TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

CHAPTER 19. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION

As required by Texas Government Code, §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Health and Human Services Commission (HHSC) in accordance with Texas Government Code, §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously held by DADS that have transferred to HHSC. Texas Government Code, §531.0055, requires the executive commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, the executive commissioner of HHSC proposes amendments to §19.101, concerning Definitions; §19.403, concerning Notice of Rights and Services; §19.413, concerning Access and Visitation Rights; §19.502, concerning Transfer and Discharge in Medicaid-certified Facilities; §19.1001, concerning Nursing Services; §19.1923, concerning Incident or Accident Reporting; §19.2002, concerning Procedural Requirements--Licensure Inspections and Surveys; §19.2112, concerning Administrative Penalties; §19.2114, concerning Right To Correct; §19.2119, concerning Open Hearing; §19.2310, concerning Nursing Facility Ceases to Participate; and §19.2708, concerning Educational and Informational Activities for Residents, in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification.

BACKGROUND AND PURPOSE

HHSC proposes amendments to 40 TAC, Chapter 19, governing Nursing Facility Requirements for Licensure and Medicaid Certification, to make HHSC rules consistent with federal rules governing the Office of the State Long-Term Care Ombudsman (the Office) by requiring nursing facilities (NFs) and assisted living facilities (ALFs) to allow the Office access to the facilities. The amendments will also allow HHSC to impose administrative penalties if a facility does not grant access in accordance with the rules.

SECTION-BY-SECTION SUMMARY

Proposed §19.101 adds new definitions for "Certified ombudsman," "Managing local ombudsman," "Ombudsman intern," "Ombudsman Program," "Private and unimpeded access," "State Ombudsman," and "Willfully interfere." Proposed §19.101 also revises the definitions of "Dentist", "Dietitian" and "Physician Assistant (PA)" with editorial changes to provide more clarity to the use of the terms. Proposed §19.101 deletes the definition for "Ombudsman."

Proposed §19.403 updates terms related to the Ombudsman Program.

Proposed §19.413(a) updates terms related to the Ombudsman Program and terms related to the protection and advocacy system established under 42 USC Chapter 114, Subchapter I. Proposed §19.413(c) outlines the nursing facility requirements to allow access to a facility and a resident by the State Ombudsman, certified ombudsman and an ombudsman intern during regular visiting hours and for the State Ombudsman and a certified ombudsman at a time other than regular business hours to complete an investigation. Proposed §19.413(d) sets forth the conditions that must be met to allow the State Ombudsman or a certified ombudsman access to all files, records and other information concerning an incident, as well as the administrative records, policies and documents available to the residents and general public. Proposed §19.413(e) adds requirements related to the release of HIPPA information to the State Ombudsman or a certified ombudsman.

Proposed §§19.502, 19.1001, 19.1923, 19.2002, 19.2119, 19.2310 and 19.2708 make minor editorial and organizational changes for clarity and consistency, such as updating DHS to HHSC and terms related to the Ombudsman Program.

Proposed §19.2112(a)(4)-(5) adds that HHSC may assess an administrative penalty against a person who retaliates against a representative of HHSC completing the work required to enforce this chapter or preserving evidence of a violation of a rule, standard, or order adopted or license issued under Chapter 242, Texas Health and Safety Code. Proposed §19.2112(a)(8)-(9) adds that HHSC may assess an administrative penalty against a person who willfully interferes with or retaliates against a the State Ombudsman, certified ombudsman or an ombudsman intern performing the functions of the Ombudsman Program as described in Title 26, Part 1, Chapter 88, State Long-Term Care Ombudsman Program.

Proposed §19.2114(d)(4) states that a nursing facility does not have the right to correct a violation listed in §19.2112(a)(8) or (9). Proposed §19.2114 also makes minor editorial and organizational changes for clarity and consistency.

FISCAL NOTE

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that, for each year of the first five years the proposed amendments are in effect, there will be no fiscal implications to state or local governments as a result of enforcing and administering the sections as proposed.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the sections will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of employee positions;

(3) implementation of the proposed rules will not require an increase or decrease in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will not create a new rule;

(6) the proposed rules will expand an existing rule;

(7) the proposed rules will not change the number of individuals subject to the rule; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Ms. Rymal has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities, because the rules do not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the rules.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are no anticipated economic costs to persons who are required to comply with the proposed rules.

There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

Texas Government Code, §2001.0045 does not apply to these proposed rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas; do not impose a cost on regulated persons; are necessary to receive a source of federal funds and to comply with federal law; and are necessary to implement state legislation that does not specifically state that §2001.0045 applies to the proposed rules.

PUBLIC BENEFIT AND COSTS

Mary T. Henderson, Associate Commissioner for HHSC Long-Term Care Regulatory, has determined that, for each year of the first five years the amendments are in effect, the public benefit expected as a result of enforcing the amendments is the removal of duplicative rules from the HHSC rule base.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Josie Esparza at (512) 438-4077 in HHSC Long-Term Care Regulatory Services Division. Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 149030, Mail Code H600, Austin, Texas 78714-9030, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or e-mailed to HHSRulesCoordinationOffice@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to HHSC before 5:00 p.m. on the last working day of the comment period; or (3) emailed by midnight on the last day of the comment period. Please indicate "Comments on Proposed Rule 16R12."

SUBCHAPTER B. DEFINITIONS

40 TAC §19.101

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; and Texas Human Resources Code, §101A.051 which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC programs and services for older individuals.

The amendment implements Texas Government Code, §531.0055 and Texas Human Resources Code, §101A.051.

§19.101.Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

(1) Abuse--Negligent or willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical or emotional harm or pain to a resident; or sexual abuse, including involuntary or nonconsensual sexual conduct that would constitute an offense under Penal Code §21.08 (indecent exposure) or Penal Code Chapter 22 (assaultive offenses), sexual harassment, sexual coercion, or sexual assault.

(2) Act--Chapter 242 of the Texas Health and Safety Code.

(3) Activities assessment--See Comprehensive Assessment and Comprehensive Care Plan.

(4) Activities director--The qualified individual appointed by the facility to direct the activities program as described in §19.702 of this chapter (relating to Activities).

(5) Addition--The addition of floor space to an institution.

(6) Administrator--Licensed nursing facility administrator.

(7) Admission MDS assessment--An MDS assessment that determines a recipient's initial determination of eligibility for medical necessity for admission into the Texas Medicaid Nursing Facility Program.

(8) Advanced practice registered nurse--A person licensed by the Texas Board of Nursing as an advanced practice registered nurse.

(9) Affiliate--With respect to a:

(A) partnership, each partner thereof;

(B) corporation, each officer, director, principal stockholder, and subsidiary; and each person with a disclosable interest;

(C) natural person, which includes each:

(i) person's spouse;

(ii) partnership and each partner thereof of which said person or any affiliate of said person is a partner; and

(iii) corporation in which said person is an officer, director, principal stockholder, or person with a disclosable interest.

(10) Agent--An adult to whom authority to make health care decisions is delegated under a durable power of attorney for health care.

(11) Alzheimer's disease and related disorders--Alzheimer's disease and any other irreversible dementia described by the Centers for Disease Control and Prevention or the most current edition of the Diagnostic and Statistical Manual of Mental Disorders.

(12) Applicant--A person or governmental unit, as those terms are defined in the Texas Health and Safety Code, Chapter 242, applying for a license under that chapter.

(13) APA--The Administrative Procedure Act, Texas Government Code, Chapter 2001.

(14) Attending physician--A physician, currently licensed by the Texas Medical Board, who is designated by the resident or responsible party as having primary responsibility for the treatment and care of the resident.

(15) Authorized electronic monitoring--The placement of an electronic monitoring device in a resident's room and using the device to make tapes or recordings after making a request to the facility to allow electronic monitoring.

(16) Barrier precautions--Precautions including the use of gloves, masks, gowns, resuscitation equipment, eye protectors, aprons, face shields, and protective clothing for purposes of infection control.

(17) Care and treatment--Services required to maximize resident independence, personal choice, participation, health, self-care, psychosocial functioning and reasonable safety, all consistent with the preferences of the resident.

(18) Certification--The determination by DADS that a nursing facility meets all the requirements of the Medicaid or Medicare programs.

(19) Certified Ombudsman--Has the meaning given in 26 TAC §88.2 (relating to Definitions).

(20) [(19)] Change of ownership--An event that results in a change to the federal taxpayer identification number of the license holder of a facility. The substitution of a personal representative for a deceased license holder is not a change of ownership.

(21) [(20)] CFR--Code of Federal Regulations.

(22) [(21)] CMS--Centers for Medicare & Medicaid Services, formerly the Health Care Financing Administration (HCFA).

(23) [(22)] Complaint--Any allegation received by DADS other than an incident reported by the facility. Such allegations include, but are not limited to, abuse, neglect, exploitation, or violation of state or federal standards.

(24) [(23)] Completion date--The date an RN assessment coordinator signs an MDS assessment as complete.

(25) [(24)] Comprehensive assessment--An interdisciplinary description of a resident's needs and capabilities including daily life functions and significant impairments of functional capacity, as described in §19.801(2) of this chapter (relating to Resident Assessment).

(26) [(25)] Comprehensive care plan--A plan of care prepared by an interdisciplinary team that includes measurable short-term and long-term objectives and timetables to meet the resident's needs developed for each resident after admission. The plan addresses at least the following needs: medical, nursing, rehabilitative, psychosocial, dietary, activity, and resident's rights. The plan includes strategies developed by the team, as described in §19.802(b)(2) of this chapter (relating to Comprehensive Care Plans), consistent with the physician's prescribed plan of care, to assist the resident in eliminating, managing, or alleviating health or psychosocial problems identified through assessment. Planning includes:

(A) goal setting;

(B) establishing priorities for management of care;

(C) making decisions about specific measures to be used to resolve the resident's problems; and

(D) assisting in the development of appropriate coping mechanisms.

(27) [(26)] Controlled substance--A drug, substance, or immediate precursor as defined in the Texas Controlled Substance Act, Texas Health and Safety Code, Chapter 481, or the Federal Controlled Substance Act of 1970, Public Law 91-513.

(28) [(27)] Controlling person--A person with the ability, acting alone or in concert with others, to directly or indirectly, influence, direct, or cause the direction of the management, expenditure of money, or policies of a nursing facility or other person. A controlling person does not include a person, such as an employee, lender, secured creditor, or landlord, who does not exercise any influence or control, whether formal or actual, over the operation of a facility. A controlling person includes:

(A) a management company, landlord, or other business entity that operates or contracts with others for the operation of a nursing facility;

(B) any person who is a controlling person of a management company or other business entity that operates a nursing facility or that contracts with another person for the operation of a nursing facility;

(C) an officer or director of a publicly traded corporation that is, or that controls, a facility, management company, or other business entity described in subparagraph (A) of this paragraph but does not include a shareholder or lender of the publicly traded corporation; and

(D) any other individual who, because of a personal, familial, or other relationship with the owner, manager, landlord, tenant, or provider of a nursing facility, is in a position of actual control or authority with respect to the nursing facility, without regard to whether the individual is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility.

(29) [(28)] Covert electronic monitoring--The placement and use of an electronic monitoring device that is not open and obvious, and the facility and DADS have not been informed about the device by the resident, by a person who placed the device in the room, or by a person who uses the device.

(30) [(29)] DADS--The Department of Aging and Disability Services or the Health and Human Services Commission, as its successor agency.

(31) [(30)] Dangerous drugs--Any drug as defined in the Texas Health and Safety Code, Chapter 483.

(32) [(31)] Dentist--A practitioner licensed to practice dentistry by the Texas State Board of Dental Examiners.

(33) [(32)] Department--The Department of Aging and Disability Services or the Health and Human Services Commission, as its successor agency.

(34) [(33)] DHS--This term referred to the Texas Department of Human Services; it now refers to DADS, unless the context concerns an administrative hearing. Administrative hearings were formerly the responsibility of DHS; they now are the responsibility of the Texas Health and Human Services Commission (HHSC).

(35) [(34)] Dietitian--A qualified dietitian is one who is qualified based upon either:

(A) registration by the Commission on Dietetic Registration of the Academy of Nutrition and Dietetics; or

(B) licensure, or provisional licensure, as a dietitian under Texas Occupations Code, Chapter 701 and [by the Texas State Board of Examiners of Dietitians. These individuals must have] one year of supervisory experience in dietetic service of a health care facility.

(36) [(35)] Direct care by licensed nurses--Direct care consonant with the physician's planned regimen of total resident care includes:

(A) assessment of the resident's health care status;

(B) planning for the resident's care;

(C) assignment of duties to achieve the resident's care;

(D) nursing intervention; and

(E) evaluation and change of approaches as necessary.

(37) [(36)] Direct ownership interest--Ownership of equity in the capital, stock, or profits of, or a membership interest in, an applicant or license holder.

(38) [(37)] Disclosable interest--Five percent or more direct or indirect ownership interest in an applicant or license holder.

(39) [(38)] Distinct part--That portion of a facility certified to participate in the Medicaid Nursing Facility program.

(40) [(39)] Drug (also referred to as medication)--Any of the following:

(A) any substance recognized as a drug in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them;

(B) any substance intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man;

(C) any substance (other than food) intended to affect the structure or any function of the body of man; and

(D) any substance intended for use as a component of any substance specified in subparagraphs (A) - (C) of this paragraph. It does not include devices or their components, parts, or accessories.

(41) [(40)] Electronic monitoring device--Video surveillance cameras and audio devices installed in a resident's room, designed to acquire communications or other sounds that occur in the room. An electronic, mechanical, or other device used specifically for the nonconsensual interception of wire or electronic communication is excluded from this definition.

(42) [(41)] Emergency--A sudden change in a resident's condition requiring immediate medical intervention.

(43) [(42)] Executive Commissioner--The executive commissioner of the Health and Human Services Commission.

(44) [(43)] Exploitation--The illegal or improper act or process of a caregiver, family member, or other individual who has an ongoing relationship with a resident using the resources of the resident for monetary or personal benefit, profit, or gain without the informed consent of the resident.

(45) [(44)] Exposure (infections)--The direct contact of blood or other potentially infectious materials of one person with the skin or mucous membranes of another person. Other potentially infectious materials include the following human body fluids: semen, vaginal secretions, cerebrospinal fluid, peritoneal fluid, amniotic fluid, saliva in dental procedures, and body fluid that is visibly contaminated with blood and all body fluids when it is difficult or impossible to differentiate between body fluids.

(46) [(45)] Facility--Unless otherwise indicated, a facility is an institution that provides organized and structured nursing care and service and is subject to licensure under Texas Health and Safety Code, Chapter 242.

(A) For Medicaid, a facility is a nursing facility which meets the requirements of §1919(a) - (d) of the Social Security Act. A facility may not include any institution that is for the care and treatment of mental diseases except for services furnished to individuals age 65 and over and who are eligible as defined in Chapter 17 of this title (relating to Preadmission Screening and Resident Review (PASRR)).

(B) For Medicare and Medicaid purposes (including eligibility, coverage, certification, and payment), the "facility" is always the entity which participates in the program, whether that entity is comprised of all of, or a distinct part of, a larger institution.

(C) "Facility" is also referred to as a nursing home or nursing facility. Depending on context, these terms are used to represent the management, administrator, or other persons or groups involved in the provision of care of the resident; or to represent the physical building, which may consist of one or more floors or one or more units, or which may be a distinct part of a licensed hospital.

(47) [(46)] Family council--A group of family members, friends, or legal guardians of residents, who organize and meet privately or openly.

(48) [(47)] Family representative--An individual appointed by the resident to represent the resident and other family members, by formal or informal arrangement.

(49) [(48)] Fiduciary agent--An individual who holds in trust another's monies.

(50) [(49)] Free choice--Unrestricted right to choose a qualified provider of services.

(51) [(50)] Goals--Long-term: general statements of desired outcomes. Short-term: measurable time-limited, expected results that provide the means to evaluate the resident's progress toward achieving long-term goals.

(52) [(51)] Governmental unit--A state or a political subdivision of the state, including a county or municipality.

(53) [(52)] HCFA--Health Care Financing Administration, now the Centers for Medicare & Medicaid Services (CMS).

(54) [(53)] Health care provider--An individual, including a physician, or facility licensed, certified, or otherwise authorized to administer health care, in the ordinary course of business or professional practice.

(55) [(54)] Hearing--A contested case hearing held in accordance with the Administrative Procedure Act, Texas Government Code, Chapter 2001, and the formal hearing procedures in 1 TAC Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act) and Chapter 91 of this title (relating to Hearings Under the Administrative Procedure Act).

(56) [(55)] HIV--Human Immunodeficiency Virus.

(57) [(56)] Incident--An abnormal event, including accidents or injury to staff or residents, which is documented in facility reports. An occurrence in which a resident may have been subject to abuse, neglect, or exploitation must also be reported to DADS.

(58) [(57)] Indirect ownership interest--Any ownership or membership interest in a person that has a direct ownership interest in an applicant or license holder.

(59) [(58)] Infection control--A program designed to prevent the transmission of disease and infection in order to provide a safe and sanitary environment.

(60) [(59)] Inspection--Any on-site visit to or survey of an institution by DADS for the purpose of licensing, monitoring, complaint investigation, architectural review, or similar purpose.

(61) [(60)] Interdisciplinary care plan--See the definition of "comprehensive care plan."

(62) [(61)] Involuntary seclusion--Separation of a resident from others or from the resident's room or confinement to the resident's room, against the resident's will or the will of a person who is legally authorized to act on behalf of the resident. Monitored separation from other residents is not involuntary seclusion if the separation is a therapeutic intervention that uses the least restrictive approach for the minimum amount of time, not exceed to 24 hours, until professional staff can develop a plan of care to meet the resident's needs.

(63) [(62)] IV--Intravenous.

(64) [(63)] Legend drug or prescription drug--Any drug that requires a written or telephonic order of a practitioner before it may be dispensed by a pharmacist, or that may be delivered to a particular resident by a practitioner in the course of the practitioner's practice.

(65) [(64)] License holder--A person that holds a license to operate a facility.

(66) [(65)] Licensed health professional--A physician; physician assistant; advanced practice registered nurse; physical, speech, or occupational therapist; pharmacist; physical or occupational therapy assistant; registered professional nurse; licensed vocational nurse; licensed dietitian; or licensed social worker.

(67) [(66)] Licensed nursing home (facility) administrator--A person currently licensed by DADS in accordance with Chapter 18 of this title (relating to Nursing Facility Administrators).

(68) [(67)] Licensed vocational nurse (LVN)--A nurse who is currently licensed by the Texas Board of Nursing as a licensed vocational nurse.

(69) [(68)] Life Safety Code (also referred to as the Code or NFPA 101)--The Code for Safety to Life from Fire in Buildings and Structures, Standard 101, of the National Fire Protection Association (NFPA).

(70) [(69)] Life safety features--Fire safety components required by the Life Safety Code, including, but not limited to, building construction, fire alarm systems, smoke detection systems, interior finishes, sizes and thicknesses of doors, exits, emergency electrical systems, and sprinkler systems.

(71) [(70)] Life support--Use of any technique, therapy, or device to assist in sustaining life. (See §19.419 of this chapter (relating to Advance Directives)).

(72) [(71)] Local authorities--Persons, including, but not limited to, local health authority, fire marshal, and building inspector, who may be authorized by state law, county order, or municipal ordinance to perform certain inspections or certifications.

(73) [(72)] Local health authority--The physician appointed by the governing body of a municipality or the commissioner's court of the county to administer state and local laws relating to public health in the municipality's or county's jurisdiction as defined in Texas Health and Safety Code, §121.021.

(74) [(73)] Long-term care-regulatory--DADS Regulatory Services Division, which is responsible for surveying nursing facilities to determine compliance with regulations for licensure and certification for Title XIX participation.

(75) [(74)] Manager--A person, other than a licensed nursing home administrator, having a contractual relationship to provide management services to a facility.

(76) [(75)] Management services--Services provided under contract between the owner of a facility and a person to provide for the operation of a facility, including administration, staffing, maintenance, or delivery of resident services. Management services do not include contracts solely for maintenance, laundry, or food service.

(77) Managing local ombudsman--Has the meaning given in 26 TAC §88.2 (relating to Definitions).

(78) [(76)] MDS--Minimum data set. See Resident Assessment Instrument (RAI).

(79) [(77)] MDS nurse reviewer--A registered nurse employed by HHSC to monitor the accuracy of the MDS assessment submitted by a Medicaid-certified nursing facility.

(80) [(78)] Medicaid applicant--A person who requests the determination of eligibility to become a Medicaid recipient.

(81) [(79)] Medicaid nursing facility vendor payment system--Electronic billing and payment system for reimbursement to nursing facilities for services provided to eligible Medicaid recipients.

(82) [(80)] Medicaid recipient--A person who meets the eligibility requirements of the Title XIX Medicaid program, is eligible for nursing facility services, and resides in a Medicaid-participating facility.

(83) [(81)] Medical director--A physician licensed by the Texas Medical Board, who is engaged by the nursing home to assist in and advise regarding the provision of nursing and health care.

(84) [(82)] Medical power of attorney--The legal document that designates an agent to make treatment decisions if the individual designator becomes incapable.

(85) [(83)] Medical-social care plan--See Interdisciplinary Care Plan.

(86) [(84)] Medically related condition--An organic, debilitating disease or health disorder that requires services provided in a nursing facility, under the supervision of licensed nurses.

(87) [(85)] Medication aide--A person who holds a current permit issued under the Medication Aide Training Program as described in Chapter 95 of this title (relating to Medication Aides--Program Requirements) and acts under the authority of a person who holds a current license under state law which authorizes the licensee to administer medication.

(88) [(86)] 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.

(89) [(87)] MN--Medical necessity. A determination, made by physicians and registered nurses who are employed by or contract with the state Medicaid claims administrator, that a recipient requires the services of a licensed nurse in an institutional setting to carry out a physician's planned regimen for total care. A recipient's need for custodial care in a 24-hour institutional setting does not constitute medical necessity.

(90) [(88)] Neglect--The failure to provide goods or services, including medical services that are necessary to avoid physical or emotional harm, pain, or mental illness.

(91) [(89)] NHIC--This term referred to the National Heritage Insurance Corporation. It now refers to the state Medicaid claims administrator.

(92) [(90)] Nonnursing personnel--Persons not assigned to give direct personal care to residents; including administrators, secretaries, activities directors, bookkeepers, cooks, janitors, maids, laundry workers, and yard maintenance workers.

(93) [(91)] Nurse aide--An individual who provides nursing or nursing-related services to residents in a facility under the supervision of a licensed nurse. This definition does not include an individual who is a licensed health professional, a registered dietitian, or someone who volunteers such services without pay. A nurse aide is not authorized to provide nursing or nursing-related services for which a license or registration is required under state law. Nurse aides do not include those individuals who furnish services to residents only as paid feeding assistants.

(94) [(92)] Nurse aide trainee--An individual who is attending a program teaching nurse aide skills.

(95) [(93)] Nurse practitioner--An advanced practice registered nurse.

(96) [(94)] Nursing assessment--See definition of "comprehensive assessment" and "comprehensive care plan."

(97) [(95)] Nursing care--Services provided by nursing personnel which include, but are not limited to, observation; promotion and maintenance of health; prevention of illness and disability; management of health care during acute and chronic phases of illness; guidance and counseling of individuals and families; and referral to physicians, other health care providers, and community resources when appropriate.

(98) [(96)] Nursing facility/home--An institution that provides organized and structured nursing care and service, and is subject to licensure under Texas Health and Safety Code, Chapter 242. The nursing facility may also be certified to participate in the Medicaid Title XIX program. Depending on context, these terms are used to represent the management, administrator, or other persons or groups involved in the provision of care to the residents; or to represent the physical building, which may consist of one or more floors or one or more units, or which may be a distinct part of a licensed hospital.

(99) [(97)] Nursing facility/home administrator--See the definition of "licensed nursing home (facility) administrator."

(100) [(98)] Nursing personnel--Persons assigned to give direct personal and nursing services to residents, including registered nurses, licensed vocational nurses, nurse aides, and medication aides. Unlicensed personnel function under the authority of licensed personnel.

(101) [(99)] Objectives--See definition of "goals."

(102) [(100)] OBRA--Omnibus Budget Reconciliation Act of 1987, which includes provisions relating to nursing home reform, as amended.

[(101) Ombudsman--An advocate who is a certified representative, staff member, or volunteer of the DADS Office of the State Long Term Care Ombudsman.]

(103) Ombudsman intern--Has the meaning given in 26 TAC §88.2 (relating to Definitions).

(104) Ombudsman Program--Has the meaning given in 26 TAC §88.2 (relating to Definitions).

(105) [(102)] Optometrist--An individual with the profession of examining the eyes for defects of refraction and prescribing lenses for correction who is licensed by the Texas Optometry Board.

(106) [(103)] Paid feeding assistant--An individual who meets the requirements of §19.1113 of this chapter (relating to Paid Feeding Assistants) and who is paid to feed residents by a facility or who is used under an arrangement with another agency or organization.

(107) [(104)] PASARR or PASRR--Preadmission Screening and Resident Review.

(108) [(105)] Palliative Plan of Care--Appropriate medical and nursing care for residents with advanced and progressive diseases for whom the focus of care is controlling pain and symptoms while maintaining optimum quality of life.

(109) [(106)] Patient care-related electrical appliance--An electrical appliance that is intended to be used for diagnostic, therapeutic, or monitoring purposes in a patient care area, as defined in Standard 99 of the National Fire Protection Association.

(110) [(107)] Person--An individual, firm, partnership, corporation, association, joint stock company, limited partnership, limited liability company, or any other legal entity, including a legal successor of those entities.

(111) [(108)] Pharmacist--An individual, licensed by the Texas State Board of Pharmacy to practice pharmacy, who prepares and dispenses medications prescribed by a practitioner.

(112) [(109)] Physical restraint--See Restraints (physical).

(113) [(110)] Physician--A doctor of medicine or osteopathy currently licensed by the Texas Medical Board.

(114) [(111)] Physician assistant (PA)--An individual who is licensed as a physician assistant under Texas Occupations Code, Chapter 204.

[(A) A graduate of a physician assistant training program who is accredited by the Committee on Allied Health Education and Accreditation of the Council on Medical Education of the American Medical Association;]

[(B) A person who has passed the examination given by the National Commission on Certification of Physician Assistants. According to federal requirements (42 CFR §491.2) a physician assistant is a person who meets the applicable state requirements governing the qualifications for assistant to primary care physicians, and who meets at least one of the following conditions:]

[(i) is currently certified by the National Commission on Certification of Physician Assistants to assist primary care physicians; or]

[(ii) has satisfactorily completed a program for preparing physician assistants that:]

[(I) was at least one academic year in length;]

[(II) consisted of supervised clinical practice and at least four months (in the aggregate) of classroom instruction directed toward preparing students to deliver health care; and]

[(III) was accredited by the American Medical Association's Committee on Allied Health Education and Accreditation; or]

[(C) A person who has satisfactorily completed a formal educational program for preparing physician assistants who does not meet the requirements of paragraph (d)(2), 42 CFR §491.2, and has been assisting primary care physicians for a total of 12 months during the 18-month period immediately preceding July 14, 1978.]

(115) [(112)] Podiatrist--A practitioner whose profession encompasses the care and treatment of feet who is licensed by the Texas State Board of Podiatric Medical Examiners.

(116) [(113)] Poison--Any substance that federal or state regulations require the manufacturer to label as a poison and is to be used externally by the consumer from the original manufacturer's container. Drugs to be taken internally that contain the manufacturer's poison label, but are dispensed by a pharmacist only by or on the prescription order of a practitioner, are not considered a poison, unless regulations specifically require poison labeling by the pharmacist.

(117) [(114)] Practitioner--A physician, podiatrist, dentist, or an advanced practice registered nurse or physician assistant to whom a physician has delegated authority to sign a prescription order, when relating to pharmacy services.

(118) Private and unimpeded access--Access to enter a facility, or communicate with a resident outside of the hearing or view of others, without interference or obstruction from facility employees, volunteers, or contractors.

(119) [(115)] PRN (pro re nata)--As needed.

(120) [(116)] Provider--The individual or legal business entity that is contractually responsible for providing Medicaid services under an agreement with DADS.

(121) [(117)] Psychoactive drugs--Drugs prescribed to control mood, mental status, or behavior.

(122) [(118)] Qualified mental health professional - community services--Has the meaning given in 25 TAC §412.303 (relating to Definitions).

(123) [(119)] Qualified surveyor--An employee of DADS who has completed state and federal training on the survey process and passed a federal standardized exam.

(124) [(120)] Quality assessment and assurance committee--A group of health care professionals in a facility who develop and implement appropriate action to identify and rectify substandard care and deficient facility practice.

(125) [(121)] Quality-of-care monitor--A registered nurse, pharmacist, or dietitian employed by DADS who is trained and experienced in long-term care facility regulation, standards of practice in long-term care, and evaluation of resident care, and functions independently of DADS Regulatory Services Division.

(126) [(122)] Quality measure report--A report that provides information derived from an MDS that provides a numeric value to quality indicators. This data is available to the public as part of the Nursing Home Quality Initiative (NHQI), and is intended to provide objective measures for consumers to make informed decisions about the quality of care in a nursing facility.

(127) [(123)] Recipient--Any individual residing in a Medicaid certified facility or a Medicaid certified distinct part of a facility whose daily vendor rate is paid by Medicaid.

(128) [(124)] Rehabilitative services--Rehabilitative therapies and devices provided to help a person regain, maintain, or prevent deterioration of a skill or function that has been acquired but then lost or impaired due to illness, injury, or disabling condition. The term includes physical and occupational therapy, speech-language pathology, and psychiatric rehabilitation services.

(129) [(125)] Reimbursement methodology--The method by which HHSC determines nursing facility per diem rates.

(130) [(126)] Remodeling--The construction, removal, or relocation of walls and partitions, the construction of foundations, floors, or ceiling-roof assemblies, the expanding or altering of safety systems (including, but not limited to, sprinkler, fire alarm, and emergency systems) or the conversion of space in a facility to a different use.

(131) [(127)] Renovation--The restoration to a former better state by cleaning, repairing, or rebuilding, including, but not limited to, routine maintenance, repairs, equipment replacement, painting.

(132) [(128)] Representative payee--A person designated by the Social Security Administration to receive and disburse benefits, act in the best interest of the beneficiary, and ensure that benefits will be used according to the beneficiary's needs.

(133) [(129)] Resident--Any individual residing in a nursing facility.

(134) [(130)] Resident group--A group or council of residents who meet regularly to:

(A) discuss and offer suggestions about the facility policies and procedures affecting residents' care, treatment, and quality of life;

(B) plan resident activities;

(C) participate in educational activities; or

(D) for any other purpose.

(135) [(131)] Responsible party--An individual authorized by the resident to act for him as an official delegate or agent. Responsible party is usually a family member or relative, but may be a legal guardian or other individual. Authorization may be in writing or may be given orally.

(136) [(132)] Restraint hold--

(A) A manual method, except for physical guidance or prompting of brief duration, used to restrict:

(i) free movement or normal functioning of all or a portion of a resident's body; or

(ii) normal access by a resident to a portion of the resident's body.

(B) Physical guidance or prompting of brief duration becomes a restraint if the resident resists the guidance or prompting.

(137) [(133)] Restraints (chemical)--Psychoactive drugs administered for the purposes of discipline, or convenience, and not required to treat the resident's medical symptoms.

(138) [(134)] Restraints (physical)--Any manual method, or physical or mechanical device, material or equipment attached, or adjacent to the resident's body, that the individual cannot remove easily which restricts freedom of movement or normal access to one's body. The term includes a restraint hold.

(139) [(135)] RN--Registered nurse. An individual currently licensed by the Texas Board of Nursing as a registered nurse.

(140) [(136)] RN assessment coordinator--A registered nurse who signs and certifies a comprehensive assessment of a resident's needs, using the RAI, including the MDS, as specified by DADS.

(141) [(137)] RUG--Resource Utilization Group. A categorization method, consisting of 34 categories based on the MDS, that is used to determine a recipient's service and care requirements and to determine the daily rate DADS pays a nursing facility for services provided to the recipient.

(142) [(138)] Secretary--Secretary of the U.S. Department of Health and Human Services.

(143) [(139)] Services required on a regular basis--Services which are provided at fixed or recurring intervals and are needed so frequently that it would be impractical to provide the services in a home or family setting. Services required on a regular basis include continuous or periodic nursing observation, assessment, and intervention in all areas of resident care.

(144) [(140)] SNF--A skilled nursing facility or distinct part of a facility that participates in the Medicare program. SNF requirements apply when a certified facility is billing Medicare for a resident's per diem rate.

(145) [(141)] Social Security Administration--Federal agency for administration of social security benefits. Local social security administration offices take applications for Medicare, assist beneficiaries file claims, and provide information about the Medicare program.

(146) [(142)] Social worker--A qualified social worker is an individual who is licensed, or provisionally licensed, by the Texas State Board of Social Work Examiners as prescribed by the Texas Occupations Code, Chapter 505, and who has at least:

(A) a bachelor's degree in social work; or

(B) similar professional qualifications, which include a minimum educational requirement of a bachelor's degree and one year experience met by employment providing social services in a health care setting.

(147) [(143)] Standards--The minimum conditions, requirements, and criteria established in this chapter with which an institution must comply to be licensed under this chapter.

(148) [(144)] State Medicaid claims administrator--The entity under contract with HHSC to process Medicaid claims in Texas.

(149) State Ombudsman--Has the meaning given in 26 TAC §88.2 (relating to Definitions).

(150) [(145)] State plan--A formal plan for the medical assistance program, submitted to CMS, in which the State of Texas agrees to administer the program in accordance with the provisions of the State Plan, the requirements of Titles XVIII and XIX, and all applicable federal regulations and other official issuances of the U.S. Department of Health and Human Services.

(151) [(146)] State survey agency--DADS is the agency, which through contractual agreement with CMS is responsible for Title XIX (Medicaid) survey and certification of nursing facilities.

(152) [(147)] Stay agreement--An agreement between a license holder and the executive commissioner that sets forth all requirements necessary to lift a stay and rescind a license revocation proposed under §19.2107 of this chapter (relating to Revocation of a License by the Executive Commissioner).

(153) [(148)] Substandard quality of care violation--One or more violations of §19.601 of this chapter (relating to Resident Behavior and Facility Practices), §19.701 of this chapter (relating to Quality of Life), or §19.901 of this chapter (relating to Quality of Care) that constitute:

(A) an immediate threat to resident health or safety;

(B) a pattern of or actual harm that is not an immediate threat; or

(C) a widespread potential for more than minimal harm, but less than an immediate threat, with no actual harm.

(154) [(149)] Supervising physician--A physician who assumes responsibility and legal liability for services rendered by a physician assistant (PA) and has been approved by the Texas Medical Board to supervise services rendered by specific PAs. A supervising physician may also be a physician who provides general supervision of an advanced practice registered nurse providing services in a nursing facility.

(155) [(150)] Supervision--General supervision, unless otherwise identified.

(156) [(151)] Supervision (direct)--Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity within his sphere of competence. If the person being supervised does not meet assistant-level qualifications specified in this chapter and in federal regulations, the supervisor must be on the premises and directly supervising.

(157) [(152)] Supervision (general)--Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity within his sphere of competence. The person being supervised must have access to the qualified person providing the supervision.

(158) [(153)] Supervision (intermittent)--Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity within his sphere of competence, with initial direction and periodic inspection of the actual act of accomplishing the function or activity. The person being supervised must have access to the qualified person providing the supervision.

(159) [(154)] Texas Register--A publication of the Texas Register Publications Section of the Office of the Secretary of State that contains emergency, proposed, withdrawn, and adopted rules issued by Texas state agencies. The Texas Register was established by the Administrative Procedure and Texas Register Act of 1975.

(160) [(155)] Therapeutic diet--A diet ordered by a physician as part of treatment for a disease or clinical condition, in order to eliminate, decrease, or increase certain substances in the diet or to provide food which has been altered to make it easier for the resident to eat.

(161) [(156)] Therapy week--A seven-day period beginning the first day rehabilitation therapy or restorative nursing care is given. All subsequent therapy weeks for a particular individual will begin on that day of the week.

(162) [(157)] Threatened violation--A situation that, unless immediate steps are taken to correct, may cause injury or harm to a resident's health and safety.

(163) [(158)] Title II--Federal Old-Age, Survivors, and Disability Insurance Benefits of the Social Security Act.

(164) [(159)] Title XVI--Supplemental Security Income (SSI) of the Social Security Act.

(165) [(160)] Title XVIII--Medicare provisions of the Social Security Act.

(166) [(161)] Title XIX--Medicaid provisions of the Social Security Act.

(167) [(162)] Total health status--Includes functional status, medical care, nursing care, nutritional status, rehabilitation and restorative potential, activities potential, cognitive status, oral health status, psychosocial status, and sensory and physical impairments.

(168) [(163)] UAR--HHSC's Utilization and Assessment Review Section.

(169) [(164)] Uniform data set--See RAI (Resident Assessment Instrument).

(170) [(165)] Universal precautions--The use of barrier and other precautions to prevent the spread of blood-borne diseases.

(171) [(166)] Unreasonable confinement--Involuntary seclusion.

(172) [(167)] Vaccine preventable diseases--The diseases included in the most current recommendations of the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention.

(173) [(168)] Vendor payment--Payment made by DADS on a daily-rate basis for services delivered to recipients in Medicaid-certified nursing facilities. Vendor payment is based on the nursing facility's approved-to-pay claim processed by the state Medicaid claims administrator. The Nursing Facility Billing Statement, subject to adjustments and corrections, is prepared from information submitted by the nursing facility, which is currently on file in the computer system as of the billing date. Vendor payment is made at periodic intervals, but not less than once per month for services rendered during the previous billing cycle.

(174) [(169)] Widespread--When the problem causing a violation is pervasive in a facility or represents systemic failure that affected or has the potential to affect a large portion or all of a facility's residents.

(175) Willfully interfere--To act or not act to intentionally prevent, interfere with, or impede or to attempt to intentionally prevent, interfere with, or impede.

(176) [(170)] Working day--Any 24-hour period, Monday through Friday, excluding state and federal holidays.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705433

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356


SUBCHAPTER E. RESIDENT RIGHTS

40 TAC §19.403, §19.413

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; and Texas Human Resources Code, §101A.051 which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC programs and services for older individuals.

The amendments implement Texas Government Code, §531.0055 and Texas Human Resources Code, §101A.051.

§19.403.Notice of Rights and Services.

(a) The facility must inform the resident, the resident's next of kin or guardian, both orally and in writing, in a language that the resident understands, of the resident's rights and all rules and regulations governing resident conduct and responsibilities during the stay in the facility. This notification must be made prior to or upon admission and during the resident's stay if changed.

(b) The facility must also inform the resident, upon admission and during the stay, in a language the resident understands, of the following:

(1) facility admission policies;

(2) a description of the protection of personal funds as described in §19.404 of this subchapter (relating to Protection of Resident Funds);

(3) the Human Resources Code, Title 6, Chapter 102; or a written list of the rights and responsibilities contained in the Human Resources Code, Title 6, Chapter 102;

(4) a written description of the services available through the [DADS Office of the State Long Term Care] Ombudsman Program. This information must be made available to each facility by the ombudsman program. Facilities are responsible for reproducing this information and making it available to residents, their families, and legal representatives;

(5) a written statement to the resident, the resident's next of kin, or guardian describing the facility's policy for:

(A) the drug testing of employees who have direct contact with residents; and

(B) the criminal history checks of employees and applicants for employment; and

(6) HHSC [DADS'] rules and the facility's policies related to the use of restraint and involuntary seclusion. This information must also be given to the resident's legally authorized representative, if the resident has one.

(c) - (i) (No change.)

(j) The facility must provide a written description of a resident's legal rights, which includes:

(1) a description of the manner of protecting personal funds, described in §19.404 of this subchapter;

(2) a posting of names, addresses, and telephone numbers of all pertinent state client advocacy groups such as HHSC [DADS], the Ombudsman Program [state ombudsman program], the protection and advocacy network, and, in Medicaid-certified facilities, the Medicaid fraud control unit; and

(3) a statement that the resident may file a complaint with HHSC [DADS] concerning resident abuse, neglect, and misappropriation of resident property in the facility.

(k) - (m) (No change.)

§19.413.Access and Visitation Rights.

(a) A resident has the right to have access to, and the facility must provide immediate access to a resident to, the following:

(1) in Medicaid-certified facilities, a representative of the Secretary of Health and Human Services;

(2) a representative of the State of Texas;

(3) the resident's individual physician;

(4) [a representative of the Office of] the State [Long Term Care] Ombudsman [(the Office), as described in §85.401(r) of this title (relating to Long-Term Care Ombudsman Program)];

(5) a certified ombudsman;

(6) [(5)] a representative of [Advocacy, Incorporated, which is responsible for] the protection and advocacy system for individuals with intellectual or developmental disabilities [developmentally disabled individuals] established under the Developmental Disabilities Assistance and Bill of Rights Act, 42 USC Chapter 144, Subchapter I, Part [part] C;

(7) [(6)] a representative of [Advocacy, Incorporated, which is responsible for] the protection and advocacy system for individuals with mental illness [mentally ill individuals] established under the Protection and Advocacy for Mentally Ill Individuals Act, 42 USC Chapter 114, Subchapter I;

(8) [(7)] subject to the resident's right to deny or withdraw consent at any time, immediate family or other relatives of the resident; and

(9) [(8)] subject to reasonable restrictions and the resident's right to deny or withdraw consent at any time, others who are visiting with the consent of the resident.

(b) A facility must provide reasonable access to a resident by any entity or individual that provides health, social, legal, or other services to the resident, subject to the resident's right to deny or withdraw consent at any time.

(c) In accordance with the Older Americans Act, §712(b)(1)(A) and 45 CFR §1324.11(e)(2), a facility must allow:

(1) the State Ombudsman, a certified ombudsman, and an ombudsman intern to have:

(A) immediate, private, and unimpeded access to enter the facility at any time during the facility's regular business hours or regular visiting hours;

(B) immediate, private, and unimpeded access to a resident; and

(C) immediate and unimpeded access to the name and contact information of a responsible party if the State Ombudsman, a certified ombudsman, or an ombudsman intern determines the information is needed to perform a function of the Ombudsman Program; and

(2) the State Ombudsman and a certified ombudsman to have immediate, private, and unimpeded access to enter the facility at a time other than regular business hours or visiting hours, if the State Ombudsman or a certified ombudsman determines access may be required by the circumstances to be investigated.

(d) A facility, in accordance with the Older American Act, §712(b)(1)(B) and 45 CFR §1324.11(e)(2), must allow the State Ombudsman and a certified ombudsman immediate access to:

(1) all files, records, and other information concerning a resident, including an incident report involving the resident, if:

(A) the State Ombudsman or certified ombudsman has the consent of the resident or legally authorized representative;

(B) the resident is unable to communicate consent to access and has no legally authorized representative; or

(C) such access is necessary to investigate a complaint and the following occurs:

(i) the resident's legally authorized representative refuses to give consent to access to the records, files and other information;

(ii) the State Ombudsman or certified ombudsman has reasonable cause to believe that the legally authorized representative is not acting in the best interest of the resident; and

(iii) if it is a certified ombudsman seeking access to the records, files, or other information, the certified ombudsman obtains the approval of the State Ombudsman to access the records, files, or other information without the legally authorized representative's consent; and

(2) the administrative records, policies, and documents of the facility to which the residents or general public have access.

(e) The rules adopted under the Health Insurance Portability and Accountability Act of 1996, 45 CFR Part 164, Subparts A and E, do not preclude a facility from releasing protected health information or other identifying information regarding a resident to the State Ombudsman or a certified ombudsman if the requirements of subsections (c)(1)(C) and (d)(1)(A), (B), or (C) of this section are met. The State Ombudsman and a certified ombudsman are each a "health oversight agency" as that phrase is defined in 45 CFR §164.501.

[(c) A facility must allow a certified ombudsman, as defined in §85.2 of this title (relating to Definitions), and a staff person of the Office access:]

[(1) to the medical and social records of a resident, including an incident report involving the resident, if the certified ombudsman or staff person of the Office has the consent of the resident or the legally authorized representative of the resident;]

[(2) to the medical and social records of a resident 60 years of age or older, including an incident report involving the resident, in accordance with the Older Americans Act, §712(b); and]

[(3) to the administrative records, policies, and documents of the facility to which the facility residents or general public have access.]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705434

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356


SUBCHAPTER F. ADMISSION, TRANSFER, AND DISCHARGE RIGHTS IN MEDICAID-CERTIFIED FACILITIES

40 TAC §19.502

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; and Texas Human Resources Code, §101A.051 which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC programs and services for older individuals.

The amendment implements Texas Government Code, §531.0055 and Texas Human Resources Code, §101A.051.

§19.502.Transfer and Discharge in Medicaid-certified Facilities.

(a) - (c) (No change.)

(d) Notice before transfer or discharge. Before a facility transfers or discharges a resident, the facility must:

(1) notify the resident and, if known, a responsible party or family or legal representative of the resident about the transfer or discharge and the reasons for the move in writing and in a language the resident understands;

(2) record the reasons in the resident's clinical record;

(3) include in the notice the items described in subsection (f) of this section; and

(4) comply with §19.2310 of this chapter (relating to Nursing Facility Ceases to Participate) when the facility voluntarily withdraws from Medicaid or Medicare or is terminated from Medicaid or Medicare participation by HHSC [DADS] or the secretary.

(e) Timing of the notice.

(1) - (3) (No change.)

(4) When an immediate involuntary transfer or discharge as specified in subsection (b)(3) or (4) of this section, is contemplated, unless the discharge is to a hospital, the facility must:

(A) immediately call the staff of the state office Consumer Rights and Services section of HHSC [DADS] to report its intention to discharge; and

(B) submit to HHSC [DADS] the required physician documentation regarding the discharge.

(f) Contents of the notice. For nursing facilities, the written notice specified in subsection (d) of this section must include the following:

(1) the reason for transfer or discharge;

(2) the effective date of transfer or discharge;

(3) the location to which the resident is transferred or discharged;

(4) a statement that the resident has the right to appeal the action as outlined in HHSC's Fair Hearings, Fraud, and Civil Rights Handbook by requesting a hearing through the Medicaid eligibility worker at the local HHSC [DADS] office within 10 days;

(5) the name, address, and telephone number of the managing local ombudsman [regional representative of the Office of the State Long Term Care Ombudsman, DADS,] and [of] the toll-free number of the [Texas Long Term Care] Ombudsman Program;[, 1-800-252-2412; and]

(6) in the case of a resident with mental illness, the address and phone number of the state mental health authority; and[, which is Texas Department of State Health Services, P. O. Box 149347, Austin, Texas 78712-9347, 1-800-252-8154; or]

(7) in the case of a resident with an intellectual or developmental disability, the authority for individuals [persons] with intellectual and developmental disabilities, [which is DADS Access and Intake Division, P.O. Box 14930, Austin, Texas 78714-9030, 1-800-458-9858,] and the phone number of the agency responsible for the protection and advocacy of individuals [persons] with intellectual and developmental disabilities[, which is: Disability Rights Texas, 2222 West Braker Lane, Austin, Texas 78758, 1-800-252-9108].

(g) Orientation for transfer or discharge. A facility must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.

(h) Notice of relocation to another room. Except in an emergency, the facility must notify the resident and either the responsible party or the family or legal representative at least five days before relocation of the resident to another room within the facility. The facility must prepare a written notice which contains:

(1) the reasons for the relocation;

(2) the effective date of the relocation; and

(3) the room to which the facility is relocating the resident.

(i) Fair hearings.

(1) Individuals who receive a discharge notice from a facility have 90 days to appeal. If the recipient appeals before the discharge date, the facility must allow the resident to remain in the facility, except in the circumstances described in subsections (b)(5) and (e)(3) of this section, until the hearing officer makes a final determination. 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 HHSC [DADS] Regulatory Services Division 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) 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 right to be discharged to the same facility. If the spouse notifies a facility, in writing, that he wishes to be discharged to another facility, the facility must discharge both spouses on the same day, pending availability of accommodations.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705435

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356


SUBCHAPTER K. NURSING SERVICES

40 TAC §19.1001

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; and Texas Human Resources Code, §101A.051 which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC programs and services for older individuals.

The amendment implements Texas Government Code, §531.0055 and Texas Human Resources Code, §101A.051.

§19.1001.Nursing Services.

(a) 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. Nursing services to children must be provided by staff who have been instructed and have demonstrated competence in the care of children. Care and services are to be provided as specified in §19.901 of this chapter (relating to Quality of Care).

(1) - (2) (No change.)

(3) Waiver of requirement to provide licensed nurses on a 24-hour basis.

(A) To the extent that a facility is unable to meet the requirements of paragraphs (1)(B) and (2)(A) of this subsection, the state may waive these requirements with respect to the facility, if:

(i) the facility demonstrates to the satisfaction of HHSC [the Texas Department of Aging and Disability Services (DADS)] that the facility has been unable, despite diligent efforts (including offering wages at the community prevailing rate for nursing facilities), to recruit appropriate personnel;

(ii) HHSC [DADS] determines that a waiver of the requirement will not endanger the health or safety of individuals staying in the facility;

(iii) the state finds that, for any periods in which licensed nursing services are not available, a registered nurse or a physician is obligated to respond immediately to telephone calls from the facility; and

(iv) the waivered facility has a full-time registered or licensed vocational nurse on the day shift seven days a week. For purposes of this requirement, the starting time for the day shift must be between 6 a.m. and 9 a.m. The facility must specify in writing the schedule that it follows.

(B) A waiver granted under the conditions listed in this paragraph is subject to annual state review.

(C) In granting or renewing a waiver, a facility may be required by the state to use other qualified, licensed personnel.

(D) The state agency granting a waiver of these requirements provides notice of the waiver to the State Ombudsman [state long term care ombudsman (established under §307(a)(12) of the Older Americans Act of 1965)] and the protection and advocacy system in the state for individuals with mental illness or individuals with intellectual or developmental disabilities [the mentally ill and mentally retarded].

(E) The nursing facility that is granted a waiver by the state notifies residents of the facility (or, when appropriate, the guardians or legal representatives of the residents) and members of their immediate families of the waiver.

(4) Waiver of the requirement to provide services of a registered nurse for more than 40 hours a week in a Medicare skilled nursing facility (SNF).

(A) The secretary of the U.S. Department of Health and Human Services (secretary) may waive the requirement that a Medicare SNF provide the services of a registered nurse for more than 40 hours a week, including a director of nursing specified in paragraph (2) of this subsection, if the secretary finds that:

(i) - (iii) (No change.)

(B) The secretary provides notice of the waiver to the State Ombudsman [state long term care ombudsman (established under §307(a)(12) of the Older Americans Act of 1965)] and the protection and advocacy system in the state for individuals with mental illness or individuals with intellectual or developmental disabilities [the mentally ill and mentally retarded].

(C) The SNF that is granted a waiver by the state notifies residents of the facility (or, when appropriate, the guardians or legal representatives of the residents) and members of their immediate families of the waiver.

(D) A waiver of the registered nurse requirement under subparagraph (A) of this paragraph is subject to annual renewal by the secretary.

(5) Request for waiver concerning staffing levels. The facility must request a waiver through the local HHSC [DADS] Regulatory Services Division, in writing, at any time the administrator determines that staffing will fall, or has fallen, below that required in paragraphs (1) and (2) of this subsection for a period of 30 days or more out of any 45 days.

(A) The following information must be included in the request/notification:

(i) - (iv) (No change.)

(B) Waivers for licensed-only or certified facilities will be granted by HHSC [DADS] Regulatory Services Division staff. Waivers for a Medicare SNF receive final approval from the Centers for Medicare and Medicaid Services.

(C) If a facility, after requesting a waiver, is later able to meet the staffing requirements of paragraphs (1) and (2) of this subsection, HHSC [DADS] Regulatory Services Division staff must be notified, in writing, of the effective date that staffing meets requirements.

(D) Verification that the facility appropriately made a request and notification will be done at the time of survey.

(E) Amounts paid to Medicaid-certified facilities in the per diem payment to meet the staffing requirements of paragraphs (1) and (2) of this subsection may be adjusted if staffing requirements are not met.

(6) Duration of waiver. Approved waivers are valid throughout the facility licensure or certification period, unless approval is withdrawn. During the relicensure or recertification survey, the determination is made for approval or denial for the next facility licensure or certification period if a waiver continues to be necessary. The facility requests a redetermination for a waiver from HHSC [DADS] Regulatory Services Division staff at the time the survey is scheduled. At other times if a request is made, HHSC [DADS] staff may schedule a visit for waiver determination.

(7) - (9) (No change.)

(b) Nurse staffing information.

(1) - (4) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705436

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356


SUBCHAPTER T. ADMINISTRATION

40 TAC §19.1923

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; and Texas Human Resources Code, §101A.051 which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC programs and services for older individuals.

The amendment implements Texas Government Code, §531.0055 and Texas Human Resources Code, §101A.051.

§19.1923.Incident or Accident Reporting.

(a) The facility must detail in the medical record every accident or incident, including allegations of mistreatment of residents by facility staff, medication errors, and drug reactions.

(b) Accidents, whether or not resulting in injury, and any unusual incidents or abnormal events including allegations of mistreatment of residents by staff or personnel or visitors, must be described in a separate administrative record and reported by the facility in accordance with the licensure Act and this section.

(1) If the incident appears to be of a serious nature, it must be investigated by or under the direction of the director of nurses, the facility administrator, or a committee charged with this responsibility.

(2) If the incident involves a resident and is serious or requires special reporting to HHSC [the Texas Department of Human Services (DHS)], the resident's responsible party and attending physician must be immediately notified.

(c) - (d) (No change.)

(e) The facility must make incident reports available for review, upon request and without prior notice, by representatives of HHSC [DHS], the U.S. Department of Health and Human Services, if applicable; and the Texas Department of Family and Protective [and Regulatory] Services. The facility must make reports [Reports] related to specific incidents [must be] available to the [designated regional staff ombudsman, Office of the] State [Long Term Care] Ombudsman and a certified ombudsman[, Texas Department of Aging].

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705437

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356


SUBCHAPTER U. INSPECTIONS, SURVEYS, AND VISITS

40 TAC §19.2002

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; and Texas Human Resources Code, §101A.051 which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC programs and services for older individuals.

The amendment implements Texas Government Code, §531.0055 and Texas Human Resources Code, §101A.051.

§19.2002.Procedural Requirements--Licensure Inspections and Surveys.

(a) HHSC [The Texas Department of Human Services (DHS)] inspection and survey personnel [will] perform inspections and surveys, follow-up visits, complaint investigations, investigations of abuse or neglect, and other contact visits from time to time as they deem appropriate or as required for carrying out the responsibilities of licensing.

(b) - (e) (No change.)

(f) Persons authorized to receive advance information on unannounced inspections include:

(1) citizen advocates invited to attend inspections, as described in subsection (g) of this section;

(2) the State Ombudsman, a certified ombudsman, and an ombudsman intern who are [representatives of the Texas Department of Aging serving as ombudsmen or] authorized to attend and [or] participate in inspections;

(3) representatives of the United States Department of Health and Human Services whose programs relate to the Medicare/Medicaid Long Term Care Program; and

(4) representatives of HHSC [the Texas Department of Human Services] whose programs relate to the Medicare/Medicaid long term care program.

(g) HHSC conducts [DHS will conduct] at least two unannounced inspections during each licensing period of each institution licensed under Health and Safety Code, Chapter 242, except as provided for in this subsection.

(1) In order to ensure continuous compliance, a sufficient number of inspections will be conducted between the hours of 5:00 p.m. and 8:00 a.m. in randomly selected institutions. This cursory after-hours inspection is [will be] conducted to verify staffing, assurance of emergency egress, resident care, medication security, food service or nourishments, sanitation, and other items as deemed appropriate. To the greatest extent feasible, any disruption of the residents is [will be] minimal.

(2) For at least two unannounced inspections each licensing period, HHSC invites [DHS will invite] to the inspections at least one person as a citizen advocate from the American Association of Retired Persons, the Texas Senior Citizen Association, the Texas Retired Federal Employees, the [Texas Department on Aging Certified Long Term Care] Ombudsman Program, or any other statewide organization for the elderly. HHSC provides [DHS will provide] to these organizations basic licensing information and requirements for the organizations' dissemination to their members whom they engage to attend the inspections. Advocates participating in the inspections must follow all protocols of HHSC [DHS ]. Advocates [will] provide their own transportation. The schedule of inspections in this category are [will be] arranged confidentially in advance with the organizations. Participation by the advocates is not a condition precedent to conducting the inspection.

(h) The facility must make all of its books, records, and other documents maintained by or on behalf of a facility accessible to HHSC [DHS] upon request.

(1) During an inspection, survey, or investigation, HHSC [DHS] is authorized to photocopy documents, photograph residents, and use any other available recordation devices to preserve all relevant evidence of conditions that HHSC [DHS] reasonably believes threaten the health and safety of a resident.

(2) Examples of records and documents which may be requested and photocopied or otherwise reproduced are resident medical records, including nursing notes, pharmacy records medication records, and physician's orders.

(3) When the facility is requested to furnish the copies, the facility may charge HHSC [DHS] at the rate not to exceed the rate charged by HHSC [DHS] for copies. The procedure of copying is [will be] the responsibility of the administrator or his designee. If copying requires the records be removed from the facility, a representative of the facility is [will be] expected to accompany the records and assure their order and preservation.

(4) HHSC protects [DHS will protect] the copies for privacy and confidentiality in accordance with recognized standards of medical records practice, applicable state laws, and department policy.

(i) HHSC provides [DHS will provide] for a special team to conduct validation surveys or verify findings of previous licensure surveys.

(1) At HHSC's [DHS's] discretion, based on record review, random sample, or any other determination, HHSC [DHS] may assign a team to conduct a validation survey. HHSC [DHS] may use the information to verify previous determinations or identify training needs to assure consistency in deficiencies cited and in punitive actions recommended throughout the state.

(2) Facilities are [will be] required to correct any additional deficiencies cited by the validation team but are [will] not [be] subject to any new or additional punitive action.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705438

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356


SUBCHAPTER V. ENFORCEMENT

DIVISION 2. LICENSING REMEDIES

40 TAC §§19.2112, 19.2114, 19.2119

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; and Texas Human Resources Code, §101A.051 which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC programs and services for older individuals.

The amendments implement Texas Government Code, §531.0055 and Texas Human Resources Code, §101A.051.

§19.2112.Administrative Penalties.

(a) HHSC [DADS] may assess an administrative penalty against a person who:

(1) violates Chapter 242, Health and Safety Code or a rule, standard or order adopted or license issued under Chapter 242;

(2) makes a false statement, that the person knows or should know is false, of a material fact:

(A) on an application for issuance or renewal of a license or in an attachment to the application; or

(B) with respect to a matter under investigation by HHSC [DADS];

(3) refuses to allow a representative of HHSC [DADS] to inspect:

(A) a book, record, or file required to be maintained by a facility; or

(B) any portion of the premises of a facility;

(4) willfully interferes with the work of, or retaliates against, a representative of HHSC [DADS] or the enforcement of this chapter;

(5) willfully interferes or retaliates against [with] a representative of HHSC [DADS] preserving evidence of a violation of a rule, standard, or order adopted or license issued under Chapter 242, Health and Safety Code;

(6) fails to pay a penalty assessed by HHSC [DADS] under Chapter 242, Health and Safety Code by the 10th day after the date the assessment of the penalty becomes final; [or]

(7) fails to notify HHSC [DADS] of a change of ownership before the effective date of the change of ownership;[.]

(8) willfully interferes with the State Ombudsman, a certified ombudsman, or an ombudsman intern performing the functions of the Ombudsman Program as described in 26 TAC §88.2 (relating to Definitions); or

(9) retaliates against the State Ombudsman, a certified ombudsman, or an ombudsman intern:

(A) with respect to a resident, employee of a facility, or other person filing a complaint with, providing information to, or otherwise cooperating with the State Ombudsman, a certified ombudsman, or an ombudsman intern; or

(B) for performing the functions of the Ombudsman Program as described in 26 TAC Chapter 88 (relating to State Long-Term Care Ombudsman Program).

(b) The persons against whom HHSC [DADS] may impose an administrative penalty include:

(1) an applicant for a license;

(2) a license holder;

(3) a partner, officer, director, or managing employee of an applicant or a license holder; and

(4) a person who controls a nursing facility.

(c) HHSC [DADS] recognizes the limited immunity from civil liability granted to volunteers serving as officers, directors or trustees of charitable organizations, under the Charitable Immunity and Liability Act of 1987 (Texas Civil Practice and Remedies Code, Chapter 84).

(d) In determining whether a violation warrants an administrative penalty, HHSC [DADS] considers the facility's history of compliance and whether:

(1) a pattern or trend of violations exists; or

(2) the violation is recurrent in nature and type; or

(3) the violation presents danger to the health and safety of at least one resident; or

(4) the violation is of a magnitude or nature that constitutes a health and safety hazard having a direct or imminent adverse effect on resident health, safety, or security, or which presents even more serious danger or harm; or

(5) the violation is of a type established elsewhere in HHSC [DADS] rules concerning licensing standards for long term care facilities.

(e) In determining the amount of the penalty, HHSC [DADS] considers at a minimum:

(1) the gradations of penalties;

(2) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and the hazard or potential hazard to the health and safety of the residents;

(3) the history of previous violations;

(4) deterrence of future violations; and

(5) efforts to correct the violation.

(f) Administrative penalties may be levied for each violation found in a single survey. Each day of a continuing violation constitutes a separate violation. The administrative penalties for each day of a continuing violation cease on the date the violation is corrected. A violation that is the subject of a penalty is presumed to continue on each successive day until it is corrected. The date of correction alleged by the facility in its written plan of correction will be presumed to be the actual date of correction unless it is later determined by HHSC [DADS] that the correction was not made by that date or was not satisfactory.

(1) (No change.)

(2) Definitions. The following terms when used in this section have the following meanings, unless the context clearly indicates otherwise.

(A) Severity.

(i) No actual harm with a potential for minimal harm is a deficiency that has the potential for causing no more than [that ] a minor negative impact on the resident(s).

(ii) No actual harm with a potential for more than minimal harm is noncompliance that results in minimal physical, mental and/or psychological discomfort to the resident and/or has the potential (not yet realized) to compromise the resident's ability to maintain and/or reach his/her highest practicable physical, mental, and/or psychosocial well-being as defined by an accurate and comprehensive resident assessment, plan of care and provision of services.

(iii) Actual harm that is not immediate jeopardy is non-compliance that results in a negative outcome that has compromised the resident's ability to maintain and/or reach his/her highest practicable physical, mental and/or psychosocial well-being as defined by an accurate and comprehensive resident assessment, plan of care and provision of services. This does not include a deficient practice that only has limited consequence for the resident and would be included in (i) or (ii) above.

(iv) Immediate jeopardy to resident health and safety is a situation in which immediate corrective action is necessary because the facility's non-compliance with one or more requirements has caused, or likely to cause, serious injury, harm, impairment or death to a resident receiving care in the facility.

(B) Scope.

(i) Isolated means one or a very limited number of residents are affected and/or one or a very limited number of staff are involved, or the situation has occurred only occasionally or in a very limited number of locations.

(ii) Pattern means more than a very limited number of residents are affected and/or more than a very limited number of staff are involved, or the situation has occurred in several locations, and/or the same residents have been affected by repeated occurrences of the same deficient practice. The effect of the deficient practice is not found to be pervasive throughout the facility.

(iii) Widespread means the problems causing the deficiencies are pervasive in the facility and/or represent systemic failure that affected or has the potential to affect a large portion or all of the facility's residents.

(g) The penalties for a violation of the requirement to post notice of the suspension of admissions, additional reporting requirements found at §19.601(a) of this chapter (relating to Resident Behavior and Facility Practice), or residents' rights cannot exceed $1,000 a day for each violation, unless the violation of a resident's right also violates a rule in Subchapter H of this chapter (relating to Quality of Life), or Subchapter J of this chapter (relating to Quality of Care).

(h) No facility will be penalized because of a physician's or consultant's nonperformance beyond the facility's control or if documentation clearly indicates the violation is beyond the facility's control.

(i) HHSC [DADS] may issue a preliminary report regarding an administrative penalty. Within 10 days of the issuance of the preliminary report, HHSC [DADS] will give the facility written notice of the recommendation for an administrative penalty. The notice will include:

(1) a brief summary of the violations;

(2) a statement of the amount of penalty recommended;

(3) a statement of whether the violation is subject to correction under §19.2114 of this subchapter (relating to Right to Correct) and if the violation is subject to correction, a statement of:

(A) the date on which the facility must file a plan of correction (POC) to be approved by HHSC [DADS]; and

(B) the date on which the POC must be completed to avoid assessment of the penalty; and

(4) a statement that the facility has a right to a hearing on the violation, the amount of the penalty, or both.

(j) Within 20 days after the date on which written notice of recommended assessment of a penalty is sent to a facility, the facility must give HHSC [DADS] written consent to the penalty, make a written request for a hearing, or if the violation is subject to correction, submit a plan of correction in accordance with §19.2114 of this subchapter (relating to Right to Correct). If the facility does not make a response within the 20-day period, HHSC [DADS] will assess the penalty.

(k) The procedures for notification of recommended assessment, opportunity for hearing, actual assessment, payment of penalty, judicial review, and remittance will be in accordance with Health and Safety Code, §§242.067 - 242.069. Hearings will be held in accordance with Health and Human Services Commission's rules at 1 TAC, Chapter 357, Subchapter I. Interest on penalties is governed by Health and Safety Code §242.069(g).

§19.2114.Right To Correct.

(a) HHSC [The Texas Department of Human Services (DHS)] may not collect an administrative penalty if, not later than the 45th day after the date the facility receives notice, the facility corrects the violation.

(b) If the facility reports to HHSC [DHS] that the violation has been corrected, HHSC inspects [DHS will inspect] the facility for the correction or takes [take] any other steps necessary to confirm that the violation has been corrected and notifies [notify] the facility that:

(1) the correction is satisfactory and a penalty is not assessed; or

(2) the correction is not satisfactory and a penalty is recommended.

(c) The facility must request a hearing on the violation no later than the 20th day after the date on which the notice is sent.

(d) Subsection (a) of this section does not apply to:

(1) [to] a violation that HHSC [DHS] determines:

(A) results in serious harm to or death of a resident;

(B) constitutes a serious threat to the health or safety of a resident; or

(C) substantially limits the facility's capacity to provide care;

(2) [to] the violations listed in §19.214(a)(2)-(6) of this title (relating to Criteria for Denying a License or Renewal of a License); [or]

(3) [to] the violation of a resident right; or[.]

(4) a violation listed in §19.2112(a)(8) or (9) of this chapter (relating to Administrative Penalties).

(e) A facility that corrects a violation under subsection (a) of this section must maintain the correction. If the facility fails to maintain the correction until the first anniversary of the date the correction was made, HHSC [DHS] may assess an administrative penalty equal to three times the amount of the original penalty assessed, but not collected. HHSC [DHS ] does not provide a facility an opportunity to correct the subsequent violation.

§19.2119.Open Hearing.

(a) HHSC holds [The Texas Department of Human Services (DHS) will hold] an open hearing in a facility if HHSC [DHS]:

(1) has taken a punitive action against the facility in the preceding 12 months; or

(2) receives a complaint that HHSC [DHS] has reasonable cause to believe is valid from the State Ombudsman, a certified ombudsman, an ombudsman intern, an [an ombudsman,] advocate, a resident, or a relative of a resident relating to a serious or potentially serious problem in the facility.

(b) Only one hearing regarding a specific facility is [will be] held each year unless HHSC [DHS ] determines that, in the interest of resident health and safety, more should be held.

(c) HHSC mails notice [Notice] of the time, date, and place of the hearing at least [will be mailed not less than] ten days before the hearing to:

(1) the facility;

(2) the designated closest living relative or legal guardian of each resident; and

(3) appropriate state and federal agencies that work with the facility.

(d) The facility is responsible for furnishing to HHSC [DHS] a listing of the name and current mailing address of each resident's designated closest living relative, legal guardian, or responsible party.

(e) HHSC [DHS] may exclude a facility's administrator and personnel from the hearing.

(f) HHSC confidentially notifies [DHS will notify, confidentially,] the complainant of the results of the investigation which followed the complaint.

(g) HHSC notifies [DHS will notify] the facility of any complaints [which are] received at the hearing and provides [provide] a summary of those complaints to the facility. HHSC does not identify [In providing this information to the facility,] the source of the complaints [will not be identified].

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705440

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356


SUBCHAPTER X. REQUIREMENTS FOR MEDICAID-CERTIFIED FACILITIES

40 TAC §19.2310

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; and Texas Human Resources Code, §101A.051 which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC programs and services for older individuals.

The amendment implements Texas Government Code, §531.0055 and Texas Human Resources Code, §101A.051.

§19.2310.Nursing Facility Ceases to Participate.

A nursing facility may voluntarily terminate or be involuntarily terminated from Medicaid participation. A facility must have policies and procedures in place to ensure that the administrator's duties and responsibilities include providing the appropriate notices in the event of a Medicaid termination.

(1) If a facility voluntarily closes and ceases providing nursing facility services, the facility must comply with this paragraph.

(A) The facility must close on the first day of a month.

(B) At least 75 days before closure, the administrator must submit to the HHSC [DADS] regional director a plan for relocation of all residents. The plan must:

(i) provide for the transfer and adequate relocation of the residents;

(ii) include assurances that residents are transferred to the most appropriate facility or other setting in terms of quality, services, and location, taking into consideration the needs, choice, and best interests of each resident; and

(iii) be revised as necessary to obtain HHSC [DADS] approval.

(C) At least 60 days before closure, the administrator must submit written notice of the closure that includes the approved closure plan and the closure date to:

(i) the secretary or the secretary's designee;

(ii) HHSC [DADS] Regulatory Services;

(iii) the State [Long-Term Care] Ombudsman;

(iv) each resident; and

(v) each resident's legal representative or responsible party.

(D) The notice to each resident and the resident's legal representative or responsible party must include the information required by §19.502(f) of this chapter (relating to Transfer and Discharge in Medicaid-certified Facilities).

(E) The facility must not admit any new residents on or after the date the written notice is submitted.

(F) The facility must have the resources to operate through the closure date.

(2) If HHSC [DADS] or CMS terminates a facility's Medicaid provider agreement, the facility must comply with this paragraph.

(A) At least 15 days before the notice date set by HHSC [DADS] or CMS, the administrator must submit to the HHSC [DADS] regional director a plan for relocation of all residents. The plan must:

(i) provide for the transfer and adequate relocation of the residents;

(ii) include assurances that residents are transferred to the most appropriate facility or other setting in terms of quality, services, and location, taking into consideration the needs, choice, and best interests of each resident; and

(iii) be revised as necessary to obtain HHSC [DADS] approval.

(B) By the date set by HHSC [DADS] or CMS, the administrator must submit written notice of the closure that includes the approved plan and the closure date to:

(i) the secretary or secretary's designee;

(ii) HHSC [DADS] Regulatory Services;

(iii) the State [Long-Term Care] Ombudsman;

(iv) each resident; and

(v) each resident's legal representative or responsible party.

(C) The notice to each resident and the resident's legal representative or responsible party must include the information required by §19.502(f) of this chapter.

(D) The facility must not admit any new residents on or after the date the notice is submitted.

(3) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705441

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356


SUBCHAPTER BB. NURSING FACILITY RESPONSIBILITIES RELATED TO PREADMISSION SCREENING AND RESIDENT REVIEW (PASRR)

DIVISION 2. NURSING FACILITY RESPONSIBILITIES

40 TAC §19.2708

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; and Texas Human Resources Code, §101A.051 which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC programs and services for older individuals.

The amendment implements Texas Government Code, §531.0055 and Texas Human Resources Code, §101A.051.

§19.2708.Educational and Informational Activities for Residents.

A nursing facility must:

(1) allow access to residents by the State Ombudsman, a certified ombudsman, an ombudsman intern, [representatives of the Office of the State Long Term Care Ombudsman] and representatives of the protection and advocacy system in the state for individuals with mental illness or individuals with intellectual or developmental disabilities [Disability Rights Texas] to educate and inform them of their rights and options related to PASRR;

(2) allow access to designated residents to support educational activities about community living options arranged by the LIDDA; and

(3) provide a designated resident with adequate notice and assistance to be prepared for and participate in scheduled community visits.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705442

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356


CHAPTER 85. IMPLEMENTATION OF THE OLDER AMERICANS ACT

As required by Texas Government Code, §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Health and Human Services Commission (HHSC) in accordance with Texas Government Code, §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously held by DADS that have transferred to HHSC. Texas Government Code, §531.0055, requires the executive commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, the executive commissioner of HHSC proposes amendments to §85.2, concerning Definitions; §85.201, concerning AAA Administrative Responsibilities; §85.501, concerning AAA Funding Allocation Formula for Older Americans Act Programs; and §85.502, concerning Unspent Award Funds; and the repeal of Subchapter E, Long-Term Care Ombudsman Program, consisting of §85.401, concerning Long-Term Care Ombudsman Program, in Chapter 85, Implementation of the Older Americans Act.

BACKGROUND AND PURPOSE

The proposed amendments and repeal remove requirements of the State Long-Term Care Ombudsman Program from Chapter 85. The deleted rules will be replaced by rules in new Title 26, Part 1, Chapter 88, State Long-Term Care Ombudsman Program, proposed elsewhere in this issue of the Texas Register.

The proposed amendments include some references to Title 26, Part 1, Chapter 88 because an area agency on aging that is part of a "host agency," as defined in Chapter 88, must comply with that chapter. The amendments also clarify that a representative of the Office of the State Long-Term Care Ombudsman is excepted from requirements regarding the reporting of allegations of abuse, neglect, and exploitation. The proposed amendments also make minor editorial changes.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §85.2 deletes the definitions of "certified ombudsman," "certified staff ombudsman," "certified volunteer ombudsman," "friendly visitor," "legally authorized representative," "local ombudsman entity," "LTC facility," "Office," "ombudsman intern," "resident," and "state long-term care ombudsman" because those terms are no longer used in Chapter 85. The proposed amendment revises the definition of "DADS" to reflect the transfer of DADS functions to HHSC, adds a definition of "HHSC," and revises the definition of "staff person" to remove the reference to an ombudsman intern.

The proposed amendment to §85.201 requires an area agency on aging (AAA), if the AAA is part of a host agency as defined in 26 TAC §88.2, to comply with Title 26, Part 1, Chapter 88, a new chapter proposed elsewhere in this issue of the Texas Register. The proposed amendment excepts a representative of the Office of the State Long-Term Care Ombudsman from the staff persons a AAA is required to instruct regarding allegations of abuse, neglect, and exploitation and from the staff persons a AAA is required to take correction action against for not properly reporting an allegation of abuse, neglect, or exploitation because the reporting requirements for a representative of the Office of the State Long-Term Care Ombudsman are addressed in Title 26, Part 1, Chapter 88. The proposed amendment also makes minor corrections.

The proposed repeal of §85.401 deletes requirements regarding the Long-Term Care Ombudsman Program because those requirements are being replaced by proposed new Title 26, Part 1, Chapter 88, State Long-Term Care Ombudsman Program.

The proposed amendment to §85.501 deletes the description of how federal funds related to the Ombudsman Program are distributed because that description is included in proposed new 26 TAC §88.105. The proposed amendment also adds a reference to 26 TAC §88.105.

The proposed amendment to §85.502 requires a AAA, if the AAA is part of a host agency as defined in 26 TAC §88.2, to comply with 26 TAC §88.406 concerning expenditure requirements for the Ombudsman Program.

FISCAL NOTE

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that, for each year of the first five years the proposed amendments and repeal are in effect, there will be no fiscal implications to state or local governments as a result of enforcing and administering the sections as proposed.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the sections will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of employee positions;

(3) implementation of the proposed rules will not require an increase or decrease in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will not create a new rule;

(6) the proposed rules will limit and repeal but will not expand an existing rule;

(7) the proposed rules will not change the number of individuals subject to the rule; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Ms. Rymal has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities because the proposed rules do not apply to small or micro-businesses, or rural communities.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are no anticipated economic costs to persons who are required to comply with the proposed rules.

There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

Texas Government Code, §2001.0045, does not apply to these proposed rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas; do not impose a cost on regulated persons; are necessary to receive a source of federal funds and to comply with federal law; and are necessary to implement state legislation that does not specifically state that §2001.0045 applies to the proposed rules.

PUBLIC BENEFIT

Patty Ducayet, State Long-Term Care Ombudsman, has determined that, for each year of the first five years the amendments and repeal are in effect, the public benefit expected as a result of enforcing the amendments and repeal is the removal of duplicative rules from the HHSC rule base.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Patty Ducayet at (512) 438-4356 in HHSC State Long-Term Care Ombudsman Program. Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 149030, Mail Code H600, Austin, Texas 78714-9030, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or e-mailed to HHSRulesCoordinationOffice@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to HHSC before 5:00 p.m. on the last working day of the comment period; or (3) emailed by midnight on the last day of the comment period. Please indicate "Comments on Proposed Rule 15R14."

SUBCHAPTER A. DEFINITIONS

40 TAC §85.2

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; and Texas Human Resources Code, §101A.051 which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC programs and services for older individuals.

The amendment implements Texas Government Code, §531.0055 and Texas Human Resources Code, §101A.051.

§85.2.Definitions.

The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.

(1) AAA--An area agency on aging (commonly referred to as a "triple A"). A public or private nonprofit agency or organization, designated by HHSC [DADS] in accordance with the Older Americans Act, §305(a)(2)(A), that develops and implements an area plan.

(2) Adult--A person who is 18 years of age or older.

(3) Alarm call--A signal transmitted from an electronic monitoring system to a service provider's response center indicating a program participant needs immediate assistance.

(4) Area plan--A plan developed and implemented by a AAA for its planning and service area that establishes a comprehensive and coordinated system of services in accordance with the Older Americans Act, §306(a).

(5) Business day--Any day except a Saturday, Sunday, or legal holiday listed in Texas Government Code, §662.021.

[(6) Certified ombudsman--A certified staff ombudsman or a certified volunteer ombudsman.]

[(7) Certified staff ombudsman--A person who:]

[(A) meets the qualifications described in §85.401(g)(1) of this chapter (relating to Long-Term Care Ombudsman Program);]

[(B) is employed by or is contracting with a AAA or nonprofit organization designated in accordance with §85.401(b) of this chapter; and]

[(C) performs activities for the AAA or designated nonprofit organization to implement the Long-Term Care Ombudsman Program.]

[(8) Certified volunteer ombudsman--A person who:]

[(A) meets the qualifications described in §85.401(g)(1) of this chapter;]

[(B) is not employed by or contracting with a AAA or nonprofit organization designated in accordance with §85.401(b) of this chapter; and]

[(C) voluntarily performs activities for the AAA or designated nonprofit organization to implement the Long-Term Care Ombudsman Program.]

(6) [(9)] Contract--A binding agreement between a AAA and a subcontractor obligating the subcontractor to take responsibility for the complete implementation and administration of a service described in this chapter, including determining which individuals are eligible to receive such a service and providing the service to such individuals.

(7) [(10)] Child--A person who is under 18 years of age.

(8) [(11)] Cost reimbursement--Payment of actual costs incurred for goods or services.

(9) [(12)] DADS--HHSC [The Department of Aging and Disability Services. DADS is the sole state agency (also referred to as the "state unit on aging") designated in accordance with the Older Americans Act, §305(a)(1)].

(10) [(13)] Day--A calendar day, unless otherwise specified.

(11) [(14)] Direct purchase--When items or services are obtained from a vendor.

(12) [(15)] Disability (except when such term is used in the phrase "severe disability")--A disability attributable to mental or physical impairment, or a combination of mental and physical impairments, that results in substantial functional limitations in one or more of the following areas of major life activity:

(A) self-care;

(B) receptive and expressive language;

(C) learning;

(D) mobility;

(E) self-direction;

(F) capacity for independent living;

(G) economic self-sufficiency;

(H) cognitive functioning; and

(I) emotional adjustment.

(13) [(16)] Electric monitoring system--The equipment used to allow a program participant to call an ERS vendor for assistance in the event of an emergency. Such equipment includes an alert bracelet or necklace that can be activated by the program participant and the signal box to receive the call from the program participant.

(14) [(17)] ERS--Emergency response services.

(15) [(18)] Federal fiscal year--A 12-month period of time beginning the 1st of October through the 30th of September.

(16) [(19)] Fixed unit rate--A negotiated cost for a service, cost per program participant, or cost per event set forth in a contract or vendor agreement, that remains the same until the contract or vendor agreement is renegotiated, regardless of the amount of services provided, the number of program participants served, or the number of events that occur.

(17) HHSC--Health and Human Services Commission. HHSC is the sole state agency (also referred to as the "state unit on aging") designated in accordance with the Older Americans Act, §305(a)(1).

[(20) Friendly visitor--A volunteer for a AAA or nonprofit organization designated in accordance with §85.401(b) of this chapter who:]

[(A) is not a certified ombudsman or ombudsman intern;]

[(B) meets the qualifications described in §85.401(g)(2) of this chapter; and]

[(C) performs activities to further the mission of the Long-Term Care Ombudsman Program such as visiting residents and coordinating social activities.]

[(21) Legally authorized representative--A person authorized by law to act on behalf of a person with regard to a matter described in this chapter, and may include:]

[(A) a parent, guardian, or managing conservator of a minor;]

[(B) the guardian of an adult;]

[(C) an agent to whom authority to make health care decisions is delegated under a medical power of attorney or durable power of attorney in accordance with state law; or]

[(D) the representative of a deceased person.]

[(22) Local ombudsman entity--A AAA or other entity designated by DADS to provide services in the Long-Term Care Ombudsman Program in accordance with the Older Americans Act, §712(a)(5)(A).]

[(23) LTC facility--Long-term care facility. A nursing facility licensed or required to be licensed in accordance with Texas Health and Safety Code, Chapter 242, and Chapter 19 of this title (relating to Nursing Facility Requirements for Licensure and Medicaid Certification) or an assisted living facility licensed or required to be licensed in accordance with Texas Health and Safety Code, Chapter 247, and Chapter 92 of this title (relating to Licensing Standards for Assisted Living Facilities).]

(18) [(24)] Means testing--Using a person's income and resource data.

[(25) Office--The Office of the State Long-Term Care Ombudsman. A division of DADS established to oversee the statewide implementation of the Long-Term Care Ombudsman Program.]

(19) [(26)] Older Americans Act--A federal law enacted to establish and fund a comprehensive service system for persons 60 years of age or older.

(20) [(27)] Older individual -- A person who is 60 years of age or older.

[(28) Ombudsman intern--A person who is being trained to be a certified volunteer ombudsman in accordance with DADS Ombudsman Certification Training Manual but has not been approved by the Office to be a certified volunteer ombudsman.]

(21) [(29)] Planning and service area--A geographical area, consisting of one or more counties, for which HHSC [DADS] designates one AAA to develop and implement an area plan.

(22) [(30)] Program participant--A person receiving a service described in this chapter.

[(31) Resident--A person who resides in an LTC facility.]

(23) [(32)] Responder--A person identified by the program participant or designated by the AAA who will respond to an alarm call by a program participant.

(24) [(33)] Service provider--A subcontractor or a vendor.

(25) [(34)] Severe disability--A severe, chronic disability attributable to mental or physical impairment, or a combination of mental and physical impairments, that:

(A) is likely to continue indefinitely; and

(B) results in substantial functional limitation in three or more of the major life activities specified in paragraph (15)(A) - (I) of this section.

(26) [(35)] Staff person--Personnel, including a full-time and part-time employee or [,] contractor, and intern [other than an ombudsman intern,] but excluding a volunteer.

(27) [(36)] Statewide carryover pool--An account established and managed by [DADS] HHSC that contains award funds not spent by a AAA at the end of a federal fiscal year as described in §85.502(c)(1)(B) of this chapter (relating to Unspent Award Funds).

[(37) State Long-Term Care Ombudsman--The person designated by DADS to be the administrator of the Office.]

(28) [(38)] Subcontractor--The party with whom a AAA enters into a contract.

(29) [(39)] System check--Activating the call button of an electronic monitoring system to test the system.

(30) [(40)] Variable unit rate--A negotiated cost for a service, cost per program participant, or cost per event set forth in a contract or vendor agreement that may change depending on the criteria and conditions set forth in the contract or vendor agreement.

(31) [(41)] Vendor agreement--A binding agreement between a AAA and a vendor obligating the vendor to provide goods or services to individuals determined eligible by the AAA for such goods or services as part of the AAA's implementation and administration of a service described in this chapter.

(32) [(42)] Vendor--The party with whom a AAA enters into a vendor agreement.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705423

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356


SUBCHAPTER C. AAA ADMINISTRATIVE REQUIREMENTS

40 TAC §85.201

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; and Texas Human Resources Code, §101A.051, which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC programs and services for older individuals.

The amendment implements Texas Government Code, §531.0055 and Texas Human Resources Code, §101A.051.

§85.201.AAA Administrative Responsibilities.

(a) Purpose. This section:

(1) establishes the responsibilities of a AAA in developing and maintaining an organized and efficient system of administration that demonstrates accountability and compliance with state and federal law and with all terms and conditions of the contract it enters into with HHSC [DADS]; and

(2) applies to a service under the Older Americans Act provided to a program participant that is funded, in whole or in part, by HHSC [DADS].

(b) Structure of a AAA.

(1) A AAA must:

(A) reflect its organizational structure through job descriptions, staffing plans, area plans, and organizational charts that demonstrate its ability to effectively administer Older Americans Act programs and other programs funded by HHSC [DADS];

(B) - (E) (No change.)

(F) comply with the Service Definitions for Area Agencies on Aging available on the HHSC website [at www.dads.state.tx.us] for all services funded by HHSC [DADS].

(2) In accordance with the Older Americans Act, §306(a)(6)(D), a AAA must establish an advisory council that:

(A) continually advises the AAA on all matters relating to the development and administration of and operations conducted under the area plan; and

(B) consists of persons who are 60 years of age or older (including minority persons and persons residing in rural areas) who are program participants or who are eligible to participate in programs under the Older Americans Act, family caregivers of such individuals, representatives of persons 60 years of age or older, service providers, representatives of the business community, local elected officials, providers of veterans' health care, if appropriate, and the general public.

(3) A AAA must ensure that its board members, employees, advisory committee members, and volunteers are not subject to a conflict of interest, as described in subparagraph (A) of this paragraph, in fact or perception, and notify HHSC [DADS] in accordance with HHSC [DADS] Program Instruction AAA- PI 500 Conflicts of Interest, when potential conflicts of interest occur.

(A) A conflict of interest includes:

(i) having a substantial financial interest, directly or indirectly, in the profits of any entity from which services or goods are contracted or otherwise procured by the AAA; and

(ii) deriving a personal profit, directly or indirectly, from any entity that would conflict in any manner or degree with the performance of responsibilities of the board member, employee, advisory committee member, or volunteer.

(B) If a AAA is part of a host agency as defined in 26 TAC §88.2 (relating to Definitions), the AAA must comply with Title 26, Part 1, Chapter 88 (relating to State Long-Term Care Ombudsman Program) [A AAA must comply with §85.401(i) of this chapter (relating to Long-Term Care Ombudsman Program)].

(C) A AAA must include a requirement in a request for proposal (RFP) for services for older persons and requests for vendor enrollment that any potential conflicts of interest be identified in the RFP or vendor enrollment response. The notification of potential conflicts of interest must include:

(i) the person and the nature for which a potential conflict of interest exists; and

(ii) the relationship to any current or former board member, current or former aging advisory committee member, or current or former employee.

(c) Compliance with laws, rules, regulations, and other requirements. A AAA must comply with applicable federal and state laws, rules, and regulations, standards, and instructions, including:

(1) - (6) (No change.)

(7) HHSC [DADS] Program Instructions.

(d) Accountability.

(1) A AAA must:

(A) maintain financial and programmatic systems capable of producing expenditure reports, cost center analyses, budgets, and state and federal reports;

(B) develop and implement written policies and procedures to back up automated information systems and continually update virus protection software to prevent the loss or corruption of program and financial data;

(C) meet programmatic and fiscal performance targets as outlined in the approved budget, as amended, within a five percent variance; and

(D) submit fiscal and programmatic reports required by HHSC [DADS] in a timely, complete, and accurate manner.

(2) A request for an extension to submit fiscal and programmatic reports must be submitted in writing to the AAA Help Desk at HHSC [DADS] on or before the date and time the reports are due.

(3) HHSC [DADS] may grant up to two requests for an extension per report per federal fiscal year. A AAA may be granted no more than a total of eight extensions per federal fiscal year. The length of an extension is negotiated, as much as possible, but HHSC [DADS] makes the final decision regarding extensions.

(4) A AAA must comply with the terms of all applicable interagency agreements, including those agreements legislatively mandated or to which HHSC [DADS] and the AAA are parties.

(e) Review of subcontractors.

(1) A AAA must review a subcontractor's programs and fiscal activities on a regular and systematic basis. Reviews must be conducted through a desk audit or by on-site review. A AAA must conduct a risk assessment annually to determine the necessity of an on-site review if it conducts an on-site review less than annually for all subcontractors.

(2) A AAA must conduct an annual customer satisfaction survey of program participants utilizing the process furnished by HHSC [DADS].

(3) A AAA must comply with the requirements specified in §81.13 of this title (relating to Compliance with Contractor Responsibilities, Rewards and Sanctions) when imposing sanctions against a subcontractor for noncompliance with a contract.

(4) A AAA may develop requirements for a subcontractor in addition to those listed in paragraphs (1) - (3) of this subsection.

(f) - (o) (No change.)

(p) Records. A AAA:

(1) must develop, maintain, and retain records in accordance with the Uniform Grant Management Standards, Subpart C;

(2) must establish written procedures to adequately ensure proper development, maintenance and retention of all financial records, supporting documents, statistical records and all other records relating to its performance;

(3) must maintain all records for a minimum of five years following the end of the federal fiscal year to which the record pertains and until any pending litigation, claim or audit findings, issuance or proposed disallowed costs or other disputes have been resolved;

(4) must maintain all records at a designated central location regardless of whether the AAA has one or multiple locations; and

(5) must give HHSC [DADS], the Comptroller General of the United States, and the State of Texas, through any authorized representatives, access to its records, including:

(A) financial records such as contracts, general ledgers, invoices, accounts payable, and accounts receivable;

(B) program participant records unless specifically prohibited by law;

(C) other documents related to HHSC [DADS] funded programs; and

(D) any other records not directly related to the AAA if the purpose of such access is to review charges to any indirect costs pool.

(q) - (s) (No change.)

(t) Visibility.

(1) A AAA must use the logo designed by HHSC [DADS] (illustrated in paragraph (2) of this subsection) to ensure a uniform, statewide symbol for AAAs.

(2) (No change.)

(u) AAA contact information.

(1) A AAA must publicize its contact information through a variety of media such as telephone directories, resource directories, the Internet, and other outreach tools for persons who reside in any geographical area that lies in whole or in part in the planning and service area served by the AAA.

(2) Contact information must begin with the words "area agency on aging" and must include the host agency, as applicable. A AAA must ensure that a telephone call to the AAA is answered "area agency on aging."

(v) Phrase for printed material. A AAA must cite HHSC [DADS] as the primary funding source using the phrase "Funded by the Texas Health and Human Services Commission [Department of Aging and Disability Services]" or "Funded in part by Texas Health and Human Services Commission [Department of Aging and Disability Services]" on all printed material.

(w) Identification of a AAA facility. A AAA must prominently display a sign outside its primary place of business that:

(1) adheres to local ordinances concerning signs; and

(2) conforms to the requirements in subsection (t) of this section.

(x) Emergency management.

(1) When a disaster occurs, a AAA must notify HHSC [DADS] of its need to provide for emergency management activities, provide information to HHSC [DADS] regarding the impact of the disaster on the older population in its service area, provide emergency management services in accordance with current Administration on Aging disaster relief guidelines, and collect pertinent data necessary to submit reimbursement requests for disaster services.

(2) A AAA must consult with the appropriate agencies that have an interest or role in meeting the needs of persons 60 years of age or older to plan for the occurrence and aftermath of natural, civil defense, or man-made disasters. To accomplish this, a AAA must:

(A) develop an emergency disaster plan in accordance with HHSC [DADS] requirements;

(B) require by contract or vendor agreement that a service provider develop plans for emergency management; and

(C) provide technical assistance as necessary to service provider staff persons regarding emergency management activities.

(y) Reporting abuse, neglect, or exploitation.

(1) A AAA must instruct its staff persons and representatives, other than a representative of the Office as defined in 26 TAC §88.2, to report allegations of abuse, neglect, or exploitation of a program participant to the Department of Family and Protective Services (DFPS) in accordance with Texas Human Resources Code, Chapter 48. A report must be made by calling 1-800-252-5400 or by following the instructions available at www.txabusehotline.org.

(2) The AAA must take appropriate corrective action if:

(A) a staff person, other than a representative of the Office as defined in 26 TAC §88.2, does not report an allegation of abuse, neglect, or exploitation of a program participant in accordance with Texas Human Resources Code, Chapter 48; or

(B) DFPS confirms abuse, neglect, or exploitation of a program participant by a staff person of the AAA.

(z) Emergency services. A AAA must instruct all of its staff persons to call 911 or another local emergency hotline for fire-fighting, police, medical, or other emergency services, as appropriate, in the event of an emergency involving a program participant.

(aa) Reporting waste, abuse, or fraud.

(1) A AAA must instruct its staff persons and representatives to report allegations of waste, abuse, or fraud, as defined in 1 TAC §371.1601 (relating to Definitions), regarding a service described in subsection (a)(2) of this section. A report must be made to:

(A) the Texas Health and Human Services Commission (HHSC), Office of the Inspector General, in accordance with the HHSC instructions available at www.hhs.state.tx.us; and

(B) HHSC [DADS] by calling 1-800-436-6184.

(2) The Office of the Inspector General investigates reports of waste, abuse, or fraud in accordance with 1 TAC, Chapter 371, Subchapter G.

(bb) Ethical conduct.

(1) A AAA must ensure that its staff persons and representatives conduct themselves in an ethical manner.

(2) A AAA staff person may not:

(A) engage in inappropriate treatment of a program participant or person seeking services;

(B) withhold or suppress a complaint or report against the AAA or HHSC [DADS];

(C) retain or distribute program participant information for personal gain;

(D) obtain a certification by fraud or deceit; or

(E) knowingly participate in the preparation of false or misleading program participant information.

(3) A AAA must instruct all staff persons and representatives to report allegations of unethical conduct, as described in paragraph (2) of this subsection, to HHSC's [DADS'] AAA Section Manager.

(cc) - (dd) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705424

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356


SUBCHAPTER E. LONG-TERM CARE OMBUDSMAN PROGRAM

40 TAC §85.401

STATUTORY AUTHORITY

The repeal is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; and Texas Human Resources Code, §101A.051 which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC programs and services for older individuals.

The repeal implements Texas Government Code, §531.0055 and Texas Human Resources Code, §101A.051.

§85.401.Long-Term Care Ombudsman Program.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705426

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356


SUBCHAPTER F. MANAGEMENT AND OVERSIGHT

40 TAC §85.501, §85.502

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; and Texas Human Resources Code, §101A.051 which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC programs and services for older individuals.

The amendments implement Texas Government Code, §531.0055 and Texas Human Resources Code, §101A.051.

§85.501.AAA Funding Allocation Formula for Older Americans Act Programs.

(a) - (f) (No change.)

(g) Allocation of Remaining Funds. All remaining funds, except the funds allocated for the Ombudsman Program as described in 26 TAC §88.105 (relating to Fiscal Management and Monitoring of a Local Ombudsman Entity) [Title VII Ombudsman Activity Grant], are allocated in accordance with the following formula of weighted factors:

(1) the total AAA region's population 60 years of age and older, weighted at 40 percent;

(2) the total AAA region's population 60 years of age and older who are minorities, weighted at 10 percent; and

(3) the total AAA region's population 60 years of age and older who are living on incomes below the poverty level, weighted at 50 percent.

[(h) Allocation of Title VII Ombudsman Activity Grant. A AAA will be allocated a base amount of $3,000. Remaining funds are allocated based on the following factors:]

[(1) the number of licensed nursing facility beds based upon the most recent DADS Long-term Care Regulatory Facility Report for the prior state fiscal year, weighted at 50 percent;]

[(2) the number of licensed assisted living facilities based upon the most recent DADS Long-term Care Regulatory Facility Report for the prior state fiscal year, weighted at 25 percent; and]

[(3) the number of certified volunteer Ombudsmen based upon the DADS Active Volunteer Ombudsman Report for the prior state fiscal year, weighted at 25 percent.]

§85.502.Unspent Award Funds.

(a) Purpose. This section describes the process for handling award funds that are not spent by a AAA at the end of a federal fiscal year, including the process for distributing funds in the statewide carryover pool.

(b) Award funds. HHSC [DADS] allocates to a AAA federal funds awarded under the Older Americans Act to spend in implementing its area plan during a federal fiscal year. These funds are referred to in this section as "award funds."

(c) Unspent award funds.

(1) If, at the end of a federal fiscal year, a AAA has unspent award funds that were received in the first six-month period of the federal fiscal year, the unspent funds are handled as follows:

(A) the AAA may spend up to five percent of the unspent award funds in the next federal fiscal year to implement its area plan; and

(B) HHSC [DADS] places any unspent award funds that are more than five percent in the statewide carryover pool.

(2) The AAA may spend any unspent award funds received in the second six-month period of the fiscal year in the next federal fiscal year to implement its area plan.

(d) Distribution of statewide carryover pool. The funds placed in the statewide carryover pool, as described in subsection (c)(1)(B) of this section, are distributed by HHSC [DADS]:

(1) in accordance with the formula described in subsection (e) of this section; and

(2) to a AAA for the fiscal year before the distribution will occur if the following criteria are met:

(A) the AAA has submitted to HHSC [DADS] all reports listed in the AAA Report Due Date Schedule by the time and date listed on such schedule or by the time and date of an extension granted by HHSC [DADS] in accordance with §85.201(d)(3) of this chapter (relating to AAA Administrative Responsibilities);

(B) as determined by HHSC [DADS], the AAA meets all performance measures set by HHSC [DADS] under the contract or is above or below such measures within five percent;

(C) HHSC [DADS] did not place unspent award funds of the AAA in the statewide carryover pool in accordance with subsection (c)(1)(B) of this section;

(D) the AAA has not had a Level Three Sanction or Level Four Sanction imposed by HHSC [DADS] in accordance with §81.13 of this title (relating to Compliance with Contractor Responsibilities, Rewards and Sanctions);

(E) if unallowable costs have been identified for the AAA in accordance with §85.202(e) of this chapter (relating to AAA Fiscal Responsibilities), the AAA has either refunded the amount of such costs to HHSC [DADS] or is current under a payment agreement approved by HHSC [DADS] to refund the amount of such costs;

(F) the AAA has met the adequate proportion requirement, which may include a waiver granted by HHSC [DADS], in accordance with §85.202(k) of this chapter; and

(G) if the AAA is part of a host agency as defined in 26 TAC §88.2 (relating to Definitions), the AAA has complied with 26 TAC §88.406 (relating to Requirements Regarding Expenditures for the Ombudsman Program) [the AAA has met the requirement of ombudsman maintenance of effort, as required by §85.401(t)(1) of this chapter (relating to Long-Term Care Ombudsman Program), unless a waiver was granted by DADS under §85.401(t)(3) of this chapter].

(e) Formula for distribution of statewide carryover pool. HHSC [DADS] distributes funds from the statewide carryover pool to AAAs that meet the criteria described in subsection (d) of this section as follows:

(1) 50 percent of the funds are distributed in equal amounts to the qualifying AAAs; and

(2) 50 percent of the funds are distributed to the qualifying AAAs in accordance with §85.501(g) and (h)(1) - (3) of this chapter (relating to the AAA Funding Allocation Formula for Older Americans Act Programs).

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705425

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356


CHAPTER 92. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES

As required by Texas Government Code, §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Health and Human Services Commission (HHSC) in accordance with Texas Government Code, §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1, govern functions previously held by DADS that have transferred to HHSC. Texas Government Code, §531.0055, requires the executive commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, the executive commissioner of HHSC proposes amendments to §92.2, concerning Definitions; §92.125, concerning Resident's Bill of Rights and Provider Bill of Rights; §92.127, concerning Required Postings; and §92.551, concerning Administrative Penalties; and the repealed and new §92.801, concerning Access to Residents and Records by the Long-Term Care Ombudsman Program, in Chapter 92, Licensing Standards for Assisted Living Facilities.

BACKGROUND AND PURPOSE

HHSC proposes changes to 40 TAC, Chapter 92, governing Assisted Living Facilities, to make HHSC rules consistent with federal rules governing the Office of the State Long-Term Care Ombudsman (the Office) by requiring nursing facilities (NFs) and assisted living facilities (ALFs) to allow the Office access to the facilities. The proposed changes will also allow HHSC to impose administrative penalties if a facility does not grant access in accordance with the rules.

SECTION-BY-SECTION SUMMARY

Proposed §92.2 adds new definitions for "Certified Ombudsman," "CFR," "Managing local ombudsman," "Ombudsman intern," "Ombudsman Program," "Private and unimpeded access," "State Ombudsman," and "Willfully interfere." Proposed §92.2 deletes the definition for "Ombudsman." Multiple definitions are amended to reflect the change from DADS or DHS to HHSC.

Proposed §92.125 and §92.127 update terms related to the Ombudsman Program.

Proposed §92.551(a)(4)-(5) adds that HHSC may assess an administrative penalty against a license holder who retaliates against a representative of HHSC completing the work required to enforce this chapter or preserving evidence of a violation or a rule, standard, or order adopted or a term of a license issued under Chapter 247, Texas Health and Safety Code.

Proposed §92.551(a)(8)-(9) adds that HHSC may assess an administrative penalty against a license holder who willfully interferes with or retaliates against the State Ombudsman, certified ombudsman or an ombudsman intern performing the functions of the Ombudsman Program as described in Title 26, Part 1, Chapter 88, relating to State Long-Term Care Ombudsman Program. Proposed §92.551(g)(2)(B) changes a cross reference to subsection (a) of this section based on the addition of paragraphs (8) and (9).

Proposed new §92.801(a) requires an ALF to provide immediate access to any resident by the State Ombudsman, certified ombudsman or an ombudsman intern. Proposed §92.801(b) outlines the assisted living facility requirements to allow access to a facility and a resident by the State Ombudsman, certified ombudsman and an ombudsman intern during regular visiting hours and for the State Ombudsman and a certified ombudsman at a time other than regular business hours to complete an investigation. Proposed §92.801(a)(c) sets forth the conditions that must be met to allow the State Ombudsman or a certified ombudsman access to all files, records and other information concerning an incident, as well as the administrative records, policies and documents available to the residents and general public. Proposed §92.801(d) adds requirements related to the release of HIPPA information to the State Ombudsman or a certified ombudsman.

FISCAL NOTE

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that, for each year of the first five years the proposed amendments, new rule, and repeal are in effect, there will be no fiscal implications to state or local governments as a result of enforcing and administering the sections as proposed.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the sections will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of employee positions;

(3) implementation of the proposed rules will not require an increase or decrease in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will not create a new rule;

(6) the proposed rules will expand an existing rule;

(7) the proposed rules will not change the number of individuals subject to the rule; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Ms. Rymal has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities because the rules do not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the rules.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are no anticipated economic costs to persons who are required to comply with the proposed rules.

There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

Texas Government Code, §2001.0045, does not apply to these proposed rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas; do not impose a cost on regulated persons; are necessary to receive a source of federal funds and to comply with federal law; and are necessary to implement state legislation that does not specifically state that §2001.0045 applies to the proposed rules.

PUBLIC BENEFIT AND COSTS

Mary T. Henderson, Associate Commissioner of HHSC Long-Term Care Regulatory, has determined that, for each year of the first five years the amendments, new rule, and repeal are in effect, the public benefit expected as a result of enforcing the amendments, new rule, and repeal is the removal of duplicative rules from the HHSC rule base.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Josie Esparza at (512) 438-4077 in HHSC Long-Term Care Regulatory Services Division. Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 149030, Mail Code H600, Austin, Texas 78714-9030, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or emailed to HHSRulesCoordinationOffice@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to HHSC before 5:00 p.m. on the last working day of the comment period; or (3) emailed by midnight on the last day of the comment period. Please indicate "Comments on Proposed Rule 16R12."

SUBCHAPTER A. INTRODUCTION

40 TAC §92.2

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; and Texas Human Resources Code, §101A.051, which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC programs and services for older individuals.

The amendment implements Texas Government Code, §531.0055, and Texas Human Resources Code, §101A.051.

§92.2.Definitions.

The following words and terms, when used in this chapter, have the following meaning, unless the context clearly indicates otherwise.

(1) - (4) (No change.)

(5) Alzheimer's Assisted Living Disclosure Statement form--The HHSC-prescribed [DADS-prescribed] form a facility uses to describe the nature of care or treatment of residents with Alzheimer's disease and related disorders.

(6) - (11) (No change.)

(12) Certified ombudsman--Has the meaning given in 26 TAC §88.2 (relating to Definitions).

(13) CFR--Code of Federal Regulations.

(14) [(12)] Change of ownership--An event that results in a change to the federal taxpayer identification number of the license holder of a facility. The substitution of a personal representative for a deceased license holder is not a change of ownership.

(15) [(13)] Commingles--The laundering of apparel or linens of two or more individuals together.

(16) [(14)] Controlling person--A person with the ability, acting alone or with others, to directly or indirectly influence, direct, or cause the direction of the management, expenditure of money, or policies of an assisted living facility or other person. A controlling person includes:

(A) a management company, landlord, or other business entity that operates or contracts with others for the operation of an assisted living facility;

(B) any person who is a controlling person of a management company or other business entity that operates an assisted living facility or that contracts with another person for the operation of an assisted living facility;

(C) an officer or director of a publicly traded corporation that is, or that controls, a facility, management company, or other business entity described in subparagraph (A) of this paragraph but does not include a shareholder or lender of the publicly traded corporation; and

(D) any other individual who, because of a personal, familial, or other relationship with the owner, manager, landlord, tenant, or provider of an assisted living facility, is in a position of actual control or authority with respect to the facility, without regard to whether the individual is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility, except an employee, lender, secured creditor, landlord, or other person who does not exercise formal or actual influence or control over the operation of an assisted living facility.

(17) [(15)] Covert electronic monitoring--The placement and use of an electronic monitoring device that is not open and obvious, and the facility and HHSC [DADS] have not been informed about the device by the resident, by a person who placed the device in the room, or by a person who uses the device.

(18) [(16)] DADS--Prior to September 1, 2017, the [The] Department of Aging and Disability Services. September 1, 2017, and after, the Texas Health and Human Services Commission (HHSC).

(19) [(17)] DHS--Formerly, this term referred to the Texas Department of Human Services; it now refers to HHSC [DADS].

(20) [(18)] Dietitian--A person who currently holds a license or provisional license issued by the Texas State Board of Examiners of Dietitians.

(21) [(19)] Direct ownership interest--Ownership of equity in the capital, stock, or profits of, or a membership interest in, an applicant or license holder.

(22) [(20)] Disclosable interest--Five percent or more direct or indirect ownership interest in an applicant or license holder.

(23) [(21)] Disclosure statement--An HHSC [A DADS] form for prospective residents or their legally authorized representatives that a facility must complete. The form contains information regarding the preadmission, admission, and discharge process; resident assessment and service plans; staffing patterns; the physical environment of the facility; resident activities; and facility services.

(24) [(22)] Electronic monitoring device--Video surveillance cameras and audio devices installed in a resident's room, designed to acquire communications or other sounds that occur in the room. An electronic, mechanical, or other device used specifically for the nonconsensual interception of wire or electronic communication is excluded from this definition.

(25) [(23)] Exploitation--

(A) for a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes, the term has the meaning in Texas Family Code §261.401(2), which is the illegal or improper use of a child or of the resources of a child for monetary or personal benefit, profit, or gain by an employee, volunteer, or other individual working under the auspices of a facility or program as further described by rule or policy; and

(B) for a person other than one described in subparagraph (A) of this paragraph, the term has the meaning in Texas Health and Safety Code §260A.001(4), which is the illegal or improper act or process of a caregiver, family member, or other individual who has an ongoing relationship with the resident using the resources of a resident for monetary or personal benefit, profit, or gain without the informed consent of the resident.

(26) [(24)] Facility--An entity required to be licensed under the Assisted Living Facility Licensing Act, Texas Health and Safety Code, Chapter 247.

(27) [(25)] Fire suppression authority--The paid or volunteer fire-fighting organization or tactical unit that is responsible for fire suppression operations and related duties once a fire incident occurs within its jurisdiction.

(28) [(26)] Flame spread--The rate of fire travel along the surface of a material. This is different than other requirements for time-rated "burn through" resistance ratings, such as one-hour rated. Flame spread ratings are Class A (0-25), Class B (26-75), and Class C (76-200).

(29) [(27)] Governmental unit--The state or any county, municipality, or other political subdivision, or any department, division, board, or other agency of any of the foregoing.

(30) [(28)] Health care professional--An individual licensed, certified, or otherwise authorized to administer health care, for profit or otherwise, in the ordinary course of business or professional practice. The term includes a physician, registered nurse, licensed vocational nurse, licensed dietitian, physical therapist, and occupational therapist.

(31) [(29)] Immediate threat--There is considered to be an immediate threat to the health or safety of a resident, or a situation is considered to put the health or safety of a resident in immediate jeopardy, if there is a situation in which an assisted living facility's noncompliance with one or more requirements of licensure has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.

(32) [(30)] Immediately available--The capacity of facility staff to immediately respond to an emergency after being notified through a communication or alarm system. The staff are to be no more than 600 feet from the farthest resident and in the facility while on duty.

(33) [(31)] Indirect ownership interest--Any ownership or membership interest in a person that has a direct ownership interest in an applicant or license holder.

(34) [(32)] Large facility--A facility licensed for 17 or more residents.

(35) [(33)] Legally authorized representative--A person authorized by law to act on behalf of a person with regard to a matter described in this chapter, and may include a parent, guardian, or managing conservator of a minor, or the guardian of an adult.

(36) [(34)] License holder--A person that holds a license to operate a facility.

(37) [(35)] Listed--Equipment, materials, or services included in a list published by an organization concerned with evaluation of products or services, that maintains periodic inspection of production of listed equipment or materials or periodic evaluation of services, and whose listing states that either the equipment, material, or service meets appropriate designated standards or has been tested and found suitable for a specified purpose. The listing organization must be acceptable to the authority having jurisdiction, including HHSC [DADS] or any other state, federal or local authority.

(38) [(36)] Local code--A model building code adopted by the local building authority where the assisted living facility is constructed or located.

(39) [(37)] Management services--Services provided under contract between the owner of a facility and a person to provide for the operation of a facility, including administration, staffing, maintenance, or delivery of resident services. Management services do not include contracts solely for maintenance, laundry, transportation, or food services.

(40) [(38)] Manager--The individual in charge of the day-to-day operation of the facility.

(41) Managing local ombudsman--Has the meaning given in 26 TAC §88.2.

(42) [(39)] Medication--

(A) Medication is any substance:

(i) recognized as a drug in the official United States Pharmacopoeia, Official Homeopathic Pharmacopoeia of the United States, Texas Drug Code Index or official National Formulary, or any supplement to any of these official documents;

(ii) intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease;

(iii) other than food intended to affect the structure or any function of the body; and

(iv) intended for use as a component of any substance specified in this definition.

(B) Medication includes both prescription and over-the-counter medication, unless otherwise specified.

(C) Medication does not include devices or their components, parts, or accessories.

(43) [(40)] Medication administration--The direct application of a medication or drug to the body of a resident by an individual legally allowed to administer medication in the state of Texas.

(44) [(41)] Medication assistance or supervision--The assistance or supervision of the medication regimen by facility staff. Refer to §92.41(j) of this chapter.

(45) [(42)] Medication (self-administration)--The capability of a resident to administer the resident's own medication or treatments without assistance from the facility staff.

(46) [(43)] Neglect--

(A) for a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes, the term has the meaning in Texas Family Code, §261.401(3), which is a negligent act or omission by an employee, volunteer, or other individual working under the auspices of a facility or program, including failure to comply with an individual treatment plan, plan of care, or individualized service plan, that causes or may cause substantial emotional harm or physical injury to, or the death of, a child served by the facility or program as further described by rule or policy; and

(B) for a person other than one described in subparagraph (A) of this paragraph, the term has the meaning in Texas Health and Safety Code §260A.001(6), which is the failure to provide for one's self the goods or services, including medical services, which are necessary to avoid physical or emotional harm or pain or the failure of a caregiver to provide such goods or services.

(47) [(44)] NFPA 101--The 2000 publication titled "NFPA 101 Life Safety Code" published by the National Fire Protection Association, Inc., 1 Batterymarch Park, Quincy, Massachusetts 02169.

(48) Ombudsman intern--Has the meaning given in 26 TAC §88.2.

(49) Ombudsman program--Has the meaning given in 26 TAC §88.2.

[(45) Ombudsman--Has the meaning given in §85.2 of this title (relating to Definitions).]

(50) [(46)] Person--Any individual, firm, partnership, corporation, association, or joint stock association, and the legal successor thereof.

(51) [(47)] Personal care services--Assistance with feeding, dressing, moving, bathing, or other personal needs or maintenance; or general supervision or oversight of the physical and mental well-being of a person who needs assistance to maintain a private and independent residence in the facility or who needs assistance to manage his or her personal life, regardless of whether a guardian has been appointed for the person.

(52) [(48)] Physician--A practitioner licensed by the Texas Medical Board.

(53) [(49)] Practitioner--An individual who is currently licensed in a state in which the individual practices as a physician, dentist, podiatrist, or a physician assistant; or a registered nurse approved by the Texas Board of Nursing to practice as an advanced practice registered nurse.

(54) Private and unimpeded access--Access to enter a facility, or communicate with a resident outside of the hearing and view of others, without interference or obstruction from facility employees, volunteers, or contractors.

(55) [(50)] Qualified medical personnel--An individual who is licensed, certified, or otherwise authorized to administer health care. The term includes a physician, registered nurse, and licensed vocational nurse.

(56) [(51)] Resident--An individual accepted for care in a facility.

(57) [(52)] Respite--The provision by a facility of room, board, and care at the level ordinarily provided for permanent residents of the facility to a person for not more than 60 days for each stay in the facility.

(58) [(53)] Restraint hold--

(A) A manual method, except for physical guidance or prompting of brief duration, used to restrict:

(i) free movement or normal functioning of all or a portion of a resident's body; or

(ii) normal access by a resident to a portion of the resident's body.

(B) Physical guidance or prompting of brief duration becomes a restraint if the resident resists the guidance or prompting.

(59) [(54)] Restraints--Chemical restraints are psychoactive drugs administered for the purposes of discipline or convenience and are not required to treat the resident's medical symptoms. Physical restraints are any manual method, or physical or mechanical device, material, or equipment attached or adjacent to the resident that restricts freedom of movement. Physical restraints include restraint holds.

(60) [(55)] Safety--Protection from injury or loss of life due to such conditions as fire, electrical hazard, unsafe building or site conditions, and the hazardous presence of toxic fumes and materials.

(61) [(56)] Seclusion--The involuntary separation of a resident from other residents and the placement of the resident alone in an area from which the resident is prevented from leaving.

(62) [(57)] Service plan--A written description of the medical care, supervision, or nonmedical care needed by a resident.

(63) [(58)] Short-term acute episode--An illness of less than 30 days duration.

(64) [(59)] Small facility--A facility licensed for 16 or fewer residents.

(65) [(60)] Staff--Employees of an assisted living facility.

(66) [(61)] Standards--The minimum conditions, requirements, and criteria established in this chapter with which a facility must comply to be licensed under this chapter.

(67) State Ombudsman--Has the meaning given in 26 TAC §88.2.

(68) [(62)] Terminal condition--A medical diagnosis, certified by a physician, of an illness that will result in death in six months or less.

(69) [(63)] Universal precautions--An approach to infection control in which blood, any body fluids visibly contaminated with blood, and all body fluids in situations where it is difficult or impossible to differentiate between body fluids are treated as if known to be infectious for HIV, hepatitis B, and other blood-borne pathogens.

(70) [(64)] Vaccine Preventable Diseases--The diseases included in the most current recommendations of the Advisory Committee on Immunization Practices of the CDC.

(71) illfully interfere--To act or not act to intentionally prevent, interfere with, or impeded or to attempt to intentionally prevent, interfere with, or impede.

(72) [(65)] Working day--Any 24-hour period, Monday through Friday, excluding state and federal holidays.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705427

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356


SUBCHAPTER G. MISCELLANEOUS PROVISIONS

40 TAC §92.125, §92.127

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; and Texas Human Resources Code, §101A.051, which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC programs and services for older individuals.

The amendments implement Texas Government Code, §531.0055, and Texas Human Resources Code, §101A.051.

§92.125.Resident's Bill of Rights and Provider Bill of Rights.

(a) Resident's bill of rights.

(1) Each assisted living facility must post the resident's bill of rights, as provided by the department, in a prominent place in the facility and written in the primary language of each resident. A copy of the Resident's Bill of Rights must be given to each resident.

(2) A resident has all the rights, benefits, responsibilities, and privileges granted by the constitution and laws of this state and the United States, except where lawfully restricted. The resident has the right to be free of interference, coercion, discrimination, and reprisal in exercising these civil rights.

(3) Each resident in the assisted living facility has the right to:

(A) - (Z) (No change.)

(AA) have access to the State Ombudsman and a certified ombudsman [service of a representative of the State Long Term Care Ombudsman Program, Texas Department on Aging]; and

(BB) execute an advance directive, under the Advance Directives Act (Chapter 166, Health and Safety Code), or designate a guardian in advance of need to make decisions regarding the resident's health care should the resident become incapacitated.

(b) Provider's bill of rights.

(1) Each assisted living facility must post a providers' bill of rights in a prominent place in the facility.

(2) The providers' bill of rights must provide that a provider of assisted living services has the right to:

(A) be shown consideration and respect that recognizes the dignity and individuality of the provider and assisted living facility;

(B) terminate a resident's contract for just cause after a written 30-day notice;

(C) terminate a contract immediately, after notice to the department, if the provider finds that a resident creates a serious or immediate threat to the health, safety, or welfare of other residents of the assisted living facility. During evening hours and on weekends or holidays, notice to HHSC [DHS] must be made to 1-800-458-9858;

(D) present grievances, file complaints, or provide information to state agencies or other persons without threat of reprisal or retaliation;

(E) refuse to perform services for the resident or the resident's family other than those contracted for by the resident and the provider;

(F) contract with the community to achieve the highest level of independence, autonomy, interaction, and services to residents;

(G) access patient information concerning a client referred to the facility, which must remain confidential as provided by law;

(H) refuse a person referred to the facility if the referral is inappropriate;

(I) maintain an environment free of weapons and drugs; and

(J) be made aware of a resident's problems, including self-abuse, violent behavior, alcoholism, or drug abuse.

§92.127.Required Postings.

An assisted living facility must prominently and conspicuously post for display in a public area of the facility that is readily available to residents, employees, and visitors:

(1) the license issued under this chapter;

(2) a sign prescribed by HHSC [DADS] that specifies complaint procedures established under these rules and specifies how complaints may be filed with HHSC [DADS];

(3) a notice in the form prescribed by HHSC [DADS] stating that inspection and related reports are available at the facility for public inspection and providing HHSC [DADS] toll-free telephone number that may be used to obtain information concerning the facility;

(4) a copy of the most recent inspection report relating to the facility;

(5) Resident Bill of Rights;

(6) Provider Bill of Rights;

(7) the telephone number of the managing local ombudsman and the toll-free number of the [Office of the State Long Term Care] Ombudsman Program, 1-800-252-2412;

(8) the facility's normal 24-hour staffing patterns; and

(9) a sign stating: "Cases of Suspected Abuse, Neglect, or Exploitation must be reported to the Texas Department of Aging and Disability Services by calling 1-800-458-9858".

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705428

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356


SUBCHAPTER H. ENFORCEMENT

DIVISION 9. ADMINISTRATIVE PENALTIES

40 TAC §92.551

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; and Texas Human Resources Code, §101A.051, which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC programs and services for older individuals.

The amendment implements Texas Government Code, §531.0055, and Texas Human Resources Code, §101A.051.

§92.551.Administrative Penalties.

(a) Assessment of an administrative penalty. HHSC [DADS] may assess an administrative penalty if a license holder:

(1) violates:

(A) Texas Health and Safety Code, Chapter 247;

(B) a rule, standard, or order adopted under Texas Health and Safety Code, Chapter 247; or

(C) a term of a license issued under Texas Health and Safety Code, Chapter 247;

(2) makes a false statement of material fact that the license holder knows or should know is false:

(A) on an application for issuance or renewal of a license;

(B) in an attachment to the application; or

(C) with respect to a matter under investigation by HHSC [DADS];

(3) refuses to allow an HHSC [a DADS] representative to inspect:

(A) a book, record, or file that a facility must maintain; or

(B) any portion of the premises of a facility;

(4) willfully interferes with the work of, or retaliates against, an HHSC [a DADS] representative or the enforcement of this chapter;

(5) willfully interferes with, or retaliates against, an HHSC [a DADS] representative preserving evidence of a violation of Texas Health and Safety Code, Chapter 247; a rule, standard, or order adopted under Texas Health and Safety Code, Chapter 247; or a term of a license issued under Texas Health and Safety Code, Chapter 247;

(6) fails to pay an administrative penalty not later than the 30th calendar day after the penalty assessment becomes final; [or]

(7) fails to notify HHSC [DADS] of a change of ownership before the effective date of the change of ownership;[.]

(8) willfully interferes with the State Ombudsman, a certified ombudsman, or an ombudsman intern performing the functions of the Ombudsman Program as described in 26 TAC Chapter 88 (relating to State Long-Term Care Ombudsman Program); or

(9) retaliates against the State Ombudsman, a certified ombudsman, or an ombudsman intern:

(A) with respect to a resident, employee of a facility, or other person filing a complaint with, providing information to, or otherwise cooperating with the State Ombudsman, a certified ombudsman, or an ombudsman intern; or

(B) for performing the functions of the Ombudsman Program as described in 26 TAC Chapter 88.

(b) Criteria for assessing an administrative penalty. HHSC [DADS] considers the following in determining the amount of an administrative penalty:

(1) - (7) (No change.)

(c) Late payment of an administrative penalty. A license holder must pay an administrative penalty within 30 calendar days after the penalty assessment becomes final. If a license holder fails to timely pay the administrative penalty, HHSC [DADS] may assess an administrative penalty under subsection (a)(6) of this section, which is in addition to the penalty that was previously assessed and not timely paid.

(d) Administrative penalty schedule. HHSC [DADS] uses the schedule of appropriate and graduated administrative penalties in this subsection to determine which violations warrant an administrative penalty.

Figure: 40 TAC §92.551(d) (.pdf)

[Figure: 40 TAC §92.551(d)]

(e) Administrative penalty assessed against a resident. HHSC [DADS] does not assess an administrative penalty against a resident, unless the resident is also an employee of the facility or a controlling person.

(f) Proposal of administrative penalties.

(1) HHSC [DADS] issues a preliminary report stating the facts on which HHSC [DADS] concludes that a violation has occurred after HHSC [DADS] has:

(A) examined the possible violation and facts surrounding the possible violation; and

(B) concluded that a violation has occurred.

(2) HHSC [DADS] may recommend in the preliminary report the assessment of an administrative penalty for each violation and the amount of the administrative penalty.

(3) HHSC [DADS] provides a written notice of the preliminary report to the license holder not later than 10 calendar days after the date on which the preliminary report is issued. The written notice includes:

(A) a brief summary of the violation;

(B) the amount of the recommended administrative penalty;

(C) a statement of whether the violation is subject to correction in accordance with subsection (g) of this section and, if the violation is subject to correction, a statement of:

(i) the date on which the license holder must file with HHSC [DADS] a plan of correction for approval by HHSC [DADS]; and

(ii) the date on which the license holder must complete the plan of correction to avoid assessment of the administrative penalty; and

(D) a statement that the license holder has a right to an administrative hearing on the occurrence of the violation, the amount of the penalty, or both.

(4) Not later than 20 calendar days after the date on which a license holder receives a written notice of the preliminary report, the license holder may:

(A) give HHSC [DADS] written consent to the preliminary report, including the recommended administrative penalty; or

(B) make a written request to the Texas Health and Human Services Commission (HHSC) for an administrative hearing.

(5) If a violation is subject to correction under subsection (g) of this section, the license holder must submit a plan of correction to HHSC [DADS] for approval not later than 10 calendar days after the date on which the license holder receives the written notice described in paragraph (3) of this subsection.

(6) If a violation is subject to correction under subsection (g) of this section, and after the license holder reports to HHSC [DADS] that the violation has been corrected, HHSC [DADS] inspects the correction or takes any other step necessary to confirm the correction and notifies the facility that:

(A) the correction is satisfactory and HHSC [DADS] will not assess an administrative penalty; or

(B) the correction is not satisfactory and a penalty is recommended.

(7) Not later than 20 calendar days after the date on which a license holder receives a notice under paragraph (6)(B) of this subsection (notice that the correction is not satisfactory and recommendation of a penalty), the license holder may:

(A) give HHSC [DADS] written consent to HHSC [DADS] report, including the recommended administrative penalty; or

(B) make a written request to HHSC for an administrative hearing.

(8) If a license holder consents to the recommended administrative penalty or does not timely respond to a notice sent under paragraph (3) of this subsection (written notice of the preliminary report) or paragraph (6)(B) of this subsection (notice that the correction is not satisfactory and recommendation of a penalty):

(A) the commissioner or the commissioner's designee assesses the recommended administrative penalty;

(B) HHSC [DADS] gives written notice of the decision to the license holder; and

(C) the license holder must pay the penalty not later than 30 calendar days after the written notice given in subparagraph (B) of this paragraph.

(g) Opportunity to correct.

(1) A license holder has an opportunity to correct a violation, except a violation described in paragraph (2) of this subsection, and to avoid paying an administrative penalty, if the license holder corrects the violation not later than 45 calendar days after the date the facility receives the written notice described in subsection (f)(3) of this section.

(2) A license holder does not have an opportunity to correct a violation:

(A) that HHSC [DADS] determines results in serious harm to or death of a resident;

(B) described by subsection (a)(2) - (9) [(7)] of this section;

(C) related to advance directives as described in §92.41(g);

(D) that is the second or subsequent violation of:

(i) a right of the same resident under §92.125 of this chapter (relating to Advance Directives); or

(ii) the same right of all residents under §92.125 of this chapter; or

(E) a violation that is written because of an inappropriately placed resident, except as described in §92.41(f) of this chapter (relating to Inappropriate Placement).

(3) Maintenance of violation correction.

(A) A license holder that corrects a violation must maintain the correction. If the license holder fails to maintain the correction until at least the first anniversary of the date the correction was made, HHSC [DADS] may assess and collect an administrative penalty for the subsequent violation.

(B) An administrative penalty assessed under this paragraph is equal to three times the amount of the original administrative penalty that was assessed but not collected.

(C) HHSC [DADS] is not required to offer the license holder an opportunity to correct the subsequent violation.

(h) Hearing on an administrative penalty. If a license holder timely requests an administrative hearing as described in subsection (f)(3) or (f)(7) of this section, the administrative hearing is held in accordance with HHSC rules at 1 TAC Chapter 357, Subchapter I (relating to Hearings under the Administrative Procedure Act).

(i) HHSC [DADS] may charge interest on an administrative penalty. The interest begins the day after the date the penalty becomes due and ends on the date the penalty is paid in accordance with Texas Health and Safety Code, §247.0455(e).

(j) Amelioration of a violation.

(1) In lieu of demanding payment of an administrative penalty, the commissioner may allow a license holder to use, under HHSC [DADS] supervision, any portion of the administrative penalty to ameliorate the violation or to improve services, other than administrative services, in the facility affected by the violation. Amelioration is an alternate form of payment of an administrative penalty, not an appeal, and does not remove a violation or an assessed administrative penalty from a facility's history.

(2) A license holder cannot ameliorate a violation that HHSC [DADS] determines constitutes immediate jeopardy to the health or safety of a resident.

(3) HHSC [DADS] offers amelioration to a license holder not later than 10 calendar days after the date a license holder receives a final notification of the recommended assessment of an administrative penalty that is sent to the license holder after an informal dispute resolution process but before an administrative hearing.

(4) A license holder to whom amelioration has been offered must:

(A) submit a plan for amelioration not later than 45 calendar days after the date the license holder receives the offer of amelioration from HHSC [DADS]; and

(B) agree to waive the license holder's right to an administrative hearing if HHSC [DADS] approves the plan for amelioration.

(5) - (6) (No change.)

(7) HHSC [DADS] may require that an amelioration plan propose changes that would result in conditions that exceed the requirements of this chapter.

(8) HHSC [DADS] approves or denies a license holder's amelioration plan not later than 45 calendar days after the date HHSC [DADS] receives the plan. If HHSC [DADS] approves the amelioration plan, any pending request the license holder has submitted for an administrative hearing must be withdrawn by the license holder.

(9) HHSC [DADS] does not offer amelioration to a license holder:

(A) more than three times in a two-year period; or

(B) more than one time in a two-year period for the same or a similar violation.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705429

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356


SUBCHAPTER I. ACCESS TO RESIDENTS AND RECORDS BY THE LONG-TERM CARE OMBUDSMAN PROGRAM

40 TAC §92.801

STATUTORY AUTHORITY

The repeal is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; and Texas Human Resources Code, §101A.051, which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC programs and services for older individuals.

The repeal implements Texas Government Code, §531.0055, and Texas Human Resources Code, §101A.051.

§92.801.Access to Residents and Records by the Long-Term Care Ombudsman Program.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705430

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356


40 TAC §92.801

STATUTORY AUTHORITY

The new rule is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; and Texas Human Resources Code, §101A.051, which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC programs and services for older individuals.

The new rule implements Texas Government Code, §531.0055, and Texas Human Resources Code, §101A.051.

§92.801.Access to Residents and Records by the State Long-Term Care Ombudsman Program.

(a) A resident has the right to be visited by the State Ombudsman, a certified ombudsman, or an ombudsman intern.

(b) In accordance with the Older Americans Act, §712(b)(1)(A), and 45 CFR §1324.11(e)(2), a facility must allow:

(1) the State Ombudsman, a certified ombudsman, and an ombudsman intern to have:

(A) immediate, private, and unimpeded access to enter the facility at any time during the facility's regular business hours or regular visiting hours;

(B) immediate, private, and unimpeded access to a resident; and

(C) immediate and unimpeded access to the name and contact information of the resident's legally authorized representative, if the State Ombudsman, a certified ombudsman, or an ombudsman intern determines the information is needed to perform a function of the Ombudsman Program; and

(2) the State Ombudsman and a certified ombudsman to have immediate, private, and unimpeded access to enter the facility at a time other than regular business hours or visiting hours, if the State Ombudsman or a certified ombudsman determines access may be required by the circumstances to be investigated.

(c) A facility, in accordance with the Older Americans Act, §712(b)(1)(B) and 45 CFR §1324.11(e)(2), must allow the State Ombudsman and a certified ombudsman to have immediate access to:

(1) all files, records, and other information concerning a resident, including an incident report involving the resident, if:

(A) the State Ombudsman or certified ombudsman has the consent of the resident or legally authorized representative;

(B) the resident is unable to communicate consent to access and has no legally authorized representative; or

(C) such access is necessary to investigate a complaint and the following occurs:

(i) the resident's legally authorized representative refuses to give consent to access to the records, files, and other information;

(ii) the State Ombudsman or certified ombudsman has reasonable cause to believe that the legally authorized representative is not acting in the best interests of the resident; and

(iii) if it is the certified ombudsman seeking access to the records, files, or other information, the certified ombudsman obtains the approval of the State Ombudsman to access the records, files, or other information without the legally authorized representative's consent; and

(2) the administrative records, policies, and documents of the facility to which the residents or general public have access.

(d) The rules adopted under the Health Insurance Portability and Accountability Act of 1996, 45 CFR part 164, subparts A and E, do not preclude a facility from releasing protected health information or other identifying information regarding a resident to the State Ombudsman or a certified ombudsman if the requirements of subsections (b)(1)(C) and (c)(1) of this section are otherwise met. The State Ombudsman and a certified ombudsman are each a "health oversight agency" as that phrase is defined in 45 CFR §164.501.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705431

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356