Proposed Rules Title 26

TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 554. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §554.101, concerning Definitions; §554.405, concerning Additional Requirements for Trust Funds in Medicaid-certified Facilities; §554.601, concerning Freedom from Abuse, Neglect, and Exploitation; and §554.1920, concerning Operating Policies and Procedures.

BACKGROUND AND PURPOSE

The purpose of the proposal is to implement two bills from the 88th Legislature, Regular Session, 2023. House Bill (H.B.) 1009 relates to employment suspension for nursing facility employees accused of committing reportable conduct, such as abuse, neglect, or exploitation. Senate Bill (S.B.) 240 relates to health facility employee workplace violence prevention in facilities, including nursing facilities. This rule project proposes revisions related to trust fund monitoring and audits, with the purpose of decreasing the amount of time nursing facilities are allowed to complete corrective action plans to return to compliance prior to the imposition of a hold on payments due to the facility. This proposal also makes non-substantive edits to update references within the rules.

SECTION-BY-SECTION SUMMARY

Proposed amendments to §§554.101, 554.405, 554.601, and 554.1920 update references in the rules and make non-substantive edits to improve readability, in addition to the proposed amendments listed below.

The proposed amendment to §554.101 revises definitions to nursing facility rules. Paragraph (123) adds a definition for "reportable conduct" in response to H.B. 1009.

The proposed amendment to §554.405 decreases the amount of time nursing facilities are allowed to complete corrective action plans to return to compliance prior to the imposition of a hold on payments due to the facility.

The proposed amendment to §554.601 implements H.B. 1009 related to reportable conduct and employment suspension.

The proposed amendment to §554.1920 implements S.B. 240 related to workplace violence and prevention policies and procedures.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

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

(5) the proposed rules will not create new regulations;

(6) the proposed rules will expand existing rules;

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

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

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

Trey Wood has also determined that there could be an adverse economic effect on small businesses, micro-businesses, or rural communities.

Required compliance related to H.B. 1009 may increase costs for nursing facilities and have an adverse economic effect on rural communities. Facilities may incur increased cost related to suspension of employees during the due process period while the employee exhausts appeals. This is because facilities may have to hire additional staff to cover for the absence of the suspended employee so they can meet nursing facility residents' needs.

Implementing the requirements related to S.B. 240 and the workplace violence prevention committee may increase cost and have an adverse economic affect in rural communities secondary to the cost and resources to implement the bill. There is a possibility that nursing facilities may have to hire additional staff to meet the workforce violence prevention committee member requirements of registered nurses who provide direct care to facility residents and facility employees who provide security services. Nursing facilities may incur additional cost related to establishing, implementing, and enforcing written workplace violence prevention policy and training for the prevention policy if the facility must hire additional staff or contract with consultative services for compliance with S.B. 240.

HHSC is unable to estimate the number of small businesses, micro-businesses, or rural communities subject to the proposed rules. The projected economic impact for a small business, micro-business, or rural community is the cost to comply.

HHSC determined that alternative methods to achieve the purpose of the proposed rules for small businesses, micro-businesses, or rural communities would not be consistent with ensuring the health and safety of nursing facility residents.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas and are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

Michelle Dionne-Vahalik, Associate Commissioner for Long-Term Care Regulation, has determined that for each year of the first five years the rules are in effect, the public benefit will be protecting nursing facility residents from the potential exposure to employees who may have committed abuse, neglect, or exploitation of a resident, or misappropriation of resident property and helping prevent workplace violence. Implementation of rule changes related to trust fund monitoring and audits will benefit the public by decreasing the amount of time nursing facilities are allowed to complete corrective action plans to return to compliance prior to the imposition of a hold on payments due to the facility.

Trey Wood has also determined that for the first five years the rules are in effect, persons who are required to comply with the proposed rules may incur economic costs due to the cost to comply with H.B. 1009.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Written comments on the proposal may be submitted to Rachael Holden and Sandra Wiegand, Program Specialists, by email to HHSCLTCRRules@hhs.texas.gov.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 23R071" in the subject line.

SUBCHAPTER B. DEFINITIONS

26 TAC §554.101

STATUTORY AUTHORITY

The amendment is authorized by 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; 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; Texas Human Resources Code §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program; and Texas Health and Safety Code §242.001, which states that the goal of Chapter 242 is to ensure that nursing facilities in Texas deliver the highest possible quality of care and establish the minimum acceptable levels of care for individuals who are living in a nursing facility.

The amendment implements Texas Government Code §531.0055 and §531.021; Texas Human Resources Code §32.021; and Texas Health and Safety Code §§242.001, 253.0025, and 331.001 - 331.006.

§554.101.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 Texas Penal Code §21.08 (relating to Indecent Exposure [~~indecent exposure~~]) or Texas Penal Code, Chapter 22 (relating to Assaultive Offenses [~~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) Activity director--The qualified individual appointed by the facility to direct the activities program as described in §554.702 of this chapter (relating to Activities).

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

(6) Administrator--A person currently licensed in accordance with [~~26 TAC~~] Chapter 555 of this title (relating to Nursing Facility Administrators).

(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 as a registered nurse and approved to practice as an advanced practice registered nurse by the Texas Board of Nursing.

(9) Adverse event--An untoward, undesirable, and usually unanticipated event that causes death or serious injury, or the risk of death or serious injury.

(10) Alzheimer's Disclosure Statement for Nursing Facilities--The HHSC-prescribed form a facility uses to describe the nature of care or treatment of residents with Alzheimer's disease and related disorders.

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

(14) 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.

(15) 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.

(16) 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.

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

(18) Certified facility--A facility that meets the requirements of the Medicare program, the Medicaid program, or both.

(19) Certified Ombudsman--Has the meaning given in §88.2 of this title (relating to Definitions).

(20) CFR--Code of Federal Regulations.

(21) 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.

(22) Chemical restraints--Any drug administered for the purpose of discipline or convenience, and not required to treat the resident's medical symptoms.

(23) CMS--Centers for Medicare & Medicaid Services.

(24) Complaint--Any allegation received by HHSC 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.

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

(26) 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 §554.801(2) of this chapter (relating to Resident Assessment).

(27) 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 §554.802(c)(2) of this chapter (relating to Comprehensive Person-Centered Care Planning), 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;

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

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

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

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

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

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

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

(30) DADS--The term referred to the Department of Aging and Disability Services; it now refers to HHSC.

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

(32) DHS--This term referred to the Texas Department of Human Services; it now refers to HHSC.

(33) Dietitian--A qualified dietitian is one who is qualified based upon either:

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

(B) licensure, or provisional licensure, as a dietitian under Texas Occupations Code, Chapter 701 and one year of supervisory experience in dietetic service of a health care facility.

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

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

(36) Distinct part--That portion of a facility certified to participate in the Medicaid Nursing Facility program or as a SNF in the Medicare program.

(37) 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 humans;

(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.

(38) 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.

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

(40) Essential Caregiver--A family member, friend, guardian, volunteer, or other person designated for in-person visits by an individual, resident, or client or the individual's, resident's, or client's guardian or legally authorized representative (LAR) during a public health emergency or disaster. In case of conflict between an individual's, resident's, or client's selection and a guardian's selection on behalf of the individual, resident, or client, the guardian's selection prevails, in accordance with the terms of the guardianship. If an individual, resident, or client has no guardian and is unable to select an essential caregiver, the individual's, resident's, or client's LAR may select the essential caregiver.

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

(42) 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.

(43) 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 that [~~which~~] meets the requirements of §1919(a) - (d) of the Social Security Act (42 United States Code [~~U.S.C.~~] §1396r(a) - (d)). 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 303 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.

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

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

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

(47) 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.

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

(49) 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.

(50) 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 Texas Administrative Code [~~TAC~~] Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act) and 40 TAC Chapter 91 (relating to Hearings Under the Administrative Procedure Act).

(51) HHSC--The Texas Health and Human Services Commission.

(52) HIV--Human Immunodeficiency Virus.

(53) 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 HHSC.

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

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

(56) Inspection--Any on-site visit to or survey of an institution by HHSC for the purpose of licensing, monitoring, complaint investigation, architectural review, or similar purpose.

(57) 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 to exceed 24 hours, until professional staff can develop a care plan to meet the resident's needs.

(58) IV--Intravenous.

(59) 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.

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

(61) Licensed health professional--A physician; physician assistant; advanced practice registered nurse; physical, speech, or occupational therapist; pharmacist; physical therapist assistant occupational therapy assistant; registered professional nurse; licensed vocational nurse; licensed dietitian; licensed social worker; or certified respiratory care practitioner.

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

(63) Life Safety Code--NFPA 101.

(64) Life safety features--Fire safety components required by NFPA 101, including building construction, fire alarm systems, smoke detection systems, interior finishes, sizes and thicknesses of doors, exits, emergency electrical systems, and sprinkler systems.

(65) Life support--Use of any technique, therapy, or device to assist in sustaining life. (See §554.419 of this chapter (relating to Advance Directives)).

(66) 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.

(67) 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.

(68) Long-term care-regulatory--HHSC Regulatory Services Division, which is responsible for surveying nursing facilities to determine compliance with regulations for licensure and certification for Medicaid participation.

(69) Major injury--An injury that qualifies as a major injury under NFPA 99.

(70) 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.

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

(72) Managing local ombudsman--Has the meaning given in §88.2 of this title.

(73) MDS--Minimum data set. See RAI.

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

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

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

(77) 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.

(78) 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.

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

(80) Medication aide--A person who holds a current permit issued under the Medication Aide Training Program as described in Chapter 557 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.

(81) Memory Care Disclosure Statement for Nursing Facilities--The HHSC-prescribed form a facility uses when the facility advertises, markets, or otherwise promotes that it provides services to residents with Alzheimer's disease and related disorders.

(82) Memory care services--Services provided by a nursing facility that meet the needs of residents with a diagnosis of Alzheimer's disease or related disorders or a diagnosis of dementia.

(83) Misappropriation--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.

(84) 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.

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

(86) NFPA--National Fire Protection Association.

(87) NFPA 99--NFPA 99, Health Care Facilities Code, 2012 Edition.

(88) NFPA 101--NFPA 101, Life Safety Code, 2012 Edition.

(89) Nurse aide--An individual who provides nursing or nursing-related services to residents in a facility under the supervision of a licensed nurse. This term may include an individual who provides these services through an agency or under a contract with the facility. 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.

(90) Nurse practitioner--An advanced practice registered nurse licensed by the Texas Board of Nursing in the role of Nurse Practitioner.

(91) Nurses' station--A nurses' station is an area designated as the focal point on all shifts for the administration and supervision of resident-care activities for a designated number of resident bedrooms.

(92) 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.

(93) Nursing facility or nursing home--See definition of "facility."

(94) 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.

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

(96) OBRA--Omnibus Budget Reconciliation Act of 1987, which includes provisions relating to nursing home reform.

(97) Ombudsman intern--Has the meaning given in §88.2 of this title.

(98) Ombudsman Program--Has the meaning given in §88.2 of this title.

(99) Paid feeding assistant--An individual who meets the requirements of §554.1113 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.

(100) 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.

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

(102) 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.

(103) 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.

(104) Person-centered care--To focus on the resident as the locus of control, and to support the resident in making choices and having control over the resident's daily life.

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

(106) Physical restraint--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.

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

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

(109) Podiatrist--A practitioner whose profession encompasses the care and treatment of feet who is licensed to practice podiatry by the Texas State Board of Podiatric Medical Examiners.

(110) 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.

(111) 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.

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

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

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

(115) Qualified mental health professional - community services--Has the meaning given in §301.303 of this title (relating to Definitions).

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

(117) 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.

(118) 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.

(119) Quality-of-care monitor--A registered nurse, pharmacist, or dietitian employed by HHSC 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 HHSC Regulatory Services Division.

(120) RAI--Resident Assessment Instrument. An assessment tool used to conduct comprehensive, accurate, standardized, and reproducible assessments of each resident's functional capacity as specified by the Secretary of the U. S. Department of Health and Human Services. At a minimum, this instrument must consist of the MDS core elements as specified by CMS; utilization guidelines; and Care Area Assessment process.

(121) 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.

(122) 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.

(123) Reportable conduct--Conduct subject to reporting to the Employee Misconduct Registry (EMR) established under Texas Health and Safety Code, Chapter 253, including:

(A) abuse or neglect that causes or may cause death or harm to a resident;

(B) sexual abuse of a resident;

(D) emotional, verbal, or psychological abuse that causes harm to a resident.

(124) [~~(123)~~] 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.

(125) [~~(124)~~] Resident--Any individual residing in a nursing facility.

(126) [~~(125)~~] Resident group--A group or council of residents who meet regularly.

(127) [~~(126)~~] Resident representative--

(A) Any of the following:

(i) an individual chosen by the resident to act on behalf of the resident in order to support the resident in decision-making; access medical, social, or other personal information of the resident; manage financial matters; or receive notifications;

(ii) a person authorized by state or federal law (including agents under power of attorney, representative payees, and other fiduciaries) to act on behalf of the resident in order to support the resident in decision-making; access medical, social, or other personal information of the resident; manage financial matters; or receive notifications;

(iii) legal representative, as used in Section 712 of the Older Americans Act (40 U.S.C. §3058g); or

(iv) the court-appointed guardian of a resident.

(B) This definition is not intended to expand the scope of authority of any resident representative beyond that authority specifically authorized by the resident, state or federal law, or a court of competent jurisdiction.

(128) [~~(127)~~] 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.

(129) [~~(128)~~] Restraint--A chemical or physical restraint.

(130) [~~(129)~~] 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.

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

(132) [~~(131)~~] 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 HHSC.

(133) [~~(132)~~] 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 HHSC pays a nursing facility for services provided to the recipient.

(134) [~~(133)~~] Secretary--Secretary of the U.S. Department of Health and Human Services.

(135) [~~(134)~~] 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.

(136) [~~(135)~~] 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.

(137) [~~(136)~~] 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.

(138) [~~(137)~~] 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 supervised employment providing social services in a health care setting.

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

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

(141) [~~(140)~~] State Ombudsman--Has the meaning given in §88.2 of this title.

(142) [~~(141)~~] 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.

(143) [~~(142)~~] 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 §554.2107 of this chapter (relating to Revocation of a License by the HHSC Executive Commissioner).

(144) [~~(143)~~] Substandard quality of care violation--A violation of §554.401(a) or (b) of this chapter (relating to Introduction); §554.402(b) or (c) of this chapter (relating to Exercise of Rights) [~~§554.402(b), (c), or (m)~~]; §554.406(d) - (h) of this chapter (relating to Free Choice); §554.417 of this chapter (relating to Married Couples) [~~§554.417(a), (b), or (d); §554.425(b)(1)~~ ]; §554.504(a) of this chapter (relating to Equal Access to Quality Care in Medicaid-certified Facilities); §554.601 of this chapter (relating to Freedom from Abuse, Neglect and Exploitation) ; §554.602 of this chapter (relating to Incidents of Abuse, Neglect, and Exploitation Reportable to the Texas Health and Human Services Commission and Law Enforcement Agencies by Facilities) ; §554.701 of this chapter (relating to Quality of Life); §554.703 of this chapter (relating to Social Services General Requirements); §554.706(a), (c), (d)(1) - (5), or (e)(7) of this chapter (relating to Resident Group and Family Council); §554.801 of this chapter (relating to Resident Assessment); §554.901 of this chapter (relating to Quality of Care); §554.904(2) or (4) of this chapter (relating to Behavioral Health Services); §554.1501(5), (6), or (7) of this chapter (relating to Pharmacy Services); or §554.1601(e)(2) of this chapter (relating to Infection Control [~~Resident Rights~~]) that constitutes:

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

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

(145) [~~(144)~~] Supervision--General supervision, unless otherwise identified.

(146) [~~(145)~~] Supervision (direct)--Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity within the qualified person's 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.

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

(148) [~~(147)~~] Survey agency--HHSC is the agency that, through contractual agreement with CMS, is responsible for Title XIX (Medicaid) survey and certification of nursing facilities.

(149) [~~(148)~~] 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.

(150) [~~(149)~~] 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.

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

(152) [~~(151)~~] Title II--Federal Old-Age, Survivors, and Disability Insurance Benefits of the Social Security Act (42 U.S.C. §§401 - 434).

(153) [~~(152)~~] Title XVI--Supplemental Security Income (SSI) of the Social Security Act (42 U.S.C. §§1381 - 1385).

(154) [~~(153)~~] Title XVIII--Medicare provisions of the Social Security Act (42 U.S.C. §§1390 - 1395lll).

(155) [~~(154)~~] Title XIX--Medicaid provisions of the Social Security Act (42 U.S.C. §§1396 - 1396w-5).

(156) [~~(155)~~] 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.

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

(158) [~~(157)~~] Unreasonable confinement--Involuntary seclusion.

(159) [~~(158)~~] 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.

(160) [~~(159)~~] Vendor payment--Payment made by HHSC 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.

(161) [~~(160)~~] 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 facility [~~of a facility's~~] residents.

(162) [~~(161)~~] Willfully interfere--To act or not act to intentionally prevent, interfere with, or impede or to attempt to intentionally prevent, interfere with, or impede.

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

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

Filed with the Office of the Secretary of State on February 26, 2024.

TRD-202400859

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 14, 2024

For further information, please call: (512) 438-3161

SUBCHAPTER E. RESIDENT RIGHTS

26 TAC §554.405

STATUTORY AUTHORITY

The amendment implements Texas Government Code §531.0055 and §531.021; Texas Human Resources Code §32.021; and Texas Health and Safety Code §§242.001, 253.0025, and 331.001 - 331.006.

§554.405.Additional Requirements for Trust Funds in Medicaid-certified Facilities.

(a) Deposit of funds. The facility must keep funds received from a resident for holding, safeguarding, and accounting, separate from the facility's funds.

(1) This separate account must be identified "(Name of Facility), Resident's Trust Fund Account," or by a similar designation [~~title~~] that shows a fiduciary relationship exists between a resident and the facility.

(2) A facility may commingle the trust funds of Medicaid residents and private-pay residents.

(3) If the funds are commingled, the facility must provide, upon request, the following records to HHSC, the Texas Office of the Attorney General Medicaid Fraud Control Unit, and the U.S. Department of Health and Human Services:

(A) copies of release forms signed and dated by each private-pay resident or resident representative whose funds are commingled; and

(B) legible copies of the trust fund records of private-pay residents whose funds are commingled.

(4) The facility must maintain the forms and records described in paragraph (3) of this subsection in the same manner as the financial records of Medicaid residents as specified in this section.

(5) A facility must ensure that a release form described in paragraph (3)(A) of this subsection:

(A) includes permission for the facility to maintain trust fund records of private-pay residents in the same manner as those of Medicaid residents;

(B) is obtained from a private-pay resident upon admission or at the time of request for trust fund services; and

(C) includes a provision allowing inspection of the private-pay resident's trust fund records by the agencies described in paragraph (3) of this subsection.

(b) Funds in excess of $50. The facility must deposit any residents' personal funds in excess of $50 in an interest-bearing account (or accounts) that is separate from any of the facility's operating accounts[,] and that credits all interest earned on the residents' funds to that account. In pooled accounts, there must be a separate accounting for each resident's share.

(c) Funds less than $50. The facility may maintain a resident's personal funds that do not exceed $50 in a noninterest-bearing account, interest-bearing account, or petty cash fund.

(d) Accounting and records.

(1) The facility must:

(A) establish and maintain current, written, individual records of all financial transactions involving a resident's personal funds that the facility is holding, safeguarding, and accounting;

(B) keep these records in accordance with:

(i) the American Institute of Certified Public Accountants' Generally Accepted Accounting Principles; and

(ii) the requirements of law for a fiduciary relationship; and

(i) resident's name;

(ii) identification of the resident's representative payee and resident representative, and payor source;

(iii) valid letter of guardianship, if any;

(iv) valid power of attorney, if any;

(v) resident's admission and discharge dates;

(vi) resident's trust fund ledger containing the following:

(I) description of each transaction;

(II) the date and amount of each deposit and withdrawal;

(III) the name of the person who accepted any withdrawn funds;

(IV) the balance after each transaction; and

(V) amount of interest earned, posted at least quarterly;

(vii) receipts for purchases and payments, including cash-register tapes or sales statements from a seller;

(viii) written requests for personal funds from the trust fund account; and

(ix) written requests for specific brands, items, or services.

(2) The facility must maintain the following as general trust fund records:

(A) valid trust fund trial balance;

(B) petty cash logs;

(D) trust fund checkbook and register;

(E) trust fund account monthly reconciliations;

(F) trust fund bank account agreement form;

(G) applied income ledgers;

(H) applied income payment plans from HHSC;

(I) proof of surety bond;

(J) written agreements (e.g., bed hold, private room); and

(K) facility census, admission, discharge, and leave records.

(3) A resident must approve a withdrawal from the resident's personal funds by signing a document that shows the resident's approval and the date of the approval.

(4) Except as provided in subparagraph (B) of this paragraph, a facility must obtain a receipt for the purchase of an item or service.

(A) The receipt must contain:

(i) the resident's name;

(ii) the date the receipt was written or created;

(iii) the amount of funds spent;

(iv) the specific item or service purchased;

(v) the name of the business from which the purchase was made; and

(vi) the signature of the resident.

(B) A receipt is not required if:

(i) a purchase is made with funds withdrawn in accordance with paragraph (3) of this subsection;

(ii) a purchase is made by the resident, a resident representative, or an individual, other than facility personnel, authorized in writing by the resident; or

(iii) the item purchased costs one dollar or less.

(5) If a facility cannot obtain the signature of a resident as required by paragraph (3) or (4)(A)(vi) of this subsection, the facility must obtain the signature of a witness. The witness may not be the person responsible for accounting for the resident's trust funds, that person's supervisor, or the person who accepts the withdrawn funds or who sells the item being purchased. The facility and HHSC staff must be able to identify the witness's name, address, and relationship to the resident or facility.

(e) Notice of certain balances. The facility must notify each resident that receives Medicaid benefits:

(1) if the amount in the resident's account reaches $200 less than Supplemental Security Income (SSI) [~~SSI~~] resource limit for one person, specified in §1611(a)(3)(B) of the Social Security Act; and

(2) that, if the amount in the account, in addition to the value of the resident's other nonexempt resources, reaches the SSI resource limit for one person, the resident may lose eligibility for Medicaid or SSI.

(f) Conveyance upon death.

(1) Upon the death of a resident with a personal fund deposited with the facility, the facility must convey, within 30 days after the date of the death, the resident's funds and a final accounting of those funds to the individual or probate jurisdiction administering the resident's estate, or make a bona fide effort to locate the resident representative or heir to the estate.

(2) If a facility is not able to convey funds in accordance with paragraph (1) of this subsection, the facility must, within 30 days after the resident's death;

(A) hold the funds by depositing them in a separate account or maintaining them in an existing account, designating on the account records that the resident is deceased; or

(B) submit funds to HHSC in accordance with paragraph (4) of this subsection.

(3) If the facility holds funds in accordance with paragraph (2)(A) of this subsection:

(A) the facility must provide HHSC with a notarized affidavit that contains:

(i) the resident's name;

(ii) the amount of funds being held;

(iii) a description of the facility's efforts to locate a resident representative or heir;

(iv) a statement acknowledging that the funds are not the property of the facility, but the property of the deceased resident's estate; and

(v) a statement that the facility will hold the funds until they are conveyed to a resident representative or heir or submitted to HHSC in accordance with paragraph (4) of this subsection;

(B) the facility must submit the funds to HHSC in accordance with paragraph (4) of this subsection within 180 days after the resident's death; and

(C) funds held by a facility in accordance with this paragraph may be monitored or reviewed by HHSC or the Office of Inspector General.

(4) A facility must submit unclaimed funds to HHSC, Accounts Receivable.

(A) The funds must be identified as money that will escheat to the state.

(B) If the facility held the funds in accordance with paragraph (3) of this subsection, the facility must include the notarized affidavit described in paragraph (3)(A) of this subsection.

(g) Assurance of financial security. The facility must purchase a surety bond, or otherwise provide assurance satisfactory to the Secretary of Health and Human Services to ensure the security of all personal funds of residents deposited with the facility.

(1) The amount of a surety bond must equal the average monthly balance of all the facility's resident trust fund accounts for the 12-month period preceding the bond issuance or renewal date.

(2) Resident trust fund accounts are specific only to the single facility purchasing a resident trust fund surety bond.

(3) If a facility employee is responsible for the loss of funds in a resident's trust fund account, the resident, the resident's family, and the resident representative are not obligated to make any payments to the facility that would have been made out of the trust fund had the loss not occurred.

(h) Items and services that may not be charged to a resident's personal funds.

(1) The facility may not impose a charge against the personal funds of a resident for any item or service for which payment is made under Medicaid or Medicare.

(2) Items or services included in Medicare or Medicaid payment that may not be billed to the resident's personal funds by the facility include:

(A) nursing services as required in §554.1001 [~~§19.1001~~] of this chapter (relating to Nursing Services);

(B) dietary services as required in §554.1101 [~~§19.1101~~] of this chapter (relating to Food and Nutrition Services);

(D) room and bed maintenance services;

(E) routine personal hygiene items and services as required to meet the needs of the resident, including:

(i) hair hygiene supplies, including shampoo, comb, and brush;

(ii) bath soaps, disinfecting soaps, or specialized cleansing agents when indicated to treat special skin problems or to fight infection;

(iii) razor and shaving cream;

(iv) toothbrush, toothpaste, and dental floss;

(v) denture adhesive and denture cleanser;

(vi) moisturizing lotion;

(vii) tissues, cotton balls, and cotton swabs;

(viii) deodorant;

(ix) incontinent care and supplies, to include, cloth or disposable incontinent briefs;

(x) sanitary napkins and related supplies;

(xi) towels and washcloths;

(xii) hospital gowns;

(xiii) over-the-counter drugs;

(xiv) hair and nail hygiene services; and

(xv) personal laundry; and

(F) medically-related social services as required in §554.703 [~~§19.703~~] of this chapter (relating to Social Services General Requirements).

(3) A facility must base necessity for and type of incontinent brief described in paragraph (2)(E)(ix) of this subsection on an assessment of the resident's medical and psychosocial condition and resulting determination.

(i) Items and services that may be charged to a resident's personal funds. The facility may charge a resident for requested services that are more expensive than or in excess of covered services in accordance with §554.2601 [~~§19.2601~~] of this chapter (relating to Vendor Payment (Items and Services Included)). The following list contains general categories and examples of items and services that the facility may charge to a resident's personal funds if they are requested by a resident, if the facility informs the resident that there will be a charge, and if payment is not made by Medicare or Medicaid:

(1) telephone;

(2) television or radio for personal use;

(3) personal comfort items, including smoking materials, notions and novelties, and confections;

(4) cosmetics and grooming items and services in excess of those for which payment is made under Medicare or Medicaid;

(5) personal clothing;

(6) personal reading material;

(7) gifts purchased on behalf of a resident;

(8) flowers and plants;

(9) social events and entertainment offered outside the scope of the activities program, provided under §554.702 [~~§19.702~~] of this chapter;

(10) noncovered special care services, such as privately hired nurses and aides;

(11) private room, except when therapeutically required, such as isolation for infection control;

(12) specially-prepared or alternative food requested instead of the food generally prepared by the facility, as required in §554.1101 [~~§19.1101~~] of this chapter; and

(13) incontinent briefs if the resident representative submits a written request to the facility and the attending physician and director of nurses (DON) determine and document in the clinical record that there is no medical or psychosocial need for supplies.

(j) Request for items or services that may be charged to a resident's personal funds.

(1) The facility can only charge a resident for an item or service not included under §554.2601 [~~§19.2601~~ ] of this chapter if the resident or the resident representative specifically requests the item or service.

(2) The facility must not require a resident or resident representative to request any item or service as a condition of admission or continued stay.

(3) The facility must inform, orally and in writing, the resident or resident representative, when the resident or resident representative requests an item or service for which a charge will be made, that there will be a charge for the item or service and the amount of the charge.

(k) Access to financial record. The individual financial record must be available on request to the resident, resident representative, and representative.

(l) Quarterly statement.

(1) The individual financial record must be available, through quarterly statements and on request, to the resident, representative payee, and resident representative.

(2) The statement must reflect any resident's funds that the facility has deposited in an account as well as any resident's funds held by the facility in a petty cash account.

(3) The statement must include at least the following:

(A) balance at the beginning of the statement period;

(B) total deposits and withdrawals;

(D) bank name and location of any account in which the resident's personal funds have been deposited; and

(E) ending balance.

(m) Banking charges.

(1) Charges for checks, deposit slips, and services for pooled checking accounts are the responsibility of the facility and may not be charged to the resident or resident representative.

(2) Bank service charges and charges for checks and deposit slips may be deducted from the individual checking accounts if it is the resident's written, individual choice to have this type of account.

(3) Bank fees on individual accounts established solely for the convenience of the facility are the responsibility of the facility and may not be charged to the resident or resident representative.

(4) The facility may not charge the resident or resident for the administrative handling of either type of account.

(5) If the facility places any part of the resident's funds in savings accounts, certificates of deposit, or any other plan whereby interest or other benefits are accrued, the facility must distribute the interest or benefit to participating residents on an equitable basis. If pooled accounts are used, interest must be prorated on the basis of actual earnings or end-of-quarter balances.

(n) Access to funds.

(1) Disbursements from the trust fund.

(A) A request for funds from the trust fund or trust fund petty cash box may be made, either orally or in writing, by the resident, or resident representative to cover a resident's expenses.

(B) The facility must respond to a request received during normal business hours at the time of the request.

(C) The facility must respond to a request received during hours other than normal business hours immediately at the beginning of the next normal business hours.

(2) Discontinuing trust fund participation.

(A) If a resident or resident representative requests that the facility discontinue managing the resident's personal funds, the facility must return to the resident or resident representative all [of] the resident's personal funds held by the facility, including any interest accrued.

(B) If the request is made during normal business hours, the facility must immediately return the funds.

(C) If the request is made during hours other than normal business hours, the facility must return the funds immediately during the next normal business hours.

(3) Transfer or discharge. If a resident is transferred or discharged from a facility, the facility must, within five working days after the transfer or discharge, return to the resident or resident representative all [of] the resident's personal funds held by the facility, including any interest accrued.

(4) For purposes of this subsection, normal business hours are 8:00 a.m. to 5:00 p.m., Monday through Friday, excluding national holidays.

(o) Handling of monthly benefits. If the Social Security Administration has determined that a Title II and Title XVI SSI [~~Supplemental Security Income (SSI)~~] benefit to which the resident is entitled should be paid through a representative payee, the provisions in 20 CFR §§404.2001- 404.2065, for Old Age, Survivors, and Disability Insurance benefits and 20 CFR §§416.601 - 416.665, for SSI benefits apply.

(p) Change of ownership. If the ownership of a facility changes, the former owner must transfer the bank balances or trust funds to the new owner with a list of the residents and their balances. The former owner must get a receipt from the new owner for the transfer of these funds. The former owner must keep this receipt for monitoring or audit purposes.

(q) Alternate forms of documentation. Without HHSC's prior written approval, a facility may not submit alternate forms of documentation, including affidavits, to verify a resident's personal fund expenditures or as proof of compliance with any requirements specified in these requirements for the resident's personal funds.

(r) Limitation on certain charges. A nursing facility may not impose charges for certain Medicaid-eligible individuals, for nursing facility services that exceed the per diem amount established by HHSC for such services. "Certain Medicaid-eligible individuals" means an individual who is entitled to medical assistance for nursing facility services, but for whom such benefits are not being paid because, in determining the individual's income to be applied monthly to the payment for the costs of nursing facility services, the amount of such income exceeds the payment amounts established by HHSC.

(s) Trust fund monitoring and audits.

(1) HHSC may periodically monitor all trust fund accounts to ensure [~~assure~~] compliance with this section. HHSC notifies a facility of monitoring plans and gives a report of the findings to the facility.

(2) HHSC may, as a result of monitoring, refer a facility to the Office of Inspector General (OIG) for an audit.

(3) The facility must provide all records and other documents required by subsection (d) of this section to HHSC upon request.

(4) HHSC provides the facility with a report of the findings, which may include corrective actions that the facility must take and internal control recommendations that the facility may follow.

(5) The facility may request an informal review in accordance with subsection (t) of this section or a formal hearing in accordance with subsection (u) of this section to dispute the report of findings.

(6) If the facility does not request an informal review or a formal hearing and the report of findings requires corrective actions, the facility must complete corrective actions within 30 [60] days after receiving the report of findings.

(7) If the facility does not complete corrective actions required by HHSC within 30 [60] days after receiving the report of findings, HHSC may impose a vendor hold on payments due to the facility under the provider agreement until the facility completes corrective actions.

(8) If HHSC imposes a vendor hold in accordance with paragraph (7) of this subsection, the facility may request a formal hearing in accordance with subsection (u)(5) of this section. If the failure to correct is upheld, HHSC continues the vendor hold until the facility completes the corrective actions.

(t) Informal review.

(1) A facility that disputes the report of findings described in subsection (s)(4) of this section may request an informal review under this section. The purpose of an informal review is to provide for the informal and efficient resolution of the matters in dispute and is conducted according to the following procedures.

(A) HHSC must receive a written request for an informal review by United States mail, hand delivery, special mail delivery, or fax no later than 15 days after the date on the written notification of the report of findings described in subsection (s)(4) of this section. If the 15th day is a Saturday, Sunday, national holiday, or state holiday, then the first day following the 15th day is the final day the written request will be accepted. A request for an informal review that is not received by the stated deadline is not granted.

(B) A facility must submit a written request for an informal review to the HHSC Trust Fund Monitoring Unit.

(i) submit a concise statement of the specific findings it disputes;

(ii) specify the procedures or rules that were not followed;

(iii) identify the affected cases;

(iv) describe the reason the findings are being disputed; and

(v) include supporting information and documentation that directly demonstrates that each disputed finding is not correct.

(D) HHSC does not grant a request for an informal review that does not meet the requirements of this subsection.

(2) Informal review process. Upon receipt of a request for an informal review, the Trust Fund Monitoring Unit Manager coordinates the review of the information submitted.

(A) Additional information may be requested by HHSC[, ] and must be received in writing no later than 15 days after the date the facility receives the written request for additional information. If the 15th day is a Saturday, Sunday, national holiday, or state holiday, then the first day following the 15th day is the final day the additional information will be accepted.

(B) HHSC sends its written decision to the facility by certified mail, return receipt requested.

(i) If the original findings are upheld, HHSC continues the schedule of deficiencies and requirement for corrective action.

(ii) If the original findings are reversed, HHSC issues a corrected schedule of deficiencies with the written decision.

(iii) If the original findings are revised, HHSC issues a revised schedule of deficiencies including any revised corrective action.

(iv) If the original findings are upheld or revised, the facility may request a formal hearing in accordance with subsection (u) of this section.

(v) If the original findings are upheld or revised and the facility does not request a formal hearing, the facility has 60 days from the date of receipt of the written decision to complete the corrective actions. If the facility does not complete the corrective actions by that date, HHSC may impose a vendor hold. If HHSC imposes a vendor hold, the facility may request a formal hearing in accordance with subsection (u)(5) of this section. If the failure to correct is upheld, HHSC continues the vendor hold until the facility completes the corrective action.

(u) Formal hearing.

(1) The facility must submit a written request for a formal hearing under this section to the HHSC Appeals Division.

(2) The written request for a formal hearing must be received within 15 days after:

(A) the date on the written notification of the report of findings described in subsection (s)(4) of this section; or

(B) the facility receives the written decision sent as described in subsection (t)(2)(B) of this section.

(3) A formal hearing is conducted in accordance with Texas Administrative Code, Title 1, Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act).

(4) No later than 60 days after a final determination is issued as a result of a formal hearing requested by a facility under subsection (s)(8) or (t)(2)(B)(iv) of this section, the facility must complete any corrective action required by HHSC or be subject to a vendor hold on payments due to the facility under the provider agreement until the facility completes corrective action. If HHSC imposes a vendor hold, the facility may request a formal hearing in accordance with paragraph (5) of this subsection. If the failure to correct is upheld, HHSC continues the vendor hold until the facility completes the corrective action.

(5) If HHSC imposes a vendor hold under subsections (s)(7), (t)(2)(B)(v), or (u)(4) of this section, the facility may request a formal hearing within 15 days after receiving notice of the correction failure and the vendor hold. The formal hearing is limited to the issue of whether the facility completed the corrective action.

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

Filed with the Office of the Secretary of State on February 26, 2024.

TRD-202400860

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 14, 2024

For further information, please call: (512) 438-3161

SUBCHAPTER G. FREEDOM FROM ABUSE, NEGLECT, AND EXPLOITATION

26 TAC §554.601

STATUTORY AUTHORITY

The amendment implements Texas Government Code §531.0055 and §531.021; Texas Human Resources Code §32.021; and Texas Health and Safety Code §§242.001, 253.0025, and 331.001 - 331.006.

§554.601.Freedom from Abuse, Neglect, and Exploitation.

(a) General. The resident has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation as defined in §554.101 [~~§19.101~~] of this chapter (relating to Definitions). This includes freedom from any physical or chemical restraint not required to treat the resident's medical symptoms.

(b) Abuse. The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.

(c) Policies and procedures. The facility must develop and implement written policies and procedures that prohibit and prevent mistreatment, abuse, neglect, and exploitation of a resident, and misappropriation of a resident's property.

(1) The facility must:

(A) not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion;

(B) not employ or otherwise engage an individual who has:

(i) been found guilty of abuse, neglect, exploitation, misappropriation of property, or mistreatment of a resident by a court of law;

(ii) had a finding entered into the state nurse aide registry concerning abuse, neglect, exploitation or mistreatment of a resident, or misappropriation of a resident's property;

(iii) been convicted of any crime contained in §250.006, Texas Health and Safety Code; or

(iv) a disciplinary action in effect against the individual's professional license by a state licensure body as a result of a finding of abuse, neglect, exploitation, mistreatment of a resident or misappropriation of a resident's property;[.]

(C) report any knowledge it has of actions by a court of law against an employee that [~~, which~~] would indicate unfitness for service as a nurse aide or other staff to the state nurse aide registry or licensing authority; and[.]

(D) suspend the employment of an employee who HHSC finds has engaged in reportable conduct, as defined in section §554.101 of this chapter, while the employee exhausts any applicable appeals process, including informal and formal appeals and any hearing or judicial review, pending a final decision by an administrative law judge. A facility must not reinstate the employee's employment or contract during any applicable appeals process.

(2) The written policies and procedures must:

(A) establish protocols to investigate any such allegations; and

(B) include training as required by §554.1929 [~~§19.1929~~] of this chapter (relating to Staff Development).

(d) Restraints. The facility must ensure that the resident is free from physical or chemical restraints imposed for purposes of discipline or convenience and that are not required to treat the resident's medical symptoms. If the use of restraints is indicated, the facility must use the least restrictive alternative for the least amount of time and document ongoing re-evaluation of the need for restraints.

(1) If physical restraints are used because they are required to treat the resident's medical condition, the restraints must be released and the resident repositioned as needed to prevent deterioration in the resident's condition. Residents must be monitored hourly and, at a minimum, restraints must be released every two hours for a minimum of ten minutes, and the resident repositioned.

(2) A facility must not administer to a resident a restraint that:

(A) obstructs the resident's airway, including a procedure that places anything in, on, or over the resident's mouth or nose;

(B) impairs the resident's breathing by putting pressure on the resident's torso;

(D) places the resident in a prone or supine hold.

(3) A behavioral emergency is 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;

(D) is not addressed in the resident's comprehensive care plan.

(4) If restraint is used in a behavioral emergency, the facility must use only an acceptable restraint hold. An acceptable restraint hold is a hold in which the resident's limbs are held close to the body to limit or prevent movement and that does not violate the provisions of paragraph (2) of this subsection.

(5) A staff person may use a restraint hold only for the shortest period of time necessary to ensure the protection of the resident or others in a behavioral emergency.

(6) A facility may adopt policies that allow less use of restraint than allowed by the rules of this chapter.

(7) Use of restraints and their release must be documented in the clinical record.

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

Filed with the Office of the Secretary of State on February 26, 2024.

TRD-202400861

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 14, 2024

For further information, please call: (512) 438-3161

SUBCHAPTER T. ADMINISTRATION

26 TAC §554.1920

STATUTORY AUTHORITY

The amendment implements Texas Government Code §531.0055 and §531.021; Texas Human Resources Code §32.021; and Texas Health and Safety Code §§242.001, 253.0025, and 331.001 - 331.006.

§554.1920.Operating Policies and Procedures.

(a) The facility must have an administrative policy and procedure manual that outlines the general operating policies and procedures of the facility. The manual must include policies and procedures related to admission and admission agreements, resident care services, refunds, transfers and discharges, termination from Medicaid or Medicare participation in accordance with §554.2121 [~~§19.2121~~] of this chapter (relating to General Provisions), receiving and responding to complaints and recommendations, and protection of a resident's personal property and civil rights. A copy of this manual must be made available for review upon request to each physician, staff member, resident, and resident's next of kin or guardian and to the public.

(b) The facility must have written personnel policies and procedures that are explained to employees during initial orientation and are readily available to them after that time.

(c) The facility must ensure that personnel records are correct and contain sufficient information to support placement in the assigned position (including a resume of training and experience). When appropriate, a current copy of the person's license or permit must be in the file.

(d) Upon request of HHSC, the facility must make available financial records to demonstrate the facility's compliance with applicable state laws and standards relating to licensing.

(e) A facility must develop, implement, and enforce a written policy that:

(1) requires a facility employee who provides direct care to a resident with Alzheimer's disease or a related disorder to successfully complete training in the provision of care to residents with Alzheimer's disease and related disorders; and

(2) ensures the care and services provided by a facility employee to a resident with Alzheimer's disease or a related disorder meet the specific identified needs of the resident relating to the diagnosis of Alzheimer's disease or a related disorder.

(f) The training required for facility employees under subsection (e)(1) of this section must include information about:

(1) symptoms and treatment of dementia;

(2) stages of Alzheimer's disease;

(3) person-centered behavioral interventions; and

(4) communication with a resident with Alzheimer's disease or a related disorder.

(g) A facility must have a workplace violence prevention committee and develop workplace violence prevention policies and procedures in accordance with Texas Health and Safety Code, Chapter 331.

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

Filed with the Office of the Secretary of State on February 26, 2024.

TRD-202400862

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 14, 2024

For further information, please call: (512) 438-3161

CHAPTER 555. NURSING FACILITY ADMINISTRATORS

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §§555.2, 555.3, 555.11 - 555.16, 555.18, 555.31 - 555.36, 555.38 - 555.42, and 555.51, 555.53 - 555.57.

BACKGROUND AND PURPOSE

The purpose of the proposal is to implement two bills from the 88th Texas Legislature, Regular Session, 2023. House Bill (H.B.) 4123 relates to HHSC obtaining criminal history information from the Federal Bureau of Investigation (FBI) and Texas Department of Public Safety for nursing facility administrator (NFA) applicants. Senate Bill (S.B.) 681 relates to Texas Occupation Code, Chapter 53, exemption for HHSC Long-Term Care Regulation (LTCR)-regulated Nursing Facility Administrators. This rule project also included revisions related to the Texas Unified Licensure Information Portal (TULIP), with the purpose of changing from a paper process to a digital process. This proposal also makes non-substantive edits to references in the rules.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §555.2 revises definitions to NFA rules. Paragraph (22) defines the "National Association of Long Term Care Administrator Boards (NAB)" and paragraph (29) defines "online portal." HHSC also made non-substantive changes to improve readability and updated a reference.

The proposed amendment to §555.3 removes the cost of a duplicate license.

The proposed amendment to §555.11 implements H.B. 4123 related to FBI criminal history and adds language clarifying the use of the online portal TULIP.

The proposed amendment to §555.12 makes non-substantive grammar edits.

The proposed amendment to §555.13 updates the rule to reflect the current automated process using TULIP.

The proposed amendment to §555.14 updates the rule to reflect the current automated process using TULIP.

The proposed amendment to §555.15 updates the rule to reflect the current automated process using TULIP.

The proposed amendment to §555.16 updates the rule to reflect the current automated process using TULIP.

The proposed amendment to §555.18 makes a non-substantive rule clarifying edit.

The proposed amendment to §555.31 updates the rule to reflect the current automated process using TULIP.

The proposed amendment to §555.32 updates the rule to reflect the current automated process using TULIP.

The proposed amendment to §555.33 adds language clarifying that NFAs can print duplicate licenses through the online portal.

The proposed amendment to §555.34 implements H.B. 4123 related to FBI criminal history and updates the rule to reflect the current automated process using TULIP.

The proposed amendment to §555.35 makes non-substantive grammar edits.

The proposed amendment to §555.36 updates the rule to reflect the current automated process using TULIP.

The proposed amendment to §555.38 updates the rule to reflect the current automated process using TULIP and corrects a reference in the rule.

The proposed amendment to §555.39 updates the rule to reflect the current automated process using TULIP.

The proposed amendment to §555.40 updates the rule to reflect the current automated process using TULIP.

The proposed amendment to §555.41 updates references in the rule and implements H.B. 4123 relating to criminal convictions.

The proposed amendment to §555.42 implements H.B. 4123 relating to FBI criminal history, updates rule to reflect the current automated process using TULIP, makes non-substantive grammar and reference updates, and clarifies that a military spouse with an active license can print duplicate licenses and make name changes through the online portal.

The proposed amendment to §555.51 makes non-substantive grammar edits.

The proposed amendment to §555.53 updates a reference in the rule.

The proposed amendment to §555.54 implements H.B. 4123 relating to criminal convictions and updates a reference.

The proposed amendment to §555.55 makes non-substantive grammar edits.

The proposed amendment to §555.56 removes language requiring a person with an expired license to return the license certificate to HHSC.

The proposed amendment to §555.57 makes a non-substantive grammar edit.

FISCAL NOTE

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

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

(5) the proposed rules will not create new regulations;

(6) the proposed rules will expand existing rules;

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

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

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

Trey Wood has also determined that there will not be an adverse economic effect on small businesses, micro-businesses, or rural communities.

Criminal background history (specifically, fingerprinting requirements) proposed secondary to S.B. 4123 will not increase the cost for NFAs. While S.B. 4123 applies to NFAs, Chapter 555 already requires NFA applicant fingerprinting (in Texas Health and Safety Code §242.302); therefore, there will be no additional cost for NFA applicants.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

PUBLIC BENEFIT AND COSTS

Michelle Dionne-Vahalik, Associate Commissioner for Long-Term Care Regulation, has determined that for each year of the first five years the rules are in effect, the public benefit will be protecting nursing facility residents through HHSC's ability to obtain criminal history information from the FBI and Texas Department of Public Safety for NFA applicants. This will improve the screening process to prohibit the employment of certain individuals with a criminal conviction that is a bar to employment but may have occurred in another state and align the criminal convictions used to determine bars to licensure, certification, or permitting with the convictions used to determine nursing facility employability for a LTCR-regulated NFA.

Trey Wood has also determined that for the first five years the rules are in effect, persons who are required to comply with the proposed rules will not incur any additional costs related to fingerprinting fees because NFAs are currently required to pay for and complete fingerprinting.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Written comments on the proposal may be submitted to Rachael Holden and Sandra Wiegand, Program Specialists, by email to HHSCLTCRRules@hhs.texas.gov.

SUBCHAPTER A. GENERAL INFORMATION

26 TAC §555.2, §555.3

STATUTORY AUTHORITY

The proposed amendments are authorized by 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; 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; Texas Human Resources Code §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program; Texas Health and Safety Code §242.302, which grants HHSC the general authority to establish rules consistent with that subchapter and directs HHSC to establish qualifications of applicants for licenses and renewal of licenses issued under that subchapter, as well as set reasonable and necessary administration and implementation fees and continuing education hours required to renew a license under that subchapter.

The amendments implement Texas Government Code §§411.1161, 531.0055, and 531.021; Texas Human Resources Code §32.021; and Texas Health and Safety Code §§242.302, 242.3061, and 242.3115.

§555.2.Definitions.

The words and terms 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 Texas Penal Code §21.08 (relating to Indecent Exposure) or Texas Penal Code Chapter 22 (relating to Assaultive Offenses), sexual harassment, sexual coercion, or sexual assault.

(2) Active duty--Current full-time military service in the armed forces of the United States or as a member of the Texas military forces, as defined in Texas Government Code §437.001, or similar military service of another state.

(3) Administrator-in-training (AIT)--A person undergoing an internship under a HHSC-approved certified preceptor.

(4) Administrator of Record--The individual who is listed as the facility's licensed nursing facility administrator with the HHSC Licensing and Credentialing Section.

(5) Applicant--A person applying for a Texas nursing facility administrator (NFA) license.

(6) Armed forces of the United States--The Army, Navy, Air Force, Coast Guard, Space Force, or Marine Corps of the United States, including reserve units of those military branches.

(7) Complaint--An allegation that an NFA violated one or more of the licensure rules or statutory requirements.

(8) Domains of the NAB [~~National Association of Long Term Care Administrator Boards (NAB)~~]--The four categories for education and continuing education of the NAB, which are care, services, and supports; operations; environment and quality; and leadership and strategy.

(9) Formal hearing--A hearing held by the State Office of Administrative Hearings to adjudicate a sanction taken by HHSC against an NFA.

(10) Good standing--In Texas an NFA is in good standing if the NFA is in compliance with the rules in this chapter and, if applicable, the terms of any sanction imposed by HHSC. An NFA licensed or registered in another state is in good standing if the NFA is in compliance with the NFA licensing or registration rules in the other state and, if applicable, the terms of any sanction imposed by the other state.

(11) Health services executive (HSE)--An individual who has entry-level competencies in a nursing facility, assisted living community, or home and community-based service provider in this state or another state. The HSE has met NAB's minimum standards for qualification as an HSE.

(12) HHSC--The Texas Health and Human Services Commission. HHSC is responsible for NFA licensure in Texas.

(13) Internship--The training period in a nursing facility for an AIT. When HHSC accepts internship hours completed in another state, the hours must be completed in a facility that qualifies as a nursing facility or nursing home under the laws of the other state.

(14) License--An NFA license or provisional license.

(15) Licensee--A person licensed by HHSC as an NFA.

(16) Long-term Care Regulation--The department of HHSC responsible for long-term care regulation, including determining nursing facility compliance with licensure and certification requirements and the regulation of NFAs.

(17) Management experience--Full-time employment as a department head, assistant nursing facility administrator, or licensed professional supervising two or more employees in a nursing facility, including a nursing facility outside of Texas, or skilled nursing hospital unit.

(18) Military service member--A person who is on active duty.

(19) Military spouse--A person who is married to a military service member.

(20) Military veteran--A person who has served on active duty and who was discharged or released from active duty.

(21) Misappropriation of resident property--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.

(22) NAB--National Association of Long Term Care Administrator Boards. A national organization composed of the state boards or agencies responsible for licensure of NFAs.

(23) [~~(22)~~] NAB examination--The national examination developed by NAB that applicants must pass in combination with the state licensure examination to be issued a license to practice nursing facility administration in Texas. The NAB examination consists of two modules: Core of Knowledge and Line of Service.

[(23) National Association of Long Term Care Administrator Boards (NAB)--The national authority on licensing, credentialing, and regulating administration of organizations along the continuum of long-term care. NAB sets the national standards and evaluation requirements for NFAs.]

(24) National Continuing Education Review Service (NCERS)--The part of NAB that approves and monitors continuing education activities for NFAs.

(25) Neglect--Failure to provide goods or services, including medical services, that are necessary to avoid physical or emotional harm, pain, or mental illness.

(26) Nursing facility--A facility licensed in accordance with THSC Chapter 242.

(27) Nursing Facility Administrator (NFA)--An individual licensed by HHSC to engage in the practice of nursing facility administration, regardless of whether the individual has an ownership interest in the facility.

(28) Nursing Facility Administrators Advisory Committee (NFAAC)--The advisory committee established by THSC §242.303.

(29) Online portal--The Texas Unified Licensure Information Portal (TULIP), through which licensing application activities are completed.

(30) [~~(29)~~] Preceptor--An NFA certified by HHSC to provide supervision to an AIT.

(31) [~~(30)~~] Referral--A recommendation made by Long-term Care Regulation staff to investigate an NFA's compliance with licensure requirements when deficiencies or substandard quality of care deficiencies are found in a nursing facility, as required by [~~Title~~] 42 Code of Federal Regulations (CFR) §488.325.

(32) [~~(31)~~] Sanctions--An adverse licensure action against an NFA. In Texas, a sanction is one of the actions listed in §555.57 of this chapter (relating to Schedule of Sanctions).

(33) [~~(32)~~] Self-study course--A NAB-approved education course that an individual pursues independently to meet continuing education requirements for license renewal.

(34) [~~(33)~~] State examination--The state licensure examination that applicants must pass, in combination with the NAB examination, to be issued a license to practice nursing facility administration in Texas.

(35) [~~(34)~~] Substandard quality of care--For a Medicare- or Medicaid-certified facility, this term has the meaning given in [~~Title~~] 42 CFR [~~Code of Federal Regulations~~] §488.301. For a licensed-only facility, this term has the meaning given in §554.101 of this title (relating to Definitions).

(36) [~~(35)~~] THSC--Texas Health and Safety Code.

(37) [~~(36)~~] Traditional business hours--Monday through Friday from 8:00 a.m. until 5:00 p.m.

§555.3.Schedule of Fees.

(a) HHSC charges the following administrative and licensure fees:

(1) application--$100;

(2) initial license--$250;

(3) provisional license--$250;

(4) renewal--$250 every two years when the license is renewed on or before the date the license expires;

(5) late renewal fees for license renewals made after the license expires:

(A) $375 for an expired license renewed during the first 90 days after the license expires; and

(B) $500 for an expired license renewed between 91 and 365 days after the license expires;

(6) formal inactive status--$250;

(7) reinstatement of licensure--$500.[~~; and~~]

~~[(8) duplicate license--$25.]~~

(b) Other administrative fees collected by the National Association of Long Term Care Administrator Boards (NAB) designee or contractor:

(1) NAB [~~National Association of Long Term Care Administrator Boards (NAB)~~] examination--$425;

(2) NAB reexamination, including both NAB Core of Knowledge examination and Line of Service examination, in nursing home administration--$425;

(3) NAB Core of Knowledge examination only--$300;

(4) Line of Service examination in nursing home administration only--$175; and

(5) state examination--$190.

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

Filed with the Office of the Secretary of State on February 26, 2024.

TRD-202400863

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 14, 2024

For further information, please call: (512) 438-3161

SUBCHAPTER B. REQUIREMENTS FOR LICENSURE

26 TAC §§555.11 - 555.16, 555.18

STATUTORY AUTHORITY

The proposed amendments implement Texas Government Code §§411.1161, 531.0055, and 531.021; Texas Human Resources Code §32.021; and Texas Health and Safety Code §§242.302, 242.3061, and 242.3115.

§555.11.Application Requirements.

(a) Except as provided in subsections (b) and (c) of this section, an applicant seeking licensure must submit to the Texas Health and Human Services Commission (HHSC) through the online portal:

(1) a complete Nursing Facility Administrator's Application for Licensure form;

(2) the application fee;

(3) fingerprints for a Federal Bureau of Investigation (FBI)-based criminal background check through the Texas Department of Public Safety; [~~criminal background check;~~]

(4) an official transcript reflecting a baccalaureate degree from a college or university accredited by an agency recognized by the Texas Higher Education Coordinating Board;

(5) if not a part of the transcript reflecting a baccalaureate degree, another transcript reflecting 12 semester credit hours in long-term care administration, or its equivalent, that include the four domains of the National Association of Long Term Care Administrator Boards; and

(6) proof of completing the minimum applicable internship that meets the internship requirements in §555.13 of this subchapter (relating to Internship Requirements).

(b) If an applicant has a health services executive (HSE) qualification and is applying for a license under §555.12(a)(5) of this subchapter (relating to Licensure Requirements), the applicant must submit through the online portal:

(1) a complete Nursing Facility Administrator's Application for Licensure form;

(2) the application fee;

(3) proof of the HSE qualification;

(4) fingerprints for an FBI-based criminal background check through the [a] Texas Department of Public Safety [~~criminal background check~~]; and

(5) certification that the applicant has not had a license revoked in any state.

(c) If an applicant has an NFA license issued by another state and is applying for a license under §555.12(a)(6) of this subchapter, the applicant must submit through the online portal:

(1) a complete Reciprocity Licensure Questionnaire;

(2) the application fee;

(3) fingerprints for an FBI-based criminal background check through the [a] Texas Department of Public Safety [~~criminal background check~~]; and

(4) proof of a license in good standing in another state.

(d) An application is valid for one year from the date the application fee is received through the online portal.

(e) An applicant who does not meet the requirements for licensure within one year after HHSC receives the application through the online portal must reapply for licensure as provided in this section.

(f) HHSC is not responsible for applications, forms, notices, and correspondence unless they are received by HHSC through the online portal.

(g) HHSC is not responsible for mail it sends to a licensee or applicant if the licensee's or applicant's current address was not reported [~~in writing~~] to HHSC through the online portal.

§555.12.Licensure Requirements.

(a) An applicant must meet one of the following groups of requirements to obtain a license as a nursing facility administrator (NFA).

(1) An applicant has a baccalaureate degree in any subject from a college or university accredited by an agency recognized by the Texas Higher Education Coordinating Board[;] and has:

(A) a minimum of 12 semester credit hours in long-term care administration, or its equivalent, that includes courses in the four domains of the National Association of Long Term Care Administrator Boards (NAB);

(B) completed a 1,000-hour internship that meets the requirements in §555.13 of this subchapter (relating to Internship Requirements); and

(C) passed the state and NAB examinations described in §555.18 of this subchapter (relating to Examinations and Requirements to Take the Examinations).

(2) An applicant has a baccalaureate degree in health administration, health services administration, health care administration, or nursing that includes coursework encompassing the four domains of the NAB[;] and has:

(A) three years of management experience;

(B) completed a 500-hour internship that meets the requirements in §555.13 of this subchapter; and

(3) An applicant has a baccalaureate degree with coursework in the four domains of NAB and one year of experience as assistant administrator of record or administrator of record in another state[;] and has:

(A) completed a 500-hour internship that meets the requirements in §555.13 of this subchapter; and

(B) passed the state and NAB examinations described in §555.18 of this subchapter.

(4) An applicant has a master's degree in health administration, health services administration, health care administration, or nursing that includes coursework encompassing the four domains of the NAB[;] and has:

(A) one year of management experience;

(B) completed a 500-hour internship that meets the requirements in §555.13 of this subchapter; and

(5) An applicant has a health services executive qualification[;] and has:

(A) [~~has~~] not had a license revoked in any state; and

(B) passed the state examination described in §555.18 of this subchapter.

(6) An applicant has a license issued by a state other than Texas and meets the requirements for licensure in paragraphs (1), (2), (3), or (4) of this subsection.

(b) HHSC accepts foreign university degrees and coursework that is counted as transfer credit by accredited universities recognized by the American Association of Collegiate Registrars and Admissions officers.

§555.13.Internship Requirements.

(a) Except as provided in subsection (b) or (c) of this section, an applicant must complete an internship that meets the following requirements.

(1) Before an applicant starts the internship, the applicant and the applicant's preceptor must complete a Texas Health and Human Services (HHSC) internship application through the online portal.

(2) The internship must be in a nursing facility.

(3) A minimum of half of the internship hours must be during traditional business hours.

(4) The administrator-in-training (AIT) can train no more than 40 hours a week.

(5) If the internship is completed with a nursing facility administrator (NFA) not associated with a university as the preceptor, the AIT must complete a preceptor performance report. Additionally, the preceptor must complete an AIT final report through the online portal.

(6) An AIT must complete an HHSC course in Infection Control and Personal Protective Equipment.

(7) If the internship is completed with an NFA associated with a university accredited by an agency recognized by the Texas Higher Education Coordinating Board as the preceptor, the AIT must submit an official transcript to HHSC through the online portal.

(8) The internship must be completed at the same facility at which the AIT's preceptor serves as NFA.

(b) HHSC may accept an internship completed in another state if:

(1) the internship is part of a National Association of Long Term Care Administrator Boards-accredited program; or

(2) the internship is approved by the other state and requires a minimum of 1,000 hours or a minimum of 500 hours if the requirements listed in §555.12(a)(2), (3), or (4) of this subchapter (relating to Licensure Requirements) are met. An applicant who has completed fewer than 1,000 hours of internship in another state that does not qualify for a 500-hour internship must complete the remaining hours under a preceptor.

(c) As a substitute to meeting the internship requirements described in subsection (a) or (b) of this section, an applicant may submit to HHSC proof of a health services executive (HSE) qualification and certify that the applicant has not had a license or HSE qualification revoked in any state.

(d) The AIT must submit proof of completion of the internship or completion of HSE through the online portal. HHSC will review the proof of completion and notify the applicant of the status of the applicant's request.

§555.14.Preceptor Requirements.

(a) A licensee seeking to sponsor an administrator-in-training (AIT) must:

(1) have a preceptor certification as provided in §555.15 of this subchapter (relating to Preceptor Certification); and

(2) obtain approval through the online portal from the Texas Health and Human Services Commission (HHSC) to sponsor an AIT.

(b) A preceptor must submit a complete AIT Performance Report to HHSC through the online portal at the end of the internship, unless the preceptor is a nursing facility administrator associated with a university recognized by the Texas Higher Education Coordinating Board.

(d) HHSC may consider any imposed sanction as specified[,] in §555.57 of this chapter (relating to Schedule of Sanctions)[,] against a preceptor as grounds for refusing to allow the preceptor to sponsor an AIT.

(e) HHSC may refuse to allow a preceptor to sponsor an AIT if the preceptor did not provide adequate training to previous AITs.

(f) HHSC waives 20 of the 40 hours of continuing education required for license renewal for a preceptor who sponsors an AIT.

(g) A licensee is qualified to act as a preceptor for two years from the date HHSC certifies the preceptor.

(h) A licensee must remain in good standing to act as a preceptor.

(i) A preceptor may be allowed to provide direct supervision or guidance of a licensee with a probated sanction as specified in §555.57 of this chapter.

§555.15.Preceptor Certification.

HHSC may issue a preceptor certification to a nursing facility administrator (NFA) who submits through the online portal:

(1) proof of license or registration in good standing as an NFA for a minimum of five years, with the two most recent years in Texas;

(2) proof of completed Texas Health and Human Services approved preceptor training; and

(3) a completed preceptor application.

§555.16.Preceptor Certification Renewal.

(a) To continue acting as a preceptor, a licensee must renew a preceptor certification every two years through the online portal.

(b) A licensee seeking to renew a preceptor certification must submit to HHSC through the online portal:

(1) proof of license or registration as a nursing facility administrator for a minimum of five years, with the two most recent years in Texas;

(2) proof of completed Texas Health and Human Services approved preceptor training; and

(3) a completed preceptor application.

§555.18.Examinations and Requirements to Take the Examinations.

(a) Except as provided in subsection (b) of this section, an applicant seeking a license as a nursing facility administrator (NFA) from the Texas Health and Human Services Commission (HHSC) must pass the following examinations:

(1) the state examination on nursing facility requirements in Texas; and

(2) the NAB examinations.

(b) An applicant who meets the academic and internship requirements by presenting evidence of a health services executive (HSE) qualification must pass the state examination.

(1) submitting an application for approval to take the examination; and

(2) paying the applicable state examination and NAB examination fees online.

(d) HHSC sends an e-mail notifying an applicant of the applicant's eligibility to take the examinations.

(e) An applicant must not take any examination without HHSC approval.

(f) An applicant with a disability, including an applicant with dyslexia as defined in Texas Education Code §51.970 (relating to Instructional Material for Blind and Visually Impaired Students and Students with Dyslexia), may request a reasonable accommodation for the examination under the Americans with Disabilities Act.

(g) An applicant completes the online state and NAB examinations.

(h) HHSC notifies an applicant of examination scores after receiving examination results.

(i) An applicant who fails an examination and wants to retake the examination [it] must pay the appropriate state or NAB examination fee for each exam.

(j) An applicant who fails the state or NAB examination three consecutive times must complete an additional 1,000-hour administrator-in-training internship before retaking the examination.

(k) An applicant previously licensed as an NFA and whose license expired 365 or more days before the applicant reapplies for a license or who voluntarily surrendered the license must retake the state examination to obtain a new license.

(l) An applicant previously licensed as an NFA and whose license expired 365 or more days before the applicant reapplies for a license, or who voluntarily surrendered the license, must retake the NAB examination to obtain a new license if more than five years have passed since the applicant passed the NAB examination.

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

Filed with the Office of the Secretary of State on February 26, 2024.

TRD-202400864

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 14, 2024

For further information, please call: (512) 438-3161

SUBCHAPTER C. LICENSES

26 TAC §§555.31 - 555.36, 555.38 - 555.42

STATUTORY AUTHORITY

The proposed amendments implement Texas Government Code §§411.1161, 531.0055, and 531.021; Texas Human Resources Code §32.021; and Texas Health and Safety Code §§242.302, 242.3061, and 242.3115.

§555.31.Initial License.

(a) The Texas Health and Human Services Commission (HHSC) issues a license [~~certificate~~] to an applicant who:

(1) receives a passing score on the state and NAB examination [~~National Association of Long Term Care Administrator Boards examinations~~];

(2) submits the initial license fee to HHSC through the online portal; and

(3) does not have a criminal history that HHSC determines is a basis for denying the license under §555.41 of this subchapter (relating to Licensure of Persons with Criminal Backgrounds).

(b) HHSC may determine that a criminal conviction or a sanction taken against an applicant in Texas or another state is a basis for pending or denying an initial license.

(d) A licensee must keep HHSC informed of the licensee's current home address and employment address. If employed by a nursing facility, a licensee must change his or her employment information through the online portal [~~submit a Data Change Request form to HHSC~~] within 30 days after a change of employment.

(e) A licensee who does not notify HHSC through the online portal of a change in address or employment within the required 30 days may be subject to an administrative penalty as provided in §555.57 of this chapter (relating to Schedule of Sanctions).

(f) A licensee must notify HHSC of a change of name through the online portal by submitting a name change application.

§555.32.Provisional License.

(a) The Texas Health and Human Services Commission (HHSC) issues a provisional license to an applicant currently licensed or registered as a nursing facility administrator (NFA) in another state who submits the following to HHSC through the online portal:

(1) complete [~~and notarized~~] Provisional Licensure Questionnaire and Nursing Facility Administrator License Application forms;

(2) the application fee;

(3) the provisional license fee; and

(4) proof of the following:

(A) a license and good standing status in another state;

(B) employment for at least one year as an administrator of record of a nursing facility in applicant's state;

(C) a passing score on the National Association of Long Term Care Administrator Boards examination and the state examination; and

(D) sponsorship by an NFA licensed by and in good standing with HHSC [~~and who is in good standing~~], unless HHSC waives sponsorship based on a demonstrated hardship.

(b) A provisional license expires 180 days from the date of issue.

(c) HHSC issues an initial license [~~certificate~~] to a provisional license holder who satisfies the requirements for a license in §555.12 of this chapter (relating to Licensure Requirements) and §555.31 of this subchapter (relating to Initial License [~~license~~]).

(d) HHSC may determine that a criminal conviction or sanction taken in another state is a basis for pending or denying a provisional license.

(e) If the internship hours completed in another state do not meet the requirements in §555.13 of this chapter (relating to Internship Requirements), then a provisional licensee must complete the required internship hours under the supervision of an HHSC-certified preceptor as described in §555.12 of this chapter.

§555.33.Duplicate License.

The Texas Health and Human Services Commission (HHSC) replaces lost, damaged, or destroyed license certificates for a licensee. Licensees can print a duplicate license through the online portal [~~who submits a notarized Data Change/Duplicate License Request form and duplicate license fee to HHSC~~].

§555.34.License Renewal.

(a) The Texas Health and Human Services Commission (HHSC) notifies a licensee of the license expiration date and renewal requirements through the online portal at least 31 days before the license expires.

(b) A licensee who does not receive a renewal notice must renew the license before the license expires.

(c) A licensee seeking renewal must submit the following to HHSC through the online portal[,] on or before the date the license expires:

(1) a complete License Renewal form;

(2) the renewal fee;

(3) proof of completion of 40 hours of continuing education, as required by §555.35 of this subchapter (relating to Continuing Education Requirements for License Renewal); and

(4) fingerprints for a Federal Bureau of Investigation-based criminal background check through the Texas Department of Public Safety [~~criminal conviction report and fingerprint card~~].

(d) HHSC uses the date the completed renewal application is submitted online to determine if a renewal application is submitted on time.

(e) HHSC issues a two-year license renewal card to eligible licensees who meet the requirements in subsection (c) of this section.

(f) HHSC may deny a license renewal according to §555.37 of this subchapter (relating to Denial of License Renewal).

§555.35.Continuing Education Requirements for License Renewal.

(a) The 40 hours of continuing education required for license renewal must:

(1) be completed during the previous two-year licensure period;

(2) include one or more of the four domains of the NAB [~~National Association of Long Term Care Administrator Boards (NAB)~~];

(3) include a Texas Health and Human Services Commission (HHSC) course in infection control [~~Infection Control~~] and personal protective equipment;

(4) include at least six hours of continuing education in ethics; and

(5) be:

(A) approved by the National Continuing Education Review Service;

(B) a HHSC-sponsored event; or

(C) an upper-division semester credit course taken or taught at a post-secondary institution of higher education accredited by an agency recognized by the Texas Higher Education Coordinating Board.

(b) HHSC accepts NAB-approved self-study courses toward the required 40 hours of continuing education.

(c) HHSC waives, at a maximum, 20 of the 40 hours of continuing education required of a licensee who completes one three-semester-hour upper-division course taken at a post-secondary institution of higher education.

(d) HHSC approves continuing education credit hours for the same course, seminar, workshop, or program only once per license renewal period.

(e) HHSC may perform an audit of continuing education courses, seminars, or workshops that the licensee has reported by requesting certificates of attendance.

§555.36.Late Renewals.

(a) A former licensee has up to one year after the expiration date of a license to renew the license by:

(1) completing a license renewal application through the online portal;

(2) completing 40 hours of continuing education as provided in §555.35 of this subchapter (relating to Continuing Education Requirements for License Renewal); and

(3) submitting the following fee through the online portal to the Texas Health and Human Services Commission (HHSC):

(A) a $375 late renewal fee for a license that has been expired for 90 days or less; or

(B) a $500 late renewal fee for a license that has been expired for 91 days to 365 days.

(b) A former licensee whose license has been expired for more than 365 days must meet the licensure and examination requirements for an initial license.

(c) A former licensee must retake the NAB [~~National Association of Long Term Care Administrator Boards (NAB)~~]examination if the former licensee last took and passed the NAB examination more than five years before the completed application date.

(d) A person who fails to renew a license before the expiration date must not practice in the field of nursing facility administration until the license is renewed.

(e) HHSC imposes one or more sanctions listed in §555.57 of this chapter (relating to Schedule of Sanctions) against a person who practices with an expired license.

§555.38.Inactive Status.

(a) A licensee may place a license in a formal inactive status with the Texas Health and Human Services Commission (HHSC) for up to two renewal periods.

(b) To place a license in a formal inactive status, the licensee submits the following to HHSC through the online portal on or before the date the license expires:

(1) a completed Inactive Status Application form; and

(2) the formal inactive status fee.

(c) A licensee may renew a license in formal inactive status through the online portal on or before the date that the inactive status expires by submitting to HHSC:

(1) the renewal fee; and

(2) proof of completing 40 hours of continuing education, as provided in §555.35 of this chapter (relating to Continuing Education Requirements for License Renewal).

(d) If a license in formal inactive status expires, the licensee must meet the licensure application and examination requirements as listed in §555.11 of this subchapter (relating to Application Requirements) and §555.18 of this chapter (relating to Examinations and Requirements to Take the Examinations) to obtain a new license.

(e) If it has been less than five years since the individual passed the NAB [~~National Association of Long Term Care Administrator Boards (NAB)~~] examination, the individual is not required to take the NAB examination but must take the state examination.

(f) A former licensee whose license expires while on formal inactive status may not renew the license by paying a late renewal fee.

§555.39.Voluntary Surrender of a License.

(a) A licensee may voluntarily surrender a license as instructed on the HHS website, NF Administrators Licensing and Enforcement page and by returning the license certificate to the Texas Health and Human Services Commission (HHSC).

(b) A licensee who voluntarily surrenders a license while under investigation for a violation of licensure requirements may still receive:

(1) a written reprimand; or

(2) an administrative penalty.

(c) A licensee who voluntarily surrenders a license in lieu of a proposed sanction, other than license revocation, may not reapply for licensure until two years after the surrender date.

(d) A licensee who voluntarily surrenders a license in lieu of a proposed license revocation is permanently disqualified from licensure in Texas.

§555.40.Reinstatement.

An applicant who previously was licensed and in good standing in Texas may obtain a new license without taking the examination required by §555.18 of this chapter (relating to Examinations and Requirements to Take the Examinations) if the applicant:

(1) is licensed in good standing in another state;

(2) practiced in that state for at least the preceding two years before the date of the current licensure application; and

(3) pays HHSC [~~the Texas Health and Human Services~~] a reactivation fee through the online portal.

§555.41.Licensure of Persons with Criminal Backgrounds.

(a) Subject to subsection (b) [~~(f)~~] of this section, the Texas Health and Human Services Commission (HHSC) may disqualify an applicant or licensee from taking an examination required by §555.18 of this chapter (relating to Examinations and Requirements to Take the Examinations), may deny an initial or renewal application for licensure, or impose a sanction listed in §555.57 of this chapter (relating to Schedule of Sanctions) if the applicant or licensee has been convicted of:

(1) committing an offense listed in Texas Health and Safety Code §250.006(a) or (c); or

(2) committing an offense listed in Texas Health and Safety Code §250.006(b) within the five years before application for licensure.

~~[(1) an offense that directly relates to the duties and responsibilities of a nursing facility administrator (NFA);]~~

~~[(2) an offense listed in Article 42A.054, Code of Criminal Procedure; or]~~

~~[(3) a sexually violent offense, as defined by Article 62.001, Code of Criminal Procedure.]~~

~~[(b) HHSC considers the following when determining if a criminal conviction directly relates to the duties, responsibilities, and job performance of an NFA:]~~

~~[(1) the nature and seriousness of the crime;]~~

~~[(2) the extent to which a license may offer an individual an opportunity to engage in the same type of criminal activity; and]~~

~~[(3) the relationship of the crime to the ability or fitness required to perform the duties of an NFA.]~~

[(c) HHSC has determined that a conviction of the following crimes relates to nursing facility administration and reflects an inability to perform or tendency to inadequately perform as an NFA. Accordingly, HHSC proposes to deny an application for licensure from an applicant who has been convicted of any of the following crimes:]

~~[(1) intentionally acting as an NFA without a license;]~~

~~[(2) attempting or conspiring to commit or committing any offense under the following chapters of the Texas Penal Code:]~~

~~[(A) Title 5 (offenses against persons), including homicide, kidnapping, unlawful restraint, and sexual and assault offenses;]~~

[(B) Title 7 (offenses against property), including arson, criminal mischief, robbery, burglary, criminal trespass, theft, fraud, computer crimes, telecommunications crimes, money laundering, and insurance fraud;]

~~[(C) Title 9 (offenses against public order and decency), including disorderly conduct and public indecency; or]~~

~~[(D) Title 10 (offenses against public health, safety, and morals), including weapons, gambling, conduct affecting public health, intoxication, and alcoholic beverage offenses;]~~

~~[(3) committing an offense listed in Texas Health and Safety Code (THSC) §250.006(a) or (c); or]~~

~~[(4) committing an offense listed in THSC §250.006(b) within the last five years.]~~

[(d) If HHSC determines an applicant or licensee has a criminal conviction that directly relates to the duties and responsibilities of an NFA, HHSC considers the following in determining whether to take an action authorized by subsection (a) of this section:]

~~[(1) the extent and nature of the person's past criminal activity;]~~

~~[(2) the age of the person when the crime was committed;]~~

~~[(3) the amount of time that has elapsed since the person's last criminal activity;]~~

~~[(4) the conduct and work activity of the person before and after the criminal activity;]~~

~~[(5) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or after release;]~~

~~[(6) evidence of the person's compliance with any conditions of community supervision, parole or mandatory supervision; and]~~

~~[(7) other evidence of the person's fitness, including letters of recommendation.]~~

~~[(e) HHSC may consider other crimes and pertinent information as a potential basis for denying an initial or renewal application.]~~

(b) [~~(f)~~] Convictions under federal law or the laws of another state or nation for offenses containing elements similar to offenses listed in subsection (a) [~~(c)~~ ] of this section may be a basis for HHSC denying an initial application or imposing sanctions.

(c) [~~(g)~~] A notice required under subsection (d) [~~(a)~~] of this section must contain a statement that the applicant or licensee is disqualified from receiving the license or being examined for the license because of the applicant's or licensee's prior conviction of an offense specified in the notice, as provided in subsection (a)(1) and (2) of this section. [~~, as applicable:~~]

[(1) a statement that the applicant or licensee is disqualified from receiving the license or being examined for the license because of the applicant's or licensee's prior conviction of an offense specified in the notice, as provided in subsection (a)(2) and (a)(3) of this section; or]

~~[(2) a statement that:]~~

[(A) the final decision of the licensing authority to deny the applicant or licensee a license, or the opportunity to be examined for the license, will be based on the factors listed in subsection (d) of this section, as provided in subsection (a)(1) of this section; and]

~~[(B) the applicant or licensee has the responsibility to obtain and provide to HHSC evidence regarding the factors listed in subsection (d) of this section.]~~

(d) [~~(h)~~] If HHSC suspends or revokes a license, or denies an applicant or licensee a license or the opportunity to be examined for a license because of the applicant's or licensee's prior conviction of an offense, HHSC notifies [~~shall notify~~] the person in writing of:

(1) the reason for the suspension, revocation, denial, or disqualification [~~including any factor considered under subsection (b) and (d) of this section that served as the basis for suspension, revocation, denial, or disqualification~~];

(2) the procedure for judicial review; and

(3) the earliest date the applicant or licensee may appeal HHSC's action.

§555.42.Alternate Licensing Requirements for Military Service Personnel.

(a) Fee waiver based on military experience.

(1) The Texas Health and Human Services Commission (HHSC) waives the application fee described in §555.11(a)(2) of this chapter (relating to Application Requirements) and the initial license fee described in §555.31(a)(2) of this chapter (relating to Initial License) for an applicant if HHSC receives and approves a request for a waiver of fees from the applicant in accordance with this subsection.

(2) To request a waiver of fees under this subsection, an applicant must submit a written request for a waiver with the applicant's initial license application submitted to HHSC through the online portal in accordance with §555.11 of this chapter. The applicant must include with the request:

(A) documentation of the applicant's status as a military service member or military veteran that is acceptable to HHSC; and

(B) documentation of the type and dates of the service, training, and education the applicant received[,] and an explanation as to why the applicant's military service, training, or education substantially meets all [of] the requirements for licensure under this chapter.

(3) Documentation of military status that is acceptable to HHSC includes:

(A) for status as a military service member, a copy of a current military service order issued to the applicant by the armed forces of the United States, the State of Texas, or another state; and

(B) for status as a military veteran, a copy of a military service discharge order issued to the applicant by the armed forces of the United States, the State of Texas, or another state.

(4) If HHSC requests additional documentation, the applicant must submit the requested documentation.

(5) HHSC approves a request for a waiver of fees submitted in accordance with this subsection if HHSC determines that the applicant is a military service member or a military veteran and the applicant's military service, training, or education substantially meets all [of ] the requirements for licensure under this chapter.

(b) Fee waiver for a military spouse.

(1) HHSC waives the application fee described in §555.11(a)(2) of this chapter and the initial license fee described in §555.31(a)(2) of this chapter for an applicant who is a military spouse if HHSC receives and approves through the online portal a request for a waiver of fees from the applicant and documentation of the applicant's status as a military spouse.

(2) Documentation of military status that is acceptable to HHSC includes:

(A) a copy of a marriage certificate issued to the applicant by a state of the United States or a foreign government; and

(B) a copy of a current military service order issued to the applicant's spouse by the armed forces of the United States, the State of Texas, or another state.

(3) If HHSC requests additional documentation, the applicant must submit the requested documentation.

(1) HHSC waives the application fee described in [§ ]§555.11(a)(2) of this chapter and the provisional initial license fee described in §555.32(a)(3) of this chapter (relating to Provisional License) for an applicant if HHSC receives and approves through the online portal a request for a waiver of fees in accordance with this subsection.

(2) To request a waiver of fees under this subsection, an applicant must include a written request for a waiver of fees with the applicant's provisional license application that is submitted to HHSC in accordance with §555.32 of this chapter. The applicant must include with the request documentation of the applicant's status as a military service member, military veteran, or military spouse that is acceptable to HHSC.

(3) Documentation of military status that is acceptable to HHSC includes:

(A) for status as a military service member, a copy of a current military service order issued to the applicant by the armed forces of the United States, the State of Texas, or another state;

(B) for status as a military veteran, a copy of a military service discharge order issued to the applicant by the armed forces of the United States, the State of Texas, or another state; and

(i) a copy of a marriage certificate issued to the applicant by a state of the United States or a foreign government; and

(ii) a copy of a current military service order issued to the applicant's spouse by the armed forces of the United States, the State of Texas, or another state.

(4) If HHSC requests additional documentation, the applicant must submit the requested documentation.

(5) HHSC approves a request for a waiver of fees submitted in accordance with this subsection if HHSC determines that:

(A) the applicant holds a license in good standing in another jurisdiction with licensing requirements substantially equivalent to the requirements for a license under this chapter; and

(B) the applicant is a military service member, a military veteran, or a military spouse.

(d) Additional time for license renewal.

(1) HHSC gives a nursing facility administrator (NFA) an additional two years to complete the license renewal requirements described in §555.43 of this subchapter (relating to License Renewal) and §555.35 of this subchapter (relating to Continuing Education Requirements for License Renewal), if HHSC receives and approves a request for additional time to complete the licensing renewal requirements from an NFA in accordance with this subsection.

(2) To request additional time to complete license renewal requirements, an NFA must:

(A) submit a written request for additional time to HHSC through the online portal before the expiration date of the NFA's license; and

(B) include with the request, documentation of the NFA's status as a military service member that is acceptable to HHSC, which includes a copy of a current military service order issued to the NFA by the armed forces of the United States, the State of Texas, or another state.

(3) If HHSC requests additional documentation, the NFA must submit the requested documentation.

(4) HHSC approves a request for two additional years to complete license renewal requirements submitted in accordance with this subsection if HHSC determines that the NFA is a military service member, except HHSC does not approve a request if HHSC granted the NFA a previous extension and the NFA has not completed the license renewal requirements during the two-year extension period.

(5) If an NFA does not submit the written request described by paragraph (2) of this subsection before the expiration date of the NFA's license, HHSC considers [~~will consider~~] a request after the expiration date of the license if the NFA establishes to the satisfaction of HHSC that the request was not submitted before the expiration date of the NFA's license because the NFA was serving as a military service member at the time the request was due.

(e) Credit toward internship requirements.

(1) HHSC gives an applicant credit toward the internship requirements for an administrator-in-training (AIT) described in §555.13 of this chapter (relating to Internship Requirements) based on the applicant's military service, training, or education if HHSC receives and approves a request for credit from an applicant in accordance with this subsection.

(2) To request credit for military service, training, or education, the applicant must submit a written request for credit to HHSC through the online portal with the applicant's initial license application. The applicant must include, with the request, documentation of the type and dates of the service, training, and education the applicant received and an explanation as to how the applicant's military service, training, or education is substantially similar to the training or education requirements described in §555.13 of this chapter.

(3) If HHSC requests additional documentation, the applicant must submit the requested documentation.

(4) HHSC approves a request for credit submitted in accordance with this subsection if HHSC determines that the military service, training, or education that the applicant received is substantially similar to the training or education requirements described in §555.12 of this chapter (relating to Licensure Requirements).

(f) Renewal of expired license.

(1) HHSC renews an expired license if HHSC receives and approves a request for renewal from a former NFA in accordance with this subsection.

(2) To request renewal of an expired license, a former NFA must submit a written request with a license renewal application through the online portal within five years after the former NFA's license expired. The former NFA must include with the request documentation of the former administrator's status as a military service member, military veteran, or military spouse that is acceptable to HHSC.

(3) Documentation of military status that is acceptable to HHSC includes:

(A) for status as a military service member, a copy of a current military service order issued to the former NFA by the armed forces of the United States, the State of Texas, or another state;

(B) for status as a military veteran, a copy of a military service discharge order issued to the former NFA by the armed forces of the United States, the State of Texas, or another state; and

(i) a copy of a marriage certificate issued to the former NFA by a state of the United States or a foreign government; and

(ii) a copy of a current military service order issued to the former NFA's spouse by the armed forces of the United States, the State of Texas, or another state.

(4) If HHSC requests additional documentation, the former NFA must submit the requested documentation.

(5) HHSC approves a request for renewal of an expired license submitted in accordance with this subsection if HHSC determines that:

(A) the former NFA is a military service member, military veteran, or military spouse;

(B) the former NFA has not committed an offense listed in Texas Health and Safety Code (THSC) §250.006(a) and (c) [~~§250.006(a)~~]and has not committed an offense listed in THSC §250.006(b) during the five years before the date the former NFA submitted the initial license application; and

(g) Recognition of Out-of-State License of Military Spouse.

(1) A military spouse may engage in the practice of nursing facility administration in Texas without obtaining a license, as required by §555.31 of this subchapter (relating to Initial License) or §555.32 of this subchapter (relating to Provisional License), if the spouse:

(A) is currently licensed in good standing by another jurisdiction that has licensing requirements substantially equivalent to the requirements for a license in Texas;

(B) notifies HHSC in writing through the online portal of the spouse's intent to practice in Texas;

(C) submits to HHSC proof of the spouse's residence in this state and a copy of the spouse's military identification; and

(D) receives from HHSC:

(i) confirmation that HHSC has verified the spouse's license in the other jurisdiction; and

(ii) a license to practice nursing facility administration in Texas.

(2) HHSC evaluates [~~will review and evaluate~~] the following criteria when determining whether another state's licensing requirements are substantially equivalent to the requirement for a license under the statutes and regulations of this state:

(A) whether the other state requires an applicant to pass an examination that demonstrates competence in the field to obtain the license;

(B) whether the other state requires an applicant to meet any experience qualifications to obtain the license;

(D) whether the other state denies an application for licensure from an applicant who has been convicted of an offense containing elements similar to offenses listed in §555.41(a) [~~§555.41(c)~~ ] of this subchapter (relating to Licensure of Persons with Criminal Backgrounds); and

(E) the other state's license requirements, including the scope of work authorized to be performed under the license issued by the other state.

(3) The military spouse must submit:

(A) a written request through the online portal to HHSC for recognition of the spouse's license issued by the other state;

(B) any form and additional information regarding the license issued by the other state required by the rules of the specific program or division within HHSC that licenses the business or occupation;

(C) proof of residence in this state, which may include a copy of the permanent change of station order for the military service member to whom the military spouse is married;

(D) a copy of the military spouse's identification card;

(E) proof the military service member is stationed at a military installation in Texas; and

(F) fingerprints for a Federal Bureau of Investigation-based criminal background check through the [a] Texas Department of Public Safety criminal background check to enable HHSC to confirm that the military spouse is in compliance with other laws and regulations applicable to nursing facility administration in Texas.

(4) Upon verification from the licensing jurisdiction of the military spouse's license and if the license is substantially equivalent to a Texas license, HHSC issues [~~shall issue~~] a confirmation that HHSC has verified the spouse's license in the other jurisdiction and a license to practice nursing facility administration in Texas.

(5) The license issued under paragraph (4) of this subchapter expires [~~will expire~~] three years from date of issuance or when the military service member is no longer stationed at a military installation in Texas, whichever comes first. The license issued under paragraph (4) of this subsection may not be renewed.

(6) HHSC replaces a lost, damaged or destroyed license certificate for a military spouse as provided in §555.33 of this subchapter (relating to Duplicate License) A military spouse with an active nursing facility administrator license can print a duplicate license through the online portal. A military spouse can request a change of name through the online portal by submitting a name change application[~~, but the military spouse does not pay the duplicate license fee~~].

(7) The military spouse must [~~shall~~] comply with all applicable laws, rules and standards of this state, including applicable Texas Health and Safety Code and all relevant Texas Administration Code provision.

(8) HHSC may withdraw or modify the verification letter for reasons including the following:

(A) the military spouse fails to comply with paragraph (1)(D)(i) of this section; or

(B) the military spouse's licensure required under subsection(c)(1) of this section expires or is suspended or revoked in another jurisdiction.

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

Filed with the Office of the Secretary of State on February 26, 2024.

TRD-202400865

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 14, 2024

For further information, please call: (512) 438-3161

SUBCHAPTER D. REFERRALS, COMPLAINT PROCEDURES, AND SANCTIONS

26 TAC §§555.51, 555.53 - 555.57

STATUTORY AUTHORITY

The proposed amendments implement Texas Government Code §§411.1161, 531.0055, and 531.021; Texas Human Resources Code §32.021; and Texas Health and Safety Code §§242.302, 242.3061, and 242.3115.

§555.51.Referral and Complaint Procedures.

(a) The Texas Health and Human Services Commission (HHSC) receives and investigates referrals and complaints.

(b) Persons wanting to file a complaint against a licensee may contact HHSC by:

(1) calling HHSC at the telephone numbers on the HHSC website;

(2) emailing the complaint to HHSC using the email address on the HHSC website;

(3) faxing the complaint to HHSC using the fax number on the HHSC website; or

(4) mailing the complaint to HHSC at the mailing address on the HHSC website.

(c) HHSC sends a Nursing Facility Administrator Complaint form to persons wanting to file a complaint. The complainant must complete, sign, and return the form to HHSC.

(d) If a referral or complaint is received, HHSC notifies the licensee and, if applicable, the person filing the complaint of the:

(1) alleged rule violation;

(2) assigned case number; and

(3) investigator contact information.

(e) HHSC investigates referrals and complaints by first determining if a complaint is within HHSC's authority to investigate and, if it is, [~~then~~] by engaging in one or more of the following investigative activities:

(1) reviewing pertinent documentation maintained by the facility, including financial and resident medical records;

(2) gathering additional evidence, including licensee and witness statements;

(3) determining licensee culpability for survey or investigative findings; and

(4) utilizing the services of a private investigator when special circumstances exist.

(f) HHSC keeps records confidential in accordance with state and federal law.

(g) HHSC prioritizes complaints as follows.[:]

(1) Priority one complaints allege physical abuse, sexual abuse, neglect, serious injury, death, or immediate jeopardy to resident health or safety. Investigations are initiated within 24 hours of receipt or by the next working day.

(2) Priority two complaints allege all other types of misconduct by the licensee. Investigations are initiated within 30 days after [of] receipt.

(h) After the investigation is complete, a final report with supporting documentation is given to the Nursing Facility Administrators Advisory Committee (NFAAC) for review and a recommendation on the appropriate action.

(i) After evaluating the NFAAC's recommendation, HHSC decides to:

(1) impose a sanction;

(2) collect additional information; or

(3) dismiss the case.

(j) HHSC notifies the licensee and, if applicable, the person filing a complaint of the status and final outcome of a complaint or referral.

§555.53.Formal Hearings.

(a) The Texas Health and Human Services Commission (HHSC) gives a licensee a formal hearing notice if:

(1) HHSC proposes a sanction; or

(2) HHSC upholds or modifies a proposed sanction after an informal review, in accordance with §555.52 of this subchapter (relating to Informal Reviews).

(b) The formal hearing notice to the licensee includes:

(1) a description of the alleged rule violations warranting the proposed sanction;

(2) HHSC decision to uphold or modify the sanction if the notice is issued after an informal review; and

(3) the option for the licensee to:

(A) accept the sanction; or

(B) request a formal hearing no later than 20 days after receiving the formal hearing notice from HHSC.

(c) If the licensee does not accept a modified sanction resulting from an informal review, the hearing notice may be for the original sanction HHSC proposed before the informal review.

(d) HHSC imposes a sanction against a licensee if:

(1) the licensee accepts the decision from HHSC to impose the sanction;

(2) the administrative law judge upholds the proposed sanction from HHSC after the formal hearing; or

(3) the licensee does not request a hearing within 20 days after receiving the formal hearing notice from HHSC.

(e) A hearing is governed by Texas Administrative Code, Title 1, Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act) and Chapter 110 of this title [~~Title 40, Chapter 91~~] (relating to Hearings[,] Under the Administrative Procedure Act).

§555.54.Rule or Statutory Violations.

The Texas Health and Human Services Commission (HHSC) may impose a sanction listed in §555.57 of this subchapter (relating to Schedule of Sanctions) against a licensee on proof of any of the following grounds:

(1) the licensee willfully or repeatedly violated a provision of Texas Health and Safety Code, Chapter 242, or a rule in this chapter;

(2) the licensee willfully or repeatedly acted in a manner inconsistent with the health and safety of the residents of a nursing facility of which the licensee is a nursing facility administrator (NFA);

(3) the licensee obtained or attempted to obtain a license through misrepresentation or deceit or by making a material misstatement of fact on a license application;

(4) the licensee's use of alcohol or drugs creates a hazard to the residents of a facility;

(5) a judgment of a court of competent jurisdiction finds that the licensee lacks capacity under the laws of Texas;

~~[(6) the licensee has been convicted in a court of competent jurisdiction of a misdemeanor or felony involving moral turpitude;]~~

(6) [~~(7)~~] the licensee has been convicted in a court of competent jurisdiction of an offense listed in §555.41(a) [~~§555.41(c)~~] of this chapter (relating to Licensure of Persons with Criminal Backgrounds);

(7) [~~(8)~~] the licensee has been negligent or incompetent in the licensee's duties as an NFA;

(8) [~~(9)~~] the licensee had an NFA license revoked in another jurisdiction; or

(9) [~~(10)~~] the licensee did not comply with the terms of a sanction or settlement agreement with HHSC.

§555.55.Violations of Standards of Conduct.

(a) The Texas Health and Human Services Commission (HHSC) may impose a sanction listed in §555.57 of this subchapter (relating to Schedule of Sanctions) against a licensee for violations of the following nursing facility administrator (NFA) Standards of Conduct.[:]

(1) A licensee must employ sufficient staff to adequately meet the needs of nursing facility residents as determined by care outcomes.

(2) A licensee must ensure that sufficient resources are present to provide adequate nutrition, medications, and treatments to nursing facility residents in accordance with physician orders as determined by care outcomes.

(3) A licensee must promote and protect the rights of nursing facility residents and ensure that employees, contractors, and others respect the rights of residents.

(4) A licensee must ensure that nursing facility residents remain free of chemical and physical restraints unless required by a physician's order to protect a nursing facility resident's health and safety.

(5) A licensee must report and direct nursing facility staff to report to the appropriate government agency any suspected case of abuse, neglect, or misappropriation of resident property as defined in §555.2 of this chapter (relating to Definitions).

(6) A licensee must ensure that the nursing facility is physically maintained in a manner that protects the health and safety of the residents and the public.

(7) A licensee must notify and direct employees to notify an appropriate government agency of any suspected cases of criminal activity as defined by state and federal laws.

(8) A licensee must post in the nursing facility where the licensee is employed the notice provided by HHSC that gives the address and telephone number for reporting complaints against an NFA. The notice must be posted in a conspicuous place and in clearly legible type.

(9) A licensee must not knowingly or through negligence commit, direct, or allow actions that result or could result in inadequate care, harm, or injury to a nursing facility resident.

(10) A licensee must not knowingly or through negligence allow a nursing facility employee to harm a nursing facility resident by coercion, threat, intimidation, solicitation, harassment, theft of personal property, or cruelty.

(11) A licensee must not knowingly or through negligence allow or direct an employee to contradict or alter in any manner the orders of a physician regarding a nursing facility resident's medical or therapeutic care.

(12) A licensee must not knowingly commit or through negligence allow another individual to commit an act of abuse, neglect, or misappropriation of resident property as defined in §555.2 of this chapter.

(13) A licensee must not permit another individual to use his or her license or allow a nursing facility to falsely post his or her license.

(14) A licensee must not advertise or knowingly participate in the advertisement of nursing facility services in a manner that is fraudulent, false, deceptive, or misleading in form or content.

(15) A licensee must not knowingly allow, aid, or abet a violation by another NFA of the Texas Health and Safety Code, Chapter 242, Subchapter I (text of Subchapter I effective until federal determination of failure to comply with federal regulations), or the agency's rules adopted under that subchapter and must report such violations to HHSC.

(16) A licensee must not make or knowingly allow an employee, contractor, or volunteer to make misrepresentations or fraudulent statements about the operation of a nursing facility.

(17) A licensee must not knowingly allow an employee's, a contractor's, or another person's action or inaction to result in harassment or intimidation of any person for purposes of coercing that person to use the services or equipment of a particular health agency or facility.

(18) A licensee must not falsely bill for goods or services or allow another person to bill for goods or services other than those that have actually been delivered.

(19) A licensee must not make or file a false report or allow an employee, contractor, or volunteer to make or file a report that the licensee knows to be false.

(20) A licensee must not intentionally fail to file a report or record required by state or federal law, impede or obstruct such filings, or induce another person to impede or obstruct such filings.

(21) A licensee must not use or knowingly allow employees or others to use alcohol, narcotics, or other drugs in a manner that interferes with the performance of the licensee's or other person's duties.

(22) A licensee must not knowingly or through negligence violate any confidentiality provisions prescribed by state or federal law concerning a nursing facility resident.

(23) A licensee must not interfere with or impede an investigation by withholding or misrepresenting facts to HHSC representatives, or by using threats or harassment against any person involved or participating in the investigation.

(24) A licensee must not display a license issued by HHSC that is reproduced, altered, expired, suspended, or revoked.

(25) A licensee must not, knowingly or through negligence, allow an employee or other individual to mismanage a resident's personal funds deposited with the nursing facility.

(26) A licensee must not harass or intimidate an employee or other representative of HHSC, other government agencies, or their representatives [~~concerning the administration of the nursing facility~~].

(27) A licensee must not offer or give any gift, loan, or other benefit to a person working for HHSC unless the benefit is offered or given on account of kinship or a personal relationship independent of the official status of the person working for HHSC.

(b) Negligence, as referenced in the Standards of Conduct in subsection (a) of this section, means the failure of a licensee to use such care as a reasonably prudent and careful licensee would use in similar circumstances, or failure to act as a reasonably prudent licensee would in similar circumstances.

§555.56.Violations by Unlicensed Persons.

(a) A person with an expired license must not engage in activities that require a license.

(b) A person practicing as a licensed nursing facility administrator after license expiration:

(1) commits an offense punishable as a Class B misdemeanor;

(2) is subject to local criminal prosecution; and

(3) may be referred to the Office of Attorney General for civil penalties not to exceed $1,000 per violation per day for each day the violation continues.

(1) a written reprimand; or

(2) an administrative penalty.

(d) A licensee allowing a license to expire instead of accepting a proposed license revocation may be, at HHSC's discretion, disqualified from licensure in Texas permanently or for five years.

~~[(e) A person with an expired license must return the license certificate to the Texas Health and Human Services Commission within ten (10) days of expiration.]~~

§555.57.Schedule of Sanctions.

(a) The Texas Health and Human Services Commission (HHSC) may impose one or more of the following sanctions against a licensee for a violation listed in §555.54 of this subchapter (relating to Rule or Statutory Violations) or §555.55 of this subchapter (relating to Violations of Standards of Conduct):

(1) license revocation;

(2) license suspension;

(3) denial of application for license renewal;

(4) assessment of an administrative penalty;

(5) written letter of reprimand;

(6) participation in continuing education;

(7) probation;

(8) denial of preceptor's initial or renewal application; or

(9) revocation of preceptor status.

(b) If a sanction is probated, HHSC may require the licensee to:

(1) report regularly to HHSC on matters that are the basis of the probation;

(2) limit practice to the areas prescribed by HHSC;

(3) practice under the direct supervision or guidance of a HHSC certified preceptor, as specified in §555.14 of this chapter (relating to Preceptor Requirements); or

(4) complete prescribed continuing education until the licensee attains a degree of skill satisfactory to HHSC in those areas that are the basis of the probation.

(c) Civil penalties may result from a referral to the Office of Attorney General not to exceed $1,000 per violation per day for each day the violation continues.

(d) Administrative penalties may not exceed $1,000 per violation per day for each day the violation continues.

(e) The amount of the administrative penalty is assessed is based on:

(1) the seriousness of the violation, including:

(A) the nature, circumstances, extent, and gravity of prohibited acts; and

(B) the hazard or potential hazard created to the health, safety, or economic welfare of the public;

(2) economic harm to property or environment;

(3) history of previous violations;

(4) amount necessary to deter future violations;

(5) efforts to correct the violations;

(6) the severity level of the violation:

(A) Level I--$500 to $1,000 for violations that have or had an adverse impact on nursing facility resident health or safety that includes serious harm, permanent injury, or death to a nursing facility resident;

(B) Level II--$250 to $500 for violations that have or had a potential or adverse impact on the health or safety of a nursing facility resident, but less impact than Level I; or

(C) Level III--$250 or less for violations having minimal or no significant impact on nursing facility resident health or safety; and

(7) any other matter that justice may require.

(f) HHSC may deny, suspend, or revoke a license to practice in Texas if the licensee fails to meet and comply with all terms of an HHSC order or settlement agreement, or fails to complete any final sanction imposed against the licensee's license, including[,] satisfactory and timely completion of any continuing education requirements, suspension, probated suspension under a certified preceptor, or timely payment in full of administrative penalties.

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

Filed with the Office of the Secretary of State on February 26, 2024.

TRD-202400866

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 14, 2024

For further information, please call: (512) 438-3161

CHAPTER 557. MEDICATION AIDES--PROGRAM REQUIREMENTS

26 TAC §§557.101, 557.103, 557.105, 557.107, 557.109, 557.111, 557.113, 557.115, 557.117, 557.119, 557.121, 557.123, 557.125, 557.127 - 557.129

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §557.101, concerning Introduction; §557.103, concerning Requirements for Administering Medications; §557.105, concerning Allowable and Prohibited Practices of a Medication Aide; §557.107, concerning Training Requirements; Nursing Graduates; Reciprocity; §557.109, concerning Application Procedures; §557.111, concerning Examination; §557.113, concerning Determination of Eligibility; §557.115, concerning Permit Renewal; §557.117, concerning Changes; §557.119, concerning Training Program Requirements; §557.121, concerning Permitting of Persons with Criminal Backgrounds; §557.123, concerning Violations, Complaints, and Disciplinary Actions; §557.125, concerning Requirements for Corrections Medication Aides; §557.127, concerning Application Processing; §557.128, concerning Home Health Medication Aides; and §557.129, concerning Alternate Licensing Requirements for Military Service.

BACKGROUND AND PURPOSE

The purpose of the proposal is to implement two bills from the 88th Texas Legislature, Regular Session, 2023. House Bill (H.B.) 4123 relates to HHSC obtaining criminal history information from the Federal Bureau of Investigation (FBI) and Texas Department of Public Safety for medication aide (MA) applicants. Senate Bill (S.B.) 681 relates to the Texas Occupations Code, Chapter 53, exemption for HHSC Long-Term Care Regulation (LTCR)-regulated Medication Aides. This rule project also proposes revisions related to the Texas Unified Licensure Information Portal (TULIP), with the purpose of changing from a paper process to a digital process. This proposal also makes non-substantive edits to update references in the rules.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §557.101 revises definitions for MA rules. Paragraph (1) revises the definition of "abuse" to be consistent with the definition in other rule chapters. Paragraph (26) adds a definition for "'online portal." HHSC also updated a reference in the rule.

The proposed amendment to §557.103 updates references, incorporates requirements for home health medication aides that were previously in other sections, and makes non-substantive edits to improve readability.

The proposed amendment to §557.105 makes non-substantive grammar and sentence structure edits, updates references in the rule, and incorporates requirements for home health medication aides that were previously in other sections.

The proposed amendment to §557.107 updates references in the rule, makes grammar and sentence structure edits, incorporates requirements for home health medication aides that were previously in other sections, and updates the rule to reflect the current automated process using TULIP. Additionally, HHSC removed the word "accredited" to include persons who were home-schooled.

The proposed amendment to §557.109 adds language clarifying the use of the online portal TULIP and updates references in the rule. HHSC also removed the word "accredited" to include persons who were home-schooled.

The proposed amendment to §557.111 updates the rule to reflect the current automated process using TULIP and makes grammar and sentence structure edits to the rule.

The proposed amendment to §557.113 makes grammar and sentence structure edits, updates the rule to reflect the current automated process using TULIP, and updates references in the rule.

The proposed amendment to §557.115 makes grammar and sentence structure edits, updates references in the rule, updates the rule to reflect the current automated process using TULIP, and incorporates permit renewal requirements for medication aides that were previously in other sections.

The proposed amendment to §557.117 updates the rule to reflect the current automated process using TULIP and clarifies that a medication aide can request a name change and print a duplicate license through the online portal.

The proposed amendment to §557.119 implements H.B. 4123 relating to FBI criminal history and S.B. 681 relating to criminal convictions, updates the rule to reflect the current automated process using TULIP, makes grammar and sentence structure edits, and makes non-substantive reference updates.

The proposed amendment to §557.121 implements H.B. 4123 relating to FBI criminal history and updates references in the rule.

The proposed amendment to §557.123 makes grammar and sentence structure edits and updates references in the rule.

The proposed amendment to §557.125 updates the rule to reflect the current automated process using TULIP, makes grammar and sentence structure edits, and updates references in the rule.

The proposed amendment to §557.127 updates the rule to reflect the current automated process using TULIP and updates references in the rule.

The proposed amendment to §557.128 repeals redundant requirements and makes other revisions necessary to clarify that home health medication aides must meet medication aide requirements.

The proposed amendment to §557.129 updates references in the rule, makes grammar and sentence structure edits, updates the rule to reflect the current automated process using TULIP, and adds language clarifying that a military spouse with an active medication aide permit can print duplicate licenses and make name changes though the online portal.

FISCAL NOTE

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

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

(5) the proposed rules will not create new regulations;

(6) the proposed rules will expand existing rules;

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

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

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

Trey Wood has also determined that there will not be an adverse economic effect on small businesses, micro-businesses, or rural communities.

Criminal background history (specifically, fingerprinting requirements) proposed secondary to H.B. 4123 will not increase the cost for medication aides (MAs). While H.B. 4123 applies to MAs, Chapter 557 already requires MA applicant fingerprinting (in Texas Health and Safety Code §242.608), so there will be no additional cost for MA applicants.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas; and are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

Michelle Dionne-Vahalik, Associate Commissioner for Long-Term Care Regulation, has determined that for each year of the first five years the rules are in effect, the public benefit will be protecting nursing facility residents through HHSC's ability to obtain criminal history information from the FBI and Texas Department of Public Safety for MA applicants. This will improve the screening process to prohibit employing certain individuals with a criminal conviction that is a bar to employment but may have occurred in another state and align the criminal convictions used to determine bars to licensure, certification, or permitting with the convictions used to determine nursing facility employability for a LTCR-regulated MA.

Trey Wood has also determined that for each year of the first five years the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Written comments on the proposal may be submitted to Rachael Holden and Sandra Wiegand, Program Specialists, by email to HHSCLTCRRules@hhs.texas.gov.

STATUTORY AUTHORITY

The amendments are authorized by 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; 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; Texas Human Resources Code §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program; and Texas Health and Safety Code §142.023 and §242.608, which provide that the Executive Commissioner of HHSC shall adopt rules to establish standards for the permitting medication aides and for training programs, as well as the acts and practices allowed or prohibited to medication aides.

The amendments implement Texas Government Code §§411.1161, 531.0055, and 531.021; Texas Human Resources Code §32.021; and Texas Health and Safety Code §§142.023, 242.608, and 242.6111.

§557.101.Introduction.

(a) Purpose. The purpose of this chapter is to implement the provisions of the:

(1) Texas Health and Safety Code, Chapter 242, Subchapter N, concerning the administration of medications to facility residents;

(2) Texas Health and Safety Code, Chapter 142, Subchapter B, concerning the administration of medication by a home and community support services agency; and

(3) Texas Human Resource Code §161.083, concerning the administration of medication to an inmate in a correctional facility.

(b) Corrections medication aide permit requirements. Section 557.125 of this chapter (relating to Requirements for Corrections Medication Aides) applies to a corrections medication aide or an applicant for a corrections medication aide permit.

(c) 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 Texas Penal Code §21.08 (relating to Indecent Exposure) or Texas Penal Code, Chapter 22 (relating to Assaultive Offenses), sexual harassment, sexual coercion, or sexual assault [~~The willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish~~].

(3) Armed forces of the United States--The Army, Navy, Air Force, Coast Guard, Space Force, or Marine Corps of the United States, including reserve units of those military branches.

(4) BON--Texas Board of Nursing.

(5) Classroom instruction and training--Teaching curriculum components through in-person instruction taught in a physical classroom location, which may include skills practice, or through online instruction taught in a virtual classroom location.

(6) Client--An individual receiving home health, hospice, or personal assistance services from a HCSSA.

(7) Clinical experience--Teaching hands-on care of residents in a nursing facility under the required level of supervision of a licensed nurse, which may include skills practice prior to performing the skills through hands-on care of a resident. The clinical experience provides the opportunity for a trainee to learn to apply the classroom instruction and training to the care of residents with the assistance and required level of supervision of the instructor.

(8) Correctional facility--a facility operated by or under contract with the Texas Department of Criminal Justice.

(9) Day--Any day, including a Saturday, a Sunday, and a holiday.

(10) EMR--Employee misconduct registry. The registry maintained by HHSC in accordance with Texas Health and Safety Code, Chapter 253, to record findings of reportable conduct by certain unlicensed employees.

(11) Examination--A written competency evaluation for medication aides administered by HHSC.

(12) Facility--An institution licensed under Texas Health and Safety Code, Chapter 242; a state supported living center as defined in Texas Health and Safety Code §531.002(19); a licensed intermediate care facility for an individual with an intellectual disability or related condition as defined in the Texas Health and Safety Code Chapter 252; an intermediate care facility for an individual with an intellectual disability or related condition operated by a community center as described in Texas Health and Safety Code, Chapter 534; or an assisted living facility licensed under Texas Health and Safety Code, Chapter 247.

(13) HCSSA--A home and community support services agency licensed under Texas Health and Safety Code, Chapter 142 and Chapter 558 of this title (relating to Licensing Standards for Home and Community Support Services Agencies).

(14) HHSC--The Texas Health and Human Services Commission.

(15) Licensed nurse--A licensed vocational nurse or an RN.

(16) LVN--Licensed vocational nurse. A person licensed by the BON, or who holds a license from another state recognized by the BON, to practice vocational nursing in Texas.

(17) Medication aide--A person who is issued a permit by HHSC under Texas Health and Safety Code Chapter 242, Subchapter N, Texas Human Resources Code, Chapter 161, Subchapter D, and Texas Health and Safety Code, Chapter 142, Subchapter B to administer medications to facility residents, correctional facility inmates, or to persons served by home and community support services agencies.

(18) Military service member--A person who is on active duty.

(19) Military spouse--A person who is married to a military service member.

(20) Military veteran--A person who has served on active duty and who was discharged or released from active duty.

(21) Misappropriation of resident property--The deliberate misplacement, exploitation, or wrongful temporary or permanent use of a resident's belongings or money without the resident's consent.

(22) NAR--Nurse aide registry. A state listing of nurse aides maintained by HHSC in accordance with Texas Health and Safety Code, Chapter 250 that indicates if a nurse aide has active status, revoked status, or is unemployable based on a finding of having committed an act of abuse, neglect or misappropriation of resident property.

(23) Neglect--The failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.

(24) Non-licensed direct care staff--Employees of facilities other than Medicare-skilled nursing facilities or Medicaid nursing facilities who are primarily involved in the delivery of services to assist with residents' activities of daily living or active treatment programs.

(25) Nurse aide--An individual who has completed a nurse aide training and competency evaluation program (NATCEP) approved by HHSC as meeting the requirements of 42 Code of Federal Regulations (CFR) §§483.150 [~~§§483.15~~] - 483.154, or has been determined competent as provided in 42 CFR §483.150(a) and (b), and is listed as certified on the HHSC nurse aide registry.

(26) Online portal--The Texas Unified Licensure Information Portal (TULIP), through which licensing application activities are completed.

(27) [~~(26)~~] PRN medication--Pro re nata medication. Medication administered as the occasion arises or as needed.

(28) [~~(27)~~] Registered pharmacist--An individual currently licensed by the Texas Board of Pharmacy to practice pharmacy.

(29) [~~(28)~~] RN--Registered nurse. A person who is licensed by the BON, or who holds a license from another state recognized by the BON, to practice professional nursing in Texas.

(30) [~~(29)~~] TDCJ--Texas Department of Criminal Justice.

(31) [~~(30)~~] Training program--A program approved by HHSC to instruct individuals to act as medication aides.

§557.103.Requirements for Administering Medications.

(a) General. A person may not administer medication to a resident in a facility, an inmate in a correctional facility, or a client receiving home health services [~~or a correctional facility~~] unless the person:

(1) holds a current license under state law which authorizes the licensee to administer medication; or

(2) [~~if administering medication in a facility,~~] holds a current permit issued under this chapter [Texas Health and Safety Code, Chapter 242, Subchapter N, or if administering medication in a correctional facility, holds a current permit issued under Texas Human Resources Code §161.083 or Texas Health and Safety Code, Chapter 242, Subchapter N] and acts under the authority of a person who holds a current license under state law which authorizes the licensee to administer medication.

(b) Supervision and applicable law and rules. A medication aide must function under the direct supervision of a licensed nurse on duty or on call by the facility, [or] correctional facility, or home health agency using the medication aide. A medication aide must:

(1) function in accordance with applicable law and rules relating to administration of medication and operation of a facility, [~~or a~~] correctional facility, or home health agency; and

(2) comply with HHSC rules applicable to personnel used in a facility or for a home health agency, or TDCJ rules applicable to personnel in a correctional facility.

(c) Governmental employees. Governmental employees may receive a permit to administer medications under this chapter as authorized by Texas Health and Safety Code §242.610(f) or Texas Human Resources Code §161.083:

(1) state [~~State~~] supported living center employees and employees of an intermediate care facility for persons with an intellectual disability operated by a community center established under Texas Health and Safety Code, Chapter 534 must comply with subsection (b) of this section and [§]§557.105 of this chapter (relating to Allowable and Prohibited Practices of a Medication Aide); [,] §557.107 of this chapter (relating to Training Requirements; Nursing Graduates; Reciprocity); [,] §557.109 of this chapter (relating to Application Procedures); [,] §557.111 of this chapter (relating to Examination);[,] §557.113 of this chapter (relating to Determination of Eligibility); [,] §557.115 of this chapter (relating to Permit Renewal);[,] § 557.117 of this chapter (relating to Changes); [,] §557.119 of this chapter (relating to Training Program Requirements); [,] §557.121 of this chapter (relating to Permitting of Persons with Criminal Backgrounds; [,] and §557.123 of this chapter (relating to [Allowable and Prohibited Practices of a Medication Aide; Training Requirements; Nursing Graduates; Reciprocity; Application Procedures; Examination; Determination of Eligibility; Permit Renewal; Changes; Training Program Requirements; Permitting of Persons with Criminal Backgrounds; and] Violations, Complaints, and Disciplinary Actions).

(2) correctional [~~Correctional~~] facility employees and employees of medical services contractors for a correctional facility who administer medication as medication aides must comply with §557.125 of this chapter (relating to Requirements for Corrections Medication Aides).

(3) home health employees who administer medication as medication aides must comply with §557.128 of this chapter (relating to Home Health Medication Aides).

(d) medication [~~Medication~~] aides in nursing facilities. Persons employed as medication aides in a Medicare skilled nursing facility or a Medicaid nursing facility must comply with the requirements relating to nurse aides as set forth in United States Code, Part 42[,] §1396r(b)(5) and Chapter 556 of this title (relating to Nurse Aides).

(e) Exemptions.

(1) A person may administer medication to a resident in a facility without the license or permit as required in subsection (a) of this section, if the person is:

(A) a graduate nurse holding a temporary permit issued by the BON;

(B) a student enrolled in an accredited school of nursing or program for the education of registered nurses who is administering medications as part of the student's clinical experience;

(D) a student enrolled in an accredited school of vocational nursing or program for the education of vocational nurses who is administering medications as part of the student's clinical experience; or

(E) a trainee in a medication aide training program approved by HHSC under this chapter who is administering medications as part of the trainee's clinical experience.

(2) A student described in paragraph (1)(B), (D), or (E) of this subsection may administer medication only as part of the student's clinical experience.

(3) A person described in paragraph (1) of this subsection must act under the supervision of an individual as set forth in applicable law and rules.

§557.105.Allowable and Prohibited Practices of a Medication Aide.

(a) A medication aide permitted under this chapter [~~Texas Health and Safety Code, Chapter 242, Subchapter N, may~~]:

(1) must observe and report to the facility's or home health agency's [~~charge~~] licensed nurse on duty or on call any reactions or [~~and~~] side effects to medication shown by a resident or client, and document such side effects to the medication in the resident's or client's clinical or equivalent record;

(2) must take and record vital signs before the administration of medication that could affect or change [~~the~~] vital signs;

(3) may administer regularly prescribed medication to a resident or client if the medication aide:

(A) is trained to administer the medication;

(B) personally prepares the medication or sets up the medication to be administered [~~from a unit dose pack~~]; and

(4) may administer oxygen per nasal cannula or a non-sealing mask only in an emergency, after which the medication aide must verbally notify the licensed nurse on duty or on call and appropriately document the action and notification;

(5) may apply specifically ordered ophthalmic, otic, nasal, vaginal, and rectal medication unless prohibited by subsection (b)(10) of this section;

(6) may administer medications only from the manufacturer's original container or the original container in which the medication had been dispensed and labeled by the pharmacy with all information mandated by the Texas State Board of Pharmacy;

(7) [~~(6)~~] may administer previously ordered PRN medication, if:

(A) the facility's or home health agency's licensed nurse on duty or on call authorizes the medication;

(B) the medication aide documents in the resident's or client's records the symptoms indicating the need for the medication and the time the symptoms occurred;

(C) the medication aide documents in the resident's or client's records that the facility's or home health agency's licensed nurse on duty or on call was contacted, symptoms were described, and the licensed nurse granted permission to administer the medication, including the time of contact;

(D) the medication aide obtains authorization to administer the medication from the facility's or home health agency's licensed nurse on duty or on call each time the symptoms occur; [~~and~~]

(E) except as required by subparagraph (F) of this paragraph, the medication aide ensures that the resident's or client's record is co-signed by the licensed nurse who provided [~~gave~~] authorization by the end of the nurse's shift or, if the nurse was on call, by the end of the nurse's next on duty shift; and

(F) must, if a home health medication aide, ensure that the client's clinical record is co-signed by the RN who provided authorization within seven days after the notes are incorporated into the clinical record;

(8) [~~(7)~~] may measure a prescribed amount of a liquid medication to be administered to a resident or client;

(9) [~~(8)~~] may break a tablet to be administered to a resident or client, if:

(A) the resident's or client's medication card or its equivalent accurately documents how the tablet must be broken before administration; and

(B) the licensed nurse on duty or on call has calculated the dosage;

(10) [~~(9)~~] may crush medication, if [~~the medication aide~~]:

(A) authorization has been given in the original physician's order or the medication aide obtains authorization to crush the medication from the licensed nurse on duty or on call; and

(B) the medication aide documents the authorization on the resident or client's[~~resident's~~] medication card or its equivalent; and

(11) [~~(10)~~] may, except as prohibited by subsection (d) of this section, electronically order a refill of medication from a pharmacy, if the refill request is signed by the licensed nurse on duty or on call.

(b) A medication aide permitted under this chapter [~~Texas Health and Safety Code, Chapter 242, Subchapter N,~~] may not:

(1) administer medication by the injection route including the:

(A) intramuscular route;

(B) intravenous route;

(D) intradermal route; and

(E) hypodermoclysis route;

(2) administer medication used for intermittent positive pressure breathing treatments or any form of medication inhalation treatments;

(3) administer previously ordered PRN medication, except in accordance with subsection (a)(7) [~~(a)(6)~~] of this section;

(4) administer medication that, according to the resident's or client's clinical records, has not been previously administered to the resident or client;

(5) calculate resident's or client's medication doses for administration;

(6) crush medication, except in accordance with subsection (a)(10) [~~(a)(9)~~] of this section;

(7) administer medications or feedings by way of a tube inserted in a cavity of the body, except as specified for home health medication aides in §558.404(h) of this title (relating to Standards Specific to Agencies Licensed to Provide Personal Assistance Services);

(8) receive or assume responsibility for reducing to writing a verbal or telephone order from a healthcare professional including a physician, dentist, podiatrist or advanced practice nurse;

(9) order a resident's or client's [~~resident's~~ ] medications from a pharmacy, except in accordance with subsection (a)(11) [~~(a)(10)~~] of this section;

(10) apply topical medications that involve the treatment of skin that is broken or blistered or when a specified aseptic technique is ordered by the attending physician;

(11) steal, divert, or otherwise misuse medication;

(12) violate any provision of the Texas Health and Safety Code, Texas Human Resources Code, or this chapter;

(13) fraudulently procure or attempt to procure a permit;

(14) neglect to administer appropriate medications, as prescribed, in a responsible manner; or

(15) administer medications if the person is unable to do so with reasonable skill and safety to residents or clients by reason of drunkenness or excessive use of drugs, narcotics, chemicals, or any other type of material.

(c) If a practice is not described in subsection (a) of this section the practice is prohibited for a medication aide permitted under this chapter [~~Texas Health and Safety Code, Chapter 242, Subchapter N~~].

(d) A home health medication aide may not order a client's medication from a pharmacy.

§557.107.Training Requirements; Nursing Graduates; Reciprocity.

(a) Each applicant for a permit issued under this chapter [~~Texas Health and Safety Code, Chapter 242, Subchapter N,~~] must complete a training program unless the applicant meets the requirements of subsection (c) or (e) of this section.

(b) Before submitting an application for a permit under this chapter [~~Texas Health and Safety Code, Chapter 242, Subchapter N~~], an applicant must:

(1) be able to read, write, speak, and understand English;

(2) be at least 18 years of age;

(3) be free of communicable diseases and in suitable physical and emotional health to safely administer medications;

(4) be a [~~graduate of an accredited~~] high school graduate or have proof of successfully passing a general educational development test;

(5) if a home health medication aide, have satisfactorily completed a home health aide training and competency evaluation program or a competency evaluation program under §558.701 of this title (relating to Home Health Aides);

(6) [~~(5)~~] be employed in a facility or home health agency, as a nurse aide or nonlicensed direct care staff person on the first official day of the [an] applicant's medication aide training program; [~~and~~]

(7) [~~(6)~~] have been employed:

(A) as a nurse aide in a Medicare-skilled nursing facility or a Medicaid nursing facility; or

(B) in a facility or by a home health agency, for 90 days as a nonlicensed direct care staff person during the 12-month period before the first official day of the applicant's medication aide training program;

(8) [~~(7)~~] not have a criminal history that HHSC determines is a basis for denying the permit under §557.121 of this chapter (relating to Permitting of Persons with Criminal Backgrounds);

(9) [~~(8)~~] not be listed as unemployable on the EMR; and

(10) [~~(9)~~] not be listed with a revoked or suspended status on the NAR.

(c) A person who is attending or has attended an accredited school of nursing and who does not hold a license to practice professional or vocational nursing meets the training requirement for issuance of a permit under this chapter [~~Texas Health and Safety Code, Chapter 242, Subchapter N,~~] if the person:

(1) attended the nursing school no earlier than January 1 of the year immediately preceding the year of application for a permit under this chapter;

(2) successfully completed courses at the nursing school that covered the [~~cover~~] HHSC curriculum for a medication aide training program;

(3) submits a statement, with the application for a permit and combined permit application and examination fee as provided in §557.109 of this chapter (relating to Application Procedures), on the form provided by HHSC, signed by the nursing school's administrator or other authorized individual, certifying that the person completed the courses specified in paragraph (2) of this subsection; and

(4) complies with subsection (e)(5) and (6) of this section.

(d) The administrator or other authorized individual referred to in subsection (c)(3) of this section is responsible for determining that the nursing school courses cover HHSC curriculum.

(e) A person who is a graduate of an accredited school of nursing and who does not hold a license to practice professional or vocational nursing meets the training requirement for issuance of a permit under this chapter if [~~Texas Health and Safety Code, Chapter 242, Subchapter N, provided~~] the date of graduation from the nursing school was no earlier than January 1 of the year immediately preceding the year of application for a permit under this chapter.

(1) The applicant [~~graduate~~] must submit an official application form to HHSC through the online portal. The applicant must meet the requirements of subsection (b)(1) - (4), (8), and (9) [~~(b)(1) - (4), (7), and (8)~~] of this section.

(2) The application must be accompanied by the combined permit application and examination fee as set out in §557.109(c) of this chapter.

(3) The applicant must include an official transcript documenting graduation from an accredited school of nursing.

(4) HHSC acknowledges receipt of the application by sending the applicant a copy of this chapter and the HHSC open book examination.

(5) The applicant must complete the open book examination and return it to HHSC via email by the date given in the examination notice.

(6) The applicant must complete the HHSC written examination. HHSC denies the application of an applicant who fails [~~failing~~] to schedule and take the written examination by the date given in the examination notice.

(7) The [An] open-book or written examination may not be retaken if the applicant fails the examination.

(8) Upon successful completion of the open-book and written [~~two~~] examinations, HHSC evaluates all application documents submitted by the applicant.

(9) HHSC notifies the applicant [~~in writing~~] of the examination results through the online portal.

(f) A person who holds a valid license, registration, certificate, or permit as a medication aide issued by another state whose minimum standards or requirements are substantially equivalent to or exceed the requirements of this chapter that is [~~Texas Health and Safety Code, Chapter 242, Subchapter N,~~] in effect at the time of application, may request a waiver of the training program requirement as follows:

(1) The applicant must submit an official application form to HHSC through the online portal. The applicant must meet the requirements of subsection (b)(1) - (4), (8), and (9) [~~(b)(1) - (4), (7), and (8)~~] of this section.

(2) The application must be accompanied by the combined permit application and examination fee required in §557.109(c) of this chapter.

(3) The application must include a current copy of the rules of the other state governing its licensing and regulation of medication aides, a copy of the legal authority (law, act, code, or other) for the state's licensing program, and a certified copy of the license or certificate for which the reciprocal permit is requested.

(4) HHSC acknowledges receipt of the application by sending the applicant a copy of this chapter and the HHSC open book examination.

(5) HHSC may contact the issuing agency to verify the applicant's status with the agency.

(6) The applicant must complete the HHSC open-book examination and return it to HHSC via email by the date given in the examination notice.

(7) The applicant must complete the HHSC written examination. The site of the examination is determined by HHSC. HHSC denies the application of an applicant failing to schedule and take the examination by the date given in the examination notice.

(8) An open-book or written examination may not be retaken if the applicant fails the examination.

(9) Upon successful completion of the two examinations, HHSC evaluates all application documents submitted by the applicant.

(10) HHSC notifies the applicant [~~in writing~~] of the examination results through the online portal.

§557.109.Application Procedures.

(a) An applicant for a permit under this chapter [~~Texas Health and Safety Code, Chapter 242, Subchapter N~~], who complies with §557.107(a) of this chapter (relating to Training Requirements; Nursing Graduates; Reciprocity) must, no later than 20 days after enrollment in a training program:

(1) complete an application through the online portal, including submitting the following materials:

(A) the general statement enrollment form, which must contain:

(i) specific information regarding the applicant's personal data, certain misdemeanor and felony convictions, work experience, education, and training;

(ii) a statement that the applicant has met all the requirements in §557.107(b) of this chapter before the start of the program;

(iii) a statement that the applicant understands that application fees submitted in the permit process are nonrefundable;

(iv) a statement that the applicant understands materials submitted in the application process are nonreturnable;

(v) a statement that the applicant understands that it is a misdemeanor to falsify any information submitted to HHSC; and

(vi) the applicant's signature through the online portal [~~, which has been dated and notarized~~]; and

(B) upload through the online portal a certified copy or a notarized photocopy of the applicant's unaltered, original, high school diploma or transcript or the written results of a general educational development (GED) test demonstrating that the applicant passed the GED test, unless the applicant is applying under §557.107(e) of this chapter;

(2) submit the application to HHSC through the online portal; and

(3) submit the applicant's fingerprints to the Texas Department of Public Safety for a Federal Bureau of Investigation [~~Investigations~~] criminal background check.

(b) HHSC considers an application under subsection (a) of this section as officially submitted when HHSC receives the permit application and examination fee through the online portal.

(c) An applicant must pay the combined permit and examination fees through the online portal [~~by cashier's check or money order made payable to the Health and Human Services Commission, or by other HHSC-approved payment methods~~]. All fees are nonrefundable, except as provided by Texas Government Code, Chapter 2005.

(1) The fee schedule is as follows:

(A) combined permit application and examination fee--$25;

(B) renewal fee--$15;

(i) $22.50 for an expired permit renewed from one to 90 days after expiration;

(ii) $30 for an expired permit renewed from 91 days to one year after expiration; and

(iii) $30 for a former medication aide who meets the criteria in §557.115(c)(5) of this chapter (relating to Permit Renewal). [~~; and~~]

~~[(D) permit replacement fee--$5.]~~

(2) An initial or a renewal application is considered incomplete until the fee has been received and cleared through the appropriate financial institution.

(3) The fee schedule that applies to a [~~the~~ ] correctional medication aide is in §557.125 of this chapter (relating to Requirements for Corrections Medication Aides), and the fee schedule that applies to a [~~the~~] home health medication aide is in subsection (c) of this section [~~§557.128 of this chapter (relating to Home Health Medication Aides)~~].

(d) HHSC reviews high school diploma or GED documentation submitted by the applicant [~~verifies the accreditation of the high school that issued the diploma or transcript, or the testing service or program that certified the GED test required by subsection (a)(1)(B) of this section~~]. If HHSC determines additional information is required [~~is unable to verify the accreditation status of the school, testing service, or program~~], and HHSC requests additional documentation from the applicant [~~to verify the accreditation status~~], the applicant must provide the documentation to HHSC through the online portal.

(e) HHSC sends a notice through the online portal listing the additional materials required to an applicant who does not submit a complete application. An applicant must submit a complete application by the date of HHSC final exam.

(f) HHSC sends notice of HHSC application approval or deficiency to an applicant through the online portal in accordance with §557.121 of this chapter (relating to Permitting of Persons with Criminal Backgrounds) or §557.127 of this chapter (relating to Application Processing).

§557.111.Examination.

(a) HHSC gives a written examination to each applicant at a site determined by HHSC.

(1) The applicant must meet the requirements of §557.107 of this chapter (relating to Training Requirements; Nursing Graduates; Reciprocity) and §557.109 of this chapter (relating to Application Procedures) before taking the written examination.

(2) The applicant is tested on the subjects taught in the training program curricula and clinical experience. The examination covers an applicant's knowledge of accurate and safe drug therapy that will be administered to a facility's residents or home health agency's clients.

(3) The examination must be given after the applicant has successfully completed the training program or met the requirements of §557.107(c) - (e) of this chapter [~~(relating to Training Requirements; Nursing Graduates; Reciprocity)~~].

(4) An applicant with a disability, including an applicant with dyslexia as defined in Texas Education Code §51.970 (relating to Instructional Material for Blind and Visually Impaired Students and Students with Dyslexia), may request a reasonable accommodation for the examination under the Americans with Disabilities Act.

~~[(5) Staff of a training program must notify HHSC at least four weeks prior to its requested examination date.]~~

(5) [~~(6)~~] HHSC determines the passing grade on the examination.

(6) [~~(7)~~] If HHSC grades or reviews the examination, HHSC notifies the applicant of the results of the examination not later than the 30th day after the date the applicant took the examination through the online portal.

(7) [~~(8)~~] If a testing service grades or reviews the examination:

(A) HHSC notifies the applicant of the results of the examination through the online portal not later than the 14th day after the date HHSC receives the results from the testing service; and

(B) if notice of the examination results will be delayed for longer than 90 days after the examination date, HHSC notifies the applicant via email of the reasons for the delay before the 90th day.

(8) [~~(9)~~] HHSC may require a testing service to notify an applicant of the results of the applicant's examination.

(9) [~~(10)~~] HHSC notifies in writing an applicant who fails the examination through the online portal.

(A) HHSC may give an applicant under §557.107(a) of this chapter one subsequent examination, without additional payment of a fee, upon the applicant's [~~written~~] request to HHSC through the online portal.

(B) The [A] subsequent examination must be completed by the date given in the failure notification. The site of the examination is determined by HHSC.

(C) HHSC gives no further examinations if the student fails the subsequent examination, unless the student enrolls in and successfully completes another training program.

(D) If requested in writing by an applicant who fails the examination, HHSC furnishes the applicant with an analysis of the applicant's performance on the examination.

(b) An applicant who is unable to attend the applicant's scheduled examination due to unforeseen circumstances may be given an examination at another time without payment of an additional fee upon the applicant's written request to HHSC via email. The examination must be completed within 45 days from the date of the originally scheduled examination. The rescheduled examination is [~~must be~~] at a site determined by HHSC.

(c) An applicant whose application for a permit is [~~must be~~] denied under §557.113 of this chapter (relating to Determination of Eligibility) is ineligible to take the examination.

§557.113.Determination of Eligibility.

(a) HHSC approves or denies each application for a permit.

(b) HHSC provides notices [~~Notices~~] of application approval, denial, or deficiency [~~must be~~] in accordance with §557.127 of this chapter (relating to Application Processing).

(1) does not meet the requirements in §557.107 of this chapter (relating to Training Requirements; Nursing Graduates; Reciprocity) or §557.125 of this chapter (relating to Requirements for Corrections Medication Aides);

(2) fails to pass the examination prescribed by HHSC, as referenced in §557.111 of this chapter (relating to Examination), or developed by TDCJ, as referenced in §557.125(h) [~~§557.125(g)~~] of this chapter;

(3) fails or refuses to properly complete or submit an application form or fee through the online portal, or deliberately submits false information on any form or document required by HHSC;

(4) violates or conspires to violate [~~the~~] Texas Health and Safety Code, Chapter 242, Subchapter N, Texas Human Resources Code §161.083, or any provision of this chapter;

(5) has a criminal history that HHSC determines is a basis for denying the permit under §557.121 of this chapter (relating to Permitting of Persons with Criminal Backgrounds);

(6) is listed with a revoked or suspended status on the HHSC NAR; or

(7) is listed as unemployable on the EMR.

(d) If, after review, HHSC determines that the application should be denied, HHSC gives the applicant written notice of the reason for the proposed decision and of the opportunity for a formal hearing in accordance with §557.123(c)(3) of this chapter (relating to Violations, Complaints, and Disciplinary Actions).

§557.115.Permit Renewal.

(a) General.

(1) An [~~When issued, an~~] initial permit is valid for 12 months from the date of issue.

(2) A medication aide must renew his or her [~~the~~] permit annually.

(3) Each medication aide is responsible for renewing the permit before the expiration date. Failure to receive notification from HHSC before the expiration date of the permit does not excuse a [~~the~~] medication aide's failure to file for timely renewal.

(4) [~~A medication aide must complete a seven hour continuing education program approved by HHSC before expiration of the permit in order to renew the permit.~~] Continuing education hours are not required for the first renewal. However, after [~~After~~] a permit is renewed for the first time, a [~~the~~ ] medication aide must complete a seven-hour continuing education program approved by HHSC annually before expiration of his or her permit to renew the permit for each additional year [~~must earn approved continuing education hours to have the permit renewed again~~].

(5) HHSC denies renewal of the permit of a medication aide who:

(A) is in violation of Texas Health and Safety Code, Chapter 242, Subchapter N, Texas Human Resources Code §161.083, or this chapter at the time of application for renewal;

(B) has a conviction of a criminal offense listed in Texas Health and Safety Code §250.006(a) or (c) [~~§250.006(a)~~ ], or a conviction of a criminal offense listed in Texas Health and Safety Code §250.006(b) within five years before the date HHSC receives the renewal application;

(D) is listed with a revoked or suspended status on the NAR. [~~; or~~]

~~[(E) is in default on a guaranteed student loan as described in Texas Education Code §57.491.]~~

(6) A person whose permit has expired may not engage in activities that require a permit until the permit has been renewed.

(b) Permit renewal procedures.

(1) After receiving proof of the successful completion of the seven hour continuing education requirement, HHSC sends notice of the [~~expiration date of the permit, the~~] amount of the renewal fee due, and a renewal form to the medication aide through the online portal [~~physical or email address listed in HHSC records~~].

(2) The renewal form located in the online portal, which includes the contact information and preferred mailing address of the medication aide.

(3) Medication aides are [~~will be~~] required to submit fingerprints to the Texas Department of Public Safety for a Federal Bureau of Investigation [~~Investigations~~ ] criminal background check, if not submitted previously.

(4) HHSC issues a renewal permit to a medication aide who meets all requirements for renewal, including payment of the renewal fee.

(1) If a medication aide submits a renewal application to HHSC through the online portal that is late or incomplete, HHSC assesses the appropriate late fee described in §557.109(c)(1)(C) of this chapter (relating to Application Procedures). HHSC uses the submission [~~postmark~~] date in the online portal to determine if a renewal application is late. [If there is no postmark or the postmark is not legible, HHSC uses the date the renewal application was received and recorded by the HHSC Medication Aide Program to determine if the renewal application is late.]

(2) A person whose permit has been expired for less than one year may renew the permit through the online portal by submitting to HHSC:

(A) the permit renewal form;

(B) all accrued renewal fees;

(C) proof of having earned, during the expired period, seven hours in an approved continuing education program for each year, or part of a year, since the permit expired; and

(D) proof of having earned, before expiration of the permit, seven hours in an approved continuing education program as required by subsection (a)(4) of this section.

(3) A person whose permit has been expired for 90 days or less must pay HHSC the late renewal fee provided [~~stated~~ ] in §557.109(c)(1)(C)(i) of this chapter (relating to Application Procedures) or §557.125(g)(3)(A) [~~§557.125(f)(3)(A)~~ ] of this chapter (relating to Requirements for Corrections Medication Aides).

(4) A person whose permit has been expired for more than 90 days but less than one year must pay HHSC the late renewal fee stated in §557.109(c)(1)(C)(ii) or §557.125(g)(3)(B) [~~§557.125(f)(3)(B)~~] of this chapter.

(5) A person who previously held a permit in Texas issued under this chapter [~~Texas Health and Safety Code, Chapter 242, Subchapter N,~~] may obtain a new permit without reexamination if the person holds a [~~facility~~] medication aide permit from another state, practiced in that state for at least the two years preceding the application date, and pays to HHSC the late renewal fee stated in §557.109(c)(1)(C)(iii) of this chapter.

(6) HHSC denies late renewal of the permit if a permit holder:

(A) is in violation of Texas Health and Safety Code, Chapter 242, Subchapter N, Texas Human Resources Code §161.083, or this chapter on the date HHSC receives the application for late renewal;

(D) is listed with a revoked or suspended status on the NAR. [~~; or~~]

~~[(E) is in default on a guaranteed student loan as described in Texas Education Code §57.491.]~~

(d) A person whose permit has been expired for one year or more may not renew the permit. To obtain a new permit, the person must apply for a permit in accordance with §557.109 of this chapter (relating to Application Procedures) and in §557.111 of this chapter (relating to Examination).

§557.117.Changes.

(a) A medication aide must notify HHSC through the online portal within 30 days after changing the medication aide's required contact information, including name, preferred mailing address, or email address. The medication aide can request a change of name through the online portal by submitting a name change application.

(b) HHSC replaces a lost, damaged, or destroyed permit upon receipt of a completed duplicate permit request form. A medication aide can print a duplicate permit through the online portal [~~and permit replacement fee as set out in §557.109(c) of this chapter (relating to Application Procedures) and §557.125(f) of this chapter (relating to Requirements for Corrections Medication Aides)~~].

§557.119.Training Program Requirements.

(a) Application. An educational institution accredited by the Texas Workforce Commission or Texas Higher Education Coordinating Board that desires to offer a training program must file an application for approval on an HHSC form through the online portal. Programs sponsored by state agencies for the training and preparation of their own employees are exempt from the accreditation requirement. An approved institution may offer the training program and a continuing education program.

~~[(1) All signatures on HHSC forms and supporting documentation must be originals.]~~

(1) [~~(2)~~] The application through the online portal must include:

(A) the anticipated dates of the program;

(B) the location [~~location(s)~~] of the classroom instruction and training course [~~course(s)~~];

(D) a list that includes the address and telephone number of each instructor and any other persons responsible for the conduct of the program; and

(E) an outline of the program content and curriculum if the curriculum covers more than HHSC established curricula.

(2) [~~(3)~~] HHSC may conduct an inspection of the classroom instruction and training site.

(3) [~~(4)~~] HHSC sends notice of approval or proposed denial of the application to the program within 30 days after receiving a complete application through the online portal. If HHSC proposes to deny the application due to noncompliance with the requirements of [~~Texas Health and Safety Code, Chapter 242, Subchapter N, or~~]this chapter, it provides the reasons for denial [~~are given~~] in the notice.

(4) [~~(5)~~] An applicant may request in writing a hearing on a proposed denial. The applicant must submit a request within 15 days after the applicant receives notice of the proposed denial. The hearing is governed by 1 Texas Administrative Code [~~TAC~~] Chapter 357, Subchapter I (relating the Hearings under the Administrative Procedure Act); Chapter 110 of this title [~~40 TAC Chapter 91~~] (relating to Hearings under the Administrative Procedure Act); and Texas Government Code, Chapter 2001. If no request is made, the applicant has waived the opportunity for a hearing, and HHSC takes the proposed action [~~may be taken~~].

(b) Basic training program.

(1) A training program must include the following instruction and training:

(A) procedures for preparation and administration of medications;

(B) responsibility, control, accountability, storage, and safeguarding of medications;

(D) documentation of medications in resident's or client's [~~resident's~~] clinical records, including PRN medications;

(E) minimum licensing standards for facilities covering pharmaceutical service, nursing service, and clinical records;

(F) federal and state certification standards for participation under Title XVIII (Medicare) and Title XIX (Medicaid) of the Social Security Act pertaining to pharmaceutical service, nursing service, and clinical records;

(G) lines of authority in the facility, including facility personnel who are immediate supervisors;

(H) responsibilities and liabilities associated with the administration and safeguarding of medications;

(I) allowable and prohibited practices of medication aides in the administration of medication;

(J) drug reactions and side effects of medications commonly administered to [~~facility~~] residents or clients; and

(K) rules covering the medication aide program.

(2) The program must consist of 140 hours in the following sequence: 100 hours of classroom instruction and training; 20 hours of return skills demonstration laboratory; 10 hours of clinical experience, including clinical observation and skills demonstration under the direct supervision of a licensed nurse in a facility; and 10 hours of return skills demonstration laboratory. A classroom instruction and training or laboratory hour must include 50 minutes of actual classroom instruction and training or laboratory time.

(A) Class time must not exceed:

(i) four hours in a 24-hour period for a facility training program; or

(ii) eight hours in a 24-hour period for a correctional facility training program.

(B) The completion date of the program must be:

(i) a minimum of 60 days and a maximum of 180 days after the starting date of the facility training program; or

(ii) a minimum of 30 days and a maximum of 180 days after the starting date of a correctional facility training program.

(3) Each program must follow the curricula established by HHSC.

(4) Before a student begins a training program, the program must:

(A) ensure the student meets training requirements in §557.107(b)(1) - (9) of this chapter (relating to Training Requirements; Nursing Graduates; Reciprocity);

(B) check the EMR to verify that the student is not listed as unemployable; and

~~[(D) document the findings of the criminal history check and employability check in its records.]~~

(5) At least seven days before the beginning of a training program, the coordinator must notify HHSC in writing through the online portal of the dates and daily hours of the program, and the projected number of students.

(6) A change in any information presented by the program in an approved application, including location, instructors, and content must be approved by HHSC through the online portal before the change is implemented.

(7) The program instructors of the classroom instruction and training hours must be a registered nurse and registered pharmacist.

(A) The nurse instructor must have:

(i) a minimum of two years of experience in caring for individuals in a long-term care setting or be an instructor in a school of nursing, for a facility training program; or

(ii) a minimum of two years of experience employed in a correctional setting or be an instructor in a school of nursing, for a correctional facility program.

(B) The pharmacist instructor must have:

(i) a minimum of one year of experience and be currently employed or contracted as a consultant pharmacist in a facility; or

(ii) a minimum of one year of experience employed or contracted as a pharmacist in a correctional setting.

(8) The program coordinator must provide clearly defined and written policies regarding each student's clinical experience to the student, the administrator, and the director of nursing in the facility used for the clinical experience.

(A) The clinical experience must be counted only when the student is performing functions involving medication administration and under the direct supervision of a licensed nurse.

(B) The program coordinator must be responsible for final evaluation of the student's clinical experience.

(9) Each program must issue to each student, upon successful completion of the program, a certificate of completion, which must include the program's name, the student's name, the date of completion, and the signature of the program coordinator or administrative official.

(10) Each program must inform HHSC through the online portal on the HHSC class roster form of the final grade results for each student within 15 days after the student's completion of the course and prior to scheduling the exam.

(11) A student without an HHSC-approved criminal background check will not be allowed to take the exam.

(1) The program must consist of at least seven hours of classroom instruction and training or online instruction.

(2) The instructors must meet the requirements in subsection (b)(7) of this section.

(3) Each program must follow the curricula established by HHSC or the curriculum established by TDCJ for corrections medication aides, as applicable.

(4) Within 10 days after a medication aide's completion of the course, each program must inform HHSC through the online portal using [on] the HHSC class roster form of the name of each medication aide who has completed the course.

(d) In developing a training program for corrections medication aides that complies with Texas Government Code §501.1485, TDCJ may modify, as appropriate, the content of the training program curriculum originally developed under Texas Health and Safety Code, Chapter 242, to produce content suitable for administering medication in a correctional facility. The training program curriculum must be approved by HHSC.

(e) Subsection (c) of this section applies to a training program for medication aides and corrections [~~correction~~] medication aides.

§557.121.Permitting of Persons with Criminal Backgrounds.

(a) HHSC may suspend or revoke an existing permit, deny a permit, or deny a person the opportunity to take the examination for a permit if the person has a conviction for an offense listed in Texas Health and Safety Code §250.006 [~~been convicted of a felony or misdemeanor offense that directly relates to the duties and responsibilities of a medication aide~~].

(b) HHSC reviews an applicant's or existing medication aide's criminal background based on the Federal Bureau of Investigation fingerprinting submitted through the Texas Department of Public Safety.

~~[(b) When considering whether a criminal conviction directly relates to the duties and responsibilities of a medication aide, HHSC considers:]~~

~~[(1) that the following offenses may reflect an actual or potential inability to perform as a medication aide:]~~

~~[(A) the misdemeanor of knowingly or intentionally acting as a medication aide without a permit issued under the Texas Health and Safety Code, Chapter 242;]~~

~~[(B) any conviction for an offense listed in §250.006 of the Texas Health and Safety Code;]~~

[(C) any conviction, other than a Class C Misdemeanor, for an offense defined under Texas Penal Code, Chapter 22, as assault; sexual assault; intentional exposure of another to AIDS or HIV; aggravated assault or sexual assault; injury to a child, elderly person, or person with disabilities; or aiding suicide;]

[(D) any conviction, except Class C Misdemeanors, with a final disposition within the last ten years, for an offense defined in the Texas Penal Code as burglary under Chapter 30; theft under §31.03; sale or display of harmful material to minors; sexual performance by a child; and possession or promotion of child pornography;]

[(E) any conviction for an offense defined in the Texas Penal Code as an attempt, solicitation, conspiracy, or organized criminal activity to commit any offense listed in subparagraphs (B) - (D) of this paragraph; and]

~~[(F) any conviction under United States statutes or jurisdiction other than Texas for any offense equivalent to those listed in subparagraphs (B) - (E) of this paragraph;]~~

~~[(2) the extent to which a permit might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; and]~~

~~[(3) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of a medication aide.]~~

[(c) If HHSC determines that a conviction directly relates to the duties and responsibilities of a medication aide, HHSC considers the following factors in determining whether to take an action authorized under subsection (a) of this section, as described in Texas Occupations Code §53.023 including:]

~~[(1) the extent and nature of the person's past criminal activity;]~~

~~[(2) the age of the person when the crime was committed;]~~

~~[(3) the amount of time that has elapsed since the person's last criminal activity;]~~

~~[(4) the conduct and work activity of the person before and after the criminal activity;]~~

~~[(5) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or after release;]~~

~~[(6) evidence of the person's compliance with any conditions of community supervision, parole or mandatory supervision; and]~~

~~[(7) other evidence of the person's fitness, including letters of recommendation.]~~

(c) [~~(d)~~] A person who is denied a permit, or who has a permit suspended or revoked, due to his or her criminal background is given notice in accordance with §557.123(d) and (e) of this chapter (relating to Violations, Complaints, and Disciplinary Actions).

§557.123.Violations, Complaints, and Disciplinary Actions.

(a) Filing of complaints. Any person may file a complaint with [~~complain to~~] HHSC alleging that a person or program has violated the Texas Health and Safety Code, Chapter 242, Subchapter N; Texas Human Resources Code §161.083; or this chapter.

(1) Persons wishing [~~who want~~] to file a complaint against a medication aide, training program, or other [~~another~~] person related to medication aide training or permitting, must notify HHSC by calling 1-800-458-9858 or by writing the Medication Aide Permit Program, Health and Human Services Commission, P.O. Box 149030, Mail Code E-416, Austin, Texas 78714-9030.

(2) Anonymous complaints may be investigated by HHSC if the complainant provides sufficient information.

(b) Investigation of complaints. If HHSC's [~~HHSC~~] initial investigation determines:

(1) the complaint is [~~does~~] not [~~come~~] within HHSC jurisdiction, HHSC advises the complainant and, if applicable [~~possible~~], refers the complainant to the appropriate governmental agency for handling the complaint;

(2) there are insufficient grounds to support the complaint, HHSC dismisses the complaint and gives written notice of the dismissal to the medication aide or person against whom the complaint has been filed and the complainant; or

(3) there are sufficient grounds to support the complaint, HHSC may propose to deny, suspend, emergency suspend, revoke, or not renew a permit or to rescind program approval.

(c) Disciplinary actions. HHSC may revoke, suspend, or refuse to renew a permit, or reprimand a medication aide for a violation of Texas Health and Safety Code, Chapter 242, Subchapter N; Texas Human Resources Code §161.083; or this chapter. HHSC may suspend a permit in an emergency or rescind HHSC approval for an educational institution to offer a training program if the medication aide or educational institution fails to comply with the requirements in this chapter.

(1) HHSC may place on probation a person whose permit is suspended. HHSC may require the person on probation:

(A) to report regularly to HHSC on matters that are the basis of the probation;

(B) to limit practice to the areas prescribed by HHSC; or

(C) to continue or pursue professional education until the person attains a degree of skill satisfactory to HHSC in those areas that are the basis of the probation.

(2) Before institution of formal proceedings to revoke or suspend a permit or rescind program approval, HHSC gives written notice to the medication aide or program of the facts or conduct alleged to warrant revocation, suspension, or rescission, and the medication aide or program must be given an opportunity, as described in the notice, to show compliance with all requirements of the Texas Health and Safety Code, Chapter 242, Subchapter N; Texas Human Resources Code §161.083; or this chapter. When there is a finding of an alleged act of abuse, neglect, or misappropriation of resident property by a medication aide employed at a Medicaid-certified nursing facility or a Medicare-certified skilled nursing facility, HHSC complies with the hearings process as provided in 42 Code of Federal Regulations §488.335.

(3) If denial, revocation, or suspension of a permit or rescission of program approval is proposed, HHSC gives written notice that the medication aide or program must request, in writing, a hearing within 30 days after receipt of the notice, or the right to a hearing is waived and the permit is denied, revoked, or suspended or the program approval is rescinded.

(4) A hearing is governed by 1 Texas Administrative Code [~~TAC~~] Chapter 357, Subchapter I (relating to Hearings under the Administrative Procedure Act); and Chapter 110 of this title [~~40 TAC Chapter 91~~] (relating to Hearings under the Administrative Procedure Act).

(5) If HHSC receives an allegation that a medication aide, who has a nurse aide certificate under Chapter 556 of this title (relating to Nurse Aides), committed an act of abuse, neglect, or misappropriation of resident property, HHSC investigates the allegation under this section regarding the medication aide practice and under Chapter 556 of this title to determine if the allegation violates the nurse aide practice. The investigations run concurrently. If after the investigations, the medication aide requests hearings on the findings under the nurse aide practice and the medication aide practice, only one hearing, conducted in accordance with paragraph (4) of this subsection, is available to the medication aide. [If an alleged act of abuse, neglect, or misappropriation by a medication aide who also is a certified nurse aide under the provisions of Chapter 556 of this title (relating to Nurse Aides) violates the rules in this chapter and Chapter 556, HHSC complies with the hearing process described in paragraph (4) of this subsection. Through the hearing, determinations will be made on both the permit for medication aide practice and the certification for nurse aide practice.]

(d) Denial based on criminal history.

(1) HHSC provides written notice to any person HHSC proposes to deny an application based on the person's criminal history. The written notice must contain a statement that the person is disqualified from receiving a permit or being examined for a permit because of the person's prior conviction for the offense or offenses specified in the notice, as provided in §557.121(a) of this chapter (relating to Permitting of Persons with a Criminal Background). [~~, as applicable:~~]

[(A) a statement that the person is disqualified from receiving a permit or being examined for a permit because of the person's prior conviction for the offense or offenses specified in the notice, as provided in §557.121(a) and (b)of this chapter (relating to Permitting of Persons with a Criminal Background); or]

~~[(B) a statement that:]~~

[(i) HHSC's decision to deny the person a permit, or the opportunity to be examined for a permit, will be based on the factors listed in §557.121(b) of this chapter, as provided in §557.121(a) of this chapter; and]

~~[(ii) the person has the responsibility to obtain and provide to HHSC evidence regarding the factors listed in §557.121(c) of this chapter within 30 days of receipt of the notice.]~~

(2) If, upon reviewing the evidence provided by the person, HHSC upholds its decision to deny the person, HHSC notifies [~~shall notify~~] the person in writing of:

(A) the reason for the denial or disqualification [~~, including any factors considered under §557.121(a) and (b) of this chapter that served as the basis for denial or disqualification~~]; and

(B) the process for requesting a formal hearing before a State Office of Administrative Hearings administrative law judge.

(3) If HHSC's decision to deny the person is upheld during a formal hearing, HHSC shall notify the person in writing of:

(A) the process for requesting a motion for rehearing to appeal the decision; and

(B) if the decision is upheld upon a motion for rehearing, the process for requesting judicial review.

(e) Suspension or revocation [~~Revocation~~] based on criminal history.

(1) HHSC provides written notice to a permit holder that HHSC proposes to suspend or revoke the permit holder's permit. The written notice must contain a statement that the permit holder is no longer eligible to have the permit because of the permit holder's prior conviction for the offense or offenses specified in the notice, as provided in §557.121(a) of this chapter. [~~, as applicable:~~]

[(A) a statement that the permit holder is no longer eligible to have the permit because of the permit holder's prior conviction for the offense or offenses specified in the notice, as provided in §557.121(a) and (b)of this chapter; or]

~~[(B) a statement:]~~

~~[(i) that HHSC's decision to suspend or revoke the permit holder's permit will be based on the factors listed in §557.121(c) of this chapter, as provided in §557.121(a) of this chapter; and]~~

~~[(ii) describing the process for the permit holder to request an informal reconsideration opportunity by HHSC.]~~

~~[(2) If, after conducting the informal reconsideration, HHSC upholds its decision to suspend or revoke the permit holder's permit, HHSC shall notify the permit holder in writing of:]~~

~~[(A) the reason for the suspension or revocation including any factors considered under §557.121(a) and (b) of this chapter that served as the basis for suspension or revocation; and]~~

~~[(B) the process for requesting a formal hearing before a State Office of Administrative Hearings administrative law judge.]~~

(2) [~~(3)~~] If HHSC's decision to suspend or revoke the permit holder's permit is upheld during a formal hearing, HHSC notifies [~~shall notify~~] the permit holder in writing of:

(A) the process for requesting a motion for rehearing to appeal the decision; and

(B) if the decision is upheld upon a motion for rehearing, the process for requesting judicial review.

(f) Suspension, revocation, or nonrenewal. If HHSC suspends a permit, the suspension remains in effect until HHSC determines that the reason for suspension no longer exists or HHSC revokes or determines not to renew the permit. [~~HHSC investigates before making a determination and:~~]

(1) During [~~during~~] the time of suspension, the suspended medication aide must return his or her permit to HHSC. [;]

(2) If [if] a suspension overlaps a permit renewal date, the suspended medication aide may comply with the renewal procedures in §557.115 of this chapter (relating to Permit Renewal); however, HHSC does not renew the permit until HHSC determines that the reason for suspension no longer exists. [;]

(3) If [if] HHSC revokes or does not renew a permit, a person may reapply for a permit by complying with the requirements and procedures in this chapter at the time of reapplication. HHSC may refuse to issue a permit if the reason for revocation or nonrenewal continues to exist. [~~; and~~]

~~[(4) if a permit is revoked or not renewed, a medication aide must immediately return the permit to HHSC.]~~

(g) Complaints of abuse and neglect by medication aides who are issued a permit under this chapter [~~Texas Health and Safety Code, Chapter 242, Subchapter N,~~] and employed in a correctional facility, are investigated in accordance with §557.125(l) [~~as described in §557.125(k)~~] of this chapter (relating to Requirements for Corrections Medication Aides).

§557.125.Requirements for Corrections Medication Aides.

(a) Purpose. The purpose of this section is to provide the qualifications, conduct, and practice activities of a medication aide employed in a correctional facility or employed by a medical services contractor for a correctional facility.

(b) Supervision and applicable law and rules. A medication aide must function under the direct supervision of a licensed nurse on duty or on call by the correctional facility using the medication aide. The [A] medication aide must:

(1) function in accordance with applicable law and rules relating to administration of medication and operation of a correctional facility; and

(2) comply with TDCJ rules applicable to personnel used in a correctional institution.

(1) must observe and report to the correctional facility's charge nurse reactions and side effects to medication shown by an inmate;

~~[(1) A medication aide may:]~~

~~[(A) observe and report to the correctional facility's charge nurse reactions and side effects to medication shown by an inmate;]~~

~~[(B) take and record vital signs before the administration of medication which could affect or change the vital signs;]~~

~~[(C) administer regularly prescribed medication to an inmate if the medication aide:]~~

~~[(i) is trained to administer the medication;~~

~~[(ii) personally prepares the medication or sets up the medication to be administered; and~~

~~[(iii) documents the administration of the medication in the inmate's clinical record;~~

[(D) administer oxygen per nasal cannula or a non-sealing mask only in an emergency, after which the medication aide must verbally notify the licensed nurse on duty or on call and appropriately document the action and notification;]

~~[(E) apply specifically ordered ophthalmic, otic, nasal, vaginal, and rectal medication;]~~

~~[(F) administer previously ordered PRN medication. A medication aide must document in the inmate's records, symptoms indicating the need for the medication, and the time the symptoms occurred;]~~

~~[(G) administer the initial dose of a medication;]~~

~~[(H) order an inmate's medications from the correctional institution's pharmacy;]~~

~~[(I) measure a prescribed amount of a liquid medication to be administered;]~~

~~[(J) break a tablet for administration to an inmate if:]~~

~~[(i) the licensed nurse on duty or on call has calculated the dosage; and]~~

~~[(ii) the inmate's medication card or its equivalent accurately documents how the tablet must be altered before administration; and]~~

~~[(K) crush medication if:]~~

~~[(i) authorization is obtained from the licensed nurse on duty or on call; and]~~

~~[(ii) the authorization is documented on the inmate's medication card or its equivalent.]~~

(2) may take and record vital signs before the administration of medication which could affect or change the vital signs;

~~[(2) A medication aide may not:]~~

~~[(A) administer medication by the injection route including:]~~

~~[(i) intramuscular;]~~

~~[(ii) intravenous;]~~

~~[(iii) subcutaneous;]~~

~~[(iv) intradermal; and]~~

~~[(v) hypodermoclysis;]~~

~~[(B) administer medication used for intermittent positive pressure breathing treatments or any form of medication inhalation treatments;]~~

~~[(C) calculate an inmate's medication dose for administration;]~~

~~[(D) crush medication, except in accordance with paragraph (1)(K) of this subsection;]~~

~~[(E) administer medications or feedings by way of a tube inserted in a cavity of the body;]~~

~~[(F) receive or assume responsibility for reducing to writing a verbal or telephone order from a physician, dentist, or podiatrist;]~~

~~[(G) apply topical medications that involve the treatment of skin that is broken or blistered or when a specified aseptic technique is ordered by the attending licensed practitioner;]~~

~~[(H) steal, divert, or otherwise misuse medications;]~~

~~[(I) violate any provision of Texas Human Resources Code §161.083, or this chapter;]~~

~~[(J) fraudulently procure or attempt to procure a permit;]~~

~~[(K) neglect to administer appropriate medications, as prescribed, in a responsible manner; or]~~

[(L) administer medications if the person is unable to do so with reasonable skill and safety to residents by reason of drunkenness or excessive use of drugs, narcotics, chemicals, or any other type of material.]

(3) may administer regularly prescribed medication to an inmate if the medication aide:

(A) is trained to administer the medication;

(B) personally prepares the medication or sets up the medication to be administered; and

(5) may apply specifically ordered ophthalmic, otic, nasal, vaginal, and rectal medication;

(6) may administer previously ordered PRN medication but must document in the inmate's records any symptoms indicating the need for the medication, and the time the symptoms occurred;

(7) may administer the initial dose of a medication;

(8) may order an inmate's medications from the correctional institution's pharmacy;

(9) may measure a prescribed amount of a liquid medication to be administered;

(10) may break a tablet for administration to an inmate if:

(A) the licensed nurse on duty or on call has calculated the dosage; and

(B) the inmate's medication card or its equivalent accurately documents how the tablet must be altered before administration; and

(11) may crush medication if:

(A) authorization is obtained from the licensed nurse on duty or on call; and

(B) the authorization is documented on the inmate's medication card or its equivalent.

(d) Prohibited practices of a corrections medication aide. A medication aide may not:

(1) administer medication by the injection route including the:

(A) intramuscular route;

(B) intravenous route;

(D) intradermal route; and

(E) hypodermoclysis route;

(2) administer medication used for intermittent positive pressure breathing treatments or any form of medication inhalation treatments;

(3) calculate an inmate's medication dose for administration;

(4) crush medication, except in accordance with subsection (c)(11) of this section;

(5) administer medications or feedings by way of a tube inserted in a cavity of the body;

(6) receive or assume responsibility for reducing to writing a verbal or telephone order from a physician, dentist, or podiatrist;

(7) apply topical medications that involve the treatment of skin that is broken or blistered or when a specified aseptic technique is ordered by the attending licensed practitioner;

(8) steal, divert, or otherwise misuse medications;

(9) violate any provision of Texas Human Resources Code §161.083, or this chapter;

(10) fraudulently procure or attempt to procure a permit;

(11) neglect to administer appropriate medications, as prescribed, in a responsible manner; or

(12) administer medications if the person is unable to do so with reasonable skill and safety to inmates by reason of drunkenness or excessive use of drugs, narcotics, chemicals, or any other type of material.

(e) [~~(d)~~] Background and education requirements. Before applying for a corrections medication aide permit under Texas Human Resources Code §161.083, an applicant must be:

(1) able to read, write, speak, and understand English;

(2) at least 18 years of age;

(3) free of communicable diseases and in suitable physical and emotional health to safely administer medications;

(4) a graduate of a high school or successfully passed a general educational development test (GED); and

(5) employed in a correctional facility or by a medical service contractor for a correctional facility on the first day of an applicant's medication aide training program.

(f) [~~(e)~~] Application. An applicant for a corrections medication aide permit under this chapter [~~Texas Human Resources Code §161.083~~] must submit an official Corrections Medication Aide application form to HHSC through the online portal.

(1) The [An] applicant must submit the general statement enrollment form through the online portal that contains:

(A) specific information regarding personal data, certain misdemeanor and felony convictions, work experience, education, and training;

(B) a statement that all the requirements in subsection (e) [~~(d)~~] of this section were met before the start of the program;

(D) a statement that the applicant understands material submitted in the application process are nonreturnable;

(E) a statement that the applicant understands that it is a misdemeanor to falsify any information submitted to HHSC; and

(F) the applicant's dated [~~and notarized~~] signature through the online portal.

(2) An applicant must upload through the online portal [~~submit~~] a certified copy or a photocopy that has been notarized as a true and exact copy of an unaltered original of the applicant's high school graduation diploma or transcript, or the written results of a GED [~~general educational development (GED)~~] test.

(3) HHSC reviews high school or GED documentation submitted by the applicant [~~verifies the accreditation of the high school that issued the diploma or transcript, or the testing service or program that certified the GED test required by paragraph (2) of this subsection~~]. If HHSC determines additional information is required [~~is unable to verify the accreditation status of the school, testing service, or program~~], and HHSC requests additional documentation from the applicant [~~to verify the accreditation status~~], the applicant must provide the documentation to HHSC.

(4) HHSC considers a corrections medication aide permit application as officially submitted based on the submission date in the online portal [~~when HHSC receives the permit application~~].

(5) HHSC sends a notice through the online portal listing the additional materials required to an applicant who does not complete the application. An application not completed by the day of the TDCJ final exam is void.

(6) HHSC sends notice through the online portal of application approval or deficiency in accordance with §557.127 of this chapter (relating to Application Processing).

(g) [~~(f)~~] Fees. An applicant must pay application and permit renewal fees for a corrections medication aide permit through the online portal [~~by cashier's check or money order made payable to the Health and Human Services Commission~~]. All fees are nonrefundable, except as provided by Texas Government Code, Chapter 2005. The fee schedule is as follows:

(1) permit application fee--$15;

(2) renewal fee--$15; and

(3) late renewal fees for permit renewals made after the permit expires:

(A) $22.50 for an expired permit renewed from one to 90 days after expiration; and

(B) $30 for an expired permit renewed from 91 days to one year after expiration.[~~; and~~]

~~[(4) permit replacement fee--$5.]~~

(h) [~~(g)~~] Examination procedures. TDCJ gives a written examination to each applicant at a site determined by TDCJ. An applicant with a disability, including an applicant with dyslexia as defined in Texas Education Code §51.970 (relating to Instructional Material for Blind and Visually Impaired Students and Students with Dyslexia), may request a reasonable accommodation for the examination under the Americans with Disabilities Act.

(1) The applicant must meet the requirements of the TDCJ training program described in §557.119(d) of this chapter (relating to Training Program Requirements) before taking the written examination.

(2) The applicant must be tested on the subjects taught in the TDCJ training program curriculum and correctional facility clinical experience. The examination must test an applicant's knowledge of accurate and safe drug therapy administered to a correctional facility inmate.

(3) TDCJ administers the examination and determines the passing grade.

(4) TDCJ must inform HHSC through the online portal, on the HHSC class roster form, of the final exam results for each applicant within 15 days after completion of the exam.

(5) An applicant who is unable to attend the applicant's scheduled examination due to unforeseen circumstances must contact TDCJ to reschedule.

(6) If an applicant fails the examination, TDCJ notifies HHSC and the applicant in writing of the failure to pass the examination. The applicant may take one subsequent examination without having to re-enroll in the training program described in §557.119 of this chapter.

(7) An applicant whose application for a permit is denied under §557.113 of this chapter (relating to Determination of Eligibility) is ineligible to take the examination.

(i) [~~(h)~~] Determination of eligibility. HHSC determines eligibility for a corrections medication aide permit applicant according to §557.113 of this chapter and subsections (e) - (h) [~~(d) - (g)~~] of this section.

(j) [~~(i)~~] Renewal. A permit must be renewed in accordance with §557.115 of this chapter (relating to Permit Renewal).

(k) [~~(j)~~] Changes. Medication aides must report changes in accordance with §557.117 of this chapter (relating to Changes).

(l) [~~(k)~~] Violations, complaints, and disciplinary actions.

(1) Complaints. Any person may file a complaint with [~~complain to~~] HHSC alleging that a person or program has violated Texas Human Resources Code §161.083, or this chapter. HHSC handles complaints in the manner set forth in §557.123 of this chapter (relating to Violations, Complaints, and Disciplinary Actions).

(2) Investigations of abuse and neglect complaints. Allegations of abuse and neglect of inmates by corrections medication aides are investigated by the TDCJ Office of Inspector General. After an investigation, the TDCJ Office of Inspector General issues a report to HHSC with findings of abuse or neglect against the corrections medication aide. After reviewing the report and findings, HHSC determines whether to initiate a formal proceeding to revoke, suspend, or refuse to renew a corrections medication aide permit. If HHSC determines a formal proceeding to revoke, suspend, or refuse to renew a corrections medication aide permit should be initiated, §557.123(c) and (d) of this chapter apply. If HHSC determines that no formal proceeding to revoke, suspend, or refuse to renew a corrections medication aide permit should be initiated, HHSC dismisses the complaint against the corrections medication aide and gives written notice of the dismissal to the corrections medication aide.

(m) [~~(l)~~] Section 557.121 of this chapter (relating to Permitting of Persons with Criminal Backgrounds) applies to corrections medication aides under this chapter.

§557.127.Application Processing.

(a) Time periods. HHSC complies with the following procedures in processing applications for a facility and corrections medication aide permit and renewal.

(1) The following periods of time apply from the date HHSC receives an application through the online portal until the date HHSC issues a written notice through the online portal that the application is complete and accepted for filing or that the application is deficient and additional specific information is required. HHSC may issue a written notice through the online portal stating that the application has been approved instead of a notice that the application is complete. The time periods are as follows:

(A) letter of acceptance of application for a permit--21 days;

(B) letter of application deficiency or ineligibility--21 days;

(D) letter of renewal of permit deficiency--21 days.

(2) The following periods of time apply from the date HHSC receives the last item necessary to complete the application through the online portal until the date HHSC issues written notice through the online portal approving or denying the application. For the purpose of this section, an application is not considered complete until any required examination has been successfully completed by the applicant. The time periods for denial include notification of a proposed decision and an opportunity, if required, for the applicant to show compliance with law, and an opportunity to request a hearing. The time periods are as follows:

(A) issuance of initial permit--60 days;

(B) letter of denial for a permit or renewal permit--60 days; and

(b) Reimbursement of fees.

(1) If an application is not processed in the time periods stated in subsection (a) of this section, the applicant has the right to request reimbursement of all fees paid in that particular application process. Application for reimbursement must be made to the program administrator for HHSC Medication Aide Permit Program. If the program administrator does not agree that the time period has been violated or finds that good cause existed for exceeding the time period, the request must be denied.

(2) Good cause for exceeding the time period exists if the number of applications for a permit and permit renewal exceeds by 15 percent or more the number of applications processed in the same calendar quarter the preceding year; another public or private entity relied upon by HHSC in the application process caused the delay; or any other condition exists giving HHSC good cause for exceeding the time period.

(c) Appeal. If a request for reimbursement under subsection (b) of this section is denied by the program administrator, the applicant may appeal in writing to the Texas Health and Human Services Commission's hearings section to request a hearing on the reimbursement denial. A hearing is governed by 1 Texas Administrative Code [~~TAC~~ ] Chapter 357, Subchapter I (relating to Hearings under the Administrative Procedure Act); and Chapter 110 of this title [~~40 TAC Chapter 91~~] (relating to Hearings under the Administrative Procedure Act).

§557.128.Home Health Medication Aides.

(a) A home heath medication aide must be permitted as a medication aide in accordance with this chapter [~~General~~].

~~[(1) A person may not administer medication to a client unless the person:]~~

~~[(A) holds a current license under state law that authorizes the licensee to administer medication;]~~

~~[(B) holds a current permit issued under this section and acts under the delegated authority of an RN to administer medication;]~~

~~[(C) administers a medication to a client in accordance with rules of the BON that permit delegation of the administration of medication to a person not holding a permit under this section; or]~~

~~[(D) administers noninjectable medication under circumstances authorized by the memorandum of understanding between the BON and HHSC.]~~

[(2) A HCSSA that provides licensed and certified home health services, licensed home health services, hospice services, or personal assistance services may use a home health medication aide. If there is a direct conflict between the requirements of this chapter and federal regulations, the requirements that are more stringent apply to the licensed and certified HCSSA.]

~~[(3) Exemptions are as follows.]~~

~~[(A) A person may administer medication to a client without the license or permit as required in paragraph (1) of this subsection if the person is:]~~

~~[(i) a graduate nurse holding a temporary permit issued by the BON;]~~

~~[(ii) a student enrolled in an accredited school of nursing or program for the education of RNs who is administering medications as part of the student's clinical experience;]~~

~~[(iii) a graduate vocational nurse holding a temporary permit issued by the BON;]~~

[(iv) a student enrolled in an accredited school of vocational nursing or program for the education of vocational nurses who is administering medications as part of the student's clinical experience; or]

~~[(v) a trainee in a medication aide training program approved by HHSC under this chapter who is administering medications as part of the trainee's clinical experience.]~~

~~[(B) Supervision of an exempt person described in subparagraph (A) of this paragraph is as follows.]~~

~~[(i) A person described in:]~~

~~[(I) subparagraph (A)(i) of this paragraph shall be supervised by an RN;]~~

~~[(II) subparagraph (A)(ii) or (iv) of this paragraph shall be supervised by the student's instructor; or]~~

~~[(III) subparagraph (A)(iii) of this paragraph shall be supervised by an RN or LVN.]~~

~~[(ii) Supervision must be on-site.]~~

~~[(C) An exempt person described in this subsection may not be used in a supervisory or charge position.]~~

(b) A HCSSA that provides licensed and certified home health services, licensed home health services, hospice services, or personal assistance services may use a home health medication aide. If there is a direct conflict between the requirements of this chapter and federal regulations, the requirements that are more stringent apply to the licensed and certified HCSSA [~~Required actions~~].

(c) [~~(1)~~] If a HCSSA provides home health medication aide services, the HCSSA must employ a home health medication aide to provide the home health medication aide services. The HCSSA must employ or contract with an RN to perform the initial health assessment, prepare the client care plan, establish the medication list, medication administration record, and medication aide assignment sheet, and supervise the home health medication aide. The RN must be available to supervise the home health medication aide when home health medication aide services are provided.

(d) [~~(2)~~] The clinical records of a client using a home health medication aide must include a statement signed by the client or family acknowledging receipt of the list of permitted and prohibited acts of a home health medication aide.

(e) [~~(3)~~] The RN must be knowledgeable of HHSC rules governing home health medication aides and must ensure that the home health medication aide complies [~~is in compliance~~] with the Texas Health and Safety Code, Chapter 142, Subchapter B and this chapter.

(f) [~~(4)~~] A home health medication aide must:

(1) [~~(A)~~] function under the supervision of an RN;

(2) [~~(B)~~] comply with applicable law and this chapter relating to administration of medication and operation of the HCSSA;

(3) [~~(C)~~] comply with HHSC rules applicable to personnel used in a HCSSA; and

(4) [~~(D)~~] comply with this section and §558.701 of this title (relating to Home Health Aides) if the person will be used as a home health aide and a home health medication aide.

(g) [~~(5)~~] The RN must make a supervisory visit while the medication aide is in the client's residence in accordance with §558.298 of this title (relating to Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel and Tasks Not Requiring Delegation).

~~[(c) Permitted actions. A home health medication aide is permitted to:]~~

~~[(1) observe and report to the HCSSA RN and document in the clinical record any reactions and side effects to medication shown by a client;]~~

~~[(2) take and record vital signs of a client before administering medication that could affect or change the vital signs;]~~

~~[(3) administer regularly prescribed medication to a client if the medication aide:]~~

~~[(A) is trained to administer the medication;]~~

~~[(B) personally prepares the medication or sets up the medication to be administered; and]~~

~~[(C) documents the administration of the medication in the client's clinical record;]~~

[(4) administer oxygen per nasal cannula or a non-sealing face mask only in an emergency, after which the medication aide must verbally notify the supervising RN and appropriately document the action and notification;]

~~[(5) apply specifically ordered ophthalmic, otic, nasal, vaginal, topical, and rectal medication unless prohibited by subsection (d)(10) of this section;]~~

[(6) administer medications only from the manufacturer's original container or the original container in which the medication had been dispensed and labeled by the pharmacy with all information mandated by the Texas State Board of Pharmacy;]

~~[(7) administer previously ordered PRN medication if:]~~

~~[(A) the HCSSA's RN authorizes the medication;]~~

~~[(B) the medication aide documents in the client's clinical notes the symptoms indicating the need for medication and the time the symptoms occurred;]~~

[(C) the medication aide documents in the client's clinical notes that the HCSSA's RN was contacted, symptoms were described, and the HCSSA's RN granted permission to administer the medication, including the time of contact;]

~~[(D) the medication aide obtains authorization to administer the medication each time the symptoms occur; and]~~

~~[(E) the medication aide ensures that the client's clinical record is co-signed by the RN who gave permission within seven days after the notes are incorporated into the clinical record;]~~

~~[(8) measure a prescribed amount of a liquid medication to be administered;]~~

~~[(9) break a tablet for administration to a client if:]~~

~~[(A) the client's medication administration record accurately documents how the tablet must be altered before administration; and]~~

~~[(B) the licensed nurse on duty or on call has calculated the dosage;]~~

~~[(10) crush medication, if:]~~

~~[(A) authorization has been given in the original physician's order or the medication aide obtains authorization from the HCSSA's RN; and]~~

~~[(B) the medication aide documents the authorization on the client's medication administration record.]~~

~~[(d) Prohibited actions. A home health medication aide must not:]~~

~~[(1) administer a medication by any injectable route, including:]~~

~~[(A) intramuscular route;]~~

~~[(B) intravenous route;]~~

~~[(C) subcutaneous route;]~~

~~[(D) intradermal route; and]~~

~~[(E) hypodermoclysis route;]~~

~~[(2) administer medication used for intermittent positive pressure breathing treatment or any form of medication inhalation treatments;]~~

~~[(3) administer previously ordered PRN medication except in accordance with subsection (c)(7) of this section;]~~

~~[(4) administer medication that, according to the client's clinical records, has not been previously administered to the client;]~~

~~[(5) calculate a client's medication doses for administration;]~~

~~[(6) crush medication, except in accordance with subsection (c)(10) of this section;]~~

[(7) administer medications or feedings by way of a tube inserted in a cavity of the body except as specified in §558.404(h) of this title (relating to Standards Specific to Agencies Licensed to Provide Personal Assistance Services);]

~~[(8) receive or assume responsibility for reducing to writing a verbal or telephone order from a physician, dentist, podiatrist or advanced practice nurse;]~~

~~[(9) order a client's medication from a pharmacy;]~~

~~[(10) apply topical medications that involve the treatment of skin that is broken or blistered when a specified aseptic technique is ordered by the attending physician;]~~

[(11) administer medications from any container other than the manufacturer's original container or the original container in which the medication had been dispensed and labeled by the pharmacy with all information mandated by the Texas State Board of Pharmacy;]

~~[(12) steal, divert, or otherwise misuse medications;]~~

~~[(13) violate any provision of the statute or of this chapter;]~~

~~[(14) fraudulently procure or attempt to procure a permit;]~~

~~[(15) neglect to administer appropriate medications, as prescribed, in a responsible manner; or]~~

[(16) administer medications if the person is unable to do so with reasonable skill and safety to clients by reasons of drunkenness, inappropriate use of drugs, narcotics, chemicals, or any other type of material.]

[(e) Applicant qualifications. Each applicant for a permit issued under Texas Health and Safety Code, Chapter 142, Subchapter B must complete a training program. Before enrolling in a training program and applying for a permit under this section, all applicants:]

~~[(1) must be able to read, write, speak, and understand English;]~~

~~[(2) must be at least 18 years of age;]~~

~~[(3) must be free of communicable diseases and in suitable physical and emotional health to safely administer medications;]~~

~~[(4) must be a graduate of an accredited high school or have proof of successfully passing a general educational development test;]~~

~~[(5) must have satisfactorily completed a home health aide training and competency evaluation program or a competency evaluation program under §558.701 of this title;]~~

~~[(6) must not have a criminal history that HHSC determines is a basis for denying the permit under §557.121 of this chapter (relating to Permitting of Persons with Criminal Backgrounds);]~~

~~[(7) must not be listed as unemployable on the EMR; and]~~

~~[(8) must not be listed with a revoked or suspended status on the NAR.]~~

[(f) Nursing graduates. A person who is a graduate of an accredited school of nursing and who does not hold a license to practice professional or vocational nursing meets the training requirements for issuance of a permit under this section if the date of graduation from the nursing school was no earlier than January 1 of the year immediately preceding the year of application for a permit under this section.]

~~[(1) The applicant must submit an HHSC application form to HHSC. The applicant must meet the requirements of subsection (e)(1) - (6) of this section.]~~

~~[(2) The application must be accompanied by the combined permit application and examination fee.]~~

~~[(3) The applicant must include an official transcript documenting graduation from an accredited school of nursing.]~~

~~[(4) HHSC acknowledges receipt of the application by sending the applicant a copy of this chapter and HHSC open book examination.]~~

~~[(5) The applicant must complete the open book examination and return it to HHSC by the date given in the examination notice.]~~

[(6) The applicant must complete HHSC written examination. HHSC determines the site of the examination. HHSC denies the application of an applicant failing to schedule and take the examination by the date given in the examination notice.]

~~[(7) An open book or written examination may not be retaken if the applicant fails.]~~

~~[(8) Upon successful completion of the two examinations, HHSC evaluates all application documents submitted by the applicant.]~~

~~[(9) HHSC notifies the applicant in writing of the examination results.]~~

[(g) Nursing students. A person who is attending or has attended an accredited school of nursing and who does not hold a license to practice professional or vocational nursing meets the training requirements for issuance of a permit under this section if the person:]

~~[(1) attended the nursing school no earlier than January 1 of the year immediately preceding the year of application for a permit under this section;]~~

~~[(2) successfully completed courses at the nursing school that cover HHSC curriculum for a home health medication aide training program;]~~

[(3) submits a statement with the person's application for a permit under this section, that is signed by the nursing school's administrator or other authorized individual who is responsible for determining that the courses that he or she certifies cover HHSC curriculum and certifies that the person completed the courses specified under paragraph (2) of this subsection; and]

~~[(4) complies with subsection (f)(1), (2), and (4) - (9) of this section.]~~

[(h) Reciprocity. A person who holds a valid license, registration, certificate, or permit as a home health medication aide issued by another state whose minimum standards or requirements are substantially equivalent to or exceed the requirements of this section in effect at the time of application may request a waiver of the training program requirement as follows:]

~~[(1) The applicant must submit an HHSC application form to HHSC. The applicant must meet the requirements of subsection (e)(1) - (4) of this section.]~~

~~[(2) The application must be accompanied by the combined permit application and exam fee.]~~

[(3) The application must include a current copy of the rules of the other state governing its licensing and regulation of home health medication aides, a copy of the legal authority, including the law, act, code, or section, for the state's licensing program, and a certified copy of the license or certificate by which the reciprocal permit is requested.]

~~[(4) HHSC acknowledges receipt of the application by sending the applicant a copy of this chapter and of HHSC open book examination.]~~

~~[(5) HHSC may contact the issuing agency to verify the applicant's status with the agency.]~~

~~[(6) The applicant must complete HHSC open book examination and return it to HHSC by the date given in the examination notice.]~~

[(7) The applicant must complete HHSC written examination. The site of the examination is determined by HHSC. HHSC denies the application of an applicant failing to schedule and take the examination by the date given in the examination notice.]

~~[(8) An open book or written examination may not be retaken if the applicant fails.]~~

~~[(9) Upon successful completion of the two examinations, HHSC evaluates all application documents submitted by the applicant.]~~

~~[(10) HHSC notifies the applicant in writing of the examination results.]~~

~~[(i) Application by trainees.]~~

~~[(1) An applicant under subsection (e) of this section must, no later than 20 days after enrollment in a training program:]~~

~~[(A) complete an application, including the following materials:]~~

~~[(i) the general statement enrollment form, which must contain:]~~

~~[(I) specific information regarding the applicant's personal data, certain misdemeanor and felony convictions, work experience, education, and training;]~~

~~[(II) a statement that the applicant has met all the requirements in §557.107(b) of this chapter (relating to Training Requirements; Nursing Graduates; Reciprocity) before the start of the program;]~~

~~[(III) a statement that the applicant understands that application fees submitted in the permit process are nonrefundable;]~~

~~[(IV) a statement that the applicant understands materials submitted in the application process are nonreturnable;]~~

~~[(V) a statement that the applicant understands that it is a misdemeanor to falsify any information submitted to HHSC; and]~~

~~[(VI) the applicant's signature, which has been dated and notarized; and]~~

[(ii) a certified copy or a notarized photocopy of the applicant's unaltered, original, high school diploma or transcript or the written results of a general educational development (GED) test demonstrating that the applicant passed the GED test, unless the applicant is applying under subsection (f) of this section;]

~~[(B) submit the application to HHSC; and]~~

~~[(C) submit fingerprints to the Texas Department of Public Safety for a Federal Bureau of Investigations criminal background check.]~~

[(2) HHSC considers an application as officially submitted when HHSC receives the nonrefundable combined permit application and examination fee payable to the Health and Human Services Commission. The fee required by subsection (n) of this section must accompany the application form.]

[(3) HHSC verifies the accreditation of the high school that issued the diploma or transcript, or the testing service or program that certified the GED test required by paragraph (1)(A)(ii) of this subsection. If HHSC is unable to verify the accreditation status of the school, testing service, or program, and HHSC requests additional documentation from the applicant to verify the accreditation status, the applicant must provide the documentation to HHSC.]

[(4) HHSC sends a notice listing the additional materials required to an applicant who does not complete the application. An application not completed within 30 days after the date of the notice will be void.]

~~[(5) HHSC sends notice of application acceptance, disapproval, or deficiency in accordance with subsection (q) of this section.]~~

~~[(j) Examination. HHSC gives a written examination to each applicant at a site HHSC determines.]~~

[(1) No final examination may be given to an applicant until the applicant has met the requirements of subsections (e) and (i) of this section, and if applicable, subsections (f), (g), or (h) of this section.]

[(2) An applicant with a disability, including an applicant with dyslexia as defined in Texas Education Code §51.970 (relating to Instructional Material for Blind and Visually Impaired Students and Students with Dyslexia), may request a reasonable accommodation for the examination under the Americans with Disabilities Act.]

[(3) The applicant must be tested on the subjects taught in the training program curricula and clinical experience. The examination covers an applicant's knowledge of accurate and safe drug therapy to clients.]

~~[(4) A training program must notify HHSC at least four weeks before its requested examination date.]~~

~~[(5) HHSC determines the passing grade on the examination.]~~

~~[(6) HHSC notifies in writing an applicant who fails the examination.]~~

~~[(A) HHSC may give an applicant under subsection (e) of this section one subsequent examination, without additional payment of a fee, upon the applicant's written request to HHSC.]~~

~~[(B) A subsequent examination must be completed by the date given on the failure notification. HHSC determines the site of the examination.]~~

~~[(C) Another examination will not be permitted if the student fails the subsequent examination unless the student enrolls and successfully completes another training program.]~~

[(7) An applicant who is unable to attend the applicant's scheduled examination due to unforeseen circumstances may be given an examination at another time without payment of an additional fee upon the applicant's written request to HHSC. The examination must be completed within 45 days from the date of the originally scheduled examination. HHSC determines the site for the rescheduled examination.]

~~[(8) An applicant whose application for a permit will be disapproved under subsection (k) of this section is ineligible to take the examination.]~~

[(k) Determination of eligibility. HHSC approves or disapproves all applications. HHSC sends notices of application approval, disapproval, or deficiency in accordance with subsection (q) of this section.]

~~[(1) HHSC denies an application for a permit if the person has:]~~

~~[(A) not met the requirements of subsections (e) - (i) of this section, if applicable;]~~

~~[(B) failed to pass the examination prescribed by HHSC as set out in subsection (j) of this section;]~~

~~[(C) failed to or refused to properly complete or submit any application form, endorsement, or fee, or deliberately presented false information on any form or document required by HHSC;]~~

~~[(D) violated or conspired to violate the Texas Health and Safety Code, Chapter 142, Subchapter B, or any provision of this chapter; or]~~

~~[(E) has a criminal history that HHSC determines is a basis for denying the permit under §557.121 of this chapter (relating to Permitting of Persons with Criminal Backgrounds).]~~

[(2) If, after review, HHSC determines that the application should not be approved, HHSC gives the applicant written notice of the reason for the proposed decision and of the opportunity for a formal hearing in accordance with subsection (r) of this section.]

~~[(l) Medication aide. Home health medication aides must comply with the following permit renewal requirements.]~~

~~[(1) When issued, a permit is valid for one year.]~~

~~[(2) A medication aide must renew the permit annually.]~~

~~[(3) The renewal date of a permit is the last day of the current permit.]~~

[(4) Each medication aide is responsible for renewing the permit before the expiration date. Failure to receive notification from HHSC before the expiration date of the permit does not excuse the medication aide's failure to file for timely renewal.]

[(5) A medication aide must complete a seven hour continuing education program approved by HHSC before expiration of the permit in order to renew the permit. Continuing education hours are not required for the first renewal. After a permit is renewed for the first time, the medication aide must earn approved continuing education hours to have the permit renewed again.]

~~[(6) HHSC denies renewal of the permit of a medication aide who is in violation of the Texas Health and Safety Code, Chapter 142, Subchapter B, or this chapter at the time of application for renewal.]~~

[(7) HHSC denies renewal of the permit of a medication aide who has been convicted of a criminal offense listed in Texas Health and Safety Code §250.006(a), or convicted of a criminal offense listed in Texas Health and Safety Code §250.006(b) within five years before the date HHSC receives the renewal application.]

~~[(8) HHSC denies renewal of the permit of a medication aide who is listed as unemployable on the EMR.]~~

~~[(9) Home health medication aide permit renewal procedures are as follows.]~~

[(A) At least 30 days before the expiration date of a permit, HHSC sends to the medication aide at the address in HHSC records notice of the expiration date of the permit and the amount of the renewal fee due and a renewal form that the medication aide must complete and return with the required renewal fee.]

~~[(B) The renewal form must include the preferred mailing address of the medication aide. It must be signed by the medication aide.]~~

~~[(C) Medication aides will be required to submit fingerprints for a Federal Bureau of Investigations criminal background check to the Texas Department of Public Safety, if not submitted previously.]~~

~~[(D) HHSC issues a renewal permit to a medication aide who has met all requirements for renewal.]~~

[(E) HHSC does not renew a permit if the medication aide does not complete the required seven-hour continuing education requirement. Successful completion is determined by the student's instructor. An individual who does not meet the continuing education requirement must complete a new program, application, and examination in accordance with the requirements of this section.]

~~[(F) HHSC does not renew a permit if renewal is prohibited by the Texas Education Code §57.491, concerning defaults on guaranteed student loans.]~~

[(G) If a medication aide fails to timely renew his or her permit because the medication aide is or was on active duty with the armed forces of the United States of America serving outside the State of Texas, the medication aide may renew the permit pursuant to this subparagraph.]

[(i) Renewal of the permit may be requested by the medication aide, the medication aide's spouse, or an individual having power of attorney from the medication aide. The renewal form must include a current address and telephone number for the individual requesting the renewal.]

~~[(ii) Renewal may be requested before or after the expiration of the permit.]~~

[(iii) A copy of the official orders or other official military documentation showing that the medication aide is or was on active military duty serving outside the State of Texas must be filed with HHSC along with the renewal form.]

[(iv) A copy of the power of attorney from the medication aide must be filed with HHSC along with the renewal form if the individual having the power of attorney executes any of the documents required in this subparagraph.]

~~[(v) A medication aide renewing under this subparagraph must pay the applicable renewal fee.]~~

~~[(vi) A medication aide is not authorized to act as a home health medication aide after the expiration of the permit unless and until the medication aide actually renews the permit.]~~

~~[(vii) A medication aide renewing under this subparagraph is not required to submit any continuing education hours.]~~

~~[(10) A person whose permit has expired for not more than two years may renew the permit by submitting to HHSC:]~~

~~[(A) the permit renewal form;]~~

~~[(B) all accrued renewal fees;]~~

~~[(C) proof of having earned, during the expired period, seven hours in an approved continuing education program for each year or part of a year that the permit has been expired; and]~~

~~[(D) proof of having earned, before expiration of the permit, seven hours in an approved continuing education program as required in paragraph (5) of this subsection.]~~

~~[(11) A permit that is not renewed during the two years after expiration may not be renewed.]~~

~~[(12) HHSC issues notices of permit renewal approval, disapproval, or deficiency must be in accordance with subsection (q) of this section.]~~

~~[(m) Changes.]~~

~~[(1) A medication aide must notify HHSC within 30 days after changing his or her address or name.]~~

~~[(2) HHSC replaces a lost, damaged, or destroyed permit upon receipt of a completed duplicate permit request form and permit replacement fee.]~~

~~[(n) Fees.]~~

~~[(1) The schedule of fees is:]~~

~~[(A) combined permit application and examination fee--$25;]~~

~~[(B) renewal fee--$15; and]~~

~~[(C) permit replacement fee--$5.00.]~~

~~[(2) All fees are nonrefundable.]~~

[(3) An applicant or home health medication aide must pay the required fee by cashier's check or money order made payable to the Health and Human Services Commission. All fees are nonrefundable, except as provided by Texas Government Code, Chapter 2005.]

~~[(o) Training program requirements.]~~

[(1) An educational institution accredited by the Texas Workforce Commission or Texas Higher Education Coordinating Board that desires to offer a training program must file an application for approval on an HHSC form. Programs sponsored by state agencies for the training and preparation of its own employees are exempt from the accreditation requirement. An approved institution may offer the training program and a continuing education program.]

~~[(A) All signatures on HHSC forms and supporting documentation must be originals.]~~

~~[(B) The application includes:]~~

~~[(i) the anticipated dates of the program;]~~

~~[(ii) the location(s) of the classroom course(s);]~~

~~[(iii) the name of the coordinator of the program;]~~

~~[(iv) a list that includes the address and telephone number of each instructor and any other person responsible for the conduct of the program; and]~~

~~[(v) an outline of the program content and curriculum if the curriculum covers more than HHSC established curricula.]~~

~~[(C) HHSC may conduct an inspection of the classroom site.]~~

[(D) HHSC sends notice of approval or proposed disapproval of the application to the program within 30 days of the receipt of a complete application. If the application is proposed to be disapproved due to noncompliance with the requirements of the Texas Health and Safety Code, Chapter 142, Subchapter B, or of this chapter, the reasons for disapproval are given in the notice.]

[(E) An applicant may request a hearing on a proposed disapproval in writing within ten days of receipt of the notice of the proposed disapproval. The hearing must be in accordance with subsection (r) of this section and the Administrative Procedure Act, Texas Government Code, Chapter 2001. If no request is made, the applicant is deemed to have waived the opportunity for a hearing, and the proposed action may be taken.]

~~[(2) The program includes, but is not limited to, the following instruction and training:]~~

~~[(A) procedures for preparation and administration of medications;]~~

~~[(B) responsibility, control, accountability, storage, and safeguarding of medications;]~~

~~[(C) use of reference material;]~~

~~[(D) documentation of medications in the client's clinical records, including PRN medications;]~~

~~[(E) minimum licensing standards for agencies covering pharmaceutical service, nursing service, and clinical records;]~~

~~[(F) federal and state certification standards for participation under the Social Security Act, Title XVIII (Medicare), pertaining to pharmaceutical service, nursing service, and clinical records;]~~

~~[(G) lines of authority in the agency, including agency personnel who are immediate supervisors;]~~

~~[(H) responsibilities and liabilities associated with the administration and safeguarding of medications;]~~

~~[(I) allowable and prohibited practices of a medication aide in the administration of medication;]~~

~~[(J) drug reactions and side effects of medications commonly administered to home health clients;]~~

~~[(K) instruction on universal precautions; and]~~

~~[(L) the provisions of this chapter.]~~

[(3) The program consists of 140 hours in the following order: 100 hours of classroom instruction and training, 20 hours of return skills demonstration laboratory, ten hours of clinical experience including clinical observation and skills demonstration under the supervision of an RN in an agency, and ten more hours in the return skills demonstration laboratory. A classroom instruction and training or laboratory hour is 50 minutes of actual classroom instruction or training or laboratory time.]

~~[(A) Class time will not exceed four hours in a 24-hour period.]~~

~~[(B) The completion date of the program must be a minimum of 60 days and a maximum of 180 days from the starting date of the program.]~~

~~[(C) Each program must follow the curricula established by HHSC.]~~

[(4) At least seven days before the commencement of each program, the coordinator must notify HHSC in writing of the starting date, the ending date, the daily hours of the program, and the projected number of students.]

[(5) A change in any information presented by the program in an approved application including, but not limited to, location, instructorship, and content must be approved by HHSC before the program's effective date of the change.]

~~[(6) The program instructors of the classroom instruction or training hours must be an RN and registered pharmacist.]~~

[(A) The nurse instructor must have a minimum of two years of full-time experience in caring for the elderly, chronically ill, or pediatric clients or been employed full time for a minimum of two years as an RN with a home and community support services agency. An instructor in a school of nursing may request a waiver of the experience requirement.]

~~[(B) The pharmacist instructor must have a minimum of one year of experience and be currently employed as a practicing pharmacist.]~~

[(7) The coordinator must provide clearly defined and written policies regarding each student's clinical experience to the student, the administrator, and the supervising nurse of the agency used for the clinical experience.]

~~[(A) The clinical experience must be counted only when the student is observing or involved in functions involving medication administration and under the direct, contact supervision of an RN.]~~

~~[(B) The coordinator is responsible for final evaluation of the student's clinical experience.]~~

[(8) Upon successful completion of the program, each program issues to each student a certificate of completion, including the program's name, the student's name, the date of completion, and the signature of the program coordinator.]

~~[(9) Within 15 days after completion of the course, and prior to scheduling the exam, each program must inform HHSC on the HHSC class roster form of the satisfactory completion for each student.]~~

~~[(p) Continuing education. The continuing education training program is as follows.]~~

~~[(1) The program must consist of at least seven clock hours of classroom instruction.]~~

~~[(2) The instructor must meet the requirements in subsection (o)(6) of this section.]~~

~~[(3) Each program must follow the curricula established by HHSC.]~~

~~[(4) Within 15 days after completion of the course, each program must inform HHSC on the HHSC class roster form of the name of each medication aide who has completed the course.]~~

~~[(q) Processing procedures. HHSC complies with the following procedures in processing applications of home health medication aide permits and renewal of permits.]~~

[(1) The following periods of time apply from the date of receipt of an application until the date of issuance of a written notice that the application is complete and accepted for filing or that the application is deficient and additional specific information is required. A written notice stating that the application has been approved may be sent in lieu of the notice of acceptance of a complete application. The time periods are:]

~~[(A) letter of acceptance of an application for a home health medication aide permit--14 days; and]~~

~~[(B) letter of application or renewal deficiency--14 days.]~~

[(2) The following periods of time shall apply from the receipt of the last item necessary to complete the application until the date of issuance of written notice approving or denying the application. The time periods for denial include notification of proposed decision and of the opportunity, if required, to show compliance with the law and of the opportunity for a formal hearing. An application is not considered complete until the required documentation and fee have been submitted by the applicant. The time periods are as follows:]

~~[(A) the issuance of an initial permit--90 days;]~~

~~[(B) the letter of denial for a permit--90 days; and]~~

~~[(C) the issuance of a renewal permit--20 days.]~~

[(3) In the event an application is not processed in the time period stated in paragraphs (1) and (2) of this subsection, the applicant has the right to request reimbursement of all fees paid in that particular application process. Request for reimbursement is made to the Home Health Medication Aide Permit Program. If the director of the Home Health Medication Aide Permit Program does not agree that the time period has been violated or finds that good cause existed for exceeding the time period, the request will be denied.]

[(4) Good cause for exceeding the time period exists if the number of applications for initial home health medication aide permits and renewal permits exceeds by 15 percent or more the number of applications processed in the same calendar quarter of the preceding year; another public or private entity relied upon by HHSC in the application process caused the delay; or any other condition exists giving HHSC good cause for exceeding the time period.]

[(5) If a request for reimbursement under paragraph (3) of this subsection is denied by the director of the Home Health Medication Aide Permit Program, the applicant may appeal to the HHSC commissioner for a timely resolution of any dispute arising from a violation of the time periods. The applicant must give written notice to the HHSC commissioner that the applicant requests full reimbursement of all fees paid because the application was not processed within the applicable time period. The applicant must mail the reimbursement request to Health and Human Services Commission, John H. Winters Human Services Complex, 701 W. 51st St., P.O. Box 149030, Austin, Texas 78714-9030. The director of the Home Health Medication Aide Permit Program must submit a written report of the facts related to the processing of the application and of any good cause for exceeding the applicable time period to the HHSC commissioner. The HHSC commissioner provides written notice of the commissioner's decision to the applicant and the director of the Home Health Medication Aide Permit Program. An appeal is decided in the applicant's favor if the applicable time period was exceeded and good cause was not established. If the appeal is decided in favor of the applicant, HHSC reimburses, in full, all fees paid in that particular application process.]

~~[(r) Denial, suspension, or revocation.]~~

[(1) HHSC may deny, suspend, emergency suspend, or revoke a permit or program approval if the medication aide or program fails to comply with any provision of the Texas Health and Safety Code, Chapter 142, Subchapter B, or this chapter.]

[(2) HHSC may also take action under paragraph (1) of this subsection for fraud, misrepresentation, or concealment of material fact on any documents required to be submitted to HHSC or required to be maintained or complied by the medication aide or program pursuant to this chapter.]

[(3) HHSC may suspend or revoke an existing permit or program approval or disqualify a person from receiving a permit or program approval because of a person's criminal history that HHSC determines is a basis for denying the permit under §557.121 of this chapter (relating to Permitting of Persons with Criminal Backgrounds).]

[(4) If HHSC proposes to deny, suspend, or revoke a home health medication aide permit or to rescind a home health medication aide program approval, HHSC notifies the medication aide or home health medication aide program by certified mail, return receipt requested, of the reasons for the proposed action and offers the medication aide or home health medication aide program an opportunity for a hearing.]

[(A) The medication aide or home health medication aide program must request a hearing within 15 days after receipt of the notice. Receipt of notice is presumed to occur on the tenth day after the notice is mailed to the last address known to HHSC unless another date is reflected on a United States Postal Service return receipt.]

~~[(B) The request must be in writing and submitted to the Health and Human Services Commission, Medication Aide Program, Mail Code E-416, P.O. Box 149030, Austin, Texas 78714-9030.]~~

[(C) If the medication aide or home health medication aide program does not request a hearing, in writing, 15 days after receipt of the notice, the medication aide or home health medication aide program is deemed to have waived the opportunity for a hearing and the proposed action is taken.]

[(5) HHSC may suspend a permit to be effective immediately when the health and safety of persons are threatened. HHSC notifies the medication aide of the emergency action by certified mail, return receipt requested, or personal delivery of the notice and of the effective date of the suspension and the opportunity for the medication aide to request a hearing.]

~~[(6) All hearings are governed by Texas Government Code, Chapter 2001, and 1 TAC §§357.481 - 357.490.]~~

~~[(7) If the medication aide or program fails to appear or be represented at the scheduled hearing, the medication aide or program has waived the right to a hearing and the proposed action is taken.]~~

[(8) If HHSC suspends a home health medication aide permit, the suspension remains in effect until HHSC determines that the reason for suspension no longer exists, revokes the permit, or determines not to renew the permit. HHSC investigates before making a determination.]

~~[(A) During the time of suspension, the suspended medication aide must return the permit to HHSC.]~~

[(B) If a suspension overlaps a renewal date, the suspended medication aide may comply with the renewal procedures in this chapter; however, HHSC does not renew the permit until HHSC determines that the reason for suspension no longer exists.]

~~[(9) If HHSC revokes or does not renew a permit, a person may reapply for a permit by complying with the requirements and procedures in this chapter at the time of reapplication.]~~

~~[(A) HHSC may refuse to issue a permit if the reason for revocation or nonrenewal continues to exist.]~~

~~[(B) When a permit is revoked or not renewed, a medication aide must immediately return the permit to HHSC.]~~

§557.129.Alternate Licensing Requirements for Military Service.

(a) Fee waiver based on military experience.

(1) HHSC waives the combined permit application and examination fee described in §557.109(c)(1)(A) of this chapter (relating to Application Procedures) [~~and §557.128(n)(1)(A) of this chapter (relating to Home Health Medication Aides)~~] and the permit application fee described in §557.125(g)(1) [~~§557.125(f)(1)~~] of this chapter (relating to Requirements for Corrections Medication Aides) for an applicant if HHSC receives and approves a request for a waiver of fees through the online portal from the applicant in accordance with this subsection.

(2) To request a waiver of fees under this subsection, an applicant must submit a written request for a waiver with the applicant's application for a permit submitted to HHSC through the online portal in accordance with this section. The applicant must include with the request:

(A) documentation of the applicant's status as a military service member, military veteran, or military spouse that is acceptable to HHSC;

(B) documentation of the type and dates of the service, training, and education the applicant received and an explanation as to why the applicant's military service, training, and [or] education substantially meets all of the requirements for a permit under this chapter; and

(i) a copy of a marriage certificate issued to the applicant by a state of the United States or a foreign government; and

(ii) a copy of a current military service order issued to the applicant's spouse by the armed forces of the United States, the State of Texas, or another state.

(3) Documentation of military status that is acceptable to HHSC includes:

(A) for status as a military service member, a copy of a current military service order issued to the applicant by the armed forces of the United States, the State of Texas, or another state; and

(B) for status as a military veteran, a copy of a military service discharge order issued to the applicant by the armed forces of the United States, the State of Texas, or another state.

(4) If HHSC requests additional documentation, the applicant must submit the requested documentation.

(5) HHSC approves a request for a waiver of fees submitted in accordance with this subsection if HHSC determines that the applicant is a military service member or a military veteran and the applicant's military service, training, and [or] education substantially meet [~~meets~~] all of the requirements for licensure under this chapter.

(b) Fee waiver based on reciprocity.

(1) HHSC waives the combined permit application and examination fee described in §557.109(c)(1)(A) of this chapter [~~and §557.128(n)(1)(A) of this chapter~~] and the permit application fee described in §557.125(g)(1) [~~§557.125(f)(1)~~ ] of this chapter for an applicant if HHSC receives and approves a request through the online portal for a waiver of fees from the applicant in accordance with this subsection.

(2) To request a waiver of the fee under this subsection, an applicant must include a written request for a waiver of the fee with the applicant's application that is submitted to HHSC through the online portal in accordance with §557.107(f) (relating to Training Requirements; Nursing Graduates; Reciprocity) [~~§557.128(h)~~ ] of this chapter. The applicant must include with the request documentation of the applicant's status as a military service member, military veteran, or military spouse that is acceptable to HHSC.

(3) Documentation of military status that is acceptable to HHSC includes:

(A) for status as a military service member, a copy of a current military service order issued to the applicant by the armed forces of the United States, the State of Texas, or another state;

(B) for status as a military veteran, a copy of a military service discharge order issued to the applicant by the armed forces of the United States, the State of Texas, or another state; and

(i) a copy of a marriage certificate issued to the applicant by a state of the United States or a foreign government; and

(ii) a copy of a current military service order issued to the applicant's spouse by the armed forces of the United States, the State of Texas, or another state.

(4) If HHSC requests additional documentation, the applicant must submit the requested documentation.

(5) HHSC approves a request for a waiver of the fee submitted in accordance with this subsection if HHSC determines that:

(A) the applicant holds a license, registration, certificate, or permit as a medication aide in good standing in another jurisdiction with licensing requirements substantially equivalent to or that exceed the requirements for a permit under this chapter; and

(B) the applicant is a military service member, a military veteran, or a military spouse.

(1) HHSC gives a medication aide an additional two years to complete the permit renewal requirements described in §557.115 of this chapter (relating to Permit Renewal) if HHSC receives and approves through the online portal a request for additional time to complete the permit renewal requirements from a medication aide in accordance with this subsection.

(2) To request additional time to complete permit renewal requirements, a medication aide must:

(A) submit a written request for additional time to HHSC through the online portal before the expiration date of the medication aide's permit; and

(B) include, along with the request, documentation of the medication aide's status as a military service member that is acceptable to HHSC, which includes a copy of a current military service order issued to the medication aide by the armed forces of the United States, the State of Texas, or another state.

(3) If HHSC requests additional documentation, the medication aide must submit the requested documentation.

(4) HHSC approves a request for two additional years to complete permit renewal requirements submitted in accordance with this subsection if HHSC determines that the medication aide is a military service member, except HHSC does not approve a request if HHSC granted the medication aide a previous extension and the medication aide has not completed the permit renewal requirements during the two-year extension period.

(5) If a medication aide does not submit the written request described by paragraph (2) of this subsection before the expiration date of the medication aide's permit, HHSC will consider a request after the expiration date of the permit if the medication aide establishes to the satisfaction of HHSC that the request was not submitted before the expiration date of the medication aide's permit because the medication aide was serving as a military service member at the time the request was due.

(d) Renewal of expired permit.

(1) HHSC renews an expired permit if HHSC receives and approves a request for renewal from a former medication aide through the online portal in accordance with this subsection.

(2) To request renewal of an expired permit, a former medication aide must submit a written request with a permit renewal application through the online portal within five years after the former medication aide's permit expired. The former medication aide must include with the request documentation of the former medication aide's status as a military service member, military veteran, or military spouse that is acceptable to HHSC.

(3) Documentation of military status that is acceptable to HHSC includes:

(A) for status as a military service member, a copy of a current military service order issued to the former medication aide by the armed forces of the United States, the State of Texas, or another state;

(B) for status as a military veteran, a copy of a military service discharge order issued to the former medication aide by the armed forces of the United States, the State of Texas, or another state; and

(i) a copy of a marriage certificate issued to the former medication aide by a state of the United States or a foreign government; and

(ii) a copy of a current military service order issued to the former medication aide's spouse by the armed forces of the United States, the State of Texas, or another state.

(4) If HHSC requests additional documentation, the former medication aide must submit the requested documentation.

(5) HHSC approves a request for renewal of an expired permit submitted in accordance with this subsection if HHSC determines that:

(A) the former medication aide is a military service member, military veteran, or military spouse;

(B) the former medication aide has not committed an offense listed in Texas Health and Safety Code §250.006(a) or (c) [~~§250.006(a)~~] and has not committed an offense listed in Texas Health and Safety Code §250.006(b) during the five years before the date the former medication aide submitted the initial permit application;

(D) the former medication aide is not listed with revoked or suspended status on the NAR.

(e) Recognition of Out-of-State Permit of Military Spouse.

(1) A military spouse may engage in the practice of a medication aide in Texas without obtaining a permit, according to the application requirements of §557.103 of this chapter (relating to Requirements for Administering Medications), §557.125 of this chapter (relating to Requirements for Corrections Medication Aides) or §557.128 of this chapter (relating to Home Health Medication Aides), if the spouse:

(A) is currently licensed in good standing by another jurisdiction that has permitting requirements substantially equivalent to the requirements for a permit in Texas;

(B) notifies HHSC in writing of the spouse's intent to practice in Texas;

(C) submits to HHSC proof of the spouse's residence in this state and a copy of the spouse's military identification; and

(D) receives from HHSC:

(i) confirmation that HHSC has verified the spouse's permit in the other jurisdiction; and

(ii) a permit to practice as a medication aide in Texas.

(2) HHSC will review and evaluate the following criteria when determining whether another state's permitting requirements are substantially equivalent to the requirement for a permit under the statutes and regulations of this state:

(A) whether the other state requires an applicant to pass an examination that demonstrates competence in the field to obtain the permit;

(B) whether the other state requires an applicant to meet any experience qualifications to obtain the permit;

[(D) whether the other state denies an application for permit from an applicant who has been convicted of an offense containing elements similar to offenses listed in §557.121(b) of this subchapter; and]

(D) [~~(E)~~] the other state's permit requirements, including the scope of work authorized to be performed under the permit issued by the other state.

(3) The military spouse must submit:

(A) a written request to HHSC for recognition of the spouse's permit issued by the other state;

(B) any form and additional information regarding the permit issued by the other state required by the rules of the specific program or division within HHSC that licenses the business or occupation;

(C) proof of residence in this state, which may include a copy of the permanent change of station order for the military service member to whom the military spouse is married;

(D) a copy of the military spouse's identification card;

(E) proof the military service member is stationed at a military installation in Texas; and

(F) proof that fingerprints submitted to the Texas Department of Public Safety for a Federal Bureau of Investigation [~~Investigations~~] criminal background check enable HHSC to confirm that the military spouse is in compliance with other laws and regulations applicable to medication aides in Texas.

(4) Upon verification from the permitting jurisdiction of the military spouse's permit, and if the permit is substantially equivalent to a Texas permit, HHSC shall issue a confirmation that HHSC has verified the spouse's permit in the other jurisdiction and a permit to practice as a medication aide in Texas.

(5) The permit issued under paragraph (4) of this subsection will expire three years from date of issuance or when the military service member is no longer stationed at a military installation in Texas, whichever comes first. The permit [~~license~~] issued under paragraph (4) of this subsection may not be renewed.

(6) HHSC replaces a lost, damaged, or destroyed permit for a military spouse as provided in §557.117 of this chapter (relating to Changes). A military spouse with an active medication aide permit can print a duplicate permit through the online portal. A military spouse can request a change of name through the online portal by submitting a name change application [~~, but the military spouse does not pay the replacement permit fee~~].

(7) The military spouse shall comply with all applicable laws, rules, and standards of this state, including applicable Texas Health and Safety Code and Texas Administration Code provisions.

(8) HHSC may withdraw or modify the verification letter for reasons including:

(A) the military spouse fails to comply with subsection (i) of this section; or

(B) the military spouse's licensure required under paragraph (1)(A) of this subsection expires or is suspended or revoked in another jurisdiction.

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

Filed with the Office of the Secretary of State on February 26, 2024.

TRD-202400869

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 14, 2024

For further information, please call: (512) 438-3161

CHAPTER 744. MINIMUM STANDARDS FOR SCHOOL-AGE AND BEFORE OR AFTER-SCHOOL PROGRAMS

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §744.901, concerning What information must I maintain in my personnel records, and §744.1103, concerning What minimum qualifications must each of my employees meet, in Title 26, Texas Administrative Code, Chapter 744, Minimum Standards for School-Age and Before or After-School Programs, Subchapter C, Record Keeping, and Subchapter D, Personnel.

BACKGROUND AND PURPOSE

The proposal is necessary to amend existing rules in Chapter 744 to implement Senate Bill (S.B.) 1469, 88th Legislature, Regular Session, 2023.

S.B. 1469 added §42.0563 to Texas Human Resources Code (HRC) to require any person applying for a position at a child-care facility to complete and submit an affidavit that discloses whether the person has a charge, adjudication, or conviction related to having an inappropriate relationship with a minor; all relevant facts pertaining to any charge, adjudication, or conviction disclosed; and if the disclosure is related to a charge, whether the charge was determined to be true or false. The bill requires HHSC Child Care Regulation (CCR) to create a form to serve as the affidavit.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §744.901 includes adding a subsection to require an operation to maintain in each personnel record the form required by HRC §42.0563; amending language to further distinguish the affidavit required by HRC §42.059 from the one required by HRC §42.0563; renumbering the subsections because a new subsection is being added; making non-substantive changes for better readability and understanding; and updating a reference.

The proposed amendment to §744.1103 includes adding language to require each prospective employee to complete the form required by HRC §42.0563; amending language to further distinguish the affidavit required by HRC §42.059 from the one required by HRC §42.0563; making non-substantive changes for better readability and understanding; and updating a reference.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, there will be no additional cost to state government as a result of enforcing or administering the rules as proposed. Enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local government.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

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

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

(6) the proposed rules will expand existing regulations;

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

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

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

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

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas; do not impose a cost on regulated persons; and are necessary to comply with state law.

PUBLIC BENEFIT AND COSTS

Rachel Ashworth-Mazerolle, Associate Commissioner for Child Care Regulation, has determined that for each year of the first five years the rule is in effect the public benefit will be increased compliance with statutory requirements; and enhanced child safety.

Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because the new requirement easily aligns with the current background check process.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Ryan Malsbary by email at Ryan.Malsbary@hhs.texas.gov.

Written comments on the proposal may be submitted to Ryan Malsbary, Rules Writer, Child Care Regulation, Health and Human Services Commission, E-550, P.O. Box 149030, Austin, Texas 78714-9030; or by email to CCRRules@hhs.texas.gov.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be postmarked or shipped before the last day of the comment period; hand-delivered before 5:00 p.m. on the last working day of the comment period; or emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 23R076" in the subject line.

SUBCHAPTER C. RECORD KEEPING

DIVISION 4. PERSONNEL RECORDS

26 TAC §744.901

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and HRC §42.042 and §42.0563.

§744.901.What information must I maintain in my personnel records?

You must have the following records at the operation and available for review during your hours of operation for each employee, caregiver, substitute, and volunteer as specified in this chapter:

(1) Documentation showing the dates of the first and last day on the job;

(2) Documentation showing how the employee meets the minimum age and education qualifications, if applicable;

(3) A copy of a health card or health care professional's statement verifying the employee is free of active tuberculosis, if required by the regional Texas Department of State Health Services tuberculosis [TB] program or local health authority;

(4) A notarized [~~Licensing~~] Affidavit for Applicants for Employment with a Licensed Operation or Registered Child-Care Home (Form 2985) [~~form~~] as specified in Texas Human Resources Code[,] §42.059;

(5) A Pre-Employment Affidavit for Applicants for Employment at Certain Child Care Operations (Form 2912) as specified in Texas Human Resources Code §42.0563;

(6) [~~(5)~~] A record of training hours, including documentation required by §744.1331 of this chapter (relating to What documentation must I provide to Licensing to verify that employees have met training requirements?);

(7) [~~(6)~~] A statement signed and dated by the employee showing he has received a copy of the operation's:

(A) Operational policies; and

(B) Personnel policies;

(8) [~~(7)~~] Proof of request for background checks required by [~~under 40 TAC~~] Chapter 745, Subchapter F of this title (relating to Background Checks);

(9) [~~(8)~~] A copy of a photo identification;

(10) [~~(9)~~] A copy of the person's [a] current driver's license if the [~~for each~~] person [~~who~~] transports a child in care; and

(11) [~~(10)~~] A statement signed and dated by the employee verifying the date the employee attended training during orientation that includes an overview regarding the prevention, recognition, and reporting of child maltreatment, as outlined in §744.1303 of this chapter (relating to What must orientation for employees at my operation include?).

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

Filed with the Office of the Secretary of State on February 26, 2024.

TRD-202400850

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 14, 2024

For further information, please call: (512) 438-3269

SUBCHAPTER D. PERSONNEL

DIVISION 2. EMPLOYEES AND CAREGIVERS

26 TAC §744.1103

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and HRC §42.042 and §42.0563.

§744.1103.What minimum qualifications must each of my employees meet?

Each employee must:

(1) Meet the requirements in [~~40 TAC~~] Chapter 745, Subchapter F of this title (relating to Background Checks);

(2) Have a current record of a tuberculosis (TB) examination [~~(TB)~~], showing the employee is free of contagious TB, if required by the Texas Department of State Health Services or local health authority; [~~and~~]

(3) Complete a notarized [~~Licensing~~] Affidavit for Applicants for Employment with a Licensed Operation or Registered Child-Care Home (Form 2985) before you hire the employee, [~~form~~] as specified in Texas Human Resources Code[,] §42.059; and

(4) Complete a Pre-Employment Affidavit for Applicants for Employment at Certain Child Care Operations (Form 2912) before you hire the employee, as specified in Texas Human Resources Code §42.0563.

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

Filed with the Office of the Secretary of State on February 26, 2024.

TRD-202400851

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 14, 2024

For further information, please call: (512) 438-3269

CHAPTER 745. LICENSING

SUBCHAPTER D. APPLICATION PROCESS

DIVISION 3. SUBMITTING THE APPLICATION MATERIALS

26 TAC §745.243

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §745.243, concerning What does a completed application for a permit include, in Title 26, Texas Administrative Code (TAC), Chapter 745, Licensing, Subchapter D, Application Process.

BACKGROUND AND PURPOSE

The proposal is necessary to amend an existing rule in Chapter 745 to delete a reference to a "notarized Affidavit for Applicants for Employment with a Licensed Operation or Registered Child-Care Home" in the list of required application materials for a registered child-care home. The deletion aligns the rule with Texas Human Resources Code (HRC) §42.059, which requires the affidavit for prospective employees, but does not require it with the application.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §745.243 includes deleting a paragraph in Figure: 26 TAC §745.243 that references a "notarized Affidavit for Applicants for Employment with a Licensed Operation or Registered Child-Care Home" as part of a completed application for a permit to operate a registered child-care home; renumbering the paragraphs in Figure: 26 TAC §745.243 because a paragraph is being deleted; and updating form names and a reference.

FISCAL NOTE

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

(3) implementation of the proposed rule will result in no assumed change in future legislative appropriations;

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

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

(6) the proposed rule will not expand existing regulations;

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

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

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

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to this rule because the rule is necessary to protect the health, safety, and welfare of the residents of Texas; does not impose a cost on regulated persons; and is necessary to comply with state law.

PUBLIC BENEFIT AND COSTS

Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rule because the new requirement easily aligns with the current background check process.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Ryan Malsbary by email at Ryan.Malsbary@hhs.texas.gov.

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and HRC §42.042 and §42.059.

§745.243.What does a completed application for a permit include?

Application forms vary according to the type of permit. We will provide you with the required forms. Contact your local Licensing office for additional information. The following table outlines the requirements for a completed application:

Figure: 26 TAC §745.243 (.pdf)

[~~Figure: 26 TAC §745.243~~]

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

Filed with the Office of the Secretary of State on February 26, 2024.

TRD-202400852

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 14, 2024

For further information, please call: (512) 438-3269

CHAPTER 746. MINIMUM STANDARDS FOR CHILD-CARE CENTERS

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §746.901, concerning What information must I maintain in my personnel records and §746.1105, concerning What minimum qualifications must each of my child-care center employees meet, in Title 26, Texas Administrative Code, Chapter 746, Minimum Standards for Child-Care Centers, Subchapter C, Record Keeping, and Subchapter D, Personnel.

BACKGROUND AND PURPOSE

The proposal is necessary to amend existing rules in Chapter 746 to implement Senate Bill (S.B.) 1469, 88th Legislature, Regular Session, 2023.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §746.901 includes adding a subsection to require an operation to maintain in each personnel record the form required by HRC §42.0563; amending language to further distinguish the affidavit required by HRC §42.059 from the one required by HRC §42.0563; renumbering the subsections because a new subsection is being added; making non-substantive changes for better readability and understanding; and updating a reference.

The proposed amendment to §746.1105 includes adding language to require each prospective employee to complete the form required by HRC §42.0563; amending language to further distinguish the affidavit required by HRC §42.059 from the one required by HRC §42.0563; making non-substantive changes for better readability and understanding; and updating a reference.

FISCAL NOTE

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

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

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

(6) the proposed rules will expand existing regulations;

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

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

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

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

PUBLIC BENEFIT AND COSTS

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Ryan Malsbary by email at Ryan.Malsbary@hhs.texas.gov.

SUBCHAPTER C. RECORD KEEPING

DIVISION 4. PERSONNEL RECORDS

26 TAC §746.901

STATUTORY AUTHORITY

The proposed amendment is authorized by 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 Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, HRC §42.042(a) requires HHSC to adopt rules to carry out the requirements of HRC Chapter 42.

The amendment affects Texas Government Code §531.0055 and HRC §42.042 and §42.0563.

§746.901.What information must I maintain in my personnel records?

You must have the following records at the child-care center and available for review during hours of operation for each employee, caregiver, substitute, and volunteer as specified in this chapter:

(1) Documentation showing the dates of the first and last day on the job;

(2) Documentation showing how the employee meets the minimum age and education qualifications, if applicable;

(4) A notarized Licensing Affidavit for Applicants for Employment with a Licensed Operation or Registered Child-Care Home (Form 2985) [~~form~~] as specified in Texas Human Resources Code[,] §42.059;

(5) A Pre-Employment Affidavit for Applicants for Employment at Certain Child Care Operations (Form 2912) as specified in Texas Human Resources Code §42.0563;

(6) [~~(5)~~] A record of training hours, including documentation required by §746.1329 of this chapter (relating to What documentation must I provide to Licensing to verify that employees have met training requirements?);

(7) [~~(6)~~] A statement signed and dated by the employee showing he has received a copy of the child-care center's:

(A) Operational policies; and

(B) Personnel policies;

(8) [~~(7)~~] Proof of request for background checks required by [~~under 40 TAC~~] Chapter 745, Subchapter F of this title (relating to Background Checks);

(9) [~~(8)~~] A copy of a photo identification;

(10) [~~(9)~~] A copy of the person's [a] current driver's license if the [~~for each~~] person [~~who~~] transports a child in care; and

(11) [~~(10)~~] A statement signed and dated by the employee verifying the date the employee attended training during orientation that includes an overview of your policy on the prevention, recognition, and reporting of child maltreatment outlined in §746.1303 of this chapter (relating to What must orientation for employees at my child-care center include?).

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

Filed with the Office of the Secretary of State on February 26, 2024.

TRD-202400853

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 14, 2024

For further information, please call: (512) 438-3269

SUBCHAPTER D. PERSONNEL

DIVISION 2. CHILD-CARE CENTER EMPLOYEES AND CAREGIVERS

26 TAC §746.1105

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and HRC §42.042 and §42.0563.

§746.1105.What minimum qualifications must each of my child-care center employees meet?

Each child-care center employee must:

(1) Meet the requirements in [~~40 TAC~~] Chapter 745, Subchapter F of this title (relating to Background Checks);

(2) Have a current record of a tuberculosis examination, showing the employee is free of contagious TB, if required by the Texas Department of State Health Services or local health authority; [~~and~~]

(3) Complete a notarized [~~Licensing~~] Affidavit for Applicants for Employment with a Licensed Operation or Registered Child-Care Home (Form 2985) before you hire the employee, [~~form~~] as specified in Human Resources Code[,] §42.059; and

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

Filed with the Office of the Secretary of State on February 26, 2024.

TRD-202400854

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 14, 2024

For further information, please call: (512) 438-3269

CHAPTER 747. MINIMUM STANDARDS FOR CHILD-CARE HOMES

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §747.901, concerning What information must I maintain in my personnel records, and §747.1207, concerning What minimum qualifications must an assistant caregiver meet, in Title 26, Texas Administrative Code, Chapter 747, Minimum Standards for Child-Care Homes, Subchapter C, Record Keeping, and Subchapter D, Personnel.

BACKGROUND AND PURPOSE

The proposal is necessary to amend existing rules in Chapter 747 to implement Senate Bill (S.B.) 1469, 88th Legislature, Regular Session, 2023.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §747.901 includes adding a subsection to require an operation to maintain in each personnel record the form required by HRC §42.0563; amending language to further distinguish the affidavit required by HRC §42.059 from the one required by HRC §42.0563; renumbering the subsections because a new subsection is being added; making non-substantive changes for better readability and understanding; and updating a reference.

The proposed amendment to §747.1207 includes adding language to require each prospective assistant caregiver to complete the form required by HRC §42.0563; amending language to further distinguish the affidavit required by HRC §42.059 from the one required by HRC §42.0563; making non-substantive changes for better readability and understanding; and updating a reference.

FISCAL NOTE

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

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

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

(6) the proposed rules will expand existing regulations;

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

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

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

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

PUBLIC BENEFIT AND COSTS

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Ryan Malsbary by email at Ryan.Malsbary@hhs.texas.gov.

SUBCHAPTER C. RECORD KEEPING

DIVISION 4. RECORDS ON CAREGIVERS AND HOUSEHOLD MEMBERS

26 TAC §747.901

STATUTORY AUTHORITY

The amendment affects HRC §531.0055 and HRC §42.042 and §42.0563.

§747.901.What information must I maintain in my personnel records?

You must keep at least the following at the child-care home for each assistant caregiver and substitute caregiver, as specified in this chapter:

(1) Documentation showing the dates of the first and last day on the job;

(2) Documentation showing how the caregiver meets the minimum age and education qualifications, if applicable;

(3) A copy of a health card or health care professional's statement verifying the caregiver is free of active tuberculosis, if required by the regional Texas Department of State Health Services tuberculosis [TB] program or local health authority;

(5) A Pre-Employment Affidavit for Applicants for Employment at Certain Child Care Operations (Form 2912) as specified in Texas Human Resources Code §42.0563;

(6) [~~(5)~~] A record of training hours, including documentation required by §747.1327 of this chapter (relating to What documentation must I provide to Licensing to verify that caregivers have met training requirements?);

(7) [~~(6)~~] Proof of request for all background checks required by [~~under 40 TAC~~] Chapter 745, Subchapter F of this title (relating to Background Checks);

(8) [~~(7)~~] A copy of a photo identification;

(9) [~~(8)~~] A copy of the person's [a] current driver's license if the [~~for each~~] person or caregiver [~~that~~] transports a child in care; and

(10) [~~(9)~~] A statement signed and dated by the caregiver in a licensed child-care home verifying the date the caregiver attended training during orientation that includes an overview regarding the prevention, recognition, and reporting of child maltreatment, as specified in §747.1301 of this chapter (relating to What must orientation for caregivers at my child-care home include?)

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

Filed with the Office of the Secretary of State on February 26, 2024.

TRD-202400855

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 14, 2024

For further information, please call: (512) 438-3269

SUBCHAPTER D. PERSONNEL

DIVISION 3. ASSISTANT CAREGIVERS AND SUBSTITUTE CAREGIVERS

26 TAC §747.1207

STATUTORY AUTHORITY

The amendment affects HRC §531.0055 and HRC §42.042 and §42.0563.

§747.1207.What minimum qualifications must an assistant caregiver meet?

A person must meet the following qualifications [~~in order~~] to be an assistant caregiver who is counted in the child/caregiver ratio:

(1) Be 18 years old, except as provided by §747.1211 of this division (relating to When may I employ a person under the age of 18 or a person who does not have a high school diploma or equivalent as a caregiver?);

(2) Except as provided by §747.1211 of this division, have a:

(A) High school diploma;

(B) High school equivalent; or

(3) Have completed orientation to your child-care home;

(4) Meet the requirements in [~~40 TAC~~] Chapter 745, Subchapter F of this title (relating to Background Checks);

(5) Have a current record of a tuberculosis (TB) examination showing the caregiver is free of contagious TB, if required by the Texas Department of State Health Services or local health authority; [~~and~~]

(6) Complete a notarized Licensing Affidavit for Applicants for Employment with a Licensed Operation or Registered Child-Care Home (Form 2985) before you allow the person to be an assistant caregiver, [~~form~~] as specified in Human Resources Code[,] §42.059; and[.]

(7) Complete a Pre-Employment Affidavit for Applicants for Employment at Certain Child Care Operations (Form 2912) before you allow the person to be an assistant caregiver, as specified in Texas Human Resources Code §42.0563.

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

Filed with the Office of the Secretary of State on February 26, 2024.

TRD-202400856

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 14, 2024

For further information, please call: (512) 438-3269

CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §748.363, concerning What information must the personnel record of an employee include and §748.505, concerning What minimum qualifications must all employees meet, in Title 26, Texas Administrative Code, Chapter 748, Subchapter D, Reports and Record Keeping, and Subchapter E, Personnel.

BACKGROUND AND PURPOSE

The proposal is necessary to amend existing rules in Chapter 748 to implement Senate Bill (S.B.) 1469, 88th Legislature, Regular Session, 2023.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §748.363 includes adding a subsection to require an operation to maintain in each personnel record the form required by HRC §42.0563; amending language to further distinguish the affidavit required by HRC §42.059 from the one required by HRC §42.0563; and renumbering subsections because a new subsection is being added.

The proposed amendment to §748.505 includes adding language to require each employee to complete the form required by HRC §42.0563; amending language to further distinguish the affidavit required by HRC §42.059 from the one required by HRC §42.0563; and renumbering the paragraphs in subsection (b) because a new paragraph is being added; and updating a reference.

FISCAL NOTE

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

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

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

(6) the proposed rules will expand existing regulations;

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

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

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

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

PUBLIC BENEFIT AND COSTS

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Ryan Malsbary by email at Ryan.Malsbary@hhs.texas.gov.

SUBCHAPTER D. REPORTS AND RECORD KEEPING

DIVISION 3. PERSONNEL RECORDS

26 TAC §748.363

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and HRC §42.042 and §42.0563.

§748.363.What information must the personnel record of an employee include?

For each employee, the personnel record must include:

(1) Documentation showing the date of employment;

(2) Documentation showing how the person meets the minimum age and qualifications for the position;

(3) Documentation that your operation has:

(A) Verified employment history as required by §748.751 of this chapter (relating to What are the requirements for obtaining and verifying an applicant's employment history?); and

(B) Conducted reference checks as required by §748.753 of this chapter (relating to What are the requirements for completing an applicant's reference checks?);

(4) A current job description;

(5) Evidence of any valid professional licensures, certifications, or registrations the person must have to meet qualifications for the position, such as a current renewal card or a letter from the credentialing entity verifying that the person has met the required renewal criteria;

(6) A copy of the record of tuberculosis screening conducted prior to the person having contact with children in care showing that the employee is free of contagious tuberculosis as provided in §748.1583 of this title (relating to Who must have a tuberculosis (TB) examination?);

(7) A notarized [~~Licensing~~] Affidavit for Applicants for Employment with a Licensed Operation or Registered Child-Care Home (Form 2985) [~~form~~] as specified in Texas Human Resources Code §42.059;

(8) A Pre-Employment Affidavit for Applicants for Employment at Certain Child Care Operations (Form 2912) as specified in Texas Human Resources Code §42.0563;

(9) [~~(8)~~] A statement signed and dated by the employee documenting that the employee has read a copy of the operational policies required by §748.103 of this title (relating to What policies and procedures must I submit for Licensing's approval as part of the application process?);

(10) [~~(9)~~] A statement signed and dated by the employee indicating the employee must immediately report any suspected incident of child abuse, neglect, or exploitation to the Texas Abuse and Neglect Hotline and to the operation's administrator or administrator's designee;

(11) [~~(10)~~] Proof of request for background checks required by Chapter 745, Subchapter F of this title (relating to Background Checks);

(12) [~~(11)~~] For each person who transports a child, a copy of:

(A) The person's valid driver's license; or

(B) A driver's license check conducted through the Texas Department of Public Safety within the last 12 months;

(13) [~~(12)~~] A record of training, including the date of the training, the number of training hours, and the curriculum covered;

(14) [~~(13)~~] Any documentation of the person's performance with the operation; and

(15) [~~(14)~~] The date and reason for the person's separation, if applicable.

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

Filed with the Office of the Secretary of State on February 26, 2024.

TRD-202400857

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 14, 2024

For further information, please call: (512) 438-3269

SUBCHAPTER E. PERSONNEL

DIVISION 1. GENERAL REQUIREMENTS

26 TAC §748.505

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and HRC §42.042 and §42.0563.

§748.505.What minimum qualifications must all employees meet?

(a) An employee's behavior or health status must not present a danger to children in care.

(b) Each employee must:

(1) Meet the requirements in Chapter 745, Subchapter F [~~of Chapter 745~~] of this title (relating to Background Checks);

(2) Have a record of a tuberculosis screening showing the employee is free of contagious TB as provided in §748.1583 of this chapter (relating to Who must have a tuberculosis (TB) examination);

(3) Be physically, mentally, and emotionally capable of performing assigned tasks and have the skills necessary to perform assigned tasks;

(4) Complete a notarized [~~Licensing~~ ] Affidavit for Applicants for Employment with a Licensed Operation or Registered Child-Care Home (Form 2985) before you hire the employee [~~form~~], as specified in Texas Human Resources Code §42.059;

(5) Complete a Pre-Employment Affidavit for Applicants for Employment at Certain Child Care Operations (Form 2912) before you hire the employee, as specified in Texas Human Resources Code §42.0563; and

(6) [~~(5)~~] Have cleared a pre-employment screening assessment in which you determined the employee's suitability for the employee's position. The screening must have included:

(A) Verification of employment history as required by §748.751 of this subchapter (relating to What are the requirements for obtaining and verifying an applicant's employment history?); and

(B) Reference checks, as required by §748.753 of this subchapter (relating to What are the requirements for completing an applicant's reference checks?).

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

Filed with the Office of the Secretary of State on February 26, 2024.

TRD-202400858

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 14, 2024

For further information, please call: (512) 438-3269