TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

CHAPTER 15. LICENSING STANDARDS FOR PRESCRIBED PEDIATRIC EXTENDED CARE CENTERS

The Texas Health and Human Services Commission (HHSC) adopts amended §15.5, concerning Definitions; amended §15.108, concerning Change of Ownership License Application Procedures and Issuance; and the repeal of §15.107, concerning Change of Ownership, in Chapter 15, Licensing Standards for Prescribed Pediatric Extended Care Centers. The amendment of §15.5 is adopted with changes to the proposed text as published in the April 7, 2017, issue of the Texas Register (42 TexReg 1846) and will be published. The amendment to §15.108 and the repeal of §15.107 are adopted without changes and will not be republished.

BACKGROUND AND JUSTIFICATION

The adopted rules revise change of ownership requirements for a prescribed pediatric extended care center (PPECC) license holder. Under the adopted rules, a change of ownership occurs when the federal taxpayer identification number of a license holder changes. When this occurs, the license holder will be required to apply for a new license. If the ownership structure of the license holder changes but the license holder is the same legal entity, as evidenced by having the same federal tax identification number, the license holder will not be required to apply for a new license. Changes in ownership structure must be reported to HHSC under other existing rules. The adopted rules also add definitions for terms related to a change of ownership and ownership interests.

The adopted rules allow HHSC to conduct a desk review instead of an on-site health survey if the applicant for a license resulting from a change of ownership meets certain requirements.

A change was made in §15.5, concerning Definitions, to the definition of "change of ownership" to clarify that any event that results in a change to the federal taxpayer identification number of the license holder of a PPECC is considered a change of ownership.

COMMENTS

The 30 day comment period ended May 7, 2017.

During this period, HHSC did not receive any comments regarding adoption of the amendments and repeal.

SUBCHAPTER A. PURPOSE, SCOPE, LIMITATIONS, COMPLIANCE, AND DEFINITIONS

40 TAC §15.5

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code, §531.0055, which requires that the HHSC executive commissioner shall adopt rules for the operation and provision of health and human services; and Texas Health and Safety Code, §248A.101, which requires the HHSC executive commissioner to adopt rules governing the licensure of prescribed pediatric extended care centers.

§15.5.Definitions.

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

(1) Active Play--Any physical activity from which a minor derives amusement, entertainment, enjoyment, or satisfaction by taking a participatory rather than a passive role. Active play includes various forms of activities, from the exploration of objects and toys to the structured play of formal games, sports, and hobbies.

(2) Actual census--The number of minors at a center at any given time.

(3) Administration of medication--The direct application of a medication to the body of a minor by any route. This includes removing an individual or unit dose from a previously dispensed, correctly labeled container, verifying it with the medication order, giving the correct medication and the correct dose to the correct minor at the correct time by the correct route, and accurately recording the time and dose given.

(4) Administrator--The person who is responsible for implementing and supervising the administrative polices and operations of a center and for administratively supervising the provision of services to minors and their parents on a day-to-day basis.

(5) Adult minor--A minor who is 18 years of age or older or is emancipated, and has not been adjudged incompetent.

(6) Affiliate--With respect to an applicant or license holder that is:

(A) a corporation--means an officer, director, or stockholder with direct ownership or disclosable interest of at least five percent, a subsidiary, or a parent company;

(B) a limited liability company--means an officer, member, or parent company;

(C) an individual--means:

(i) the individual's spouse;

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

(iii) each corporation in which an individual is an officer, director, or stockholder with a direct ownership of at least five percent;

(D) a partnership--means a partner or a parent company of the partnership; and

(E) a group of co-owners under any other business arrangement means an officer, director, or the equivalent under the specific business arrangement or a parent company.

(7) Applicant--A person who applies for a license to operate a center under THSC Chapter 248A and this chapter. The applicant is the person in whose name DADS issues the license.

(8) Audiologist--A person who has a valid license under Texas Occupations Code, Chapter 401, as an audiologist.

(9) Basic services--Include:

(A) the development, implementation, and monitoring of a comprehensive protocol of care that:

(i) is provided to a medically dependent or technologically dependent minor;

(ii) is developed in conjunction with the minor's parent; and

(iii) specifies the medical, nursing, psychosocial, therapeutic, and developmental services required by the minor; and

(B) the caregiver training needs of a medically dependent or technologically dependent minor's parent.

(10) Behavioral emergency--A situation that occurs after which preventative, or de-escalating techniques are attempted and determined to be ineffective and it is immediately necessary to restrain a minor to prevent immediate probable death or substantial bodily harm to the minor or to others because the minor is attempting serious bodily harm or immediate physical harm to the minor or to others.

(11) Business day--Any day except a national or state holiday listed in Texas Government Code §662.003(a) or (b). The term includes Saturday or Sunday if the center is open on that day.

(12) Center--A prescribed pediatric extended care center. A facility operated for profit or on a nonprofit basis that provides nonresidential basic services to four or more medically dependent or technologically dependent minors who require the services of the facility and who are not related by blood, marriage, or adoption to the owner or operator of the facility.

(13) 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.

(14) Chemical restraint--The use of any chemical, including pharmaceuticals, through topical application, oral administration, injection, or other means, to restrict the free movement of all or a portion of a minor's body for the purpose of modifying or controlling the minor's behavior and which is not a standard treatment for a minor's medical or psychosocial condition.

(15) Chief financial officer--An individual who is responsible for supervising and managing all financial activities for a center.

(16) Clinical note--A notation of a contact with a minor or a minor's family member that is written and dated by any staff providing services on behalf of a center and that describes signs and symptoms of the minor, and treatments and medications administered to the minor, including the minor's reaction or response, and any changes in physical, emotional, psychosocial, or spiritual condition of the minor during a given period of time.

(17) Commission--The Texas Health and Human Services Commission.

(18) Commissioner--The commissioner of DADS.

(19) Community disaster resources--A local, statewide, or nationwide emergency system that provides information and resources during a disaster, including weather information, transportation, evacuation and shelter information, disaster assistance and recovery efforts, evacuee and disaster victim resources, and resources for locating evacuated friends and relatives.

(20) Complaint--An allegation against a center or involving services provided at a center that involves a violation of this chapter or THSC Chapter 248A.

(21) Continuous face-to-face observation--Maintaining an in-person line of sight of a minor that is uninterrupted and free from distraction.

(22) Contractor--An individual providing services ordered by a prescribing physician on behalf of a center that the center would otherwise provide by its employees.

(23) Controlling person--A person who has the ability, acting alone or in concert with others, to directly or indirectly influence, direct, or cause the direction of the management of, expenditure of money for, or policies of a center or other person.

(A) A controlling person includes:

(i) a management company, landlord, or other business entity that operates or contracts with another person for the operation of a center;

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

(iii) any other person who, because of a personal, familial, or other relationship with the owner, manager, landlord, tenant, or provider of a center, is in a position of actual control of or authority with respect to the center, regardless of whether the person is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the center.

(B) Notwithstanding any other provision of this paragraph, a controlling person of a center or of a management company or other business entity described by subparagraph (A)(i) of this paragraph that is a publicly traded corporation or is controlled by a publicly traded corporation means an officer or director of the corporation. The term does not include a shareholder or lender of the publicly traded corporation.

(C) A controlling person described by subparagraph (A)(iii) of this paragraph does not include a person, including an employee, lender, secured creditor, or landlord, who does not exercise any formal or actual influence or control over the operation of the center.

(24) Conviction--An adjudication of guilt based on a finding of guilt, a plea of guilty, or a plea of nolo contendere.

(25) DADS--Department of Aging and Disability Services or its successor agency.

(26) Daily census--The number of minors served at a center during a center's hours of operation for a 24-hour period, starting at midnight.

(27) Day--A calendar day, unless otherwise specified in the text. A calendar day includes Saturday, Sunday, and a holiday.

(28) Dietitian--A person who has a valid license under the Licensed Dietitian Act, Texas Occupations Code, Chapter 701, as a licensed dietitian or provisional licensed dietitian, or who is registered as a dietitian by the Commission on Dietetic Registration of the American Dietetic Association.

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

(30) Disclosable interest--Five percent or more direct or indirect ownership interest in an applicant or license holder.

(31) Emergency situation--An impending or actual situation that:

(A) interferes with normal activities of a center or minors at a center;

(B) may:

(i) cause injury or death to a minor or individual at the center; or

(ii) cause damage to the center's property;

(C) requires the center to respond immediately to mitigate or avoid injury, death, damage, or interference; and

(D) does not include a situation that arises from the medical condition of a minor such as cardiac arrest, obstructed airway, or cerebrovascular accident.

(32) Executive commissioner--The executive commissioner of the Texas Health and Human Services Commission.

(33) Functional assessment--An evaluation of a minor's abilities, wants, interests, and needs related to self-care, communication skills, social skills, motor skills, play with toys or objects, growth, and development appropriate for age.

(34) Health care provider--An individual or facility licensed, certified, or otherwise authorized to administer health care in the ordinary course of business or professional practice.

(35) Health care setting--A location at which licensed, certified, or otherwise regulated health care is administered.

(36) IDT--Interdisciplinary team. Individuals who work together to meet the medical, nursing, psychosocial, and developmental needs of a minor and a minor's parent's training needs.

(37) Inactive medical record--A record for a minor who was admitted by a center to receive services and was subsequently discharged by the center.

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

(39) Inspection--An on-site examination or audit of a center by DADS to determine compliance with THSC Chapter 248A and this chapter.

(40) Isolation--The involuntary confinement of a minor in a room of a center for the purposes of infection control, assessment, and observation away from other minors in a room at the center. When in isolation, a minor is physically prevented from contact with other minors.

(41) Joint training--Training provided by DADS to service providers and DADS inspectors on subjects that address the 10 most commonly cited violations of state law governing centers, as published in DADS annual reports. DADS determines the frequency of joint training.

(42) License--A license to operate a center issued by DADS under THSC Chapter 248A and this chapter. The term includes initial, renewal, and temporary licenses unless specifically stated otherwise.

(43) Licensed assistant in speech-language pathology--A person who has a valid license under Texas Occupations Code, Chapter 401, as a licensed assistant in speech-language pathology and who provides speech language support services under the supervision of a licensed speech-language pathologist.

(44) License holder--A person that holds a license to operate a center under THSC Chapter 248A and this chapter.

(45) Licensed vocational nurse--LVN. A person who has a valid license under Texas Occupations Code, Chapter 301, as a licensed vocational nurse.

(46) Life Safety Code--A publication of the National Fire Protection Association (NFPA), also known as NFPA 101, 2000 edition.

(47) Local emergency management agencies--The local emergency management coordinator, fire, police, and emergency medical services.

(48) Local emergency management coordinator--The person identified as the emergency management coordinator by the mayor or county judge for the geographical area in which a center is located.

(49) Mechanical restraint--The use of any mechanical device, material, or equipment to restrict the free movement of all or a portion of a minor's body for the purpose of modifying or controlling the minor's behavior.

(50) Medical director--A physician who has the qualifications described in §15.307 of this chapter (relating to Medical Director Qualifications and Conditions) and has the responsibilities described in §15.308 of this chapter (relating to Medical Director Responsibilities).

(51) Medical record--A record composed first-hand for a minor who has or is receiving services at a center.

(52) Medically dependent or technologically dependent--The condition of an individual who, because of an acute, chronic, or intermittent medically complex or fragile condition or disability, requires ongoing, technology-based skilled nursing care prescribed by a physician to avert death or further disability, or the routine use of a medical device to compensate for a deficit in a life-sustaining body function. The term does not include a controlled or occasional medical condition that does not require continuous nursing care, including asthma or diabetes, or a condition that requires an epinephrine injection.

(53) Medication administration record--A record used to document the administration of a minor's medications and pharmaceuticals.

(54) Medication list--A list that includes all prescriptions, over-the-counter pharmaceuticals, and supplements that a minor is prescribed or taking, including the dosage, preparation, frequency, and the method of administration.

(55) Minor--An individual younger than 21 years of age who is medically dependent or technologically dependent.

(56) Mitigation--An action taken to eliminate or reduce the probability of an emergency or public health emergency, or reduce an emergency's severity or consequences.

(57) Nursing director--The individual responsible for supervising skilled services provided at a center and who has the qualifications described in §15.309 of this chapter (relating to the Nursing Director and Alternate Nursing Director Qualifications and Conditions).

(58) Nutritional counseling--Advising and assisting an adult minor or a minor's parent or family on appropriate nutritional intake by integrating information from a nutrition assessment with information on food and other sources of nutrients and meal preparation consistent with cultural background and socioeconomic status, with the goal being health promotion, disease prevention, and nutrition education. The term includes:

(A) dialogue with an adult minor or a minor's parent to discuss current eating habits, exercise habits, food budget, and problems with food preparation;

(B) discussion of dietary needs to help an adult minor or the minor's parent understand why certain foods should be included or excluded from the minor's diet and to help with adjustment to the new or revised or existing diet plan;

(C) a personalized written diet plan as ordered by the minor's physician, to include instructions for implementation;

(D) providing the adult minor or the minor's parent with motivation to help them understand and appreciate the importance of the diet plan in getting and staying healthy; or

(E) working with the adult minor or the minor's parent by recommending ideas for meal planning, food budget planning, and appropriate food gifts.

(59) Occupational therapist--A person who has a valid license under Texas Occupations Code, Chapter 454, as an occupational therapist.

(60) Occupational therapy assistant--A person who has a valid license under Texas Occupations Code, Chapter 454, as an occupational therapy assistant who assists in the practice of occupational therapy under the general supervision of an occupational therapist.

(61) Operating hours--The days of the week and the hours of day a center is open for services to a minor as identified in a center's written policy as required by §15.201 of this chapter (relating to Operating Hours).

(62) Overnight--The hours between 9:00 p.m. and 5:00 a.m. during the days of the week a center operates.

(63) Over-the-counter pharmaceuticals--A drug or formulary for which a physician's prescription is not needed for purchase or administration.

(64) Parent--A person authorized by law to act on behalf of a minor with regard to a matter described in this chapter. The term includes:

(A) a biological, adoptive, or foster parent;

(B) a guardian;

(C) a managing conservator; and

(D) a non-parent decision-maker as authorized by Texas Family Code §32.001.

(65) Parent company--A person, other than an individual, who has a direct 100 percent ownership interest in the owner of a center.

(66) Person--An individual, firm, partnership, corporation, association, or joint stock association, and the legal successor thereof.

(67) Personal care services--Services required by a minor, including:

(A) bathing;

(B) maintaining personal hygiene;

(C) routine hair and skin care;

(D) grooming;

(E) dressing;

(F) feeding;

(G) eating;

(H) toileting;

(I) maintaining continence;

(J) positioning;

(K) mobility and bed mobility;

(L) transfer and ambulation;

(M) range of motion;

(N) exercise; and

(O) use of durable medical equipment.

(68) Pharmaceuticals--Of or pertaining to drugs, including over-the-counter drugs and those requiring a physician's prescription for purchase or administration.

(69) Pharmacist--A person who is licensed to practice pharmacy under Texas Occupations Code, Chapter 558.

(70) Pharmacy--A facility at which a prescription drug or medication order is received, processed, or dispensed as defined in Texas Occupations Code §551.003.

(71) Physical restraint--The use of physical force, except for physical guidance or prompting of brief duration, that restricts the free movement of all or a portion of a minor's body for the purpose of modifying or controlling the minor's behavior.

(72) Physical therapist--A person who has a valid license under Texas Occupations Code, Chapter 453, as a physical therapist.

(73) Physical therapist assistant--A person who has a valid license under Texas Occupations Code, Chapter 453, as a physical therapist assistant and:

(A) who assists and is supervised by a physical therapist in the practice of physical therapy; and

(B) whose activities require an understanding of physical therapy.

(74) Physician--A person who:

(A) has a valid license in Texas to practice medicine or osteopathy in accordance with Texas Occupations Code, Chapter 155;

(B) has a valid license in Arkansas, Louisiana, New Mexico, or Oklahoma to practice medicine, who is the treating physician of a minor, and orders services for the minor, in accordance with Texas Occupations Code, Chapter 151; or

(C) is a commissioned or contract physician or surgeon who serves in the United States uniformed services or Public Health Service if the person is not engaged in private practice, in accordance with Texas Occupations Code, Chapter 151.

(75) Place of business--An office of a center where medical records are maintained and from which services are directed.

(76) Plan of care--A protocol of care.

(77) Positive intervention--An intervention that is based on or uses a minor's preferences as positive reinforcement, and focuses on positive outcomes and wellness for the minor.

(78) Pre-licensing program training--Computer-based training, available on DADS website, designed to acquaint center staff with licensure standards.

(79) Preparedness--Actions taken in anticipation of a disaster including a public health disaster.

(80) Prescribing physician--A physician who is authorized to write and issue orders for services at a center.

(81) Progress note--A dated and signed written notation summarizing facts about services provided to a minor and the minor's response during a given period of time.

(82) Protective device--A mechanism or treatment, including sedation, that is:

(A) used:

(i) for body positioning;

(ii) to immobilize a minor during a medical, dental, diagnostic, or nursing procedure;

(iii) to permit wounds to heal; or

(iv) for a medical condition diagnosed by a physician; and

(B) not used as a restraint to modify or control behavior.

(83) Protocol of care--A comprehensive, interdisciplinary plan of care that includes the medical physician's plan of care, nursing care plan and protocols, psychosocial needs, and therapeutic and developmental service needs required by a minor and family served.

(84) Psychologist--A person who has a valid license under Texas Occupations Code, Chapter 501, as a psychologist.

(85) Psychosocial treatment--The provision of skilled services to a minor under the direction of a physician that includes one or more of the following:

(A) assessment of alterations in mental status or evidence of suicide ideation or tendencies;

(B) teaching coping mechanisms or skills;

(C) counseling activities; or

(D) evaluation of a plan of care.

(86) Public health disaster declaration--A governor's announcement based on a determination by the Department of State Health Services that there exists an immediate threat from a communicable disease that:

(A) poses a high risk of death or serious long-term disability to a large number of people; and

(B) creates a substantial risk of public exposure because of the disease's high level of contagion or the method by which the disease is transmitted.

(87) Quiet time--A behavior management technique used to provide a minor with an opportunity to regain self-control, where the minor enters and remains for a limited period of time in a designated area from which egress is not prevented.

(88) Recovery--Activities implemented during and after a disaster response, including a public health disaster response, designed to return a center to its normal operations as quickly as possible.

(89) Registered nurse--RN. A person who has a valid license under Texas Occupations Code, Chapter 301, to practice professional nursing.

(90) Relocation--The closing of a center and the movement of its business operations to another location.

(91) Respiratory therapist--A person who has a valid license under Texas Occupations Code, Chapter 604, as a respiratory care practitioner.

(92) Response--Actions taken immediately before an impending disaster or during and after a disaster, including a public health disaster, to address the immediate and short-term effects of the disaster.

(93) Restraint--Physical restraint, chemical restraint, or mechanical restraint.

(94) RN delegation--Delegation of tasks by an RN in accordance with 22 TAC Chapter 224 (relating to Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel for Clients with Acute Conditions or in Acute Care Environments).

(95) Sedation--The act of allaying nervous excitement by administering medication that commonly induces the nervous system to calm. Sedation is a protective device.

(96) Social worker--A person who has a valid license under Texas Occupations Code, Chapter 505, as a social worker.

(97) Speech-language pathologist--A person who has a valid license under Texas Occupations Code, Chapter 401, as a speech-language pathologist.

(98) Substantial compliance--A finding in which a center receives no recommendation for enforcement action after an inspection.

(99) Supervision--Authoritative procedural guidance by a qualified person that instructs another person and assists in accomplishing a function or activity. Supervision includes initial direction and periodic inspection of the actual act of accomplishing the function or activity.

(100) Support services--Social, spiritual, and emotional care provided to a minor and a minor's parent by a center.

(101) THSC--Texas Health and Safety Code.

(102) Total census--The total number of minors with active plans of care at a center.

(103) Transition support--Planning, coordination, and assistance to move the location of services provided to a minor from a center to the least restrictive setting appropriate.

(104) Violation--A finding of noncompliance with this chapter or THSC Chapter 248A resulting from an inspection.

(105) Volunteer--An individual who provides assistance to a center without compensation other than reimbursement for actual expenses.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 21, 2017.

TRD-201703714

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Effective date: October 11, 2017

Proposal publication date: April 7, 2017

For further information, please call: (512) 438-5502


SUBCHAPTER B. LICENSING APPLICATION, MAINTENANCE, AND FEES

40 TAC §15.107

The repeal is adopted under Texas Government Code, §531.0055, which requires that the HHSC executive commissioner shall adopt rules for the operation and provision of health and human services; and Texas Health and Safety Code, §248A.101, which requires the HHSC executive commissioner to adopt rules governing the licensure of prescribed pediatric extended care centers.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 21, 2017.

TRD-201703715

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Effective date: October 11, 2017

Proposal publication date: April 7, 2017

For further information, please call: (512) 438-5502


40 TAC §15.108

The amendment is adopted under Texas Government Code, §531.0055, which requires that the HHSC executive commissioner shall adopt rules for the operation and provision of health and human services; and Texas Health and Safety Code, §248A.101, which requires the HHSC executive commissioner to adopt rules governing the licensure of prescribed pediatric extended care centers.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 21, 2017.

TRD-201703716

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Effective date: October 11, 2017

Proposal publication date: April 7, 2017

For further information, please call: (512) 438-5502


CHAPTER 19. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION

The Texas Health and Human Services Commission (HHSC) adopts amendments to §19.101, concerning Definitions; and §19.210, concerning Change of Ownership License, in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification. The amendment to §19.210 is adopted without changes. The amendment to §19.101 is adopted with changes to the proposed text as published in the April 7, 2017, issue of the Texas Register (42 TexReg 1851).

BACKGROUND AND JUSTIFICATION

The adopted rules revise the definitions and rules regarding a change of ownership to simplify the process for determining when a nursing facility (NF) is required to obtain a new license as a result of a change of ownership. Under the adopted rules, a change of ownership occurs when the federal taxpayer identification number of a license holder changes. When this occurs, a license holder is required to apply for a new license. If the ownership structure of the license holder changes but the license holder is the same legal entity, as evidenced by having the same federal tax identification number, the license holder is not required to apply for a new license. Changes in ownership structure must be reported to DADS under other existing rules.

A change was made in §19.101, concerning Definitions, to the definition of "change of ownership" to clarify that any event that results in a change to the federal taxpayer identification number of the license holder of a NF is considered a change of ownership.

COMMENTS

The 30-day comment period ended May 7, 2017.

During this period, HHSC received comments regarding the proposed rules from one commenter, the Coalition for Nurses in Advanced Practice. A summary of the comments and HHSC's responses follows.

Comment: Regarding the proposed amendment to §19.101, Definitions, the commenter noted that the definition of "nurse practitioner" (NP) incorrectly implies that a nurse practitioner is the only type of advanced practice registered nurse (APRN), and that this can lead to confusion since other types of APRNs may also provide services in nursing facilities. The commenter requested a change in the definition of "nurse practitioner" from "an advanced practice registered nurse" to "one type of advance practice registered nurse."

Response: No change was made in response to this comment as the term "nurse practitioner" was not related to the rule changes that were proposed. HHSC will consider this change in future rule amendments.

Comment: Regarding §19.101, Definitions, the commenter suggested amending the definition of "therapeutic diet" to provide that the term includes a diet ordered by a clinical nurse specialist, nurse practitioner, physician assistant, or dietician, if the task of ordering a diet is delegated to one of those professionals by a resident's attending physician.

Response: Physicians are permitted to delegate tasks to certain health care professionals in accordance with 42 CFR §483.30(e). In addition, Texas Health and Safety Code §242.151(b) allows an APRN or a physician assistant to perform certain responsibilities of an attending physician pursuant to protocols developed with the physician. Texas Occupations Code, Chapter 157 also authorizes a physician to delegate medical actions to another person under certain circumstances. Therefore, HHSC has concluded it is not necessary to specify in rule that a physician may delegate specific responsibilities. No change was made in response to the comment.

SUBCHAPTER B. DEFINITIONS

40 TAC §19.101

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code, §531.0055, which requires the HHSC executive commissioner to adopt rules for the operation and provision of services by the health and human services agencies; and Texas Health and Safety Code, Chapter 242.033, which requires HHSC to license nursing facilities.

§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) 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.

(20) CFR--Code of Federal Regulations.

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

(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.

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

(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).

(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.

(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.

(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.

(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.

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

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

(31) Dentist--A practitioner licensed by the Texas State Board of Dental Examiners.

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

(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).

(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, 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.

(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.

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

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

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

(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.

(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.

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

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

(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.

(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.

(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.

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

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

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

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

(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.

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

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

(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.

(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).

(55) HIV--Human Immunodeficiency Virus.

(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.

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

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

(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.

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

(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.

(62) IV--Intravenous.

(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.

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

(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.

(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).

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

(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).

(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.

(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)).

(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.

(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.

(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.

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

(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.

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

(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.

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

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

(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.

(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.

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

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

(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.

(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.

(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.

(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.

(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.

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

(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.

(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.

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

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

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

(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.

(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.

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

(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.

(99) Objectives--See definition of "goals."

(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.

(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.

(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.

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

(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.

(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.

(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.

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

(109) Physical restraint--See Restraints (physical).

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

(111) Physician assistant (PA)--

(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.

(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.

(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.

(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.

(115) PRN (pro re nata)--As needed.

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

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

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

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

(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.

(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.

(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.

(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.

(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.

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

(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.

(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.

(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.

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

(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.

(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.

(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.

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

(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.

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

(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.

(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.

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

(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.

(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.

(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.

(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.

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

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

(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.

(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.

(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).

(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.

(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.

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

(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.

(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.

(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.

(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.

(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.

(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.

(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.

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

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

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

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

(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.

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

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

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

(166) Unreasonable confinement--Involuntary seclusion.

(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.

(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.

(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.

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

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 21, 2017.

TRD-201703717

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Effective date: October 11, 2017

Proposal publication date: April 7, 2017

For further information, please call: (512) 438-5502


SUBCHAPTER C. NURSING FACILITY LICENSURE APPLICATION PROCESS

40 TAC §19.210

The amendment is adopted under Texas Government Code, §531.0055, which requires the HHSC executive commissioner to adopt rules for the operation and provision of services by the health and human services agencies; and Texas Health and Safety Code, Chapter 242.033, which requires HHSC to license nursing facilities.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 21, 2017.

TRD-201703718

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Effective date: October 11, 2017

Proposal publication date: April 7, 2017

For further information, please call: (512) 438-5502


CHAPTER 90. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS

The Texas Health and Human Services Commission (HHSC) adopts amendments to §90.3, concerning Definitions; and §90.16, concerning Change of Ownership and Notice of Changes, in Chapter 90, Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions. The amendment to §90.16 is adopted without changes. The amendment to §90.3 is adopted with changes to the proposed text as published in the April 7, 2017, issue of the Texas Register. (42 TexReg 1860).

BACKGROUND AND JUSTIFICATION

The adopted rules revise requirements related to a change of ownership of a license holder for an intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID). Under the adopted rules, a change of ownership occurs when the federal taxpayer identification number of a license holder changes. When this occurs, a license holder is required to apply for a new license. If the ownership structure of the license holder changes but the license holder is the same legal entity, as evidenced by having the same federal tax identification number, the license holder is not required to apply for a new license. The adopted rules require a license holder that does not undergo a change of ownership but adds an owner with a disclosable interest to notify HHSC of the addition no later than 30 days after the addition of the owner.

The adopted rules add definitions for terms related to a change of ownership and ownership interests. The adopted rules also allow HHSC to conduct a desk review instead of an on-site health survey if the applicant for a license resulting from a change of ownership meets certain requirements.

A change was made in §90.3, concerning Definitions, to the definition of "change of ownership" to clarify that any event that results in a change to the federal taxpayer identification number of the license holder of an ICF/IID is considered a change of ownership.

COMMENTS

The 30-day comment period ended May 7, 2017.

During this period, HHSC did not receive any comments regarding adoption of the amendments.

SUBCHAPTER A. INTRODUCTION

40 TAC §90.3

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code, §531.0055, which requires the HHSC executive commissioner to adopt rules for the operation and provision of health and human services; and Texas Health and Safety Code, §252.008, which requires the HHSC executive commissioner to adopt rules related to the licensure an ICF/IID.

§90.3.Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise. Individual subchapters may have definitions that are specific to the subchapter.

(1) Addition--The addition of floor space to a facility.

(2) Administrator--The administrator of a facility.

(3) Administration of medication--Removing a unit or dose of medication from a previously dispensed, properly labeled container; verifying the medication with the medication order; giving the proper medication in the proper dosage to the proper resident at the proper time by the proper administration route; and recording the time of administration and dosage administered.

(4) Advanced practice nurse--A person licensed to practice professional nursing in accordance with Texas Occupations Code, Chapter 301, and authorized by the Texas Board of Nursing to practice as an advanced practice nurse.

(5) Applicant--A person applying for a license under Texas Health and Safety Code, Chapter 252.

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

(7) Attendant personnel--All persons who are responsible for direct and non-nursing services to residents of a facility. (Nonattendant personnel are all persons who are not responsible for direct personal services to residents.) Attendant personnel come within the categories of: administration, dietitians, medical records, activities, housekeeping, laundry, and maintenance.

(8) Behavioral emergency--A situation in which severely aggressive, destructive, violent, or self-injurious behavior exhibited by a resident:

(A) poses a substantial risk of imminent probable death of, or substantial bodily harm to, the resident or others;

(B) has not abated in response to attempted preventive de-escalatory or redirection techniques;

(C) is not addressed in a behavior therapy program; and

(D) does not occur during a medical or dental procedure.

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

(10) 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.

(11) CMS--Centers for Medicare & Medicaid Services. The federal agency that provides funding and oversight for the Medicare and Medicaid programs. CMS was formerly known as the Health Care Financing Administration (HCFA).

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

(13) Controlling person of an applicant, license holder, or facility--A person who, acting alone or with others, has the ability to directly or indirectly influence or direct the management, expenditure of money, or policies of an applicant or license holder or of a facility owned by an applicant or license holder.

(A) The term includes:

(i) a spouse of the applicant or license holder;

(ii) an officer or director, if the applicant or license holder is a corporation;

(iii) a partner, if the applicant or license holder is a partnership;

(iv) a trustee or trust manager, if the applicant or license holder is a trust;

(v) a person that operates or contracts with others to operate the facility;

(vi) a person who, because of a personal, familial, or other relationship is in a position of actual control or authority over the facility, without regard to whether the person is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility; and

(vii) a person who would be a controlling person of an entity described in clauses (i) - (vi) of this subparagraph, if that entity were the applicant or license holder.

(B) The term does not include an employee, lender, secured creditor, or other person who does not exercise formal or actual influence or control over the operation of a facility.

(14) DADS--The Department of Aging and Disability Services or its successor agency.

(15) Dangerous drug--Any drug as defined in the Texas Dangerous Drug Act, Health and Safety Code, Chapter 483.

(16) Department--The Department of Aging and Disability Services.

(17) Designee--A state agency or entity with which DADS contracts to perform specific, identified duties related to the fulfillment of a responsibility prescribed by this chapter.

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

(19) Disclosable interest--Five percent or more direct or indirect ownership interest in an applicant or license holder.

(20) Drug (also referred to as medication)--A drug is:

(A) any substance recognized as a drug in the official United States Pharmacopeia, official Homeopathic Pharmacopeia 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 human body; 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.

(21) Establishment--A place of business or a place where business is conducted which includes staff, fixtures, and property.

(22) Facility--A facility serving persons with an intellectual disability or related conditions licensed under this chapter as described in §90.2 of this chapter (relating to Scope) and required to be licensed under the Health and Safety Code, Chapter 252, or the entity that operates such a facility; or, in Subchapters C, D, and F of this chapter, a program provider that must comply with those subchapters in accordance with §9.212 of this title (relating to Non-licensed Providers Meeting Licensure Standards).

(23) Governmental unit--A state or a political subdivision of the state, including a county or municipality.

(24) Health care professional--A person licensed, certified, or otherwise authorized to administer health care, for profit or otherwise. The term includes a physician, licensed nurse, physician assistant, podiatrist, dentist, physical therapist, speech therapist, and occupational therapist.

(25) Hearing--A contested case hearing held in accordance with the Administrative Procedure Act, Government Code, Chapter 2001, and the formal hearing procedures in 1 TAC Chapter 357, Subchapter I.

(26) Immediate and serious threat--A situation in which there is a high probability that serious harm or injury to residents could occur at any time or has already occurred and may occur again if residents are not protected effectively from the harm or if the threat is not removed.

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

(28) Incident--An unusual or abnormal event or occurrence in, at, or affecting the facility or the residents of the facility.

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

(30) Inspection--Any on-site visit to or survey of a facility by DADS for the purpose of inspection of care, licensing, monitoring, complaint investigation, architectural review, or similar purpose.

(31) IPP--Individual program plan. A plan developed by the interdisciplinary team of a facility resident that identifies the resident's training, treatment, and habilitation needs, and describes programs and services to meet those needs.

(32) Large facility--Facilities with 17 or more resident beds.

(33) Legal guardian--A person who is appointed guardian under §693 of the Probate Code.

(34) 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.

(35) License--Approval from DADS to establish or operate a facility.

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

(37) Licensed nurse--A licensed vocational nurse, registered nurse, or advanced practice nurse.

(38) Life Safety Code--NFPA 101.

(39) Life safety features--Fire safety components required by the Life Safety Code such as building construction, fire alarm systems, smoke detection systems, interior finishes, sizes and thicknesses of doors, exits, emergency electrical systems, sprinkler systems, etc.

(40) Local authorities--A local health authority, fire marshal, building inspector, etc., who may be authorized by state law, county order, or municipal ordinance to perform certain inspections or certifications.

(41) Local health authority--The physician having local jurisdiction to administer state and local laws or ordinances relating to public health, as described in the Texas Health and Safety Code, §§121.021 - 121.025.

(42) LVN--Licensed vocational nurse. A person licensed to practice vocational nursing in accordance with Texas Occupations Code, Chapter 301.

(43) 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 shall not include contracts solely for maintenance, laundry, or food services.

(44) Metered dose inhaler--A device that delivers a measured amount of medication as a mist that can be inhaled.

(45) NFPA--The National Fire Protection Association. If the term is immediately followed by a number, it is a reference to a publication of NFPA, as referenced in NFPA 101.

(46) NFPA 99--NFPA 99, Health Care Facilities Code, 2012 Edition. A publication of the NFPA that provides minimum requirements for the installation, testing, maintenance, performance, and safe practices for health care facilities and for material, equipment, and appliances, used for patient care in health care facilities. The Centers for Medicare and Medicaid Services has incorporated NFPA 99, 2012 Edition, except Chapters 7, 8, 12, and 13, by reference as a Condition of Participation in the ICF/IID program for facilities that meet the definition of a health care occupancy. Copies of NFPA 99 may be obtained from NFPA, 1 Batterymarch Park, Quincy, MA 02169.

(47) NFPA 101--NFPA 101, Life Safety Code, 2012 Edition. A publication of the NFPA that provides minimum requirements, with due regard to function, for the design, operation, and maintenance of buildings and structures for safety to life from fire. The Centers for Medicare and Medicaid Services has incorporated NFPA 101, 2012 Edition, by reference as a Condition of Participation in the ICF/IID program. Copies of NFPA 101 may be obtained from NFPA, 1 Batterymarch Park, Quincy, MA 02169.

(48) Oral medication--Medication administered by way or through the mouth and does not include sublingual or buccal.

(49) Person--An individual, firm, partnership, corporation, association, or joint stock company, and any legal successor of those entities.

(50) Personal 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.

(51) QIDP--Qualified intellectual disability professional. A person who has at least one year of experience working directly with persons with an intellectual disability or related conditions and is one of the following:

(A) a doctor of medicine or osteopathy;

(B) a registered nurse; or

(C) an individual who holds at least a bachelor's degree in one of the following areas:

(i) occupational therapy;

(ii) physical therapy;

(iii) social work;

(iv) speech-language pathology or audiology;

(v) recreation or a specialty area such as art, dance, music or physical education;

(vi) dietetics; or

(vii) human services, such as sociology, special education, rehabilitation counseling, or psychology (as specified in Title 42, Code of Federal Regulations, §483.430(b)(5)(x)(W180)).

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

(53) Registered nurse--A person licensed to practice professional nursing in accordance with Texas Occupations Code, Chapter 301.

(54) Remodeling--The construction, removal, or relocation of walls and partitions, or construction of foundations, floors, or ceiling-roof assemblies, including expanding of safety systems (i.e., sprinkler systems, fire alarm systems), that will change the existing plan and use areas of the facility.

(55) Renovation--The restoration to a former better state by cleaning, repairing, or rebuilding, e.g., routine maintenance, repairs, equipment replacement, painting.

(56) Restraint--A manual method, or a physical or mechanical device, material, or equipment attached or adjacent to the resident's body that the resident cannot remove easily, that restricts freedom of movement or normal access to the resident's body. This term includes a personal hold.

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

(58) Small facilities--Facilities with 16 or fewer resident beds.

(59) Specialized staff--Personnel with expertise in developmental disabilities.

(60) Standards--The minimum conditions, requirements, and criteria with which a facility will have to comply to be licensed under this chapter.

(61) Topical medication--Medication applied to the skin but does not include medication administered in the eyes.

(62) Universal precautions--The use of barrier precautions by facility personnel to prevent direct contact with blood or other body fluids that are visibly contaminated with blood.

(63) 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.

(64) Well-recognized church or religious denomination--An organization which has been granted a tax-exempt status as a religious association from the state or federal government.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 21, 2017.

TRD-201703719

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Effective date: October 11, 2017

Proposal publication date: April 7, 2017

For further information, please call: (512) 438-5502


SUBCHAPTER B. APPLICATION PROCEDURES

40 TAC §90.16

The amendment is adopted under Texas Government Code, §531.0055, which requires the HHSC executive commissioner to adopt rules for the operation and provision of health and human services; and Texas Health and Safety Code, §252.008, which requires the HHSC executive commissioner to adopt rules related to the licensure an ICF/IID.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 21, 2017.

TRD-201703720

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Effective date: October 11, 2017

Proposal publication date: April 7, 2017

For further information, please call: (512) 438-5502


CHAPTER 90. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS

The Texas Health and Human Services Commission (HHSC) adopts amendments to §§90.3, 90.50, 90.61, and 90.74 in Texas Administrative Code, Title 40, Chapter 90, Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions. The amendments are adopted without changes to the proposed text as published in the March 31, 2017, issue of the Texas Register (42 TexReg 1728), and therefore will not be republished.

BACKGROUND AND JUSTIFICATION

The Centers for Medicare & Medicaid Services (CMS) adopted a rule that made the 2012 edition of two publications of the National Fire Protection Association (NFPA)-the Life Safety Code (NFPA 101) and the Health Care Facilities Code (NFPA 99)-apply to an intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID). Therefore, the adopted amendments refer to the 2012 editions of those publications and make references to the publications consistent throughout the amended sections. Consistent with the CMS rule, the amendments allow an existing small facility until July 5, 2019, to be in compliance with the NFPA provisions in Chapter 33 regarding sprinklers and heat detection systems in attics.

COMMENTS

The 30-day comment period ended May 1, 2017.

During this period, DADS and HHSC received one comment regarding the proposed rules from a member of the public. A summary of the comment relating to the rule and DADS response follows.

Comment: Regarding proposed §90.3, Definitions, the commenter noted that the definition of "renovation" includes painting whereas the 2012 edition of the Life Safety Code (43.2.2.1.1 in Chapter 43 of NFPA 101) indicates that painting is a "repair." The commenter suggested the deletion of the definitions of "remodeling" and "renovation" in §90.3 and the replacement of each with a reference to Chapter 43 of the 2012 edition of the Life Safety Code (NFPA 101). The commenter also stated that Chapter 43 of NFPA 101 has definitions of repair, renovation, modification, reconstruction, change of use, change of occupancy classification, and addition.

Response: HHSC declines to delete the definitions of "remodeling" and "renovation" in §90.3 because both terms are used in Chapter 90 and the definitions are useful to clarify the rules. In addition, HHSC notes that the definitions in §90.3 are specific to Chapter 90, while the definitions of terms in NFPA 101 apply when those terms are used in that publication. HHSC does not believe that the definitions of these terms conflict.

SUBCHAPTER A. INTRODUCTION

40 TAC §90.3

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code, §531.0055, which provides that the HHSC Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703751

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Effective date: October 12, 2017

Proposal publication date: March 31, 2017

For further information, please call: (512) 438-2635


SUBCHAPTER C. STANDARDS FOR LICENSURE

40 TAC §90.50

The amendment is adopted under Texas Government Code, §531.0055, which provides that the HHSC Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703754

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Effective date: October 12, 2017

Proposal publication date: March 31, 2017

For further information, please call: (512) 438-2635


SUBCHAPTER D. GENERAL REQUIREMENTS FOR FACILITY CONSTRUCTION

40 TAC §90.61, §90.74

The amendments are adopted under Texas Government Code, §531.0055, which provides that the HHSC Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703752

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Effective date: October 12, 2017

Proposal publication date: March 31, 2017

For further information, please call: (512) 438-2635


CHAPTER 92. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES

The Texas Health and Human Services Commission (HHSC) adopts amendments to §92.2, concerning Definitions; and §92.16, concerning Change of Ownership, in Chapter 92, Licensing Standards for Assisted Living Facilities. The amendments are adopted with changes to the proposed text as published in the April 7, 2017, issue of the Texas Register (42 TexReg 1864).

BACKGROUND AND JUSTIFICATION

The adopted rules revise the definitions and rules regarding a change of ownership to simplify the process for determining when an assisted living facility (ALF) is required to obtain a new license as a result of a change of ownership. Under the adopted rules, a change of ownership occurs when the federal taxpayer identification number of the license holder changes. When this occurs the license holder is required to apply for a new license. If the ownership structure of the license holder changes but the license holder is the same legal entity, as evidenced by having the same federal taxpayer identification number, the license holder is not required to apply for a new license.

A change was made in §92.2, concerning Definitions, to the definition of "change of ownership" to clarify that any event that results in a change to the federal taxpayer identification number of the license holder of an ALF is considered a change of ownership.

COMMENTS

The 30-day comment period ended May 7, 2017. During this period, HHSC received comments regarding the proposed rules from two commenters, the Coalition for Nurses in Advanced Practice and Texas Assisted Living Association (TALA). A summary of the comments and HHSC’s responses follows.

Comment: Regarding the proposed amendment of §92.2, Definitions, a commenter requested that in the definition for "practitioner" the term "advanced practice registered nurse (APRN)" be used instead of using the phrase "a registered nurse approved by the Texas Board of Nursing to practice as an advanced practice registered nurse". The commenter stated this change would reflect current terminology and be consistent with terms used for the other professions listed in the definition as well as allow the APRN to be licensed in a state other than Texas.

Response: No change was made in response to this comment as the term "practitioner" is not related to the rule changes that are proposed. HHSC will consider this change in future rule amendments.

Comment: One commenter requested that definition of "disclosable interest" contain an exception for publicly traded corporations based on the definition of "controlling person" in Texas Health and Safety Code §247.005.

Response: HHSC did not add the exception for publicly traded companies to the definition of disclosable interest. However, to address the concern of the commenter, §92.16(k) was revised so that a license holder, that is a publicly traded company, is not required to notify HHSC if the license holder adds an owner with a disclosable interest.

SUBCHAPTER A. INTRODUCTION

40 TAC §92.2

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code, §531.0055, which requires that the HHSC executive commissioner shall adopt rules for the operation and provision of health and human services; and Texas Health and Safety Code, §247.025, which requires the HHSC executive commissioner to adopt rules related to the licensure an ALF.

§92.2.Definitions.

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

(1) Abuse--

(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(1), which is an intentional, knowing, or reckless act or omission by an employee, volunteer, or other individual working under the auspices of a facility or program that causes or may cause 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(1), which is:

(i) the negligent or willful infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical or emotional harm or pain to a resident by the resident's caregiver, family member, or other individual who has an ongoing relationship with the resident; or

(ii) sexual abuse of a resident, including any involuntary or nonconsensual sexual conduct that would constitute an offense under Section 21.08, Penal Code (indecent exposure), or Chapter 22, Penal Code (assaultive offenses), committed by the resident's caregiver, family member, or other individual who has an ongoing relationship with the resident.

(2) Accreditation commission--Has the meaning given in Texas Health and Safety Code, §247.032.

(3) Advance directive--Has the meaning given in Texas Health and Safety Code, §166.002.

(4) Affiliate--With respect to:

(A) a partnership, each partner thereof;

(B) a corporation, each officer, director, principal stockholder, subsidiary, and each person with a disclosable interest, as the term is defined in this section; and

(C) a natural person:

(i) said person's spouse;

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

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

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

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

(7) Alzheimer's facility--A type B assisted living facility that is certified to provide specialized services to residents with Alzheimer's or a related condition.

(8) Applicant--A person applying for a license to operate an assisted living facility under Texas Health and Safety Code, Chapter 247.

(9) Attendant--A facility employee who provides direct care to residents. This employee may serve other functions, including cook, janitor, porter, maid, laundry worker, security personnel, bookkeeper, activity director, and manager.

(10) Authorized electronic monitoring (AEM)--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.

(11) Behavioral emergency--Has the meaning given in §92.41(p)(2) of this chapter (relating to Standards for Type A and Type B Assisted Living Facilities).

(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.

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

(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.

(15) 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.

(16) DADS--The Department of Aging and Disability Services.

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

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

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

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

(21) Disclosure statement--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.

(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.

(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.

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

(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.

(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).

(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.

(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.

(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.

(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.

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

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

(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.

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

(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 DADS or any other state, federal or local authority.

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

(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.

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

(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.

(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.

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

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

(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.

(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.

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

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

(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.

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

(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.

(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.

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

(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.

(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.

(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.

(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.

(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.

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

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

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

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

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

(62) Terminal condition--A medical diagnosis, certified by a physician, of an illness that will result in death in six months or less.

(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.

(64) Vaccine Preventable Diseases--The diseases included in the most current recommendations of the Advisory Committee on Immunization Practices of the CDC.

(65) Working day--Any 24-hour period, Monday through Friday, excluding state and federal holidays.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 21, 2017.

TRD-201703721

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Effective date: October 11, 2017

Proposal publication date: April 7, 2017

For further information, please call: (512) 438-5502


SUBCHAPTER B. APPLICATION PROCEDURES

40 TAC §92.16

The amendment is adopted under Texas Government Code, §531.0055, which requires that the HHSC executive commissioner shall adopt rules for the operation and provision of health and human services; and Texas Health and Safety Code, §247.025, which requires the HHSC executive commissioner to adopt rules related to the licensure an ALF.

§92.16.Change of Ownership and Notice of Changes.

(a) A license holder may not transfer its license.

(b) At least 30 days before the anticipated date of a change of ownership, the prospective license holder must notify DADS of the change of ownership by submitting an application for an initial license based on a change of ownership under §92.14 of this subchapter (relating to Initial Application Procedures and Requirements) and the fee required in §92.4 of this chapter (relating to License Fees).

(c) To avoid a facility operating while unlicensed, an applicant must submit an application for an initial license based on a change of ownership at least 30 days before the anticipated date of the change of ownership. The effective date of the change of ownership cannot precede the date the application is received by DADS Licensing and Credentialing Section, Regulatory Services Division.

(d) DADS may assess an administrative penalty in accordance with Subchapter H, Division 9 of this chapter (relating to Administrative Penalties) against a person who fails to notify DADS before the effective date of the change of ownership.

(e) Pending DADS review of the application for an initial license based on a change of ownership, the current license holder must continue to meet all requirements for operation of the facility.

(f) DADS conducts an on-site health inspection to verify compliance with the licensure requirements before issuing a license based on a change of ownership. DADS may conduct a desk review instead of an on-site health inspection if DADS determines that the facility was required to obtain a new tax identification number and:

(1) less than 50 percent of the direct or indirect ownership interest in the former license holder changed when compared to the new license holder; or

(2) every owner with a disclosable interest in the new license holder had a disclosable interest in the former license holder.

(g) DADS, in its sole discretion, may conduct an on-site Life Safety Code inspection of the facility before issuing a license based on a change of ownership.

(h) DADS issues the license within 30 days after DADS determines that the applicant and the facility have met the licensure requirements of this section. The issuance of a license constitutes DADS official written notice to the facility of the approval of the application for a change of ownership.

(i) DADS may deny an application for a change of ownership if the applicant, controlling person, or any person required to submit background and qualification information fails to meet the criteria for a license established in §92.11 of this subchapter (relating to Criteria for Licensing).

(j) If DADS denies an application for an initial license based on a change of ownership, DADS sends the applicant a written notice of the denial and informs the applicant of the applicant’s right to request an administrative hearing to appeal the denial. The administrative hearing is held in accordance with Texas Health and Human Services Commission rules at 1 TAC Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act).

(k) If a license holder that is not a publicly traded company adds an owner with a disclosable interest but the license holder does not undergo a change of ownership, the license holder must notify DADS no later than 30 days after the addition of the owner.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 21, 2017.

TRD-201703722

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Effective date: October 11, 2017

Proposal publication date: April 7, 2017

For further information, please call: (512) 438-5502


CHAPTER 97. LICENSING STANDARDS FOR HOME AND COMMUNITY SUPPORT SERVICES AGENCIES

The Texas Health and Human Services Commission (HHSC) adopts amendments to §97.2, concerning Definitions, and §97.23, concerning Change of Ownership, in Chapter 97, Licensing Standards for Home and Community Support Services Agencies. The amendments to §97.2 are adopted with changes as published in the April 7, 2017, issue of the Texas Register (42 TexReg 1868). The amendments to §97.23 are adopted without changes to the proposed text as published in the April 7, 2017, issue of the Texas Register (42 TexReg 1872).

BACKGROUND AND JUSTIFICATION

The adopted rules revise requirements related to change of ownership of a license holder for a home and community support services agency (HCSSA). Under the adopted rules, a license holder is not required to apply for a new license if the ownership structure of the license holder changes but the license holder is the same legal entity, as evidenced by having the same federal taxpayer identification number. Changes in ownership structure must be reported to HHSC under other existing rules. The adopted rules add definitions for terms related to a change of ownership and ownership interests. The adopted amendments also allow for HHSC to conduct a desk review instead of an on-site health survey if the applicant for a license resulting from a change of ownership meets certain requirements.

A change was made in §97.2, concerning Definitions, to the definition of "change of ownership" to clarify that any event that results in a change to the federal taxpayer identification number of the license holder of a HCSSA is considered a change of ownership.

COMMENTS

The 30-day comment period ended May 7, 2017. During this period, HHSC received comments regarding the proposed rules from one commenter, the Coalition for Nurses in Advanced Practice. A summary of the comments and HHSC's responses follows.

Comment: Regarding the proposed amendment to §97.2, Definitions, a commenter requested that in the definition for "practitioner" the term "advanced practice registered nurse (APRN)" be used instead of using the phrase "a person who is a registered nurse registered with the Texas Board of Nursing as an advanced practice nurse." The commenter stated this change would reflect current terminology and be consistent with terms used for the other professions listed in the definition as well as allow the APRN to be licensed in a state other than Texas.

Response: No change was made in response to this comment as the term "practitioner" is not related to the rule changes that are proposed. HHSC will consider this change in future rule amendments.

Comment: Regarding the definition of "psychoactive treatment" the commenter requested that the phrase "under the direction of a physician" be replaced with the phrase "including consultation with the client's physician or mental health provider, as needed" as the commenter could not find any state or federal law that requires this type of skilled nursing visit be under the direction of a physician.

Response: No change was made in response to this comment as the term "psychoactive treatment" is not related to the rule changes that are proposed. HHSC will consider this change in future rule amendments.

SUBCHAPTER A. GENERAL PROVISIONS

40 TAC §97.2

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code, §531.0055, which requires that the HHSC executive commissioner shall adopt rules for the operation and provision of health and human services; and Texas Health and Safety Code, §142.012, which requires the HHSC executive commissioner to adopt rules related to the licensure of an HCSSA.

§97.2.Definitions.

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

(1) Accessible and flexible services--Services that are delivered in the least intrusive manner possible and are provided in all settings where individuals live, work, and recreate.

(2) Administration of medication--The direct application of any medication by injection, inhalation, ingestion, or any other means to the body of a client. The preparation of medication is part of the administration of medication and is the act or process of making ready a medication for administration, including the calculation of a client's medication dosage; altering the form of the medication by crushing, dissolving, or any other method; reconstitution of an injectable medication; drawing an injectable medication into a syringe; preparing an intravenous admixture; or any other act required to render the medication ready for administration.

(3) Administrative support site--A facility or site where an agency performs administrative and other support functions but does not provide direct home health, hospice, or personal assistance services. This site does not require an agency license.

(4) Administrator--The person who is responsible for implementing and supervising the administrative polices and operations of a home and community support services agency and for administratively supervising the provision of all services to agency clients on a day-to-day basis.

(5) ADS--Alternate delivery site. A facility or site, including a residential unit or an inpatient unit:

(A) that is owned or operated by an agency providing hospice services;

(B) that is not the hospice's principal place of business, which for the purposes of this definition, means it is not the parent agency;

(C) that is located in the geographical area served by the hospice; and

(D) from which the hospice provides hospice services.

(6) Advanced practice nurse--An advanced practice registered nurse.

(7) Advanced practice registered nurse--A person licensed by the Texas Board of Nursing as an advanced practice registered nurse. The term is synonymous with "advanced practice nurse."

(8) Advisory committee--A committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup, established for the purpose of obtaining advice or recommendations on issues or policies that are within the scope of a person's responsibility.

(9) Affiliate--With respect to an applicant or license holder that is:

(A) a corporation--means each officer, director, and stockholder with direct ownership of at least 5.0 percent, subsidiary, and parent company;

(B) a limited liability company--means each officer, member, and parent company;

(C) an individual--means:

(i) the individual's spouse;

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

(iii) each corporation in which the individual is an officer, director, or stockholder with a direct ownership or disclosable interest of at least 5.0 percent.

(D) a partnership--means each partner and any parent company; and

(E) a group of co-owners under any other business arrangement--means each officer, director, or the equivalent under the specific business arrangement and each parent company.

(10) Agency--A home and community support services agency.

(11) Applicant--The owner of an agency that is applying for a license under the statute. This is the person in whose name the license will be issued.

(12) Assistance with self-administration of medication--Any needed ancillary aid provided to a client in the client's self-administered medication or treatment regimen, such as reminding a client to take a medication at the prescribed time, opening and closing a medication container, pouring a predetermined quantity of liquid to be ingested, returning a medication to the proper storage area, and assisting in reordering medications from a pharmacy. Such ancillary aid includes administration of any medication when the client has the cognitive ability to direct the administration of their medication and would self-administer if not for a functional limitation.

(13) Association--A partnership, limited liability company, or other business entity that is not a corporation.

(14) Audiologist--A person who is currently licensed under the Texas Occupations Code, Chapter 401, as an audiologist.

(15) Bereavement--The process by which a survivor of a deceased person mourns and experiences grief.

(16) Bereavement services--Support services offered to a family during bereavement. Services may be provided to persons other than family members, including residents of a skilled nursing facility, nursing facility, or intermediate care facility for individuals with an intellectual disability or related conditions, when appropriate and identified in a bereavement plan of care.

(17) Biologicals--A medicinal preparation made from living organisms and their products, including serums, vaccines, antigens, and antitoxins.

(18) Boarding home facility--An establishment defined in Texas Health and Safety Code §260.001(2).

(19) Branch office--A facility or site in the service area of a parent agency from which home health or personal assistance services are delivered or where active client records are maintained. This does not include inactive records that are stored at an unlicensed site.

(20) Care plan--

(A) a written plan prepared by the appropriate health care professional for a client of the home and community support services agency; or

(B) for home dialysis designation, a written plan developed by the physician, registered nurse, dietitian, and qualified social worker to personalize the care for the client and enable long- and short-term goals to be met.

(21) Case conference--A conference among personnel furnishing services to the client to ensure that their efforts are coordinated effectively and support the objectives outlined in the plan of care or care plan.

(22) Certified agency--A home and community support services agency, or portion of the agency, that:

(A) provides a home health service; and

(B) is certified by an official of the Department of Health and Human Services as in compliance with conditions of participation in Social Security Act, Title XVIII (42 United States Code (USC) §1395 et seq.).

(23) Certified home health services--Home health services that are provided by a certified agency.

(24) CFR--Code of Federal Regulations. The regulations and rules promulgated by agencies of the Federal government that address a broad range of subjects, including hospice care and home health services.

(25) Change of ownership--An event that results in a change to the federal taxpayer identification number of the license holder of an agency. The substitution of a personal representative for a deceased license holder is not a change of ownership.

(26) CHAP--Community Health Accreditation Program, Inc. An independent, nonprofit accrediting body that publicly certifies that an organization has voluntarily met certain standards for home and community-based health care.

(27) Chief financial officer--An individual who is responsible for supervising and managing all financial activities for a home and community support services agency.

(28) Client--An individual receiving home health, hospice, or personal assistance services from a licensed home and community support services agency. This term includes each member of the primary client's family if the member is receiving ongoing services. This term does not include the spouse, significant other, or other family member living with the client who receives a one-time service (for example, vaccination) if the spouse, significant other, or other family member receives the service in connection with the care of a client.

(29) Clinical note--A dated and signed written notation by agency personnel of a contact with a client containing a description of signs and symptoms; treatment and medication given; the client's reaction; other health services provided; and any changes in physical and emotional condition.

(30) CMS--Centers for Medicare & Medicaid Services. The federal agency that administers the Medicare program and works in partnership with the states to administer Medicaid.

(31) Complaint--An allegation against an agency regulated by DADS or against an employee of an agency regulated by DADS that involves a violation of this chapter or the statute.

(32) Community disaster resources--A local, statewide, or nationwide emergency system that provides information and resources during a disaster, including weather information, transportation, evacuation, and shelter information, disaster assistance and recovery efforts, evacuee and disaster victim resources, and resources for locating evacuated friends and relatives.

(33) Controlling person--A person with the ability, acting alone or with others, to directly or indirectly influence, direct, or cause the direction of the management, expenditure of money, or policies of an agency or other person.

(A) A controlling person includes:

(i) a management company or other business entity that operates or contracts with others for the operation of an agency;

(ii) a person who is a controlling person of a management company or other business entity that operates an agency or that contracts with another person for the operation of an agency; and

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

(B) A controlling person, as described by subparagraph (A)(iii) of this paragraph, does not include an employee, lender, secured creditor, or other person who does not exercise formal or actual influence or control over the operation of an agency.

(34) Conviction--An adjudication of guilt based on a finding of guilt, a plea of guilty, or a plea of nolo contendere.

(35) Counselor--An individual qualified under Medicare standards to provide counseling services, including bereavement, dietary, spiritual, and other counseling services to both the client and the family.

(36) DADS--Department of Aging and Disability Services or its successor agency.

(37) Day--Any reference to a day means a calendar day, unless otherwise specified in the text. A calendar day includes weekends and holidays.

(38) Deficiency--A finding of noncompliance with federal requirements resulting from a survey.

(39) Designated survey office--A DADS Home and Community Support Services Agencies Program office located in an agency's geographic region.

(40) Dialysis treatment record--For home dialysis designation, a dated and signed written notation by the person providing dialysis treatment which contains a description of signs and symptoms, machine parameters and pressure settings, type of dialyzer and dialysate, actual pre- and post-treatment weight, medications administered as part of the treatment, and the client's response to treatment.

(41) Dietitian--A person who is currently licensed under the laws of the State of Texas to use the title of licensed dietitian or provisional licensed dietitian, or who is a registered dietitian.

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

(43) Disaster--The occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from a natural or man-made cause, such as fire, flood, earthquake, wind, storm, wave action, oil spill or other water contamination, epidemic, air contamination, infestation, explosion, riot, hostile military or paramilitary action, or energy emergency. In a hospice inpatient unit, a disaster also includes failure of the heating or cooling system, power outage, explosion, and bomb threat.

(44) Disclosable interest--Five percent or more direct or indirect ownership interest in an applicant or license holder.

(45) ESRD--End stage renal disease. For home dialysis designation, the stage of renal impairment that appears irreversible and permanent and requires a regular course of dialysis or kidney transplantation to maintain life.

(46) Functional need--Needs of the individual that require services without regard to diagnosis or label.

(47) Habilitation--Habilitation services, as defined by Texas Government Code §534.001, provided by an agency licensed under this chapter.

(48) Health assessment--A determination of a client's physical and mental status through inventory of systems.

(49) Home and community support services agency--A person who provides home health, hospice, or personal assistance services for pay or other consideration in a client's residence, an independent living environment, or another appropriate location.

(50) Home health aide--An individual working for an agency who meets at least one of the requirements for home health aides as defined in §97.701 of this chapter (relating to Home Health Aides).

(51) Home health medication aide--An unlicensed person issued a permit by DADS to administer medication to a client under the Texas Health and Safety Code, Chapter 142, Subchapter B.

(52) Home health service--The provision of one or more of the following health services required by an individual in a residence or independent living environment:

(A) nursing, including blood pressure monitoring and diabetes treatment;

(B) physical, occupational, speech, or respiratory therapy;

(C) medical social service;

(D) intravenous therapy;

(E) dialysis;

(F) service provided by unlicensed personnel under the delegation or supervision of a licensed health professional;

(G) the furnishing of medical equipment and supplies, excluding drugs and medicines; or

(H) nutritional counseling.

(53) Hospice--A person licensed under this chapter to provide hospice services, including a person who owns or operates a residential unit or an inpatient unit.

(54) Hospice aide--A person working for an agency licensed to provide hospice services who meets the qualifications for a hospice aide as described in §97.843 of this chapter (relating to Hospice Aide Qualifications).

(55) Hospice homemaker--A person working for an agency licensed to provide hospice services who meets the qualifications described in §97.845 of this chapter (relating to Hospice Homemaker Qualifications).

(56) Hospice services--Services, including services provided by unlicensed personnel under the delegation of a registered nurse or physical therapist, provided to a client or a client's family as part of a coordinated program consistent with the standards and rules adopted under this chapter. These services include palliative care for terminally ill clients and support services for clients and their families that:

(A) are available 24 hours a day, seven days a week, during the last stages of illness, during death, and during bereavement;

(B) are provided by a medically directed interdisciplinary team; and

(C) may be provided in a home, nursing facility, residential unit, or inpatient unit according to need. These services do not include inpatient care normally provided in a licensed hospital to a terminally ill person who has not elected to be a hospice client. For the purposes of this definition, the word "home" includes a person's "residence" as defined in this section.

(57) IDR--Informal dispute resolution. An informal process that allows an agency to refute a violation or condition-level deficiency cited during a survey.

(58) Independent living environment--A client's residence, which may include a group home, foster home, or boarding home facility, or other settings where a client participates in activities, including school, work, or church.

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

(60) Individual and family choice and control--Individuals and families who express preferences and make choices about how their support service needs are met.

(61) Individualized service plan--A written plan prepared by the appropriate health care personnel for a client of a home and community support services agency licensed to provide personal assistance services.

(62) Inpatient unit--A facility, also referred to as a hospice freestanding inpatient facility, that provides a continuum of medical or nursing care and other hospice services to clients admitted into the unit and that is in compliance with:

(A) the conditions of participation for inpatient units adopted under Social Security Act, Title XVIII (42 United States Code §1395 et seq.); and

(B) standards adopted under this chapter.

(63) JCAHO--Joint Commission on Accreditation of Healthcare Organizations. An independent, nonprofit organization for standard-setting and accrediting in-home care and other areas of health care.

(64) Joint training--Training provided by DADS at least semi-annually for home and community support services agencies and DADS surveyors on subjects that address the 10 most commonly cited violations of federal or state law by home and community support services agencies as published in DADS annual reports.

(65) LAR--Legally authorized representative. A person authorized by law to act on behalf of a client with regard to a matter described in this chapter, and may include a parent of a minor, guardian of an adult or minor, managing conservator of a minor, agent under a medical power of attorney, or surrogate decision-maker under Texas Health and Safety Code, §313.004.

(66) License holder--A person that holds a license to operate an agency.

(67) Licensed vocational nurse--A person who is currently licensed under Texas Occupations Code, Chapter 301, as a licensed vocational nurse.

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

(69) Local emergency management agencies--The local emergency management coordinator, fire, police, and emergency medical services.

(70) Local emergency management coordinator-- The person identified as the emergency management coordinator by the mayor or county judge in an agency's service area.

(71) Manager--An employee or independent contractor responsible for providing management services to a home and community support services agency for the overall operation of a home and community support services agency including administration, staffing, or delivery of services. Examples of contracts for services that will not be considered contracts for management services include contracts solely for maintenance, laundry, or food services.

(72) Medication administration record--A record used to document the administration of a client's medications.

(73) Medication list--A list that includes all prescription and over-the-counter medication that a client is currently taking, including the dosage, the frequency, and the method of administration.

(74) Mitigation--An action taken to eliminate or reduce the probability of a disaster, or reduce a disaster's severity or consequences.

(75) Multiple location--A Medicare-approved alternate delivery site that meets the definition in 42 CFR §418.3.

(76) Notarized copy--A sworn affidavit stating that attached copies are true and correct copies of the original documents.

(77) Nursing facility--An institution licensed as a nursing home under the Texas Health and Safety Code, Chapter 242.

(78) Nutritional counseling--Advising and assisting individuals or families on appropriate nutritional intake by integrating information from the nutrition assessment with information on food and other sources of nutrients and meal preparation consistent with cultural background and socioeconomic status, with the goal being health promotion, disease prevention, and nutrition education. Nutritional counseling may include the following:

(A) dialogue with the client to discuss current eating habits, exercise habits, food budget, and problems with food preparation;

(B) discussion of dietary needs to help the client understand why certain foods should be included or excluded from the client's diet and to help with adjustment to the new or revised or existing diet plan;

(C) a personalized written diet plan as ordered by the client's physician or practitioner, to include instructions for implementation;

(D) providing the client with motivation to help the client understand and appreciate the importance of the diet plan in getting and staying healthy; or

(E) working with the client or the client's family members by recommending ideas for meal planning, food budget planning, and appropriate food gifts.

(79) Occupational therapist--A person who is currently licensed under the Occupational Therapy Practice Act, Texas Occupations Code, Chapter 454, as an occupational therapist.

(80) Operating hours--The days of the week and the hours of day an agency's place of business is open as identified in an agency's written policy as required by §97.210 of this chapter (relating to Agency Operating Hours).

(81) Original active client record--A record composed first-hand for a client currently receiving services.

(82) Palliative care--Intervention services that focus primarily on the reduction or abatement of physical, psychosocial, and spiritual symptoms of a terminal illness. It is client and family-centered care that optimizes quality of life by anticipating, preventing, and treating suffering. Palliative care throughout the continuum of illness involves addressing physical, intellectual, emotional, social, and spiritual needs and facilitating client autonomy, access to information, and choice.

(83) Parent agency--An agency that develops and maintains administrative controls and provides supervision of branch offices and alternate delivery sites.

(84) Parent company--A person, other than an individual, who has a direct 100 percent ownership interest in the owner of an agency.

(85) Person--An individual, corporation, or association.

(86) Personal assistance services--Routine ongoing care or services required by an individual in a residence or independent living environment that enable the individual to engage in the activities of daily living or to perform the physical functions required for independent living, including respite services. The term includes:

(A) personal care;

(B) health-related services performed under circumstances that are defined as not constituting the practice of professional nursing by the Texas Board of Nursing through a memorandum of understanding with DADS in accordance with Texas Health and Safety Code, §142.016; and

(C) health-related tasks provided by unlicensed personnel under the delegation of a registered nurse or that a registered nurse determines do not require delegation.

(87) Personal care--The provision of one or more of the following services required by an individual in a residence or independent living environment:

(A) bathing;

(B) dressing;

(C) grooming;

(D) feeding;

(E) exercising;

(F) toileting;

(G) positioning;

(H) assisting with self-administered medications;

(I) routine hair and skin care; and

(J) transfer or ambulation.

(88) Pharmacist--A person who is licensed to practice pharmacy under the Texas Pharmacy Act, Texas Occupations Code, Chapter 558.

(89) Pharmacy--A facility defined in the Texas Occupations Code, §551.003(31), at which a prescription drug or medication order is received, processed, or dispensed.

(90) Physical therapist--A person who is currently licensed under Texas Occupations Code, Chapter 453, as a physical therapist.

(91) Physician--This term includes a person who is:

(A) licensed in Texas to practice medicine or osteopathy in accordance with Texas Occupations Code, Chapter 155;

(B) licensed in Arkansas, Louisiana, New Mexico, or Oklahoma to practice medicine, who is the treating physician of a client and orders home health or hospice services for the client, in accordance with the Texas Occupations Code, §151.056(b)(4); or

(C) a commissioned or contract physician or surgeon who serves in the United States uniformed services or Public Health Service if the person is not engaged in private practice, in accordance with the Texas Occupations Code, §151.052(a)(8).

(92) Physician assistant--A person who is licensed under the Physician Assistant Licensing Act, Texas Occupations Code, Chapter 204, as a physician assistant.

(93) Physician-delegated task--A task performed in accordance with the Texas Occupations Code, Chapter 157, including orders signed by a physician that specify the delegated task, the individual to whom the task is delegated, and the client's name.

(94) Place of business--An office of a home and community support services agency that maintains client records or directs home health, hospice, or personal assistance services. This term includes a parent agency, a branch office, and an alternate delivery site. The term does not include an administrative support site.

(95) Plan of care--The written orders of a practitioner for a client who requires skilled services.

(96) Practitioner--A person who is currently licensed in a state in which the person practices as a physician, dentist, podiatrist, or a physician assistant, or a person who is a registered nurse registered with the Texas Board of Nursing as an advanced practice nurse.

(97) Preparedness--Actions taken in anticipation of a disaster.

(98) Presurvey conference--A conference held with DADS staff and the applicant or the applicant's representatives to review licensure standards and survey documents, and to provide consultation before the survey.

(99) Progress note--A dated and signed written notation by agency personnel summarizing facts about care and the client's response during a given period of time.

(100) Psychoactive treatment--The provision of a skilled nursing visit to a client with a psychiatric diagnosis under the direction of a physician that includes one or more of the following:

(A) assessment of alterations in mental status or evidence of suicide ideation or tendencies;

(B) teaching coping mechanisms or skills;

(C) counseling activities; or

(D) evaluation of the plan of care.

(101) Recovery--Activities implemented during and after a disaster response designed to return an agency to its normal operations as quickly as possible.

(102) Registered nurse delegation--Delegation by a registered nurse in accordance with:

(A) 22 TAC Chapter 224 (concerning Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel for Clients with Acute Conditions or in Acute Care Environments); and

(B) 22 TAC Chapter 225 (relating to RN Delegation to Unlicensed Personnel and Tasks Not Requiring Delegation in Independent Living Environments for Clients with Stable and Predictable Conditions).

(103) Residence--A place where a person resides, including a home, a nursing facility, a convalescent home, or a residential unit.

(104) Residential unit--A facility that provides living quarters and hospice services to clients admitted into the unit and that is in compliance with standards adopted under the Texas Health and Safety Code, Chapter 142.

(105) Respiratory therapist--A person who is currently licensed under Texas Occupations Code, Chapter 604, as a respiratory care practitioner.

(106) Respite services--Support options that are provided temporarily for the purpose of relief for a primary caregiver in providing care to individuals of all ages with disabilities or at risk of abuse or neglect.

(107) Response--Actions taken immediately before an impending disaster or during and after a disaster to address the immediate and short-term effects of the disaster.

(108) Restraint--A restraint is:

(A) a manual method, physical or mechanical device, material, or equipment that immobilizes or reduces the ability of a client in a hospice inpatient unit to move his or her arms, legs, body, or head freely, but does not include a device, such as an orthopedically prescribed device, a surgical dressing or bandage, a protective helmet, or other method that involves the physical holding of the client for the purpose of:

(i) conducting a routine physical examination or test;

(ii) protecting the client from falling out of bed; or

(iii) permitting the client to participate in activities without the risk of physical harm, not including a physical escort; or

(B) a drug or medication when used as a restriction to manage a client's behavior or restrict the client's freedom of movement in a hospice inpatient unit, but not as a standard treatment or medication dosage for the client's condition.

(109) RN--Registered nurse. A person who is currently licensed under the Nursing Practice Act, Texas Occupations Code, Chapter 301, as a registered nurse.

(110) Seclusion--The involuntary confinement of a client alone in a room or an area in a hospice inpatient unit from which the client is physically prevented from leaving.

(111) Section--A reference to a specific rule in this chapter.

(112) Service area--A geographic area established by an agency in which all or some of the agency's services are available.

(113) Skilled services--Services in accordance with a plan of care that require the skills of:

(A) a registered nurse;

(B) a licensed vocational nurse;

(C) a physical therapist;

(D) an occupational therapist;

(E) a respiratory therapist;

(F) a speech-language pathologist;

(G) an audiologist;

(H) a social worker; or

(I) a dietitian.

(114) Social worker--A person who is currently licensed as a social worker under Texas Occupations Code, Chapter 505.

(115) Speech-language pathologist--A person who is currently licensed as a speech-language pathologist under Texas Occupations Code, Chapter 401.

(116) Statute--The Texas Health and Safety Code, Chapter 142.

(117) Substantial compliance--A finding in which an agency receives no recommendation for enforcement action after a survey.

(118) Supervised practical training--Hospice aide training that is conducted in a laboratory or other setting in which the trainee demonstrates knowledge while performing tasks on an individual. The training is supervised by a registered nurse or by a licensed vocational nurse who works under the direction of a registered nurse.

(119) Supervising nurse--The person responsible for supervising skilled services provided by an agency and who has the qualifications described in §97.244(c) of this chapter (relating to Administrator Qualifications and Conditions and Supervising Nurse Qualifications). This person may also be known as the director of nursing or similar title.

(120) Supervision--Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity with initial direction and periodic inspection of the actual act of accomplishing the function or activity.

(121) Support services--Social, spiritual, and emotional care provided to a client and a client's family by a hospice.

(122) Survey--An on-site inspection or complaint investigation conducted by a DADS representative to determine if an agency is in compliance with the statute and this chapter or in compliance with applicable federal requirements or both.

(123) Terminal illness--An illness for which there is a limited prognosis if the illness runs its usual course.

(124) Unlicensed person--A person not licensed as a health care provider. The term includes home health aides, hospice aides, hospice homemakers, medication aides permitted by DADS, and other unlicensed individuals providing personal care or assistance in health services.

(125) Unsatisfied judgments--A failure to fully carry out the terms or meet the obligation of a court's final disposition on the matters before it in a suit regarding the operation of an agency.

(126) Violation--A finding of noncompliance with this chapter or the statute resulting from a survey.

(127) Volunteer--An individual who provides assistance to a home and community support services agency without compensation other than reimbursement for actual expenses.

(128) Working day--Any day except Saturday, Sunday, a state holiday, or a federal holiday.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 21, 2017.

TRD-201703723

Karen Ray

General Counsel

Department of Aging and Disability Services

Effective date: October 11, 2017

Proposal publication date: April 7, 2017

For further information, please call: (512) 438-5502


SUBCHAPTER B. CRITERIA AND ELIGIBILITY, APPLICATION PROCEDURES, AND ISSUANCE OF A LICENSE

40 TAC §97.23

The amendment is adopted under Texas Government Code, §531.0055, which requires that the HHSC executive commissioner shall adopt rules for the operation and provision of health and human services; and Texas Health and Safety Code, §142.012, which requires the HHSC executive commissioner to adopt rules related to the licensure of a HCSSA.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 21, 2017.

TRD-201703724

Karen Ray

General Counsel

Department of Aging and Disability Services

Effective date: October 11, 2017

Proposal publication date: April 7, 2017

For further information, please call: (512) 438-5502


CHAPTER 98. DAY ACTIVITY AND HEALTH SERVICES REQUIREMENTS

The Texas Health and Human Services Commission (HHSC) adopts amendments to §98.2, concerning Definitions, and §98.16, concerning Criteria for Denying a License or Renewal of a License, in Chapter 98, Day Activity and Health Services Requirements. The amendment to §98.16 is adopted without changes. The amendment to §98.2 is adopted with changes to the proposed text as published in the April 7, 2017, issue of the Texas Register (42 TexReg 1872).

BACKGROUND AND JUSTIFICATION

The adopted amendments revise requirements related to change of ownership of a license holder of a day activity and health services (DAHS) facility. Under the amended rules, a license holder is not required to apply for a new license if the ownership structure of the license holder changes but the license holder is the same legal entity, as evidenced by having the same federal taxpayer identification number. The amendment requires a license holder that does not undergo a change of ownership but adds an owner with a disclosable interest to notify HHSC of the addition no later than 30 days after the addition of the owner. The amendments allow HHSC to conduct a desk review instead of an on-site health survey if the applicant for a license resulting from a change of ownership meets certain requirements.

A change was made in §98.2, concerning Definitions, to the definition of "change of ownership" to clarify that any event that results in a change to the federal taxpayer identification number of the license holder of a DAHS is considered a change of ownership.

COMMENTS

The 30 day comment period ended May 7, 2017.

During this period, HHSC did not receive any comments regarding adoption of the amendments.

SUBCHAPTER A. INTRODUCTION

40 TAC §98.2

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code, §531.0055, which requires that the HHSC executive commissioner shall adopt rules for the operation and provision of health and human services; and Texas Human Resources Code, §103.004, which requires the HHSC executive commissioner to adopt rules related to the licensure of a day activity and health services facility.

§98.2.Definitions.

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

(1) Abuse--The negligent or willful infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical or emotional harm or pain to an elderly or disabled person by the person's caretaker, family member, or other individual who has an ongoing relationship with the person, or sexual abuse of an elderly or disabled person, including any involuntary or nonconsensual sexual conduct that would constitute an offense under Texas Penal Code, §21.08, (indecent exposure) or Texas Penal Code, Chapter 22, (assaultive offenses) committed by the person's caretaker, family member, or other individual who has an ongoing relationship with the person.

(2) Adult--A person 18 years of age or older, or an emancipated minor.

(3) Affiliate--With respect to a:

(A) partnership, each partner of the partnership;

(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 the person is an officer, director, principal stockholder, or person with a disclosable interest.

(4) Ambulatory--Mobility not relying on walker, crutch, cane, other physical object, or use of wheelchair.

(5) Applicant--A person applying for a license under Texas Human Resources Code, Chapter 103.

(6) Authorization--A case manager's decision, before DAHS begins and before payment can be made, that DAHS may be provided to an individual.

(7) Case manager--A DADS employee who is responsible for DAHS case management activities. Activities include eligibility determination, individual enrollment, assessment and reassessment of an individual's need, service plan development, and intercession on the individual's behalf.

(8) Caseworker--Case manager.

(9) 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.

(10) Client--Individual.

(11) Construction, existing--See definition of existing building.

(12) Construction, new--Construction begun after April 1, 2007.

(13) Construction, permanent--A building or structure that meets a nationally recognized building code's details for foundations, floors, walls, columns, and roofs.

(14) DADS--The Department of Aging and Disability Services or its successor agency.

(15) DAHS--Day activity and health services. Health, social, and related support services.

(16) DAHS facility-- A facility that provides services under a day activity and health services program on a daily or regular basis, but not overnight, to four or more elderly persons or persons with disabilities who are not related by blood, marriage or adoption to the owner of the facility.

(17) DAHS program--A structured, comprehensive program offered by a DAHS facility that is designed to meet the needs of adults with functional impairments by providing DAHS in accordance with individual plans of care in a protective setting.

(18) Days--Calendar days, unless otherwise specified.

(19) Department--Department of Aging and Disability Services or its successor agency.

(20) Dietitian consultant--A registered dietitian; a person licensed by the Texas State Board of Examiners of Dietitians; or a person with a bachelor's degree with major studies in food and nutrition, dietetics, or food service management.

(21) Direct service staff--An employee or contractor of a facility who directly provides services to individuals, including the director, a licensed nurse, the activities director, and an attendant. An attendant includes a driver, food service worker, aide, janitor, porter, maid, and laundry worker. A dietitian consultant is not a member of the direct service staff.

(22) Director--The person responsible for the overall operation of a facility.

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

(24) Disclosable interest--Five percent or more direct or indirect ownership interest in an applicant or license holder.

(25) Elderly person--A person 65 years of age or older.

(26) Existing building--A building or portion thereof that, at the time of initial inspection by DADS, is used as an adult day care occupancy, as defined by Life Safety Code, NFPA 101, 2000 edition, Chapter 17 for existing adult day care occupancies; or has been converted from another occupancy or use to an adult day care occupancy, as defined by Chapter 16 for new adult day care occupancies.

(27) Exploitation--An illegal or improper act or process of a caretaker, family member, or other individual, who has an ongoing relationship with the elderly person or person with a disability, using the resources of an elderly person or person with a disability for monetary or personal benefit, profit, or gain without the informed consent of the elderly person or person with a disability.

(28) Facility--A licensed DAHS facility.

(29) Fence--A barrier to prevent elopement of an individual or intrusion by an unauthorized person, consisting of posts, columns, or other support members, and vertical or horizontal members of wood, masonry, or metal.

(30) FM--FM Global (formerly known as Factory Mutual). A corporation whose approval of a product indicates a level of testing and certification that is acceptable to DADS.

(31) Fraud--A deliberate misrepresentation or intentional concealment of information to receive or to be reimbursed for service delivery to which an individual is not entitled.

(32) Functional impairment--A condition that requires assistance with one or more personal care services.

(33) Health assessment--An assessment of an individual by a facility used to develop the individual's plan of care.

(34) Health services--Services that include personal care, nursing, and therapy services.

(A) Personal care services include:

(i) bathing;

(ii) dressing;

(iii) preparing meals;

(iv) feeding;

(v) grooming;

(vi) taking self-administered medication;

(vii) toileting;

(viii) ambulation; and

(ix) assistance with other personal needs or maintenance.

(B) Nursing services may include:

(i) the administration of medications;

(ii) physician-ordered treatments, such as dressing changes; and

(iii) monitoring the health condition of the individual.

(C) Therapy services may include:

(i) physical;

(ii) occupational; and

(iii) speech therapy.

(35) Human services--Include the following services:

(A) personal social services, including:

(i) DAHS;

(ii) counseling;

(iii) in-home care; and

(iv) protective services;

(B) health services, including:

(i) home health;

(ii) family planning;

(iii) preventive health programs;

(iv) nursing facility; and

(v) hospice;

(C) education services, meaning:

(i) all levels of school;

(ii) Head Start; and

(iii) vocational programs;

(D) housing and urban environment services, including public housing;

(E) income transfer services, including;

(i) Temporary Assistance for Needy Families; and

(ii) Supplemental Nutrition Assistance Program; and

(F) justice and public safety services, including:

(i) parole and probation; and

(ii) rehabilitation.

(36) Human service program--An intentional, organized, ongoing effort designed to provide good to others. The characteristics of a human service program are:

(A) dependent on public resources and are planned and provided by the community;

(B) directed toward meeting human needs arising from day-to-day socialization, health care, and developmental experiences; and

(C) used to aid, rehabilitate, or treat people in difficulty or need.

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

(38) Individual--A person who applies for or is receiving services at a facility.

(39) License holder--A person that holds a license to operate a facility.

(40) Licensed vocational nurse (LVN)--A person licensed by the Texas Board of Nursing who works under the supervision of a registered nurse (RN) or a physician.

(41) Life Safety Code, NFPA 101--The Code for Safety to Life from Fire in Buildings and Structures, NFPA 101, a publication of the National Fire Protection Association, Inc. that:

(A) addresses the construction, protection, and occupancy features necessary to minimize danger to life from fire, including smoke, fumes, or panic; and

(B) establishes minimum criteria for the design of egress features so as to permit prompt escape of occupants from buildings or, where desirable, into safe areas within the building.

(42) Long-term care facility--A facility that provides care and treatment or personal care services to four or more unrelated persons, including:

(A) a nursing facility licensed under Texas Health and Safety Code, Chapter 242;

(B) an assisted living facility licensed under Texas Health and Safety Code, Chapter 247; and

(C) an intermediate care facility serving individuals with an intellectual disability or related conditions licensed under Texas Health and Safety Code, Chapter 252.

(43) 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, and delivery of services. Management services do not include contracts solely for maintenance, laundry, or food services.

(44) Manager--A person having a contractual relationship to provide management services to a facility.

(45) Medicaid-eligible--An individual who is eligible for Medicaid.

(46) Medically related program--A human services program under the human services-health services category in the definition of human services in this section.

(47) Neglect--The failure to provide for one's self the goods or services, including medical services, that are necessary to avoid physical harm, mental anguish, or mental illness; or the failure of a caregiver to provide these goods or services.

(48) NFPA--The National Fire Protection Association. NFPA is an organization that develops codes, standards, recommended practices, and guides through a consensus standards development process approved by the American National Standards Institute.

(49) NFPA 10--Standard for Portable Fire Extinguishers. A standard developed by NFPA for the selection, installation, inspection, maintenance, and testing of portable fire extinguishing equipment.

(50) NFPA 13--Standard for the Installation of Sprinkler Systems. A standard developed by NFPA for the minimum requirements for the design and installation of automatic fire sprinkler systems, including the character and adequacy of water supplies and the selection of sprinklers, fittings, pipes, valves, and all maintenance and accessories.

(51) NFPA 70--National Electrical Code. A code developed by NFPA for the installation of electric conductors and equipment.

(52) NFPA 72--National Fire Alarm Code. A code developed by NFPA for the application, installation, performance, and maintenance of fire alarm systems and their components.

(53) NFPA 90A--Standard for the Installation of Air Conditioning and Ventilating Systems. A standard developed by NFPA for systems for the movement of environmental air in structures that serve spaces over 25,000 cubic feet or buildings of certain heights and construction types, or both.

(54) NFPA 90B--Standard for the Installation of Warm Air Heating and Air-Conditioning Systems. A standard developed by the NFPA for systems for the movement of environmental air in one- or two-family dwellings and structures that serve spaces not exceeding 25,000 cubic feet.

(55) NFPA 96--Standard for Ventilation Control and Fire Protection of Commercial Cooking Operations. A standard developed by NFPA that provides the minimum fire safety requirements related to the design, installation, operation, inspection, and maintenance of all public and private cooking operations, except for single-family residential usage.

(56) Nurse--A registered nurse (RN) or a licensed vocational nurse (LVN) licensed in the state of Texas.

(57) Nursing services--Services provided by a nurse, including:

(A) observation;

(B) promotion and maintenance of health;

(C) prevention of illness and disability;

(D) management of health care during acute and chronic phases of illness;

(E) guidance and counseling of individuals and families; and

(F) referral to physicians, other health care providers, and community resources when appropriate.

(58) Person--An individual, corporation, or association.

(59) Person with a disability--A person whose functioning is sufficiently impaired to require frequent medical attention, counseling, physical therapy, therapeutic or corrective equipment, or another person's attendance and supervision.

(60) Physician's orders--An order that is signed and dated by a medical doctor (MD) or doctor of osteopathy (DO) who is licensed to practice medicine in the state of Texas. The DADS physician's order form used by a DAHS facility that contracts with DADS must include the MD's or DO's license number.

(61) Plan of care-- A written plan, based on a health assessment and developed jointly by a facility and an individual or the individual's responsible party, that documents the functional impairment of the individual and the DAHS needed by the individual.

(62) Protective setting--A setting in which an individual's safety is ensured by the physical environment by staff.

(63) Registered nurse (RN)--A person licensed by the Texas Board of Nursing to practice professional nursing.

(64) Related support services--Services to an individual, family member, or caregiver that may improve the person's ability to assist with an individual's independence and functioning. Services include:

(A) information and referral;

(B) transportation;

(C) teaching caregiver skills;

(D) respite;

(E) counseling;

(F) instruction and training; and

(G) support groups.

(65) Responsible party--A person designated by an individual as the individual's representative.

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

(67) Sanitation--Protection from illness, the transmission of disease, or loss of life due to unclean surroundings, the presence of disease transmitting insects or rodents, unhealthful conditions or practices in the preparation of food and beverage, or the care of personal belongings.

(68) Semi-ambulatory--Mobility relying on a walker, crutch, cane, other physical object, or independent use of wheelchair.

(69) Serious injury--An injury requiring emergency medical intervention or treatment by medical personnel, either at a facility or at an emergency room or medical office.

(70) Social activities--Therapeutic, educational, cultural enrichment, recreational, and other activities in a facility or in the community provided as part of a planned program to meet the social needs and interests of an individual.

(71) UL--Underwriters Laboratories, Inc. A corporation whose approval of a product indicates a level of testing and certification that is acceptable to DADS.

(72) Working with people--Responsible for the delivery of services to individuals either directly or indirectly. Experience as a manager would meet this definition; however, an administrative support position such as a bookkeeper does not. Experience does not have to be in a paid capacity.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 21, 2017.

TRD-201703725

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Effective date: October 11, 2017

Proposal publication date: April 7, 2017

For further information, please call: (512) 438-5502


SUBCHAPTER B. APPLICATION PROCEDURES

40 TAC §98.16

The amendment is adopted under Texas Government Code, §531.0055, which requires that the HHSC executive commissioner shall adopt rules for the operation and provision of health and human services; and Texas Human Resources Code, §103.004, which requires the HHSC executive commissioner to adopt rules related to the licensure of a day activity and health services facility.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 21, 2017.

TRD-201703726

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Effective date: October 11, 2017

Proposal publication date: April 7, 2017

For further information, please call: (512) 438-5502


PART 20. TEXAS WORKFORCE COMMISSION

CHAPTER 802. INTEGRITY OF THE TEXAS WORKFORCE SYSTEM

SUBCHAPTER D. AGENCY MONITORING ACTIVITIES

40 TAC §802.65

The Texas Workforce Commission (TWC) adopts amendments to the following section of Chapter 802, relating to the Integrity of the Workforce System, without changes, as published in the August 4, 2017, issue of the Texas Register (42 TexReg 3866):

Subchapter D. Agency Monitoring Activities, §802.65

PART I. PURPOSE, BACKGROUND, AND AUTHORITY

PART II. EXPLANATION OF INDIVIDUAL PROVISIONS WITH COMMENTS AND RESPONSES

PART I. PURPOSE, BACKGROUND, AND AUTHORITY

The purpose of the adopted Chapter 802 rule change is to facilitate the timely issuance of TWC reports following compliance reviews of Local Workforce Development Boards (Boards), Adult Education and Literacy (AEL) grant recipients, and TWC grantees or contractors. The rule change ensures that monitored entities maintain full due process in responding to and resolving any findings or questioned costs. Finally, the rule change clarifies to whom TWC monitoring reports are sent.

Currently, §802.65 requires that, following a monitoring visit, the TWC's Subrecipient Monitoring department (SRM) take the following actions:

--If no issues or questioned costs are identified, issues a management letter and closes the review;

--If there are issues, issues a draft report, which, if the monitored entity responds with documentation resolving the finding, prompts SRM to issue a management letter to close the review; or

--If there are issues and the monitored entity concurs with the draft report finding, issues a final report.

Issuance of the final report transfers monitoring findings and questioned costs to the audit resolution process.

The draft report, which is not required under the uniform grant guidance provisions of 2 CFR Part 200, was intended to allow monitored entities the opportunity to provide input into potential administrative findings and questioned costs, which would then be considered by SRM before issuance of the final report. As a practical matter, the draft report has become de facto audit resolution and has the effect of delaying the final report. Additionally, if findings or questioned costs remain in the final report, audit resolution simply resumes.

In contrast, when the US Department of Labor (DOL) audits grantees and subrecipients, DOL's audit team issues one monitoring report and gives the monitored entity 45 calendar days to address the findings. When all findings have been resolved, DOL issues a monitoring closure letter. This approach provides a streamlined and efficient transition between monitoring activities, report issuance, and final audit resolution.

PART II. EXPLANATION OF INDIVIDUAL PROVISIONS WITH COMMENTS AND RESPONSES

(Note: Minor editorial changes are made that do not change the meaning of the rules and, therefore, are not discussed in the Explanation of Individual Provisions.)

SUBCHAPTER D. AGENCY MONITORING ACTIVITIES

TWC adopts the following amendments to Subchapter D:

§802.65. Agency Monitoring Reports and Resolution

Amended §802.65(a) stipulates that following monitoring activities, the TWC's monitoring department will issue a single monitoring report that summarizes the results of those activities. If no administrative findings or questioned costs are noted as a result of the audit, the monitoring report will be a management letter.

The amendment clarifies that only Boards, AEL grant recipients, and TWC grantees or contractors will be issued the monitoring report.

With regard to Boards, the monitoring report will be provided to the Board's chair and executive director. The monitoring report will also be provided to the designated representatives of the federal oversight agencies responsible for the programs reviewed by the TWC's monitoring staff to ensure compliance with any and all federal reporting requirements. The monitoring report will also be provided to the three-member Commission and TWC executive staff.

Amended §802.65(b) designates the initial resolution contact as the initial resolution notification. The amendment clarifies that only Boards, AEL grant recipients, and TWC grantees or contractors will be issued the notification. The amendment also stipulates that the recipient of the notification has 45 calendar days from the date the notification was mailed in which to respond.

Amended §802.65(b)(1)(B) clarifies that the TWC's audit resolution department will continue to coordinate with the monitored entity in the event that findings are not resolved and remain open until the following year’s audit.

New §802.65(b)(3)(A) clarifies that the TWC may impose corrective actions under Chapter 802, Subchapter G, at any time during the resolution process. It is the intent of this amendment to stipulate that the TWC is not precluded from imposing corrective action allowed under Subchapter G, regardless of the status of TWC monitoring and resolution activities or reports thereto.

Amended §802.65(c) clarifies that only Boards, AEL grant recipients, and TWC grantees or contractors will be issued an initial determination.

Finally, amended §802.65(d) clarifies that only Boards, AEL grant recipients, and TWC grantees or contractors will be issued a final determination.

COMMENT:

One commenter, a Board, did not concur with removing the draft report before issuing a final report. The commenter did not consider the draft report to be the de facto report. The commenter expressed concern that the lack of a draft report would cause unnecessary concern by reviewers who consider the report as final. The commenter felt that removing the draft report also removed the opportunity to review and comment on the findings prior to the final report being sent. Finally, the commenter felt that the draft report also serves as a record of agreement that all individuals involved understand the issues prior to the final report being produced.

RESPONSE:

The Commission reiterates its conclusion that under the current process, the back-and-forth review between SRM and the auditee prior to report issuance is, in fact, audit resolution, and has the effect of delaying the final report. The Commission respectfully disagrees that the draft report serves as a "record of agreement" among the parties, regarding issues identified during the monitoring review. The draft report serves as notice of findings, to which the auditee responds with concurrence or non-concurrence, and generally includes actions undertaken by the auditee. Those actions constitute the audit resolution.

Under the new rules, the auditee will still retain the ability to dispute findings with which it does not agree, and through the audit resolution process, those findings may be removed and an audit resolution closure letter issued.

Finally, the process outlined by the amended rules mirrors the one used by DOL, to which the commenter would be subject if the Board were selected for an audit by DOL.

COMMENTS WERE RECEIVED FROM:

Brazos Valley Workforce Development Board

The amendments are adopted under Texas Labor Code §301.0015, which provides TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities.

The adopted rules affect Texas Labor Code, Title 4.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 21, 2017.

TRD-201703738

Patricia Gonzalez

Deputy Director, Workforce Development Division Programs

Texas Workforce Commission

Effective date: October 11, 2017

Proposal publication date: August 4, 2017

For further information, please call: (512) 680-1655