Part 1.
DEPARTMENT OF AGING AND DISABILITY SERVICES
Chapter 97.
LICENSING STANDARDS FOR HOME AND COMMUNITY SUPPORT SERVICES AGENCIES
The Health and Human Services Commission (HHSC), on behalf of the
Department of Aging and Disability Services (DADS), adopts amendments to §§97.1
- 97.3, 97.201, 97.213 - 97.220, 97.241, 97.242, 97.245 - 97.247, 97.249,
97.250, 97.252, 97.253, 97.257, 97.281 - 97.283, 97.285, 97.287, 97.288, 97.290,
97.291, 97.298 - 97.301, 97.321, 97.322, and 97.603; adopts new §§97.11,
97.13, 97.15, 97.17, 97.19, 97.21, 97.23, 97.25, 97.27, 97.29, 97.31, 97.210,
97.501, 97.503, 97.505, 97.507, 97.509, 97.521, 97.523, 97.525, 97.527, 97.601,
97.602, and 97.604; and adopts the repeal of §§97.11 - 97.16, 97.221,
97.501, 97.502, 97.601, 97.602, and 97.604 in Chapter 97, governing Licensing
Standards for Home and Community Support Services Agencies. The amendments
to §§97.2, 97.217, 97.220, 97.241, 97.250, 97.282, 97.285, 97.288,
97.291, 97.300, 97.321, and 97.322, and new §§97.11, 97.17, 97.23,
97.27, 97.29, 97.210, 97.501, 97.521, 97.523, 97.525, 97.601, and 97.602 are
adopted with changes to the proposed text published in the October 14, 2005,
issue of the
Texas Register
(30 TexReg 6609).
The amendments to §§97.1, 97.3, 97.201, 97.213 - 97.216, 97.218,
97.219, 97.242, 97.245 - 97.247, 97.249, 97.252, 97.253, 97.257, 97.281, 97.283,
97.287, 97.290, 97.298, 97.299, 97.301, and 97.603; new §§97.13,
97.15, 97.19, 97.21, 97.25, 97.31, 97.503, 97.505, 97.507, 97.509, 97.527,
and 97.604; and repeal of §§97.11 - 97.16, 97.221, 97.501, 97.502,
97.601, 97.602, and 97.604 are adopted without changes to the proposed text.
The amendments, new sections, and repeal are adopted so that the rules
will be better organized and easier for the public and home and community
support services agencies (HCSSAs) to locate and understand. The amendments
correct references to other rules, update statutory citations, and update
state agency names. References to the Texas Department of Human Services are
amended to the Department of Aging and Disability Services to reflect the
name of the state agency that has the authority to adopt rules for licensing
and regulation of HCSSAs. The repeal and new sections update provisions regarding
criteria and eligibility for licensing, application, license issuance, surveys,
and enforcement.
The amendment to §97.2 added, deleted, and amended definitions to
clarify terminology used throughout the chapter.
New Subchapter B was reorganized to better explain criteria and eligibility
for licensing, application procedures, and issuance of a license.
New §97.210 added the requirement for an agency to adopt and enforce
a written policy identifying the HCSSA's operating hours and to post notice
of contact information if the person in charge of the HCSSA is away during
agency operating hours. The amendment to §97.217 requires a HCSSA to
notify DADS of a voluntary suspension of operations and the resumption of
operations. The repeal of §97.221 deletes duplicate information that
is included in new §97.25 concerning application procedures and requirements
for a change of ownership.
The amendment to §97.241 requires that the license holder maintain
accurate documentation and comply with enforcement orders. The amendment to §97.246
requires a HCSSA to conduct a criminal history check, an employee misconduct
registry check, and a nurse aide registry check on each unlicensed person
having face-to-face contact with clients who is employed by or volunteers
for the HCSSA. The amendment to §97.249 requires a HCSSA to notify DADS
and appropriate enforcement agencies immediately if there is cause to believe
that a client has been abused, neglected, or exploited by an individual directly
employed by the HCSSA, a contractor, or a volunteer. The amendment to §97.250
defines the written policy a HCSSA must adopt and enforce for a complaint
investigation, including an investigation for abuse, neglect, and exploitation
and requires the HCSSA to submit a written report no later than 10 days after
reporting the act. The amendment to §97.253 requires a HCSSA to state
whether it conducts drug testing. If the HCSSA does conduct drug testing,
the HCSSA must describe the method and provide a copy of the policy to anyone
who applies for services or requests a copy from the HCSSA.
The amendment to §97.287 requires a HCSSA's Quality Assessment and
Performance Improvement Program to include components that measure the effectiveness
and safety of all services provided by the HCSSA. The amendment to §97.290
requires a HCSSA to obtain and keep in the client's file a written agreement
for backup services if the backup service provider is an individual other
than a HCSSA employee or contractor. The amendment to §97.300 clarifies
the applicability of certain requirements relating to medication administration
if the HCSSA staff administers medications. The amendment to §97.301
explains the requirements for a HCSSA if it is using a physician's stamped
signature for a signed paper record.
New §97.505 states that DADS will not announce or give prior notice
to a HCSSA when conducting a survey, including an initial survey. New §97.521
requires a HCSSA to admit at least one client, with that client having been
provided services in either the licensed home health and licensed-only hospice
category, and initiate services within six months of receiving an initial
license. A HCSSA must also submit a written request for an initial survey
at least six months before the expiration date of the initial license.
New §97.602 includes updated administrative penalty charts in subsection
(e)(1) and (2) to allow DADS to add certain violations in areas that jeopardize
the health and safety of clients.
DADS received 52 written comments from the Texas Association for Home Care
and the Visiting Nurses Association. A summary of each comment and the responses
follow.
Comment: Concerning §97.2(40)(A), a commenter asked why the definition
for nursing as a subcategory of home health service specifies that it includes
blood pressure monitoring and diabetes treatment. The commenter asked why
are these specifically singled out and whether they need to be.
Response: The description of nursing as a type of home health service includes
blood pressure monitoring and diabetes treatment because that is how "home
health service" is defined in Health and Safety Code §142.001(13). The
rule language was not changed in response to this comment.
Comment: Concerning §97.2(46), a commenter requested the definition
for "inpatient unit" could be improved by stating "a facility that provides
a continuum of hospice services including medical or nursing care to clients
admitted into the unit and that is in compliance with:."
Concerning §97.2(46)(A), the commenter suggested that "hospice" be
inserted before "inpatient."
Response: Inpatient unit is defined in Health and Safety Code, §142.001(16),
and the rule language mirrors this definition. The rule language was not changed
in response to this comment.
Comment: Concerning the definition of "manager" at §97.2(50), a commenter
suggested that "independent" be inserted before "contractual relationship"
because an employee can have a contractual relationship with a HCSSA.
Response: The agency disagrees with the comment because the suggested language
would exclude a non-contracted employee from being a manager. However, the
agency has changed the rule language to clarify that a manager for a HCSSA
may be an employee or independent contractor.
Comment: Concerning §97.11(g), a commenter believed the language is
beyond the scope of the statute, Health and Safety Code, §142.011, and
does not allow for mitigating circumstances in the application review process.
The commenter asks that "may" be used as the statute is intended to be permissive
rather than mandatory. The commenter believes that mandatory language is beyond
the statute.
Response: The agency does not agree that mandatory language is beyond its
statutory authority. The statute gives the agency permission to deny a license
application and this rule sets out the agency's policy decision on the denial
of license applications. The agency will not, under any circumstances, grant
a license to an applicant if the listed persons have a history of any of the
circumstances described in §97.11(g). The rule language was not changed
in response to this comment.
Comment: Concerning §97.11(g) and §97.601(c), a commenter expressed
that the language as proposed that makes reference to a "controlling person"
does not adequately provide guidance to the license holder as to the individuals
or positions subject to a criminal background check. The commenter suggests
that individuals who are subject to a criminal background check be specifically
listed by position in the rule so that the applicability is clear.
Response: The agency does not agree with the comment. The term "controlling
person" does not correspond directly to specific positions within the organization
of a HCSSA; rather, it is defined as any person with the ability, acting alone
or with others, to directly or indirectly influence, direct, or cause the
direction of the management, expenditure of money, or policies of a HCSSA
or other person. The agency does not wish to limit the range of persons who
meet the definition of "controlling person" in §97.2(25) by adding a
list of specific positions within a HCSSA. This requirement is consistent
with the requirements for other provider types regulated by DADS. The rule
language was not changed in response to this comment.
Comment: Concerning §97.11(g)(1)(A) and §97.601(c), a commenter
felt that a list, as provided by the commenter, of convictions barring employment
and that may result in denial, suspension, or revocation of the license should
be expanded to include certain convictions not specifically referenced in
Health and Safety Code, Chapter 250.
Response: The agency agrees with the comment and expanded the list in §97.11(g)(1)(A)
to clarify the criminal acts and convictions that are bars to licensure at
the time of application. The agency moved the provision regarding a criminal
conviction from §97.601(c)(1)(D) to §97.241(b) to more accurately
reflect that this is a standard that must be met by a HCSSA during the licensure
period and expanded the list of convictions that are prohibited during the
licensure period. The agency has not included the language prohibiting any
conviction regarding moral turpitude provided in the commenter's list, as
it has been difficult to define in practice. The agency has added a felony
involving practicing any health-related profession without a required license.
Comment: Concerning §97.13(a)(1) and (2), a commenter expressed that
the current availability of presurvey conference course times is limited and,
therefore, the alternate administrator and alternate supervisor should not
be required to attend the presurvey conference as it could significantly delay
the license of a new HCSSA. It was also noted that currently seats are limited
to two per HCSSA.
Response: The agency agrees that current availability of presurvey conference
course times is limited and that seats are limited to two per HCSSA. However,
the alternate administrator and alternate supervising nurse in a new HCSSA
must meet the same criteria as the administrator and supervising nurse and
this includes completing a presurvey conference. When this rule is adopted,
DADS will expand presurvey conference availability to meet the needs of new
HCSSAs, giving priority to a HCSSA pending initial licensure over those administrators
and supervising nurses who may be attending presurvey conference as continuing
education. The rule language was not changed in response to this comment.
Comment: Concerning §97.17(e)(2), a commenter suggested that the requirement
remain that the application must be postmarked at least 30 days before the
expiration date of the license and not received by DADS as a HCSSA cannot
be responsible for the U.S. mail.
Response: The agency changed the rule as requested in response to this
comment. The agency intends to continue further discussion with stakeholders
to determine what should be considered a timely submission of a HCSSA's renewal
application.
Comment: Concerning §97.17(e)(3), a commenter noted that originals
are often printed from an electronic printer and asked if these documents
need to be notarized. The commenter suggested that "original" be defined.
Response: The agency agrees that electronic reproduction of documents is
more prevalent today. The agency requires notarization of a copy to ensure
that the applicant attests that the copy is true and correct. Any reproduction
of the original source document is considered a copy. The agency does not
agree that "original" needs to be defined. No change in the rule was made
in response to this comment.
Comment: Concerning §97.17(g), a commenter stated that the provision
does not appear to be workable. The commenter asked if a HCSSA would have
to cease operations upon expiration of the license, with no grace period,
if DADS did not receive the application at least 30 days before its expiration.
The commenter suggested that there should be a provision for a grace period
if a HCSSA has notified DADS that it wishes to diligently pursue renewal,
even if untimely, and does so.
Response: The agency does not agree with the comment and the rule language
was not changed in response to this comment. A HCSSA that does not file a
timely application has a 90-day grace period, as provided in §97.17(g)(2),
to pay a late renewal fee with a renewal application. However, the HCSSA must
cease operation on the date the license expires.
Comment: Concerning §97.17(h)(4), a commenter asked if a license holder's
spouse would need a power of attorney to file the renewal form since this
is described in §97.17(h)(1).
Response: The agency agrees that spouses should not be treated differently
and changed §97.17(h)(1) and (4) in response to this comment. The rule
will state that an individual having power of attorney from the license holder
or other authority to act on behalf of the license holder may request renewal
of the license and a copy of the power of attorney or other authority must
be filed with DADS.
Comment: Concerning §97.19(d), a commenter believed the language is
beyond the scope of the statute, Health and Safety Code, §142.011, and
does not allow for mitigating circumstances in the application review process.
The commenter asks that "may" be used as the statute is intended to be permissive
rather than mandatory. The commenter believes that mandatory language is beyond
the statute.
Response: The agency does not agree that mandatory language is beyond its
statutory authority. The statute gives the agency permission to deny an application
to renew a license and this rule sets out the agency's policy decision on
the denial of renewal applications. The agency will not approve an application
to renew a license under the circumstances described in §97.19(d). The
rule language was not changed in response to this comment.
Comment: Concerning §97.23(b)(1), a commenter suggested that the sentence
could be amended to add "a change" before sole proprietorship.
Response: The agency does not agree with the comment because the suggested
revision does not improve the readability of the rule. No change in the rule
was made in response to this comment.
Comment: Concerning §97.23(b)(2), a commenter noted that "taxpayer"
is one word.
Response: The agency agrees with the comment and has made the requested
change to the rule.
Comment: Concerning §97.27(a), a commenter noted that the proposed
language did not accurately identify the categories of licensure to which
the section applies.
Response: The agency agrees with the comment and has specified the categories
of licensure intended to be covered by the section.
Comment: Concerning §97.27(g), a commenter requested that rule language
reflect the Centers for Medicare and Medicaid Services' (CMS's) process for
notifications of approval and denial of a branch application to a HCSSA licensed
to provide licensed and certified home health services. This rule language
should be the same as listed in §97.29(g) for alternate delivery sites.
Response: The agency cannot include CMS procedures in this chapter, as
the agency does not have the authority to bind CMS to state licensing rules.
No change has been made to §97.27(g) in response to this comment; however,
the agency has made a change to §97.29(g) to delete the CMS procedures
in that section.
Comment: Concerning §97.29(a)(3), a commenter requested that the agency
remove language requiring a HCSSA to demonstrate methods for adequate supervision
of an alternate delivery site during the application process. The commenter
noted that the agency has no written standards to gauge adequate supervision
and oversight and that this may lead to subjective denials.
Response: The agency agrees to delete the proposed language as requested
pending further development of standards for adequate supervision and oversight
of an alternate delivery site.
Comment: Concerning §97.217(b)(1), a commenter asked if a HCSSA has
voluntarily suspended its normal business operations, why a voluntary suspension
would not begin when the HCSSA knowingly, which the word "voluntarily" suggests,
suspends those operations.
Response: The agency chose the 10-day threshold to define a voluntary suspension
of operations as a method to exclude those more frequent, temporary closures
that sometimes occur with smaller HCSSAs. The agency did not wish to make
a rule that would be particularly burdensome for small businesses that may
close for brief amounts of time. The rule language was not changed in response
to this comment.
Comment: Concerning §97.217(b)(2), a commenter expressed that this
subsection is not worded correctly, as the words "at least" should be replaced
by the words "no later than" or similar wording.
Response: The agency agrees with the comment and has changed the rule to
state that a HCSSA must notify the Home and Community Support Services Agencies
Licensing Unit in writing no later than seven days after resuming operations.
Comment: Concerning §97.218(a), a commenter expressed that "immediately"
does not provide a measurable time frame. Perhaps, instead of immediately,
a 10-day time frame could be substituted to give a definitive deadline.
Response: The agency disagrees with this comment and the rule language
was not changed in response to this comment. The intent is for a HCSSA to
notify DADS in a more timely manner than within 10 days. Also, this is not
new language; it exists in the current rule.
Comment: Concerning §97.218(b), a commenter requested that, prior
to enforcement of this rule, DADS make its Criminal History Check Consent
form accessible online.
Response: The HCSSA application packet including this form is not currently
online because existing rules require that the application be requested in
writing. DADS will consider making this form available online. No change in
the rule was made in response to this comment.
Comment: Concerning §97.220(a)(2), a commenter noted there may be,
as there currently is, an emergency when a HCSSA might provide services outside
of its service area. Language should be added for exceptions such as "unless
otherwise permitted by these regulations in the event of an emergency."
Response: The agency does not agree with the comment. Section 97.220(c)(2)
allows for an extension of a HCSSA's service area without 30 days notice in
the event of an emergency. The rule language was not changed in response to
this comment.
Comment: Concerning §§97.220(c)(1) and (2), 97.321(c)(3)(A),
and 97.322(c)(3)(A), a commenter believed that a requirement for a HCSSA to
request expansion of a service area may lead to arbitrary denials of the expansion
and wants the language to require only a notice. The commenter cited Senate
Bill 983 of the 76th Texas Legislature as saying that it specifically stated
that the agency was not to limit service area based on time or distance.
Response: The agency does not agree that a requirement for a HCSSA to request
expansion of a service area may lead to arbitrary denials of the expansion.
The proposed rule language was intended to prohibit expansion when certain
enforcement actions were pending against the HCSSA. Also, Senate Bill 983
of the 76th legislative session asked HHSC to contact the Centers for Medicare
and Medicaid Services (CMS), formerly the Health Care Financing Administration,
to request that CMS adopt certain rules concerning HCSSAs. It did not cover
state licensing rules. However, the rule language was changed in response
to this request to require only a notice. The agency intends to continue further
discussion with external stakeholders on this issue.
Comment: Concerning §97.245(b)(5), a commenter asked whether criminal
history checks and searches of the nurse aide registry and the employee misconduct
registry include independent contractor personnel. Section 97.245 seems to
include training requirements for all personnel, including independent contractors,
so for safety purposes should these checks not also be conducted.
Response: The agency does not require a HCSSA to perform a criminal history
check on employees, volunteers, or contractors of an independent contractor.
No change in the rule was made in response to this comment.
Comment: Concerning §97.249(c), a commenter asked in addition to the
word "immediately" perhaps a "no later than" time frame should be added to
ensure timely communication.
Response: The agency's intent is that a report of abuse, neglect, and exploitation
be made as soon as the reporter has "cause to believe" an act of abuse, neglect,
or exploitation has occurred as defined in §97.249(a)(2). This is consistent
with current rules for other long-term care programs. Using a time frame other
than "immediately" could cause reporters to wait to report the act, directly
and negatively affecting client health and safety. The rule was not changed
in response to this comment.
Comment: Concerning §97.250(a), a commenter noted that a HCSSA's policies
must address how it handles both complaints and reports of abuse, neglect,
and exploitation. This is not an "either/or" requirement. If "and" is used,
it makes it very clear that HCSSA's policy must address both investigation
requirements as outlined in the rule under subsections (b) and (c).
Response: The agency agrees with the comment and made a change as suggested
to §97.250(a).
Comment: Concerning §97.250(b), a commenter suggested adding the words
"For reports of" to subsection (b) to further clarify that the process outlined
in paragraphs (1) - (3) is exclusive to the investigation of reports of abuse,
neglect, and exploitation and is not applicable to investigations of complaints.
Response: The agency agrees with the comment and made a change to §97.250(b)
to reflect that paragraphs (1) - (3) apply only to reports of abuse, neglect,
and exploitation.
Comment: Concerning §97.253(d), a commenter asked whether a HCSSA's
actual drug testing policy, which might be hard for non-HCSSA personnel to
read, or an explanation of that policy must be provided. The commenter favored
an explanation of the policy.
Response: The agency disagrees with the comment and the rule language was
not changed in response to this comment. The rule was rewritten to require
disclosure by the HCSSA of the HCSSA's policies. While there is no requirement
in the chapter regarding the quality of HCSSA policies, the policies should
be clearly written, in a manner that clients and employees can understand.
This rule is based on Health and Safety Code, §142.007, which requires
a HCSSA to provide to the following persons a written statement describing
the HCSSA's policy for the drug testing of employees who have direct contact
with clients: (1) each person applying for services from the HCSSA; and (2)
any person requesting the information. The agency's interpretation of §142.007
requires the HCSSA to provide the actual policy rather than an explanation
of the policy because the agency thinks it is more useful to persons receiving
the information.
Comment: Concerning §97.282(d), a commenter noted that this requirement
applies to every category of licensure and suggested that adding the categories
would make this clear.
Response: The agency agrees with the comment and added the categories of
licensure to §97.282(d).
Comment: Concerning §97.285(2)(A) and (B), a commenter recommended
the addition of "as disclosed by the client" to make it clear that personal
assistance services agencies are only required to document what was disclosed
to them by the client.
Response: The agency added the suggested language to §97.285(2)(B)
in response to this comment. Subparagraphs (A) and (B) were reordered to clarify
and improve the section.
Comment: Concerning §97.288(a), a commenter believed the rule as proposed
implies that the HCSSA should control the coordination of care efforts of
other entities involved in the client's care. The rule should be rewritten
to state that HCSSA staff must coordinate care with all other service providers,
including the physicians, contractors and other agencies.
Response: The agency does not agree with the comment that the rule as proposed
implies that the HCSSA must control the coordination of care efforts of other
entities. The intent, as in the existing rule and in the proposed language,
is that the HCSSA must ensure coordination among all service providers. This
concept is not new. However, the agency has made the suggested change to §97.288(a)
to clarify the intent of the rule.
Comment: Concerning §97.300, a commenter believed the intent of the
rule section has been changed. This rule has always applied to medication
administration only. The original language that initiated the subsection formerly
stated, "If an agency administers medication to its clients, the agency must
adopt and enforce a written policy for maintaining a current medication list
and medication administration record." Everything that follows is based on
the premise that it is required because medications are being administered.
The proposed language takes the medication list out of its original context
making this a requirement regardless of whether the HCSSA administers medication.
The commenter requests that the agency reorder the language as suggested.
Response: The agency agrees with the comments and has added language to
the section so that it applies only to clients to whom agency staff administer
medications.
Comment: Concerning §97.301(a)(6)(A)(iii), a commenter expressed that
the requirement that a HCSSA obtain a new authorization letter from the physician
annually and that a physician's authorization letter is void one year from
the date of the letter is overly burdensome with no benefit to equal that
burden. The commenter suggested that the rule put the burden on the HCSSA
to ensure that doctor's orders are valid and that the fax signature remains
valid.
Response: The agency disagrees with the comment. The intent of the rule
is that a HCSSA ensure at least annually that the physician is aware of the
use of the stamped signature and continues to authorize its use. The rule
language was not changed in response to this comment.
Comment: Concerning §97.501(a)(2), a commenter asked if the subsection
applies to home health surveys only or to hospice and personal assistance
services surveys as well.
Response: The subsection refers to all categories of licensure and no change
in the rule was made in response to this comment.
Comment: Concerning §97.501(a)(3) and (4), a commenter requested that
the licensure categories be added to the rule for clarity.
Response: The agency agrees with the comment and added the categories of
licensure to §97.501(3) and (4) as requested.
Comment: Concerning §97.521(b), a commenter suggested that a HCSSA
be required to have admitted a client for the higher-skilled licensure category,
even if it is not required to admit a client under every authorized license
category.
Response: The agency agrees with the commenter and the rule language was
changed in response to this comment to include the requirement that a HCSSA
admit a client in the appropriate category. The agency did not use "higher-skilled"
because licensure categories are not ranked as higher- or lower-skilled.
Comment: Concerning §97.523(c), a commenter believed that the proposed
rule is confusing and unclear. The commenter stated that personal assistance
services (PAS) supervisors are not administrative level personnel and should
not be required to be available to provide information during the survey.
Response: The agency changed §97.523(c) to delete the requirement
that a PAS supervisor must be available to provide information if needed during
the survey. The agency intends to continue further discussion with stakeholders
on the issue of PAS supervision.
Comment: Concerning §97.525(a)(1)(B), a commenter asked if the rule
allows a surveyor to pull records beyond the current survey period. The commenter
suggested clarifying language such as "reviews any agency records relevant
to the current survey period that the surveyor believes."
Response: The agency's intent is that the surveyor has the ability to fully
investigate any and all allegations relevant to the survey or investigation
of allegations regardless of the date of the most recent survey. This may
include records that were or were not reviewed in a recent survey, but that
are relevant to the current survey. The agency does not intend to re-cite
deficient practices previously noted in other surveys. The rule language was
not changed in response to this comment.
Comment: Concerning §97.527(g)(2)(A), a commenter asked who determines
serious harm to a client or a serious threat to the health or safety of a
client, and whether there are guidelines to make this determination.
Response: The surveyor, in cooperation with the program manager and other
DADS staff, makes the initial determination as to what is a serious threat
or actual serious harm to a client. DADS staff use the state licensing rules,
the State Operations Manual (for licensed and certified agencies), and survey
protocols to make this determination. No change to the rule was made in response
to this comment.
Comment: Concerning §97.527(k)(2)(A), a commenter noted that the time
frame for compliance is based on a postmark date. Regardless, the HCSSA cannot
guarantee receipt at the DADS address.
Response: The agency disagrees with the comment and the rule language was
not changed in response to this comment. This requirement is consistent with
other long-term care programs. The HCSSA may call DADS to confirm DADS' receipt
of the application before the deadline.
Comment: Concerning §97.601(e), a commenter believes the proposed
rule goes beyond the intent of the statute, Health and Safety Code, §142.011.
The statute clearly states "The department may immediately suspend or revoke
a license when the health and safety of persons are threatened." The intent
was to give DADS the ability to issue immediate suspensions or revocations
based upon a pervasive practice that severely impacted the HCSSA's ability
to care for their clients rather than an incident isolated to one client.
Response: The agency does not agree with commenter's interpretation of
the intent of Health and Safety Code, §142.011. However, the agency changed
the language as requested by the commenter in §97.601(e) to make the
rule once again match the statutory language.
Comment: Concerning §97.601(f)(1)(A), a commenter noted that registered
or certified mail is used as evidence of DADS notice. Registered or certified
mail should be used as the standard as proof for all notices, whether for
DADS or the HCSSA.
Response: The agency disagrees with the comment. Section 97.601(f)(1)(A)
mirrors Government Code, §2001.054(c)(1), which states the agency gives
notice by personal service or by registered or certified mail to the license
holder of facts or conduct alleged to warrant the intended action. In other
words, this type of notice is required by law in this situation. Historically,
the agency has not required license holders to use registered or certified
mail when they submit items to the agency, although they are free to do so.
Sending notice by registered or certified mail is an added expense that the
agency is unwilling to require. The HCSSA may call DADS to confirm DADS' receipt
of the material before the deadline. No change to the rule was made in response
to this comment.
Comment: Concerning §97.601(g), a commenter believed the proposed
language is inconsistent with §97.601(e)(1), which states notice of immediate
suspension or revocation will be delivered via certified mail with return
receipt requested or by hand-delivery. If the agency is going to group notifications
for different types of enforcement action together, then the agency should
keep the method of delivery consistent.
Response: The agency agrees with the comment and has made the two provisions
for §97.601(e)(1) and §97.601(g) consistent. Under both provisions,
notification must be made both by fax and either by certified mail with return
receipt requested or hand-delivery.
Comment: Concerning §97.601(h)(4), a commenter believed as a matter
of procedure, due process allows a party to request a default judgment from
the judge if the party is unable to make it to the hearing. The rule as proposed
implies that if a person is unable to make it to the hearing (even if for
good cause) the agency will take action as a matter of law. Since this is
a matter of procedure, the commenter suggested this would be more appropriately
addressed by the HHSC Appeals Division rules or by the State Office of Administrative
Hearings rules. If the agency is attempting to let HCSSAs know of potential
consequences, the language should be permissive rather than mandatory.
Response: The agency agrees that this language is not appropriately included
in these rules and has removed the proposed language from §97.601(h)(4)
and renumbered the remaining paragraphs under subsection (h).
Comment: Concerning §97.601(h)(5) and (6), a commenter believed the
proposed language in this section is quite different from the present rule.
The present language follows Government Code, §2001.054, which speaks
to when an adverse action is final. The commenter recommends the agency use
the current language located at §97.601(e)(5).
Response: The agency does not agree with the comment. Section 97.601(h)(5)
and (6) comply with Government Code, §2001.054, and do not represent
a substantive change from the agency's current rule. A HCSSA must continue
to make timely renewal applications during the appeal because the license
that would be upheld in the appeal is only a one-year license, and a HCSSA
must not operate without a valid license. The rule language was not changed
in response to this comment.
Comment: Concerning §97.602(b)(2)(A) and (B), a commenter expressed
that the degrees of violation are interesting in that they go from minor for
a Level A violation to serious harm or death or serious threat to the health
or safety of a client with no intermediate level. Perhaps §97.602(b)(2)(B)(iii)
"substantially limits the agency's capacity to provide care" could become
an intermediate level of violation between levels A and B.
Response: The agency does not agree that the proposed language should be
amended based on this comment. Adding an intermediate level of violation would
need time for serious study and input from all interested stakeholders. However,
an amendment to the rule concerning the possibility for intermediate penalties
will be considered at a later date. The rule language was not changed in response
to this comment.
Comment: Concerning §97.602(d)(1) and (2), a commenter suggested that
the proposed rule goes beyond the statute, Health and Safety Code, §142.017(b),
which specifically states the assessments occur after receipt of written notice.
Nothing in the statute allows DADS to assess penalties before the written
statement of violations is received by the HCSSA. The commenter suggested
that DADS utilize the language provided by the commenter, which directly tracks
the licensure statute.
Response: The agency agrees with the comment and has amended the language
in §97.602(d)(1) and (2) as requested.
Comment: Concerning §97.604(a), a commenter asked if DADS can still
take action against the owners of a HCSSA that has a surrendered or expired
license and, if so, whether this should be spelled out in the rule.
Response: The rule allows a HCSSA to surrender its license or allow its
license to expire to avoid enforcement action by DADS. If a HCSSA surrenders
its license in lieu of enforcement action, DADS will not continue to take
enforcement action against the owners of a formerly licensed HCSSA. However,
in accordance with §97.11(g)(3)(B) and §97.604(c), surrendering
or allowing a HCSSA license to expire in lieu of enforcement action is a bar
to licensure for 12 months. No change to the rule was made in response to
this comment.
Comment: Concerning §97.604(c), a commenter asked if the one-year
denial of a licensure application applies if a branch license only is surrendered
and a HCSSA wishes to reopen that branch.
Response: The question, as written, appears to assume that enforcement
action is taken against the branch license. This assumption is not correct.
Enforcement action is taken against the parent license and would continue
regardless of branch office closure. The branch office is merely an extension
of the parent and should not be considered a separate entity. No change to
the rule was made in response to this comment.
In addition, changes were made to clarify §§97.210, 97.291, 97.525,
and 97.602.
The change to §97.210(c) added language to clarify that a HCSSA must
provide notice of how to contact the person in charge during the HCSSA's operating
hours or between 8:00 a.m. to 5:00 p.m., Monday through Friday, if the HCSSA
is closed.
The change to §97.291 corrected a cross-reference and the change to §97.525
corrected punctuation to improve the accuracy of the sections.
The change to §97.602(g)(2)(B) corrected the rule language to state
that a HCSSA must submit the request for a formal administrative hearing to
the Health and Human Services Commission (HHSC), because management of hearings
now resides with HHSC.
Because the rule language in §§97.220, 97.321, and 97.322 concerning
service areas, §97.300 concerning medication administration, and §97.241
concerning management criteria has been changed, the administrative penalties
charts in §97.602(e)(1) and (2) have been updated to reflect those changes.
Subchapter A. GENERAL PROVISIONS
40 TAC §§97.1 - 97.3
The amendments are adopted under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS; and Texas Health and Safety Code, Chapter 142, which provides DADS
with the authority to adopt rules for licensing and regulation of home and
community support services agencies.
§97.2.Definitions.
The following words and terms, when used in this chapter, have the
following meanings, unless the context clearly indicates otherwise.
(1)
Accessible and flexible services--Services which are delivered
in the least intrusive manner possible and are provided in all settings where
individuals live, work, and recreate.
(2)
Administration of medication--The direct application of
any medication by injection, inhalation, ingestion, or any other means to
the body of a client. The preparation of medication is part of the administration
of medication and is the act or process of making ready a medication for administration,
including the calculation of a client's medication dosage; altering the form
of the medication by crushing, dissolving, or any other method; reconstitution
of an injectable medication; drawing an injectable medication into a syringe;
preparing an intravenous admixture; or any other act required to render the
medication ready for administration.
(3)
Administrative support site--A facility or site where an
agency performs administrative and other support functions but does not provide
direct home health, hospice, or personal assistance services. This site does
not require an agency license.
(4)
Administrator--The person who is responsible for the day-to-day
operations of an agency.
(5)
Advanced practice nurse--A registered nurse who is approved
by the Board of Nurse Examiners (BNE) to practice as an advanced practice
nurse and who maintains compliance with the applicable rules of the BNE. See
BNE's definition of advanced practice nurse in 22 TAC §221.1 (concerning
definitions).
(6)
Affiliate--With respect to an applicant or license holder,
which is:
(A)
a corporation--means each officer, director, and stockholder
with direct ownership of at least 5.0%, subsidiary, and parent company;
(B)
a limited liability company--means each officer, member,
and parent company;
(C)
an individual--means:
(i)
the individual's spouse;
(ii)
each partnership and each partner thereof of which the
individual or any affiliate of the individual is a partner; and
(iii)
each corporation in which the individual is an officer,
director, or stockholder with a direct ownership or disclosable interest of
at least 5.0%.
(D)
a partnership--means each partner and any parent company;
and
(E)
a group of co-owners under any other business arrangement--means
each officer, director, or the equivalent under the specific business arrangement
and each parent company.
(7)
Agency--A home and community support services agency.
(8)
Alternate delivery site--A facility or site, including
a residential unit or an inpatient unit:
(A)
that is owned or operated by an agency providing hospice
services;
(B)
that is not the hospice's principal place of business.
For the purposes of this definition, the hospice's principal place of business
is the parent office for the hospice;
(C)
that is located in the geographical area served by the
hospice; and
(D)
from which the hospice provides hospice services.
(9)
Applicant--The owner of an agency that is applying for
a license under the statute. This is the person in whose name the license
will be issued.
(10)
Assistance with self-administration of medication--Any
needed ancillary aid provided to a client in the client's self-administered
medication or treatment regimen, such as reminding a client to take a medication
at the prescribed time, opening and closing a medication container, pouring
a predetermined quantity of liquid to be ingested, returning a medication
to the proper storage area, and assisting in reordering medications from a
pharmacy. Such ancillary aid includes administration of any medication when
the client has the cognitive ability to direct the administration of their
medication and would self-administer if not for a functional limitation.
(11)
Association--A partnership, limited liability company,
or other business entity that is not a corporation.
(12)
Audiologist--A person who is currently licensed under
the Occupations Code, Chapter 401, as an audiologist.
(13)
Bereavement--The process by which a survivor of a deceased
person mourns and experiences grief.
(14)
Bereavement services--Support services offered to a family
during bereavement. Family includes a significant other(s).
(15)
Branch office--A facility or site in the service area
of a parent agency from which home health or personal assistance services
are delivered or where active client records are maintained. This does not
include inactive records that are stored at an unlicensed site.
(16)
Care plan--
(A)
a written plan prepared by the appropriate health care
professional for a client of the home and community support services agency;
or
(B)
for home dialysis designation, a written plan developed
by the physician, registered nurse, dietitian, and qualified social worker
to personalize the care for the client and enable long- and short-term goals
to be met.
(17)
Case conference--A conference among personnel furnishing
services to the client to ensure that their efforts are coordinated effectively
and support the objectives outlined in the plan of care or care plan.
(18)
Certified agency--A home and community support services
agency, or portion of the agency, that:
(A)
provides a home health service; and
(B)
is certified by an official of the Department of Health
and Human Services as in compliance with conditions of participation in Social
Security Act, Title XVIII (42 United States Code (USC) §1395 et seq.).
(19)
Certified home health services--Home health services that
are provided by a certified agency.
(20)
CHAP--Community Health Accreditation Program, Inc. An
independent, nonprofit accrediting body that publicly certifies that an organization
has voluntarily met certain standards for home and community-based health
care.
(21)
Client--An individual receiving home health, hospice,
or personal assistance services from a licensed home and community support
services agency. This term includes each member of the primary client's family
if the member is receiving ongoing services. This term does not include the
spouse, significant other, or other family member living with the client who
receives a one-time service (e.g., vaccine) if the spouse, significant other,
or other family member receives the service in connection with the care of
a client.
(22)
Clinical note--A dated and signed written notation by
agency personnel of a contact with a client containing a description of signs
and symptoms; treatment and medication given; the client's reaction; other
health services provided; and any changes in physical and emotional condition.
(23)
CMS--Centers for Medicare and Medicaid Services. The federal
agency that administers the Medicare program and works in partnership with
the states to administer Medicaid.
(24)
Complaint--An allegation against an agency regulated by
DADS or against an employee of an agency regulated by DADS that involves a
violation of this chapter or the statute.
(25)
Controlling person--A person with the ability, acting
alone or with others, to directly or indirectly influence, direct, or cause
the direction of the management, expenditure of money, or policies of an agency
or other person.
(A)
A controlling person includes:
(i)
a management company or other business entity that operates
or contracts with others for the operation of an agency;
(ii)
a person who is a controlling person of a management company
or other business entity that operates an agency or that contracts with another
person for the operation of an agency; and
(iii)
any other individual who, because of a personal, familial,
or other relationship with the owner, manager, or provider of an agency, is
in a position of actual control or authority with respect to the agency, without
regard to whether the individual is formally named as an owner, manager, director,
officer, provider, consultant, contractor, or employee of the agency.
(B)
A controlling person, as described by subparagraph (A)(iii)
of this paragraph, does not include an employee, lender, secured creditor,
or other person who does not exercise formal or actual influence or control
over the operation of an agency.
(26)
Counselor--An individual qualified under Medicare standards
to provide counseling services, including bereavement, dietary, spiritual,
and other counseling services to both the client and the family.
(27)
DADS--Department of Aging and Disability Services.
(28)
Day--Any reference to a day means a calendar day, unless
otherwise specified in the text. A calendar day includes weekends and holidays.
(29)
Deficiency--A finding of noncompliance with federal requirements
resulting from a survey.
(30)
Designated survey office--A DADS Home and Community Support
Services Agencies Program office located in an agency's geographic region.
(31)
Dialysis treatment record--For home dialysis designation,
a dated and signed written notation by the person providing dialysis treatment
which contains a description of signs and symptoms, machine parameters and
pressure settings, type of dialyzer and dialysate, actual pre- and post- treatment
weight, medications administered as part of the treatment, and the client's
response to treatment.
(32)
Dietitian--A person who is currently licensed under the
laws of the State of Texas to use the title of licensed dietitian or provisional
licensed dietitian, or who is a registered dietitian.
(33)
End stage renal disease (ESRD)--For home dialysis designation,
the stage of renal impairment that appears irreversible and permanent and
requires a regular course of dialysis or kidney transplantation to maintain
life.
(34)
Freestanding hospice--An agency that provides hospice
services to clients of the agency who are residing at the agency's physical
location including inpatient and respite care.
(35)
Functional need--Needs of the individual that require
services without regard to diagnosis or label.
(36)
Health assessment--A determination of a client's physical
and mental status through inventory of systems.
(37)
Home and community support services agency--A person who
provides home health, hospice, or personal assistance services for pay or
other consideration in a client's residence, an independent living environment,
or another appropriate location.
(38)
Home health aide--An individual working for an agency
who meets at least one of the requirements for home health aides as defined
in §97.701 of this chapter (relating to Home Health Aides).
(39)
Home health medication aide--A person permitted under
the Health and Safety Code, Chapter 142, Subchapter B.
(40)
Home health service--The provision of one or more of the
following health services required by an individual in a residence or independent
living environment:
(A)
nursing, including blood pressure monitoring and diabetes
treatment;
(B)
physical, occupational, speech, or respiratory therapy;
(C)
medical social service;
(D)
intravenous therapy;
(E)
dialysis;
(F)
service provided by unlicensed personnel under the delegation
or supervision of a licensed health professional;
(G)
the furnishing of medical equipment and supplies, excluding
drugs and medicines; or
(H)
nutritional counseling.
(41)
Hospice--A person licensed under this chapter to provide
hospice services, including a person who owns or operates a residential unit
or an inpatient unit.
(42)
Hospice services--Services, including services provided
by unlicensed personnel under the delegation of a registered nurse or physical
therapist, provided to a client or a client's family as part of a coordinated
program consistent with the standards and rules adopted under this chapter.
These services include palliative care for terminally ill clients and support
services for clients and their families that:
(A)
are available 24 hours a day, seven days a week, during
the last stages of illness, during death, and during bereavement;
(B)
are provided by a medically directed interdisciplinary
team; and
(C)
may be provided in a home, nursing facility, residential
unit, or inpatient unit according to need. These services do not include inpatient
care normally provided in a licensed hospital to a terminally ill person who
has not elected to be a hospice client. For the purposes of this definition,
the word "home" includes a person's "residence" as defined in this section.
(43)
Independent living environment--A client's residence,
which may include a group home or foster home, or other settings where a client
participates in activities, including school, work, or church.
(44)
Individual/family choice and control--Individuals and
families who express preferences and make choices about how their support
service needs are met.
(45)
Individualized service plan--A written plan prepared by
the appropriate health care personnel for a client of a home and community
support services agency licensed to provide personal assistance services.
(46)
Inpatient unit--A facility that provides a continuum medical
or nursing care and other hospice services to clients admitted into the unit
and that is in compliance with:
(A)
the conditions of participation for inpatient units adopted
under Social Security Act, Title XVIII (42 United States Code §1395 et
seq.); and
(B)
standards adopted under this chapter.
(47)
IRoD--Informal review of deficiencies. An informal process
that allows an agency to refute a deficiency or violation cited during a survey.
(48)
JCAHO--Joint Commission on Accreditation of Healthcare
Organizations. An independent, nonprofit organization for standard-setting
and accrediting in-home care and other areas of health care.
(49)
Licensed vocational nurse--A person who is currently licensed
under Occupations Code, Chapter 301, as a licensed vocational nurse.
(50)
Manager--An employee or independent contractor responsible
for providing management services to a home and community support services
agency for the overall operation of a home and community support services
agency including administration, staffing, or delivery of services. Examples
of contracts for services that will not be considered contracts for management
services include contracts solely for maintenance, laundry, or food services.
(51)
Medication administration record--A record used to document
the administration of a client's medications.
(52)
Medication list--A list that includes all prescription
and over-the-counter medication that a client is currently taking, including
the dosage, the frequency, and the method of administration.
(53)
Notarized copy--A sworn affidavit stating that attached
copies are true and correct copies of the original documents.
(54)
Nursing facility--An institution licensed as a nursing
home under the Health and Safety Code, Chapter 242.
(55)
Nutritional counseling--Advising and assisting individuals
or families on appropriate nutritional intake by integrating information from
the nutrition assessment with information on food and other sources of nutrients
and meal preparation consistent with cultural background and socioeconomic
status, with the goal being health promotion, disease prevention, and nutrition
education. Nutritional counseling may include the following:
(A)
dialogue with the client to discuss current eating habits,
exercise habits, food budget, and problems with food preparation;
(B)
discussion of dietary needs to help the client understand
why certain foods should be included or excluded from the client's diet and
to help with adjustment to the new or revised or existing diet plan;
(C)
a personalized written diet plan as ordered by the client's
physician or practitioner, to include instructions for implementation;
(D)
providing the client with motivation to help the client
understand and appreciate the importance of the diet plan in getting and staying
healthy; or
(E)
working with the client or the client's family members
by recommending ideas for meal planning, food budget planning, and appropriate
food gifts.
(56)
Occupational therapist--A person who is currently licensed
under the Occupational Therapy Practice Act, Occupations Code, Chapter 454,
as an occupational therapist.
(57)
Original active client record--A record composed first-hand
for a client currently receiving services.
(58)
Palliative care--Intervention services that focus primarily
on the reduction or abatement of physical, psychosocial, and spiritual symptoms
of a terminal illness.
(59)
Parent agency--An agency that develops and maintains administrative
controls and provides supervision of branch offices and alternate delivery
sites.
(60)
Parent company--A person, other than an individual, who
has a direct 100% ownership interest in the owner of an agency.
(61)
Person--An individual, corporation, or association.
(62)
Personal assistance services--Routine ongoing care or
services required by an individual in a residence or independent living environment
that enable the individual to engage in the activities of daily living or
to perform the physical functions required for independent living, including
respite services. The term includes:
(A)
personal care;
(B)
health-related services performed under circumstances that
are defined as not constituting the practice of professional nursing by the
Board of Nurse Examiners through a memorandum of understanding with DADS in
accordance with Health and Safety Code, §142.016; and
(C)
health-related tasks provided by unlicensed personnel under
the delegation of a registered nurse or that a registered nurse determines
do not require delegation.
(63)
Personal care--The provision of one or more of the following
services required by an individual in a residence or independent living environment:
(A)
bathing;
(B)
dressing;
(C)
grooming;
(D)
feeding;
(E)
exercising;
(F)
toileting;
(G)
positioning;
(H)
assisting with self-administered medications;
(I)
routine hair and skin care; and
(J)
transfer or ambulation.
(64)
Physical therapist--A person who is currently licensed
under Occupations Code, Chapter 453, as a physical therapist.
(65)
Physician--A person who holds a doctor of medicine or
doctor of osteopathy degree and is currently licensed and practicing medicine
under the laws of the state of Texas, Oklahoma, New Mexico, Arkansas, or Louisiana.
(66)
Physician assistant--A person who is licensed under the
Physician Assistant Licensing Act, Occupations Code, Chapter 204, as a physician
assistant.
(67)
Physician-delegated task--A task performed in accordance
with the Occupations Code, Chapter 157, including orders signed by a physician
that specify the delegated task, the individual to whom the task is delegated,
and the client's name.
(68)
Place of business--An office of a home and community support
services agency that maintains client records or directs home health, hospice,
or personal assistance services. This term includes a parent agency, a branch
office, and an alternate delivery site. The term does not include an administrative
support site.
(69)
Plan of care--The written orders of a practitioner for
a client who requires skilled services.
(70)
Practitioner--A person who is currently licensed in a
state in which the person practices as a physician, dentist, podiatrist, or
a physician assistant, or a person who is a registered nurse registered with
the Board of Nurse Examiners for the State of Texas as an advanced practice
nurse.
(71)
Presurvey conference--A conference held with DADS staff
and the applicant or the applicant's representatives to review licensure standards
and survey documents, and to provide consultation before the survey.
(72)
Progress note--A dated and signed written notation by
agency personnel summarizing facts about care and the client's response during
a given period of time.
(73)
Psychoactive treatment--The provision of a skilled nursing
visit to a client with a psychiatric diagnosis under the direction of a physician
that includes one or more of the following:
(A)
assessment of alterations in mental status or evidence
of suicide ideation or tendencies;
(B)
teaching coping mechanisms or skills;
(C)
counseling activities; or
(D)
evaluation of the plan of care.
(74)
Registered nurse (RN)--A person who is currently licensed
under the Nursing Practice Act, Occupations Code, Chapter 301, as a registered
nurse.
(75)
Registered nurse delegation--Delegation by a registered
nurse in accordance with:
(A)
22 TAC, Chapter 224 (concerning Delegation of Nursing Tasks
by Registered Professional Nurses to Unlicensed Personnel for Clients with
Acute Conditions or in Acute Care Environments); and
(B)
22 TAC, Chapter 225 (relating to RN Delegation to Unlicensed
Personnel and Tasks Not Requiring Delegation in Independent Living Environments
for Clients with Stable and Predictable Conditions).
(76)
Residence--A place where a person resides, including a
home, a nursing facility, a convalescent home, or a residential unit.
(77)
Residential unit--A facility that provides living quarters
and hospice services to clients admitted into the unit and that is in compliance
with standards adopted under the Health and Safety Code, Chapter 142.
(78)
Respiratory therapist--A person who is currently licensed
under Occupations Code, Chapter 604, as a respiratory care practitioner.
(79)
Respite services--Support options that are provided temporarily
for the purpose of relief for a primary caregiver in providing care to individuals
of all ages with disabilities or at risk of abuse or neglect.
(80)
Section--A reference to a specific rule in this chapter.
(81)
Service area--A geographic area established by an agency
in which all or some of the agency's services are available.
(82)
Skilled services--Services in accordance with a plan of
care that require the skills of:
(A)
a registered nurse;
(B)
a licensed vocational nurse;
(C)
a physical therapist;
(D)
an occupational therapist;
(E)
a respiratory therapist;
(F)
a speech-language pathologist;
(G)
an audiologist;
(H)
a social worker; or
(I)
a dietitian.
(83)
Social worker--A person who is currently licensed as a
social worker under Occupations Code, Chapter 505.
(84)
Speech-language pathologist--A person who is currently
licensed as a speech-language pathologist under Occupations Code, Chapter
401.
(85)
Statute--The Health and Safety Code, Chapter 142.
(86)
Substantial compliance--A finding in which an agency receives
no recommendation for enforcement action after a survey.
(87)
Supervising nurse--The person responsible for supervising
skilled services provided by an agency and who has the qualifications described
in §97.244(b) of this chapter (relating to Staffing Qualifications and
Conditions). This person may also be known as the director of nursing or similar
title.
(88)
Supervision--Authoritative procedural guidance by a qualified
person for the accomplishment of a function or activity with initial direction
and periodic inspection of the actual act of accomplishing the function or
activity.
(89)
Support services--Social, spiritual, and emotional care
provided to a client and a client's family by a hospice.
(90)
Survey--An on-site inspection or complaint investigation
conducted by a DADS representative to determine if an agency is in compliance
with the statute and this chapter or in compliance with applicable federal
requirements or both.
(91)
Terminal illness--An illness for which there is a limited
prognosis if the illness runs its usual course.
(92)
Unlicensed person--An individual who is not licensed as
a health care professional. The term includes home health aides, medication
aides permitted by DADS, and other individuals providing personal care or
assistance in health services.
(93)
Unsatisfied judgments--A failure to fully carry out the
terms or meet the obligation of a court's final disposition on the matters
before it in a suit regarding the operation of an agency.
(94)
Violation--A finding of noncompliance with this chapter
or the statute resulting from a survey.
(95)
Volunteer--An individual who provides assistance to a
home and community support services agency without compensation other than
reimbursement for actual expenses.
(96)
Working day--Any day except Saturday, Sunday, a state
holiday, or a federal holiday.
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 February 16, 2006.
TRD-200600840
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Effective date: June 1, 2006
Proposal publication date: October 14, 2005
For further information, please call: (512) 438-3734
40 TAC §§97.11 - 97.16
The repeal is adopted under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS; and Texas Health and Safety Code, Chapter 142, which provides DADS
with the authority to adopt rules for licensing and regulation of home and
community support services agencies.
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 February 16, 2006.
TRD-200600841
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Effective date: June 1, 2006
Proposal publication date: October 14, 2005
For further information, please call: (512) 438-3734
40 TAC §§97.11, 97.13, 97.15, 97.17, 97.19, 97.21, 97.23, 97.25, 97.27, 97.29, 97.31
The new sections are adopted under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS; and Texas Health and Safety Code, Chapter 142, which provides DADS
with the authority to adopt rules for licensing and regulation of home and
community support services agencies.
§97.11.Criteria and Eligibility for Licensing.
(a)
An applicant for a license must not admit a client or initiate
services until the applicant has completed the application process and has
received an initial license.
(b)
A first-time application for a license is an application
for an initial license.
(c)
An application for a license when there is a change of
ownership is an application for an initial license.
(d)
A separate license is required for each place of business
as defined in §97.2 of this chapter (relating to Definitions).
(e)
An agency's place of business must be located in and have
an address in Texas. An agency located in another state must receive a license
as a parent agency in Texas to operate as an agency in Texas.
(f)
An applicant must be at least 18 years of age.
(g)
DADS does not issue a license to an applicant if the applicant,
a controlling person of the applicant, a person with a disclosable interest,
an affiliate of the applicant, an administrator, or an alternate administrator:
(1)
at the time of application:
(A)
has a criminal history of:
(i)
a crime listed in Health and Safety Code, §250.006
(relating to Convictions Barring Employment);
(ii)
a conviction relating to deceptive business practices;
(iii)
a misdemeanor or felony of practicing any health-related
profession without a required license;
(iv)
a conviction under any federal or state law relating to
drugs, dangerous drugs, or controlled substances;
(v)
an offense under the Penal Code involving a client or client
of a health care facility or agency; or
(vi)
a misdemeanor or felony offense under the Penal Code,
as follows:
(I)
Title 5, concerning offenses against the person;
(II)
Title 7, concerning offenses against the property;
(III)
Title 9, concerning offenses against public order and
decency;
(IV)
Title 10, concerning offenses against public health, safety,
and morals; or
(V)
Title 4, concerning offenses of attempting or conspiring
to attempt any of the offenses listed herein;
(B)
has an unsatisfied final judgment in any state or other
jurisdiction;
(C)
is in default on a guaranteed student loan (Education Code, §57.491);
or
(D)
is delinquent on child support obligations (Family Code,
Chapter 232);
(2)
for two years preceding the date of application, has a
history in any state or other jurisdiction of any of the following:
(A)
a federal or state tax lien;
(B)
an eviction involving any property or space used as an
agency; or
(C)
an unresolved final Medicare or Medicaid audit exception;
or
(3)
for twelve months preceding the date of application, has
a history in any state or other jurisdiction of any of the following:
(A)
denial, suspension, or revocation of an agency license
or a license for a health care facility;
(B)
surrendering a license before expiration or allowing a
license to expire instead of the licensing authority proceeding with enforcement
action;
(C)
a Medicaid or Medicare sanction or penalty relating to
the operation of an agency or a health care facility;
(D)
operating an agency that has been decertified in any state
under Medicare or Medicaid; or
(E)
debarment, exclusion, or involuntary contract cancellation
in any state from Medicare or Medicaid.
§97.17.Application Procedures for a Renewal License.
(a)
A license is valid for one year. In order to continue providing
services to clients, an agency must renew its license.
(b)
For each license period, an agency must provide services
to at least one client.
(c)
DADS does not require an agency to admit a client under
each category authorized under the license as a condition for renewal of the
license.
(d)
An agency must document the provision of services and keep
documentation readily available for review by a DADS surveyor.
(e)
DADS sends notice of expiration of a license to an agency
at least 60 days before the expiration date of the license.
(1)
If an agency has not received notice of expiration from
DADS at least 45 days before the expiration date, the agency must notify DADS
and submit a written request for a renewal application for a license.
(2)
An agency must submit to DADS a complete and correct renewal
application postmarked at least 30 days before the expiration date of a license.
(3)
All documents submitted with the renewal application must
be notarized copies or originals.
(f)
Upon receipt of a renewal application and the renewal license
fee, DADS reviews the material to determine whether it is complete and correct.
A complete and correct renewal application includes all documents and information
that DADS requests as part of the application process. If DADS receives a
partial fee, the renewal application and monies are returned.
(1)
DADS processes the renewal application according to the
time frames in §97.31 of this chapter (relating to Time Frames for Processing
and Issuing a License).
(2)
If an agency decides not to continue the application process
for a renewal license after submitting the renewal application and the renewal
license fee, the agency must submit to DADS a written request to withdraw
the renewal application. DADS does not refund the renewal license fee.
(3)
If an agency receives a notice from DADS that some or all
of the information required by this section is missing or incomplete, the
agency must submit the required information no later than 30 days after the
date of the notice. If an agency fails to submit the required information
within 30 days after the notice date, DADS considers the renewal application
incomplete and denies the application. If DADS denies the renewal application,
DADS does not refund the renewal license fee.
(g)
If an agency fails to make a timely and sufficient renewal
application at least 30 days before the expiration date of the license, the
agency must cease operation on the date the license expires.
(1)
If an agency makes a timely renewal application of a license
in accordance with this section, and an action to revoke, suspend, or deny
renewal of the license is pending, the agency may continue to operate, and
the license is valid until the agency has had an opportunity for a formal
hearing as described in §97.601 of this chapter (relating to Enforcement
Actions). DADS issues a renewal license only if DADS determines the reason
for the proposed action no longer exists.
(2)
An agency whose license has been expired for 90 days or
less may renew the license by paying DADS a renewal fee that is one and one-half
times the normally required renewal fee established in §97.3 of this
chapter (relating to License Fees). DADS notifies the agency in writing of
a pending license expiration.
(3)
An agency whose license has been expired for more than
90 days must apply for an initial license in accordance with §97.13 of
this chapter (relating to Application Procedures for an Initial License).
(h)
If a license holder fails to timely renew a license because
the license holder is or was on active duty with the armed forces of the United
States of America outside the state of Texas, the license holder may renew
the license pursuant to this subsection.
(1)
An individual having power of attorney from the license
holder or other authority to act on behalf of the license holder may request
renewal of the license. The renewal application must include a current address
and telephone number for the individual requesting the renewal.
(2)
An agency may request a renewal application before or after
the expiration of the license.
(3)
A copy of the official orders or other official military
documentation showing that the license holder is or was on active military
duty serving outside the state of Texas must be filed with DADS along with
the renewal application.
(4)
A copy of the power of attorney from the license holder
or other authority to act on behalf of the license holder must be filed with
DADS along with the renewal form.
(5)
A license holder renewing under this subsection must pay
the applicable renewal fee.
(6)
A license holder is not authorized to operate the agency
for which the license was obtained after the expiration of the license unless
and until the license holder actually renews the license.
(7)
This subsection applies to a license holder who is an individual
or a partnership comprised of individuals, all of whom are or were on active
duty with the armed forces of the United States of America serving outside
the state of Texas.
§97.23.Change of Ownership.
(a)
A license issued under this chapter may not be sold or
assigned to another person.
(b)
A change of ownership occurs when there is:
(1)
a change of 50% or more in the ownership of the business
organization or sole proprietorship that is licensed to operate the agency;
or
(2)
a change in the federal taxpayer identification number.
(c)
A change of ownership for a parent agency is a change of
ownership for the parent agency's branch office or alternate delivery site
and requires the submittal of an initial application and license fee for the
branch office or alternate delivery site.
(d)
A change of ownership does not apply if an agency is a
business entity and is simply amending its official documents to revise its
name.
(e)
For agencies licensed to provide licensed and certified
home health services and licensed and certified hospice services, applicable
federal laws and regulations relating to change of ownership or control apply
in addition to the requirements of this section.
§97.27.Application and Issuance of a Branch Office License.
(a)
An agency with a current license to provide licensed home
health services, licensed and certified home health services, or personal
assistance services may qualify for a branch office license if the parent
agency:
(1)
is found to be in substantial compliance with the statute
and this chapter; and
(2)
has no enforcement action pending against the license.
(b)
Upon request, DADS furnishes a parent agency with an application
packet for a branch office license.
(c)
An agency must submit to DADS a complete and correct application
packet and the required license fee for a branch office license in accordance
with the instructions provided with the application packet. A complete and
correct application packet includes all documents and information that DADS
requests as part of the application process.
(d)
DADS reviews an application packet for a branch office
license to determine whether it is complete and correct.
(1)
DADS processes an application packet for a branch office
license according to the time frames in §97.31 of this chapter (relating
to Time Frames for Processing and Issuing a License).
(2)
If an agency receives a notice from DADS that some or all
of the information required by this section is missing or incomplete, the
agency must submit the required information no later than 30 days after the
date of the notice. If an agency fails to submit the required information
within 30 days after the notice date, DADS considers the application for a
branch office license incomplete and denies the application. If DADS denies
the application, DADS does not refund the license fee.
(e)
A designated survey office conducts a review of an agency's
request to establish a branch office. The survey office makes a recommendation
to approve or disapprove the branch office request.
(f)
DADS approves or denies the application for a branch office
license after considering the designated survey office's recommendation. If
DADS denies the application, DADS sends the agency a written notice:
(1)
informing the agency of its decision; and
(2)
providing the agency with an opportunity to appeal its
decision through a formal hearing process as described in §97.601 of
this chapter (relating to Enforcement Actions).
(g)
CMS approves or denies the branch location if an agency
is licensed to provide licensed and certified home health services.
(h)
A branch office license expires on the same expiration
date as the parent agency's license, and the agency may renew it with the
parent agency's license.
(i)
DADS mails the branch office license to the parent agency.
The branch office must post the license in a conspicuous place on the licensed
branch office premises.
(j)
A branch office must comply with §97.321 of this title
(relating to Standards for Branch Offices) and the additional standards that
relate to the agency's authorized categories under the license.
(k)
DADS may conduct a survey of a branch office after issuance
of the license to verify compliance with the statute and this chapter.
§97.29.Application and Issuance of an Alternate Delivery Site License.
(a)
An agency with a current license to provide hospice services
may qualify for an alternate delivery site license if the parent agency:
(1)
is found to be in substantial compliance with the statute
and this chapter; and
(2)
has no enforcement action pending against the license.
(b)
Upon request, DADS furnishes a parent agency with an application
packet for an alternate delivery site license.
(c)
An agency must submit to DADS a complete and correct application
packet and the required license fee for an alternate delivery site in accordance
with instructions provided with the application packet. A complete and correct
application packet includes all documents and information that DADS requests
as part of the application process.
(d)
DADS reviews an application packet for an alternate delivery
site to determine whether it is complete and correct.
(1)
DADS processes an application packet for an alternate delivery
site according to the time frames in §97.31 of this chapter (relating
to Time Frames for Processing and Issuing a License).
(2)
If an agency receives a notice from DADS that some or all
of the information required by this section is missing or incomplete, the
agency must submit the required information no later than 30 days after the
date of the notice. If an agency fails to submit the required information
within 30 days after the notice date, DADS considers the application for an
alternate delivery site license incomplete and denies the application. If
DADS denies the application, DADS does not refund the license fee.
(e)
A designated survey office conducts a review of an agency's
request to establish an alternate delivery site. The survey office makes a
recommendation to approve or deny the alternate delivery site request.
(f)
If an agency provides licensed-only hospice services, DADS
approves or denies the application for an alternate delivery site after considering
the designated survey office's recommendation. If DADS denies the application,
DADS sends the agency a written notice:
(1)
informing the agency of its decision; and
(2)
providing the agency with an opportunity to appeal its
decision through a formal hearing process as described in §97.601 of
this chapter (relating to Enforcement Actions).
(g)
CMS approves or denies the alternate delivery site if an
agency is licensed to provide licensed and certified hospice services.
(h)
An alternate delivery site license expires on the same
expiration date as the parent agency's license, and the agency may renew it
with the parent agency's license.
(i)
DADS mails an alternate delivery site license to the parent
agency. The alternate delivery site must post the license in a conspicuous
place on the licensed alternate delivery site premises.
(j)
An alternate delivery site must comply with §97.403
of this chapter (relating to Standards Specific to Agencies Licensed to Provide
Hospice Services) and §97.322 of this chapter (relating to Standards
for Alternate Delivery Sites).
(k)
The designated survey office conducts a survey after issuance
of the license to verify compliance with §97.403 and §97.322 of
this chapter.
(l)
The designated survey office may recommend that a licensed
alternate delivery site seek a license as a parent agency, under but not exclusive
of the following conditions:
(1)
the alternate delivery site is the hospice's principal
place of business as defined in §97.2 of this chapter (relating to Definitions);
or
(2)
the alternate delivery site is located outside the geographical
area served by the parent agency.
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 February 16, 2006.
TRD-200600842
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Effective date: June 1, 2006
Proposal publication date: October 14, 2005
For further information, please call: (512) 438-3734
1.
GENERAL PROVISIONS
40 TAC §97.201
The amendment is adopted under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS; and Texas Health and Safety Code, Chapter 142, which provides DADS
with the authority to adopt rules for licensing and regulation of home and
community support services agencies.
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 February 16, 2006.
TRD-200600843
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Effective date: June 1, 2006
Proposal publication date: October 14, 2005
For further information, please call: (512) 438-3734
40 TAC §§97.210, 97.213 - 97.220
The amendments and new section are adopted under Texas Government
Code, §531.0055, which provides that the HHSC executive commissioner
shall adopt rules for the operation and provision of services by the health
and human services agencies, including DADS; Texas Human Resources Code, §161.021,
which provides that the Aging and Disability Services Council shall study
and make recommendations to the HHSC executive commissioner and the DADS commissioner
regarding rules governing the delivery of services to persons who are served
or regulated by DADS; and Texas Health and Safety Code, Chapter 142, which
provides DADS with the authority to adopt rules for licensing and regulation
of home and community support services agencies.
§97.210.Agency Operating Hours.
(a)
An agency must adopt and enforce a written policy identifying
the agency's operating hours.
(b)
For the purposes of this section, the person in charge
means the administrator, the designated alternate administrator, the supervising
nurse, or the alternate supervising nurse.
(c)
If an agency is closed during the agency's operating hours
or between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday, the
person in charge must:
(1)
post a notice in a visible location outside the agency
that will provide information regarding how to contact the person in charge;
and
(2)
leave a message on an answering machine or similar electronic
mechanism that will provide information regarding how to contact the person
in charge.
§97.217.Agency Closure Procedures and Voluntary Suspension of Operations.
(a)
Permanent closure. An agency must notify DADS in writing
within five days before the permanent closure of the agency, branch office,
or alternate delivery site.
(1)
The agency must include in the written notice the reason
for closing, the location of the client records (active and inactive), and
the name and address of the client record custodian.
(2)
If the agency closes with an active client roster, the
agency must transfer a copy of the active client record with the client to
the receiving agency in order to ensure continuity of care and services to
the client.
(3)
The agency must mail or return the initial license or renewal
license to DADS at the end of the day that services ceased.
(4)
If an agency continues to operate after the closure date
specified in the notice, DADS may take enforcement action against the agency.
(b)
Applicability. This subsection applies to an agency licensed
to provide licensed home health services, personal assistance services, and
licensed-only hospice services.
(1)
Voluntary suspension of operations occurs when an agency
voluntarily suspends its normal business operations for 10 or more consecutive
days. A voluntary suspension of operations may not last longer than the licensure
renewal period. If an agency voluntarily suspends operations, the agency must:
(A)
discharge or arrange for backup services for active clients;
(B)
provide written notification to the designated survey office
at least five days before the voluntary suspension of operations or within
two working days before the voluntary suspension of operations if an emergency
occurs that is beyond the agency's control; and
(C)
post a notice of voluntary suspension of operations on
the entry door of the agency and leave a message on an answering machine or
with an answering service that informs callers of the voluntary suspension
of operations.
(2)
An agency must notify the Home and Community Support Services
Agencies Licensing Unit in writing no later than seven days after resuming
operations.
§97.220.Service Areas.
(a)
Licensed service area.
(1)
An agency must identify its licensed service area.
(2)
An agency must not provide services outside its licensed
service area.
(b)
Staffing. The agency must maintain adequate staff to provide
services and to supervise the provision of services within the service area.
(c)
Expansion of service area. An agency may expand its service
area at any time during the licensure period.
(1)
Unless exempted under paragraph (2) of this subsection,
an agency must submit to DADS a written notice to expand its service area
at least 30 days before the expansion. The notice must include:
(A)
revised boundaries of the agency's original service area;
(B)
the effective date of the expansion; and
(C)
an updated list of management and supervisory personnel
(including names), if changes are made.
(2)
An agency is exempt from the 30-day written notice requirement
under paragraph (1) of this subsection if DADS determines an emergency situation
exists that would impact client health and safety. An agency must notify DADS
immediately of a possible emergency. DADS determines if an exemption can be
granted.
(d)
Reduction of service area. An agency may reduce its service
area at any time during the licensure period by sending DADS written notification
of the reduction, the revised boundaries of the agency's original service
area, and the effective date of the reduction.
(e)
Branch office and alternate delivery site location. A branch
office or alternate delivery site must be located within the parent agency's
service area.
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 February 16, 2006.
TRD-200600844
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Effective date: June 1, 2006
Proposal publication date: October 14, 2005
For further information, please call: (512) 438-3734
40 TAC §97.221
The repeal is adopted under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS; and Texas Health and Safety Code, Chapter 142, which provides DADS
with the authority to adopt rules for licensing and regulation of home and
community support services agencies.
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 February 16, 2006.
TRD-200600845
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Effective date: June 1, 2006
Proposal publication date: October 14, 2005
For further information, please call: (512) 438-3734
40 TAC §§97.241, 97.242, 97.245 - 97.247, 97.249, 97.250, 97.252, 97.253, 97.257
The amendments are adopted under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS; and Texas Health and Safety Code, Chapter 142, which provides DADS
with the authority to adopt rules for licensing and regulation of home and
community support services agencies.
§97.241.Management.
(a)
Agency policies. The license holder is responsible for
the conduct of the agency and for the adoption, implementation, enforcement,
and monitoring of adherence to the written policies required throughout this
chapter. The license holder is also responsible for ensuring that the policies
comply with the statute and the applicable provisions of this chapter and
are administered to provide safe, professional, quality health care.
(b)
Criminal conviction. The license holder, the controlling
person, the affiliate, the administrator, or the alternate administrator must
at no time during the licensure period be convicted of:
(1)
a crime listed in Health and Safety Code, §250.006
(relating to Convictions Barring Employment);
(2)
a crime relating to deceptive business practices;
(3)
a misdemeanor of practicing any health-related profession
without a required license;
(4)
a crime under any federal or state law relating to drugs,
dangerous drugs, or controlled substances;
(5)
an offense under the Penal Code involving a client or client
of a health care facility or agency; or
(6)
a misdemeanor or felony offense under the Penal Code, as
follows:
(A)
Title 5, concerning offenses against the person;
(B)
Title 7, concerning offenses against the property;
(C)
Title 9, concerning offenses against public order and decency;
(D)
Title 10, concerning offenses against public health, safety,
and morals; or
(E)
Title 4, concerning offenses of attempting or conspiring
to attempt any of the offenses listed herein.
(c)
Documentation. The license holder must ensure that all
documents submitted to DADS or maintained by the agency pursuant to this chapter
are accurate and do not misrepresent or conceal a material fact.
(d)
Compliance with enforcement orders. The license holder
must comply with an order of the DADS commissioner or other enforcement orders
that may be imposed on the agency in accordance with the statute and this
chapter.
§97.250.Investigations.
(a)
Written policy. An agency must adopt and enforce a written
policy relating to the agency's procedures for investigating complaints and
reports of abuse, neglect, and exploitation. The policy must meet the requirements
of this section.
(b)
Reports of abuse, neglect, and exploitation (ANE).
(1)
An agency must initiate an investigation of known and alleged
acts of ANE by agency employees, including volunteers and contractors, immediately
upon witnessing the act or upon receipt of the allegation.
(2)
An agency must send a written report of the investigation
to DADS state office no later than the tenth day after reporting the act to
DADS and the Department of Family and Protective Services.
(3)
An agency must complete the written report using the Provider
Investigation form and include the following information:
(A)
incident date;
(B)
the alleged victim;
(C)
the alleged perpetrator;
(D)
any witnesses;
(E)
the allegation;
(F)
any injury or adverse affect;
(G)
any assessments made;
(H)
any treatment required;
(I)
the investigation summary; and
(J)
any action taken.
(c)
Other investigations.
(1)
An agency must investigate complaints made by a client,
a client's family or guardian, or a client's health care provider, in accordance
with this subsection, regarding:
(A)
treatment or care that was furnished by the agency;
(B)
treatment or care that the agency failed to furnish; or
(C)
a lack of respect for the client's property by anyone furnishing
services on behalf of the agency.
(2)
An agency must:
(A)
document the receipt of the complaint and initiate a complaint
investigation within 10 days after the agency's receipt of the complaint;
(B)
document all components of the investigation; and
(C)
complete the investigation and documentation within 30
days after the agency receives the complaint, unless the agency has and documents
reasonable cause for a delay.
(d)
Retaliation.
(1)
An agency may not retaliate against a person for filing
a complaint, presenting a grievance, or providing, in good faith, information
relating to home health, hospice, or personal assistance services provided
by the agency.
(2)
An agency is not prohibited from terminating an employee
for a reason other than retaliation.
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 February 16, 2006.
TRD-200600846
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Effective date: June 1, 2006
Proposal publication date: October 14, 2005
For further information, please call: (512) 438-3734
40 TAC §§97.281 - 97.283, 97.285, 97.287, 97.288, 97.290, 97.291, 97.298 - 97.301
The amendments are adopted under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS; and Texas Health and Safety Code, Chapter 142, which provides DADS
with the authority to adopt rules for licensing and regulation of home and
community support services agencies.
§97.282.Client Conduct and Responsibility and Client Rights.
(a)
An agency must adopt and enforce a written policy governing
client conduct and responsibility and client rights in accordance with this
section. The written policy must include a grievance mechanism under which
a client can participate without fear of reprisal.
(b)
An agency must protect and promote the client's rights.
(c)
An agency must comply with the provisions of the Human
Resources Code, Chapter 102, concerning the rights of the elderly.
(d)
At the time of admission, an agency must provide each person
who receives licensed home health services, licensed and certified home health
services, hospice services, or personal assistance services with a written
statement that informs the client that a complaint against the agency may
be directed to the Department of Aging and Disability Services, DADS' Consumer
Rights and Services Division, P.O. Box 149030, Austin, Texas 78714-9030, toll
free 1-800-458-9858. The statement also may inform the client that a complaint
against the agency may be directed to the administrator of the agency. The
statement about complaints directed to the administrator also must include
the time frame in which the agency will review and resolve the complaint.
(e)
In advance of furnishing care to the client or during the
initial evaluation visit before the initiation of treatment, an agency must
provide each client or their legal representative with a written notice of
all policies governing client conduct and responsibility and client rights.
(f)
A client has the following rights:
(1)
A client has the right to be informed in advance about
the care to be furnished, the plan of care, expected outcomes, barriers to
treatment, and any changes in the care to be furnished. The agency must ensure
that written informed consent that specifies the type of care and services
that may be provided by the agency has been obtained for every client, either
from the client or their legal representative. The client or the legal representative
must sign or mark the consent form.
(2)
A client has the right to participate in the planning of
the care or treatment and in planning changes in the care or treatment.
(A)
An agency must advise or consult with the client or legal
representative in advance of any change in the plan of care.
(B)
A client has the right to refuse care and services.
(C)
A client has the right to be informed, before care is initiated,
of the extent to which payment may be expected from the client, third-party
payers, and any other source of funding known to the agency.
(3)
A client has the right to have assistance in understanding
and exercising his rights. The agency must maintain documentation showing
that it has complied with the requirements of this paragraph and that the
client demonstrates understanding of his rights.
(4)
A client has the right to exercise his rights as a client
of the agency.
(5)
A client has the right to have his person and property
treated with consideration, respect, and full recognition of his individuality
and personal needs.
(6)
A client has the right to confidential treatment of his
personal and medical records.
(7)
A client has the right to voice grievances regarding treatment
or care that is or fails to be furnished, or regarding the lack of respect
for property by anyone who is furnishing services on behalf of the agency
and must not be subjected to discrimination or reprisal for doing so.
(g)
In the case of a client adjudged incompetent, the rights
of the client are exercised by the person appointed by law to act on the client's
behalf.
(h)
In the case of a client who has not been adjudged incompetent,
any legal representative may exercise the client's rights to the extent permitted
by law.
§97.285.Infection Control.
An agency must adopt and enforce written policies addressing infection
control, including the prevention of the spread of infectious and communicable
disease. The policies must:
(1)
ensure compliance by the agency, its employees, and its
contractors with:
(A)
the Communicable Disease Prevention and Control Act, Health
and Safety Code, Chapter 81;
(B)
the Occupational Safety and Health Administration (OSHA),
29 CFR Part 1910.1030 and Appendix A relating to Bloodborne Pathogens; and
(C)
the Health and Safety Code, Chapter 85, Subchapter I, concerning
the prevention of the transmission of human immunodeficiency virus and hepatitis
B virus; and
(2)
require documentation of infections that the client acquires
while receiving services from the agency.
(A)
If an agency is licensed to provide services other than
personal assistance services, documentation must include the date that the
infection was detected, the client's name, primary diagnosis, signs and symptoms,
type of infection, pathogens identified, and treatment.
(B)
If an agency is licensed to provide only personal assistance
services, documentation must include the date that the infection was disclosed
to the agency employee, the client's name, and treatment as disclosed by the
client.
§97.288.Coordination of Services.
(a)
An agency must adopt and enforce a written policy that
requires effective coordination of care with all service providers involved
in the care of a client, including physicians, contracted health care professionals,
and other agencies.
(b)
The agency must document the steps taken to meet subsection
(a) of this section in the client record.
§97.291.Agency Dissolution.
An agency must adopt and enforce a written policy that describes the
agency's written contingency plan.
(1)
The plan must be implemented in the event of dissolution
to assure continuity of client care.
(2)
The plan must:
(A)
be consistent with §97.295 of this title (relating
to Client Transfer or Discharge Notification Requirements);
(B)
include procedures for:
(i)
notifying the client of the agency's dissolution;
(ii)
documenting the notification;
(iii)
carrying out the notification; and
(C)
comply with §97.217(a)(2) of this chapter (relating
to Agency Closure Procedures and Voluntary Suspension of Operations).
§97.300.Medication Administration.
(a)
This section applies only to clients to whom agency staff
administer medications.
(b)
An agency must adopt and enforce a written policy for maintaining
a current medication list and a current medication administration record.
(1)
A client's practitioner must order administration of medication.
(2)
An agency may incorporate a current medication list and
medication administration record into one document.
(A)
An agency must use the medication list to identify possible
ineffective drug therapy or adverse reactions, significant side effects, drug
allergies, and contraindications.
(B)
An agency must document in the medication administration
record or clinical notes any medication that is not administered and the reason
it was not administered.
(3)
An individual delivering care must report any adverse reaction
to a supervisor and document this in the client's record on the day of occurrence.
If the adverse reaction occurs after regular business hours, the individual
delivering care must report the adverse reaction as soon as it is disclosed.
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 February 16, 2006.
TRD-200600847
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Effective date: June 1, 2006
Proposal publication date: October 14, 2005
For further information, please call: (512) 438-3734
40 TAC §97.321, §97.322
The amendments are adopted under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS; and Texas Health and Safety Code, Chapter 142, which provides DADS
with the authority to adopt rules for licensing and regulation of home and
community support services agencies.
§97.321.Standards for Branch Offices.
(a)
A branch office operates as a part of the parent agency
and must comply with the same regulations as the parent agency. The parent
agency is responsible for ensuring that its branches comply with licensing
standards.
(b)
A branch office providing licensed and certified home health
services must comply with the standards for certified agencies in §97.402
of this chapter (relating to Standards Specific to Licensed and Certified
Home Health Services).
(c)
The service area of a branch office must be located within
the parent agency's service area.
(1)
A branch office must not provide services outside its licensed
service area.
(2)
A branch office must maintain adequate staff to provide
services and to supervise the provision of services within the service area.
(3)
A branch office may expand its service area at any time
during the licensure period.
(A)
Unless exempted under subparagraph (B) of the paragraph,
a branch office must submit to DADS a written notice to expand its service
area at least 30 days before the expansion. The notice must include:
(i)
revised boundaries of the branch office's original service
area;
(ii)
the effective date of the expansion; and
(iii)
an updated list of management and supervisory personnel
(including names), if changes are made.
(B)
An agency is exempt from the 30-day written notice requirement
under subparagraph (A) of this paragraph if DADS determines an emergency exists
that would impact client health and safety. An agency must notify DADS immediately
of a possible emergency. DADS determines if an exemption can be granted.
(4)
A branch office may reduce its service area at any time
during the licensure period by sending DADS written notification of the reduction,
revised boundaries of the branch office's original service area, and the effective
date of the reduction.
(d)
A parent agency and a branch office providing home health
or personal assistance services must meet the following requirements:
(1)
The parent agency administrator or alternate administrator,
or supervising nurse or alternate supervising nurse must conduct an on-site
supervisory visit to the branch office at least monthly. The parent agency
may visit the branch office more frequently considering the size of the service
area and the scope of services provided by the parent agency. The supervisory
visits must be documented and include the date of the visit, the content of
the consultation, the individuals in attendance, and the recommendations of
the staff.
(2)
The original active clinical record must be kept at the
branch office.
(3)
The parent agency must approve all branch office policies
and procedures. This approval must be documented and filed in the parent and
branch offices.
(e)
DADS issues or renews a branch office license for applicants
who meet the requirements of this section.
(1)
Issuance or renewal of a branch office license is contingent
upon compliance with the statute and this chapter by the parent agency and
branch office.
(2)
DADS may take enforcement action against a parent agency
license for a branch office's failure to comply with the statute or this chapter
in accordance with Subchapter F of this chapter (relating to Enforcement).
(3)
Revocation, suspension, denial, or surrender of a parent
agency license will result in the same revocation, suspension, denial, or
surrender of a branch office license for all branch office licenses of the
parent agency.
(f)
A branch office may offer fewer health services or categories
than the parent office but may not offer health services or categories that
are not also offered by the parent agency.
§97.322.Standards for Alternate Delivery Sites.
(a)
An alternate delivery site must comply with §97.403
of this chapter (relating to Standards Specific to Agencies Licensed to Provide
Hospice Services).
(b)
An alternate delivery site must independently meet §97.403(c),
(f)(1), and (i) of this chapter, and §97.301 of this chapter (relating
to Client Records).
(c)
An alternate delivery site must be established within the
parent agency's service area.
(1)
An alternate delivery site must not provide services outside
its licensed service area.
(2)
An alternate delivery site must maintain adequate staff
to provide services and to supervise the provision of services within the
service area.
(3)
An alternate delivery site may expand its service area
at any time during the licensure period.
(A)
Unless exempted under subparagraph (B) of this paragraph,
an alternate delivery site must submit to DADS a written notice to expand
its service area at least 30 days before the expansion. The notice must include:
(i)
revised boundaries of the alternate delivery site's original
service area;
(ii)
the effective date of the expansion; and
(iii)
an updated list of management and supervisory personnel
(including names), if changes are made.
(B)
An agency is exempt from the 30-day written notice requirement
under subparagraph (A) of this paragraph if DADS determines that an emergency
exists that would impact client health and safety. An agency must notify DADS
immediately of a possible emergency. DADS determines if an exemption can be
granted.
(4)
An alternate delivery site may reduce its service area
at any time during the licensure period by sending DADS written notification
of the reduction, revised boundaries of the alternate delivery site's original
service area, and the effective date of the reduction.
(d)
A parent agency and an alternate delivery site must meet
the following requirements:
(1)
The parent agency administrator or alternate administrator,
or supervising nurse or alternate supervising nurse must conduct an on-site
supervisory visit to the alternate delivery site at least monthly. The parent
agency may visit the alternate delivery site more frequently considering the
size of the service area provided by the parent agency. The supervisory visits
must be documented and include the date of the visit, the content of the consultation,
the individuals in attendance, and the recommendations of the staff.
(2)
The original active clinical record must be kept at the
alternate delivery site.
(3)
The parent agency must approve all alternate delivery site
policies and procedures. This approval must be documented and filed in the
parent and alternate delivery sites.
(e)
DADS issues or renews an alternate delivery site license
for applicants who meet the requirements of this section.
(1)
Issuance or renewal of an alternate delivery site license
is contingent upon compliance with the statute and this chapter by the parent
agency and alternate delivery site.
(2)
DADS may take enforcement action against a parent agency
license for an alternate delivery site's failure to comply with the statute
or this chapter in accordance with Subchapter F of this chapter (relating
to Enforcement).
(3)
Revocation, suspension, denial or surrender of a parent
agency license will result in the same revocation, suspension, denial or surrender
of all alternate delivery site licenses of the parent agency.
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 February 16, 2006.
TRD-200600848
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Effective date: June 1, 2006
Proposal publication date: October 14, 2005
For further information, please call: (512) 438-3734
40 TAC §97.501, §97.502
The repeal is adopted under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS; and Texas Health and Safety Code, Chapter 142, which provides DADS
with the authority to adopt rules for licensing and regulation of home and
community support services agencies.
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 February 16, 2006.
TRD-200600849
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Effective date: June 1, 2006
Proposal publication date: October 14, 2005
For further information, please call: (512) 438-3734
1.
GENERAL
40 TAC §§97.501, 97.503, 97.505, 97.507, 97.509
The new sections are adopted under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS; and Texas Health and Safety Code, Chapter 142, which provides DADS
with the authority to adopt rules for licensing and regulation of home and
community support services agencies.
§97.501.Survey Frequency.
(a)
At a minimum, DADS:
(1)
conducts an initial survey after an agency has notified
DADS of its readiness. See §97.521 of this chapter (relating to Requirements
for an Initial Survey);
(2)
conducts a survey of the agency within 18 months after
conducting an initial survey and conducts subsequent surveys at least every
36 months thereafter;
(3)
conducts a survey to investigate a complaint regarding
the provision of licensed home health services, licensed and certified home
health services, hospice services, or personal assistance services that is
alleged to have violated this chapter or the statute; and
(4)
conducts a survey to investigate a complaint regarding
the provision of licensed and certified home health services or hospice services
that is alleged to have violated federal requirements.
(b)
DADS may conduct a survey for the renewal of a license
or the issuance of a branch office or alternate delivery site license.
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 February 16, 2006.
TRD-200600850
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Effective date: June 1, 2006
Proposal publication date: October 14, 2005
For further information, please call: (512) 438-3734
40 TAC §§97.521, 97.523, 97.525, 97.527
The new sections are adopted under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS; and Texas Health and Safety Code, Chapter 142, which provides DADS
with the authority to adopt rules for licensing and regulation of home and
community support services agencies.
§97.521.Requirements for an Initial Survey.
(a)
An agency must admit at least one client and initiate services
within six months of receiving an initial license.
(b)
An agency is not required to admit a client under each
category authorized under a license to be surveyed by DADS. An agency seeking
licensure to provide licensed home health services or licensed-only hospice
services must have admitted and served at least one client in the respective
category.
(c)
An agency must submit a written request for an initial
survey to the designated survey office at least six months before the expiration
date of the initial license, unless an agency is exempt as described in subsection
(f) of this section. The written request must include:
(1)
the date of admission of the first client; and
(2)
the name of the client.
(d)
An agency must have the following information available
and ready for review by a surveyor upon the surveyor's arrival:
(1)
a list of clients who are receiving services or who have
received services from the agency for each category of service licensed. The
list must comply with the requirements of §97.293 of this chapter (relating
to Client List and Services);
(2)
the client records for each client admitted during the
licensing period before the initial survey;
(3)
all agency policies as required by this chapter; and
(4)
all personnel records of agency employees.
(e)
If an agency fails to meet the requirements of this section,
DADS may propose to revoke or suspend an initial license.
(f)
An initial survey is not required if an agency receives
notice of accreditation from CHAP or JCAHO after the issuance of the initial
license.
§97.523.Personnel Requirements for a Survey.
(a)
For an initial survey, the administrator or alternate administrator
must be present at the entrance conference, available in person or by telephone
during the survey, and present in person at the exit conference.
(b)
For a survey other than an initial survey, the administrator
or alternate administrator must be available in person or by telephone during
the entrance conference and the survey, and must be present in person at the
exit conference.
(c)
The supervising nurse or alternate supervising nurse must
be available in person or by telephone, if necessary, to provide information
unique to the duties and functions of the position during the survey.
(d)
If a required individual is unavailable during the survey
process and is not at the agency when the surveyor arrives, the surveyor makes
reasonable attempts to contact the individual.
(e)
If a surveyor arrives during regular business hours and
the agency is closed, an administrator, alternate administrator, or a designated
agency representative must provide the surveyor entry to the agency within
two hours after the surveyor's arrival at the agency. The administrator must
designate in writing the agency representatives who may grant entry to a surveyor.
The agency must comply with notice requirements described in §97.210
of this chapter (relating to Agency Operating Hours).
(f)
If the surveyor is unable to contact a required individual
or the agency fails to comply with subsection (e) of this section, the surveyor
may recommend enforcement action against the agency.
(g)
If compliance with this section would cause an interruption
in client care being provided by the administrator, the alternate administrator,
the supervising nurse, or the alternate supervising nurse, the administrator
must contact its backup service provider to ensure continued client care.
§97.525.Survey Procedures.
(a)
Before beginning a survey, a surveyor holds an entrance
conference with the required agency personnel to explain the purpose of the
survey and the survey process and provides the personnel an opportunity to
ask questions.
(1)
A surveyor:
(A)
conducts at least three home visits to determine an agency's
compliance with licensing requirements;
(B)
reviews any agency records that the surveyor believes are
necessary to determine an agency's compliance with licensing requirements;
and
(C)
evaluates an agency's compliance with each standard.
(2)
If a surveyor requests an agency record that is stored
at a location other than the survey site, an agency must provide the original
record to the surveyor within eight working hours. Failure to comply may result
in enforcement action as described in §97.507 of this chapter (relating
to Agency Cooperation with a Survey).
(b)
An agency accredited by CHAP or JCAHO must have the documentation
of accreditation available at the time of a survey.
(c)
An agency must provide the surveyor access to all agency
records maintained by or on behalf of an agency.
(d)
DADS keeps agency records confidential, except as allowed
by Health and Safety Code, §142.009(d).
(e)
A surveyor may remove original agency records from an agency
only with the consent of the agency as provided in Health and Safety Code, §142.009(e).
(f)
An agency must provide copies of agency records upon request
by the surveyor.
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 February 16, 2006.
TRD-200600851
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Effective date: June 1, 2006
Proposal publication date: October 14, 2005
For further information, please call: (512) 438-3734
40 TAC §§97.601, 97.602, 97.604
The repeal is adopted under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS; and Texas Health and Safety Code, Chapter 142, which provides DADS
with the authority to adopt rules for licensing and regulation of home and
community support services agencies.
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 February 16, 2006.
TRD-200600852
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Effective date: June 1, 2006
Proposal publication date: October 14, 2005
For further information, please call: (512) 438-3734
Subchapter B. APPLICATION AND ISSUANCE OF A LICENSE
Subchapter B. CRITERIA AND ELIGIBILITY, APPLICATION PROCEDURES, AND ISSUANCE OF A LICENSE
Subchapter C. MINIMUM STANDARDS FOR ALL HOME AND COMMUNITY SUPPORT SERVICES AGENCIES
2.
CONDITIONS OF A LICENSE
2.
CONDITIONS OF LICENSE
3.
AGENCY ADMINISTRATION
4.
PROVISION AND COORDINATION OF TREATMENT AND SERVICES
5.
BRANCH OFFICES AND ALTERNATE DELIVERY SITES
Subchapter E. SURVEYS
Subchapter E. LICENSURE SURVEYS
2.
THE SURVEY PROCESS
Subchapter F. ENFORCEMENT