investment banking firm, or insurance
company, unless these entities participate in the management of the facility.
(102)
] Pharmacist--An individual,
licensed by the Texas State Board of Pharmacy to practice pharmacy, who prepares
and dispenses medications prescribed by a physician, dentist, or podiatrist.
(103)
] Physical restraint--See
Restraints (physical).
(104)
] Physician--A doctor of
medicine or osteopathy currently licensed by the Texas State Board of Medical
Examiners.
(105)
] Physician assistant (PA)--
(106)
] Podiatrist--A practitioner
whose profession encompasses the care and treatment of feet who is licensed
by the Texas State Board of Podiatry Examiners.
(107)
] Poison--Any substance that
federal or state regulations require the manufacturer to label as a poison
and is to be used externally by the consumer from the original manufacturer's
container. Drugs to be taken internally that contain the manufacturer's poison
label, but are dispensed by a pharmacist only by or on the prescription order
of a physician, are not considered a poison, unless regulations specifically
require poison labeling by the pharmacist.
(108)
] Practitioner-- A physician,
podiatrist, dentist, or an advanced practice nurse or physician assistant
to whom a physician has delegated authority to sign a prescription order,
when relating to pharmacy services.
(109)
] Preadmission medical necessity
determination--The determination of need for nursing facility care before
the individual's admission into the nursing facility. This determination is
valid until admission into a nursing facility or up to 30 days from the effective
date.
(110)
] PRN (pro re nata)--As needed.
(111)
] Provider--The individual
or legal business entity that is contractually responsible for providing Medicaid
services under an agreement with DHS.
(112)
] Psychoactive drugs--Drugs
prescribed to control mood, mental status, or behavior.
(113)
] Qualified surveyor--An
employee of DHS who has completed state and federal training on the survey
process and passed a federal standardized exam.
(114)
] Quality assessment and
assurance committee--A group of health care professionals in a facility who
develop and implement appropriate action to identify and rectify substandard
care and deficient facility practice.
(115)
] Quality-of-care monitor--A
registered nurse, pharmacist, or dietitian employed by DHS who is trained
and experienced in long-term care facility regulation, standards of practice
in long-term care, and evaluation of resident care, and functions independently
of DHS Long-Term Care-Regulatory.
(116)
] Recipient--Any individual
residing in a Medicaid certified facility or a Medicaid certified distinct
part of a facility whose daily vendor rate is paid by Medicaid.
(117)
] Registered nurse (RN)--An
individual currently licensed by the Board of Nurse Examiners for the State
of Texas as a Registered Nurse in the State of Texas.
(118)
] Reimbursement methodology--The
method by which DHS determines nursing facility per diem rates.
(119)
] Remodeling--The construction,
removal, or relocation of walls and partitions, the construction of foundations,
floors, or ceiling-roof assemblies, the expanding or altering of safety systems
(including, but not limited to, sprinkler, fire alarm, and emergency systems)
or the conversion of space in a facility to a different use.
(120)
] Renovation--The restoration
to a former better state by cleaning, repairing, or rebuilding, including,
but not limited to, routine maintenance, repairs, equipment replacement, painting.
(121)
] Representative payee--A
person designated by the Social Security Administration to receive and disburse
benefits, act in the best interest of the beneficiary, and ensure that benefits
will be used according to the beneficiary's needs.
(122)
] Resident--Any individual
residing in a nursing facility.
(123)
] Resident assessment instrument
(RAI)--An assessment tool used to conduct comprehensive, accurate, standardized,
and reproducible assessments of each resident's functional capacity as specified
by the Secretary of the U.S. Department of Health and Human Services. At a
minimum, this instrument must consist of the Minimum Data Set (MDS) core
elements as specified by the Centers for Medicare & Medicaid Services
(CMS); utilization guidelines; and Resident Assessment Protocols (RAPS).
(124)
] Responsible party--An individual
authorized by the resident to act for him as an official delegate or agent.
Responsible party is usually a family member or relative, but may be a legal
guardian or other individual. Authorization may be in writing or verbal.
(125)
] Restraints (chemical)--Psychoactive
drugs administered for the purposes of discipline, or convenience, and not
required to treat the resident's medical symptoms.
(126)
] Restraints (physical)--Any
manual method, or physical or mechanical device, material or equipment attached,
or adjacent to the resident's body, that the individual cannot remove easily
which restricts freedom of movement or normal access to one's body.
(127)
] Secretary--Secretary of
Health and Human Services.
(128)
] Services required on a
regular basis--Services which are provided at fixed or recurring intervals
and are needed so frequently that it would be impractical to provide the services
in a home or family setting. Services required on a regular basis include
continuous or periodic nursing observation, assessment, and intervention in
all areas of resident care.
(129)
] SNF--A skilled nursing
facility or distinct part of a facility that participates in the Medicare
program. SNF requirements apply when a certified facility is billing Medicare
for a resident's per diem rate.
(130)
] Social Security Administration--Federal
agency for administration of social security benefits. Local social security
administration offices take applications for Medicare, assist beneficiaries
file claims, and provide information about the Medicare program.
(131)
] Social worker--A qualified
social worker is an individual who is licensed, or provisionally licensed,
by the Texas State Board of Social Work Examiners as prescribed by Chapter
50 of the Human Resources Code and who has at least:
(132)
] Standards--The minimum
conditions, requirements, and criteria established in this chapter with which
an institution must comply to be licensed under this chapter.
(133)
] State plan--A formal plan
for the medical assistance program, submitted to CMS, in which the State of
Texas agrees to administer the program in accordance with the provisions of
the State Plan, the requirements of Titles XVIII and XIX, and all applicable
federal regulations and other official issuances of the U.S. Department of
Health and Human Services.
(134)
] State survey agency--The
Texas Department of Human Services is the agency, which through contractual
agreement with the single state agency, is designated as the agency responsible
for Title XIX survey and certification of nursing facilities and utilization
review in the Title XIX nursing facilities.
(135)
] Supervising physician--A
physician who assumes responsibility and legal liability for services rendered
by a physician assistant (PA) and has been approved by the Texas State Board
of Medical Examiners to supervise services rendered by specific PAs. A supervising
physician may also be a physician who provides general supervision of a nurse
practitioner providing services in a nursing facility.
(136)
] Supervision--General supervision,
unless otherwise identified.
(137)
] Supervision (direct)--Authoritative
procedural guidance by a qualified person for the accomplishment of a function
or activity within his sphere of competence. If the person being supervised
does not meet assistant-level qualifications specified in this chapter and
in federal regulations, the supervisor must be on the premises and directly
supervising.
(138)
] Supervision (general)--Authoritative
procedural guidance by a qualified person for the accomplishment of a function
or activity within his sphere of competence. The person being supervised must
have access to the licensed and/or qualified person providing the supervision.
(139)
] Supervision (intermittent)--Authoritative
procedural guidance by a qualified person for the accomplishment of a function
or activity within his sphere of competence, with initial direction and periodic
inspection of the actual act of accomplishing the function or activity. The
person being supervised must have access to the licensed and/or qualified
person providing the supervision.
(140)
] TDMHMR--Texas Department
of Mental Health and Mental Retardation.
(141)
]
Texas Register
--A publication of the Texas Register Publications Section
of the Office of the Secretary of State that contains emergency, proposed,
withdrawn, and adopted rules issued by Texas state agencies. The
Texas Register
was established by the Administrative Procedure and
Texas Register Act of 1975.
(142)
] Therapeutic diet--A diet
ordered by a physician as part of treatment for a disease or clinical condition,
in order to eliminate, decrease, or increase certain substances in the diet
or to provide food which has been altered to make it easier for the resident
to eat.
(143)
] Therapy week--A seven-day
period beginning the first day rehabilitation therapy or restorative nursing
care is given. All subsequent therapy weeks for a particular individual will
begin on that day of the week.
(144)
] Threatened violation--A
situation that, unless immediate steps are taken to correct, may cause injury
or harm to a resident's health and safety.
(145)
] TILE--Texas Index for Level
of Effort; an index of 11 categories plus a default that consists of relative
resource utilization groups. The index determines where a nursing facility
client fits based upon service and care requirements. It determines the daily
rate to be paid on behalf of the client.
(146)
] TILE 202 restorative nursing--Nursing
care and practices, based on a plan of care developed by the restorative team,
designed to maintain or improve on goals achieved during physical or occupational
therapy. Examples of TILE 202 restorative nursing include training and skill
practice in self-feeding, bed mobility, transfers, ambulation, dressing or
grooming, and active range of motion.
(147)
] TILE error--Inaccuracies
in a CARE form assessment of a Medicaid recipient that result in an incorrect
TILE classification.
(148)
] Title II--Retirement Survivors'
Disability Insurance of the Social Security Act.
(149)
] Title XVI--Supplemental
Security Income (SSI) of the Social Security Act.
(150)
] Title XVIII--Medicare provisions
of the Social Security Act.
(151)
] Title XIX--Medicaid provisions
of the Social Security Act.
(152)
] Total health status--Includes
functional status, medical care, nursing care, nutritional status, rehabilitation
and restorative potential, activities potential, cognitive status, oral health
status, psychosocial status, and sensory and physical impairments.
(153)
] UAR--The Texas Health and
Human Services Commission's (HHSC's) Utilization and Assessment Review Section.
(154)
] Uniform data set--See Resident
Assessment Instrument (RAI).
(155)
] Universal precautions--The
use of barrier and other precautions by long- term care facility employees
and/or contract agents to prevent the spread of blood-borne diseases.
(156)
] Utilization review committee--The
group of health care professionals contracted by DHS to make individual determinations
of medical necessity regarding nursing facility care. The Utilization Review
Committee consists of physicians and registered nurses.
(157)
] Vendor payment--Payment
made by DHS on a daily-rate basis for services delivered to recipients in
Medicaid-certified nursing facilities. Vendor payment is based on the nursing
facility's claim approval of the DHS-generated Nursing Facility Billing Statement
to DHS. The Nursing Facility Billing Statement, subject to adjustments and
corrections, is prepared from information submitted by the nursing facility,
which is currently on file in the computer system as of the billing date.
Vendor payment is made at periodic intervals, but not less than once per month
for services rendered during the previous billing cycle.
(158)
] Working day--Any 24-hour
period, Monday through Friday, excluding state and federal holidays.
Subchapter L. DIETARY SERVICES