PART 1. HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 930. ADDITIONAL RIGHTS OF INDIVIDUALS RECEIVING SERVICES AT STATE FACILITIES
SUBCHAPTER A. STATE HOSPITAL ESSENTIAL CAREGIVER
26 TAC §§930.1, 930.3, 930.5, 930.7, 930.9, 930.11
The Texas Health and Human Services Commission (HHSC) adopts new §930.1, concerning Purpose; §930.3, concerning Application; §930.5, concerning Definitions; §930.7, concerning Essential Caregiver In-Person Visitation; §930.9, concerning Revocation; and §930.11, concerning Temporary Suspension of Essential Caregiver Visits.
Sections 930.1, 930.3, 930.5, 930.7, 930.9 and 930.11 are adopted with changes to the proposed text as published in the May 3, 2024, issue of the Texas Register (49 TexReg 2966). These rules will be republished.
BACKGROUND AND JUSTIFICATION
The new sections are necessary to comply with Texas Health and Safety Code Chapter 552, Subchapter F, Right to Essential Caregiver Visits, enacted by Senate Bill 52, 88th Legislation, Regular Session, 2023, which requires HHSC to develop guidelines to assist state hospitals in establishing essential caregiver visitation policies and procedures. Specifically, §552.202 establishes the right for a patient in a state hospital, or their legally authorized representative, to designate an essential caregiver with whom a state hospital cannot prohibit in-person visitation. Section 552.203 further requires the HHSC Executive Commissioner to develop guidelines for the state hospitals regarding the patient's, or their LAR's, right to designate an essential caregiver, visitation schedules, physical contact, and safety protocols. Section 552.204 addresses when an essential caregiver designation can be revoked, and the related right to an appeal. Section 552.205 addresses when a state hospital may seek a temporary suspension of visits.
COMMENTS
The 31-day comment period ended June 3, 2024.
During this period, HHSC received comments regarding the proposed rules from two commenters, Disability Rights Texas and Texas Medical Association. A summary of comments relating to the rules and HHSC's responses follow.
Comment: One commenter suggests that the application of §930.3(a) be broadened to include state hospital contracted beds and private psychiatric hospitals.
Response: HHSC declines to revise the rule in response to this comment. The definition of state hospital under §930.5(14) includes contracted state hospital beds and Texas Health and Safety Code Section 552.002 only provides authority for HHSC to implement these rules for state hospital patients. Rules for private psychiatric hospitals are outside the scope of this rule project.
Comment: The commenter suggests that an appeal in §930.9(c)(2) be submitted to the HHSC Behavioral Health Ombudsman as an objective, external third party instead of the state hospital associate commissioner.
Response: HHSC declines to revise the rule as suggested. The HHSC Behavioral Health Ombudsman does not conduct appeals; however, HHSC amends §930.9(c)(3) regarding the revocation letter to include how the patient or their LAR, or the essential caregiver, may contact the Ombudsman for information or assistance.
Comment: The commenter suggests that §930.11(a)(3) and §930.11(b)(3), regarding when an essential caregiver designation may be suspended, be amended to align with Section 552.205(a) of the Texas Health and Safety Code by adding the phrase "if HHSC determines that in-person visitation does not pose a serious community health risk."
Response: HHSC agrees and revises the rule as suggested.
Minor editorial changes are made to rename the chapter title and to add a subchapter to improve the rule organizational structure. Corresponding edits are made to replace references to "this chapter" with "this subchapter" for consistency and accuracy. Additional editorial changes are made to add a statutory cross reference in §930.1; update references in §930.3 and §930.5; add definitions for the terms "HHSC," "In person," and "Ombudsman" in §930.5 and renumber subsequent definitions for clarity; update the definitions of "Adult," "LAR," "Patient," and "State hospital;" abbreviate "the Texas Health and Human Services Commission" to "HHSC" and change the term "individual" to "patient" in §930.7 for consistency; and delete references to "individual" and replace "shall" with "must" in §930.9.
STATUTORY AUTHORITY
The new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §552.203(a) which requires the Executive Commissioner of HHSC to, by rule, develop guidelines to assist state hospitals in establishing essential caregiver visitation policies and procedures; and §552.204(c) which requires HHSC to, by rule, establish an appeals process to evaluate the revocation of an individual's designation as an essential caregiver.
§930.1.Purpose.
The purpose of this subchapter is to provide guidance and information on the right of state hospital patients, or the patient's legally authorized representative or representatives, to designate an essential caregiver and essential caregiver visitation policies in state hospitals in accordance with Texas Health and Safety Code Chapter 552, Subchapter F.
§930.3.Application.
(a) This subchapter applies to the Texas state hospitals listed under Texas Health and Safety Code Section 552.002, any facilities that the Texas Health and Human Services Commission (HHSC) operates as a state hospital, and any contracted state hospital beds funded by HHSC.
(b) The entities listed under subsection (a) of this section must adhere to the procedures outlined in this subchapter and monitor compliance with the implementation of the essential caregiver designation.
§930.5.Definitions.
The following words and terms, when used in this subchapter, have the following meanings.
(1) Adult--An individual who is 18 years of age or older or who is emancipated under the Texas Family Code.
(2) Community Health Risk--Any action or event that places the individuals served by the facility, staff, visitors, or the general public at the chance for or exposure to injury, sickness, or loss. This includes a public safety risk or disaster declaration by government officials.
(3) Day--A calendar day.
(4) Essential Caregiver--A family member, friend, guardian, or other individual a patient or patient's legally authorized representative selects for in-person visits.
(5) HHSC--Texas Health and Human Services Commission, or its designee.
(6) In person--Within the physical presence of another person. In person does not include audiovisual or audio-only communication.
(7) LAR--Legally authorized representative. A person authorized by state law to act on behalf of an individual or patient regarding a matter described by this subchapter, including the parent of a minor child.
(8) Manifestly Dangerous--An individual who, despite receiving appropriate treatment, including treatment targeted to the individual's dangerousness, remains likely to endanger others and requires a maximum-security environment to continue treatment and protect public safety.
(9) Minor--An individual younger than 18 years of age and who has not been emancipated under Chapter 31 of the Texas Family Code.
(10) Ombudsman--The Ombudsman for Behavioral Health Access to Care established by HHSC in accordance with Texas Government Code §547.0002.
(11) Parent--The biological or adoptive parent, managing conservator, or guardian of a minor.
(12) Patient--An individual receiving services in a state hospital under this subchapter.
(13) Revocation--Action taken to terminate an essential caregiver designation.
(14) State hospital--Texas state hospitals listed under Texas Health and Safety Code Section 552.002, any facilities that HHSC operates as a state hospital, and any contracted state hospital beds funded by HHSC.
(15) Suspension--Temporary prevention of in-person essential caregiver visitation.
§930.7.Essential Caregiver In-Person Visitation.
Guidelines for state hospital policies and procedures.
(1) Each patient or the patient's legally authorized representative (LAR) has the right to designate an essential caregiver with whom in-person state hospital visitation may not be prohibited except as prescribed in §930.9 of this subchapter (relating to Revocation) and §930.11 of this subchapter (relating to Temporary Suspension of Essential Caregiver Visits).
(2) If a patient is a minor, the patient's LAR may designate up to two parents as essential caregivers.
(3) An essential caregiver may visit the patient for at least two hours each day except when HHSC identifies a serious community health risk under §930.9 or §930.11 of this subchapter.
(4) Physical contact between the patient and the essential caregiver during in-person visitation may occur except in circumstances where physical contact is, as a matter of safety and in the exercise of reasonable medical judgment of a member of the medical staff, determined to present a significant risk of harm to the patient, essential caregiver, or others in light of the patient's current medical or psychiatric condition; including if a patient has been determined to be manifestly dangerous pursuant to 25 TAC Chapter 415, Subchapter G (relating to Determination of Manifest Dangerousness). The determination must be documented in the patient's medical record.
(5) The state hospital must provide a copy of visitation policies to the designated essential caregiver within 48 hours after the designated essential caregiver's agreement to become the essential caregiver and obtain a signed agreement form certifying that the essential caregiver agrees to follow the state hospital safety protocols for essential caregiver visits. This signed agreement must be placed in the patient's medical record.
(6) The state hospital may not establish safety protocols more restrictive for essential caregivers than those established for state hospital staff.
§930.9.Revocation.
(a) Each patient or the patient's LAR has the right to revoke an essential caregiver designation. The patient, the patient's guardian, or the patient's LAR may then designate another person as the essential caregiver.
(b) The state hospital may revoke an essential caregiver designation if the essential caregiver violates state hospital policies, procedures, or safety protocols. At the time of revocation, the essential caregiver and the patient or the patient's LAR will be provided a copy of the violated policy, procedure, or safety protocol.
(c) If a state hospital revokes an essential caregiver designation under this section:
(1) the patient, or the patient's LAR, has the right to designate another essential caregiver immediately;
(A) within 24 hours, the state hospital must notify the patient or the patient's LAR of the revocation in person or by phone and the notification must be documented in the patient's record; and
(B) within two business days, the state hospital must send a revocation notification letter to the patient or the patient's LAR via certified mail to include the state hospital appeal process;
(2) the patient or the patient's LAR may petition the state hospital associate commissioner to appeal the revocation of an essential caregiver's designation;
(A) not later than the 14th calendar day after the date of revocation, the patient or the patient's LAR, may request an appeal by submitting a written request to the state hospital associate commissioner's office;
(B) the state hospital associate commissioner or designee will make a determination on the essential caregiver appeal not later than the 14th calendar day after receiving the request; and
(C) the outcome will be documented in the patient's record and a decision letter will be sent to the requestor within two business days after the determination, if the patient or the patient's LAR files an appeal; and
(3) if the revocation is upheld, within two business days, the state hospital will send a revocation letter to the essential caregiver and the patient or the patient's LAR via certified mail, including how to contact the Ombudsman in a language the essential caregiver and the patient or their LAR understands for information or assistance at 1-800-252-8154 or the HHSC website.
§930.11.Temporary Suspension of Essential Caregiver Visits.
(a) Each state hospital may petition the state hospital associate commissioner or the state hospital associate commissioner's designee to suspend in-person essential caregiver visitation if in-person visitation poses a serious community health risk.
(1) The state hospital associate commissioner or designee may only approve a suspension for up to seven calendar days.
(2) State hospitals must request each suspension separately.
(3) The state hospital associate commissioner may deny the state hospital request if HHSC determines that in-person visitation does not pose a serious community health risk.
(b) Each state hospital may petition the state hospital associate commissioner or the state hospital associate commissioner's designee to extend a suspension of in-person essential caregiver visitation for more than seven calendar days if in-person visitation continues to pose a serious community health risk.
(1) The state hospital associate commissioner or designee may only approve an extension for up to seven calendar days.
(2) State hospitals must request each extension separately.
(3) The state hospital associate commissioner may deny the state hospital request if HHSC determines that in-person visitation does not pose a serious community health risk.
(c) A state hospital may not suspend in-person essential caregiver visitation in the 12 months from the date of the initial suspension for a period that:
(1) is more than 14 consecutive calendar days; or
(2) is more than a total of 45 calendar days.
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 July 24, 2024.
TRD-202403358
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: August 13, 2024
Proposal publication date: May 3, 2024
For further information, please call: (512) 438-3049