Proposed Sections Before an agency may permanently adopt a new or amended section, or repeal an existing section, a proposal detailing the action must be published in the Texas Register at least 30 days before any action may be taken. The 30-day time period gives interested persons an opportunity to review and make oral or written comments on the section. Also, in the case of substantive sections, a public hearing must be granted if requested by at least 25 persons, a governmental subdivision or agency, or an association having at least 25 members. Symbology in proposed amendments. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 15. Consumer Services Division Texas Weights and Measures 4 TAC sec.15.11 The Texas Department of Agriculture (TDA) proposes an amendment to sec.15.11, concerning collection and assessment of fees for registering weighing and measuring devices. The proposed amendment would increase from $50 to $80 the registration fee for liquefied petroleum (LP) gas meters. The purpose of this increase is to bring revenue collections for registration of LP gas meters closer to the cost to the state of registering, inspecting, and calibrating such devices. Dan Kelly, director of consumer programs, has determined that for the first five-year period the sections are in effect there will be fiscal implications for state government as a result of enforcing or administering the section. The effect on state government for the first five-year period the sections are in effect will be an estimated increase in revenue of $82,790 per year. There will be no fiscal implications for local government for the first five-year period the section will be in effect. The cost of compliance with the section for small businesses will be $30 per meter per year. The average cost per business will be $95 per year. The cost per $100 of sales for both large and small businesses would be approximately 1.7 cents per $100 of sales. Mr. Kelley also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be to allow the Weights and Measures Program to recover a larger share of its costs from the regulated community as required by legislative mandate. Since the fee would be paid by businesses, not persons, there will be no economic cost to person who are required to comply with the section as proposed. Comments may be submitted to Dan Kelly, Director of Consumer Programs, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Comments must be received no later than 30 days from the date of publication of this proposal in the Texas Register. The amendment is proposed under the Texas Agriculture Code, sec.13.1151(d), as amended by House Bill 11, 72nd Legislature, 1st Called Session (1991), which provides the Texas Department of Agriculture with the authority to charge a fee for registration of LP gas meters not to exceed $80 per meter. sec.15.11. Collection and Assessment of Fees for Testing, Weighing, and Measuring Devices. (a) (No change.) (b) Fees for registering weighing and measuring devices. Prior to the operation of a weighing or measuring device in a commercial transaction, the owner or operator of such device shall register with the department by paying the established registration fee for each such device in accordance with the following schedule: (1)-(2) (No change.) (3) liquefied petroleum gas (LP-gas) meter: $80
    [$50]; (4)-(6) (No change.) (c) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 1, 1991. TRD-9112054 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Earliest possible date of adoption: November 8, 1991 For further information, please call: (512) 463-7583 Chapter 27. Fish Farm Regulations 4 TAC sec.sec.27.1-27.7, 27.21-27.25, 27.102 The Texas Department of Agriculture (TDA) proposes amendments to sec.sec.27. 1- 27.6, 27.21-27.25, and 27.102 and new s27.7, concerning regulation of aquaculture or fish farming facilities. The purpose of the amendments is to make the department's aquaculture regulations consistent with the amended definitions and other new provisions of Senate Bill 977, 72nd Legislature, 1991, and to establish new license and renewal fees. The purpose of proposed new sec.27.7 is to establish procedures for suspending licenses. Bill Peacock, aquaculture coordinator, has determined that for the first five- year period that the proposed sections are in effect there will be fiscal implications for state government as a result of enforcing or administering the sections. The effect on state government for the first five-year period the sections are in effect will be an estimated increase in revenue of $8,375 per year. There will be no fiscal implications for local government or local employment as a result of enforcing or administering the sections. Mr. Peacock also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be an increase in the number of aquaculture operations in Texas, increased markets for cultured aquatic species, more effective administration of the aquaculture licensing program, and improved public understanding of aquaculture. There will be no effect on small businesses. The anticipated economic cost to persons who are required to comply with the sections as proposed will be $25 per year in the form of increased license fees. Comments may be submitted to Dan Kelly, Director of Consumer Programs, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Comments must be received no later than 30 days from the date of publication of this proposal in the Texas Register. The amendments and new section are proposed under the Texas Agriculture Code, Chapter 134, sec.134.005(a), which requires the Texas Department of Agriculture to adopt rules to carry out the aquaculture program. sec.27.1. Definitions.
      The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Aquaculture or fish
        [Fish] farming-The business of producing [, propagating, transporting, possessing,] and selling cultured species
          [fish] raised in private facilities
            [a private pond, but does not include the business of producing, propagating, transportating, possessing, and selling cultured fish propagated for bait purposes]. Aquaculturist or fish
              [Fish] farmer-Any person licensed to engage
                [engaged] in aquaculture or
                  fish farming. Cultured species -Aquatic plants or animals raised under conditions where at least a portion of their life cycle is controlled by an aquaculturist. Exotic [fish] species-A nonindigenous plant or animal
                    [fish or shellfish species that is] not normally found in the public
                      waters [water] of this
                        [the] state. Owner-An aquaculturist operating a facility
                          [A fish farmer] licensed by the department. Private facility
                            [pond]-A pond, tank, cage
                              [reservoir, vat], or other structure capable of holding cultured species in confinement wholly within or on private land or water, or within or on permitted public land or water
                                [fish in confinement wholly within or on the enclosed land of an owner, lessor, or lessee]. sec.27.2. Aquaculture [Fish Farmer's] License Required. (a) A person may not operate an aquaculture facility
                                  [as a fish farmer] without first having acquired from the department an aquaculture
                                    [fish farmer's] license. (b) A private facility engaged in the business of producing and selling cultured species for bait purposes is required to be licensed under this chapter. sec.27.3. Fish Farm Vehicle License Required. (a) Except as provided by subsection (b) of this section, a vehicle used to transport fish from a fish farm for sale from the vehicle to a final consumer
                                      is required to have a fish farm vehicle license. (b) A fish farm vehicle license is not required for a vehicle owned and operated by the holder of an aquaculture
                                        [a fish farmer's] license. sec.27.4. Issuance of License; Period of Validity. (a) The department shall issue an aquaculture
                                          [the fish farmer's] license and a
                                            [the] fish farm vehicle license on submission by the proposed licensee of a completed application and the license fee, and each license shall be numbered on a form provided by the department. (b) An aquaculture license
                                              [A fish farmer's] or fish farm vehicle license is valid for two years after the date of issuance. The department shall renew a license on submission by the licensee of a completed application and a renewal fee unless the department determines that the licensee has violated the Texas Agriculture Code, Chapter 134, or a rule adopted under that chapter. [(c) If the Aquaculture Executive Committee makes a determination as provided by the Parks and Wildlife Code, s1.204, the department shall suspend a license until the committee issues a notice approving the continuation of the fish farming operation.] sec.27.5. License Fee ; Renewal Fee. (a) The initial fee for an aquaculture
                                                [a fish farmer's] license or a fish farm vehicle license is $100
                                                  [$50]. (b) The fee for renewing an aquaculture license or a fish farm vehicle license is $100. sec.27.6. Records. (a) The holder of an aquaculture
                                                    [a fish farmer's] license or a fish farm vehicle license shall make and keep records on the licensed premises or vehicle showing purchases or other acquisitions, sales, and shipments of cultured species
                                                      [fish] for a period of three years from such event. (b) (No change.) sec.27.7. Suspension of License. (a) The department may suspend an aquaculture license or a fish farm vehicle license at any time if a licensed person fails to comply with a provision of this chapter or a provision of the Texas Agriculture Code, Chapter 134. (b) Proceedings for the suspension of an aquaculture license or a fish farm vehicle license shall be conducted in the manner provided for contested cases by the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a and Chapter 1 of this title (relating to General Practice and Procedure). (c) The department may refer to the appropriate prosecuting attorney for prosecution under applicable civil and criminal codes any person who has violated or is violating any provision of this chapter or any provision of Texas Agriculture Code, Chapter 134. sec.27.21. Bill of Lading Required [for Certain Vehicles]. A person operating
                                                        a vehicle [, from which no fish sales are made,] transporting fish regulated by a bag, possession, or size limit and prohibited from sale if taken from the public waters of this state
                                                          [cultured fish from a fish farm] shall carry a bill of lading that shows the number and species [of cultured fish] carried, the name of the owner and the location and license number of the aquaculture facility
                                                            [fish farm] from which the fish were transported, and the destination of the cargo. sec.27.22. Marketing of Cultured Redfish and Cultured Speckled Sea Trout. A licensed aquaculturist
                                                              [fish farmer] engaging in the raising, sale, transportation, or possession of cultured redfish or cultured speckled sea trout shall maintain on each premises or vehicle used for the same a statement that identifies the cultured redfish or cultured speckled sea trout raised by an aquaculturist
                                                                [a fish farmer] and shows the number and species of such cultured fish present, the name of the owner and the location and license number of the aquaculture facility
                                                                  [fish farm] on which the fish were raised, and the destination of the cargo, if any. sec.27.23. Invoices for Shipments of Dead Redfish or Dead Speckled Sea Trout. (a) An aquaculture
                                                                    [A fish farmer] licensee shall prepare or cause to be prepared a Texas Finfish Shipment Invoice for all shipments of dead redfish or dead speckled sea trout shipped to or from or sold at his place of business. (b) (No change.) (c) (No change.) sec.27.24. Transported Dead Redfish and Dead Speckled Sea Trout. (a) All redfish and speckled sea trout shipped dead by a licensed aquaculturist
                                                                      [fish farmer] shall be packaged, one species per package. (b)-(c) (No change.) sec.27.25. Labeling of Redfish or Speckled Sea Trout Package. (a) (No change.) (b) The package or container contents identifier shall be placed on the outside of each package and shall contain all of the following information, correctly stated and legibly written: (1)-(2) (No change.) (3) aquaculture
                                                                        [fish farmer] license number of the shipper and the receiver (if the receiver is required to possess an aquaculture
                                                                          [a fish farmer] license); (4)-(5) (No change.) sec.27.102. Inspection. The facilities of a holder of an aquaculture
                                                                            [a fish farmer's] license or
                                                                              [,] fish farm vehicle license [, or cultured fish processing plant license] are subject to inspection by employees of the department during all reasonable hours. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 1, 1991. TRD-9112052 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Earliest possible date of adoption: November 8, 1991 For further information, please call: (512) 463-7583 4 TAC sec.sec.27.12-27.16 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Agriculture or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Department of Agriculture proposes the repeal of sec.sec.27.12-27.16, concerning licensing and recordkeeping requirements for plants that process cultured fish. The purpose of this proposal is to reflect the repeal of the Texas Agriculture Code, sec.134.002(3), which was effected by the enactment of Senate Bill 977, 72nd Legislature, 1991, and to eliminate duplication of regulation of cultured fish processing plants by the Texas Department of Agriculture and the Texas Department of Health. Bill Peacock, aquaculture coordinator, has determined that for the first five- year period the repeals are in effect there will be fiscal implications for state government as a result of enforcing or administering the repeals. The effect on state government for the first five-year period the repeals are in effect will be an estimated decrease in revenue of $450 per year. There will be no fiscal or economic implications for local government or local employment as a result of encoding or administering the repeals. Mr. Peacock also has determined that for each year of the first five years the repeals are in effect the public benefit anticipated as a result of enforcing the repeals will be elimination of duplication of regulation for cultured fish processing plants. No anticipated fiscal implications or economic costs to small businesses or persons who are required to comply with the repeals are anticipated. Comments may be submitted to Dan Kelly, Director of Consumer Programs, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register. The repeals are proposed under the Texas Agriculture Code, Chapter 134, sec.134.005(a), which requires the Texas Department of Agriculture to adopt rules to carry out the aquaculture program. sec.27.12. Cultured Fish Processing Plant License Required. sec.27.13. License for Each Premises. sec.27.14. Issuance of License; Period of Validity. sec.27.15. License Fees. sec.27.16. Records. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 1, 1991. TRD-9112053 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Earliest possible date of adoption: November 8, 1991 For further information, please call: (512) 463-7583 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 37. Maternal and Child Health Services Medicaid Case Management Services for High Risk Pregnant Women and High Risk Infants 25 TAC sec.sec.37.81-37.86 The Texas Department of Health (department) proposes new ssec.37.81- 37. 86, concerning Medicaid case management services for high risk pregnant women and high risk infants. Senate Bill 1678, 71st Legislature, 1989, which amends the Human Resources Code, sec.22.0031, requires the Texas Department of Human Services (TDHS) to develop a program for the case management of high-risk pregnant women and high risk infants. The department has coordinated with the TDHS on the development of such a case management program. To be eligible to apply to TDHS to be enrolled as a Medicaid case management provider, the applicant must first be approved by the department. Once approved by the department, provider applications will be forwarded to TDHS to initiate the enrollment process. The new sections cover definitions, a description of case management services, provider qualifications, the application and review process, and documents adopted by reference. Stephen Seale, Chief Accountant III, Budget Office, has determined that for the first five-year period that the proposed sections will be in effect there will be fiscal implications to state government as a result of enforcing or administering the sections. The department will certify case management costs to the TDHS in an amount estimated to be from $7 million to $15 million each year. This will enable TDHS to draw additional federal revenue from $12 million to $25 million each year. There will be no fiscal implications to local government. Mr. Seale also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be to expand case management services in order to improve maternal and infant health outcomes, and to maximize federal funds available to the state. There will be no costs to small businesses. There will be no cost to persons who are required to comply with the sections. There will be no impact on local employment. Comments on the proposed sections may be sent to Walter P. Peter, Jr., M.D., Texas Department of Health, Bureau of Maternal and Child Health, 1100 West 49th Street, Austin, Texas 78756, (512) 458-7700. Comments will be accepted for 30 days after publication of the proposal in the Texas Register. The new sections are proposed under the Human Resources Code, sec.22.031, which authorizes the Department of Human Services to enter into contracts with appropriate entities, such as the Department of Health, to conduct a program of case management for high-risk pregnant women and high-risk infants; and the Health and Safety Code, sec.12.001, which provides the board of Health with authority to adopt rules to implement Texas Department of Health duties and functions. The new sections will affect the Human Resources Code, sec.22.031. sec.37.81. Introduction. The purpose of these sections is to establish criteria and procedures which the Texas Department of Health (department) will follow concerning Medicaid case management for high-risk pregnant women and high-risk infants. Federal law allows states to provide case management as a distinct service under the Medicaid program. Case management services may be targeted to specific populations. Senate Bill 1678, 71st Legislature, 1989, requires the Texas Department of Human Services (TDHS), the single state agency responsible for the administration of the Medicaid program, to establish a program for the case management of high-risk pregnant women and high-risk infants to age one. The department and TDHS have cooperatively developed such a program. To be eligible to apply to TDHS to be enrolled as a Medicaid case management provider, the applicant must first be approved by the department. Once approved, his or her application will be forwarded to TDHS to initiate the enrollment process. These sections cover definitions, case management services, provider qualifications, the application and review process, and documents adopted by reference. sec.37.82. Definitions. The following words and terms, when used in this undesignated head, shall have the following meanings, unless the context clearly indicates otherwise. Applicant-An agency, organization, or individual applying to the Texas Department of Health (department) to provide case management services which includes, but is not limited to, local health departments, community health centers, public health regions, contractors with the early childhood intervention (ECI) program, contractors with the chronically ill and disabled children's (CIDC) program, medical schools, and contractors with the department currently providing community-based case management services. Application process -An application and instructions issued by the department to potential applicants for approval to deliver case management services and the ensuing review and disposition of the application. Board-The Texas Board of Health. Case management contact-An action taken by a case manager on behalf of an individual to locate, coordinate, and monitor necessary and appropriate services with a specific person or organization which must be face-to-face or by telephone. Case management provider-An applicant approved by the department who meets the provider requirements outlined in these sections. Case management services-Services which will assist eligible individuals to access and utilize needed medical, social, educational, developmental, and other health services. Case manager-A registered nurse licensed to practice nursing in Texas with a minimum of one year of experience in community health nursing or a social worker certified in Texas with a minimum of one year experience in health and/or human services. CIDC-The Chronically Ill and Disabled Children's Program. Commissioner-The commissioner of health. Community-based-Case management services that will be provided in or near the individual's/family's home community, and not be solely based in an institution. Community education -The provision of public information regarding the availability and the importance of case management services, medical services, and other health and human services. Community health nursing-Services provided by a registered nurse in an agency such as a health department, a regional health clinic, a community health center or a school, to individuals, families, and the community which include health promotion and health maintenance, health education, and the prevention and early detection of disease. Department-The Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. ECI-The Early Childhood Intervention Program. Eligible individual -An individual eligible for case management services under these sections. An eligible individual must be: (A) a pregnant woman who meets one or more of the criteria for high risk pregnant women, as described in sec.37.86 of this title (relating to Documents Adopted by Reference). Eligibility continues until the 59th day postpartum; or (B) an infant (a child less than 365 days of age) who meets one or more of the criteria for high-risk infants, as described in sec.37.86; and (C) enrolled as a Medicaid recipient. Health care provider-A provider of preventive, primary, and/or tertiary medical services, as the terms are defined in sec.37.82 of this title (relating to Definitions). High-risk infant -A child under the age of one year who meets one or more of the criteria as described in sec.37.86. High-risk pregnant woman-A pregnant woman who meets one or more of the criteria as described in sec.37.86. Outreach activities -The activities designed to inform potential eligible individuals of the availability and the importance of case management, medical, and other health and human services. Parent-A parent, a legal guardian, a person acting as a parent of a child, an appointed surrogate parent, or a representative of the Texas Department of Human Services (TDHS) when the child is under managing conservatorship of TDHS. Preventive services -Services that include health counseling and education, immunizations, wellness care, and screening. Primary services -Services that include care for minor illness, injuries, and the abnormalities found through screening. Region-A public health region of the Texas Department of Health. State-The State of Texas. Tertiary services -Services that include care for major illnesses, injuries, and chronic or disabling conditions. WIC-The department's Women, Infant, and Children's Nutrition Program. sec.37.83. Case Management Services. Case management services are provided to assist eligible individuals, as defined in sec.37.82 of this title (relating to Definitions), to access and utilize needed medical, social, educational, and other appropriate health services. The purposes of these services are to reduce morbidity and mortality of pregnant women and infants, to encourage the use of cost-effective medical care, and to discourage over-utilization and duplication of costly services. Case management is a dynamic and ongoing process which involves case managers and other personnel in a number of activities. For the purposes of these sections, not all of these activities are billable. The only activities which are billable are reasonably spaced case management contacts by case managers, as defined in sec.37.82. The action referenced in the definition for a case management contact in sec.37.82 must include at least an assessment or reassessment of an individual's needs, an evaluation of progress in meeting those needs, and the development of plans to meet unmet needs. The frequency of case management contacts will vary according to the individual's needs, but in general should occur in accordance with the monitoring schedule as described in sec.37.83(6)(B) of this title (relating to Case Management Services). The case management services system includes the following. (1) Initial in-take. The initial in-take consists of an initial contact with the individual, or parent(s) in the case of an infant, to conduct a risk assessment in order to evaluate an individual's eligibility and needs for health care and case management services. The initial in-take also includes determining whether or not a particular individual or parent(s) desires to receive case management services. This process is to be documented in writing. (2) Comprehensive needs assessment. A formal, written, comprehensive, needs assessment is developed by the case manager in a face-to-face interview with the eligible individual or parent(s). The process includes a review of formal evaluations performed by other professionals. At a minimum, the assessment must include: (A) medical needs; (B) social/family needs; (C) nutritional needs; (D) educational needs; (E) developmental needs (for infants); and (F) health care transportation needs. (3) Service plan development. The written service plan must: (A) address the specific needs of the individual as identified in the comprehensive needs assessment; (B) establish priorities among the needs identified and document a procedure formulated to address those needs; (C) be developed by the case manager and the individual or parent(s); (D) outline the responsibilities of the case manager, the individual, appropriate family members, and other pertinent persons; and (E) provide eligible individuals or their parent(s) with information and direction that will enable them to successfully access and utilize the needed services identified by the plan. (4) Service plan documentation. The service plan must include, at a minimum, documentation of: (A) the persons involved in the development of the service plan; (B) measurable goals to be achieved through the provision of services; (C) all services to be provided, including medical, education, transportation, referral to other programs including WIC, and any other services; and (D) schedules for the case manager to monitor the service plan and to perform a formal reassessment. (5) Service plan implementation. The case manager will arrange for the delivery of appropriate services to the individual based on the formal needs assessment. Through negotiation, the case manager will assist the individual and the service provider(s) in planning and program development that will meet the needs of high-risk pregnant women and/or high-risk infants. Service implementation may involve telephone calls, face-to-face contacts, and home visits. Activities conducted to implement the service plan will be documented in writing. (6) Monitoring. (A) The case manager will monitor the service plan to determine: (i) what services have or have not been delivered; (ii) whether the services were delivered as scheduled; and (iii) whether the services were consistent with the individual's service plan. (B) Modifications to the service plan or a change of service provider(s) may be required. Each monitoring contact, whether face-to-face or by telephone, must be documented in writing. The recommended contact schedule, unless modified for an individual's need(s), is: (i) monthly for pregnant women, within five days postpartum, and one month postpartum; and (ii) one contact during the first two weeks after hospital discharge for infants and monthly thereafter. (7) Reassessment. A formal reassessment of the individual's needs and progress must be conducted on a periodic basis and must be documented in writing. At the reassessment, the case manager and the individual/parent(s) will determine if modifications to the service plan are necessary and if the level of involvement by the case manager should be adjusted. Reassessment will also include determining whether or not case management services need to be continued. Following initial assessment, reassessment must occur at least once during pregnancy and once during the first year of the infant's life. sec.37.84. Provider Qualifications.
                                                                                The case management provider must meet the following requirements established by the Texas Department of Health (department) in order to become a provider of Medicaid case management services for high-risk pregnant women and/or high-risk infants. The applicant must: (1) meet applicable state and federal laws governing the participation of providers in the Medicaid program; (2) agree to sign a Medicaid provider agreement with the single state agency (Texas Department of Human Services); (3) be a provider of health services to women of child bearing age and/or children, with evidence of referral relationships with preventive, primary, and tertiary care providers, agencies, or centers within the nearest geographic area and must: (A) provide information regarding the health services which they provide and how long they have been providing them; (B) develop and/or maintain a comprehensive referral resource directory which contains the names, addresses, and telephone numbers of referral providers of health and human services including, but not limited to: WIC, family planning, prenatal services, child health services, ECI, CIDC, primary care, physicians, hospitals, etc.; (C) make available a copy of this directory upon request; (D) submit a plan for updating the directory on a regular basis with the application; and (E) submit copies of referral agreements with other agencies/providers with the application; (4) be able to participate in the case management system for women of child bearing age, infants, and children with medically at risk or diagnosed conditions and must: (A) develop and maintain a case management program which assists eligible individuals to access and utilize needed medical, social, educational, nutritional, transportation, and other health and human services; (B) incorporate an evaluation component into the program which assesses the health outcomes of high-risk pregnant women and/or high-risk infants; and (C) determine, when the individual or family needs extend beyond a single program or service, which designated case manager will assume the comprehensive case management role for meeting those needs; (5) have the ability to participate in the regional case management system, that is participate with area regional and local health departments, other area case management providers, and the department so that appropriate referral and tracking of clients occurs and must: (A) develop and maintain a case management system in cooperation and coordination with local health departments, the public health region, and other case management providers; (B) submit letters of agreement with these entities with the application; (C) participate in at least two regional case management meetings a year; (D) report to the department, through the region, problems in implementing case management services; (E) agree to comply with data collection requirements established by the department; and (F) share information with the department for referral and tracking of individuals; (6) have a case management system which is community based as evidenced by outreach activities, home visits and the provision of community education, and utilization of qualified local health education programs and must: (A) provide services in a location convenient to the individual which may be in the individual's home; (B) provide information regarding locations of case management service delivery; and (C) submit requested reports to the department which detail outreach activities and community education offerings; (7) have a case management system which utilizes registered nurses and/or social workers as case managers and must: (A) employ registered nurses and/or social workers who must meet, at a minimum, the case manager qualifications as outlined in these rules; (B) submit the type and number of staff employed who will be performing case management services; and (C) assure that the case managers: (i) complete an orientation program provided by the department within 90 days of the approval of the application, or within 90 days of employment for new case managers; (ii) assume responsibility for all case management services provided to eligible individuals; (8) have a case management system which reduces barriers to service for eligible individuals by: (A) providing assistance in: (i) completing applications; (ii) scheduling timely appointments; and (iii) arranging for transportation for health care services, etc.; (B) employing a sufficient number of staff which are available to assist eligible individuals to access health and human services according to the number of eligible individuals that the applicant is proposing to serve; (9) comply with all department and TDHS reporting requirements, including participation in cost studies and must: (A) agree to submit all data required by TDH and TDHS; (B) submit the HCFA 1500 billing form to the agent of TDHS within the required time period; and (C) participate in cost studies; (10) agree to monitoring and evaluation reviews by the department and TDHS which will be used to determine the applicant's continued participation as a case management provider; and (11) implement and maintain service standards and procedures to ensure that case management services are: (A) provided through an identifiable component of an organization that is vested with responsibility to provide case management services; and (B) delivered through a system which is based on the department's written standards for case management, maternity, child health, and family planning services. sec.37.85. Application and Review Process. The application and review process is as follows. (1) Applications to become a Medicaid case management provider for high risk pregnant women and/or high-risk infants may be obtained by contacting the Texas Department of Health, Bureau of Maternal and Child Health, 1100 West 49th Street, Austin, Texas 78756, (512) 458-7700. (2) Applications are to be typed and must be accompanied by all supporting documentation. An original and one copy of the application are to be submitted to the Bureau of Maternal and Child Health at the address described in paragraph (1) of this section. (3) Incomplete applications will not be considered and will be returned to the applicant. (4) All complete applications will be reviewed by department staff. The review process will be completed within 45 days following receipt of a completed application. (5) Applicants meeting all provider requirements will be approved by the department. Approved applicants will be notified in writing by the department, and the applications will then be forwarded to TDHS to initiate the enrollment process. (6) Applicants who are disapproved will be given written notification of the reasons for disapproval. (7) An applicant who has been disapproved by the department may appeal the decision by submitting a revised application which has addressed the findings noted in their disapproval notice. The revised application is to be submitted to the Bureau of Maternal and Child Health, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 458-7700. The applicant will be notified in writing of the department's decision. sec.37.86. Documents Adopted by Reference. (a) The department adopts by reference the following department publications: (1) High Risk Conditions for Pregnant Women and Infants for Case Management; (2) Provider Application; (3) Maternity, Family Planning, and Child Health Standards; and (4) Case Management Standards for Women and Children. (b) Copies may be obtained from the Texas Department of Health, Bureau of Maternal and Child Health, 1100 West 49th Street, Austin, Texas 78756, and are available for public inspection during regular working hours. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 1, 1991. TRD-9112037 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: December 7, 1991 For further information, please call: (512) 458-7700 Chapter 98. HIV and STD Control Subchapter A. Texas HIV Services Grant Program General Provisions (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Department of Health (department) proposes the repeal of existing sec.98.7 and sec.98.9, and proposes new sec.98.7, concerning the Texas HIV Services Grant Program; and proposes the repeal of existing sec.98.67 and sec.98.69, and proposes new sec.98.67, concerning the HIV education grant program. New sec.98.7 will replace existing sec.98.7 and sec.98.9 by consolidating into one section the purposes, functions, membership, terms of office, procedures, and recommendations of the State HIV Services Advisory Committee. Likewise, new sec.98.67 will replace existing sec.98.67 and sec.98.69 by consolidating into one section the purposes, functions, membership, terms of office, procedures, and recommendations of the State HIV Education, Prevention, and Risk Reduction Advisory Committee. In addition, one of the membership requirements for the State HIV Education, Prevention, and Risk Reduction Advisory Committee is being modified. Stephen Seale, Chief Accountant III, Budget Office, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. Seale also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be to clarify, update, and combine the provisions concerning the functions, compositions, and procedures of the HIV Services Advisory Committee and the State HIV Education, Prevention, and Risk Reduction Advisory Committee. There will be no effect on small businesses. There will be no cost to persons who may be required to comply with the sections as proposed. There will be no impact on local employment. Comments on the proposal may be submitted to Charles E. Bell, M.D., Bureau Chief, Bureau of HIV and STD Control, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 458-7463. Public comments will be accepted for 30 days after publication of the sections in the Texas Register. 25 TAC sec.98.7, sec.98.9 The repeals are proposed under the Health and Safety Code (Code), sec.sec.85. 031-85.044, which provides the Board of Health with the authority to establish an advisory committee to assist the board in the implementation of the state HIV Services Grant Program and the HIV Education Grant Program; sec.11.016, which provides the Board of Health with the authority to appoint advisory committees; and sec.12.001, which provides the board with the authority to adopt rules to implement its duties. The repeal and new sections will affect the Code, sec.85. 044 . sec.98.7. Development and Evaluation of Program. sec.98.9. HIV Services Advisory Committee. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 1, 1991. TRD-9112033 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: December 7, 1991 For further information, please call: (512) 458-7463 25 TAC sec.98.7 The new section is proposed under the Health and Safety Code (Code), sec.sec.85. 031-85.044, which provides the Board of Health with the authority to establish an advisory committee to assist the board in the implementation of the state HIV Services Grant Program and the HIV Education Grant Program; sec.11.016, which provides the Board of Health with the authority to appoint advisory committees; and sec.12.001, which provides the board with the authority to adopt rules to implement its duties. The repeal and new sections will affect the Code, sec.85. 044. sec.98.7. HIV Services Advisory Committee. (a) Purpose. The HIV Services Advisory Committee (committee) is created for the purpose of advising and assisting the Texas Board of Health (board) and the Texas Department of Health (department) in planning and administering a comprehensive system of AIDS/HIV services in the State of Texas. (b) Committee responsibilities. The responsibilities of the committee will include the: (1) evaluation of existing services and unmet needs in developing AIDS/HIV grant services networks; (2) review of the goals and targets of the request for proposal (RFP) application packets; (3) evaluation of ongoing program efforts; (4) definition of both short-range and long-range goals and objectives for the AIDS/HIV Services Grant Program; and (5) development of review criteria and standards for the AIDS/HIV Services Grant Program. (c) Advisory Committee recommendations. The program advisory committee may identify and recommend to the department essential elements of service that should be considered in general or regional service development. The department shall consider the committee recommendations during the development of provider contracts required in sec.98.22 of this title (relating to Provider Application; Selection; Contract Process). (d) Membership. The board shall appoint a 15 member statewide HIV Services Advisory Committee representative of a: (1) social worker with extensive knowledge of case management in AIDS/HIV; (2) registered nurse with considerable expertise in caring for AIDS/HIV; (3) physician actively engaged in medical management of AIDS/HIV; (4) volunteer worker regularly involved for at least one year in an AIDS/HIV service agency; (5) nursing home representative with first hand knowledge of AIDS/HIV care in the long term care setting; (6) family member of a person with AIDS/HIV; (7) financial evaluator with experience in developing cost-of-care analyses in the medical setting; (8) hospital administrator from a facility providing care to substantial numbers of AIDS/HIV clients in out-patient and in-patient areas; (9) Texas Department of Human Services Representative with broad experience in obtaining services for the AIDS/HIV client; (10) mental health representative involved in providing comprehensive emotional guidance to numerous clients with AIDS/HIV; (12) home health representative with expertise in providing care in the home for those with AIDS/HIV; (13) hospice representative with broad experience in working with terminally ill persons with AIDS; (14) person with AIDS/HIV; and (15) minority representative with interest and experience working with minority groups in relation to AIDS/HIV. (e) Term. The members shall serve staggered three-year terms with five members' terms expiring every year in January. Initial appointments for one, two, and three-year terms will be determined by lottery. Members may be reappointed by the board to consecutive terms. (f) Officers. The officers of the committee shall consist of a chairperson and a vice-chairperson and shall be selected at the committee's first regular meeting each year by the committee's membership. Officers shall serve one-year terms but terms will be extended until the first regular meeting of the committee in the new year and officers shall be eligible for re-election for one additional term. The chairperson will be the presiding officer of the committee. The vice chairperson shall assume the authority and duties of the chairperson in his or her absence. (g) Subcommittees. The subcommittees of the committee shall be ad hoc, shall be appointed from the membership by the chairperson, and shall assume such powers and responsibilities as delegated to them by the chairperson. (h) Meetings. (1) Open meeting requirements. The committee shall post and hold all meetings in accordance with the Texas Open Meetings Act, Texas Civil Statutes, Article 6252- 17. (2) Regular meetings. The full committee shall meet at least two times per year. Notice of time, date, place, and purpose of regular meetings shall be provided to the members, by mail or telephone or both, at least seven days in advance of each meeting. (3) Special meetings. Special meetings of the committee shall be held as needed and called by the chairperson. Notice of the time, date, place, and purpose of special meetings shall be provided to the members, by mail or telephone or both, at least seven days in advance of each meeting. (4) Quorum. A majority of the committee's members constitutes a quorum for the transaction of business at any meeting. A majority is defined as more than one- half of the committee's membership. The committee may act only by majority vote of its members present and voting. Each member shall be entitled to one vote. (5) Attendance. A record of attendance at each meeting shall be made. If a member misses two consecutive meetings, written notice shall be given to the member. A third consecutive absence from a regular meeting shall be sufficient grounds for membership termination by the board. (6) Parliamentary procedure. Parliamentary procedures for all committee or subcommittee meetings are conducted in accordance with the latest edition of Roberts Rules of Order,
                                                                                  except that the chairperson may vote on any action as any other member of the committee. (7) Conflict of interest. Any committee member having a potential conflict of interest between his/her professional affiliations and subject matter presented to the committee shall refrain from chairing the discussion and/or voting on the issue. (8) Minutes. Minutes of all committee meetings will be prepared and transmitted to the membership for their review prior to subsequent meetings. (9) Public participation. All requests from the public to participate in committee meetings shall be submitted to the committee chairperson. The agenda for each committee meeting shall include one or more items providing for public participation. The chairperson may limit, as necessary, the time for each spokesperson appearing before the committee. Written comments are encouraged and may be submitted to the committee for its consideration. The committee on its initiative may ask for public participation as needed and requested. Designation of time for public participation will be included on the agenda. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 1, 1991. TRD-9112034 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: December 7, 1991 For further information, please call: (512) 458-7463 Subchapter B. HIV Education Grant Program General Provisions 25 TAC sec.98.67, sec.98.69 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under Health and Safety Code (Code), sec.sec.85.031-85. 044, which provides the Board of Health with the authority to establish an advisory committee to assist the board in the implementation of the state HIV Services Grant Program and the HIV Education Grant Program; sec.11.016, which provides the Board of Health with the authority to appoint advisory committees; and sec.12.001, which provides the board with the authority to adopt rules to implement its duties. The repeal and new sections will affect the Code, sec.85. 044. sec.97.67. Development and Evaluation of Program. sec.97.69. State HIV Education, Prevention, and Risk Reduction Advisory Committee. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 1, 1991. TRD-9112035 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: December 7, 1991 For further information, please call: (512) 458-7463 25 TAC sec.98.67 The new section is proposed under the Health and Safety Code (Code), sec.sec.85.031-85.044, which provides the Board of Health with the authority to establish an advisory committee to assist the board in the implementation of the state HIV Services Grant Program and the HIV Education Grant Program; sec.11.016, which provides the Board of Health with the authority to appoint advisory committees; and sec.12.001, which provides the board with the authority to adopt rules to implement its duties. The repeal and new sections will affect the Code, sec.85.044 . sec.98.67. State HIV Education, Prevention, and Risk Reduction Advisory Committee. (a) Purpose. The purpose of the State HIV Education, Prevention and Risk Reduction Advisory Committee (committee) is to assist the Texas Board of Health (board) and the Texas Department of Health (department) in the development of procedures and guidelines for the HIV Education Grant Program to provide HIV education, prevention, and risk reduction services at the community level. (b) Committee responsibilities. The responsibilities of the committee include the: (1) evaluation of existing education programs and unmet needs; (2) review of the goals and targets of the request for proposal (RFP) application/renewal packets; (3) evaluation of ongoing program efforts; (4) definition of both short-range and long-range goals and objectives for the AIDS/HIV Education Program; and (5) development of review criteria and standards for AIDS/HIV Education Program. (c) Committee recommendations. The department shall consider committee recommendations during the development of provider contracts, as required in sec.98.82 of this title (relating to Provider Application-Selection-Contract Process). (d) Membership. The board shall appoint a 15 member statewide AIDS/HIV Education, Prevention, and Risk Reduction Advisory Committee which is representative of: (1) a community-based youth outreach program; (2) the Texas Youth Commission; (3) the Windham school district, Windham; (4) a community-based drug treatment/outreach program; (5) the planned parenthood/family planning program representative; (6) a local health department; (7) a community-based program to reach gay/bisexual men; (8) the Texas Association of Retarded Citizens; (9) a member of the religious community (clergy); (10) a community-based organization for hearing impaired; (11) a PTA representative; (12) a parent; (13) a teacher/principal/HIV educator/HIV counsellor; (14) a community-based organization to reach Hispanics; and (15) a community-based organization to reach blacks. (e) Term. The members shall serve staggered three-year terms with five members' terms expiring each year in January. Initial appointments for one, two, and three-year terms will be determined by lottery. Members may be reappointed by the board to consecutive terms. (f) Officers. The officers of the committee shall consist of a chairperson and a vice-chairperson and shall be selected at the committee's first regular meeting each year by the committee's membership. Officers shall serve one-year terms and shall be eligible for re-election for one additional term. The chairperson shall be the presiding officer of the committee. The vice-chairperson shall assume the authority and duties of the chairperson in his or her absence. (g) Subcommittees. The subcommittees of the committee shall be ad hoc, shall be appointed from the membership by the chairperson, and shall assume such powers and responsibilities as delegated to them by the chairperson. (h) Meetings. (1) Open meeting requirements. The committee shall post and hold all meetings in accordance with the Texas Open Meetings Act, Texas Civil Statutes, Article 6252- 17. (2) Regular meetings. The full committee shall meet at least two times per year. Notice of time, date, place, and purpose of regular meetings shall be provided to the members, by mail or telephone or both, at least seven days in advance of each meeting. (3) Special meetings. Special meetings of the committee shall be held as needed and called by the chairperson. Notice of the time, date, place, and purpose of special meetings shall be provided to the members, by mail or telephone or both, at least seven days in advance of each meeting. (4) Quorum. A majority of the committee's members constitutes a quorum for the transaction of business at any meeting. A majority is defined as more than one- half of the committee's membership. The committee may act only by majority vote of its members present and voting. Each member shall be entitled to one vote. (5) Attendance. A record of attendance at each meeting shall be made. The board shall be notified of members who miss two consecutive meetings. A third consecutive absence from a regular meeting shall be sufficient grounds for membership termination by the board. (6) Parliamentary procedures. Parliamentary procedures for all committee or subcommittee meetings are conducted in accordance with the latest edition of Roberts Rules of Order
                                                                                    , except that the chairperson may vote on any action as any other member of the committee. (7) Conflict of interest. Any committee member having a potential conflict of interest between his/her professional affiliations and subject matter presented to the committee shall refrain from chairing the discussion and/or voting on the issue. (8) Minutes. Minutes of all committee meetings will be prepared and transmitted to the membership for their review prior to subsequent meetings. (9) Public participation. All requests from the public to participate in the committee meetings shall be submitted to the committee chairperson. The agenda for each committee meeting shall include one or more items providing for public participation. The chairperson may limit, as necessary, the time for each spokesperson appearing before the committee. Written comments are encouraged and may be submitted to the committee for their consideration. The committee on its initiative may ask for public participation as needed and requested. Designation of time for public participation will be included as an agenda item. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 1, 1991. TRD-9112036 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: December 7, 1991 For further information, please call: (512) 458-7463 Chapter 145. Long-Term Care Subchapter B. Minimum Standards for Nursing Homes 25 TAC sec.145.97 The Texas Department of Health (department) proposes an amendment to sec.145.97, concerning the reporting of resident death information. The section requires all institutions licensed under the Health and Safety Code, Chapter 242, to report resident death information to the department. The amendment will reduce the overall amount of data to be reported, but will add a specific provision concerning social security numbers and set a single date for reporting all deaths which occurred during a month. The amendment also updates a statutory citation and provides for the production of statistical reports concerning official causes of death, trends in incidence of death among the elderly, and information from specific institutions. The amendment will implement the provisions of House Bill 1984, 72nd Legislature, 1991, which modified the reporting requirements concerning resident death information. Stephen Seale, Chief Accountant III, Budget Division, has determined that for each year of the first five-year period that the section is in effect, there will be fiscal implications to state government for enforcing or administering the section as proposed. There will be an estimated $10,000 cost to the department for the first year to cover programming that will be necessary to produce the statistical reports. There will be no additional cost to the state government for the remaining four years, and there will be no cost to local government. Mr. Seale also has determined that for each year of the first five years that the section will be in effect, the public benefit anticipated will be simplification of reporting resident deaths in long term care facilities, and the availability of statistical data concerning the deaths. There will be no additional cost to small businesses. There is no anticipated cost to persons who are required to comply with the section. There will be no effect on local employment. Comments on the proposal may be submitted to Richard L. Butler, Chief, Bureau of Long Term Care, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3185, (512) 458-7709. Comments will be accepted for 30 days following the date of publication of this proposal in the Texas Register. The amendment is proposed under the Health and Safety Code (the code), sec.242. 037, which provides the Board of Health (board) with the authority to adopt minimum standards for long term care facilities; sec.242.134, which provides the board with certain responsibilities concerning the reporting of resident deaths in long term care facilities; and sec.12.001 which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department and the commissioner of health. The amendment will affect the code, sec.242.134. sec.145.97. Reporting of Resident Death Information. (a) (No change.) (b) The department shall prepare a standard form that shall be completed by the institution and submitted to the Bureau of Long Term Care within 10 working days after the last day of the month in which the death occurred
                                                                                      [of a death]. The form shall include: (1) (No change.) (2) social security number of the deceased
                                                                                        [age, sex, race]; [(3) official cause of death listed on the death certificate;] (3)
                                                                                          [(4)] date of death; and [(5) time of death;] [(6) place of death] (4)
                                                                                            [(7)] name and address of the institution. (c) These reports are confidential under the Health and Safety Code, sec.242.134
                                                                                              [Texas Open Records Act, Texas Civil Statutes, Article 6252- 17a]; however, licensed institutions shall make available historical data of the required information and shall provide the data if requested by applicants for admission or their representative. In addition, data may be taken from the reports as noted in subsection (e) of this section
                                                                                                . (d) (No change.) (e) The department shall produce statistical information of official causes of death to determine patterns and trends of incidents of death among the elderly and in specific institutions and make this information available to the public. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111999 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: December 7, 1991 For further information, please call: (512) 458-7709 Chapter 325. Solid Waste Management The Texas Department of Health (department) proposes an amendment to sec.325.5 and proposes new sec.sec.325.1051-325.1054, concerning solid waste management. Section 325.5 covers definitions and new sec.sec.325.1051-325. 1054, concern recycling rate reporting requirements. The amendments and new sections will implement the requirements in Senate Bill 1340, 72nd Legislature, 1991, which amended the Solid Waste Act, Health and Safety Code, Chapter 361, by adding provisions concerning solid waste recycling programs, effective September 1, 1991. The amendment clarifies the definition of composting and the new sections contain reporting requirements through which progress toward achieving legislatively established solid waste recycling goals can be measured. Specifically, the new sections cover their purpose and scope, definitions, reporting requirements, and recycling and diversion rates. Stephen Seale, Chief Accountant III, Budget Division, has determined that for the first five-year period that the amendments and new sections will be in effect, there will be fiscal implications as a result of enforcing or administering the amendments and new sections. The cost to state government will be approximately $18,500 per year. The cost to local government will be limited specifically to Texas Councils of Government (COGs), will be between $5,000 and $15,000 per individual COG, and will depend on the area population, number of solid waste management sites, and number of recyclers located in the particular area of the state. The total annual cost for all COGs is expected to range between $200,000 and $250,000. Mr. Seale also has determined that for each year of the first five years that the amendments and new sections are in effect, the public benefit anticipated as a result of enforcing the amendments and new sections will be to increase the overall knowledge in the state concerning the extent to which recycling has proven successful. Such knowledge will help local communities, as well as the state, determine ways to further increase recycling opportunities, to improve recycling efficiencies, and to avoid various recycling related problems encountered by others. Information that will be obtained as a result of the proposed rules is required in order to determine whether the statewide 40% recycling goal, established by Senate Bill 1340, with a target date of January 1, 1994, is being met. Achievement of the goal will benefit individuals due to the positive impact such activity has on the environment, the resulting savings in waste disposal costs, and the ultimate conservation of valuable resources made possible by recycling. There will be no efffect on small businesses. There will be no direct costs to persons who may be required to comply with the sections as proposed. There is no measurable impact on local employment. Five public hearings to receive comments on the proposed rules have been scheduled as follows: Thursday, October 24, 1991, 1 p.m., Community Room, Mahon Public Library, 1306 Ninth Street, Lubbock; Friday, October 25, 1991, 1 p.m., Auditorium, Texas Department of Health, 1100 West 49th Street, Austin; Tuesday, October 29, 1991, 1 p.m., Bear Creek Park Agricultural Service Building, One Abercrombie Drive (2 3/4 miles north of the intersection of IH 10 and Highway 6, at intersection of Patterson Road and Bear Creek Drive), Houston; Wednesday, October 30, 1991, 1 p.m., City Council Chambers, 317 West College, Grand Prairie; and Thursday, October 31, 1991, 1 p.m., Corpus Christi-Nueces County Public Health District, 1702 Horne Road, Corpus Christi. In addition, written comments will be considered by the department if they are received by 5 p.m., Thursday, November 7, 1991. Written comments should be mailed to: T. A. Outlaw, Jr., P.E., Chief; Bureau of Solid Waste Management; Texas Department of Health; 1100 West 49th Street; Austin, Texas 78756- 3199. Telephone inquiries may be made by contacting D.E. Balusek or Woody Raine at (800)458-9796 or (512) 406- 7700. Subchapter A. General Information 25 TAC sec.325.5 The amendment is proposed under the Health and Safety Code (the Code), sec.361.427, which provides the department with the authority to adopt rules concerning recycling; sec.361.011 and sec.361.024 which establish the department's jurisdiction over municipal solid waste management and provide the Board of Health (board) with the authority to adopt rules to manage and control municipal solid waste; and sec.12.001 which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the Commissioner of Health. The amendments and new section will affect sec.sec.361.421-361.431 specifically and Chapter 361 generally of the code. sec.325.5 Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Other definitions, pertinent to specific sections, are contained within the appropriate sections. Composting-The controlled biological decomposition of organic materials
                                                                                                  [solid waste] through microbial activity
                                                                                                    [under aerobic conditions]. Depending on the specific application, composting can serve as both a volume reduction and a waste treatment measure. A beneficial organic composting activity is an appropriate waste management solution that shall divert compatible materials from the solid waste steam that cannot be recycled into higher grade uses and convert these materials into a useful product that can serve as a soil amendment or mulch. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9112003 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: December 7, 1991 For further information, please call: (512) 458-7271 Subchapter Z. Waste Minimization and Recyclable Materials Recycling Rate Reporting Requirements 25 TAC sec.sec.325. 1051-325.1055 The new sections are proposed under the Health and Safety Code (the Code), sec.361.427, which provides the department with the authority to adopt rules concerning recycling; sec.361.011 and sec.361.024 which establish the department's jurisdiction over municipal solid waste management and provide the Board of Health (board) with the authority to adopt rules to manage and control municipal solid waste; and sec.12.001 which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the Commissioner of Health. The amendments and new section will affect sec.sec.361.421-361.431 specifically and Chapter 361 generally of the code. sec.325.1051. Purpose and Scope. (a) Purpose. The purpose of these sections in this undesignated head title is to establish reporting requirements through which progress toward achieving the established recycling goals can be measured. It is the state's goal to achieve by January 1, 1994, the recycling of at least 40% of the state's total municipal solid waste stream. (b) Scope. (1) Recycling rate report. A regional or state-wide recycling rate report shall include the information required to determine the recycling rate for the previous year for the municipal solid waste generated from within the appropriate geographic boundaries. Diligence shall be practiced in collecting and reporting information for these reports to prevent double counting any materials to be recycled. (2) Geographic area. A regional recycling rate report shall consider the entire area within an identified planning region. A state-wide recycling rate report shall consider the entire area within the state. sec.325.1052. Definitions. The following words and terms, when used in the sections under this undesignated head, shall have the following meanings, unless the context clearly indicates otherwise. Abandoned automobiles -Automobiles, including at a minimum the body and frame, for which an owner cannot be identified and would normally be destined for disposal. Abandoned automobiles do not include those routinely handled through the salvage or recycling process. Base year-The year 1990 used as a reference point for determining the amount of waste reduced at the source. Compost-The disinfected and stabilized product of the decomposition process that is used or sold for use as a soil amendment, artificial top soil, growing medium amendment, or other similar uses. Council of government (COG)-Any one of the 24 voluntary alliances of local governments with specific geographic boundaries which serve many purposes including regional solid waste planning. Diversion rate -That percentage of the municipal solid waste which is diverted from disposal through recycling and source reduction. Municipal sludge -Any solid, semisolid, or liquid waste generated from a municipal wastewater treatment plant, water supply treatment plant, or any other such waste having similar characteristics and effect, exclusive of the treated effluent from a wastewater treatment plant. Net tons of waste exported-The difference between that portion of the municipal waste stream generated within specific geographic boundaries and exported for disposal and that portion which is generated outside the boundaries and imported for disposal. Recyclable material -A material that has been recovered or diverted from the solid waste stream for purposes of reuse, recycling, or reclamation, a substantial portion of which is consistently used in the manufacture of products which may otherwise be produced using raw or virgin materials. Recyclable material is not solid waste. However, recyclable materials may become solid waste at such time, if any, as it is abandoned or disposed of rather than recycled, whereupon it will be solid waste with respect only to the party actually abandoning or disposing of the material. Recycling-A process by which materials that have served their intended use or are scrapped, discarded, used, surplus, or obsolete are collected, separated, or processed and returned to use in the form of raw materials in the production of new products. Except for mixed municipal solid waste composting, that is, composting of the typical mixed solid waste stream generated by residential, commercial, and/or institutional sources, recycling includes the composting process if the compost material is put to beneficial reuse. Recycling rate -That percentage of the municipal solid waste stream which is recycled. Source-reduced waste -That portion of what is normally part of the municipal solid waste stream which never enters the waste stream due to actions taken by the generator. Source reduction -Any action that avoids the generation of waste by reducing waste at the source, including redesigning products or packaging so that less material is used, voluntary or imposed behavioral changes in the use and reuse of materials, or increasing durability or re-usability of materials. Total municipal solid waste stream-The sum of the state's total municipal solid waste that is disposed of as solid waste, measured in tons, and the total number of tons of recyclable material that has been diverted or recovered from the total municipal solid waste and recycled. Yard waste-Leaves, grass clippings, yard and garden debris, and brush, including clean woody vegetative material not greater than six inches in diameter, that results from landscaping maintenance and land-clearing operations. The term does not include stumps, roots, or shrubs with intact root balls. sec.325.1053. Reporting Requirements. (a) Reporting period and due date. (1) Annually, each council of government (COG) shall report quantities of municipal solid waste generated, disposed, imported and exported from its region and the quantities of recyclable materials recovered from the municipal solid waste stream generated within the COG boundaries during the preceding year. The COG report shall be due to the Texas Department of Health (department) by February 28 of each year. (2) Annually, the department shall consolidate the reports from the COGs into a state-wide report summarizing the COG figures and totaling the results for a state-wide figure. The department report shall be due by March 31 of each year. (b) The reports shall include as a minimum: (1) geographic area covered; (2) reporting period-the year or portion of a year covered by the report; (3) tons of each material recovered for recycling within the boundaries of the COG; (4) tons of municipal solid waste generated and disposed of within the boundaries of the COG; (5) tons of municipal solid waste generated within the boundaries of the COG but disposed of outside the boundaries; (6) tons of municipal solid waste generated outside the boundaries of the COG but disposed of inside the boundaries; (7) average populations within the report area during the report year and the base year, 1990; and (8) the calculated recycling and diversion rates based upon the above-reported figures using the formulas contained in sec.325. 1054 of this title (relating to Recycling and Diversion Rates). (c) Materials recovered for recycling shall be reported according to the following categories: (1) durable goods: (A) appliances; (B) furniture; (C) tires; and (D) abandoned automobiles; (2) glass: (A) glass containers; (B) plate glass; and (C) other glass; (3) metals: (A) aluminum; (i) cans; and (ii) other aluminum scrap; (B) ferrous scrap: (i) steel cans; and (ii) other ferrous scrap; and (C) other nonferrous scrap; (4) organics: (A) yard waste; (B) food waste; and (C) wood waste; (5) paper: (A) computer print out; (B) high-grade office paper; (C) old corrugated cartons/kraft; (D) old newspaper; (E) printers' waste; (F) old magazines; and (G) other paper; (6) plastic: (A) plastic containers; (i) polyethylene terephthalate (PET, or code 1 plastic); (ii) high density polyethylene (HDPE, or code 2 plastic); (iii) polyvinyl chloride (PVC, or code 3 plastic); (iv) low density polyethylene (LDPE, or code 4 plastic); (v) polypropylene (PP, or code 5 plastic); (vi) polystyrene (PS, or code 6 plastic); and (vii) other plastic containers (code 7 plastic); and (B) other plastic; (7) textiles and apparel; and (8) other materials: (A) construction-demolition waste; (B) lead-acid batteries; (C) municipal sludge; (D) used oil; (E) industrial waste which is routinely handled with municipal solid waste; and (F) other municipal solid waste. (d) Units. All materials shall be reported in tons. For those materials normally measured by volume, the report shall indicate what multiplier is used to convert to weight in tons. (e) Recycling credit limits. For the following materials, no credit will be given to recycling activities existing before and during the base year, 1990. Only the amount recycled in addition to 1990 quantities can be credited toward the recycling rates: (1) abandoned automobiles; (2) appliances; (3) construction-demolition debris; and (4) municipal sludge. sec.325.1054. Recycling and Diversion Rates. (a) The recycling rate is calculated by dividing the tone of material recovered for recycling by the tons of the total municipal solid waste generate, where the total municipal solid waste is the sum of the tons recycled, the tone disposed of, and the net tone of waste exported. The formula for the recycling rate can be expressed as follows: [graphic] (b) The diversion rate is calculated by dividing the sum of the tone recycled and source-reduced by the sum of the tons recycled, tons source-reduced, tons disposed of, and net tons of waste exported. The formula for the diversion rate can be expressed as follows: [graphic] This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111997 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: December 7, 1991 For further information, please call: (512) 458-7271 Used Oil Collection Management and Recycling 25 TAC sec.sec.325. 1141-325.1152 The Texas Department of Health (department) proposes new ssec.325.1141- 325.1152, concerning used oil collection, management, and recycling. The new sections will implement the requirements of Senate Bill 1340, 72nd Legislature, 1991, which amended the Solid Waste Disposal Act, Health and Safety Code, by adding Chapter 371 relating to the collection, management, and recycling of used oil. Chapter 371 requires that new sections be adopted and in effect no later than January 1, 1992. The new sections will cover the following: their purpose and applicability; definitions; notice by retail dealers; collection facilities; limitation of liability; registration of persons transporting used oil, marketing, or recycling used oil; prohibition of certain actions, including penalties; criminal and civil penalties; injunctive relief; and venue of suits for injunctive relief. Stephen Seale, Chief Accountant III, Budget Division, has determined that for the first five-year period that the proposed new sections will be in effect there will be fiscal implications to state government as a result of enforcing or administering the sections. There will be a cost to state government of approximately $2.5 million each year (including the 25% portion of the fees collected which is required under Chapter 371 to be transferred to the Texas Water Commission), plus approximately $200,000 each year to cover costs expected to be incurred by the Comptroller's Office. Although not specifically described or covered in the proposed new sections, the state government's used oil management program costs will include issuance and management of recycling assistance grants (primarily Texas Department of Health), oil spill related clean-up costs (primarily Texas Water Commission), costs for public education programs, and enforcement related costs. There will be no fiscal implications to local government. Mr. Seale also has determined that for each year the proposed new sections are in effect the public benefit expected as a result of administering the proposed sections will be a safer and cleaner environment. In addition, the public may see reduced used oil handling costs, through beneficial recycling as opposed to direct disposal, for used automotive oil (including used oil generated by car owners changing their own oil). The proposed new sections encourage, but do not require, Texas businesses that change automotive oil for the public to serve as public used oil collection centers. Those that choose to serve as the centers are afforded certain liability protection if they comply with the sections' requirements. Businesses involved in the transportation and/or recycling of used oil will experience very minor costs of less than $200 per year to cover registration, manifesting, recordkeeping, and reporting requirements. Costs for large and small businesses will be essentially the same. While there will be no direct costs to persons as a result of the proposed new sections, all persons who purchase automotive oil can anticipate a $.02 per quart fee, levied on the first actual sale of automotive oil delivered to a location in this state and sold to a purchaser who is not an automotive oil manufacturer, to be passed on and reflected in the price of any automotive oil purchased. The proposed new sections will have no measurable impact on local employment. Five public hearings to receive comments on the proposed rules have been scheduled. Hearing times and locations are as follows: Thursday, October 24, 1991, 1 p.m., Community Room, Mahon Public Library, 1306 Ninth Street, Lubbock; Friday, October 25, 1991, 1 p.m., Auditorium, Texas Department of Health, 1100 West 49th Street, Austin; Tuesday, October 29, 1991, 1 p.m., Bear Creek Park Agricultural Service Building, One Abercrombie Drive (2 3/4 miles north of the intersection of IH 10 and Highway 6, at intersection of Patterson Road and Bear Creek Drive), Houston; Wednesday, October 30, 1991, 1 p.m., City Council Chambers, 317 West College, Grand Prairie; and Thursday, October 31, 1991, 1 p.m. , Corpus Christi-Nueces County Public Health District, 1702 Horne Road, Corpus Christi. In addition, written comments will be considered if they are received by 5 p.m., Thursday, November 7, 1991. Written comments should be mailed to: T. A. Outlaw, Jr., P.E., Chief; Bureau of Solid Waste Management; Texas Department of Health; 1100 West 49th Street; Austin, Texas 78756-3199. Telephone inquiries may be made by contacting D. E. Balusek or Woody Raine at (512) 406-7700. The new sections are proposed under the Health and Safety Code (Code), sec.371. 028, which provides the Texas Board of Health (board) with the authority to adopt rules concerning used oil collection, management, and recycling; sec.361. 011 and sec.361.024, which establishes the department's jurisdiction over municipal solid waste management and provide the board with the authority to adopt rules to manage and control municipal solid waste; and sec.12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. The new sections will affect the Code, Chapter 371. sec.325.1141. Purpose. The intent of the sections in this undesignated head is to implement the provisions of Health and Safety Code, Chapter 371, sec. s371.021-371.062, which relate to the collection, management, and recycling of used oil. These sections establish a program for registration, reporting, 27>` and recordkeeping by collectors, transporters, and recyclers of used oil. sec.325.1142. Applicability.
                                                                                                      The sections in this undesignated head are applicable to persons who are involved in the collection, transporting, recycling, and disposal of used oil regulated by the department, according to sec.325.3 of this title (relating to Applicability). sec.325.1143. Definitions. The following words, terms, and abbreviations, when used in the sections of this undesignated head, shall have the following meanings, unless the context clearly indicates otherwise. Other definitions pertinent to these and other sections are contained in sec.325.5 of this title (relating to Definitions). Automotive oil -Any lubricating oils intended for use in an internal combustion engine, crankcase, transmission, gear box, or differential for an automobile, bus, or truck. Do-it-yourself (DIY) used oil-Used oil that is generated by a person who changes the person's own automotive oil. Generator-A person whose act or process produces used oil. Public used oil collection center-A facility that operates as: (A) an automotive service facility that in the course of business accepts, for recycling, small quantities of used oil from private citizens; (B) a facility that stores used oil in aboveground tanks and that in the course of business accepts, for recycling, small quantities of used oil from private citizens; and (C) a publicly sponsored collection facility that is designated and authorized by the department to accept, for recycling, small quantities of used oil from private citizens. Reclaiming-The act of using methods, other than rerefining, to remove insoluble impurities from used oil and making the used oil suitable for further use as a lubricant or petroleum product. The term includes settling, heating, dehydration, filtration, or centrifuging. Recycling-The act of: (A) preparing used oil for reuse as a petroleum product by rerefining, reclaiming, or other means; or (B) using used oil as a lubricant or petroleum product instead of using a pertroleum product made from new oil. Rerefining-The act of applying refining processes to used oil to produce high- quality base stocks for lubricants or other petroleum products. Used oil-Any oil that has been refined from crude oil or a synthetic oil that, as a result of use, storage, or handling, has become unsuitable for its original purpose because of impurities or the loss of original properties, but that may be suitable for further use and is recyclable. sec.325.1144. Notice by Retail Dealer. A retail dealer who annually sells directly to the public more than 500 gallons of automotive oil in containers for use off-premises shall post in a prominent place a sign provided by the department informing the public that improper disposal of used oil is prohibited by law. The sign shall also prominently display the toll-free telephone number of the state used oil information center. sec.325.1145. Collection Facilities. (a) All businesses that change automotive oil for the public and all appropriate government agencies are encouraged to serve as public used oil collection centers. (b) Public used oil collection centers shall post and maintain durable and legible signs identifying the site as a public used oil collection center. (c) A public used oil collection center annually shall: (1) register with the department on forms to be provided by the department; and (2) report to the department on forms to be provided by the department the amounts of used oil collected by the center from the public. (d) A public used oil collection center shall notify the department in writing no later than 30 days prior to abandonment or closure of the used oil collection center. (e) Maintenance and operation procedures shall be as follows. (1) Public used oil collection facilities shall be maintained and operated so as to minimize the possibility of an unplanned release of used oil to the environment. (2) Public used oil collection facilities shall not be operated in a manner which endangers the public health or the environment. (3) Tanks and containers used to store used oil must be clearly labeled with the term "USED OIL." (4) If a tank or container used for storage of used oil is found to be leaking or not in good condition the owner/operator is responsible for removing the tank or container from service and ensuring that serviceable tanks or containers are provided for used oil storage. (5) Tanks or containers used for storage of used oil must meet applicable packaging requirements under United States Department of Transportation regulations. (6) Tanks or containers used for storage of used oil must be placed on a concrete pad or impervious surface that is bermed or walled to contain leakage and spills. The secondary containment capacity must be at least equal to the maximum volume of the tank(s) or container(s). (7) The storage area should be lined with a sand layer, minimum of three inches thick. (8) All tanks or containers with a capacity of 500 gallons or more must be of all welded construction and must meet American Petroleum Institute Code 650 requirements for metal gauge and welding procedures. All pipe connections must have welded fittings. (9) The location of tanks or containers must comply with all applicable local or city ordinances and/or fire codes and state rules and regulations and/or fire codes. (f) A representative of the department may enter any place, building, or premise of a collection center for the purpose of inspecting the facility for compliance with the section. The inspection or investigation will be made only during regular business hours or by appointment at any other time. sec.325.1146. Limitation of Liability. (a) A person may not recover from the owner, operator, or lessor of a registered public used oil collection center any damages or costs of response actions at another location resulting from a release or threatened release of used oil collected at the center if: (1) the owner, operator, or lessor of the collection center does not mix the used oil collected with any hazardous waste or polychlorinated biphenyls (PCBs); (2) the owner, operator, or lessor of the collection center does not accept used oil that the owner, operator, or lessor knows contains hazardous waste or PCBs; and (3) the collection center is in compliance with management standards adopted by the department. (b) For purposes of this section, the owner, operator, or lessor of a public used oil collection center may presume that a quantity of less than five gallons of used oil accepted at any one time from any member of the public is not mixed with a hazardous waste or PCBs, provided that the owner, operator, or lessor acts in good faith. (c) This section applies only to activities directly related to the collection of used oil by a public used oil collection center. This section does not apply to grossly negligent activities related to the operation of a used oil collection center. (d) This section does not affect or modify the obligations or liability of any person other than the owner, operator, or lessor of the collection center under any other provisions of state or federal law, including common law, for injury or damage resulting from a release of used oil or hazardous substances. (e) This section does not affect or modify the obligations or liability of any owner, operator, or lessor of a collection center with regard to services other than accepting used oil from the public. sec.325.1147. Registration of Persons Transporting, Marketing, or Recycling Used Oil. (a) A person who transports over public highways of this state more than 500 gallons of used oil annually, who markets more than 500 gallons of used oil annually, or who recycles more than 10,000 gallons of used oil annually shall register annually with the department on forms prescribed by the department and in accordance with this section. (b) All persons transporting, marketing, or recycling used oil who are required to register shall: (1) report annually the sources of used oil transported, marketed, or recycled during the preceding year, the quantity of used oil received, the date of receipt, and the destination or end use of the used oil; (2) provide evidence of familiarity with applicable state laws and rules and management procedures applicable to used oil transportation, marketing, or recycling; (3) provide proof of liability insurance or other evidence of financial responsibility for any liability that may be incurred in transporting, marketing, or recycling used oil; and (4) have necessary federal, state, and local permits as required. (c) Transporting and storage requirements are as follows. (1) Trucks must meet all United States Department of Transportation (DOT) regulations, including placarding and insurance. (2) Truck tanks must be engineered and constructed to collect and transport oil in an environmentally responsible manner. (3) Truck tanks must have internal emergency valves, dome lids with 36 psi emergency venting capacity, and tank head and shell thickness meeting DOT M-306 spill prevention requirements. (4) Truck tank pipe connections must have welded fittings and all on-loading and off-loading equipment must have drip proof fittings. (5) Storage tanks must comply with Texas Water Commission rules and regulations. (6) Storage tank location must meet state and/or local zoning, building, and fire codes. (7) All used oil picked up from collection centers should be driver tested for halogens. (8) All collections and shipments of used oil must be manifested. (9) All manifests, invoices, and sample results must be retained a minimum of three years. (d) A representative of the department may enter any place, building, or premise of a transporter, marketer, or recycler of used oil for the purpose of inspecting the facilities and/or equipment for compliance with these sections. The inspection or investigation will be made only during regular business hours or by appointment at any other time. (e) A utility or industrial generator of used oil that transports its own used oil from one generator-owned or generator-operated facility to another or that recycles its own used oil for use in its operations is not required to register or report under this section. sec.325.1148. Prohibited Actions; Penalties. (a) A person may not collect, transport, store, recycle, use, discharge, or dispose of used oil in any manner that endangers the public health or welfare or endangers or damages the environment. (b) A person commits an offense if the person: (1) intentionally discharges used oil into a sewer, drainage system, septic tank, surface water or groundwater, watercourse, or marine water; (2) knowingly mixes or commingles used oil with solid waste that is to be disposed of in landfills or directly disposes of used oil on land or in landfills; (3) intentionally mixes or commingles used oil with hazardous waste or other hazardous substances or polychlorinated biphenyls (PCBs); (4) transports, markets, or recycles used oil within the state without first complying with the registration requirements of sec.325.1147 of this title (relating to Registration of Persons Transporting, Marketing, or Recycling Used Oil) and rules adopted under that section; (5) applies used oil to roads or land for dust suppression, weed abatement, or other similar uses that introduce used oil into the environment; or (6) violates an order of the department to cease and desist any activity prohibited by this section or any rule applicable to a prohibited activity. (c) It is an exception to the application of subsection (b) of this section if a person unknowingly disposes into a landfill any used oil that has not been properly segregated or separated by the generator from other solid wastes. (d) It is an exception to the application of subsection (b)(2) of this section if the mixing or commingling of used oil with solid waste that is to be disposed of in landfills is incident to and the unavoidable result of the mechanical shredding of motor vehicles, appliances, or other items of scrap, used, or obsolete metals. sec.325.1149. Criminal Penalties. (a) Except as provided by subsection (b) of this section, an offense under sec.325.1148 of this title (relating to Prohibited Actions; Penalties) is a Class C misdemeanor. (b) If it is shown on the trial of an offense under sec.325.1148 of this that the defendant has previously been convicted of an offense under sec.325.1148 the offense is a Class A misdemeanor. sec.325.1150. Civil Penalties. (a) Except as provided by subsection (c) of this section, a person who violates this subchapter or a rule or order adopted under this subchapter is liable for a civil penalty of not less than $100 or more than $500 for each act of violation and for each day of violation. (b) A civil penalty recovered in a suit brought by a local government under this section shall be divided equally between the state and the local government that brought the suit. The state shall deposit its recovery to the credit of the used oil recycling fund. (c) The penalty imposed by this section does not apply to failure to file a report under sec.325.1145 of this title (relating to Collection Facilities) or sec.325.1147 of this title (relating to Registration of Persons Transporting, Marketing, or Recycling Used Oil). (d) The Texas Department of Health, a local government in whose jurisdiction the violation occurs, or the state may bring suit to recover a penalty under this section. sec.325.1151. Injunctive Relief. (a) If it appears that a violation or threat of violation of the sections under this undesignated head, or any order adopted under the sections of this undesignated head has occurred or is about to occur and is causing or may cause immediate injury or constitutes a significant threat to the health, welfare, or personal property of a citizen or a local government, the department, the local government, or the state may bring suit in district court for injunctive relief to restrain the violation or the threat of violation. (b) In a suit for injunctive relief, the court may grant any injunctive or mandatory relief warranted by the facts, including a temporary restraining order, a temporary injunction, or a permanent injunction. Injunctive relief shall be granted without the requirement for a bond or other undertaking by any governmental entity seeking the injunction. sec.325.1152. Venue. A suit for injunctive relief, for recovery of a civil penalty, or both, may be brought in: (1) the county in which the defendant resides; (2) the county in which the violation or threat of violation occurs; or (3) Travis County. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9112002 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: December 7, 1991 For further information, please call: (512) 458-7271 TITLE 28. INSURANCE Part II. Texas Workers' Compensation Commission Chapter 147. Dispute Resolution-Agreements, Settlements Commutation 28 TAC sec.147.10 The Texas Workers' Compensation Commission proposes new s147.10, relating to the procedures for commuting impairment income benefits to a lump sum, as an alternative to receiving payment over a period of weeks. Section 147.10 allows an employee to request a lump sum payment of impairment income benefits when the employee has returned to work for at least three months, earning at least 80% of his or her average weekly wage. The new section lists the information that the employee must provide when he or she requests for lump sum. The request must be made on a commission prescribed form; this form must include a warning to the employee that getting the lump sum payment will prevent him or her from getting further income benefits for the injury. The section requires the employee to file the request with the commission field office managing the claim and to send the request to the insurance carrier, which must approve or deny the request in writing no later than 14 days after receipt of the request. If the request is approved, the carrier must pay the commuted impairment income benefits, but if the carrier denies lump sum payment, it must explain its reasons for denial in writing. The carrier must file a copy of the approval or denial notice of the commission field office managing the claim. The section provides that an employee can request a benefit review conference if the carrier denies the lump sum payment; the request for the benefit review conference if the carrier denies the lump sum payment; the request for the benefit review conference must be made as provided by sec.141.1 of this title (relating to Requesting and Setting a Benefit Review Conference). Mr. Andrew Thigpen, associate director, financial management, has determined that for the first five-year period the section is in effect there will be fiscal implications for state or local governments who are self-insured for workers' compensation insurance; these costs will be additional costs for printing the prescribed forms for requesting commutation. Total costs are not determinable as they are dependent upon volume and printing, but may range from $150 to $240 for each 1,000 forms. There is no anticipated impact on employment, locally or statewide, as a result of implementing and enforcing the section. Mr. Thigpen also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be implementation of a procedure for reducing impairment income benefits to a lump sum for qualified claimants. The anticipated effect on small businesses as a result of compliance with the section will be additional costs for printing the prescribed forms. Total costs are not determinable as they are dependent upon volume and method of printing but may range from $150 to $240 for each 1,000 forms. There may be additional economic cost to persons who are required to comply with the proposed section. These costs may be telephone expenses for obtaining the form, or requesting assistance in completing the form, as well as the postage for mailing the request for commutation of impairment income benefits to the insurance carrier and the commission. Comments on the proposal may be submitted to Susan M. Kelley, General Counsel, Texas Workers' Compensation Commission, 4000 South IH-35, Austin, Texas 78704. Comments will be accepted for 30 days after publication of this proposal in the Texas Register. The new section is proposed under Texas Civil Statutes, Article 8308, sec.2. 09(a), which authorize the commission to adopt rules necessary for the implementation and enforcement of the Texas Workers' Compensation Act. sec.147.10. Commutation of Impairment Income Benefits. (a) An employee may elect to commute impairment income benefits when the employee has returned to work for at least three months, earning at least 80% of the employee's average weekly wage. (b) A request to commute must: (1) be in writing on a commission-prescribed form; (2) state the date the employee reached maximum medical improvement; the impairment rating; and the employee's weekly impairment income benefit; (3) be sent to the carrier; and (4) be filed with the commission field office managing the claim. (c) The commission-prescribed form shall include a warning to the employee that commutation terminates the employee's entitlement to additional income benefits for the injury. (d) The employee may contact the commission field office managing the claim to obtain or verify the information required to be included in the request. (e) The carrier shall send a notice of approval or denial of the request to the employee no later than 14 days after receipt of the request. A notice of approval shall include payment of the commuted impairment income benefits. A notice of denial shall include the carrier's reasons for denial. A copy of the notice shall be filed with the commission field office managing the claim. (f) If the carrier denies the request, the employee may request the commission to schedule a benefit review conference to resolve the issue, as provided by sec.141.1, of this title (relating to Requesting and Setting a Benefit Review Conference). This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112051 Susan M. Kelley General Counsel Texas Workers' Compensation Commission Earliest possible date of adoption: November 8, 1991 For further information, please call: (512) 440-3972 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part VI. Texas Department of Criminal Justice Chapter 152. General Allocation Rules Subchapter B. Community Effort Factors 37 TAC sec.152.7 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Department of Criminal Justice or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Department of Criminal Justice proposes the repeal of sec.152.7, concerning allocation formula community effort factors. Pursuant to the mandate of the Texas Government Code, Article 499.071(c), the board is required to review the formula annually for possible revision. Bill McCray, deputy director of finance for the Institutional Division of the department, has determined that for the first five-year period the repeal is in effect there will be no fiscal implications for state government as a result of enforcing or administering the repeal. The impact on local government will vary from county to county as indicated in the Texas Register publications of June 11, 1991 (16 TexReg 3179) and September 24, 1991 (16 TexReg 5261). Jackee Cox, general counsel for the Texas Department of Criminal Justice, has determined that for each year of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be an equitable distribution of the capacity of the Institutional Division to receive new prisoners from county custody. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the repeal as proposed. Comments on the proposal may be submitted to Jackee Cox, General Counsel for the Department, at P.O. Box 13084, Austin, Texas 78711. The repeal is proposed under the Texas Government Code, Article 499.071, which authorizes the Texas Department of Criminal Justice to promulgate rules concerning the allocation formula. sec.152.7. Factors and Weights. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9112015 Jackee Cox General Counsel Texas Department of Criminal Justice Proposed date of adoption: November 15, 1991 For further information, please call: (512) 463-9988 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 19. Long Term Care Nursing Facility Requirements for Licensure and Medicaid Certification The Texas Department of Human Services (DHS) proposes amendments to sec.sec.19.1, 19.101, 19.204, 19.205, 19.209, 19.213, 19.217, 19.302, 19.401, 19. 503, 19.601, 19.603, 19.604, 19.801, 19.802, 19.805, 19.808, 19.810, 19.901- 19. 909, 19.911, 19.1001-19.1004, 19.1007, 19.1101, 19.1104, 19.1105, 19.1201, 19. 1202, 19.1204, 19.1206, 19.1207, 19.1301, 19.1304, 19.1401, 19.1501, 19.1603, 19. 1605, 19.1606, 19.1610, 19.1701, 19.1702, 19.1706-19.1708, 19.1802, 19.1805, 19. 1807, 19.1902, 19.1910, 19.1912, 19.1920, 19.1921, 19.1923, 19.1929, 19.1930, 19. 2001, 19.2005, and 19.2102; proposes the repeal of sec.sec.19.502, 19.804, 19.807, 19.912, 19.1006, 19.1103, 19.1305, 19.1518, 19.1911, 19.2104, and 19.2105; and proposes new sec.sec.19.502, 19.804, 19.1518, 19.1613, 19.1911, 19.2104, and 19. 2105. The amendments, repeals, and new sections concern long term care nursing facility requirements for licensure and Medicaid certification. The purpose of the amendments, repeals, and new sections is to incorporate into Chapter 19 the Omnibus Reconciliation Act of 1990 patient self-determination provisions, the Americans with Disabilities Act, changes to the death reporting requirements, and new procedures regarding retrospective utilization review. The amendments, repeals, and new sections also delete redundancies, make clarifications, and change some policies, such as those related to billing for oxygen. Burton F. Raiford, interim commissioner, has determined that for the first five- year period the proposed amendments, repeals, and new sections will be in effect there will be fiscal implications as a result of enforcing the amendments, repeals, and new sections. The effect on state government for the first five year period the amendments, repeals, and new sections will be in effect is an estimated additional cost of $1,581,629 for fiscal year 1992; $2,169,076 for fiscal year 1993; $2,277,440 for fiscal year 1994; $2,375,657 for fiscal year 1995; and $2,565,122 for fiscal year 1996. There will be no fiscal implications for local government or small businesses as a result of enforcing or administering the amendments, repeals, and new sections. Mr. Raiford also has determined that for each year of the first five years the amendments, repeals, and new sections are in effect the public benefit anticipated as a result of enforcing the amendments, repeals, and new sections will be to enable nursing facility staff to more easily understand and implement nursing facility rules. The amendments and new sections more clearly define responsibility for quality care and resolve reimbursement issues. There is no anticipated economic cost to persons who are required to comply with the proposed amendments, repeals, and new sections. Questions about the content of this proposal may be directed to Rose Davis at (512) 450-3529 in DHS's Institutional Care Section. Comments on the proposal may be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support-211, Texas Department of Human Services E-503, Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register . Subchapter A. Basis and Scope 40 TAC sec.19.1 The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.1. Basis and Scope. (a) (No change.) (b) Scope. The long term care nursing facility requirements for licensure and Medicaid Certification contain the requirements that an institution must meet in order to qualify to participate as a licensed facility in the Medicaid Program. They serve as a basis for survey activities for licensure and certification. (1) -(6) (No change.) (7) Additional documents that a facility may need for reference include, but are not limited to: (A) the Medicaid Provider Manual (DHS); (B) Alzheimer's Licensing Standards (optional; TDH); (C) Medication Aide Rules (TDH); (D) Nurse Aide Training Rules (TDH); (E) Nurse Aide Training Manual (TDH); (F) OSHA rules and guidelines; (G) rules and regulations for the control of communicable diseases (TDH)
                                                                                                        ; (H) Definitions, Treatment and Disposition of Special Wastes from Health Care Related Facilities (TDH); (I) Nurse Practice Act and Licensed Vocational Nurse Act
                                                                                                          ; (J) Food Service Guidelines (TDH); (K) Centers
                                                                                                            [Center] for Disease Control: (i) Handwashing Guidelines; (ii) Prevention of Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Health-Care and Public Safety Workers; (iii) Guidelines for Isolation Precautions in Hospitals and Infection Control in Hospital Personnel; and (iv) Recommendations for Preventing Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Patients During Exposure-Prone Invasive Procedures. (L) 25 TAC
                                                                                                              ssec.145.81-145.97 of this title (relating to Procedures on Long Term Facilities); [and] (M) 25 TAC
                                                                                                                ssec.145.141-145.147 of this title (relating to Procedures Concerning Certification and Termination of Certification of Long- Term Care Facilities Which Participate in the Title XIX Medical Assistance Program); and [.] (N) Methicillin-Persistent Staphylococcus Aureus: A Protocol for Infection Control (TDH). (O) HIV/AIDS Model Workplace Guidelines (TDH). (c) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112055 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter B. Definitions 40 TAC sec.19.101 The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.101. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Abuse-Any act, failure to act, or incitement to act done willfully, knowingly, or recklessly through words or physical action which causes or could cause mental or physical injury or harm or death to a resident. This includes verbal, sexual, mental/psychological, or physical abuse, including corporal punishment, involuntary seclusion, or any other actions within this definition. (A) Involuntary seclusion-Separation of a resident from others or from his or her room against the resident's will or the will of the resident's legal representative. Temporary monitored separation from other residents will not be considered involuntary seclusion and may be permitted if used as a therapeutic intervention as determined by professional staff and consistent with the resident's plan of care. (B) Mental/psychological abuse -Mistreatment within the definition of "abuse" not resulting in physical harm and includes, but is not limited to, humiliation, harassment, threats of punishment, deprivation, or intimidation. (C) Physical abuse-Physical action within the definition of "abuse" and includes, but is not limited to, hitting, slapping, pinching, and kicking. It also includes controlling behavior through corporal punishment. (D) Sexual abuse-Any touching or exposure of the anus, breast, or any part of the genitals of a resident without the voluntary, informed consent of the resident and with the intent to arouse or gratify the sexual desire of any person and includes, but is not limited to, sexual harassment, sexual coercion, or sexual assault. (E) Verbal abuse-The use of any oral, written, or gestured language that includes disparaging or derogatory terms to a resident or within the resident's hearing distance, regardless of the resident's age, ability to comprehend, or disability.
                                                                                                                  [The willful, knowing, or reckless act of mistreatment of a resident through words or physical action which results in physical, emotional, or mental injury to a resident.] Applicant-Any person seeking admission to a nursing facility. Competent-Possessing the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefits and harms of and reasonable alternatives to any proposed treatment decision.
                                                                                                                    [Having requisite or adequate ability, as in making personal health care or financial decisions.] Comprehensive assessment -An interdisciplinary
                                                                                                                      [A multidisciplinary] description of a resident's needs and capabilities to include daily life functions and significant impairments of functional capacity. Incompetent-Lacking the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefits and harms of and reasonable alternatives to any proposed treatment decision.
                                                                                                                        [Lacking the qualities needed for effective action, as in making personal health care or financial decisions.] Licensed health professional-A physician; physician assistant; nurse practitioner; physical, speech, or occupational therapist; physical or occupational therapy assistant; registered professional nurse; licensed practical nurse; or licensed or certified social worker. Minimum [(Uniform)] data set (MDS)-See Resident Assessment Instrument (RAI).
                                                                                                                          [A comprehensive assessment of the resident's medical, functional, and psychosocial status as specified by the secretary of health and human services to be done on an instrument specified by the State of Texas.] Misappropriation of funds-The taking, secretion, misapplication, deprivation, transfer, or attempted transfer to any person not entitled to receive any property, real or personal, or anything of value belonging to or under the legal control of a resident without the effective consent of the resident or other appropriate legal authority, or the taking of any action contrary to any duty imposed by federal or state law prescribing conduct relating to the custody or disposition of property of a resident. Neglect-A deprivation of life's necessities of food, water, or shelter, or a failure of an individual to provide services, treatment, or care to a resident which causes or could cause mental or physical injury, or harm or death to the resident.
                                                                                                                            [An act or omission of an act without due care which causes physical or emotional harm to a resident or adversely affects the resident's health, safety, or welfare in any way.] Nurse Aide-An individual providing nursing or nursing-related services to residents in a facility under the supervision of a licensed nurse. This definition does not include an individual who is a licensed health professional or a registered dietitian and
                                                                                                                              [,] who volunteers such services without monetary compensation [, or who is exempt under Title 25 of the Texas Administrative Code, s151.3(a) (relating to Requirements for Placement on Registry)]. A nurse aide is not authorized to provide nursing and/or nursing- related services for which a license, certification, or registration is required under state or federal law. Resident assessment instrument (RAI)-An assessment tool utilized to conduct comprehensive, accurate, standardized, and reproducible assessments of each resident's functional capacity as specified by the secretary of the United States Department of Health and Human Services. At a minimum, this instrument must consist of the minimum data set (MDS) core elements as specified by the Health Care Financing Administration (HCFA); utilization guidelines; and resident assessment protocols (RAPS). Uniform Data Set-See RAI
                                                                                                                                [minimum data set]. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 1, 1991. TRD-9112056 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter C. Resident Rights 40 TAC sec.sec.19.204, 19.205, 19.209, 19.213, 19.217 The amendments are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.204. Protection of Resident Funds. (a)-(j) (No change.) (k) Limitation on charges to personal funds. The facility may not impose a charge against the personal funds of a resident for any item or service for which payment is made under Medicaid or Medicare. Section 19.1701(m) of this title (relating to Vendor Payment (Items and Services Included)) specifies the payment arrangement for requested services or items not in the daily vendor rate. (l) (No change.) [(m) Quarterly statement. The facility must provide a written statement, at least quarterly, to each Medicaid recipient, representative payee, responsible party, or family or legal representative. The statement must reflect any recipient funds which the facility has deposited in an account as well as any recipient funds held by the facility in a petty cash account. The statement must include at least the following: [(1) balance at the beginning of the statement period; [(2) total deposits and withdrawals; [(3) interest earned, if any; [(4) identification number and location of any account in which the recipient's personal funds have been deposited; and [(5) ending balance.] (m)
                                                                                                                                  [(n)] Banking charges. (1) (No change.) (2) Bank service charges and charges for checks and deposit slips may be deducted from the individual checking accounts if it is the recipient's written, individual choice to have
                                                                                                                                    [since] this type of account to preserve his
                                                                                                                                      [preserves the] dignity and independence [of the recipient and is for personal use]. (3) Bank fees on individual accounts established solely for the convenience of the facility are the responsibility of the facility and may not be charged to the recipient, family, or responsible party. However, the facility may report these costs as allowable costs on its cost report. (4)
                                                                                                                                        [(3)] The facility may not charge the recipient, family, or responsible party for the administrative handling of either type of account. These costs may be reported as allowable costs by the facility on its cost report. (5)
                                                                                                                                          [(4)] If the facility places any part of the resident's money in savings accounts, certificates of deposit, or any other plan whereby interest or other benefits are accrued, the facility must distribute the interest or benefit to participating residents on an equitable basis and according to the same time frame as the bank distributes the interest (such as monthly or quarterly)
                                                                                                                                            [in either pooled checking accounts or individual checking accounts]. (n)
                                                                                                                                              [(o)] Access to funds. (1)-(2) (No change.) (o)
                                                                                                                                                [(p)] Handling of monthly benefits. If the Social Security Administration has determined that a Title II and Title XVI Supplementary Security Income (SSI) benefit to which the recipient is entitled should be paid through a representative payee, the provisions in 20 CFR 404.1601-404.1610 for Old Age, Survivors, and Disability Insurance benefits and 20 Code of Federal Regulation (CFR) 419.601-419.690 for SSI benefits apply. (p)
                                                                                                                                                  [(q)] Change of ownership. If the ownership of a facility changes, the old owner must transfer the bank balances or trust funds to the new owner with a list of the residents and their balances. The old owner must get a receipt from the new owner for the transfer of these funds. The old owner must keep this receipt for audit purposes. (q)
                                                                                                                                                    [(r)] Alternate forms of documentation. Without prior written approval of DHS, alternate forms of documentation, including affidavits, will not be accepted by the department to verify the resident's personal fund expenditures or as proof of compliance with any requirements specified in these requirements for resident's personal funds. (r)
                                                                                                                                                      [(s)] Effective November 5, 1990, a nursing facility may not impose charges for certain Medicaid-eligible individuals, for nursing facility services that exceed the per diem amount established by the Texas Department of Human Services for such services. "Certain Medicaid-eligible individuals" means an individual who is entitled to medical assistance for nursing facility services, but for whom such benefits are not being paid because, in determining the individuals' income to be applied monthly to the payment for the costs of nursing facility services, the amount of such income exceeds the payment amounts established by DHS. sec.19.205. Free Choice. (a)-(c) (No change.) (d) The facility must furnish Medicaid recipients with complete information about available Medicaid services, advise them how to obtain these services, and fully explain their rights to freely choose service providers as specified in subsection (c) of this section. The facility's information and advice to each resident must include the following elements. (1) The facility must inform the resident about: (A)-(B) (No change.) (C) limitations on services, such as requirements for prior authorization [and limits on the number of outpatient hospital days available without special approval]; and (D) (No change.) (2)-(3) (No change.) sec.19.209. Refunds. (a) The nursing facility must refund private funds paid to the facility for periods covered by Medicaid, including retroactive periods of Medicaid coverage, when: (1) (No change.) (2) The nursing facility has been notified by the Texas Department of Human Services about an individual's eligibility for Medicaid [, and the resident or his responsible party makes a verbal or written request to the facility for a refund for the period covered by Medicaid]. (b) The nursing facility must make the refund within 30 days of: [receipt of vendor payment from DHS for the covered period.] (1) notification of eligibility for nursing home coverage; (2) notification of correction of applied income (see also sec.19.1926(f) of this title (relating to Collection of Applied Income) which specifies procedures concerning applied income refunds at the time of discharge); or (3) receipt of any vendor payment from DHS for any covered period. (c) When the facility becomes aware of the need for a refund as indicated in subsection (a) of this section, facility staff must write to the resident or his responsible party, notifying him about his right to a refund and the amount due. [The written notification must include a statement to be signed by the resident or his responsible party, acknowledging receipt of the notification. Facility staff must file this signed acknowledgement form in the resident's financial record.] sec.19.213. Telephone. (a) (No change.) [(b) The telephone must be in an accessible location and available to residents at all times.] (b)
                                                                                                                                                        [(c)] The facility must permit residents to contract for private telephones at their own expense. The facility must not require private telephones to be connected to a central switchboard. sec.19.217. Directives and Durable Powers of Attorney for Health Care. Competent adults may issue directives or durable powers of attorney for health care, subject to the requirements of this section , and the Texas Natural Death Act and law governing Durable Powers of Attorney for Health Care.
                                                                                                                                                          (see sec.19.219 of this title (relating to Documentation for the Delegation of Long- Term Care Resident's
                                                                                                                                                            [Residents'] Rights) and s19.205(b) of this title (relating to Free Choice)). When an individual has issued no directive, has no legal guardian, and has been determined by the physician to be incapable of understanding and exercising his rights, treatment decisions must be made according to the Texas Natural Death Act, sec.672.009. (1)-(2) (No change.) (3) Facility responsibility. The nursing facility must maintain policies and procedures regarding the following rules with respect to all adult individuals receiving services provided by the facility. (A) All individuals, at the time of admission to the nursing facility, must be provided with the following written information: (i) The individual's rights under Texas law (whether statutory or as recognized by the courts of the state) to make decisions concerning medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives such as Directive to Physicians and/or Living Will or Durable Power of Attorney for Health Care; (ii) The nursing facility's policies respecting the implementation of such rights. (B) The nursing facility must document in the resident's clinical record whether or not the individual has executed an advance directive. (C) The nursing facility must not condition the provision of care or otherwise discriminate against an individual based on whether or not the individual has executed an advance directive. (D) The facility must ensure compliance with the requirements of Texas law, whether statutory or as recognized by the courts of Texas, respecting advance directives. (E) The facility must provide, individually or with others, for education for staff and the community on issues concerning advance directives. For the community, this can be accomplished by newsletters, articles in the newspaper, local new reports, or commercials. For educating staff, in-service programs are appropriate. (F) The facility must provide the attending physician with any information relating to a known existing Directive to Physicians and/or Living Will or Durable Power of Attorney for Health Care, and assist with coordinating physicians' orders with any resident directive. (G) When an individual is admitted to a facility in a comatose or otherwise incapacitated state, and therefore is unable to receive information or articulate whether he has executed an advance directive, the family, surrogate, or other concerned person must receive the information concerning advance directives. The facility must provide this information to the resident once he is no longer incapacitated. (H) When the resident or a relative, surrogate, or other concerned or related individual presents the facility with a copy of the individual's advance directive, the facility must comply with the advance directive including recognition of the power of attorney, to the extent allowed under state law. If no one comes forward with a previously executed advance directive and the patient is incapacitated or otherwise unable to receive information or articulate whether he has executed an advance directive, the facility must note that the individual was not able to receive information and was unable to communicate whether an advance directive existed. (I) According to the Texas Natural Death Act, Health and Safety Code, sec.672.015, limitation of liability for a physician directive is as follows. (i) A physician, health care facility, or health care professional who has no knowledge of a directive is not civilly or criminally liable for failing to act in accordance with that directive. (ii) A physician, or a health professional acting under the direction of a physician, is not civilly or criminally liable for failing to effect a qualified resident's directive. (iii) If an attending physician refuses to comply with a directive or treatment decision, the physician must make a reasonable effort to transfer the resident to another physician. (J) According to the Durable Power of Attorney for Health Care Act, Texas Civil Statutes, Article 4590h-1, sec.10, limitation on liability for a durable power of attorney for health care is as follows. (i) An agent is not subject to criminal or civil liability for a health care decision if the decision is made in good faith under the terms of the durable power of attorney for health care and the provisions of the Texas Durable Power of Attorney for Health Care Act. (ii) An attending physician, health or residential care provider, or a person acting as an agent for or under the physician's or provider's control is not subject to criminal or civil liability and has not engaged in professional conduct for an act or omission if the act or omission: (I) is done in good faith under the terms of the durable power of attorney for health care, the directives of the agent, and the provisions of the Texas Durable Power of Attorney for Health Care Act; and (II) does not constitute a failure to exercise due care in the provision of health care services. (iii) An attending physician, health or residential care provider, or person acting as an agent for or under the physician's or provider's control has not engaged in unprofessional conduct for: (I) failure to act as required by the directive of an agent or a durable power of attorney for health care if the physician, provider, or person was not provided with a copy of the durable power of attorney for health care or had no knowledge of a directive; or (II) acting as required by an agent's directive if the durable power of attorney for health care has expired or been revoked but the physician, provider, or person does not have knowledge of the expiration or revocation. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112057 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter D. Admission, Transfer, and Discharge Rights 40 TAC sec.19.302 The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.302. Transfer and Discharge. (a)-(d) (No change.) (e) Contents of the notice. For nursing facilities, the written notice specified in subsection (c) of this section must include the following: (1) -(3) (No change.) (4) a statement that the resident has the right to appeal the action as outlined in the Fair Hearings, Fraud, and Civil Rights Handbook of the Texas Department of Human Services by submitting a written request for a hearing to the Medicaid eligibility worker at the local DHS office within 10 days
                                                                                                                                                              ; (5)-(6) (No change.) (f)-(g) (No change.) (h) Fair hearings -preadmission screening and annual resident review (PASARR) as described in subsection (a)(7) of this section
                                                                                                                                                                . Any individual discharged as a result of a determination by TDMHMR [as described in subsection (a)(7) of this section] must be
                                                                                                                                                                  [is] informed of his right to request a fair hearing and to be represented by an authorized representative. Fair hearings must be
                                                                                                                                                                    [are] conducted according to the provisions of Chapter 79, Subchapters L, M, and N of this title (relating to Fair Hearings, Appeals Process, and Hearing Procedure). Individuals requesting admission to Medicaid contracted nursing facilities have 90 days to appeal. Individuals currently residing in a Medicaid contracted nursing facility have 10 days to appeal. Payments for Medicaid residents to the facility continue until the hearing officer makes a final determination. When decisions are upheld, overpayments to the nursing facility are immediately recouped. (i) Fair hearings-All other discharges. (1) Individuals who receive a discharge notice from a facility have 10 days to appeal. If the recipient has not left the facility, vendor payments and eligibility will continue until the hearing officer makes a final determination. If the recipient has left the facility, Medicaid eligibility will remain in effect until the hearing officer makes a final determination. (2) When the hearing officer determines that the discharge was inappropriate, the facility, upon written notification by the hearing officer, must readmit the resident immediately, or to the next available bed. If the discharge has not yet taken place, and the hearing officer finds that the discharge will be inappropriate, the facility, upon written notification by the hearing officer, must allow the resident to remain in the facility. The hearing officer will also report the findings to the LTCU for investigation of possible noncompliance. (3) When the hearing officer determines that the discharge is appropriate, the resident is notified in writing of this decision. Any payments made on behalf of the recipient past the date of discharge or decision, whichever is later, must be recouped. (j)
                                                                                                                                                                      [(i)] Discharge of married residents. If two residents in a facility are married and the facility proposes to discharge one spouse to another facility, the facility must give the other spouse notice of his or her right to be discharged to the same facility. If the spouse notifies a facility, in writing, that he or she wishes to be discharged to another facility, the facility must discharge both spouses on the same day, pending availability of accommodations. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112058 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter E. Resident Behavior and Facility Practice 40 TAC sec.19.401 The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.401. Resident Behavior and Facility Practice. (a) Restraints. The resident has the right to be free from any physical restraints imposed or psychoactive drugs administered for purposes of discipline or convenience, and not required to treat the resident's medical symptoms. See also sec.19.810(g) and (h) of this title (relating to Nursing Practices). (1) If physical restraints are used because they are required to treat the resident's medical condition, the restraints must be released and the resident repositioned as needed to prevent deterioration in any aspect of the resident's condition. At a minimum, restraints must be released
                                                                                                                                                                        every two hours for a minimum of 10 minutes, and the resident repositioned. (2) (No change.) (b)-(c) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112059 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter F. Quality of Life 40 TAC sec.19.502 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Human Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.502. Activities. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112076 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter F. Quality of Life 40 TAC sec.19.502, sec.19. 503 The new section and amendment are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.502. Activities. (a) The facility must provide for an ongoing program of activities designed to meet, in accordance with the comprehensive assessment, the interest and the physical, mental, and psychosocial well-being of each resident. (b) The activities program must be directed by a qualified professional who: (1) is a qualified therapeutic recreation specialist who is eligible for certification as a therapeutic recreation specialist by a recognized accrediting body, such as the National Council for Therapeutic Recreation Certification, on August 1, 1989; or (2) has two years of experience in a social or recreational program within the last five years, one of which was full-time in a patient activities program in a health care setting; or (3) is a qualified occupational therapist or occupational therapy assistant; or (4) has completed an activity director training course approved by any state. The Texas Department of Human Services (DHS) and Texas Department of Health (TDH) do not review or approve any courses. DHS and TDH accept only training courses approved by the National Certification Council for Activity Professionals. (c) The facility must ensure that activities assessment and care planning are completed and reviewed or updated as provided in sec.19.601 and sec.19.602 of this title (relating to Resident Assessment and Comprehensive Care Plans). sec.19.503. Social Services. (a) The facility must provide medically-related social services to attain the highest practicable physical, mental, or psychosocial well-being of each resident. See also sec.19.701 of this title (relating to Quality of Care) for information concerning psychosocial functioning. (1)-(2) (No change.) (b) Qualifications of a social worker. A qualified social worker is an individual who is certified, or provisionally certified, by DHS as prescribed by the Human Resources Code, Chapter 50, and who has at least: (1) (No change.) (2) similar professional qualifications, which include : (A) a minimum educational requirement of a bachelor's degree from a college or university which has institutional accreditation by a regional accreditation agency recognized by the United States Department of Education or the Council on Postsecondary Accreditation (CoPA); and (B) one year experience met by employment providing social services in a health care setting. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112060 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter G. Resident Assessment 40 TAC sec.sec.19. 601, 19.603, 19.604 The amendments are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.601. Resident Assessment.
                                                                                                                                                                          The facility must conduct initially and periodically a comprehensive accurate, standardized, reproducible assessment of each resident's functional capacity. (1) (No change.) (2) Comprehensive assessments. (A) The facility must make a comprehensive assessment of all residents'
                                                                                                                                                                            [the resident's] needs, utilizing the Health Care Financing Administration's (HCFA) resident assessment instrument (RAI)
                                                                                                                                                                              [which: [(i) is based on a uniform data set specified by the secretary and uses an instrument that is specified by DHS; and [(ii) describes the resident's capability to perform daily life functions and significant impairments in functional capacity]. (B)-(C) (No change.) (D) The nursing facility must examine each resident , and review the minimum data set core elements specified in HCFA's RAI
                                                                                                                                                                                no less than once every three months and as appropriate [, and revise the resident assessment to assure the continued accuracy of the assessment]. Results must be recorded to assure continued accuracy of the assessment. (E)-(F) (No change.) (G) The comprehensive assessment shall include HCFA's RAI
                                                                                                                                                                                  [the minimum data set (MDS) specified by DHS] to be completed as required in subsection (c)(2) of this section, and the client assessment, review, and evaluation (CARE) form to be completed as required in sec.19.604 of this title (relating to Preadmission Screening and Annual Resident Review (PASARR)). (3) (No change.) sec.19.603. Discharge Summary [and] (Discharge Plan of Care). (a) (No change.) (b) The facility discharge summary
                                                                                                                                                                                    [post-discharge plan of care] must be available at the time of discharge when a resident is being discharged to a private residence, another nursing facility, a Medicare skilled nursing facility, another residential facility such as a board and care home, or an intermediate care facility for the mentally retarded. [(c) Discharges to the hospital or deaths require only the items specified in subsection (d)(1)-(10) of this section. [(d) A physicians' discharge/death summary must be completed within 20 working days of the death or notification of discharge (except if the resident has been discharged to the hospital for 10 days or less, and readmitted to the same facility) and must include: [(1) resident name; [(2) physician's name; [(3) admission date; [(4) discharge date; [(5) admission diagnosis(es); [(6) discharge diagnosis(es); [(7) condition on discharge; [(8) prognosis; [(9) disposition of resident (where resident went and how resident left the facility (wheelchair, walking, stretcher, etc.)); and [(10) attending physician's signature. [(e) If completed, a copy of the minimum data set, should accompany all transfer and discharge information.] sec.19.604. Preadmission Screening and Annual Resident Review (PASARR). (a)-(c) (No change.) (d) Determination process. (1)-(4) (No change.) (5) TDMHMR will notify all individuals of the results of their PASARR determination through a letter sent to them, the nursing facility administrator, the attending physician, and the local MHMR authorities, the Texas Department on Aging (TDoA), and the local Medicaid eligibility unit. Individuals who have undergone a preadmission screening will be notified within 10 calendar days of the determination and for individuals who have undergone an annual review, they will be notified within 30 calendar days of the determination. [Any individual, or his legal representative or responsible party not in agreement with the PASARR determination, may file an appeal with TDMHMR to receive a DHS fair hearing according to Chapter 79 of this title (relating to Legal Services).] (6) Any individual, or his legal representative or responsible party, not in agreement with the PASARR determination may file an appeal with TDMHMR to receive a DHS fair hearing according to Chapter 79 of this title (relating to Legal Services). (A) When the hearing officer reverses TDMHMR's determination regarding nursing facility admission, the individual seeking entry into the nursing facility may be admitted immediately; and as long as the individual meets all other eligibility requirements, the facility may receive vendor payments. Current residents who have met all eligibility criteria may continue to reside in the facility and receive Medicaid reimbursement retroactive to the date when medical and financial eligibility were in effect. (B) When the hearing officer sustains TDMHMR's determination regarding nursing facility admission, the individual seeking entry into the nursing facility may not enter the facility and may not be Medicaid-certified for nursing facility placement. Current residents who have met all eligibility criteria must be alternately placed, unless excepted by paragraph (3) of this subsection. (e)-(g) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112061 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter I. Nursing Services 40 TAC sec.sec.19.801, 19.802, 19.804, 19.805, 19.808, 19.810 The amendments and new sections are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.801. Nursing Services.
                                                                                                                                                                                      The facility must have sufficient staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care. Care and services are to be as specified in sec.19.701 of this title (relating to Quality of Care). (1)-(2) (No change.) (3) Waiver of requirement to provide licensed nurses on a 24-hour basis. A facility may request a waiver [either] from the requirement that a nursing facility provide a registered nurse for at least eight consecutive hours a day, seven days a week as specified in paragraph (2) of this section, and
                                                                                                                                                                                        [or] the requirement that a nursing facility provide licensed nurses on a 24-hour basis, including a charge nurse as specified in paragraph (1) of this section, if the following conditions are met: (A)-(F) (No change.) (4)-(9) (No change.) sec.19.802. Additional Nursing Services Staffing Requirements. (a)-(c) (No change.) (d) A registered nurse must have a current license from the Board of Nurse Examiners for the State of Texas[.] and must practice in compliance with the Nurse Practice Act and rules and regulations of the Board of Nurse Examiners. (e) A licensed vocational nurse must have a current license from the Board of Vocational Nurse Examiners of Texas[.] and must practice in compliance with the Vocational Nurse Act and rules and regulations of the Board of Vocational Nurse Examiners. (f) -(h) No change.) (i) The facility must maintain continuous
                                                                                                                                                                                          [weekly] time schedules showing the number and classification of nursing personnel, including relief personnel, who are scheduled or who worked
                                                                                                                                                                                            [will work] in each unit during each tour of duty. The time schedules must be maintained for the period of time specified by facility policy or for at least two years following the last day in the schedule. (j)-(n) (No change.) sec.19.804. Director of Nursing Services. The director of nursing services must be a qualified registered nurse employed full-time who has, in writing, administrative authority, responsibility, and accountability for the functions, activities, and training of the nursing services staff, and who serves only one facility in this capacity. (1) If the director of nursing services has other institutional responsibilities, a qualified registered nurse must serve as an assistant so that there is the equivalent of a full time director of nursing services on duty. (2) The director of nursing must devote a minimum of 40 hours every week, to the facility's nursing services. (3) Nurses with temporary permits may not be a director of nurses or charge nurse. (4) If a nursing facility (NF), as a result of waivered status, employs a licensed vocational nurse to supervise and direct nursing services, the NF must have an agreement with a registered nurse who must provide the vocational nurse at least four hours of consultation in the facility per week. The agreement between the facility and the consultant must comply with sec.19.1906 of this title (relating to Use of Outside Resources). The registered nurse must not assume director of nursing duties, but must act as a consultant to solve problems involving resident care, conduct in-service training, and maintain proper clinical records. (5) The director of nursing may be the charge nurse of the day shift, only when the facility has an average daily occupancy of 60 or fewer residents. (6) When a licensed nurse takes a verbal or telephone order from a physician, podiatrist, or dentist, the nurse must sign the order. The facility must obtain the physician's, podiatrist's, or dentist's signature on the order and return it to the clinical record within seven working days. (7) Licensed nurses must enter, or approve and sign, nurses' notes: (A) at least monthly. Routine charting for Medicaid recipients must reflect the recipient's ability as assessed on the basis of the way he performs his activities of daily living at least 60% of the time; and (B) at the time of any physical complaints, accidents, incidents, change in condition or diagnosis, and progress. All of the preceding must be promptly recorded as exceptions, and included in the clinical record. (8) Any significant adverse changes in the resident's physical or emotional condition must be promptly reported to the attending physician. Every attempt to make the reports, and every contact made with the attending physician, must be documented in the clinical record. (9) Each resident must receive the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well being, as defined by and in accordance with the comprehensive assessment and plan of care. This includes performing cardiopulmonary resuscitation (CPR) when spontaneous respiratory or circulatory functions appear to have ceased, unless: (A) the clinical record specifically includes: (i) the physician's order to "do not resuscitate" (DNR); and (ii) supporting documentation such as a Directive to Physician, Durable Power of Attorney for Health Care, or a witnessed Physician-Physician/Family treatment decision, as described in sec.19. 217 and sec.19.219 of this title (relating to Directives and Durable Powers of Attorney for Health Care and Documentation for the Delegation of Long Term Care Resident's Rights); or (B) a registered nurse determines and pronounces a resident dead, as permitted by paragraph (10) of this section. (10) If permitted by written policies of the nursing facility, a registered nurse may determine and pronounce a person dead in situations other than when an individual is being supported by artificial means which preclude determination that the person's spontaneous respiratory and circulatory functions have ceased. The facility's nursing staff, and the medical staff or consultant must have jointly developed and approved such policies. (A) The apparent death of a resident must be reported immediately to the attending physician, relatives, and if applicable, any guardian or legal representatives. (B) The body of a deceased resident must not be removed from the facility without a physician's or registered nurse's authorization (see paragraph (10) of this section). Telephone authorization is acceptable, if not in conflict with local regulations. Authorization by a justice of the peace, acting as a coroner, is sufficient when the attending or consulting physician or registered nurse is not available. (C) Any death which involves trauma, or unusual or suspicious circumstances, must immediately be reported to the authorities according to local regulations, and must be reported immediately to TDH according to sec.19.1921(p) of this title (relating to Operating Procedures and Policies). Deaths must also be reported monthly as specified in sec.19.2001(d) of this title (relating to Licensure). (11) The director of nurses must ensure that all orders originate with a physician, dentist, or podiatrist. A licensed nurse may accept and carry out a physician's, dentist's, or podiatrist's order for the administration of medications or treatments when that order originates with one of the previous licensed practitioners and is merely related or communicated to the RN or LVN through another person. The RN or LVN who carries out the order is responsible for assuring that the order is correct. He/she is required to question any order which he/she suspects is not correct. sec.19.805. [Nursing Facility] Charge Nurse Responsibilities. (a) -(b) (No change.) [(c) The charge nurse: [(1) is responsible during the shift, for the total nursing care of residents in his assigned unit; [(2) is able to recognize significant changes in the conditions of residents and take necessary action; [(3) supervises direct-resident-care personnel in the unit; [(4) ensures that the individual plan of care is followed to meet the resident's needs according to generally accepted nursing practices with the State of Texas; [(5) administers or supervises the preparation and administration of prescribed medications; [(6) administers or supervises prescribed treatments; [(7) supervises serving of prescribed diets and fluid intake (it is acceptable to document only deviations from normal) and reports persistent unresolved problems to the physician and the director of nursing; [(8) ensures that all medications and treatments are charted after they are administered or completed by the person administering the medication or completing the treatment on his assigned shift; [(9) supervises the preparation of incident and accident reports; [(10) directs charting on his shift; [(11) enters or approves, and signs, nurses' notes at least monthly, and ensures that exceptions are noted, documented, and signed as specified in sec.19.807(f) and (h) of this title (relating to General Nursing Care in Nursing Facilities); [(12) ensures that discharge information, as specified in sec.19.603 of this title (relating to Discharge Summary and Discharge Plan of Care) is forwarded with a resident upon transfer or discharge; [(13) ensures that drugs covered by the Controlled Substances Act are verifiable by inventory; [(14) participates in regular staff meetings; [(15) is responsible for the detection of and ensuring correction of situations that have a high probability of causing accidents or injuries to residents; [(16) ensures continuing promotion of the resident's physical and emotional health by assisting and teaching him regarding his medical care. If a resident refuses to follow instructions, the charge nurse must document the refusal in the resident's chart; [(17) conducts daily rounds to observe all residents on their unit on each tour of duty; and [(18) ensures that all orders originate with a physician, dentist or podiatrist. A licensed nurse may accept and carry out a physician's, dentist's, or podiatrist's order for the administration of medications or treatments when that order originates with one of the above licensed practitioners and is merely relayed or communicated to the RN or LVN through another person. The RN or LVN who carries out the order is responsible for assuring that the order is correct. He/she is required to question any order which he/she suspects is not correct.] sec.19.808. Supervision of Nutrition in Nursing Facilities. Nursing personnel must be aware of the nutritional needs of residents, and[.] must cooperate fully with the dietitian and/or director of food service in meeting the nutritional needs of residents. See also sec.19.901 of this title (relating to Dietary Service). [(1) encourage residents to eat in the dining area unless medically contraindicated; [(2) ensure that residents who do not eat in the dining area are provided their own trays; [(3) assist in the prompt feeding of residents, if necessary, so that food is served at the proper temperature; [(4) ensure that drinking water is available to residents at all times unless medically contraindicated; and [(5) observe food and fluid intake of residents. Deviations from normal are charted in the resident's clinical record and reported to the nurse in charge.] sec.19.810. Nursing Practices. (a) Regarding the administration of intravenous fluids or medications, or extracting blood for laboratory tests, the licensed vocational nurse (LVN) must have been instructed and have demonstrated competence in the technique of venipuncture. Furthermore, the LVN must complete the procedure in accordance with the orders of an authorizing physician, and within the guidelines of the written policies and procedures approved by the employer.
                                                                                                                                                                                              [Licensed vocational nurses whose formal training has not included venipuncture or nasogastric tube insertion procedures may perform these procedures if the RN director of nursing or RN consultant document that each LVN (by name) has received instruction in the performance of these procedures and is qualified to perform them.] (b) Regarding the technique of insertion of a nasogastric tube, the LVN must have been instructed and have demonstrated competence. Furthermore, the LVN must complete the procedure in accordance with the orders of the authorizing physician, and within the guidelines of the written policies and procedures approved by the employer.
                                                                                                                                                                                                [Licensed vocational nurses whose formal training has not included venipuncture must have received instruction in the performance of these procedures and is qualified to perform them.] (c) LVN whose formal training has not included venipuncture or nasogastric tube insertion procedures may perform these procedures if the RN director of nursing or RN consultant document that each LVN (by name) has received instruction in the performance of these procedures and is qualified to perform them.
                                                                                                                                                                                                  [In cases of venipunctures, blood specimens for laboratory tests may be drawn and intravenous fluids may be given by any RN or LVN who is qualified through their formal training. An LVN shall not administer any medications intravenously, but an LVN may monitor intravenous drug medications once started by an RN.] (d) (No change.) (e) Syringe feedings must
                                                                                                                                                                                                    [shall] be given in accordance with physicians'
                                                                                                                                                                                                      [physicians] orders and established feeding procedures. They may be given by any nonlicensed nursing personnel, provided that nonlicensed nursing personnel have had in-service from the licensed nurse or qualified dietitian
                                                                                                                                                                                                        and have demonstrated proficiency by a return demonstration. (f)-(l) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112062 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter I. Nursing Services 40 TAC sec.19.804 sec.19.807 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Texas Department of Human Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.804. Nursing Facility Director of Nursing Services. sec.19.807. General Nursing Care in Nursing Facilities. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112077 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter J. Dietary Services 40 TAC sec.sec.19.901-19.909, 19.911 The amendments are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.901. Dietary Service.
                                                                                                                                                                                                          The facility must provide each resident with a nourishing, palatable, well-balanced diet that meets daily nutritional and special dietary needs of each resident. See information about kitchens in sec.19.1513(n) of this title (relating to Other Rooms and Areas). See also sec.19.701(9) and (10) of this title (relating to Quality of Care) for information concerning nutrition and hydration. sec.19.902. Staffing. The facility must employ a qualified dietitian either full-time, part-time, or on a consultant basis. (1)-(4) (No change.) (5) The director of food service must be at least: (A) (No change.) (B) An associate-in
                                                                                                                                                                                                            [of]-arts graduate in nutrition and food management (such as dietetics, home economics, or restaurant management)
                                                                                                                                                                                                              [(a dietary technician)]; or (C) -(E) (No change.) sec.19.903. Sufficient Staffing.
                                                                                                                                                                                                                The facility must employ , for a sufficient number of hours, dietary
                                                                                                                                                                                                                  [sufficient] support personnel who are
                                                                                                                                                                                                                    competent to carry out the functions of the dietary service. [The dietary service department must be staffed at least 12 hours daily, and weekly staffing schedules must be posted. Dietary service employees must be trained to perform assigned duties and participate in selected in-service education programs.] sec.19.904. Dietary Consultant Requirements. (a)-(b) (No change. ) (c) A consultant's visit must be long enough to allow: (1) (No change.) (2) review of the resident assessment instrument and conduct of an in-depth nutritional assessment and resident counseling
                                                                                                                                                                                                                      [nutritional assessment and resident counseling]; (3) development of a plan to meet resident nutritional needs and update of the plan as required
                                                                                                                                                                                                                        [guidance to the dietary service supervisor and staff]; (4) guidance to the dietary service supervisor and staff
                                                                                                                                                                                                                          [approval of all menus]; (5) (No change.) (6) development of
                                                                                                                                                                                                                            [planning and conducting] in-service education programs; (7) approval of all menus;
                                                                                                                                                                                                                              [development of a plan to meet resident nutritional needs and update the plan as required; and] (8) supervision of preparation of meals, serving of meals, and recording food intake; and [.] (9) necessary quality assurance. (d) (No change.) sec.19.905. Documentation Requirements for Dietary Consultant. Documentation requirements for dietary consultants are as specified in sec.19.1906 of this title (relating to Use of Outside Resources.) [(a) The facility must maintain documentation reflecting consultation with a dietitian and make it available for review by federal and state representatives. The facility must include at least the following in the documentation: [(1) the name of the consultant dietitian; [(2) the dates of the consultant's visits; [(3) assessment of the dietary service, including all special diets ordered; and [(4) review of fluids for nutritional and hydrational purposes according to physician's orders. [(b) The facility must ensure that the documentation of the consultation is signed and dated at each visit. [(c) The name of the dietitian/consultant dietitian shall be posted in a place for residents to see.] sec.19.906. Hygiene. (a)-(c) (No change.) [(d) Food handlers' permits, if required, must be current.] sec.19.907. Menus and Nutritional Adequacy. (a) Menus must: (1) (No change.) (2) be prepared at least one week
                                                                                                                                                                                                                                in advance; and (3) be followed. Any substitutions must be documented as required in subsection (i) of this section. [(b) Every facility must ensure that menus are written at least one week in advance and designed to meet the nutritional and special dietary needs of residents in accordance with the attending physician's orders. Written menus must be followed. Any substitutions must be documented as required in subsection (k) of this section. To the extent medically possible, the menu must meet the recommended dietary allowances of the Food and Nutritional Board, National Research Council, National Academy of Sciences.] (b)
                                                                                                                                                                                                                                  [(c)] A qualified dietitian may accept diet orders and changes from the physician. (c)
                                                                                                                                                                                                                                    [(d)] The facility must ensure that a current diet manual, approved by the Texas Department of Health (TDH), is readily available to dietary service personnel and the supervisor of nursing service. (d)
                                                                                                                                                                                                                                      [(e)] The facility must retain records of menus served and food purchased for 30 days. (e)
                                                                                                                                                                                                                                        [(f)] The facility must post the current week's menu in the dietary department so employees responsible for purchasing, preparing, and serving foods can use it. (f)
                                                                                                                                                                                                                                          [(g)] The facility must vary menus from week to week, and menus shall be in a place for residents to see. The facility must serve food in adequate amounts and adjust menus for seasonal changes. [The facility does not need to note substitutions on the menu, but must record substitutions after service and keep them on file for 30 days.] (g)
                                                                                                                                                                                                                                            [(h)] The facility must consider the general age group in planning menus. (h)
                                                                                                                                                                                                                                              [(i)] A list of residents receiving special diets and a record of their diets must be kept in the dietary area for at least 30 days. [(j) A file of tested recipes, adjusted to proper yield, must be kept in the dietary area.] (i)
                                                                                                                                                                                                                                                [(k)] The dietary department must keep a seven-day supply of staple foods and a two-day supply of perishable foods at all times. The facility is allowed the flexibility to use food on hand to make substitutions at any interval as long as comparable nutritional value is maintained. The facility must document the substitution on the day of use. See also sec.19.1513(o)(1) of this title (relating to Other Rooms and Areas) for information concerning storage areas. [(l) The facility must have equipment and procedures to keep food at proper temperatures during service.] (j)
                                                                                                                                                                                                                                                  [(m)] The facility must have table service for all who can and will eat at the table, including wheelchair residents. Residents who need help eating must be assisted promptly after the tray is served. (k)
                                                                                                                                                                                                                                                    [(n)] The facility must ensure that trays for bedfast residents rest on firm supports such as over-bed tables. The facility must provide sturdy tray stands of proper height to residents able to be out of bed for their meals. The facility must provide assistive devices to contribute to independence in eating for residents who need them. (l)
                                                                                                                                                                                                                                                      [(o)] The facility must prepare and serve therapeutic diets, additive or restrictive, as prescribed by the attending physician. The facility must ensure that therapeutic diet orders are planned, prepared, and served with supervision or consultation from a qualified dietitian. Persons responsible for therapeutic diets must have sufficient knowledge of food value to make suitable substitutions if necessary. [(p) Prescribed caloric levels must be accompanied by a specific meal pattern which meets all the recommended nutritional allowances when possible. It is the responsibility of the dietitian to provide specific diets and meal patterns to accommodate these diets as ordered. It is also his/her responsibility to make certain dietary employees know how to weigh and measure to follow these diets. Every kitchen must have a diabetic food exchange list available and in use.] (m)
                                                                                                                                                                                                                                                        [(q)] The dietitian must either write or completely evaluate all general and therapeutic diets for the nursing facility. [(r) It is agreeable to use 2.0% milk for a resident in a facility providing this does not conflict with the physician's orders. [(s) Milk must not be transferred through a middleman type process between the refrigerator dispenser and the actual glass used by the resident. Milk must be poured directly from the dispenser into clean glasses and covered when transporting or refrigerating until meal service to the resident.] sec.19.908. Food. Each resident must receive
                                                                                                                                                                                                                                                          [receives] and the facility must provide
                                                                                                                                                                                                                                                            [provides]: (1)-(2) (No change. ) (3) food prepared in a form designed to meet individual needs [, if not in conflict with physician's orders]; and (4) substitutes of similar nutritive value to residents who refuse food served. [; and] [(5) reasonable substitutions of comparable nutritional content if the resident refuses 50% of the food served. It must be documented in the clinical record if the substitution was rejected.] sec.19.909. Food Intake.
                                                                                                                                                                                                                                                              Food intake of residents shall be [required to be] monitored and recorded as follows. (1) (No change.) (2) Deviations from normal food and fluid intake shall be recorded in the clinical records. See also sec.19.1911(12)(b)(vi) of this title (relating to Contents of the Clinical Record) for information concerning dietary intake and clinical records. (3) In-between meals, bedtime snacks, and supplementary feedings, either as a part
                                                                                                                                                                                                                                                                [apart] of the overall care plan or as ordered by a physician, including caloric restricted diets, must be documented as accepted or rejected. See also sec.19.1911(12)(b)(vi) of this title (relating to Contents of the Clinical Record) for information concerning dietary intake and clinical records.) (4) (No change.) sec.19.911. Sanitary Conditions.
                                                                                                                                                                                                                                                                  The facility must: (1)-(2) (No change.) (3) dispose of garbage and refuse properly. See also sec.19.1513(n)-(p) of this title (relating to Other Rooms and Areas) for information concerning dietary physical plant.
                                                                                                                                                                                                                                                                    [establish effective procedures for cleaning all equipment and work areas that shall be followed consistently; [(4) establish dish washing procedures and techniques that are well developed and include pre-soaking the silverware. Procedures shall be carried out in compliance with state and local health codes; [(5) provide that waste which is not disposed of by mechanical means shall be kept in leak-proof non-absorbent containers with close fitting covers and shall be disposed of in a manner that will prevent transmission of disease, a nuisance, a breeding place for flies, or feeding place for rodents. Containers shall be kept clean; [(6) ensure that dry or staple food items shall be stored off the floor in a ventilated room not exposed to contamination by sewage, sewer gases, waste water backflow, contamination by condensation, leakage, drainage, excessive humidity, rodents, or vermin; [(7) ensure that handwashing facilities, including hot and cold water, soap dispensers, and paper towel dispensers, or air dryers, are provided in the food preparation area.] This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112063 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter J. Dietary Services 40 TAC sec.19.912 (Editor's note: The text of the following sections proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Human Resources or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.912. Deficiency in Dietary Services. Thisagency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 1, 1991. TRD-9112078 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter K. Physician Services 40 TAC sec.sec.19. 1001-19.1004, 19.1007 The amendments are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.1001. Physician Services.
                                                                                                                                                                                                                                                                      A physician must personally approve a recommendation that an individual be admitted to a facility. Each resident must remain under the care of a physician. The physician must ensure that: (1)-(2) (No change.) (3) the resident's treating physician provides current information including but not limited to:
                                                                                                                                                                                                                                                                        [each resident of the facility or his/her responsible party shall have the right to choose and change the physician of such resident at any time, and the facility shall not interfere with or limit such right, except when such choice of physician creates a noncompliance situation for the facility regarding federal, state, or local laws and regulations and/or the facility's medical staff policies. Such changes shall be recorded on the admission record and all other appropriate forms maintained by the facility.] (A) medical findings; (B) diagnosis; (C) orders for immediate and routine care to maintain or improve the resident's functional abilities until staff can conduct a comprehensive assessment and develop an interdisciplinary care plan; and (D) the resident's discharge and rehabilitation potential. sec.19.1002. Physician Visits.
                                                                                                                                                                                                                                                                          The physician must: (1)-(3) (No change.) (4) review and sign his/her programs of care. [(A) Physician's orders must bear the usual signature of the physician responsible for the orders, as well as the effective date. [(B) Changes cannot be made either on a handwritten or computerized physician's order sheet after the orders have been signed by the physician unless space allows for additional orders below the physician's signature, including space for the physician to sign again. [(C) In the event a change of orders is necessary, they will need to be treated as new orders. Should the change be by telephone, the telephone order shall be signed by the physician and returned to the clinical record within seven working days.] (5) write, sign, and date a physician's discharge summary within 20 working days of the notification of discharge (except if the resident has been discharged for 30 days or less, and readmitted to the same facility) which must include:
                                                                                                                                                                                                                                                                            [Write, sign, and date a discharge/death summary as required in sec.19.603(d) of this title (relating to Discharge Summary and Discharge Plan of Care).] (A) resident's name; (B) physician's name; (C) admission date; (D) discharge date; (E) admission diagnosis(es); (F) discharge diagnosis(es); (G) condition on discharge; (H) prognosis; and (I) attending physician's signature; (6) provide documentation in the clinical record as specified in sec.19.1911 and sec.19.1912 of this title (relating to Contents of the Clinical Record, and Additional Clinical Record Service Requirements). sec.19.1003. Frequency of Physician Visits. Physician visits must conform to the following schedule. (1)-(5) (No change.) (6) Each resident shall have a physical examination at least annually by his or her physician. See also sec.19.1401(2)(E) of this title (relating to Infection Control). sec.19.1004. Availability of Physician for Emergency Care.
                                                                                                                                                                                                                                                                              The facility must provide or arrange for the provision of physician services 24 hours a day, in case of an emergency. (1) In the event of an acute illness or accident requiring medical and/or nursing care beyond the capabilities of a nursing facility, the resident shall be transferred to a hospital where needed services and facilities are available.
                                                                                                                                                                                                                                                                                [The facility must have written procedures at each nursing station for obtaining emergency physician services at all times.] (2) Until the transfer specified in paragraph (1) of this section is made, the nursing facility personnel must have authority and responsibility to carry out emergency procedures in the facility's policies, the individual's licensing practice act, or as prescribed by a physician.
                                                                                                                                                                                                                                                                                  [A qualified physician must furnish emergency medical care to a resident if the attending physician is not immediately available. The facility must post a schedule of names and telephone numbers of physicians at each nursing station. The facility must include in the emergency procedures directives for the immediate care of the resident, names of persons to be notified, and a list of reports to be prepared. [(3) In the event of an acute illness or accident requiring medical and/or nursing care beyond the capabilities of a nursing facility, the resident shall be transferred to a hospital where needed services and facilities are available; provided, however, until said transfer is made the nursing home personnel shall have authority to carry out emergency procedures as prescribed by a licensed physician. In case of an emergency illness which does not necessitate transfer of a resident from the facility, appropriate nursing personnel shall keep a necessary record of medications and vital signs in order to keep the attending physician fully informed relative to the health status of the individual resident.] sec.19.1007. Certification and Recertification Requirements. (a) The physician participates in the utilization review process as specified in sec.19.1601 of this title (relating to Medical Necessity (MN) and Utilization Review (UR)). (b)
                                                                                                                                                                                                                                                                                    [(a)] Physician's certification of a
                                                                                                                                                                                                                                                                                      [nursing facility] recipient's need for nursing facility care is required no more than 20
                                                                                                                                                                                                                                                                                        [seven] days after or 30 days before admission to the facility or before the Medicaid agency authorizes payment, whichever is later. (c)
                                                                                                                                                                                                                                                                                          [(b)] Physician's recertification of residents is required for admission and every 180 days thereafter. (d)
                                                                                                                                                                                                                                                                                            [(c)] Physician's certification and recertification statements documenting the need for continued nursing facility services are placed in each resident's clinical record and reviewed on a regular basis by the Texas Department of Health (TDH) Long-term Care Unit staff. The facility must ensure that each certification or recertification states: "I hereby certify that this resident requires/continues to require NF care for 180 days." When the physician anticipates that the recipient will require less than a 180-day stay, the physician must specify the anticipated number of days in the certification statement. (e)
                                                                                                                                                                                                                                                                                              [(d)] The physician's certification/recertification statement may be maintained as a separate document such as a certification sheet. In this event, the certification/recertification must be updated and signed by the physician at the intervals required in subsection (c)
                                                                                                                                                                                                                                                                                                [(b)] of this section. (f)
                                                                                                                                                                                                                                                                                                  [(e)] If the certification/recertification statement is included in the physician's plan of care or orders or in the physician's progress notes, it must specify the number of days it is valid, as required in subsection (c)
                                                                                                                                                                                                                                                                                                    [(b)] of this section. In this case the certification/recertification must state: "I hereby certify that this resident continues to require NF care for 180 days." This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112064 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter K. Physician Services 40 TAC sec.19.1006 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Human Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.1006. Admission Information. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas on October 2, 1991. TRD-9112079 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter L. Specialized Rehabilitative Services 40 TAC sec.sec.19.1101, 19.1104, 19.1105 The amendments are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.1101. Provision of Specialized Rehabilitation Services.
                                                                                                                                                                                                                                                                                                      A facility must provide or obtain rehabilitative services, such as physical therapy, speech/language pathology, and occupational therapy to every resident it admits. (1)-(3) (No change.) [(4) The facility must ensure that an evaluation of the resident's rehabilitation needs is integrated into the resident's overall plan of care.] sec.19.1104. Goal-directed Therapy. (a)-(b) (No change.) (c) [Payment for therapy services for residents with Medicare coverage is billed to Medicare.] Prior authorization by the Texas Department of Human Services (DHS) is required for residents with only Medicaid coverage. (1) Requests for appeal of prior authorization or recertification denials for qualified Medicaid recipients must be made in writing by the administrator of the contracting Title XVIII nursing facility. (2) The request for appeal specified in paragraph (1) of this subsection must be received by the 35th day from the date of the original denial determination. (d) The Texas Department of Human Services (DHS) pays nursing facilities for physical, occupational, and speech therapy services provided to residents who are eligible for Medicaid but are not eligible for Medicare. The cost of therapy services for residents with Medicare coverage must be billed to Medicare.
                                                                                                                                                                                                                                                                                                        DHS also pays Title XVIII certified physical therapists for physical therapy services provided to eligible residents. DHS pays whichever of the following rates is lowest: (1)-(3) (No change.) (e) (No change.) (f) Claims for services provided must be received by DHS by the 95th day from the last approved treatment day the rehabilitation services were provided.
                                                                                                                                                                                                                                                                                                          [Coverage for physical therapy includes evaluation and treatment of functions that have been impaired by illness or injury. The purpose is to improve and restore the resident's ability to perform transfer or ambulation activities. The services must be provided with the expectation that the resident's functioning will improve measurably in 30 days.] (1) Rejected or adjusted claims may be resubmitted. These claims must be postmarked by the 180th day from the date of the rejection notification. (2) Corrected claims must be postmarked by the 180th day from the date of the paid claim. (g)
                                                                                                                                                                                                                                                                                                            [(f)] Coverage for physical therapy includes evaluation and treatment of functions that have been impaired by illness or injury. The purpose is to improve and restore the resident's ability to perform transfer or ambulation activities. The services must be provided with the expectation that the resident's functioning will improve measurably in 30 days. (h)
                                                                                                                                                                                                                                                                                                              [(g)] Coverage for occupational therapy includes evaluation and treatment of functions that have been impaired by illness or injury. The purpose is to improve or restore the resident's ability to perform self-care activities. The services must be provided with the expectation that the resident's functioning will improve measurably in 30 days. (i)
                                                                                                                                                                                                                                                                                                                [(h)] Coverage for speech pathology includes evaluation and treatment of communication disorders that are related to loss of hearing or have been acquired. Treatment must be provided with the expectation that the resident's communication will improve measurably in 30 days. sec.19.1105. Screening. The facility must screen all residents for rehabilitation potential and rehabilitation needs according to sec.19.601 of this title (relating to Resident Assessment). [(a) The facility must screen all residents for rehabilitation potential and rehabilitation needs. [(b) If an evaluation by a therapist is indicated by the screening process, the nurse contacts the attending physician by telephone or by mail within two working days of the screening to discuss the findings.] This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112065 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter L. Specialized Rehabilitative Services 40 TAC sec.19.1103 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Human Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.1103. Therapist Responsibilities. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1992 TRD-9112080 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter M. Dental Services 40 TAC sec.sec.19.1201, 19.1202, 19.1204, 19.1206, 19.1207 The amendments are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.1201. Dental Services.
                                                                                                                                                                                                                                                                                                                  The facility must assist residents in obtaining routine and 24-hour emergency dental care. (1) (No change.) (2) Nursing facilities. The facility must provide or obtain from an outside resource, in accordance with sec.19.1906 of this title (relating to Use of Outside Resources), the following dental services to meet the needs of each resident.
                                                                                                                                                                                                                                                                                                                    [:] (A) Routine dental services (to the extent covered under the state plan).
                                                                                                                                                                                                                                                                                                                      [, as provided in the Medicaid Provider Procedures Manual; and] (i) Payment for services provided on the teeth, gums, alveolar ridges, and supporting structures by any provider, irrespective of the degree of the provider, are not a benefit of the Texas Medicaid Program. (ii) Routine restorative procedures and root canal therapy are not considered emergency procedures. Emergency root canal procedures must be accompanied by x-rays and are limited to four permanent teeth for each recipient. (iii) Routine restorative procedures are not considered emergency procedures. Emergency root canal procedures must be accompanied by x-rays. Dental services not covered include, but are not limited to, the following: (I) cleaning; (II) filling teeth with amalgam composite, glass ionomer, or any other restorative material; (III) cast or preformed crowns (capping); (IV) restoration of carious or non-carious permanent or primary teeth, including those requiring root canal therapy; (V) replacement or repositioning of teeth; (VI) services to the alveolar ridges or periodontium of the maxilla and the mandible, except for procedures covered under subparagraph (B) of this paragraph; and (VII) complete or partial dentures. (B) Emergency dental services, which [include, but] are [not] limited to the following
                                                                                                                                                                                                                                                                                                                        : (i) procedures necessary to control bleeding, relieve pain, and eliminate acute infection
                                                                                                                                                                                                                                                                                                                          [loss of airway due to maxillo/facial traumatic obstruction]; (ii) operative procedures which are required to prevent the imminent loss of teeth
                                                                                                                                                                                                                                                                                                                            [shock due to loss of blood from maxillo/facial or oral area]; (iii) treatment of injuries to the teeth or supporting structures
                                                                                                                                                                                                                                                                                                                              [uncontrolled arterial bleeding within maxillo/facial or oral area]; (iv) examples of covered emergency dental procedures which include, but are not limited to:
                                                                                                                                                                                                                                                                                                                                [extreme pain in oral cavity and associated structures;] (I) alleviation of extreme pain in oral cavity associated with serious infection or swelling; (II) repair of damage from loss of tooth due to trauma (acute care only, no restoration); (III) open or closed reduction of fracture of the maxilla or mandible; (IV) repair of laceration in or around oral cavity; (V) excision of neoplasms, including benign, malignant and premalignant lesions, tumors and cysts; (VI) incision and drainage of cellulitis; (VII) root canal therapy. Payment is subject to dental necessity review and pre-operative and post-operative x-rays are required; (VIII) extractions: single tooth, permanent; single tooth, primary; supernumerary teeth; soft tissue impaction; partial bony impaction; complete bony impaction; surgical extraction of erupted tooth or residual root tip. [(v) loss of tooth due to trauma (acute care only, no restoration); [(vi) fracture of the maxilla or mandible; [(vii) laceration in or around oral cavity; and [(viii) serious infectious/swellings, rapidly growing neoplasm, and seemingly spontaneous hemorrhage.] [(C) Routine restorative procedures and root canal therapy are not considered emergency procedures. Emergency root canal procedures must be accompanied by x- rays and are limited to four permanent teeth for each recipient. [(D) Emergency dental care, provided by a dentist, not otherwise reimbursable as medical/dental care or early periodic screening diagnosis and treatment (EPSDT) dental care through purchased health services at NHIC, is reimbursed through a voucher system (as described in sec.19.1205 of this title (relating to Reimbursement for Emergency Dental Services)). If a dentist is not enrolled as a Medicaid provider and is unable to bill NHIC for services billable to NHIC, the emergency dental services system will not reimburse the facility for the charges.] (3) At the time of admission, the facility must obtain
                                                                                                                                                                                                                                                                                                                                  [obtains] the name of the resident's preferred dentist and record
                                                                                                                                                                                                                                                                                                                                    [records] the name in the clinical record. (4) (No change.) sec.19.1202. The Nursing Facility Emergency Dental Services System. The Texas Department of Human Services (DHS) will reimburse nursing facilities the cost of emergency dental services provided to eligible Medicaid residents residing in Medicaid contracted facilities or distinct parts. (1) Recipients
                                                                                                                                                                                                                                                                                                                                      [Residents] must be 21 years of age or older. (2) Dental care for recipients under the age of 21 are covered under the early and periodic screening, diagnosis, and treatment (EPSDT) program. This program pays for authorized and allowable services listed in the EPSDT section of the Medicaid Provider Procedures Manual, which is available through the National Heritage Insurance Company. (3)
                                                                                                                                                                                                                                                                                                                                        [(2)] Services reimbursed are subject to the limitations specified in sec.19.1201(2) of this title (relating to Dental Services). (4)
                                                                                                                                                                                                                                                                                                                                          [(3)] Emergency dental services may be provided only if the attending physician orders a dental consultation. See sec.19.1001 of this title (relating to Physician Services). sec.19.1204. Dentist Responsibilities. Facilities must contract with a dentist who is a Medicaid provider.
                                                                                                                                                                                                                                                                                                                                            [The facility must ensure that the dentist:] [(1) maintains the confidentiality of the resident's clinical record. Medicaid regulations prohibit the disclosure of information about Medicaid residents without their consent; [(2) renders services in accordance with the reimbursement policies and operational instructions established by DHS, and in compliance with the "Rules and Regulations Relating to the Practice of Dentistry" set forth by the Texas State Board of Dental Examiners (TSBDE); and [(3) notifies DHS and stops providing services if the TSBDE suspends the facility's contracting dentist's license. A dentist placed on probation by TSBDE may continue to provide emergency dental services to Medicaid residents in nursing facilities during the probationary period except when: [(A) the conduct for which the provider has been placed on probation is related to fraud or abuse of Medicaid or other federally funded state health programs; or [(B) the dentist's conduct or practice has caused or could cause harm to residents or other residents. [(4) provides the nursing facility with copies of all assessment, treatment, and billing records.] sec.19.1206. Maximum Payment. (a) (No change.) (b) Payments for emergency dental services rendered in the nursing facility emergency dental services are the lowest of: (1) (No change.) (2) the maximum fee as determined by DHS
                                                                                                                                                                                                                                                                                                                                              [listed on the fee schedule]; or (3) the adjusted authorized fee; that is, a fee for those dental procedures that have payment limitations and have been adjusted by the DHS dental consultant to reflect services rendered. (c) (No change.) sec.19.1207. Payment of Claims. (a) The facility must accept payment by DHS as payment in full for services, and neither the dentist nor the facility may charge the recipient, his family, or his trust fund
                                                                                                                                                                                                                                                                                                                                                an additional fee
                                                                                                                                                                                                                                                                                                                                                  [amount for services covered by the emergency dental services system]. (b)-(e) (No change.) (f) Claims for services must be received by the 95th day from the date of service. (1) Rejected or adjusted claims may be resubmitted. These claims must be postmarked by the 180th day from the date of the claim rejection. (2) Corrected claims must be postmarked by the 180th day from the date of the paid claim. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112066 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter N. Pharmacy Services 40 TAC sec.19.1301, sec.19.1304 The amendments are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.1301. Pharmacy Services.
                                                                                                                                                                                                                                                                                                                                                    The facility must provide routine and emergency drugs and biologicals to its residents, or obtain them under an agreement described in sec.19.1906 of this title (relating to Use of Outside Resources). See also sec.19.701(12) and (13) of this title (relating to Quality of Care) for information concerning drug therapy and medication errors. (1)-(5) (No change.) (6) Labeling of drugs and biologicals. The facility must assure that labeling
                                                                                                                                                                                                                                                                                                                                                      [labelling] of all drugs and biologicals is in accordance with currently accepted professional principles, and is in compliance with the Texas State Board of Pharmacy Laws and Regulations, sec.291,
                                                                                                                                                                                                                                                                                                                                                        [includes the appropriate accessory and cautionary instructions,] and also includes
                                                                                                                                                                                                                                                                                                                                                          the expiration date [(see sec.19.1304 of this title (relating to Drug Security))]. (7) Storage of drugs and biologicals. (A) In accordance with state and federal laws, the facility must store all drugs and biologicals in locked compartments under proper temperature controls, and permit only authorized personnel to have access to the keys [(see sec.19.1304 of this title (relating to Drug Security))]. (B) (No change.) sec.19.1304. Drug Security. (a) (No change.) (b) Medications must be properly labeled and stored in a locked medication room, cabinet, or cart. When not in use, a medication cart must be secured in a locked medication storage room designated only for the storage of medications. Only authorized personnel have access to the keys. [(1) The facility must ensure that the pharmacy prescription label(s) on each resident's drug container shows: [(A) the resident's full name; [(B) the prescribing physician's name; [(C) the pharmacy prescription file number; [(D) the name, strength, and amount of the drug dispensed; [(E) the expiration date of all time-dated drugs; [(F) the date of issuance (the date the prescription is filled or refilled); [(G) warning labels if needed; [(H) the physician's directions for use; [(I) the name, address, and telephone number of the issuing pharmacy; and [(J) the dispensing pharmacist's name or initials. [(2) If the label is on the container of a Controlled Substances Act drug, the label must have the following warning, "Caution: federal law prohibits the transfer of this drug to any person other than the resident for whom it was prescribed."] (1)
                                                                                                                                                                                                                                                                                                                                                            [(3)] Small multiple-dose containers are placed into another container, and the pharmacy's regular label, properly completed, is affixed to it. If a multiple dose container of drugs is too small for a regular prescription label to be affixed, a strip label is attached containing the name of the resident and the prescription number. If the two containers become separates, the small drug container still has the resident identification. (2)
                                                                                                                                                                                                                                                                                                                                                              [(4)] Self-administered medications, as described in sec.19. 216 of this title (relating to Self-administration of Drugs), must be properly labeled and stores as required by this subsection. If medications are not self- administered out of the medication room with the help of the medication nurse, the medications may be kept in a locked cabinet in the resident's room. When medications are self-administered, the facility remains responsible for medication security and accurate information. (c)-(i) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112067 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter N. Pharmacy Services 40 TAC sec.19.1305 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Human Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.1305. Drug Records. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1990. TRD-9112081 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter O. Infection Control 40 TAC sec.19.1401 The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.1401. Infection Control.
                                                                                                                                                                                                                                                                                                                                                                The facility must establish and maintain an infection control program designed to provide a safe, sanitary, and comfortable environment in which residents reside and to help prevent the development and transmission of disease and infection. See also sec.19.1920 of this title (relating to Operating Policies and Procedures). (1) (No change.) (2) Preventing spread of infection. (A) When the infection control program determines that a resident needs isolation to prevent the spread of infection, the facility must isolate the resident [, in a well-ventilated, single bedroom with a separate toilet and bathing unit]. Residents with communicable disease must be provided acceptable accommodations according to current practices and policies for infection control. See sec.19.1(b)(7)(K) of this title (relating to Basis and Scope) for information concerning the Centers for Disease Control Guidelines publications. (B)-(D) (No change.) (E) The facility must have written policies for the control of communicable diseases in employees and residents, which includes screening and provision of a safe and sanitary environment for residents and employees.
                                                                                                                                                                                                                                                                                                                                                                  [The facility must:] (i) If employees contract a communicable disease that is transmissible to residents through food handling or direct resident care, the employee must be excluded from providing these services as long as a period of communicability is present. The decision to return to work must be made by the facility's administrator in conjunction with the employees's personal physician, the facility's medical director, the local or state health authority, and in accordance with generally accepted practices.
                                                                                                                                                                                                                                                                                                                                                                    [ensure that aseptic procedures and isolation techniques are followed;] (ii) The facility must maintain evidence of compliance with local and/or state health codes or ordinances regarding employee and resident health status.
                                                                                                                                                                                                                                                                                                                                                                      [monitor the health status of employees which includes requiring periodic health examinations which include those tests or procedures determined by the employee's personal physician, a physician representing the facility, or by the facility's policy: [(I) a physician must perform the examination or authorize the examination procedure(s) be performed by qualified professionals. An example of the latter requirement would be authorization by the medical director for tuberculin skin tests to be administered by a nurse; [(II) the facility's program must involve all employees and be based on periodic examinations. "Periodic" means an initial examination, as well as, at least annual examinations. Two weeks from the date of employment is considered a reasonable period for the initial examination. Facilities with a policy that exceeds two weeks for the initial examination will be required to justify their policy in writing, and submit that justification to the Texas Department of Health for approval;] (iii) The facility must screen all employees within two weeks of employment and annually for tuberculosis. All persons providing services under an outside resource contract must, upon request of the nursing facility, provide evidence of compliance with this requirement.
                                                                                                                                                                                                                                                                                                                                                                        [monitor staff performance to ensure that infection control policies and procedures are followed; and] (iv) All residents should be screened upon admission and annually thereafter, in accordance with the attending physician's recommendations.
                                                                                                                                                                                                                                                                                                                                                                          [develop procedures for handling food, laundry, disposal of environmental and resident wastes, pest control, traffic control, visiting rules, and resident care to avoid possible sources of infection, and] (3) Linens. Personnel must handle, store, process, and transport linens so as to prevent the spread of infection. See also sec.19. 1520 of this title (relating to Linen). (4) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991 TRD-9112068 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter P. Physical Plant and Environment 40 TAC sec.19.1501, sec.19.1518 The amendment and new section are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.1501. General Requirements.
                                                                                                                                                                                                                                                                                                                                                                            The facility must be designed, constructed, equipped, and maintained to protect the health and ensure the safety of residents, personnel, and the public. (See also sec.19.505 of this title (relating to Environment)). (1)-(3) (No change.) (4) Resident rooms. Resident rooms must be designed and equipped for adequate nursing care, comfort, and privacy of residents. (A)-(I) (No change.) [(J) When an isolation room is provided or required, it shall have a special nonrecirculating air system and a complete bathroom.] (J)
                                                                                                                                                                                                                                                                                                                                                                              [(K)] Vacant bedrooms may not be used for hazardous activities or hazardous storage, unless specifically approved by TDH in writing. (K)
                                                                                                                                                                                                                                                                                                                                                                                [(L)] Bedrooms shall be identified with a raised or recessed unique number placed on or near the door. Refer to s19.1514(c) of this title (relating to Provisions for the Handicapped) and sec.19.1503 (e) of this title (relating to Applicable Codes and Standards). (L)
                                                                                                                                                                                                                                                                                                                                                                                  [(M)] Residents must be permitted and encouraged to have personal possessions in their rooms that do not interfere with their care, treatment, or well-being, or that of other residents. (M)
                                                                                                                                                                                                                                                                                                                                                                                    [(N)] There are situations in which locks on bedroom doors meet definite patient needs. These include, but are not necessarily limited to, the following: (i)-(iii) (No change.) (N)
                                                                                                                                                                                                                                                                                                                                                                                      [(O)] In situations such as those which are listed in subparagraph (M) of this paragraph locks on bedroom doors will be permitted contingent upon adherence to the guidelines set out in clauses (i)-(v) of this subparagraph: (i)-(v) (No change.) (5)-(19) (No change.) sec.19.1518. Housekeeping Services. (a) The facility shall provide sufficient housekeeping and maintenance personnel, equipment, and supplies to maintain the interior, exterior, and grounds of the facility in a safe, clean, orderly, and attractive manner. Nursing personnel shall not be assigned routine housekeeping duties. In a nursing facility, an employee must be designated as responsible for housekeeping services. (b) Occupied resident rooms shall be cleaned and put in order at least daily. (c) Storage areas shall be kept safe and free from accumulations of extraneous materials such as refuse, discarded furniture, and newspapers. Combustibles such as cleaning rags and compounds shall be kept in closed metal containers and labeled as to contents. (d) Attics, mechanical rooms, boiler rooms, and other similar areas shall not be used for storage purposes. (e) All bleaches, detergents, disinfectants, insecticides, and other poisonous substances shall be kept in a safe place accessible only to employees. They shall not be kept in containers previously containing food or medicine. Containers must be labeled. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112069 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter P. Physical Plant and Environment 40 TAC sec.19.1518 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Human Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. P. Physical Plant and Environment sec.19.1518. Housekeeping Services. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112082 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 12, 1991 For further information, please call: (512) 450-3765 Subchapter Q. Medical Review and Re-evaluation 40 TAC sec.sec.19.1603, 19.1605, 19.1606, 19.1610, 19.1613 The amendments and new section are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.1603. Utilization Review Process. A preadmission, admission or continued- stay review is the determination of the need for initiating or continuing nursing facility care by evaluating the recipient's medical/nursing needs. This establishes whether or not the recipient has medical necessity for nursing facility care. The review and determination must be accomplished prior to any facility services delivered for which vendor payment is expected except as provided in sec.19.1608 of this title (relating to Retroactive Medical Necessity Determinations). See sec.19.1613 of this title (relating to Reconsideration of Medical Necessity Determination (MN) and Effective Dates). (1) (No change.) (2) The review process is initiated when the Utilization Review Committee is notified by the facility submitting a Texas Nursing Facility CARE form that a Medicaid applicant or recipient is requesting vendor assistance for care in a contracted nursing facility. This review includes an initial assessment of the feasibility of an alternate care placement for the individual. The preadmission and admission review are accomplished by the Utilization Review Committee. (A) (No change.) (B) An admission review (Purpose Code 2) of a Texas Nursing Facility CARE form determines the medical necessity and establishes an authorization for reimbursement and a level of reimbursement. The date of admission is defined as the day from which the facility expects to begin receiving Medicaid nursing facility vendor payment for services rendered. It is the same day that is reflected on the Resident Transaction Notice for admission. (i)-(iii) (No change.) (iv) Admissions reviews must be done as follows: (I) when a Medicaid applicant or recipient is admitted and the facility expects to receive Medicaid nursing facility vendor payment. A new (not a continued-stay review) admission assessment and review must be done if a recipient has been out of the facility or the
                                                                                                                                                                                                                                                                                                                                                                                        Medicaid Nursing Facility vendor payment system for longer than 30 days (e.g., hospitalization, hospice, stays funded by Medicare reimbursement, extended therapeutic home visits); (II)-(IV) (No change.) (V) when a recipient's medical condition changes while discharged from the nursing facility vendor payment system (e.g., inpatient hospital stay, extended therapeutic home visit, Medicare (SNF) stay)
                                                                                                                                                                                                                                                                                                                                                                                          [out of the facility], and the facility wishes to submit a new admission medical necessity determination; (VI) when an individual is admitted to a facility from another facility regardless of the number of days lapsed
                                                                                                                                                                                                                                                                                                                                                                                            [when more than 30 days have elapsed between discharge from one facility and admission to the new facility]; or (VII) (No change.) (C) (No change.) (3) (No change.) sec.19.1605. Additional Requirements for Submitting Requests for a Continued- Stay Review. (a) The facility must ensure that all forms are received in a timely manner so that they are received by the Utilization Review Committee no later than the day after the expiration of the current Medical Necessity (MN) determination to ensure that payments continue. A valid MN determination is an eligibility requirement for Medicaid participation, and vendor payments cannot be made on behalf of recipients who do not have established MN determinations. (1) The Utilization Review Committee accepts CARE forms from facilities up to 45 days before the expiration of the recipient's current MN determination, and [.] (2) The CARE forms submitted for Continued Stay Reviews must be completed no more than 60 days prior to the expiration date of the current MN determination. (b)-(c) (No change. ) (d) If a CARE form is not received by the day after the expiration date of the current MN determination, the current MN determination ceases to exist. (1) To reinstate an expired MN determination, facility staff must submit an admission CARE form assessment, signed by the physician, to the Utilization Review Committee, if more than 30 days have elapsed. (2) If 30 days or less have elapsed, a Purpose Code 3 continued-stay review may be used. The date of receipt of these CARE forms is the new effective date of the MN. (3) The facility may request reconsideration of the effective dates for eligible individuals for periods of time not covered by a MN determination. See sec.19.1613 of this title (relating to Reconsideration of Medical Necessity (MN) Determination and Effective Dates). (e) DHS does not pay for the period of time between the MN determination expiration date and the new effective date of the MN determination, unless the facility has requested and been granted a reconsideration of MN effective dates. See sec.19.1613 of this title (relating to Reconsideration of Medical Necessity Determination (MN) and Effective Dates).
                                                                                                                                                                                                                                                                                                                                                                                              [DHS does not pay for the period of time between the MN determination expiration date and the new effective date of the MN determination, and recoups any inadvertent payments made to facilities. If a lapse in payment is because of a facility error, restrictions apply as described in sec.19.1708 of this title (relating to Limitations on Provider Charges to Patients).] (1) DHS recoups any inadvertent payments made to facilities. (2) If the facility does not receive payment and there has been no reconsideration of MN effective dates granted, then restrictions apply as described in sec.19.1708 of this title (relating to Limitations on Provider Charges to Patients) when the reason for no payment is facility error. sec.19.1606. Utilization Review Effective Dates. When the recipient is admitted to or discharged from the Medicaid Nursing Facility vendor payment system, the administrator of the facility must submit, within 72 hours, a Resident Transaction Notice form. (1)-(2) (No change.) (3) The Texas Department of Human Services (DHS) does not make vendor payment when a Medical Necessity (MN) determination expires. See sec.19.1613 of this title (relating to Reconsideration of Medical Necessity (MN) Determination and Effective Dates).
                                                                                                                                                                                                                                                                                                                                                                                                [The Texas Department of Human Services (DHS) does not make vendor payment when a MN determination expires. A provider is not entitled to payment for services rendered from the expiration date to the new effective date of a recipient's MN determination. Vendor payment made by DHS for that period is subject to recoupment.] (A) A provider is not entitled to payment for services rendered from the expiration date to the new effective date of a recipient's MN determination unless a reconsideration of MN determination and effective dates has been requested and granted. (B) Vendor payment made by DHS for any period not within MN effective dates is subject to recoupment. (4)-(5) (No change.) sec.19.1610. Criteria Specific to a Medical Necessity Determination. (a) Specific criteria are also used to determine if the individual has medical necessity requiring nursing facility care. The Texas Department of Human Services (DHS) recognizes, however, that these criteria are not all inclusive. The applicant's or the recipient's condition may be so complex that only the professional medical judgment of Utilization Review Committee physicians will be the deciding factor according to the procedures specified in sec.sec.19.1601- 19.1604 of this title (relating to Medical Necessity (MN) and Utilization Review (UR); Utilization Review Plan; Definition of the Review Process; and Physicians' Certifications and Recertifications). (b)
                                                                                                                                                                                                                                                                                                                                                                                                  [(1)] For an applicant or a recipient to qualify for nursing facility care, the recipient's medical problems and health care needs are, at a minimum, such that he requires institutional care under the supervision of a physician and routine assessment, planning, and intervention by a registered nurse or a licensed vocational nurse. An applicant or a recipient must need services for which a registered nurse's or licensed vocational nurse's supervision is required on a daily and/or routine basis. Services which could qualify an individual for a medical necessity determination include but are not limited to: (1)
                                                                                                                                                                                                                                                                                                                                                                                                    [(A)] routine monitoring of an individual in stable condition to determine responses to the treatment plan and to detect problems requiring the physician's attention and/or a change in the plan of care; (2)
                                                                                                                                                                                                                                                                                                                                                                                                      [(B)] administration of intramuscular (IM) medications and observation of the individual's response and side effects; (3)
                                                                                                                                                                                                                                                                                                                                                                                                        [(C) ] administration and adjustment of medication for pain and monitoring of result and side effects; (4)
                                                                                                                                                                                                                                                                                                                                                                                                          [(D)] administration of insulin to a diabetic individual whose condition is stable but who is unable to self-administer insulin because of physical, medical, or mental reasons; (5)
                                                                                                                                                                                                                                                                                                                                                                                                            [(E)] routine oxygen administration after a regimen of therapy has been established and/or therapy can be done by the individual with nursing supervision; (6)
                                                                                                                                                                                                                                                                                                                                                                                                              [(F)] routine oral suctioning; (7)
                                                                                                                                                                                                                                                                                                                                                                                                                [(G)] tracheostomy care when a individual's condition is stable, but he is unable to care for his tracheostomy; (8)
                                                                                                                                                                                                                                                                                                                                                                                                                  [(H)] routine IPPB therapy after a regimen of therapy has been established and/or therapy can be done by the individual with nursing supervision; (9)
                                                                                                                                                                                                                                                                                                                                                                                                                    [(I)] routine maintenance of an indwelling catheter system; (10)
                                                                                                                                                                                                                                                                                                                                                                                                                      [(J)] routine care of stoma and surrounding skin in the presence of a colostomy or ileostomy and routine care of a suprapubic catheter; (11)
                                                                                                                                                                                                                                                                                                                                                                                                                        [(K)] decubitus care involving superficial, noninfected lesions and preventive measures when an individual has a physical illness which makes him susceptible to decubiti formation; (12)
                                                                                                                                                                                                                                                                                                                                                                                                                          [(L)] bowel and bladder control training and maintenance after a successful program has been established; (13)
                                                                                                                                                                                                                                                                                                                                                                                                                            [(M)] care of an individual with an amputation or a fracture requiring routine care of a stylized condition and reinforcement of an established rehabilitation plan; (14)
                                                                                                                                                                                                                                                                                                                                                                                                                              [(N)] rehabilitative/restorative care, passive range-of-motion (ROM) exercises and positioning, care and assistance in application of braces/ prosthetic devices or reinforcement of maintenance rehabilitative procedures. [(2) Intermediate Care II (ICF II). ICF II medical necessity determinations are limited to Title XIX recipients who had an ICF II, ICF III, or skilled level-of- care determination and were residing in a nursing facility on March 1, 1980. Medical necessity determinations are available to the persons described in this paragraph when they leave the nursing facility for a hospital stay, therapeutic home visit, or other Title XIX service and return to a nursing facility with no break in Medicaid eligibility. These recipients retain their benefits regardless of subsequent level-of-care determinations, with the exception of a denial of medical necessity. (See sec.19.1609 (3) (relating to General Qualifications for Medical Necessity Determinations)).] sec.19.1613. Reconsideration of Medical Necessity (MN) Determination and Effective Dates.
                                                                                                                                                                                                                                                                                                                                                                                                                                When a facility provides care for a recipient for a period of time not covered by an effective MN determination at admission or between reviews, the Texas Department of Human Services (DHS) will reconsider the medical necessity effective dates. (1) Recipients eligible for reconsideration of medical necessity effective dates must have the following, prior to the submission of a request for reconsideration: (A) financial eligibility established; (B) been admitted to the Medicaid NF Vendor Payment System on DHS's Resident Transaction Notice form; and (C) had a medical necessity determination using DHS's CARE form with a Purpose Code 2. (2) Requests for reconsideration are limited to days that: (A) are not covered by a MN determination, and (B) which occur after November 30, 1991. (3) Requests for reconsideration, for periods of time that the Utilization Review Committee (URC) has already denied a medical necessity determination, will not be accepted. (4) The request for reconsideration must be stamped-in by the URC by the 95th day after the last day services were provided without the recipient having medical necessity effective dates. (A) The URC will accept a request after the 95th day and up to 12 months following the last day that service was provided only when the facility experiences circumstances beyond its control. (B) The manager of the DHS Institutional Program Section will review documentation submitted and determine whether the above criteria are met when submission of a request is received after the 95th day. (5) The following documentation must be submitted to the Utilization Review Committee: (A) a letter requesting reconsideration; (B) a copy of: (i) the Minimum Data Set (MDS) and Comprehensive Care Plan in effect for the days that services were provided without a MN determination in effect; (ii) a copy of all notes (nursing, therapy, etc.) for the days that services were provided without a MN determination in effect; and (C) a completed DHS CARE form, using Purpose Code E, that describes the condition of the recipient during the period of time services were delivered and there was no MN determination in effect. The requested effective dates (beginning-through) must be in the comment section. A CARE form submitted with a Purpose Code E does not require a physician's signature. (6) The Utilization Review Committee will notify the facility of the results of the reconsideration within 45 days. The facility may initiate an appeal, when reconsideration is denied, by submitting a request in writing as outlined in DHS's Fair Hearings, Fraud, and Civil Rights Handbook. The facility must initiate the appeal within 10 workdays of receipt of notification that a reconsideration was denied. (7) The facility may neither charge nor take any other recourse against Medicaid recipients, their family members, or their representatives for any claim denied or reduced because of the facility's failure to comply with any DHS rule, regulation, or procedure pertaining to reimbursement. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112070 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter R. Vendor Payment 40 TAC sec.sec.19.1701, 19.1702, 19.1706-19.1708 The amendments are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.1701. Vendor Payment (Items and Services Included). (a) (No change.) (b) The daily rate is compatible with reasonable charges consistent with efficiency, economy, and quality of total care. The facility must ensure that care meets the health needs and promotes the maximum well-being of recipients. It includes: (1)-(2) (No change.) (3) nonlegend drugs, with the exception of insulin, and alcoholic beverages unless prescribed for medicinal purposes.
                                                                                                                                                                                                                                                                                                                                                                                                                                  [nonlegend drugs, with the exception of insulin. Additionally, this reference does not include alcoholic beverages unless prescribed for medicinal purposes. Alcoholic beverages not prescribed for medicinal purposes are at the expense of the recipient or the family. To determine if the alcoholic beverage is prescribed for medicinal purposes, the clinical record has to include the amount of alcohol prescribed for the recipient, the frequency the alcohol is to be administered to the recipient, and the medical reason for the alcohol. Vendor payment is not made for any deviation from this required documentation;] (A) To determine if the alcoholic beverage is prescribed for medicinal purposes, the clinical record must include the dosage and frequency of the alcohol and the medical reason for administering it. (B) Alcoholic beverages not prescribed for medicinal purposes are at the expense of the recipient or family. (C) Facilities are not required to provide any particular brand of non- legend drug, but only those items necessary to ensure appropriate recipient care. (i) If the physician does not order a specific type or brand of nonlegend drug, the facility may choose the type or brand. (ii) If the recipient or family prefers a specific type or brand of nonlegend drug rather than the ones furnished by the facility, the recipient, responsible party, or family may be billed for the item, or the recipient's personal funds may be used to purchase the item, or both. (iii) Before purchasing or charging for the preferred item, the facility must secure written authorization from the recipient or family indicating his desired preference, the date, and signature of the person requesting the preferred item. The signature may not be that of an employee of the facility. (4) medical accessories and equipment; (A) The following items must be prescribed by the attending physician: (i) (No change.) (ii) medical equipment includes, but is not limited, to wheelchairs, crutches, canes, [oxygen tanks,] chest respirators, mattresses, hospital-type beds, enteral pumps, [oxygen concentrators,] trapeze bars, [and] walkers, [.] and equipment necessary to provide oxygen, including, but not limited, to tanks, concentrators, tubing, masks, valves, and regulators. See sec.19.1702 (a) of this title (relating to Additional Charges (Items and Services Excluded from Vendor Payment) for information concerning charging for the oxygen gas only.) (B) (No change.) (5) (No change.) (c)-(e) (No change.) (f) Indwelling catheters, ileostomy bags, colostomy bags, tube feedings,
                                                                                                                                                                                                                                                                                                                                                                                                                                    and other related supplies are considered prosthetic devices and must be provided by the facility. For recipients that have Part B Medicare benefits, this equipment must be paid for by Medicare. If Medicare benefits are unavailable, either totally or in part
                                                                                                                                                                                                                                                                                                                                                                                                                                      , this equipment is an allowable cost and is reimbursed under the Medicaid cost-related reimbursement methodology. The recipient or family may not be charged, by the facility or supply company, for any portion of these supplies. (g)-(l) (No change.) (m) If a resident has requested and freely chosen to participate in an activity, or to have an item or service provided that is not included, or is different than that provided, in the daily vendor rate, then the resident may be charged for the activity, item, or service.
                                                                                                                                                                                                                                                                                                                                                                                                                                        [If services are provided in the facility for the recipient that are not included in the daily rate, payment is arranged between the recipient and the provider of services. Exceptions to this are listed in sec.19.1702 of this title (relating to Additional Charges (Items and Services Excluded from Vendor Payment)). The facility may collect payment from the recipient to purchase services and items outside the facility.] (1) When documentation is present that supports the above criteria in this subsection, and that is required by sec.19.204 (g)(5) of this title (relating to Protection of Resident Funds), the amount may be paid from the resident's trust fund. (2) When the facility acts as a collection agent for any item, service, or activity not included in the daily rate, the facility must be able to provide documentation that clearly indicates that any charges made to the recipient or his trust fund are pass-through costs only. The facility may not charge any fees, including handling fees, for these types of transactions. (n)-(o) (No change.) sec.19.1702. Additional Charges (Items and Services Excluded from Vendor Payment). (a) The cost of oxygen, the gas only, is not included in the daily vendor rate. A nursing facility may charge for the oxygen only. If prescribed by the physician, the cost of oxygen may be charged to the recipient, the rate to be determined as follows. (1)-(4) (No change.) (5) The recipient may be charged for oxygen that the facility provides, or arranges to be delivered, via an oxygen concentrator, or by any other means. The recipient may not be charged for purchase, rental, or servicing of an oxygen concentrator or any other delivery apparatus (such as, liquid oxygen). (A) Charges for oxygen via a concentrator or any other means may be less than, but must not exceed, the documentable price per liter of oxygen via a 244 cubic foot tank charged by oxygen suppliers in the locale of the nursing facility. (B) When the facility charges the recipient for oxygen received via an oxygen concentrator or any other means, documentation must be maintained that accurately reflects actual recipient usage (such as: two hours, 35 minutes two liters per minute = 310 liters. Then 310 liters $.08 (equal to or less than the charge per liter to fill a large tank) = $24.80). (C) If the facility receives revenue from charging recipients for oxygen received via a concentrator or any other means, the amount must be reported on line 103 of the cost report. When a facility is charged for oxygen via a tank and bills the recipient the same amount per liter, the revenue does not have to be reported on the cost report. (6) When a recipient, responsible party, or family member wants oxygen provided via a system that is more expensive than the cost of providing oxygen via a 244 cubic foot tank, the following applies. (A) The total cost is an allowed incurred medical expense, for purposes of determining applied income, only if the requested system is medically necessary and specifically ordered by the physician. (B) If the chosen alternate system is not medically necessary or not ordered by the physician, then none of the cost of oxygen per liter is an allowed incurred medical expense. (b)-(f) (No change.) sec.19.1706. Supplementation of Vendor Payments. (a)-(e) (No change.) (f) When a provider accepts federal and/or state funds for items or services delivered which are not reimbursed within the per diem, the facility must document: (1) that the type of item or service is ordered by the physician; (2) that the item or service has not been billed to more than one payor source; and (3) that the recipient actually received the item or service. sec.19.1707. Penalties for Supplementation. A felony conviction with a fine of not more than $25,000 or imprisonment for not more than five years or both [,] can be imposed on anyone in the facility who knowingly and willfully: (1) accepts, from the recipient, money or other considerations in excess of rates established by the state for services provided under a state plan approved under Title XIX; [or] (2) charges, solicits, accepts, or receives any gifts, money, donation, or other consideration in addition to amounts required to be paid under a state plan approved under Title XIX (other than charitable donations from an organization or a person unrelated to the recipient as a precondition for admitting or keeping a recipient in the nursing facility if the cost of services is paid for under the state plan); or
                                                                                                                                                                                                                                                                                                                                                                                                                                          [.] (3) accepts reimbursement from more than one source (including per diem reimbursement) for the same item or service. sec.19.1708. Limitations on Provider Charges [to Patients].
                                                                                                                                                                                                                                                                                                                                                                                                                                            A provider of Medicaid (Title XIX) services may neither charge nor take other recourse against Medicaid applicants or
                                                                                                                                                                                                                                                                                                                                                                                                                                              recipients, their family members, or their representatives for any claim denied or reduced by the Texas Department of Human Services (DHS)
                                                                                                                                                                                                                                                                                                                                                                                                                                                because of the provider's failure to comply with any DHS
                                                                                                                                                                                                                                                                                                                                                                                                                                                  [department] rule, regulation, or procedure. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112071 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter S. Reimbursement Methodology for Nursing Facilities 40 TAC sec.sec.19.1802, 19.1805, 19.1807 The amendments are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.1802. Cost Reporting Procedures. Each provider must submit financial and statistical information on cost report forms provided by the Department of Human Services (DHS) or on facsimiles which are formatted according to DHS specifications and are preapproved by DHS staff. (1)-(2) (No change.) (3) Recordkeeping requirements. Each provider must maintain records according to the requirements stated in s69.202 of this title (relating to Contractor's Records)
                                                                                                                                                                                                                                                                                                                                                                                                                                                    [sec.51.50 of this title (relating to Record Retention Requirements)]. Providers must ensure that records are accurate and sufficiently detailed to support the legal, financial, and other statistical information contained in the cost report. Failure to maintain records that support the information submitted on the cost report in a form which is in compliance with DHS's chart of accounts for long-term care providers constitutes grounds for contract cancellation and recovery of liquidated damages from the provider. In cases of noncompliance, DHS allows providers 90 days, subsequent to notification, to comply with DHS recordkeeping requirements. DHS may withhold all vendor payments to the provider during those 90 days or until the deficiency is corrected. If the provider does not correct the deficiencies within 90 days from the date of notification, DHS may cancel the provider's contract and recover liquidated damages from the provider, if any are specified in the contract. (4)-(11) (No change.) sec.19.1805. List of Unallowable Costs. The following list of unallowable costs is not comprehensive, but rather serves as a general guide and clarifies certain key expense areas. The absence of a particular cost does not necessarily mean that it is an allowable cost. Except where specific exceptions are noted, the allowability of all costs is subject to the general principles specified in sec.19.1803(a) and (b) of this title (relating to Allowable and Unallowable Costs): (1)-(34) (No change.) (35) any expense, and corresponding revenues, that are reimbursed directly through payment systems which are outside of the per diem rate payment system. sec.19.1807. Rate Setting Methodology. (a)-(c) (No change.) (d) Exception to the reimbursement rate determined by the Texas Board of Human Services. The facility's average reimbursement rate set by the Texas Board of Human Services is lowered to the provider's customary charge if the provider's customary charge is consistently
                                                                                                                                                                                                                                                                                                                                                                                                                                                      less than the average Medicaid reimbursement rate for the same service
                                                                                                                                                                                                                                                                                                                                                                                                                                                        . Customary charge is defined in this case as the average rate charged to non-Medicaid clients for the same service
                                                                                                                                                                                                                                                                                                                                                                                                                                                          . (e) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112072 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter T. Administration 40 TAC sec.sec.19.1902, 19.1910, 19.1911, 19.1912, 19.1920, 19. 1921, 19.1923, 19.1929, 19.1930 The amendments and new section are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.1902. Governing Body. (a) The facility must have a governing body, or designated persons functioning as a governing body [,] that is legally responsible for establishing and implementing policies regarding the management and operation of the facility. (1) The governing body must have periodically updated
                                                                                                                                                                                                                                                                                                                                                                                                                                                            written policies and procedures specifying and governing all services
                                                                                                                                                                                                                                                                                                                                                                                                                                                              that are formally adopted and dated.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                [, periodically updated, and] The policies and procedures must be
                                                                                                                                                                                                                                                                                                                                                                                                                                                                  available to all of the facility's governing body's
                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [its] members, staff, residents, family or legal representatives of residents, and the public. (2) [These policies and procedures must govern all services and specify the types of services offered.] [(3)] The governing body must appoint a qualified full-time nursing home administrator as its official representative, and designate the administrator's responsibilities and authority. The governing body of a rural hospital participating in the Medicaid Swing Bed Program as specified in sec.19.2006 of this title (relating to Medicaid Swing Bed Program for Rural Hospitals) satisfies this requirement when it appoints a hospital administrator as its official representative and designates the administrator's responsibilities and authority, subject to the following exception. If the swing beds are used for more than one 30-day length of stay per year, per resident, the hospital's governing body must appoint a full-time licensed nursing home administrator. (b) (No change.) (c) The facility must operate under the supervision of a full-time nursing home administrator licensed by the Texas Board of Licensure for Nursing Home Administrators. A rural hospital participating in the Medicaid Swing Bed Program as specified in sec.19.2006 of this title (relating to Medicaid Swing Bed Program for Rural Hospitals) satisfies this requirement when it operates under the supervision of a hospital administrator, subject to the following exception. If the swing beds are used for more than one 30-day length of stay per year, per resident, these hospital swing beds must be under the supervision of a full-time licensed nursing home administrator. The administrator, as a professional, must work at least 40 hours per week on administrative duties. The administrator must be accountable to the governing body for overall management of the nursing facility. The administrator's authority and responsibilities must be clearly outlined to include , but not be limited to
                                                                                                                                                                                                                                                                                                                                                                                                                                                                      : (1)-(9) (No change.) sec.19.1910. Clinical Records. (a) (No change.) (b) The facility must develop and implement clinical record service policies and procedures that cover all areas of operation in the clinical record service, including, but not limited to: what constitutes the active (current), inactive (thinned), and discharged (closed) clinical record; fragmentation of documents/information from the active clinical record; and procedures for thinning active clinical records. (c)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [(b)] Clinical records must be retained for: (1)-(2) (No change.) (d)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [(c)] The facility must safeguard clinical record information against loss, destruction, or unauthorized use. (e)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [(d)] The facility must keep confidential all information contained in the resident's records, regardless of the form or storage method of the records, except when release is required by: (1)-(4) (No change.) (f)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [(e)] The facility must: (1)-(2) (No change.) sec.19.1911. Contents of the Clinical Record. The clinical record of each resident must contain: (1) sufficient information to identify the resident, to include: (A) full name of resident (first, middle, last); (B) home address, including street address, city, county, and state; (C) social security number; (D) DHS resident number, if applicable; (E) Medicaid claim number, if applicable; (F) marital status; (G) date of birth; (H) sex; (I) religious preference; (J) ethnic group; (K) usual occupation (the kind of work engaged in most of working life, even if retired); (L) birthplace; (M) father's name; (N) mother's maiden name; (O) dates of service in U.S. armed forces; (P) name, address, and telephone number of referral agency or hospital from which admitted; (Q) personal physician and alternate if applicable; (R) name of dentist; (S) name and address of next of kin or other responsible party; (T) admitting diagnosis; (U) name of funeral home, if appropriate; (V) dates of admission and discharge; and (W) other useful identifying data; (2) a record of the resident's assessments; (3) the comprehensive, interdisciplinary plan of care and services provided (see also sec.19.602 of this title (relating to Comprehensive Care Plans); (4) the results of any preadmission screening and annual resident review conducted by the Texas Department of Health (TDH) or the Texas Department of Mental Health and Mental Retardation (TDMHMR); (5) progress notes from all health care practitioners involved in the resident's care; (6) any directives or durable powers of attorney as described in sec.19.218 of this title (relating to Incompetency); (7) discharge information in accordance with sec.19.603 of this title (relating to Discharge Summary and Discharge Plan of Care) and sec.19.1002(5) of this title (relating to Physician Visits); (8) at admission or within 14 days, an initial medical evaluation, including history, physical examination, diagnoses and an estimate of restoration potential, and documentation of an annual physical examination; (9) authentication of any hospital diagnoses. (A) This may be in the form of a signed hospital discharge summary, a signed report from the resident's hospital or attending physician, or a transfer form signed by the physician. (B) The facility is allowed 14 workdays after admission to receive this information from the hospital. If the author of such reports is not the resident's attending physician, then the attending physician must acknowledge the report in writing by co-signing the report at his or her next scheduled visit. (C) Information documented as specified in this paragraph or paragraph (8) of this section is acceptable by TDH at the time of survey. (10) the physician's signed and dated orders, including medication, treatment, diet, restorative and special medical procedures, and routine care to maintain or improve the resident's functional abilities (required for the safety and well-being of the resident). Changes cannot be made either on a handwritten or computerized physician's order sheet after the orders have been signed by the physician unless space allows for additional orders below the physician's signature, including space for the physician to sign again; (11) arrangements for the emergency care of the resident in accordance with sec.19.1004 of this title (relating to Availability of Physician for Emergency Care); (12) observation made by nursing personnel. Nursing personnel must record observations according to the time frames specified in sec.19.804 of this title (relating to Director of Nursing Services). Facility staff must ensure that the observations show at least the following: (A) items as specified on the Resident Assessment Instrument and the Texas Nursing Facility Client Assessment Review and Evaluation (CARE) form; (B) current information including: (i) PRN medications and results; (ii) treatments and any notable results; (iii) physical complaints, changes in clinical signs and behavior, mental and behavioral status, and all incidents or accidents; (iv) flow sheets which may include bathing, restraint observation and/or release documentation, elimination, fluid intake, vital signs, ambulation status, positioning, continency status and care, and weight; (v) the resident's ability to participate in activities of daily living as defined in sec.19.804(6) of this title (relating to Director of Nursing Services); and (vi) dietary intake to include deviations from normal diet, rejection of substitutions, and physician's ordered snacks and/or supplemental feedings. (13) the date and hour of all drugs and treatments administered; (14) documentation of special procedures performed for the safety and well-being of the resident; (15) laboratory results for HIV testing which shall be kept separate from the active clinical record. Upon discharge, these reports become part of the resident's closed clinical record. sec.19.1912. Additional Clinical Record Service Requirements. (a) [The facility must make clinical records readily accessible for review by the Texas Department of Human Services (DHS), the Texas Department of Health (TDH), the Texas Department of Mental Health and Mental Retardation (TDMHMR), and the Department of Health and Human Services.] [(b)] The facility must
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [shall] maintain a permanent, master index
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [chronological register(s)] of all residents admitted to and discharged from the facility. This index must
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [register(s) shall] contain at least the following information concerning
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [on] each resident: (1)-(3) (No change.) (4) date of discharge [/death]; and (5) social security, Medicare, or Medicaid number
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [disposition (where resident went)]. (b)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [(c)] In the event of closure of a facility, change of ownership or change of administrative authority, the new management shall maintain documented proof of the medical information required for the continuity of care of all residents. This documentation may be in the form of copies of the resident's clinical record or the original clinical record. In a change of ownership, the two parties will agree and designate in writing who will be responsible for the retention and protection of the inactive and closed clinical records. (c)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [(d)] Recording Information in Ink. All resident care information must be recorded in ink. (1)-(3) (No change.) (d) Periodic thinning of active clinical records is necessary to reduce bulkiness. The following items must remain in the active clinical record for the sake of completeness: (1) current history and physical; (2) current physician's orders and progress notes; (3) the current resident assessment instrument (RAI) and subsequent quarterly reviews; (4) most recent hospital discharge summary and transfer summary; (5) current nursing and therapy notes; (6) current medication and treatment records; (7) current lab and x-ray reports; and (8) the admission record. [(e) Periodic thinning of active records is necessary to reduce bulkiness. Items which may be thinned are medication and treatment sheets, nurses' notes, and, if appropriate, physicians' orders and progress notes. At least the current and two previous months of this data are to be retained on each active chart at all times. [(1) In instances where an attending physician desires that all his orders and notes be retained on charts, his wishes should be honored. [(2) Certain records must remain on the charts for the sake of completeness. These include: current history and physical, most recent transfer summary, most recent hospital discharge summary, belongings list, applicable Department of Human Services forms, and admission sheet. Each record is recommended to contain the past six months worth of lab and x-ray reports.] (e)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [(f)] Readmissions. (1) If a resident is discharged for
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [temporarily transferred to the hospital (10] 30
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  days or less and readmitted to the same facility [)], it is not necessary to develop a completely new clinical record upon the resident's readmission. Upon readmission, it is necessary to: (A)-(E) (No change.) (F) complete a new RAI and update the comprehensive care plan if evaluation of the resident indicates a significant change which appears to be permanent. If no such change has occurred, then update only the resident comprehensive care plan.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [update the comprehensive assessment and comprehensive care plan as needed]; and [(G) update the belongings list if necessary.] (2) A new clinical record must be
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [is] initiated if the resident is a new admission or has been gone over 30
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [10] days. (f)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [(g) ] PRN medications. PRN medications/treatments must be recorded in the clinical
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [medical] record as specified by sec.19.809(c) of this title (relating to Administration of Drugs in Nursing Facilities) [at the time of administration and not before. The recording in the medical record include the reason for administration, what medication/treatment given, time the medication/treatment given, route (and site, if medication is an injectable), and the resident's response]. (g)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [(h)] Respite Care. Facilities participating in the DHS Respite Care Program must
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [will] follow the documentation requirements of that program until such time the resident may be admitted to the Medicaid Nursing Facility vendor payment system or as a private pay nursing facility resident still residing in a Medicaid certified facility or distinct parts. At that time, all the requirements of these regulations must be met. (h)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [(i)] Signatures. (1) (No change.) (2) Stamped signatures are acceptable for all health care documents requiring a physician's signature
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [orders], if the person using the stamp sends a letter of intent [,] which specifies that he or she will be the only one using the stamp, and then signs the letter with the same signature as the stamp. (3) (No change.) (4) All orders must originate with a physician, dentist, or podiatrist. See sec.19.804 of this title (relating to Nursing Facility Director of Nursing Facilities)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [ s19.805(c)(18) of this title (relating to Nursing Facility Charge Nurse Responsibilities)]. (5) Use of a master signature legend in lieu of the legend on each form for nursing staff signatures of medication, treatment, or flow sheet entries is acceptable if the following exist: (A)-(F) (No change.) (G) The master signature legend must be retained permanently as a reference to entries made in clinical records. (i)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [(j)] When resident records are destroyed after the retention period is complete, the facility must
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [shall] shred or incinerate the records in a manner which protects confidentiality. At the time of destruction, the facility must
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [shall] document the following for each record destroyed: (1)-(2) (No change.) (3) social security number, Medicare/Medicaid number,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              or [, if one is not available,] the date of birth; and (4) (No change.) (j)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [(k)] The facility must develop and implement policies and procedures to safeguard the confidentiality of medical record information from unauthorized access. The facility must allow access and/or release confidential medical information under court order or by written authorization of the resident or his or her legal guardian or designated representative (see sec.19.206 of this title (relating to Privacy and Confidentiality)). [(l) Telephone orders shall be immediately reduced to writing, signed by the person receiving the order, mailed to the physician for signature, and returned to the clinical record within seven working days.] sec.19.1920. Operating Procedures and Policies. (a)-(b) (No change.) (c) [The facility shall have written policies for the control of communicable diseases in employees and residents, provision of a safe and sanitary environment for residents and employees, and reporting and reviewing accidents/incidents involving residents and employees. If employees contract a communicable disease that is transmissible to residents through food handling or direct resident care, the employee shall be excluded from providing these services as long as an acute infection is present. The decision to return to work shall be made by the facility's administrator in conjunction with the employee's personal physician, the facility's medical director, local or state health authority, and in accordance with generally accepted practices. The facility must maintain evidence of compliance with local and/or state health codes or ordinances regarding employee and resident health status (see sec.19. 1401 of this title (relating to Infection Control).] [(d)] The facility shall ensure that personnel records are correct and contain sufficient information to support placement in the assigned position (including a resume of training and experience). When appropriate, a current copy of the person's license or permit shall be in the file. Registered nurse and Licensed Vocational nurse licenses must not be copied. Documentation of visual verification must be maintained. (d)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [(e)] Upon request of the licensing agency, the facility shall make available financial records to demonstrate the facility's compliance with applicable state laws and standards relating to licensing. [(f) If the resident or his or her responsible party entrusts the handling of petty cash (for incidental purposes such as soft drinks, magazines, tobacco, etc.) to the nursing facility, simple financial records of receipts and expenditures of such petty cash must be maintained in a noninterest bearing account or petty cash fund. These funds shall not be deposited in the general operating bank account of the facility (see s19.204 of this title (relating to Protection of Resident Funds)). [(g) The facility shall make arrangements to transfer residents to another health care facility when residents' needs change or become acute in accordance with sec.19.302 of this title (relating to Transfer and Discharge) and to sec.19.603 of this title (relating to Discharge Summary and Discharge Plan of Care).] sec.19.1921. General Requirements for a Nursing Facility. (a)-(g) (No change.) (h) Upon request, the nursing facility management shall make available to Texas Department of Health (
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    TDH), Texas Department of Mental Health and Mental Retardation (TDMHMR),
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      or Texas Department of Human Services (
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DHS)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          representatives [copies of] relevant facility documents or records which, in the opinion of the TDH, TDMHMR,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            or DHS representatives, contain evidence of conditions that threaten the health and safety of residents or are necessary for investigations related to recipient's trust funds or Medicaid vendor payment. Copies of relevant facility documents or records must be provided upon request by representatives of the agencies listed in this section. (1) (No change.) (2) The facility may charge TDH, TDMHMR,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              or DHS at a rate not to exceed the rate the agency charges
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [charged by the department] for copies. Collection shall be by billing the agency. (3) (No change.) (4) [It shall be the responsibility of] TDH, TDMHMR, and
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [or] DHS are responsible for maintaining
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [to maintain] the confidentiality of all records or documents photocopied for its use. TDH, TDMHMR,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      and DHS must
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [shall] protect the copies for privacy and confidentiality of all records or documents photocopied for its use. TDH, TDMHMR, and DHS must [shall] protect the copies for privacy and confidentiality in accordance with recognized standards of clinical records practice, applicable state laws, and [licensing] agency policy. (5) (No change.) (i)-(q) (No change.) sec.19.1923. Incident or Accident Reporting. (a)-(b) (No change. ) (c) Accident or incident reports [shall be filed in the administrator's office,] shall be retained for the period of time [indicated for clinical records] specified by facility policy, but at least for two years following the occurrence,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          and shall contain the following information: (1)-(2) (No change.) (d)-(e) (No change.) sec.19.1929. Staff Development.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            Each facility shall implement and maintain programs of orientation, training, and continuing in-service education to develop the skills of its staff (see sec.19.1903 of this title (relating to Required Training of Nurse Aides)). The programs shall meet the requirements described in this section. (1) (No change.) (2) The following orientation, training, and continuing in-service education programs shall be provided by the facility for its employees. (A)-(D) (No change.) (E) Employees involved. (i) (No change.) (ii) Orientation is required for all employees, except the administrator. The employee categories requiring job-specific training and continuing in-service education to their respective jobs are nursing, dietary, janitor/housekeeper, activity-social service, and clinical records. (I)-(IV) (No change.) [(V) A person who is employed as the activity director and enrolls in an activity director course that is approved by the Texas Department of Human Services, is exempt from the activities director training, provided the 80-hour activity director course is begun within 90 calendar days after the date of employment.] (V)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [(VI)] Job-specific training is not required of nurse aides enrolled in an approved training course or who are on the nurse aide registry. (iii) (No change.) (F) (No change.) (3)-(11) (No change.) sec.19.1930. Blood and Blood Products. If the facility stores and transfers blood or blood products, the facility must meet the conditions established for certification of hospitals that are contained in 42 Code of Federal Regulations, sec.482.27(d)(1)-(6)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [sec.405.1028(j)-(l)]. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112073 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter T. Administration 40 TAC sec.19.1911 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Human Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.1911. Contents of the Clinical Record. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112083 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter U. State and Local Requirements 40 TAC sec.19.2001, sec.19.2005 The amendments are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.2001. Licensure. (a)-(c) (No change.) (d) The nursing facility must submit a report to the Texas Department of Health (TDH) concerning any death of a resident at the facility or any death occurring within 24 hours after a resident is transferred from the facility to a hospital. (1) The report must be made on a form prescribed by TDH. (2) The report must be submitted within 10 working days after the last day of each month in which a resident of the facility dies. (3) Upon request of an applicant, resident, or their representative, the facility shall make available historical statistics on all required information under Health and Safety Code, sec.242.134 (relating to reports relating to resident deaths). sec.19.2005. Contract Requirements. (a)-(c) (No change.) (d) The contracting nursing facility agrees to: (1) comply with Title VI of the Civil Rights Act of 1964 (Public Law 88- 352), the Rehabilitation Act of 1973, sec.504 (Public Law 93-112), the Americans with Disabilities Act of 1990 (Public Law 101-336), and all amendments to each, and all requirements imposed by the regulations issued pursuant to these acts. In addition, the contractor agrees to comply with Chapter 73 of this title (relating to Civil Rights). of the Texas Administrative Code. These provide in part that no persons in the United States shall, on the grounds of race, color, national origin, sex, age, disability, political beliefs, or religion be excluded from participation in, or denied, any aid, care, service or other benefits provided by federal and/or state funding, or otherwise be subjected to discrimination; (2) comply with Texas Civil Statutes, Article 4419b-4, sec.5.03 and sec.5.04 (relating to workplace and confidentiality guidelines regarding AIDS and HIV). This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112074 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter V. Federal Requirements 40 TAC sec.sec.19.2102, 19.2104, 19.2105 The amendment and new sections are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.19.2102. Civil Rights Act of 1964, 23>Title VI and Title IX. The Civil Rights Act of 1964 states "No person in the United States shall on the grounds of race, color, [or] national origin, or sex be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance." Compliance with Title VI and Title IX
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  includes meeting the following requirements. (1) Even if an open admission policy is announced, additional steps may be necessary to desegregate the facility, particularly if it has excluded or primarily served residents of one race, color, [or] national origin, or sex
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    . Nursing facilities that serve residents of one race exclusively must take corrective action unless they can show that this pattern has not been caused by discriminatory practices. (2) If a nursing facility is owned or operated by a private organization, its services may be restricted to members of the organization without losing the facility's eligibility as long as membership in the organization and admission to the facility is not denied because of anyone's race, color, [or] national origin, or sex
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      . (3) Residents must be housed without regard to race, color, [or] national origin, or sex
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        . Biracial occupancy of multi-bed rooms and wards on a non-discriminatory basis would be the result. (4) Residents must not be asked if they will share a room with a person of another race, color, [or] national origin , or sex
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          . The transfer of residents is not to be used to evade compliance with Title VI. (5) Residents must be provided services by all personnel (medical, nonmedical, and volunteer) without regard to race, color, [or] national origin, or sex
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            . (6) Attending physicians must be permitted to provide services without regard to the physician's or the resident's race, color, [or] national origin, or sex
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              . Other medical, paramedical, or non-medical persons, whether engaged in a contractual or consultant capacity, must be selected and employed in a non- discriminatory manner. The facility must not deny the same opportunities to qualified persons on the basis of race, color, or national origin. Dismissal of persons from Nursing Facilities must not be based on race, color, or national origin. (7) The facility must ensure that services rendered by employees, vendors, or others in nursing facilities are provided without regard to race, color, [or] national origin, or sex
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                . These include but are not limited to: (A)-(C) (No change.) (8)-(9) (No change.) (10) Nursing facilities must let the community know that admission to the facility, patient care services, and other activities is operating without regard to race, color, [or] national origin , or sex
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  . Notice to the community may be given by letters to and meetings with physicians, local health and welfare agencies, paramedical personnel, and public and private organizations which have an interest in equal opportunity. Notices to newspapers and signs in nursing facilities also may be used to inform the public. (11) Nursing facilities must allow residents to use nursing facilities and services without regard to race, color, [or] national origin, or sex
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    . Facilities which have had dual accommodations to effect racial segregation must have ended this practice. sec.19.2104. Americans with Disabilities Act of 1990.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      The facility must be in compliance with the Americans with Disabilities Act of 1990 (P.L. 101-336) within the time frames specified by the Act. sec.19.2105. Safe Medical Devices Act of 1990. (a) When a nursing facility receives or otherwise becomes aware of information that reasonably suggests that there is a probability that a device has caused or contributed to the death of a resident of the facility, the facility shall, as soon as practicable but not later than 10 working days after becoming aware of the information, report the information to the Secretary of Health and Human Services and, if the identity of the manufacturer is known, to the manufacturer of the device. (b) When a facility receives or otherwise becomes aware of information that reasonably suggests that there is a probability that a device has caused or contributed to the serious illness of, or serious injury to, a resident of the facility, the facility shall, as soon as practicable but not later than 10 working days after becoming aware of the information, report the information to the manufacturer of the device or to the Secretary of Health and Human Services if the identity of the manufacturer is not known. (c) Each nursing facility shall submit to the Secretary of Health and Human Services on a semi-annual basis a summary of the reports made under subsections (a) and (b) of this section. Such summary shall be submitted on January 1 and July 1 of each year; however, the Secretary of Health and Human Services may by regulation alter the frequency and timing of reports required by this subsection. The summary shall be in such form and contain such information from such reports as the Secretary may require and shall include: (1) sufficient information to identify the facility which made the reports for which the summary is submitted; (2) in the case of any product which was the subject of a report, the product name, serial number, and model number; (3) the name and address of the manufacturer of such device; and (4) a brief description of the event reported to the manufacturer. (d) A nursing facility shall be treated as having received or otherwise become aware of information with respect to a device of that facility when medical personnel who are employed by or otherwise formally affiliated with the facility receive or otherwise become aware of information with respect to that device in the course of their duties. (e) For purposes of this section, the terms "serious illness" and "serious injury" mean illness or injury, respectively, that: (1) is life threatening; (2) results in permanent impairment of a body function or permanent damage to a body structure; or (3) necessitates immediate medical or surgical intervention to preclude permanent impairment of a body function or permanent damage to a body structure. (f) Facilities may report to the Secretary of Health and Human Services by calling the Problem Reporting Program of the United States Pharmacopeia at 1- 800-638-6275, or may request forms to complete. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112075 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765 Subchapter V. Federal Requirements 40 TAC sec.19.2104, sec.19.2105 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Human Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. V. Federal Requirements sec.19.2104. Title VII of the Civil Rights Act of 1964. sec.19.2105. Texas Civil Practices and Remedies Code. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 2, 1991. TRD-9112084 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765