Part 1. DEPARTMENT OF AGING AND DISABILITY SERVICES
Chapter 92. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES
The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §§92.10, 92.15, 92.20, and 92.51 in Chapter 92, Licensing Standards for Assisted Living Facilities. The amendments to §§92.15, 92.20, and 92.51 are adopted with changes to the proposed text published in the October 19, 2007, issue of the Texas Register (32 TexReg 7433). The amendment to §92.10 is adopted without changes to the proposed text.
The amendments are adopted to implement portions of Senate Bill (SB) 1318, 80th Legislature, Regular Session, 2007. Senate Bill 1318, in part, amended Texas Health and Safety Code, §247.023 to provide that a license DADS issues to an assisted living facility is valid for two years; to allow the HHSC executive commissioner, on behalf of DADS, to adopt a system under which a license expires on various dates during the two-year period; and to prorate the license fee for the year in which a license expiration date is changed. The adopted amendments revise references from a one-year license to a two-year license and establish a staggered system of license renewals and prorated license fees, including renewals and fees for the licensing of Alzheimer's facilities, for the first two years in which the rules are in effect.
Senate Bill 1318 also amended Texas Health and Safety Code, §247.024, to raise the maximum amount of a license fee to $1,500. The adopted amendments set new license fees to accommodate the new two-year license period and change the maximum license fee from $750 to $1,500.
DADS received no comments regarding adoption of the amendments. However, DADS changed §§92.15(b)(1), 92.20(b), and 92.51(f)(1) to replace the phrase ". . . after the effective date of this section . . ." with ". . . beginning September 1, 2008, . . ." to provide a specific date on which the two-year time frame for the staggered system of license renewals and prorated license fees begins.
Subchapter B. APPLICATION PROCEDURES
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 247, which authorizes DADS to license and regulate assisted living facilities.
§92.15.Renewal Procedures and Qualifications.
(a) Each license issued under this chapter must be renewed before the license expiration date. Each license expires two years from the date issued, except as provided by subsection (b)(1) of this section. A license issued under this chapter is not automatically renewed.
(b) A facility must submit an application for license renewal and a renewal license will be valid as follows:
(1) For two years beginning September 1, 2008, a facility with a facility identification number that ends in an odd number (1, 3, 5, 7, or 9) must submit an application to renew its license before the expiration date on the license in accordance with this section. The facility's first renewal license issued beginning September 1, 2008, is valid for one year, and subsequent renewal licenses are valid for two years.
(2) A facility with a facility identification number that ends in an even number (0, 2, 4, 6, or 8) must submit an application to renew its license before the expiration date on the license in accordance with this section. The facility's renewal licenses are valid for two years.
(c) Each license holder must, at least 45 days before the expiration of the current license, file an application for renewal with DADS. DADS considers that an individual has filed a timely and sufficient application for the renewal of a license if the license holder submits:
(1) a complete application to DADS, and DADS receives the complete application at least 45 days before the current license expires;
(2) an incomplete application to DADS with a letter explaining the circumstances that prevented the inclusion of the missing information, and DADS receives the incomplete application and letter at least 45 days before the current license expires; or
(3) a complete application to DADS, DADS receives the application during the 45-day period ending on the date the current license expires, and the license holder pays a fine under the administrative penalties described in Subchapter H, Division 9 of this chapter (relating to Administrative Penalties).
(d) If the application is postmarked by the filing deadline, the application is considered to be timely filed if received in DADS' Licensing and Credentialing Section, Regulatory Services Division, within 15 days after the date of the postmark, or within 30 days after the date of the postmark and the license holder proves to the satisfaction of DADS that the delay was due to the shipper. It is the license holder's responsibility to ensure that the application is timely received by DADS.
(e) Failure to file a timely and sufficient application will result in the expiration of the license.
(f) The application for renewal must contain:
(1) information as required by §92.12 of this chapter (relating to Applicant Disclosure Requirements);
(2) the license fee as described in §92.20 of this subchapter (relating to License Fees); and
(3) if applicable under subsection (h)(2) of this section, a copy of the license holder's required accreditation report to the accreditation commission.
(g) The renewal of a license may be denied for the same reasons an original application for a license may be denied (see §92.17 of this chapter (relating to Criteria for Denying a License or Renewal of a License)).
(h) A license holder applying for license renewal must affirmatively show that the facility meets:
(1) DADS licensing standards based on an on-site survey by DADS, which must include an observation of the care of a resident; or
(2) the standards required for accreditation based on an on-site accreditation survey by the accreditation commission.
(i) A license holder applying for license renewal that chooses the option allowed in subsection (h)(2) of this section must contact DADS to determine which accreditation commissions are available to meet the requirements of subsection (h)(2) of this section.
§92.20.License Fees.
(a) Basic fees.
(1) Type A, Type B, and Type E. The license fee is $200 plus $10 for each bed for which a license is sought, with a maximum of $1,500. The license fee for a one-year license issued in accordance with §92.15(b)(1) of this subchapter (relating to Renewal Procedures and Qualifications) is $100 plus $5 for each bed for which a license is sought, with a maximum of $750. The fee must be paid with each initial application and with each renewal application.
(2) Type C. The license fee is $100. The license fee for a one-year license issued in accordance with §92.15(b)(1) of this subchapter is $50. The fee must be paid with each initial application and with each renewal application.
(3) Provisional license. The license fee is $75, plus $5 for each bed for which a license is sought, with a maximum of $750.
(4) Increase in beds. An approved increase in beds is subject to an additional fee of $10 for each bed.
(b) Alzheimer's certification. In addition to the basic license fee described in subsection (a) of this section, a facility that applies for certification to provide specialized services to persons with Alzheimer's disease or related conditions under Subchapter C of this chapter (relating to Standards for Licensure) must pay an additional license fee. The additional fee is $200, except the additional fee for a facility renewing its Alzheimer's certification in accordance with §92.51(f)(1) of this chapter (relating to Licensure of Facilities for Persons with Alzheimer's Disease) is $100 for the first renewal beginning September 1, 2008.
(c) Trust fund fee.
(1) In addition to the basic license fee described in subsection (a) of this section, the Department of Aging and Disability Services (DADS) has established a trust fund for the use of a court-appointed trustee as described in the Health and Safety Code, Chapter 242, Subchapter D, and Chapter 247, §247.003(b).
(2) DADS charges and collects an annual fee from each institution licensed under Health and Safety Code, Chapter 247, each calendar year if the amount of the assisted living trust fund is less than $500,000. The fee is deposited to the credit of the assisted living facility trust fund. The fee is based on a monetary amount specified for each licensed unit of capacity or bed space, and is in an amount sufficient to provide not more than $500,000 in the trust fund. In calculating the fee, the amount will be rounded to the next whole cent.
(3) DADS may charge and collect a trust fund fee more than once a year only if necessary to ensure that the amount in the assisted living trust fund is sufficient to make the disbursements required under Health and Safety Code, §242.0965.
(4) Failure to pay the trust fund fee within 90 days from the date assessed by DADS may result in an assessment of an administrative penalty under the administrative penalties described in Subchapter H, Division 9 of this chapter (relating to Administrative Penalties).
(d) Fees for plan reviews.
(1) DADS charges a fee to review plans for new buildings, additions, conversion of buildings not licensed by DADS, or remodeling of existing licensed facilities.
(2) The fee schedule is as follows.
(A) New small Type A (4 to 16 beds based on residential board and care occupancy of the Life Safety Code, Chapter 21-2 Slow):
(i) Single story--$900;
(ii) Multiple story--$1,100; and
(iii) Additions or remodeling--2% of construction cost with a $350 minimum fee and a maximum of 50% of the plan review fee for a new facility of the same type.
(B) New large Type A (17 or more beds based on residential board and care of the Life Safety Code, Chapter 21-3):
(i) Single story:
(I) facilities with 17-80 beds--$1,100;
(II) facilities with 81-120 beds--1,650; and
(III) facilities with 121+ beds--$14 per bed.
(ii) Multiple story:
(I) facilities with 17-80 beds--$1,650;
(II) facilities with 81-120 beds--$2,150; and
(III) facilities with 121+ beds--$18 per bed.
(iii) Additions or remodeling--2% of construction cost with a $400 minimum fee and a maximum of 50% of the plan review fee for a new facility of the same type.
(C) New small Type B (4 to 16 beds based on residential board and care occupancy of the Life Safety Code, Chapter 21-2 Impractical):
(i) Single story--$1,100;
(ii) Multiple story--$1,650;
(iii) Additions or remodeling--2% of construction cost with a $350 minimum fee and a maximum of 50% of the plan review fee for a new facility of the same type; and
(iv) Alzheimer's certification--$350 (in addition to above fees).
(D) New large Type B (17 or more beds based on the health care occupancy of the Life Safety Code, Chapter 12):
(i) Single story:
(I) facilities with 17-80 beds--$1,600;
(II) facilities with 81-120 beds--$2,150;
(III) facilities with 121+ beds--$18 per bed;
(ii) Multiple story:
(I) facilities with 17-80 beds--$2,100;
(II) facilities with 81-120 beds--$2,650;
(III) facilities with 121+ beds--$22 per bed;
(iii) Additions or remodeling--2% of construction cost with $500 minimum fee and a maximum of 50% of the plan review fee for a new facility of the same type; and
(iv) Alzheimer's certification--$550 (in addition to the fees specified in clauses (i) - (iii) of this subparagraph).
(e) Payment of fees. Payment of fees must be by check, cashier's check, or money order made payable to the Department of Aging and Disability Services. All fees are nonrefundable, except as provided by the Texas Government Code, Chapter 2005.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 24, 2008.
TRD-200800346
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: September 1, 2008
Proposal publication date: October 19, 2007
For further information, please call: (512) 438-3734
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 247, which authorizes DADS to license and regulate assisted living facilities.
§92.51.Licensure of Facilities for Persons with Alzheimer's Disease.
(a) Any facility which advertises, markets, or otherwise promotes that the facility or a distinct part of the facility provides specialized care for persons with Alzheimer's disease or related disorders must be certified under this subchapter. Use of advertising terms such as "medication reminders or assistance," "meal and activity reminders," "escort service," or "short-term memory loss, confusion, or forgetfulness" will not trigger a requirement for certification as an Alzheimer's facility.
(b) The facility must be licensed as a Type B facility.
(c) Application for certification must be made on forms prescribed by DADS and must include:
(1) the fee as described in §92.20(b) of this chapter (relating to License Fees); and
(2) a disclosure statement, using DADS' form, describing the nature of its care or treatment of residents with Alzheimer's disease and related disorders, which includes the pre-admission process, the admission process, discharge and transfer, planning and implementation of care, change in condition issues, staff training on dementia care, the physical environment, and staffing. The disclosure statement must be updated and submitted to DADS as needed to reflect changes in special services for residents with Alzheimer's disease or related disorders.
(d) The facility must not exceed the maximum number of residents specified on the certificate.
(e) A certificate must be posted in a prominent location for public view.
(f) A certificate is valid for two years from the effective date of approval by DADS, except as provided in paragraph (1) of this subsection.
(1) For two years beginning September 1, 2008, an Alzheimer's facility with a facility identification number that ends in an odd number (1, 3, 5, 7, or 9) must submit an application to renew its certification as an Alzheimer's facility in accordance with this section. The facility's first renewal certificate issued beginning September 1, 2008, is valid for one year, and subsequent renewal certificates are valid for two years.
(2) An Alzheimer's facility with a facility identification number that ends in an even number (0, 2, 4, 6, or 8) must submit an application to renew its certification as an Alzheimer's facility in accordance with this section. The facility's renewal certificates are valid for two years.
(g) A certificate will be cancelled upon change of ownership and if DADS finds that the certified unit or facility is not in compliance with applicable laws and rules. A facility must remove a cancelled certificate from display and advertising, and the certificate must be surrendered to DADS upon request.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 24, 2008.
TRD-200800347
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: September 1, 2008
Proposal publication date: October 19, 2007
For further information, please call: (512) 438-3734
The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §§97.2, 97.244, 97.256, 97.292, 97.295, 97.298, 97.299, 97.301, 97.403 - 97.405, and 97.602; new §97.259 and §97.260; and the repeal of §97.259, in Chapter 97, Licensing Standards for Home and Community Support Services Agencies. The amendments to §§97.2, 97.256, and 97.405 are adopted with changes to the proposed text published in the October 19, 2007, issue of the Texas Register (32 TexReg 7437). The amendments to §§97.244, 97.292, 97.295, 97.298, 97.299, 97.301, 97.403, 97.404, and 97.602; new §97.259 and §97.260; and the repeal of §97.259 are adopted without changes to the proposed text.
The amendments are adopted to clearly specify the requirements for licensed home and community support services agencies and hospice facilities to develop, maintain, and implement a comprehensive emergency preparedness and response plan. The adoption addresses the health and safety needs of clients who reside in a residence and clients admitted to or residing in a hospice facility during a disaster.
The adopted amendments on emergency planning conform with the recommendations of DADS' Emergency Task Force; the Governor's Task Force on Evacuation, Transportation, and Logistics; a written report from the United States Government Accountability Office on disaster preparedness for vulnerable populations; and current guidance from the Centers for Medicare and Medicaid Services on emergency preparedness. The recommendations were made in response to the lessons learned by federal, state, and local governments from the devastating hurricane season of 2005 in an effort to improve public health emergency preparedness and response.
The amendments are also adopted in response to Executive Order RP57, issued by the Governor of the State of Texas on March 21, 2006. This order directed coordination among DADS and other state entities to ensure the safe and efficient evacuation of Texans with special needs in the event of a disaster. This includes developing criteria for evacuation plans for all special needs facilities and ensuring that local jurisdictions approve evacuation plans maintained by special needs facilities.
The adoption of new §97.259 ensures that any initial training obtained prior to designation is obtained within the 12 months immediately preceding the date of designation to the position, allows a person to obtain the additional 16 hours of training prior to the date of designation, and adds that any of the additional 16 hours of initial training not on topics specified in this section may include other subjects related to the duties of an administrator.
The adoption of new §97.260 adds documentation requirements for continuing education and adds that any of the 12 hours of continuing education that are not on topics specified in this section may include other subjects related to the duties of an administrator.
Five minor editorial changes were made to the texts of §§97.2, 97.256, and 97.405 to clarify and improve the accuracy of the sections.
DADS received a written comment from the Coalition for Nurses in Advanced Practice (CNAP). A summary of the comment and the response follow.
Comment: Since the word "practitioner" is defined in the Texas State Board of Pharmacy Rules in 22 TAC §291.31 (relating to definitions) as including physicians and advanced practice nurses as practitioners who may prescribe medications, biologicals, and medical devices, CNAP recommended changing the word "physician" in §97.405(y)(1) to "practitioner." They also noted that "practitioner" is also defined in §97.2(76) of this chapter.
Response: The agency agrees that a physician's duties, including those referenced in §97.405(y)(1), may be delegated in accordance with applicable state law, including Chapter 157 of the Occupations Code. However, the agency prefers to make such a clarifying change when it can make similar changes to other sections in the chapter at the same time. Therefore, the agency declines to make the suggested change at this time.
Subchapter A. GENERAL PROVISIONS
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 the Aging and Disability Services Council with the authority to make recommendations regarding rules governing 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 Texas Board of Nursing to practice as an advanced practice nurse and who maintains compliance with the applicable rules of the Texas Board of Nursing. See the Texas Board of Nursing's definition of advanced practice nurse in 22 TAC §221.1 (concerning definitions).
(6) Advisory committee--A committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup, established for the purpose of obtaining advice or recommendations on issues or policies that are within the scope of a person's responsibility.
(7) 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.
(8) Agency--A home and community support services agency.
(9) 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.
(10) 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.
(11) 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.
(12) Association--A partnership, limited liability company, or other business entity that is not a corporation.
(13) Audiologist--A person who is currently licensed under the Occupations Code, Chapter 401, as an audiologist.
(14) Bereavement--The process by which a survivor of a deceased person mourns and experiences grief.
(15) Bereavement services--Support services offered to a family during bereavement. Family includes a significant other(s).
(16) 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.
(17) 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.
(18) 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.
(19) 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.).
(20) Certified home health services--Home health services that are provided by a certified agency.
(21) 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.
(22) 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.
(23) 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.
(24) 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.
(25) 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.
(26) Community disaster resources--A local, statewide, or nationwide emergency system that provides information and resources during a disaster, including weather information, transportation, evacuation, and shelter information, disaster assistance and recovery efforts, evacuee and disaster victim resources, and resources for locating evacuated friends and relatives.
(27) 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.
(28) Conviction--An adjudication of guilt based on a finding of guilt, a plea of guilty, or a plea of nolo contendere.
(29) 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.
(30) DADS--Department of Aging and Disability Services.
(31) Day--Any reference to a day means a calendar day, unless otherwise specified in the text. A calendar day includes weekends and holidays.
(32) Deficiency--A finding of noncompliance with federal requirements resulting from a survey.
(33) Designated survey office--A DADS Home and Community Support Services Agencies Program office located in an agency's geographic region.
(34) 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.
(35) 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.
(36) Disaster--The occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from a natural or man-made cause, such as fire, flood, earthquake, wind, storm, wave action, oil spill or other water contamination, epidemic, air contamination, infestation, explosion, riot, hostile military or paramilitary action, or energy emergency. In a freestanding hospice, a disaster also includes failure of the heating or cooling system, power outage, explosion, and bomb threat.
(37) 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.
(38) 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.
(39) Functional need--Needs of the individual that require services without regard to diagnosis or label.
(40) Health assessment--A determination of a client's physical and mental status through inventory of systems.
(41) 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.
(42) 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).
(43) Home health medication aide--A person permitted under the Health and Safety Code, Chapter 142, Subchapter B.
(44) 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.
(45) 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.
(46) 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.
(47) 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.
(48) Individual/family choice and control--Individuals and families who express preferences and make choices about how their support service needs are met.
(49) 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.
(50) Inpatient unit--A facility that provides a continuum of 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.
(51) IRoD--Informal review of deficiencies. An informal process that allows an agency to refute a deficiency or violation cited during a survey.
(52) 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.
(53) Licensed vocational nurse--A person who is currently licensed under Occupations Code, Chapter 301, as a licensed vocational nurse.
(54) Life Safety Code (also referred to as NFPA 101)--The Code for Safety to Life from Fire in Buildings and Structures, Standard 101, of the National Fire Protection Association (NFPA).
(55) 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.
(56) Medication administration record--A record used to document the administration of a client's medications.
(57) 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.
(58) Mitigation--An action taken to eliminate or reduce the probability of a disaster, or reduce a disaster's severity or consequences.
(59) Notarized copy--A sworn affidavit stating that attached copies are true and correct copies of the original documents.
(60) Nursing facility--An institution licensed as a nursing home under the Health and Safety Code, Chapter 242.
(61) 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.
(62) Occupational therapist--A person who is currently licensed under the Occupational Therapy Practice Act, Occupations Code, Chapter 454, as an occupational therapist.
(63) Original active client record--A record composed first-hand for a client currently receiving services.
(64) Palliative care--Intervention services that focus primarily on the reduction or abatement of physical, psychosocial, and spiritual symptoms of a terminal illness.
(65) Parent agency--An agency that develops and maintains administrative controls and provides supervision of branch offices and alternate delivery sites.
(66) Parent company--A person, other than an individual, who has a direct 100% ownership interest in the owner of an agency.
(67) Person--An individual, corporation, or association.
(68) 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 Texas Board of Nursing 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.
(69) 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.
(70) Physical therapist--A person who is currently licensed under Occupations Code, Chapter 453, as a physical therapist.
(71) 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.
(72) Physician assistant--A person who is licensed under the Physician Assistant Licensing Act, Occupations Code, Chapter 204, as a physician assistant.
(73) 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.
(74) 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.
(75) Plan of care--The written orders of a practitioner for a client who requires skilled services.
(76) 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 Texas Board of Nursing as an advanced practice nurse.
(77) Preparedness--Actions taken in anticipation of a disaster.
(78) 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.
(79) 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.
(80) 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.
(81) Recovery--Activities implemented during and after a disaster response designed to return an agency to its normal operations as quickly as possible.
(82) Registered nurse (RN)--A person who is currently licensed under the Nursing Practice Act, Occupations Code, Chapter 301, as a registered nurse.
(83) 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).
(84) Residence--A place where a person resides, including a home, a nursing facility, a convalescent home, or a residential unit.
(85) 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.
(86) Respiratory therapist--A person who is currently licensed under Occupations Code, Chapter 604, as a respiratory care practitioner.
(87) 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.
(88) Response--Actions taken immediately before an impending disaster or during and after a disaster to address the immediate and short-term effects of the disaster.
(89) Section--A reference to a specific rule in this chapter.
(90) Service area--A geographic area established by an agency in which all or some of the agency's services are available.
(91) 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.
(92) Social worker--A person who is currently licensed as a social worker under Occupations Code, Chapter 505.
(93) Speech-language pathologist--A person who is currently licensed as a speech-language pathologist under Occupations Code, Chapter 401.
(94) Statute--The Health and Safety Code, Chapter 142.
(95) Substantial compliance--A finding in which an agency receives no recommendation for enforcement action after a survey.
(96) Supervising nurse--The person responsible for supervising skilled services provided by an agency and who has the qualifications described in §97.244(c) of this chapter (relating to Administrator Qualifications and Conditions and Supervising Nurse Qualifications). This person may also be known as the director of nursing or similar title.
(97) 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.
(98) Support services--Social, spiritual, and emotional care provided to a client and a client's family by a hospice.
(99) 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.
(100) Terminal illness--An illness for which there is a limited prognosis if the illness runs its usual course.
(101) 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.
(102) 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.
(103) Violation--A finding of noncompliance with this chapter or the statute resulting from a survey.
(104) Volunteer--An individual who provides assistance to a home and community support services agency without compensation other than reimbursement for actual expenses.
(105) 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 January 28, 2008.
TRD-200800442
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: May 1, 2008
Proposal publication date: October 19, 2007
For further information, please call: (512) 438-3734
Division 3. AGENCY ADMINISTRATION
40 TAC §§97.244, 97.256, 97.259, 97.260
The amendments and 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 the Aging and Disability Services Council with the authority to make recommendations regarding rules governing licensing and regulation of home and community support services agencies.
§97.256.Emergency Preparedness Planning and Implementation.
An agency must have a written emergency preparedness and response plan, based on its risk assessment required by paragraph (1)(D) of this section, that comprehensively describes its approach to a disaster that could affect the need for its services or its ability to provide those services. An agency must maintain documentation of compliance with this section. With the exception of a freestanding hospice, DADS does not require an agency to physically evacuate or transport a client.
(1) An agency must take the following action to develop, maintain, and implement an emergency preparedness and response plan:
(A) An agency must involve the administrator, supervising nurse if applicable, and, based on the agency's organizational chart, other agency leaders designated by the administrator.
(B) An agency must designate an employee by title, and at least one alternate by title, to act as the agency's disaster coordinator.
(C) An agency must develop a continuity of operations business plan to address emergency financial needs, essential functions for client services, critical personnel, and how to return to normal operations as quickly as possible.
(D) An agency must include a risk assessment to identify the potential disasters from natural and man-made causes most likely to occur in the agency's service area.
(E) An agency must describe the actions and responsibilities for agency staff in each phase of emergency planning, including mitigation, preparedness, response, and recovery. In the response and recovery phases, include actions and responsibilities when warning of an emergency is not provided.
(F) An agency must develop a plan to monitor disaster-related news and information, including after hours, weekends, and holidays, to receive warnings of imminent and occurring disasters.
(G) An agency must describe the following for the response and recovery phases of the plan:
(i) who at the agency will initiate each phase;
(ii) procedures for communicating with:
(I) staff;
(II) clients or someone responsible for a client's emergency response plan;
(III) local, state, and federal emergency management agencies; and
(IV) other entities as applicable, including:
(-a-) DADS;
(-b-) emergency medical services; and
(-c-) other healthcare providers and suppliers; and
(iii) a primary mode of communication and alternate communication or alert systems in the event of telephone or power failure.
(H) An agency must provide the following information and discuss it with each client as part of the agency's written client care policies on how to handle emergencies in the home related to a disaster:
(i) the actions and responsibilities of agency staff during and immediately following an emergency;
(ii) the client's responsibilities in the agency's emergency preparedness and response plan in accordance with §97.282 of this chapter (relating to Client Conduct and Responsibility and Client Rights);
(iii) a list of community disaster resources that can assist a client during a disaster-related emergency, such as those provided by DADS and local, state, and federal emergency management agencies, including the special needs registry maintained by the state; and
(iv) materials that describe survival tips and plans for evacuation and sheltering in place.
(I) An agency must develop procedures in accordance with §97.301(a)(2) of this chapter (relating to Client Records) to release client information as allowed by law in the event of a disaster-related emergency.
(J) An agency must develop procedures to triage clients that allow the agency to:
(i) categorize clients into groups based on the following:
(I) the services provided by the agency;
(II) the need for continuity of services provided by the agency; and
(III) the availability of someone to assume responsibility for a client's emergency response plan if needed by the client;
(ii) identify a client who may need evacuation assistance from local or state jurisdictions;
(iii) readily access recorded information about a client's triage category in the event of an emergency to coordinate and communicate as required by subparagraph (G) of this paragraph to implement the agency's response and recovery phases.
(K) An agency must develop and implement procedures as part of the agency's staffing policies to orient and train employees, volunteers, and contractors about their responsibilities in the agency's emergency preparedness and response plan.
(L) An agency must complete an internal review of the plan at least annually, and after each actual emergency response, to evaluate its effectiveness and to update the plan as needed.
(M) As part of the annual internal review, an agency must test the response phase of the emergency preparedness and response plan in a planned drill if not tested during an actual emergency response. Except for a freestanding hospice, a planned drill can be limited to the agency's procedures for communicating with staff.
(2) An agency must make a good faith effort to comply with the requirements of this section during a disaster. If the agency is unable to comply with any of the requirements of this section, it must document in the agency's records attempts of staff to follow procedures outlined in the agency's emergency preparedness and response plan.
(3) An agency is not required to continue to provide care to clients in emergency situations that are beyond the agency's control and that make it impossible to provide services, such as when roads are impassable or when a client relocates to a place unknown to the agency. An agency may establish links to local emergency operations centers to determine a mechanism by which to approach specific areas within a disaster area in order for the agency to reach its clients.
(4) If written records are damaged during a disaster, the agency must not reproduce or recreate client records except from existing electronic records. Records reproduced from existing electronic records must include:
(A) the date the record was reproduced;
(B) the agency staff member who reproduced the record; and
(C) how the original record was damaged.
(5) Notwithstanding the provisions specified in Division 2 of this subchapter (relating to Conditions of a License), an agency must notify and provide the following information to the DADS Home and Community Support Services Agencies licensing unit no later than five working days after any of the following temporary changes resulting from the effects of an emergency or disaster. The notice and information must be submitted by fax or e-mail. If fax and e-mail are unavailable, notifications can be provided by telephone, but must be provided in writing as soon as possible. If communication with the DADS licensing unit is not possible, an agency may fax, e-mail, or telephone the designated survey office to provide notification.
(A) If temporarily relocating a place of business, the agency must provide DADS with:
(i) the license number for the place of business and the date of temporary relocation;
(ii) the physical address and phone number of the temporary location; and
(iii) the date an agency returns to a place of business after temporary relocation.
(B) If temporarily expanding the service area to provide services during a disaster, the agency must provide DADS with:
(i) the license number and revised boundaries of the original service area;
(ii) the date of temporary expansion; and
(iii) the date an agency's temporary expansion of its service area ends.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 28, 2008.
TRD-200800443
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: May 1, 2008
Proposal publication date: October 19, 2007
For further information, please call: (512) 438-3734
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 the Aging and Disability Services Council with the authority to make recommendations regarding rules governing 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 January 28, 2008.
TRD-200800444
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: May 1, 2008
Proposal publication date: October 19, 2007
For further information, please call: (512) 438-3734
40 TAC §§97.292, 97.295, 97.298, 97.299, 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 the Aging and Disability Services Council with the authority to make recommendations regarding rules governing 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 January 28, 2008.
TRD-200800445
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: May 1, 2008
Proposal publication date: October 19, 2007
For further information, please call: (512) 438-3734
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 the Aging and Disability Services Council with the authority to make recommendations regarding rules governing licensing and regulation of home and community support services agencies.
§97.405.Standards Specific to Agencies Licensed to Provide Home Dialysis Services.
(a) License designation. An agency may not provide peritoneal dialysis or hemodialysis services in a client's residence, independent living environment, or other appropriate location unless the agency holds a license to provide licensed home health or licensed and certified home health services and designated to provide home dialysis services. In order to receive a home dialysis designation, the agency must meet the licensing standards specified in this section and the standards for home health services in accordance with Subchapter C of this title (relating to Minimum Standards for All Home and Community Support Services Agencies) and §97.401 of this title (relating to Standards Specific to Licensed Home Health Services) except for §97.401(b)(2)(A) and (B) of this title (relating to Standards Specific to Licensed Home Health Services). If there is a conflict between the standards specified in this section and those specified in Subchapter C of this title (relating to Minimum Standards for All Home and Community Support Services Agencies) §97.401 of this title (relating to Standards Specific to Licensed Home Health Services), the standards specified in this section will apply to the home dialysis services.
(b) Governing body. An agency must have a governing body. The governing body must appoint a medical director and the physicians who are on the agency's medical staff. The governing body must annually approve the medical staff policies and procedures. The governing body on a biannual basis must review and consider for approval continuing privileges of the agency's medical staff. The minutes from the governing body of the agency must be on file in the agency office.
(c) Qualifications and responsibilities of the medical director.
(1) Qualifications. The medical director must be a physician licensed in the State of Texas who:
(A) is eligible for certification or is certified in nephrology or pediatric nephrology by a professional board; or
(B) during the five-year period prior to September 1, 1996, served at least 12 months as director of a dialysis facility or program.
(2) Responsibilities. The medical director must:
(A) participate in the selection of a suitable treatment modality for all clients;
(B) assure adequate training of nurses in dialysis techniques;
(C) assure adequate monitoring of the client and the dialysis process; and
(D) assure the development and availability of a client care policy and procedures manual and its implementation.
(d) Personnel files. An agency must have individual personnel files on all physicians, including the medical director. The file must include the following:
(1) a curriculum vitae which documents undergraduate, medical school, and all pertinent post graduate training; and
(2) evidence of current licensure, and evidence of current United States Drug Enforcement Administration certification, Texas Department of Public Safety registration, and the board eligibility or certification, or the experience or training described in subsection (c)(1) of this section.
(e) Provision of services. An agency that provides home staff-assisted dialysis must, at a minimum, provide nursing services, nutritional counseling, and medical social service. These services must be provided as necessary and as appropriate at the client's home, by telephone, or by a client's visit to a licensed ESRD facility in accordance with this subsection. The use of dialysis technicians in home dialysis is prohibited.
(1) Nursing services.
(A) A registered nurse (RN), licensed by the State of Texas, who has at least 18 months experience in hemodialysis obtained within the last 24 months and has successfully completed the orientation and skills education described in subsection (f) of this section, must be available whenever dialysis treatments are in progress in a client's home. The agency administrator must designate a qualified alternate to this registered nurse.
(B) Dialysis services must be supervised by an RN who meets the qualifications for a supervising nurse as set out in §97.244(c)(2) of this title (relating to Administrator Qualifications and Conditions and Supervising Nurse Qualifications).
(C) Dialysis services must be provided by a qualified licensed nurse who:
(i) is licensed as a registered or licensed vocational nurse by the State of Texas;
(ii) has at least 18 months experience in hemodialysis obtained within the last 24 months; and
(iii) has successfully completed the orientation and skills education described in subsection (f) of this section.
(2) Nutritional counseling. A dietitian who meets the qualifications of this paragraph must be employed by or under contract with the agency to provide services. A qualified dietitian must meet the definition of dietitian in §97.2 of this chapter (relating to Definitions) and have at least one year of experience in clinical nutrition after obtaining eligibility for registration by the American Dietetic Association, Commission on Dietetic Registration.
(3) Medical social services. A social worker who meets the qualifications established in this paragraph must be employed by or be under contract with the agency to provide services. A qualified social worker is a person who:
(A) is currently licensed under the laws of the State of Texas as a social worker and has a master's degree in social work from a graduate school of social work accredited by the Council on Social Work Education; or
(B) has served for at least two years as a social worker, one year of which was in a dialysis facility or program prior to September 1, 1976, and has established a consultative relationship with a licensed master social worker.
(f) Orientation, skills education, and evaluation.
(1) All personnel providing dialysis in the home must receive orientation and skills education and demonstrate knowledge of the following:
(A) anatomy and physiology of the normal kidney;
(B) fluid, electrolyte, and acid-base balance;
(C) pathophysiology of renal disease;
(D) acceptable laboratory values for the client with renal disease;
(E) theoretical aspects of dialysis;
(F) vascular access and maintenance of blood flow;
(G) technical aspects of dialysis;
(H) peritoneal dialysis catheter, testing for peritoneal membrane equilibration, and peritoneal dialysis adequacy clearance, if applicable;
(I) the monitoring of clients during treatment, beginning with treatment initiation through termination;
(J) the recognition of dialysis complications, emergency conditions, and institution of the appropriate corrective action. This includes training agency personnel in emergency procedures and how to use emergency equipment;
(K) psychological, social, financial, and physical complications of chronic dialysis;
(L) care of the client with chronic renal failure;
(M) dietary modifications and medications for the uremic client;
(N) alternative forms of treatment for ESRD;
(O) the role of renal health team members (physician, nurse, social worker, and dietitian);
(P) performance of laboratory tests (hematocrit and blood glucose);
(Q) the theory of blood products and blood administration; and
(R) water treatment to include:
(i) standards for treatment of water used for dialysis as described in §3.2.1 (Hemodialysis Systems) and §3.2.2 (Maximum Level of Chemical Contaminants) of the American National Standard, Hemodialysis Systems, March 1992 Edition, published by the Association for the Advancement of Medical Instrumentation (AAMI), 3330 Washington Boulevard, Suite 500, Arlington, Virginia 22201. Copies of the standards are indexed and filed in the Department of Aging and Disability Services, 701 W. 51st Street, Austin, Texas 78751-2321, and are available for public inspection during regular working hours;
(ii) systems and devices;
(iii) monitoring; and
(iv) risks to clients of unsafe water.
(2) The requirements for the orientation and skills education period for licensed nurses are as follows.
(A) The agency must develop an 80-hour written orientation program that includes classroom theory and direct observation of the licensed nurse performing procedures on a client in the home.
(i) The orientation program must be provided by a registered nurse qualified under subsection (e)(1) of this section to supervise the provision of dialysis services by a licensed nurse.
(ii) The licensed nurse must pass a written skills examination or competency evaluation at the conclusion of the orientation program and prior to the time the licensed nurse delivers independent client care.
(B) The licensed nurse must complete the required classroom component as described in paragraph (1)(A)-(E), (K)-(O), (Q) and (R) of this subsection and satisfactorily demonstrate the skills described in paragraph (1)(F)-(J) and (P) of this subsection. The orientation program may be waived by successful completion of the written examination as described in subparagraph (A)(ii) of this paragraph.
(C) The supervising nurse or qualified designee must complete an orientation competency skills checklist for each licensed nurse to reflect the progression of learned skills, as described in subsection (f)(1) of this section.
(D) Prior to the delivery of independent client care, the supervising nurse or qualified designee must directly supervise the licensed nurse for a minimum of three dialysis treatments and ensure satisfactory performance. Dependent upon the trainee's experience and accomplishments on the skills checklist, additional supervised dialysis treatments may be required.
(E) Continuing education for employees must be provided quarterly.
(F) Performance evaluations must be done annually.
(G) The supervising nurse or qualified designee must provide direct supervision to the licensed nurse providing dialysis services monthly or more often if necessary. Direct supervision means that the supervising nurse is on the premises but not necessarily immediately present where dialysis services are being provided.
(g) Hospital transfer procedure. An agency must establish an effective procedure for the immediate transfer to a local Medicare-certified hospital for clients requiring emergency medical care. The agency must have a written transfer agreement with such a hospital, or all physician members of the agency's medical staff must have admitting privileges at such a hospital.
(h) Backup dialysis services. An agency that supplies home staff-assisted dialysis must have an agreement with a licensed end stage renal disease (ESRD) facility to provide backup outpatient dialysis services.
(i) Coordination of medical and other information. An agency must provide for the exchange of medical and other information necessary or useful in the care and treatment of clients transferred between treating facilities. This provision must also include the transfer of the client care plan, hepatitis B status, and long-term program.
(j) Transplant recipient registry program. An agency must ensure that the names of clients awaiting cadaveric donor transplantation are entered in a recipient registry program.
(k) Testing for hepatitis B. An agency must conduct routine testing of home dialysis clients and agency employees to ensure detection of hepatitis B in employees and clients.
(1) An agency must offer hepatitis B vaccination to previously unvaccinated, susceptible new staff members in accordance with 29 Code of Federal Regulations, §1910.1030(f)(1)-(2) (Bloodborne Pathogens).
(A) Staff vaccination records must be maintained in each staff member's personnel file.
(B) New staff members providing home dialysis care must be screened for hepatitis B surface antigen (HBsAg) and the results reviewed prior to the staff providing client care, unless the new staff member provides the agency documentation of positive serologic response to hepatitis B vaccine.
(C) An agency must establish, implement, and enforce a policy for repeated serologic screening of staff. The repeated serologic screening must be based on each staff member's HBsAg/antibody to HBsAg (anti-HBs), and must be congruent with Appendices i and ii of the National Surveillance of Dialysis Associated Disease in the United States, 1993, published by the United States Department of Health and Human Services (USDHHS). This document may be obtained by writing the Home and Community Support Services Program, Department of Aging and Disability Services, 701 W. 51st Street, Austin, Texas 78751-2321 or calling 438-3011 or writing the United States Department of Health and Human Services at the Public Health Service, Centers for Disease Control and Prevention, National Center for Infectious Diseases, Hospital Infection Program, Mail Stop C01, Atlanta, Georgia 30333, or calling 404-639-2318.
(2) With the advice and consent of a client's nephrologist or attending physician, an agency must make the hepatitis B vaccine available to a client who is susceptible to hepatitis B, provided that the client has coverage or is willing to pay for vaccination.
(A) An agency must make available to clients literature describing the risks and benefits of the hepatitis B vaccination.
(B) Candidates for home dialysis must be screened for HBsAg within one month before or at the time of admission to the agency.
(C) Repeated serologic screening must be based on the antigen or antibody status of the client.
(D) Monthly screening for HBsAg is required for clients whose previous test results are negative for HBsAg.
(E) Screening of HbsAg-positive or anti-HbsAg-positive clients may be performed on a less frequent basis, provided that the agency's policy on this subject remains congruent with Appendices i and ii of the National Surveillance of Dialysis Associated Diseases in the United States, 1993, published by the USDHHS.
(l) CPR certification. All direct client care employees must have current CPR certification.
(m) Initial admission assessment. Assessment of the client's residence must be made to ensure a safe physical environment for the performance of dialysis. The initial admission assessment must be performed by a qualified registered nurse who meets the qualifications under subsection (e)(1)(A) of this section.
(n) Client long-term program. The agency must develop a long-term program for each client admitted to home dialysis. Criteria must be defined in writing and must provide guidance to the agency in the selection of clients suitable for home staff-assisted dialysis and in noting changes in a client's condition that would require discharge from the program. For the purposes of this subsection, Long-term program means the written documentation of the selection of a suitable treatment modality and dialysis setting which has been selected by the client and the interdisciplinary team.
(o) Client history and physical. The agency must ensure that the history and physical is conducted upon the client's admission or no more than six months prior to the date of admission, then annually after the date of admission.
(p) Physician orders. If home staff-assisted dialysis is selected, the physician must prepare orders outlining specifics of prescribed treatment.
(1) If these physician's orders are received verbally, they must be confirmed in writing within a reasonable time frame. An agency must adopt and enforce a policy on the time frame for the countersignature of a physician's verbal orders. Medical orders for home staff-assisted dialysis must be revised as necessary but reviewed and updated at least every six months.
(2) The initial orders for home staff-assisted dialysis must be received prior to the first treatment and must cover all pertinent diagnoses, including mental status, prognosis, functional limitations, activities permitted, nutritional requirements, medications and treatments, and any safety measures to protect against injury. Orders for home staff-assisted dialysis must include frequency and length of treatment, target weight, type of dialyzer, dialysate, dialysate flow rate, heparin dosage, and blood flow rate, and must specify the level of preparation required for the caregiver, such as a licensed vocational nurse or registered nurse.
(q) Client care plan. The client care plan must be developed after consultation with the client and the client's family by the interdisciplinary team. The interdisciplinary team must include the physician, the registered nurse, the dietitian, and the qualified social worker responsible for planning the care delivered to the home staff-assisted dialysis patient.
(1) The initial client care plan must be completed by the interdisciplinary team within ten calendar days after the first home dialysis treatment.
(2) The client care plan must implement the medical orders and must include services to be rendered, such as the identification of problems, methods of intervention, and the assignment of health care personnel.
(3) The client care plan must be in writing, be personalized for the individual, and reflect the ongoing medical, psychological, social, nutritional, and functional needs of the client, including treatment goals.
(4) The client care plan must include written evidence of coordination with other service providers, such as dialysis facilities or transportation providers, as needed to assure the provision of safe care.
(5) The client care plan must include written evidence of the client's or client's legal representative's input and participation, unless they refuse to participate. At a minimum, the client care plan must demonstrate that the content was shared with the client or the client's legal representative.
(6) For non-stabilized clients, where there is a change in modality, unacceptable laboratory work, uncontrolled weight changes, infections, or a change in family status, the client care plan must be reviewed at least monthly by the interdisciplinary team. Evidence of the review of the client care plan with the client and the interdisciplinary team to evaluate the client's progress or lack of progress toward the goals of the care plan, and interventions taken when progress toward stabilization or the goals are not achieved, must be documented and included in the client record.
(7) For a stable client, the client care plan must be reviewed and updated as indicated by any change in the client's medical, nutritional, or psychosocial condition or at least every six months. The long-term program must be revised as needed and reviewed annually. Evidence of the review of the client care plan with the client and the interdisciplinary team to evaluate the client's progress or lack of progress toward the goals of the care plan, and interventions taken when the goals are not achieved, must be documented and included in the client record.
(r) Medication administration. Medications must be administered only by licensed personnel.
(s) Client records. In addition to the applicable information described in §97.301(a)(9) of this chapter (relating to Client Records), records of home staff assisted dialysis clients must include the following:
(1) a medical history and physical;
(2) clinical progress notes by the physician, qualified licensed nurse, qualified dietitian, and qualified social worker;
(3) dialysis treatment records;
(4) laboratory reports;
(5) a client care plan;
(6) a long-term program; and
(7) documentation of supervisory visits.
(t) Water treatment.
(1) Water used for dialysis purposes must be analyzed for chemical contaminants every six months. Additional chemical analysis must be conducted if test results exceed the maximum levels of chemical contaminants listed in §3.2.2 (Maximum Level of Chemical Contaminants) of the American National Standards for Hemodialysis Systems, March 1992 Edition, published by the AAMI. Copies of the standards are indexed and filed in the Department of Aging and Disability Services, 701 W. 51st Street, Austin, Texas 78751-2321, and are available for public inspection during regular working hours.
(2) Water used for dialysis must be treated as necessary to maintain a continuous water supply that is biologically and chemically compatible with acceptable dialysis techniques.
(3) Water used to prepare dialysate must meet the requirements set forth in §3.2.1 (Hemodialysis Systems) and §3.2.2 (Maximum Level of Chemical Contaminants), March 1992 Edition, published by the AAMI. Copies of the standards are indexed and filed in the Department of Aging and Disability Services, 701 W. 51st Street, Austin, Texas 78751-2321, and are available for public inspection during regular working hours.
(4) Records of test results and equipment maintenance must be maintained at the agency.
(u) Equipment testing. An agency must adopt and enforce a policy to describe how the nurse will check the machine for conductivity, temperature, and pH prior to treatment, and describe the equipment required for these tests. The equipment must be available for use prior to each treatment. This policy must reflect current standards.
(v) Preventive maintenance for equipment. An agency must develop, and enforce a written preventive maintenance program to ensure client care related equipment receives electrical safety inspections, if appropriate, and maintenance at least annually or more frequently if recommended by the manufacturer. The preventive maintenance may be provided by agency or contract staff qualified by training or experience in the maintenance of dialysis equipment.
(1) All equipment used by a client in home dialysis must be maintained free of defects, which could be a potential hazard to clients, the client's family or agency personnel.
(A) Agency staff must be able to identify malfunctioning equipment and report such equipment to the appropriate agency staff. Malfunctioning equipment must be immediately removed from use.
(B) Written evidence of all preventive maintenance and equipment repairs must be maintained.
(C) After repairs or alterations are made to any equipment, the equipment must be thoroughly tested for proper operation before returning to service.
(D) An agency must comply with the federal Food, Drug, and Cosmetic Act, 21 United States Code (USC), §360i(b), concerning reporting when a medical device as defined in 21 USC, §321(h) has or may have caused or contributed to the injury or death of an agency client.
(2) In the event that the water used for dialysis purposes or home dialysis equipment is found not to meet safe operating parameters, and corrections cannot be effected to ensure safe care promptly, the client must be transferred to a licensed hospital (if inpatient care is required) or licensed ESRD facility until such time as the water or equipment is found to be operating within safe parameters.
(w) Reuse or reprocessing of medical devices. Reuse or reprocessing of disposable medical devices, including but not limited to, dialyzers, end-caps, and blood lines must be in accordance with this subsection.
(1) An agency's reuse practice must comply with the American National Standard, Reuse of Hemodialyzers, 1993 Edition, published by the AAMI. An agency must adopt and enforce a policy for dialyzer reuse criteria (including any agency-set number of reuses allowed) which is included in client education materials.
(2) A transducer protector must be replaced when wetted during a dialysis treatment and must be used for one treatment only.
(3) Arterial lines may be reused only when the arterial lines are labeled to allow for reuse by the manufacturer and the manufacturer-established protocols for the specific line have been approved by the United States Food and Drug Administration.
(4) An agency must consider and address the health and safety of clients sensitive to disinfectant solution residuals.
(5) An agency must provide each client and the client's family or legal representative with information regarding the reuse practices of the agency, the opportunity to tour the reuse facility used by the agency, and the opportunity to have questions answered.
(6) An agency practicing reuse of dialyzers must:
(A) ensure that dialyzers are reprocessed via automated reprocessing equipment in a licensed ESRD facility or a centralized reprocessing facility;
(B) maintain responsibility and accountability for the entire reuse process;
(C) adopt and enforce policies to ensure that the transfer and transport of used and reprocessed dialyzers to and from the client's home does not increase contamination of the dialyzers, staff, or the environment; and
(D) ensure that DADS staff has access to the reprocessing facility as part of an agency inspection.
(x) Laboratory services. Provision of laboratory services must be as follows.
(1) All laboratory services ordered for the client by a physician must be performed by a laboratory which meets the Clinical Laboratory Improvement Amendments of 1988, 42 United States Code, §263a, Certification of Laboratories (CLIA 1988) and in accordance with a written arrangement or agreement with the agency. CLIA 1988 applies to all agencies with laboratories that examine human specimens for the diagnosis, prevention, or treatment of any disease or impairment of, or the assessment of the health of, human beings.
(2) Copies of all laboratory reports must be maintained in the client's medical record.
(3) Hematocrit and blood glucose tests may be performed at the client's home in accordance with §97.284 of this title (relating to Laboratory Services). Results of these tests must be recorded in the client's medical record and signed by the qualified licensed nurse providing the treatment. Maintenance, calibration, and quality control studies must be performed according to the equipment manufacturer's suggestions, and the results must be maintained at the agency.
(4) Blood and blood products must only be administered to dialysis clients in their homes by a licensed nurse or physician.
(y) Home dialysis supplies. Supplies for home dialysis must meet the following requirements.
(1) All drugs, biologicals, and legend medical devices must be obtained for each client pursuant to a physician's prescription in accordance with applicable rules of the Texas State Board of Pharmacy.
(2) In conjunction with the client's attending physician, the agency must ensure that there are sufficient supplies maintained in the client's home to perform the scheduled dialysis treatments and to provide a reasonable number of backup items for replacements, if needed, due to breakage, contamination, or defective products. All dialysis supplies, including medications, must be delivered directly to the client's home by a vendor of such products. However, agency personnel may transport prescription items from a vendor's place of business to the client's home for the client's convenience, so long as the item is properly labeled with the client's name and direction for use. Agency personnel may transport medical devices for reuse.
(z) Emergency procedures. The agency must adopt and enforce policies and procedures for medical emergencies and emergencies resulting from a disaster.
(1) Procedures must be individualized for each client to include the appropriate evacuation from the home and emergency telephone numbers. Emergency telephone numbers must be posted at each client's home and must include 911 if available, the number of the physician, the ambulance, the qualified registered nurse on call for home dialysis, and any other phone number deemed as an emergency number.
(2) The agency must ensure that the client and the client's family know the agency's procedures for medical emergencies and emergencies resulting from a disaster.
(3) The agency must ensure that the client and the client's family know the procedure for disconnecting the dialysis equipment.
(4) The agency must ensure that the client and the client's family know emergency call procedures.
(5) A working telephone must be available during the dialysis procedure.
(6) Depending on the kinds of medications administered, an agency must have available emergency drugs as specified by the medical director.
(7) In the event of a medical emergency or an emergency resulting from a disaster requiring transport to a hospital for care, the agency must assure the following:
(A) the receiving hospital is given advance notice of the client's arrival;
(B) the receiving hospital is given a description of the client's health status; and
(C) the selection of personnel, vehicle, and equipment are appropriate to effect a safe transfer.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 28, 2008.
TRD-200800446
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: May 1, 2008
Proposal publication date: October 19, 2007
For further information, please call: (512) 438-3734
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 the Aging and Disability Services Council with the authority to make recommendations regarding rules governing 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 January 28, 2008.
TRD-200800447
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: May 1, 2008
Proposal publication date: October 19, 2007
For further information, please call: (512) 438-3734
The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §§97.3, 97.15, 97.17, 97.19, 97.25, and 97.521 in Chapter 97, Licensing Standards for Home and Community Support Services Agencies. The amendment to §97.17 is adopted with changes to the proposed text published in the October 19, 2007, issue of the Texas Register (32 TexReg 7452). The amendments to §§97.3, 97.15, 97.19, 97.25, and 97.521 are adopted without changes to the proposed text.
The amendments are adopted to implement portions of Senate Bill (SB) 1318, 80th Legislature, 2007. SB 1318, in part, amended Texas Health and Safety Code, §142.006, to provide that a license DADS issues to a home and community support services agency (agency) is valid for two years. SB 1318 also amended the Texas Health and Safety Code, §142.006, to allow the HHSC executive commissioner, on behalf of DADS, to adopt a system under which a license expires on various dates during the two-year period and to prorate the license fee for the year in which a license expiration date is changed. The adopted amendments revise references from a one-year license to a two-year license and establish a staggered system of license renewals and prorated license fees for the first two years in which the rules are in effect. The adoption sets new license fees to accommodate the new two-year licensing period and changes the maximum license fee from $875 to $1,750.
In addition, SB 1318 repealed a provision that allowed an agency to renew a license by paying a renewal fee that is one-and-one-half times the normal fee if the agency's license has been expired for 90 days or less. The adopted amendments delete the rule that allows an agency to renew an expired license, which was based on the repealed provision.
Finally, the amendments are adopted to update the requirements for an initial survey by requiring an agency to submit a written request for an initial survey to the designated survey office no later than six months after the effective date of its initial license.
DADS received no comments regarding adoption of the amendments. However, DADS changed §97.17(b)(1) to replace the phrase ". . . after the effective date of this section . . ." with ". . . beginning September 1, 2008, . . ." to provide a specific date on which the two-year time frame for the staggered system of license renewals and prorated license fees begins.
The proposed text of §97.17(a) contained a publication error. On page 7453, §97.17(a) should have read: "A renewal license is valid for two years, except as provided by subsection (b)(1) of this section. In order to continue providing services to clients, an agency must renew its license." This correction is included in the adoption.
Subchapter A. GENERAL PROVISIONS
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 the Aging and Disability Services Council with the authority to make recommendations regarding rules governing 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 January 24, 2008.
TRD-200800342
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: September 1, 2008
Proposal publication date: October 19, 2007
For further information, please call: (512) 438-3734
40 TAC §§97.15, 97.17, 97.19, 97.25
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 the Aging and Disability Services Council with the authority to make recommendations regarding rules governing licensing and regulation of home and community support services agencies.
§97.17.Application Procedures for a Renewal License.
(a) A renewal license is valid for two years, except as provided by subsection (b)(1) of this section. In order to continue providing services to clients, an agency must renew its license.
(b) An agency must submit an application for license renewal and a renewal license will be valid as follows:
(1) For two years beginning September 1, 2008, an agency with a license that ends in an odd number (1, 3, 5, 7, or 9) must submit an application to renew its license before the expiration date on the license in accordance with this section. The agency's first renewal license issued beginning September 1, 2008, is valid for one year, and subsequent renewal licenses are valid for two years.
(2) An agency with a license that ends in an even number (0, 2, 4, 6, or 8) must submit an application to renew its license before the expiration date on the license in accordance with this section. The agency's renewal licenses are valid for two years.
(c) For each license period, an agency must provide services to at least one client.
(d) 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.
(e) An agency must document the provision of services and keep documentation readily available for review by a DADS surveyor.
(f) 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.
(g) 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.
(h) 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. 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.
(i) 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.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 24, 2008.
TRD-200800343
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: September 1, 2008
Proposal publication date: October 19, 2007
For further information, please call: (512) 438-3734
Division 2. THE SURVEY PROCESS
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 the Aging and Disability Services Council with the authority to make recommendations regarding rules governing 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 January 24, 2008.
TRD-200800344
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: September 1, 2008
Proposal publication date: October 19, 2007
For further information, please call: (512) 438-3734
Subchapter B. APPLICATION PROCEDURES
The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §§98.11, 98.15, and 98.21 in Chapter 98, Adult Day Care and Day Activity and Health Services Requirements. The amendment to §98.15 is adopted with changes to the proposed text published in the October 19, 2007, issue of the Texas Register (32 TexReg 7455). The amendments to §98.11 and §98.21 are adopted without changes to the proposed text.
The amendments are adopted to comply with some of the provisions of Senate Bill (SB) 1318, 80th Legislature, Regular Session, 2007, which amended the Texas Human Resources Code, §103.006 and §103.007. Texas Human Resources Code, §103.006 increases the license period for adult day care facilities from one to two years. Section 103.006 also allows the executive commissioner of HHSC, on behalf of DADS, to adopt by rule a system under which license expiration dates are staggered during a two-year period and to require DADS to prorate fees for licenses issued for less than two years. Texas Human Resources Code, §103.007 increases the license fee to make it proportionate to the new two-year license period.
DADS received no comments regarding adoption of the amendments. However, DADS changed §98.15(b)(1) to replace the phrase ". . . after the effective date of this section . . ." with ". . . beginning September 1, 2008, . . ." to provide a specific date on which the two-year time frame for the staggered system of license renewals and prorated license fees begins.
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 Human Resources Code, Chapter 103, which provides the Aging and Disability Services Council with the authority to make recommendations regarding rules governing licensing and regulation of adult day care facilities.
§98.15.Renewal Procedures and Qualifications.
(a) Each license issued under this chapter must be renewed before the license expiration date. Each license expires two years from the date issued, except as provided by subsection (b)(1) of this section. A license issued under this chapter is not automatically renewed.
(b) A facility must submit an application for license renewal and a renewal license will be valid as follows:
(1) For two years beginning September 1, 2008, a facility with a facility identification number that ends in an odd number (1, 3, 5, 7, or 9) must submit an application to renew its license before the expiration date on the license in accordance with this section. The facility's first renewal license issued beginning September 1, 2008, is valid for one year, and subsequent renewal licenses are valid for two years.
(2) A facility with a facility identification number that ends in an even number (0, 2, 4, 6, or 8) must submit an application to renew its license before the expiration date on the license in accordance with this section. The facility's renewal licenses are valid for two years.
(c) Each license holder must file an application for renewal with DADS at least 45 days before the expiration of the current license. DADS considers that an individual has filed a timely and sufficient application for the renewal of a license, if the license holder:
(1) submits a complete application to DADS, and DADS receives that complete application at least 45 days before the current license expires; or
(2) submits an incomplete application to DADS with a letter explaining the circumstances that prevented the inclusion of the missing information, and DADS receives the incomplete application and letter at least 45 days before the current license expires. The missing information must be provided and the application completed within 30 days before the current license expiration date or the application may be denied for failure to provide the required information.
(d) If the application is postmarked by the filing deadline, the application will be considered to be timely filed if received in DADS' Regulatory Services Licensing and Credentialing Section within 15 days after the postmark.
(e) Failure to file a timely and sufficient application will result in the expiration of the license on the expiration date listed on the license.
(f) The application for renewal must contain the same information required for an original application and the license fee as described in §98.21 of this subchapter (relating to License Fees).
(g) The renewal of a license may be denied for the same reasons an original application for a license may be denied (see §98.19 of this subchapter (relating to Criteria for Denying a License or Renewal of a License)).
(h) The facility must have an annual inspection by the local fire marshal and must submit a copy of the most current inspection as part of the renewal procedures.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 24, 2008.
TRD-200800345
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: September 1, 2008
Proposal publication date: October 19, 2007
For further information, please call: (512) 438-3734