Proposed Rules Title 26

TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 559. DAY ACTIVITY AND HEALTH SERVICES REQUIREMENTS

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §§559.1, 559.11, 559.81, and 559.91; the repeal of §§559.2, 559.12 - 559.23, 559.61 - 559.64, 559.82 - 559.84, 559.92 - 559.95, and 559.102 - 559.105; and new §§559.3, 559.13, 559.15, 559.17, 559.19, 559.21, 559.23, 559.25, 559.27, 559.29, 559.31, 559.33, 559.35, 559.37, 559.39, 559.50 - 559.53, 559.55, 559.57, 559.59, 559.61, 559.63, 559.65, 559.67, 559.69, 559.71, 559.73, 559.75, 559.77, 559.79, 559.83, 559.85, 559.87, 559.93, 559.95, 559.97, 559.99, 559.101, 559.103, 559.105, and 559.107, in Texas Administrative Code (TAC), Title 26, Part 1, Chapter 559, Day Activity and Health Services Requirements.

BACKGROUND AND PURPOSE

The purpose of this proposal is to comply with House Bill (H.B.) 1009 and H.B. 4696 from the 88th Legislature, Regular Session, 2023. The proposal also reorganizes rule sections so that key topics are easier to find, adds clarity and specificity to rules, and updates references throughout the chapter.

SECTION-BY-SECTION SUMMARY

Proposed amendments throughout the chapter update citations and references and restructure sentences to use active voice. Other proposed amendments throughout the chapter replace "individual" with "client" for consistency.

The proposed amendment to §559.1, Purpose, removes requirements for a Day Activity and Health Services (DAHS) facility contracting with DADS to provide DAHS under Title XIX or Title XX of the Social Security Act. These requirements are in 40 TAC Chapter 98, Day Activity and Health Services Requirements, Subchapter H, Day Activity and Health Services (DAHS) Contractual Requirements.

The proposed repeal of §559.2, Definitions, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.3, Definitions.

Proposed new §559.3, Definitions, relocates the rule from proposed repealed §559.2, Definitions. The proposed new rule deletes definitions for the terms "authorization," "case manager," "caseworker," and "Medicaid eligible" as these terms are only used in 40 TAC Chapter 98, Subchapter H, DAHS Contractual Requirements. The proposed new rule adds definitions for the terms "controlling person," "online portal," and "willfully interfere."

The proposed amendment to §559.11, Criteria for Licensing, requires submission of license applications through the online portal, adds controlling parties to the list of individuals whose background and qualification HHSC considers for licensure, and clarifies that the term of a license is three years.

The proposed repeal of §559.12, Building Approval, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.17, Building Approval.

The proposed repeal of §559.13, Applicant Disclosure Requirements, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.19, Applicant Disclosure Requirements.

Proposed new §559.13, General Application Requirements, creates a new section requiring applicants to use the online portal to submit a license application and fulfill all licensure requirements.

The proposed repeal of §559.14, Increase in Capacity, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.35, Change in Capacity.

The proposed repeal of §559.15, Renewal Procedures and Qualifications, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.23, Renewal Procedures and Qualifications.

Proposed new §559.15, Time Periods for Processing Licensing Applications, relocates the rule from proposed repealed §559.18, Time Periods for Processing Licensing Applications, and updates citations and references.

The proposed repeal of §559.16, Change of Ownership and Notice of Changes, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.25, Change of Ownership and Notice of Changes.

The proposed repeal of §559.17, Change of Staff, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.29, Change of Staff.

Proposed new §559.17, Building Approval, relocates the rule from proposed repealed §559.12, Building Approval, and updates citations and references.

The proposed repeal of §559.18, Time Periods for Processing Licensing Applications, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.15, Time Periods for Processing Licensing Applications.

The proposed repeal of §559.19, Criteria for Denying a License or Renewal of a License, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.31, Criteria for Denying a License or Renewal of a License.

Proposed new §559.19, Applicant Disclosure Requirements, relocates the rule from proposed repealed §559.13, Applicant Disclosure Requirements, and updates citations and references.

The proposed repeal of §559.20, Opportunity to Show Compliance, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.33, Opportunity to Show Compliance.

The proposed repeal of §559.21, License Fees, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.37, Fees.

Proposed new §559.21, Initial License Application Procedures and Requirements, creates a new section requiring full payment of fees with the application submission for an initial license. Additionally, the proposed new rule requires an applicant to notify HHSC via the online portal when the facility is ready for a Life Safety Code inspection and when the facility is ready for a health inspection.

The proposed repeal of §559.22, Plan Review Fees, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.37, Fees.

The proposed repeal of §559.23, Relocation, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.27, Relocation.

Proposed new §559.23, Renewal Procedures and Qualifications, relocates the rule from proposed repealed §559.15, Renewal Procedures and Qualifications, and updates citations and references. The proposed new rule clarifies that license renewals expire three years after the date of issuance.

Proposed new §559.25, Change of Ownership and Notice of Changes, relocates the rule from proposed repealed §559.16, Change of Ownership and Notice of Changes.

Proposed new §559.27, Relocation, relocates the rule from proposed repealed §559.23, Relocation, and updates citations and references.

Proposed new §559.29, Change of Staff, relocates the rule from proposed repealed §559.17, Change of Staff, and updates citations and references. The proposed new rule requires facilities to submit an application for a change of director through the online portal within 30 days before or after the change.

Proposed new §559.31, Criteria for Denying a License or Renewal of a License, relocates the rule from proposed repealed §559.19, Criteria for Denying a License or Renewal of a License, and updates citations and references.

Proposed new §559.33, Opportunity to Show Compliance, relocates the rule from proposed repealed §559.20, Opportunity to Show Compliance, and updates citations and references.

Proposed new §559.35, Change in Capacity, relocates the rule from proposed repealed §559.14, Increase in Capacity, and updates citations and references. The proposed new rule requires license holders that wish to decrease the licensed capacity of the facility to provide notification via the online portal.

Proposed new §559.37, Fees, relocates the rules from proposed repealed §559.21, License Fees and §559.22, Plan Review Fees, and updates citations and references. The proposed new rule requires payment of fees in accordance with the options available in the online portal and removes the option of payment for a two-year license.

Proposed new §559.39, Voluntary Closure, creates a new section requiring providers to notify HHSC in writing at least five days before permanent closure of the operation.

Proposed new §559.50, Purpose, creates a new section defining the term "communicable diseases" used in the subchapter.

Proposed new §559.51, Compliance, relocates the rule from proposed repealed §559.61(b), and updates citations and references. The proposed new rule defines "reportable conduct" used in this section and implements H.B. 1009 requiring a facility to suspend an employee who has been reported to the Employee Misconduct Registry (EMR) during any appeals process.

Proposed new §559.52, Client Rights, creates a new section requiring facilities to extend the enumerated rights to all adult clients, not just those over age 60.

Proposed new §559.53, Maintenance of Policies and Procedures, relocates the rule from proposed repealed §559.61(c) and updates citations and references.

Proposed new §559.55, Reporting Incidents of Abuse or Neglect, relocates the rule from proposed repealed §559.61(d) and updates citations and references. The proposed new rule requires facilities report to HHSC via the online portal or by speaking with an HHSC agent at 1-800-458-9858 upon learning of alleged abuse or neglect of a client.

Proposed new §559.57, Postings, relocates the rule from proposed repealed §559.61(e) and updates citations and references.

Proposed new §559.59, Staff Qualifications, relocates the rule from proposed repealed §559.62(a) and updates citations and references. The proposed new rule adds basic infection prevention and control measures and emergency preparedness and response to the list of options for director annual continuing education. The proposed new rule deletes requirements for a facility that contracts with HHSC.

The proposed repeal of §559.61, General Requirements, deletes the rule as no longer necessary because the content of the rule has been added to proposed new rules as follows: §559.61(b) content added to §559.51, Compliance; §559.61(c) content added to §559.53, Maintenance of Policies and Procedures; §559.61(d) content added to §559.55, Reporting Incidents of Abuse or Neglect; and §559.61(e) content added to §559.57, Postings.

Proposed new §559.61, Staffing Ratio and Hours, relocates the rule from proposed repealed §559.62(b) and updates citations and references.

The proposed repeal of §559.62, Program Requirements, deletes the rule as no longer necessary because the content of the rule has been added to proposed new rules as follows: §559.62(a) content added to §559.59, Staff Qualifications; §559.62(b) content added to §559.61, Staffing Ratio and Hours; §559.62(c) content added to §559.63, Infection Prevention and Control; §559.62(d) content added to §559.65, Staff Responsibilities; §559.62(e) content added to §559.67, Training; §559.62(f) content added to §559.69, Medications; §559.62(g) content added to §559.71, Accident, Injury, or Acute Illness; and §559.62(h) content added to §559.73, Menus.

The proposed repeal of §559.63, Peer Review, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.77, Peer Review.

Proposed new §559.63, Infection Prevention and Control, relocates the rule from proposed repealed §559.62(c) and updates citations and references. The proposed new rule requires facilities to develop, implement, enforce, and maintain an infection prevention and control program that provides a safe, sanitary, and comfortable environment and helps prevent the development and transmission of disease and infection.

The proposed repeal of §559.64, Emergency Preparedness and Response deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.79, Emergency Preparedness and Response.

Proposed new §559.65, Staff Responsibilities, relocates the rule from proposed repealed §559.62(d) and updates citations and references. The proposed new rule requires facilities ensure clients have a choice in whether to participate in facility activities.

Proposed new §559.67, Training, relocates the rule from proposed repealed §559.62(e) and updates citations and references. The proposed new rule adds a list of possible topics that may be covered in the required quarterly training to direct service staff.

Proposed new §559.69, Medications, relocates the rule from proposed repealed §559.62(f) and updates citations and references. The proposed new rule clarifies that a person who administers medications to clients must hold a current license under applicable state law authorizing the licensee to administer medications. The proposed new rule requires facilities to dispose of medication in accordance with federal and state laws and allows for disposal of medications via local pharmacy on-site medication drop-off boxes or local law enforcement or community drug take-back programs.

Proposed new §559.71, Accident, Injury, or Acute Illness, relocates the rule from proposed repealed §559.62(g) and updates citations and references.

Proposed new §559.73, Menus, relocates the rule from proposed repealed §559.62(h) and updates citations and references.

Proposed new §559.75, Client Records, creates a new section with facility requirements for retention of records, destruction of records, and client access to records.

Proposed new §559.77, Peer Review, relocates the rule from proposed repealed §559.63, Peer Review.

Proposed new §559.79, Emergency Preparedness and Response, relocates the rule from proposed repealed §559.64, Emergency Preparedness and Response. The proposed new rule adds definitions to the terms "designated emergency contact," "disaster or emergency," "emergency management coordinator," "emergency preparedness coordinator," "plan," and "risk assessment." The proposed new rule removes references to "receiving facility" to avoid confusion.

The proposed amendment to §559.81, Procedural Requirements, implements H.B. 4696, requiring HHSC to perform an inspection as soon as feasible but not later than the 14th day after the date HHSC receives a complaint alleging abuse, neglect, or exploitation (ANE) rather than not later than the 30th day. H.B. 4696 also provides that if a complaint does not allege ANE, HHSC must investigate the complaint not later than the 45th day after the complaint is received. The amendment requires facilities that maintain electronic records to have a mechanism for printing documentation if a surveyor or investigator requests copies.

The proposed repeal of §559.82, Determinations and Actions Pursuant to Inspections, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.83, Determinations and Actions Pursuant to Inspections.

The proposed repeal of §559.83, Referrals to the Attorney General, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.85, Referrals to the Attorney General.

Proposed new §559.83, Determinations and Actions Pursuant to Inspections, relocates the rule from proposed repealed §559.82, Determinations and Actions Pursuant to Inspections, and updates citations and references.

The proposed repeal of §559.84, Procedures for Inspection of Public Records, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.87, Procedures for Inspection of Public Records.

Proposed new §559.85, Referrals to the Attorney General, relocates the rule from proposed repealed §559.83, Referrals to the Attorney General, and updates citations and references.

Proposed new §559.87, Procedures for Inspection of Public Records, relocates the rule from proposed repealed §559.84, Procedures for Inspection of Public Records, and updates citations and references.

The proposed amendment to §559.91, Definitions of Abuse, Neglect, and Exploitation, updates an outdated reference to §98.1.

The proposed repeal of §559.92, Abuse, Neglect, or Exploitation Reportable to DADS by Facilities, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.93, Abuse, Neglect, or Exploitation Reportable to HHSC by Facilities.

The proposed repeal of §559.93, Complaint Investigation, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.95, Complaint Investigation.

Proposed new §559.93, Abuse, Neglect, or Exploitation Reportable to HHSC by Facilities, relocates the rule from proposed repealed §559.92, Abuse, Neglect, or Exploitation Reportable to DADS by Facilities, and updates citations and references. The proposed new rule requires facilities to investigate alleged abuse, neglect, or exploitation and submit a written report of the investigation via the online portal.

The proposed repeal of §559.94, Investigations of Complaints, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.97, Investigations of Complaints.

The proposed repeal of §559.95, Confidentiality, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.99, Confidentiality.

Proposed new §559.95, Complaint Investigation, relocates the rule from proposed repealed §559.93, Complaint Investigation, and updates citations and references.

Proposed new §559.97, Investigations of Complaints, relocates the rule from proposed repealed §559.94, Investigations of Complaints, and updates citations and references.

Proposed new §559.99, Confidentiality, relocates the rule from proposed repealed §559.95, Confidentiality, and updates citations and references.

Proposed new §559.101, Nonemergency Suspension, relocates the rule from proposed repealed §559.102, Nonemergency Suspension, and updates citations and references. The proposed new rule requires a facility whose license has been suspended to return the license to HHSC within 72 hours of the passing of the appeal deadline or, if an appeal is filed, the final disposition of the appeal.

The proposed repeal of §559.102, Nonemergency Suspension, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.101, Nonemergency Suspension.

The proposed repeal of §559.103, Revocation, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.103, Revocation.

Proposed new §559.103, Revocation, relocates the rule from proposed repealed §559.103, Revocation, and updates citations and references. The proposed new rule requires a facility whose license has been revoked to return the license to HHSC within 72 hours of the passing of the appeal deadline or, if an appeal is filed, the final disposition of the appeal.

The proposed repeal of §559.104, Emergency Suspension and Closing Order, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.105, Emergency Suspension and Closing Order.

The proposed repeal of §559.105, Administrative Penalties, deletes the rule as no longer necessary because the content of the rule has been added to proposed new §559.107, Administrative Penalties.

Proposed new §559.105, Emergency Suspension and Closing Order, relocates the rule from proposed repealed §559.104, Emergency Suspension and Closing Order, and updates citations and references.

Proposed new §559.107, Administrative Penalties, relocates the rule from proposed repealed §559.105, Administrative Penalties, and updates citations and references.

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 create a new regulation;

(6) the proposed rules will expand and repeal 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 an adverse economic effect on small businesses or micro-businesses, or rural communities.

A DAHS may incur a cost due to the implementation of H.B. 1009 if an agency staff person is suspended while he or she goes through due process or an appeals process for being added to the EMR. This might not impact all DAHS but could affect those that may need to hire additional staff on a temporary basis while the staff person is on suspension.

HHSC lacks sufficient information to determine the number of small businesses, micro-businesses, or rural communities subject to the rule.

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

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, including clients of DAHS facilities, and are necessary to implement legislation that does not specifically state that Section 2001.0045 applies to the rule.

PUBLIC BENEFIT AND COSTS

Stephen Pahl, Deputy Executive Commissioner for Regulatory Services, has determined that for each year of the first five years the rules are in effect, the public will benefit from increased clarity in the rules and guidance in the requirements for DAHS facilities.

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 Luis Aleman, Program Specialist, Texas Health and Human Services Commission, Mail Code E-370, 701 W. 51st Street, Austin, Texas 78751, or 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 (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) 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 22R117" in the subject line.

SUBCHAPTER A. INTRODUCTION

26 TAC §559.1, §559.3

STATUTORY AUTHORITY

The amendment and new section 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, and Texas Human Resources Code §103.004 and §103.005, which respectively provide that the Executive Commissioner of HHSC shall adopt rules for implementing Texas Human Resources Code, Chapter 103, and adopt rules for licensing and setting standards for facilities licensed under Texas Human Resources Code, Chapter 103.

The amendment and new section implement Texas Government Code §531.0055 and Texas Human Resources Code, Chapter 103.

§559.1.Purpose.

The purpose of this chapter is to[:]

[~~(1)~~] implement Texas Human Resources Code, Chapter 103, by establishing licensing procedures and standards for a DAHS facility.[~~; and~~]

~~[(2) establish requirements for a DAHS facility contracting with DADS to provide DAHS under Title XIX or Title XX of the Social Security Act.]~~

§559.3.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 cruel punishment with resulting physical or emotional harm or pain to an elderly or disabled person by the person's caretaker, family member, or other individual who has an ongoing relationship with the person, or sexual abuse of an elderly or disabled person, including any involuntary or nonconsensual sexual conduct that would constitute an offense under Texas Penal Code §21.08 (relating to Indecent Exposure) or Texas Penal Code, Chapter 22 (relating to Assaultive Offenses) committed by the person's caretaker, family member, or other individual who has an ongoing relationship with the person.

(2) Actual harm--A negative outcome that compromises the physical, mental, or emotional well-being of an elderly person or a person with a disability receiving services at a facility.

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

(4) Affiliate--With respect to a:

(A) partnership, each partner of the partnership;

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

(i) person's spouse;

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

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

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

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

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

(8) 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.

(9) Client--An individual receiving day activity and health services.

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

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

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

(13) Controlling person--A person with the ability, acting alone or with others, to directly or indirectly influence, direct, or cause the direction of management, expenditure of money, or policies of a facility or other person. A controlling person includes:

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

(B) any person who is a controlling person of a management company or other business entity that operates a facility or that contracts with another person for the operation of a 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 facility, is in a position of actual control or authority with respect to the facility, without regard to whether the individual is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility, except an employee, lender, secured creditor, landlord, or other person who does not exercise formal or actual influence or control over the operation of a facility.

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

(15) DAHS--Day activity and health services. Health, social, and related support services as defined in this section.

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

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

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

(19) Department--HHSC.

(20) Dietitian consultant--A person licensed as a dietitian by the Texas Department of Licensing and Regulation or a person with a bachelor's degree with major studies in food and nutrition, dietetics, or food service management.

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

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

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

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

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

(26) Executive Commissioner--The executive commissioner of HHSC.

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

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

(29) Facility--A licensed DAHS facility.

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

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

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

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

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

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

(A) Personal care services include:

(i) bathing;

(ii) dressing;

(iii) preparing meals;

(iv) feeding;

(v) grooming;

(vi) taking self-administered medication;

(vii) toileting;

(viii) ambulation; and

(ix) assistance with other personal needs or maintenance.

(B) Nursing services may include:

(i) administering medications;

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

(iii) monitoring the health condition of the individual.

(i) physical therapy;

(ii) occupational therapy; and

(iii) speech therapy.

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

(37) Human services--Include:

(A) personal social services, including:

(i) DAHS;

(ii) counseling;

(iii) in-home care; and

(iv) protective services;

(B) health services, including:

(i) home health;

(ii) family planning;

(iii) preventive health programs;

(iv) nursing facility; and

(v) hospice;

(i) all levels of school;

(ii) Head Start; and

(iii) vocational programs;

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

(E) income transfer services, including:

(i) Temporary Assistance for Needy Families; and

(ii) Supplemental Nutrition Assistance Program; and

(F) justice and public safety services, including:

(i) parole and probation; and

(ii) rehabilitation.

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

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

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

(39) Immediate threat to the health or safety of an elderly person or a person with a disability--A situation that causes, or is likely to cause, serious injury, harm, or impairment to, or the death of, an elderly person or a person with a disability receiving services at a facility.

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

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

(42) Isolated--When a very limited number of elderly persons, or persons with disabilities, receiving services at a facility are affected and a very limited number of staff are involved, or the situation has occurred only occasionally.

(43) License holder--A person who holds a license to operate a facility.

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

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

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

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

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

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

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

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

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

(48) Manager--A person who has a contractual relationship to provide management services to a facility.

(49) Medically related program--A program providing the services listed in paragraph (37)(B) of this section.

(50) Neglect--Failure to provide for oneself goods or services, including medical services, that are necessary to avoid physical harm, mental anguish, or mental illness; or failure of a caregiver to provide these goods or services.

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

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

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

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

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

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

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

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

(59) Nurse--An RN or LVN licensed in the state of Texas.

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

(A) observation;

(B) promoting and maintaining health;

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

(E) guiding and counseling individuals and families; and

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

(61) Online portal--A secure portal provided on the HHSC website for licensure activities, including for a DAHS facility applicant to submit licensure applications and information.

(62) Pattern of violation--Repeated, but not widespread in scope, failures of a facility to comply with Texas Human Resources Code, Chapter 103, or a rule, standard, or order adopted under Texas Human Resources Code, Chapter 103 that:

(A) result in a violation; and

(B) are found throughout the services provided by the facility or that affect or involve the same elderly persons or persons with disabilities receiving services at the facility or the same facility employees.

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

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

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

(66) Potential for minimal harm--A violation that has the potential for causing no more than a minor negative impact to an individual.

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

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

(A) information and referral;

(B) transportation;

(D) respite;

(E) counseling;

(F) instruction and training; and

(G) support groups.

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

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

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

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

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

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

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

(76) TAC--Texas Administrative Code.

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

(78) Widespread in scope--A violation of Texas Human Resources Code, Chapter 103, or a rule, standard, or order adopted under Texas Human Resources Code, Chapter 103, that:

(A) is pervasive throughout the services provided by the facility; or

(B) represents a systematic failure by the facility that affects or has the potential to affect a large portion or all the elderly persons or persons with disabilities receiving services at the facility.

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

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

The agency certifies that legal counsel has reviewed the 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-202400836

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 7, 2024

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

26 TAC §559.2

STATUTORY AUTHORITY

The repeal 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 Human Resources Code §103.004 and §103.005, which respectively provide that the Executive Commissioner of HHSC shall adopt rules for implementing Texas Human Resources Code, Chapter 103, and adopt rules for licensing and setting standards for facilities licensed under Texas Human Resources Code, Chapter 103.

The repeal implements Texas Government Code §531.0055 and Texas Human Resources Code, Chapter 103.

§559.2.Definitions.

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-202400837

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 7, 2024

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

SUBCHAPTER B. LICENISING [~~APPLICATION PROCEDURES~~]

26 TAC §§559.11, 559.13, 559.15, 559.17, 559.19, 559.21, 559.23, 559.25, 559.27, 559.29, 559.31, 559.33, 559.35, 559.37, 559.39

STATUTORY AUTHORITY

The amendment and new sections 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, and Texas Human Resources Code §103.004 and §103.005, which respectively provide that the Executive Commissioner of HHSC shall adopt rules for implementing Texas Human Resources Code, Chapter 103, and adopt rules for licensing and setting standards for facilities licensed under Texas Human Resources Code, Chapter 103.

The amendment and new sections implement Texas Government Code §531.0055 and Texas Human Resources Code, Chapter 103.

§559.11.Criteria for Licensing.

(a) A person must not establish or operate a DAHS facility in Texas without a license issued by HHSC in accordance with Texas Human Resources Code, Chapter 103, and this chapter.

(b) An applicant for a license must submit a complete application form and license fee to HHSC through the online portal in accordance with instructions provided with the application.

(1) the standards of the Life Safety Code, NFPA 101, 2000 edition;

(2) the construction standards in Subchapter C of this chapter (relating to Facility Construction Procedures); and

(3) the requirements for operation based on an on-site survey.

(d) HHSC may deny an application that remains incomplete after 120 days.

(e) Before issuing a license, HHSC considers the background and qualifications of:

(1) the applicant or license holder:

(2) a person with a disclosable interest;

(3) an affiliate of the applicant or license holder;

(4) controlling parties, such as a director or manager; and

(5) anyone disclosed in the application in accordance with the instructions provided with the application [~~a manager~~].

(f) HHSC issues a license if it finds that the applicant [~~DAHS facility~~], and all persons [~~any person~~] described in subsection (e) of this section, meet [~~meets~~] all requirements of this chapter. The license is valid for three years[~~, except as provided by §98.15(b)(1) and (c)(1) of this subchapter (relating to Renewal Procedures and Qualifications)~~].

(g) A facility must not provide services to more clients [~~individuals~~] than the number [~~of individuals~~] specified on its license.

(h) A facility must prominently and conspicuously post its license for display in a public area of the facility that is readily accessible to individuals, employees, and visitors.

§559.13.General Application Requirements.

(a) An applicant must use the online portal and the forms prescribed by HHSC to submit a license application and fulfill all licensure requirements and activities that can be met or conducted using the online portal.

(b) An applicant must complete the application and furnish all documents and information that HHSC requests in accordance with the instructions provided with the application. An application must be complete, accurate, and submitted with full payment of applicable license fees described in §559.37 of this subchapter (relating to Fees). If an applicant provides incorrect or false information, or withholds information, HHSC may deny the application as described in §559.31 of this subchapter (relating to Criteria for Denying a License or Renewal of a License).

(c) An application must include documentation from the local fire authority that the facility and its operations meet local fire ordinances.

(d) If an applicant decides not to continue the application process for a license after submitting an application and license fee, the applicant must submit to HHSC a request to withdraw the application. HHSC does not refund the license fee for an application that is withdrawn, except as provided in §559.15(e) - (g) of this subchapter (relating to Time Periods for Processing Licensing Applications).

§559.15.Time Periods for Processing Licensing Applications.

(a) HHSC only processes applications received at least 60 days before the requested date of the license issuance.

(b) An application is complete when all requirements for licensing have been met, including compliance with standards. If an inspection for compliance is required, the application is not complete until the inspection has occurred, reports have been reviewed, and the applicant complies with the standards.

(c) The HHSC Regulatory Services Licensing and Credentialing Section notifies facilities through the online portal within 30 days after receipt of the application if any of the following applications are incomplete:

(1) initial;

(2) change of ownership;

(3) renewal; and

(4) increase in capacity.

(d) Except as provided in subsection (e) of this section, HHSC issues or denies a license within 30 days after the receipt of a complete application or within 30 days before the expiration date of the license. HHSC may delay an action on an application for renewal of a license for up to six months if the facility is subject to a proposed or pending licensure termination action on or within 30 days before the expiration date of the license. Issuing the license constitutes HHSC's official written notice to the facility of application acceptance and filing.

(e) In the event an application is not processed in the time periods established in this section, the applicant has a right to request from the program director full reimbursement of all filing fees paid as part of that application process. If the program director does not agree that the established periods have been exceeded or finds that good cause existed for exceeding the established periods, the request is denied.

(f) Good cause for exceeding an established period is considered to exist if:

(1) the number of applications to be processed by HHSC exceeds by 15 percent or more the number processed in the same calendar quarter of the preceding year;

(2) another public or private entity involved in the application process caused the delay; or

(3) other conditions existed giving good cause for exceeding the established periods.

(g) If the request for full reimbursement is denied, the applicant may appeal directly to HHSC's executive commissioner for resolution of the dispute. The applicant must send a written statement to the executive commissioner describing the request for reimbursement and the reasons for it. The program director may also send a written statement to the executive commissioner describing the program's reasons for denying reimbursement. The executive commissioner makes a timely decision concerning the appeal and notifies the applicant and the program in writing of the decision.

§559.17.Building Approval.

(a) Local fire authority. All initial, change of ownership, and renewal applications for licensure must include the written approval of the local fire authority that the facility and its operation meet local fire ordinances. The written approval must be uploaded into the application in the online portal.

(b) Local health authority. The following procedures allow the local health authority to provide recommendations to HHSC concerning facility licensure.

(1) New facility. The sponsor of a new facility under construction or a previously unlicensed facility must provide to HHSC a copy of a dated written notice to the local health authority that construction or modification has been or will be completed by a specific date. This notice must be uploaded into the application submitted through the online portal. The sponsor must also provide a copy of a dated written notice of the approval for occupancy by the local fire marshal or local building code authority, if applicable, by uploading the notice into the application submitted through the online portal. The local health authority may provide recommendations to the HHSC Regulatory Services Licensing and Credentialing Section regarding the status of compliance with local codes, ordinances, or regulations.

(2) Increase in capacity. The license holder must submit an application through the online portal for approval of an increase in capacity from the HHSC Regulatory Services Licensing and Credentialing Section. The license holder must notify the local fire marshal and health authority of the request. The license holder must arrange for the inspection of the facility by the local fire marshal. The facility must upload a copy of the written notice sent to the local health authority notifying them of the increase in capacity into the capacity increase application submitted through the online portal. HHSC approves the application only if the facility is found to be in compliance with the standards. Upon approval, the HHSC Regulatory Licensing and Credentialing Section issues a license with the increased capacity.

(3) Change of ownership. The applicant for a change of ownership license must provide to HHSC a copy of a letter notifying the local health authority of the request for a change of ownership by uploading the letter into the change of ownership application submitted through the online portal. The local health authority may provide recommendations to HHSC regarding the status of compliance with local codes, ordinances, or regulations.

(4) Renewal. The applicant for renewal must provide to HHSC a copy of a letter notifying the local health authority of the request for a renewal by uploading the letter into the renewal application submitted through the online portal. The local health authority may provide recommendations to HHSC regarding the status of compliance with local codes, ordinances, or regulations. The local authority may also recommend that a state license be issued or denied; however, the final decision on licensure status remains with HHSC.

§559.19.Applicant Disclosure Requirements.

(a) Scope of section. No person may apply for a license, change of ownership, increase in capacity, or license renewal to operate or maintain a facility without disclosing information as required in this section.

(b) Disclosures. Disclosures are made on each application as defined in this section and as required by the instructions for the application submitted.

(1) For initial, change of ownership, renewal, and change applications related to capacity and real estate, evidence of the right to possession of the facility at the time of the application must be submitted. This requirement may be satisfied by uploading applicable portions of a lease agreement, deed or trust, or other appropriate legal document into the application submitted through the online portal. The names and addresses of any persons or organizations listed as owner of record in the real estate, including the buildings and grounds appurtenant to the buildings, must be disclosed to HHSC in the application submitted through the online portal.

(2) At the request of HHSC, an applicant or license holder must provide to HHSC any additional background information within 30 days after HHSC's request.

§559.21.Initial License Application Procedures and Requirements.

(a) An applicant for an initial license must submit an application in accordance with §559.13 of this subchapter (relating to General Application Requirements) and include full payment of the fees required in §559.37 of this subchapter (relating to Fees).

(b) HHSC reviews an application for an initial license within 30 days after the date the HHSC Licensing and Credentialing Section, Long-term Care Regulation, receives the application and the associated fees and notifies the applicant if additional information is needed to complete the application.

(c) The applicant must notify HHSC via the online portal indicating that the facility is ready for a Life Safety Code (LSC) inspection. The notice must be submitted with the application or within 120 days after the HHSC Licensing and Credentialing Section, Long-term Care Regulation, receives the application. After the applicant has satisfied the application submission requirements in §559.11 of this subchapter (relating to Criteria for Licensing) and §559.13 of this subchapter, HHSC staff conduct an on-site LSC inspection of the facility to determine if the facility meets the applicable physical plant requirements in Subchapter C of this chapter (relating to Facility Construction Procedures).

(d) If the applicant fails to meet the licensure requirements within 120 days after the initial LSC inspection, HHSC denies the application for a license.

(e) After an applicant has met the licensure requirements in Subchapter C of this chapter and admitted at least one but no more than three clients, the applicant must notify HHSC via the online portal that the facility is ready for a health inspection.

(1) HHSC staff conduct an on-site health inspection to determine if the facility meets the licensure requirements for standards of operation and client care in Subchapter D of this chapter (relating to Standards for Licensure).

(2) If the facility fails to meet the licensure requirements for standards of operation and client care within 120 days after the initial health inspection, HHSC denies the application for a license.

(f) HHSC issues a license within 30 days after HHSC determines that the applicant and the facility have met the licensure requirements of this section. Issuing a license constitutes HHSC's official written notice to the facility of the approval of the application.

(g) HHSC may deny an application for an initial license if the applicant, controlling person, or any person required to submit background and qualification information fails to meet the criteria for a license established in §559.11 of this subchapter.

(h) If HHSC denies an application for an initial license, HHSC sends the applicant a written notice of the denial and informs the applicant of the applicant's right to request an administrative hearing to appeal the denial. The administrative hearing is held in accordance with HHSC rules in 1 TAC, Part 15, Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act).

§559.23.Renewal Procedures and Qualifications.

(a) A license issued under this chapter:

(1) expires three years after the date issued;

(2) must be renewed before the license expiration date; and

(3) is not automatically renewed.

(b) The submission of a license fee alone does not constitute an application for renewal.

(c) The completion of a renewal survey alone does not renew the license. A renewal application submitted through the online portal is required.

(d) If a renewal application is not generated in the online portal within 120 days of expiration, it is the responsibility of the facility to request from HHSC that one be generated.

(e) To renew a license, a license holder must submit an application for renewal through the online portal no later than the 45th day before the expiration date of the current license. HHSC considers that an application for renewal has met the submission deadline if the license holder:

(1) submits a complete application to HHSC, and HHSC receives that complete application through the online portal no later than the 45th day before the expiration date of the current license;

(2) submits an incomplete application to HHSC through the online portal and uploads a letter explaining the circumstances that prevented the inclusion of the missing information, and HHSC receives the incomplete application and letter no later than the 45th day before the expiration date of the current license; or

(3) submits a complete application or an incomplete application through the online portal with a letter uploaded into the application explaining the circumstances that prevented the inclusion of the missing information to HHSC, HHSC receives the application during the 45-day period ending on the date the current license expires, and the license holder pays a late fee in accordance with §559.37(a)(2) of this subchapter (relating to Fees) in addition to the license renewal fee.

(f) If the application is submitted through the online portal along with the appropriate licensing fee by the submission deadline, HHSC considers the application to be timely filed. It is the license holder's responsibility to ensure that the application is timely received by HHSC by submission through the online portal.

(g) For purposes of Texas Government Code §2001.054, HHSC considers that an individual has submitted a timely and sufficient application for renewal of a license if the license holder's application has met the submission deadlines in subsections (e) and (f) of this section. Failure to submit a timely and sufficient application results in the expiration of the license on the expiration date listed on the license.

(h) HHSC does not accept an application for renewal submitted after the expiration date of the license. An application for an initial license must be submitted and must comply with the requirements for an initial license in §559.11 of this subchapter (relating to Criteria for Licensing) and §559.19 of this subchapter (relating to Applicant Disclosure Requirements).

(i) The application for renewal must contain the same information required for an initial application and the license fee as described in §559.37 of this subchapter.

(j) The renewal of a license may be denied for the same reasons an original application for a license may be denied under the criteria in §559.31 of this subchapter (relating to Criteria for Denying a License or Renewal of a License).

(k) The facility must have an annual inspection by the local fire marshal and must submit a copy of the most current inspection as part of the renewal procedures by uploading the report into the renewal application through the online portal.

§559.25.Change of Ownership and Notice of Changes.

(a) For purposes of this section, a temporary change of ownership license is a temporary license issued to an applicant who proposes to become the new operator of a facility that exists on the date the application is submitted.

(b) A license holder may not transfer its license. The applicant (new license holder) must obtain a temporary change of ownership license followed by an initial three-year license in accordance with this section. When HHSC approves the change of ownership by issuing a temporary change of ownership license to the new license holder, the current license holder's license becomes invalid as of the effective date of the change of ownership indicated in the change of ownership application. Between the effective date of the change of ownership and issuance of the temporary change of ownership license, the existing license holder remains responsible under its license; however, the applicant may operate a facility on behalf of the current license holder during such time period.

(1) a complete application for a license in accordance with HHSC instructions and §559.11 of this subchapter (relating to Criteria for Licensing) or an incomplete application with a letter explaining the circumstances that prevented the inclusion of the missing information;

(2) the application fee, in accordance with §559.37 of this subchapter (relating to Fees); and

(3) a signed and notarized Change of Ownership Transfer Affidavit, HHSC Form 1092, from the applicant and the facility's current license holder of intent to transfer operation of the facility from the current license holder to the applicant, beginning on the change of ownership effective date specified on the change of ownership application.

(d) To avoid a facility operating without a license, an applicant must submit all items required by subsection (c) of this section at least 30 days before the anticipated date of a change of ownership, unless the 30-day notice requirement is waived in accordance with subsection (e) of this section.

(e) HHSC may waive the 30-day notice required in subsection (d) of this section if HHSC determines that the applicant presents evidence showing that circumstances prevented the submission of the items in subsection (c) of this section at least 30 days before the anticipated change of ownership and that not waiving the 30-day requirement would create a threat to client health and safety.

(f) Upon HHSC approval of the items specified in subsection (c) of this section, HHSC issues a temporary change of ownership license to the applicant if HHSC finds that the applicant, all controlling persons, and all persons disclosed in the application satisfy all applicable requirements in §559.11 of this subchapter, §559.19 of this subchapter (relating to Applicant Disclosure Requirements), and §559.31 of this subchapter (relating to Criteria for Denying a License or Renewal of a License).

(1) Issuing a temporary change of ownership license constitutes HHSC's official written notice to the facility of the approval of the application for a change of ownership.

(2) The effective date of the temporary change of ownership license is the date requested in the application and cannot precede the date the application is received by HHSC through the online portal.

(g) A temporary change of ownership license expires on the earlier of:

(1) 90 days after its effective date or the last day of any extension HHSC provides in accordance with subsection (h) of this section; or

(2) the date HHSC issues a three-year license in accordance with subsection (k) of this section.

(h) HHSC, in its sole discretion, may extend a temporary change of ownership license for a term of 90 days at a time based upon extenuating circumstances.

(i) HHSC conducts an on-site health inspection to verify compliance with the licensure requirements after issuing a temporary change of ownership license. HHSC may conduct a desk review instead of an on-site health inspection after issuing a temporary change of ownership license if:

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

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

(j) HHSC, in its sole discretion, may conduct an on-site Life Safety Code inspection after issuing a temporary change of ownership license.

(k) If the applicant, all controlling persons, and all persons disclosed in the application satisfy all applicable requirements for a license in §§559.11, 559.19, and 559.31 of this subchapter, and the facility passes the change of ownership health inspection as described in subsection (i) of this section, HHSC issues a three-year license. The effective date of the three-year license is the same date as the effective date of the change of ownership and cannot precede the date the application was received by HHSC through the online portal.

(l) If a license holder adds an owner with a disclosable interest, but the license holder does not undergo a change of ownership, the license holder must notify HHSC of the addition no later than 30 days after the addition of the owner.

(m) If a license holder changes its name but does not undergo a change of ownership, the license holder must notify HHSC and submit documentation evidencing a legal name change by submitting an application through the online portal. On receipt of the notice and documentation, HHSC reissues the current license in the license holder's new name.

§559.27.Relocation.

(a) A license holder must not relocate a facility without approval from HHSC. The license holder must submit a complete application and the fee required under §559.37 of this subchapter (relating to Fees) to HHSC through the online portal before the relocation.

(b) Clients must not be relocated until the new building has been inspected and approved as meeting the standards of Life Safety Code, NFPA 101, 2000 edition, as applicable to day activity health services facilities.

(c) Following Life Safety Code, NFPA 101, 2000 edition, approval by HHSC, the license holder must notify HHSC of the date clients will be relocated. If the new facility meets the standards for operation based on an on-site survey, HHSC issues a license for the new location.

(d) The effective date of this license is the date all clients are relocated.

(e) The license holder must continue to maintain the license at the current location and meet all requirements for facility operation until the date of the relocation.

§559.29.Change of Staff.

(a) A facility must submit an application for a change of director through the online portal within 30 days before or after the change. The new director must submit qualifying documentation for approval to the HHSC Regulatory Services Regional Office within 30 days before or after the change, as specified in §559.59 of this chapter (relating to Staff Qualifications).

(b) A new facility activities director must submit qualifying documentation for approval within 30 days before or after the change, as specified in §559.59 of this chapter.

(c) If the facility does not have a director or activities director within 30 days after a vacancy, the facility must submit a letter to the HHSC Regulatory Services Regional Office requesting an extension. The HHSC Regulatory Services Regional Office notifies the facility in writing of the length of any extension.

§559.31.Criteria for Denying a License or Renewal of a License.

(a) HHSC may deny an initial license or refuse to renew a license if any person described in §559.11(e) of this subchapter (relating to Criteria for Licensing):

(1) is subject to denial or refusal as described in Chapter 560 of this title (relating to Denial or Refusal of License) during the time frames described in that chapter;

(2) substantially fails to comply with the requirements described in §559.42 of this chapter (relating to Safety), §559.43 of this chapter (relating to Sanitation), and Subchapter D of this chapter (relating to Standards for Licensure), including:

(A) noncompliance that poses a serious threat to health and safety; or

(B) failure to maintain compliance on a continuous basis;

(3) aids, abets, or permits a substantial violation described in paragraph (2) of this subsection about which the person had or should have had knowledge;

(4) fails to provide the required information, facts, or references;

(5) knowingly provides false or fraudulent information by:

(A) submitting false or intentionally misleading statements to HHSC;

(B) using subterfuge or other evasive means of filing;

(D) knowingly concealing a material fact; or

(E) being responsible for fraud;

(6) fails to pay when due:

(A) licensing fees as described in §559.37 of this subchapter (relating to Fees); and

(B) franchise taxes, if applicable; or

(7) has a history of any of the following actions during the five-year period preceding the date of the application:

(A) received a sanction for operating a facility that has been decertified or had its contract canceled under the Medicare or Medicaid program in any state;

(B) being assessed federal or state Medicare or Medicaid sanctions or penalties;

(D) was evicted from any property or space used as a facility in any state; or

(E) received a suspension of a license to operate a health facility, long-term care facility, assisted living facility, or a similar facility in any state.

(b) Concerning subsection (a)(7) of this section, HHSC may consider exculpatory information provided by any person described in §559.11(e) of this subchapter and grant a license if HHSC finds that person able to comply with the rules in this chapter.

(c) HHSC does not issue a license to an applicant to operate a new facility if the applicant has a history of any of the following actions during the five-year period preceding the date of the application:

(1) revocation of a license to operate a health care facility, nursing facility, assisted living facility, or similar facility in any state;

(2) debarment or exclusion from the Medicare or Medicaid programs by the federal government or a state; or

(3) a court injunction prohibiting any person described in §559.11(e) of this subchapter from operating a facility.

(d) Only final actions are considered for purposes of subsection (a)(7) of this section and subsection (c) of this section. An action is final when routine administrative and judicial remedies are exhausted. All actions, whether pending or final, must be disclosed.

(e) If an applicant owns multiple facilities, the overall record of compliance in all the facilities is examined. An overall record poor enough to deny issuing a new license does not preclude renewing licenses of individual facilities with satisfactory records.

(f) If HHSC denies a license or refuses to issue a license renewal, the applicant or license holder may request a hearing by following HHSC rules in 1 TAC Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act). An administrative hearing is conducted in accordance with Texas Government Code, Chapter 2001, and 1 TAC Chapter 357, Subchapter I.

§559.33.Opportunity to Show Compliance.

(a) Before starting proceedings to revoke or suspend a license or deny an application for the renewal of a license, HHSC gives the applicant or license holder:

(1) notice by personal service or registered or certified mail of the facts or conduct alleged to warrant the proposed action; and

(2) an opportunity to show compliance with all requirements of law for the retention of the license by sending the director of the HHSC Regulatory Enforcement Section a written request for an opportunity to show compliance. The request must:

(A) be postmarked within 10 days after the date of HHSC's notice and received in the state office of the director of the HHSC Regulatory Enforcement Section within 10 days after the date of the postmark; and

(B) contain specific documentation refuting HHSC's allegations.

(b) HHSC's review is limited to a review of documentation submitted by the license holder and information used by HHSC as the basis for its proposed action and is not conducted as an adversary hearing. HHSC gives the license holder a written affirmation or reversal of the proposed action.

§559.35.Change in Capacity.

(a) Increase in Capacity.

(1) During the license term, a license holder may not increase capacity without approval from HHSC. The license holder must submit to HHSC a complete application for increase in capacity through the online portal.

(2) Upon approval of an increase in capacity following a Life Safety Code Survey, HHSC issues a new license.

(b) Decrease in Capacity.

(1) A license holder that wishes to decrease the licensed capacity of the facility must provide notification via the online portal to HHSC Licensing and Credentialing Section, Long-term Care Regulation. The notification must include the desired capacity for the new license.

(2) Upon receipt of the notification, HHSC issues a new license with the desired capacity indicated in the notification.

§559.37.Fees.

(a) License Fees.

(1) The license fee is $75 for a three-year license. The fee must be paid with each initial application, change of ownership application, and application for license renewal. A facility or applicant must pay fees in accordance with the options available in the online portal.

(2) An applicant for license renewal who submits an application during the 45-day period ending on the date the current license expires must pay a late fee of $25 in addition to the license fee described in paragraph (1) of this subsection.

(b) Plan Review Fees.

(1) HHSC charges a fee to review plans for new buildings and conversion of buildings not licensed by HHSC and for additions and remodeling existing licensed facilities.

(2) HHSC fee schedule by building type:

(A) new buildings or conversion of buildings not licensed by HHSC--$12 per client (minimum $500 and maximum $1,000); or

(B) additions or remodeling existing licensed facilities--2 percent of construction cost (minimum $250 and maximum $750).

§559.39.Voluntary Closure.

(a) A provider must notify HHSC in writing at least five days before permanent closure of the operation.

(b) The provider must include in the written notice:

(1) the date of permanent closure;

(2) the reason for closing;

(3) the location of individual records, both active and inactive; and

(4) the name and address of the individual records custodian.

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-202400838

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 7, 2024

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

SUBCHAPTER B. APPLICATION PROCEDURES

26 TAC §§559.12 - 559.23

STATUTORY AUTHORITY

The repeals 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, and Texas Human Resources Code §103.004 and §103.005, which respectively provide that the Executive Commissioner of HHSC shall adopt rules for implementing Texas Human Resources Code, Chapter 103, and adopt rules for licensing and setting standards for facilities licensed under Texas Human Resources Code, Chapter 103.

The repeals implement Texas Government Code §531.0055 and Texas Human Resources Code, Chapter 103.

§559.12.Building Approval.

§559.13.Applicant Disclosure Requirements.

§559.14.Increase in Capacity.

§559.15.Renewal Procedures and Qualifications.

§559.16.Change of Ownership and Notice of Changes.

§559.17.Change of Staff.

§559.18.Time Periods for Processing Licensing Applications.

§559.19.Criteria for Denying a License or Renewal of a License.

§559.20.Opportunity to Show Compliance.

§559.21.License Fees.

§559.22.Plan Review Fees.

§559.23.Relocation.

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-202400839

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 7, 2024

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

SUBCHAPTER D. STANDARDS FOR LICENSURE [~~AND PROGRAM REQUIREMENTS~~]

26 TAC §§559.50 - 559.53, 559.55, 559.57, 559.59, 559.61, 559.63, 559.65, 559.67, 559.69, 559.71, 559.73, 559.75, 559.77, 559.79

STATUTORY AUTHORITY

The new sections 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, and Texas Human Resources Code §103.004 and §103.005, which respectively provide that the Executive Commissioner of HHSC shall adopt rules for implementing Texas Human Resources Code, Chapter 103, and adopt rules for licensing and setting standards for facilities licensed under Texas Human Resources Code, Chapter 103.

The new sections implement Texas Government Code §531.0055 and Texas Human Resources Code, Chapter 103.

§559.50.Purpose.

For purposes of this subchapter, the term, "communicable diseases" has the meaning assigned to it in 25 TAC Chapter 97 (relating to Communicable Diseases).

§559.51.Compliance.

(a) For purposes of this section, "reportable conduct" includes:

(1) abuse or neglect that causes or may cause death or harm to a client;

(2) sexual abuse of a client;

(3) financial exploitation of a client in the amount of $25 or more; or

(4) emotional, verbal, or psychological abuse that causes harm to a client.

(b) A facility must:

(1) comply with the requirements for advance directives as outlined under §559.53 of this subchapter (relating to Maintenance of Policies and Procedures);

(2) comply with the provisions of Texas Health and Safety Code, Chapter 250 (relating to Nurse Aide Registry and Criminal History Checks of Employees and Applicants for Employment in Certain Facilities Serving the Elderly, Persons with Disabilities, or Persons with Terminal Illness);

(3) before offering employment to any individual, search on the HHSC internet website, employee misconduct registry (EMR) established under Texas Health and Safety Code §253.007, and HHSC nurse aide registry (NAR) to determine if an individual is designated in either registry as unemployable;

(A) not employ a person who is listed as unemployable in either registry;

(B) provide information about the EMR to an employee in accordance with §561.3 of this title (relating to Employment and Registry Information);

(C) conduct a search of the EMR and NAR at least once every 12 months to determine if the employee is designated in either registry as unemployable;

(D) keep a copy of the results of the initial and annual searches of the NAR and EMR in the employee's personnel file; and

(E) suspend the employment of an employee who HHSC finds has engaged in reportable conduct, as defined in subsection (a) of this section, 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, and not reinstate the employee's employment or contract during any applicable appeals process;

(4) develop policies to comply with standards for universal precautions for HIV/AIDS and related conditions in the workplace;

(5) develop written policies for control of communicable diseases in employees and clients, which include tuberculosis screening and provision of a safe and sanitary environment for clients and their families;

(6) comply with all relevant federal and state standards; and

(7) comply with all applicable provisions of Texas Human Resource Code, Chapter 102.

§559.52.Client Rights.

A facility must ensure that all adult clients receiving services provided by the facility are guaranteed the following rights.

(1) The facility must ensure that the facility's policies and procedures:

(A) enable a client to exercise his or her rights;

(B) promote the highest practicable quality of life for all clients and not deliberately or inadvertently prohibit a client from exercising the rights stated in this section or the rights of citizenship; and

(2) The facility must ensure a listing of client rights is:

(A) provided in writing to each client or client's responsible party; and

(B) posted in English and Spanish in a prominent place in the facility accessible by clients and visitors.

(3) A client has all the rights, benefits, responsibilities, and privileges stated in the Constitution and laws of this state and the United States, except where lawfully restricted.

(4) A client has the right to be free of interference, coercion, discrimination, and reprisal in exercising his or her civil rights. Examples of interference, coercion, discrimination, and reprisal include:

(A) prohibiting a client from selecting the client's responsible party of the client's choice;

(B) intimidating a client to provide information about a private conversation with another person;

(C) not allowing a client to use the client's private property, such as durable medical equipment, recreational items, and assistive devices;

(D) not allowing a client to visit with an individual of the client's choice, unless the individual poses a threat to the health and safety of the client, other clients, or staff;

(E) discharging a client for filing a complaint or grievance; and

(F) using derogatory language to describe or address a client.

(5) A client has the right to be free from physical and mental abuse, including corporal punishment, physical restraints and seclusion, and chemical restraints that are administered for the purpose of discipline or convenience and not required to treat the client's medical symptoms.

(6) A client has the right to participate in activities of social, religious, and community groups unless the participation interferes with the rights of others.

(7) A client has the right to practice the religion of the client's choice or to abstain from religious activities.

(8) A client with an intellectual disability and who is represented by a court-appointed guardian may participate in a behavior modification program that involves the use of restraints or adverse stimuli only with the informed consent of the guardian.

(9) A client has the right to be treated with respect, courtesy, consideration, and recognition of his or her dignity and individuality, without regard to race, religion, national origin, sex, age, disability, marital status, or source of payment. This means that the client:

(A) has the right to make individualized choices regarding personal affairs, care, benefits, schedules and activities, and services;

(B) has the right to be free from abuse, neglect, and exploitation;

(C) has the right, if protective measures are required and the client has not been adjudicated cognitively impaired, to designate a guardian or representative to ensure the right to quality stewardship of the client's affairs; and

(D) has the right to protection of the client's personal image. A facility employee must not share or post to the internet or social media any photographs or video of a client without the client's written consent.

(10) A client has the right to a safe and clean environment that:

(A) is free of pests;

(B) is free of electrical and structural hazards; and

(11) A client has the right to communicate with staff and others in the client's native language for the purpose of acquiring or providing any type of treatment, care, or services.

(12) A client has the right to make a complaint about the client's care or treatment.

(A) A client's complaint may be made anonymously or communicated by a person designated by the client.

(B) The facility must promptly respond to resolve each client complaint.

(D) The facility must not impede a client's right to make a formal complaint to HHSC or require that complaints be made to the facility prior to lodging a formal complaint with HHSC.

(13) The facility must ensure a client is given personal privacy while attending to personal needs.

(14) A client has the right to review and obtain copies of the client's records in accordance with §559.75 of this subchapter (relating to Client Records).

(15) A client has the right to be fully informed in advance about treatment, care, and services provided by the facility.

(16) A client has the right to participate in developing his or her individual plan of care that describes the client's DAHS needs and how the needs will be met.

(17) A client has the right to refuse medical treatment or services. The facility must ensure the client is advised by the person providing treatment or services of the possible consequences of refusing treatment or services.

(18) A client has the right to refuse to perform services for the facility, except as contracted for by the client and director.

(19) A client has the right to be informed by the provider, no later than the 30th day after admission:

(A) whether the client is entitled to benefits under Medicare or Medicaid related to DAHS services; and

(B) which items and services are covered by these benefits, including items or services for which the client may not be charged.

(20) A client has the right to execute an advance directive, under Texas Health and Safety Code, Chapter 166, or designate a guardian in advance of need to make decisions regarding the client's health care should the client become incapacitated.

§559.53.Maintenance of Policies and Procedures.

A facility must maintain policies and procedures regarding the following with respect to all clients receiving services provided by the facility.

(1) The facility must provide a client with written information about:

(A) the client's rights under Texas law (whether statutory or as recognized by the courts of the state) to make decisions concerning medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives;

(B) the facility's policies respecting the implementation of these rights; and

(C) a written list of the client's rights as applicable, as outlined under Texas Human Resource Code §102.004 (relating to List of Rights), and as required in §559.52 of this subchapter (relating to Client Rights).

(2) The facility must document in the client's record whether the client has executed an advance directive.

(3) The facility must not condition the provision of care or otherwise discriminate against a client based on whether the client has executed an advance directive.

(4) The facility must ensure compliance with the requirements of Texas law, whether statutory or as recognized by the courts of Texas, respecting advance directives.

(5) The facility must educate the client, family members, and staff, in a language each understands, on issues concerning advance directives.

(6) The facility must provide the attending physician with any information relating to a known existing Directive to Physicians, Living Will, or Durable Power of Attorney for Health Care and assist with coordinating prescribing practitioners' orders with any directive.

(7) When a client is in an incapacitated state, and therefore is unable to receive information or articulate whether he or she has executed an advance directive, the family, surrogate, or other concerned person must receive the information concerning advance directives. The facility must provide this information to the client in a language he or she understands if he or she is no longer incapacitated.

(8) When the client or a relative, surrogate, or other concerned or related individual presents the facility with a copy of the client's advance directive, the facility must comply with the advance directive including recognition of a durable power of attorney for health care to the extent allowed under state law. If no one comes forward with a previously executed advance directive and the client is incapacitated or otherwise unable to receive information or articulate whether he has executed an advance directive, the facility must note that the client was not able to receive information and was unable to communicate whether an advance directive existed.

§559.55.Reporting Incidents of Abuse or Neglect.

A facility must:

(1) report to HHSC via the online portal, or by speaking with an HHSC agent at 1-800-458-9858, upon learning of alleged abuse or neglect of a client and submit an investigation report to HHSC no later than the fifth working day after the initial report;

(2) maintain incident reports as required by §559.75 of this subchapter (relating to Client Records);

(3) ensure the confidentiality of individual client records and other information related to clients; and

(4) inform the client, or client's responsible party, orally and in writing of the client's rights, responsibilities, and grievance procedures in a language the client, or client's responsible party, understands.

§559.57.Postings.

A facility must prominently and conspicuously post for display in a public area of the facility that is readily available to clients, employees, and visitors:

(1) the license issued under this chapter;

(2) a sign prescribed by HHSC that can be found on the HHSC website that describes complaint procedures and specifies how complaints may be filed with HHSC;

(3) a notice in the form prescribed by HHSC stating that inspection and related reports are available at the facility for public inspection and providing the HHSC toll-free telephone number that may be used to obtain information concerning the facility;

(4) a copy of the most recent inspection report relating to the facility;

(5) a brochure or letter that outlines the facility's hours of operation, holidays, and a description of activities offered; and

(6) emergency telephone numbers, including the abuse hotline telephone number, near all telephones.

§559.59.Staff Qualifications.

(a) Director. A facility must employ a director.

(1) The director must:

(A) have graduated from an accredited four-year college or university and have no less than one year of experience in working with people in a human service or medically related program, or have an associate degree or 60 semester hours from an accredited college or university with three years of experience working with people in a human service or medically related program;

(B) be an RN with one year of experience in a human service or medically related program;

(C) meet the training and experience requirements for a license as a nursing facility administrator under Chapter 555 of this title (relating to Nursing Facility Administrators); or

(D) have met the qualifications for a director required on July 16, 1989, and served continuously in the capacity of director since that date.

(2) The director must show evidence of 12 hours of annual continuing education in at least two of the following areas:

(A) client and provider rights and responsibilities, abuse, neglect, exploitation, and confidentiality;

(B) basic principles of supervision;

(D) individual characteristics and needs;

(E) community resources;

(F) basic infection prevention and control measures;

(G) emergency preparedness and response;

(H) basic emergency first aid, such as cardiopulmonary resuscitation or choking; or

(I) federal laws, such as Americans with Disabilities Act, Civil Rights Act of 1991, Rehabilitation Act of 1993, and Family and Medical Leave Act of 1993.

(3) The activities director may fulfill the function of director if the activities director meets the qualifications for facility director.

(4) One person may not serve as facility nurse, activities director, and director.

(5) The facility must have a policy regarding the delegation of responsibility in the director's absence from the facility.

(6) The facility must notify HHSC Regulatory Services Regional Office for the region in which the facility is located if the director is absent from the facility for more than 10 working days.

(b) Nurse. A facility must employ a nurse.

(1) An RN must have a license from the Texas Board of Nursing and practice in compliance with the Nurse Practice Act and rules and regulations of the Texas Board of Nursing.

(2) An LVN must have a license from the Texas Board of Nursing and practice in compliance with the Nurse Practice Act and rules and regulations of the Texas Board of Nursing.

(3) If a nurse serving as director leaves the facility to perform other duties related to the DAHS program, an LVN or another RN must fulfill the duties of the facility nurse.

(4) A facility that does not have a DAHS contract, but that has a Special Services to Persons with Disabilities contract, is not required to have an RN on duty if the clients receiving services have no medical needs and are able to self-administer medication.

(1) Except as provided in paragraph (2) of this subsection, an activities director must have graduated from high school or have a certificate recognized by a state of the United States as the equivalent of a high-school diploma and have:

(A) a bachelor's degree from an accredited college or university and one year of full-time experience working with elderly people or people with disabilities in a human service or medically related program;

(B) 60 semester hours from an accredited college or university and two years of full-time experience working with elderly people or people with disabilities in a human service or medically related program; or

(C) completed an activities director's course and two years of full-time experience working with elderly people or people with disabilities in a human service or medically related program.

(2) An activities director hired before May 1, 1999, with four years of full-time experience working with elderly people or people with disabilities in a human service or medically related program is not subject to the requirements of paragraph (1) of this subsection.

(d) Attendants. An attendant must be at least 18 years of age and may be employed as a driver, aide, food service worker, janitor, housekeeper, or laundry services worker.

(1) If a facility employs a driver, the driver must have a current operator's license, issued by the Texas Department of Public Safety, that is appropriate for the class of vehicle used to transport clients.

(2) If an attendant handles food in the facility, the attendant must meet the requirements of the Texas Department of State Health Services (DSHS) rules on food service sanitation as described in 25 TAC Chapter 228 (relating to Retail Food Establishments).

(e) Food service personnel. If a facility prepares meals on site, the facility must have sufficient food service personnel to prepare meals and snacks. Food service personnel must meet the requirements of the DSHS rules on food service sanitation as described in 25 TAC Chapter 228.

§559.61.Staffing Ratio and Hours.

A facility must ensure that:

(1) the ratio of direct service staff to clients is at least one to eight, which must be maintained during provision of all services except during facility-provided transportation;

(2) at least one RN or LVN is working at the facility for at least eight hours per day and sufficient nurses are at the facility to meet the nursing needs of the clients at all times;

(3) the facility director routinely works at least 40 hours per week performing duties relating to provision of the DAHS program;

(4) the activities director routinely works at least 40 hours a week;

(5) clients whose needs cannot be met by the facility are not admitted or retained; and

(6) sufficient attendants are on duty at all times clients are present to meet the needs of the clients who are served by the facility.

§559.63.Infection Prevention and Control.

(a) A facility must develop, implement, enforce, and maintain an infection prevention and control program that provides a safe, sanitary, and comfortable environment and helps prevent development and transmission of disease and infection.

(1) The infection prevention and control program must include policies and procedures that reduce the risk of spreading communicable diseases in the facility, including:

(A) wearing personal protective equipment, such as gloves, a gown, or a mask when called on for anticipated exposure;

(B) properly cleaning hands after using the lavatory, before and after touching another client, and in between glove changes;

(C) cleaning and disinfecting environmental surfaces, including doorknobs, handrails, light switches, control panels, and remote controls;

(D) using universal precautions for blood and bodily fluids; and

(E) disposing of soiled items (such as used tissues, wound dressings, incontinence briefs, and soiled linens) from the environment.

(2) Staff must handle, store, process, and transport linens to prevent the spread of infection.

(3) If the facility knows or suspects an employee has contracted a communicable disease that is transmissible to clients through food handling or direct client care, the facility must exclude the employee from providing these services for the applicable period of communicability.

(4) The facility must maintain evidence of compliance with local and state health codes and ordinances regarding employee and client health status.

(5) The facility must immediately report the name of any client with a reportable disease as specified in 25 TAC Chapter 97, Subchapter A (relating to Control of Communicable Diseases), to the city health officer, county health officer, or health unit director having jurisdiction, and implement appropriate infection control procedures as directed by the local health authority.

(b) The facility must comply with rules regarding special waste in 25 TAC Chapter 1, Subchapter K (relating to Definition, Treatment, and Disposition of Special Waste from Health Care-Related Facilities).

(c) The facility's infection prevention and control program must include a policy to minimize the risk for transmission of tuberculosis (TB). The facility must screen a new employee for TB within two weeks of employment, according to Centers for Disease Control and Prevention screening guidelines and any additional guidance from HHSC.

(1) The facility must provide annual TB education to employees that must include the following topics:

(A) TB risk factors;

(B) the signs and symptoms of TB disease; and

(2) The facility may request evidence of compliance with this requirement from a person who provides services under an outside resource contract.

§559.65.Staff Responsibilities.

(a) The facility director:

(1) manages the DAHS program and the facility;

(2) trains and supervises facility staff, contractors, and volunteers;

(3) monitors the facility building and grounds to ensure compliance;

(4) maintains all financial and client records;

(5) develops relationships with community groups and agencies for identification and referral of clients;

(6) maintains communication with clients' family members or responsible parties;

(7) ensures development and maintenance of the clients' plans of care; and

(8) ensures that, if the facility director also serves as the RN consultant, the facility director fulfills the responsibility as director.

(b) The facility nurse:

(1) assesses clients' nursing and medical needs;

(2) develops clients' plans of care;

(3) obtains prescribing practitioner's orders for medication and treatments to be administered;

(4) determines whether self-administered medications have been appropriately taken, applied, or used;

(5) enters, dates, and signs monthly progress notes on medical care provided;

(6) administers medication and treatments;

(7) provides health education;

(8) maintains medical records; and

(9) oversees implementation of the facility's infection prevention and control policies.

(1) plans and directs the daily program of activities, including physical fitness exercises or other recreational activities;

(2) records client's social histories;

(3) assists clients' related support needs;

(4) ensures that the identified related support services are included in clients' plans of care;

(5) signs and dates monthly progress notes about social and related support services activities provided; and

(6) ensures clients have a choice in whether to participate in activities.

(d) An attendant:

(1) provides personal care services to assist with activities of daily living;

(2) assists the activities director with recreational activities; and

(3) provides protective supervision through observation and monitoring.

(e) Food service personnel:

(1) prepare meals and snacks; and

(2) maintain the kitchen area and utensils in a safe and sanitary condition.

(f) A facility must obtain consultation at least four hours per month from a dietitian consultant.

(1) The dietitian consultant plans and reviews menus and must:

(A) approve and sign snack and lunch menus;

(B) review menus monthly to ensure that substitutions were appropriate; and

(2) A facility must obtain consultation from a dietitian consultant even if the facility has meals delivered from another facility with a dietitian consultant or the facility contracts for the preparation and delivery of meals with a contractor that employs a registered dietician. A consultant who provides consultation to several facilities must provide at least four hours of consultation per month to each facility.

(g) If a facility employs an LVN as the facility nurse, the facility must ensure that an RN consultant provides consultation at the facility at least four hours per week. The RN consultant must document the consultation provided. The RN consultant must provide the consultation when clients are present in the facility. The RN consultant may provide the following types of assistance:

(1) review plans of care and suggest changes, if appropriate;

(2) assess clients' health conditions;

(3) consult with the LVN in solving problems involving care and service planning;

(4) counsel clients on health needs;

(5) train, consult, and assist the LVN to maintain proper medical records; and

(6) provide in-service training for direct service staff.

§559.67.Training.

(a) Initial training.

(1) A facility must provide direct service staff with training in its fire, disaster, and evacuation procedures within three workdays after the start of employment and document the training in the facility records.

(2) A facility must provide direct service staff a minimum of 18 hours of training during the first three months after the start of employment and document the training in the facility records.

(3) The training provided in accordance with paragraph (2) of this subsection must include:

(A) a nationally or locally recognized adult cardiopulmonary resuscitation (CPR) course or certification;

(B) first aid;

(i) safe body function and mechanics;

(ii) personal care techniques and procedures; and

(iii) overview of the population served at the facility;

(D) identification and reporting of abuse, neglect, or exploitation; and

(E) basic infection prevention and control measures.

(b) Continuing training.

(1) A facility must provide at least three hours of continuing training to direct service staff quarterly and document the training in the facility records. Training may include:

(A) assisting clients with personal care services;

(B) health conditions and diagnoses of clients in the facility and how they may affect provision of care;

(D) emergency first aid procedures, such as the Heimlich maneuver and actions to take when a client falls, suffers a laceration, or is experiencing a sudden change in physical or cognitive status;

(E) managing dysfunctional, disruptive, or maladaptive behavior and de-escalation techniques;

(F) client rights;

(G) communication techniques for working with clients with hearing, visual, or cognitive impairment;

(H) basic infection prevention and control measures; and

(I) fall prevention.

(2) A facility must practice evacuation procedures with staff and individuals at least once a month and document evacuation results in the facility records.

(3) The facility must ensure that direct service staff maintain current certification in CPR.

(c) Policy for clients with Alzheimer's disease or a related disorder. A facility must adopt, implement, and enforce a written policy that:

(1) requires direct service staff who provide care at the facility to a client with Alzheimer's disease or a related disorder to successfully complete training in the provision of care to clients with Alzheimer's disease or related disorders;

(2) ensures the care and services provided by direct service staff to a client with Alzheimer's disease or a related disorder meet the specific identified needs of the client relating to the diagnosis of Alzheimer's disease or a related disorder; and

(3) ensures the training required for direct service staff under paragraph (1) of this subsection includes information about:

(A) symptoms and treatment of dementia;

(B) stages of Alzheimer's disease;

(D) communication with a client with Alzheimer's disease or a related disorder.

§559.69.Medications.

(a) Administration.

(1) A facility must ensure that a person who administers medications to clients who choose not to or who cannot self-administer his or her medications holds a current license under applicable state law that authorizes the licensee to administer medications.

(2) A facility must ensure that all medication prescribed to a client that is administered at the facility is dispensed through a pharmacy or by the client's prescribing practitioner.

(3) A facility may administer sample medications at the facility if the medication has been prescribed to the client and includes specific dosage instructions for the client.

(4) A facility must record a client's medications on the client's medication profile record. The recorded information must be obtained from the prescription label and must include the medication name, strength, dosage, amount received, directions for use, route of administration, prescription number, pharmacy name, and date each medication was issued by the pharmacy.

(b) Assistance with self-administration. A nurse may assist with self-administration of a client's medication if the client is unable to administer the medication without assistance. Assistance with self-administration of medication is limited to:

(1) reminding the client to take medications at the prescribed time;

(2) opening and closing containers or packages;

(3) pouring prescribed dosage according to the client's medication profile record;

(4) returning medications to the proper locked areas;

(5) obtaining medications from a pharmacy; and

(6) listing on the client's medication profile record the medication name, strength, dosage, amount received, directions for use, route of administration, prescription number, pharmacy name, and the date each medication was issued by the pharmacy.

(1) A nurse must counsel a client who self-administers medication or treatment at least once per month to ascertain if the client continues to be able to self-administer the medication or treatment. The facility must keep a written record of the counseling.

(2) A facility may permit a client who chooses to keep the client's medication locked in the facility's central medication storage area to enter or have access to the area for the purpose of self-administering medication or treatment. A facility staff member must remain in or at the storage area the entire time the client is present in the area.

(d) General.

(1) A facility director, an activities director, or a facility nurse must immediately report to a client's prescribing practitioner and responsible party any unusual reactions to a medication or treatment.

(2) When a facility supervises or administers medications, the facility must document in writing if a client does not receive or take the medication and treatment as prescribed. The documentation must include the date and time the dose should have been taken and the name and strength of medication missed.

(e) Storage.

(1) A facility must provide a locked area for all medications, which may include:

(A) a central storage area; or

(B) a medication cart.

(2) A facility must store a client's medication separately from other clients' medications within the storage area.

(3) A facility must store medication requiring refrigeration in a locked refrigerator that is used only for medication storage or in a separate, permanently attached, locked medication storage box in a refrigerator.

(4) A facility must store poisonous substances and medications labeled for "external use only" separately from other substances within the locked area.

(5) A facility must store drugs covered by Schedule II of the Controlled Substances Act of 1970 in a locked, permanently attached cabinet, box, or drawer that is separate from the locked storage area for other medications.

(f) Disposal.

(1) In accordance with applicable federal and state laws, a facility must dispose of medication that:

(A) has been discontinued by order of the client's prescribing practitioner;

(B) remains after the client no longer attends the DAHS; or

(2) A facility must ensure the medication identified in paragraph (1) of this subsection is disposed by:

(A) a registered pharmacist licensed in the State of Texas;

(B) a local pharmacy on-site medication drop-off box; or

(3) A facility must inventory and store medications awaiting disposal separate from current client medications.

(4) A facility must dispose of needles and hypodermic syringes with needles attached as required by 25 TAC Chapter 1, Subchapter K (relating to the Definition, Treatment, and Disposition of Special Waste from Health Care-Related Facilities).

(5) A facility must obtain a signed receipt from the client or the client's responsible party if the facility releases medication to the client or responsible party.

§559.71.Accident, Injury, or Acute Illness.

(a) A facility must stock and maintain in a single location first aid supplies to treat burns, cuts, and poisoning.

(b) In the event of accident or injury to a client requiring emergency medical, dental, or nursing care, or in the event of death of a client, a facility must:

(1) arrange for emergency care or transfer of the client to an appropriate place for treatment, including:

(A) a physician's or practitioner's office;

(B) a clinic; or

(2) immediately notify the client's physician and responsible party or agency who admitted the client to the facility; and

(3) describe and document the accident, injury, or illness on a separate report. The report must contain a statement of final disposition and be maintained on file as required by §559.75 of this subchapter (relating to Client Records).

§559.73.Menus.

A facility that prepares meals on-site must:

(1) serve meals according to the menu;

(2) plan, date, post a menu at least two weeks in advance, maintain a copy of the menu; and

(3) ensure that a special diet meal ordered by a client's prescribing practitioner and developed by the dietician consultant is labeled with the client's name and type of diet.

§559.75.Client Records.

(a) Retention of Records. The retention of client records must comply with the following.

(1) Client records must be retained for five years after the client's services end.

(2) A facility must safeguard a client's records against loss, destruction, or unauthorized use.

(3) A facility must keep confidential all information contained in a client's records, except when release is:

(A) required by law or this chapter;

(B) to the client or client representative, where permitted by applicable law;

(D) for public health activities, reporting of abuse, neglect, or domestic violence, health oversight activities, judicial and administrative proceedings, law enforcement purposes, organ donation purposes, research purposes, or to coroners, medical examiners, funeral directors, or to avert a serious threat to health or safety as permitted by and in compliance with applicable law.

(b) Destruction of Records. When client records are destroyed after the retention period, the facility must shred or incinerate the records in a manner that protects confidentiality. At the time of destruction, the facility must document for each record destroyed:

(1) client name;

(2) client record number, if used;

(3) the client's social security number and date of birth, if available; and

(4) date and signature of the person carrying out disposal.

(1) upon an oral or written request to the facility, view all records pertaining to the client, within 24 hours (excluding weekends and holidays); and

(2) obtain hard copies of all or any portion of the records upon request within 48 hours (excluding weekends and holidays).

(d) Right of Refusal. A client does not have the right to refuse release of the client's records:

(1) when the client is transferred to another health care institution;

(2) when the record release is required by law or permitted by this chapter; or

(3) during surveys.

§559.77.Peer Review.

A facility must adopt and enforce a written policy to ensure that all professional disciplines comply with their professional practice acts or title acts relating to reporting and peer review.

§559.79.Emergency Preparedness and Response.

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

(1) Designated emergency contact--A person whom a client, or a client's representative, identifies in writing for the facility to contact in the event of a disaster or emergency.

(2) Disaster or emergency--An impending, emerging, or actual situation that:

(A) interferes with normal activities of a facility or its clients;

(B) may:

(i) cause injury or death to a client or staff member of the facility; or

(ii) cause damage to facility property;

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

(3) Emergency management coordinator (EMC)--The person appointed by the local mayor or county judge to plan, coordinate, and implement public health emergency preparedness planning and response within the local jurisdiction.

(4) Emergency preparedness coordinator (EPC)--The facility staff person with the responsibility and authority to direct, control, and manage the facility's response to a disaster or emergency.

(5) Plan--A facility's emergency preparedness and response plan.

(6) Risk assessment--The process of evaluating, documenting, and examining potential disasters or emergencies that pose the highest risk to the facility and assessing their foreseeable impacts based on the facility's geographical location, structural conditions, client needs and characteristics, and other influencing factors, to develop an effective emergency preparedness and response plan.

(b) Administration. A facility must:

(1) develop and implement a written plan as described in subsection (c) of this section;

(2) maintain a current printed copy of the plan that is accessible to all staff, clients, and client representatives at all times;

(3) evaluate and revise the plan as necessary:

(A) within 30 days after an emergency situation;

(B) as soon as possible after the remodeling or construction of an addition to the facility; and

(4) revise the plan within 30 days after information included in the plan changes.

(1) include a risk assessment of all potential internal and external emergency situations relevant to the facility operations and geographical area, such as a fire, failure of heating and cooling systems, a power outage, an explosion, a hurricane, a tornado, a flood, extreme snow and ice for the area, a wildfire, terrorism, or a hazardous materials accident;

(2) include a description of the facility's client population;

(3) include a description of the services and assistance needed by the clients in an emergency situation;

(4) include a section for each core function of emergency management, as described in subsection (d) of this section, that is based on a facility's decision to either shelter-in-place or evacuate during an emergency; and

(5) include a fire safety plan that complies with subsection (f) of this section.

(d) Plan requirements regarding eight core functions of emergency management.

(1) Direction and control. A facility's plan must contain a section for direction and control that:

(A) designates by name or title the emergency preparedness coordinator (EPC) who is the facility staff person with the authority to manage the facility's response to an emergency situation in accordance with the plan;

(B) designates by name or title the alternate EPC who is the facility staff person with the authority to act as the EPC if the EPC is unable to serve in that capacity;

(C) documents the name and contact information for the local EMC for the area where the facility is located, as identified by the office of the local mayor or county judge; and

(D) documents coordination with the local EMC as required by the local EMC's guidelines relating to emergency situations.

(2) Warning. A facility's plan must contain a section for warning that:

(A) describes how the EPC will be notified of an emergency situation;

(B) identifies who the EPC will notify of an emergency situation and when the notification will occur; and

(3) Communication. A facility's plan must contain a section for communication that:

(A) identifies the facility's primary mode of communication and alternate mode of communication to be used in the event of power failure or the loss of the facility's primary mode of communication in an emergency situation;

(B) includes procedures for maintaining a current list of telephone numbers for clients and responsible parties;

(C) includes procedures for maintaining a current list of telephone numbers for the facility's staff that also identifies the facility's EPC;

(D) identifies the location of the lists described in subparagraphs (B) and (C) of this paragraph where facility staff can obtain the lists quickly;

(E) includes procedures to notify:

(i) facility staff about an emergency situation;

(ii) the alternate location about an impending or actual evacuation of clients; and

(iii) clients, legally authorized representatives and other persons about an emergency situation;

(F) describes how the facility will provide, during an emergency situation, general information to the public, such as the change in the facility's location and hours, or that the facility is closed due to the emergency situation;

(G) includes procedures for the facility to maintain communication with:

(i) facility staff during an emergency situation;

(ii) an alternate location if applicable; and

(iii) facility staff who will transport clients to a secure location during an evacuation in a facility vehicle;

(H) includes procedures for reporting to HHSC an emergency situation that caused the death or serious injury of a client:

(i) by telephone, at 1-800-458-9858, within 24 hours after the death or serious injury; and

(ii) electronically via the online portal on the HHSC form titled HHSC Provider Investigation Report, within five working days after the facility makes the telephone report required by clause (i) of this subparagraph.

(4) Sheltering-in-place. A facility's plan must contain a section that includes procedures to shelter clients in place during an emergency situation.

(5) Evacuation. A facility's plan must contain a section for evacuation that:

(A) requires posting building evacuation routes prominently throughout the facility, except in small, one-story buildings where all exits are obvious;

(B) includes procedures for evacuating clients to a pre-arranged location in an emergency situation, if applicable;

(C) includes an agreement with an alternate location which must specify the arrangements for receiving clients in the event of an evacuation;

(D) identifies primary and alternate evacuation destinations and routes, and includes a map that shows the destination and routes;

(E) includes procedures for:

(i) ensuring facility staff accompany evacuating clients;

(ii) ensuring that all persons present in the building have been evacuated;

(iii) accounting for clients and staff after they have been evacuated;

(iv) accounting for clients who are absent from the facility at the time of the evacuation;

(v) contacting the local EMC, if required by the local EMC guidelines, to find out if it is safe to return to the geographical area; and

(vi) determining if it is safe to re-enter and occupy the building after an evacuation;

(F) includes procedures for notifying the local EMC regarding an evacuation of the facility, if required by the local EMC guidelines;

(G) includes procedures for notifying HHSC by telephone, at 1-800-458-9858, within 24 hours after an evacuation that clients have been evacuated;

(H) includes procedures for notifying the HHSC Regulatory Services Regional Office for the area in which the facility is located, by telephone, as soon as safely possible after a decision to evacuate is made; and

(I) includes procedures for notifying the HHSC Regulatory Services Regional Office for the area in which the facility is located, by telephone, that clients have returned to the facility after an evacuation, within 48 hours after their return.

(6) Transportation. A facility's plan must contain a section for transportation that:

(A) provides for a sufficient number of vehicles that are safe and suitable for any special needs of the clients or requires that the facility maintain a contract for transporting clients during an evacuation;

(B) identifies facility staff authorized to drive a vehicle during an evacuation;

(C) establishes alternate transportation arrangements if the vehicles or contracted transportation described in subparagraph (A) of this paragraph are not available;

(D) includes procedures for safely transporting oxygen tanks currently being used by clients and any extra oxygen tanks that may be needed during an evacuation; and

(E) includes procedures that will ensure:

(i) safe transport of records, food, water, equipment, and supplies needed during an evacuation; and

(ii) that the records, food, water, equipment, and supplies, described in clause (i) of this subparagraph, arrive at the alternate location at the same time as the clients.

(7) Health and medical needs. A facility's plan must contain a section for client health and special needs that:

(A) identifies all the facility's special needs clients including clients with conditions requiring assistance during an evacuation; and

(B) ensures the needs of those clients are met during an emergency.

(8) Resource management. A facility's plan must contain a section for resource management that:

(A) includes procedures for accessing medications, records, food, water, equipment and supplies needed during an emergency;

(B) identifies facility staff who are assigned to locate and ensure the transportation of items described in subparagraph (A) of this paragraph during an emergency situation; and

(C) includes procedures to ensure medications are secure and stored at the proper temperatures during an emergency situation.

(e) Training. A facility must:

(1) train all staff on their responsibilities under the plan when hired in accordance with §559.67 of this subchapter (relating to Training);

(2) retrain staff at least annually on the staff member's responsibilities under the plan and when the staff member's responsibilities under the plan change; and

(3) conduct unannounced drills with facility staff for severe weather and other emergency situations identified by the facility as likely to occur, based on the results of the risk assessment required by subsection (c)(1) of this section.

(f) Fire safety plan. A facility's fire safety plan must:

(1) include the provisions described in the Operating Features section of the NFPA 101 Life Safety Code, 2000 Edition, Chapter 16 (relating to New Day-Care Occupancies) and Chapter 17 (relating to Existing Day-Care Occupancies), concerning:

(A) use of alarms;

(B) transmission of alarms to the fire department;

(D) isolation of fire;

(E) evacuation of immediate area;

(F) evacuation of smoke compartment;

(G) preparation of floors and building for evacuation; and

(H) fire extinguishment;

(2) include procedures to contact HHSC by telephone, at 1-800-458-9858, within 24-hours after a fire in accordance with §559.42 of this chapter (relating to Safety); and

(3) include procedures to submit to HHSC, within 15 days after the fire, the form Fire Report for Long Term Care Facilities;

(4) include in the fire safety plan the provisions described in the Operating Features section of the NFPA 101 Life Safety Code, 2000 Edition, Chapter 16 and Chapter 17 concerning drills and inspections, except as superseded by this section; and

(5) establish procedures to:

(A) perform a monthly fire drill with all occupants of the building at expected and unexpected times and under varying conditions;

(B) relocate, during the monthly fire drill, all occupants of the building to a predetermined location where participants must remain until a recall or dismissal signal is given;

(D) conduct a monthly fire prevention inspection performed by a trained and senior member of the facility and prepare a report of the inspection results;

(E) maintain copies of the fire prevention inspection report, described in subparagraph (D) of this paragraph, that were prepared by the facility within the last 12 months; and

(F) post a copy of the most recent fire prevention inspection report, described in subparagraph (D) of this paragraph, in a conspicuous place in the facility.

(g) Emergency Response System.

(1) The facility director and designee must enroll in an emergency communication system in accordance with instructions from HHSC.

(2) The facility must respond to requests for information received through the emergency communication system in the format established by HHSC.

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-202400840

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 7, 2024

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

SUBCHAPTER D. LICENSURE AND PROGRAM REQUIREMENTS

26 TAC §559.61 - 559.64

STATUTORY AUTHORITY

The repeals implement Texas Government Code §531.0055 and Texas Human Resources Code, Chapter 103.

§559.61.General Requirements.

§559.62.Program Requirements.

§559.63.Peer Review.

§559.64.Emergency Preparedness and Response.

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-202400841

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 7, 2024

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

SUBCHAPTER E. INSPECTIONS, SURVEYS, AND VISITS

26 TAC §§559.81, 559.83, 559.85, 559.87

STATUTORY AUTHORITY

The amendment and new sections implement Texas Government Code §531.0055 and Texas Human Resources Code, Chapter 103.

§559.81.Procedural Requirements.

(a) HHSC may enter the premises of a facility at reasonable times and make an inspection necessary to issue a license or renew a license. HHSC inspection and survey personnel [~~will~~] perform inspections and surveys, follow-up visits, complaint investigations, investigations of abuse or neglect, and other contact visits as required for carrying out the responsibilities of licensing.

~~[(b) An inspection may be conducted by a surveyor.]~~

(b) [~~(c)~~] Generally, all inspections, surveys, complaint investigations, and other visits, whether routine or nonroutine, made for the purpose of determining the appropriateness of client care and day-to-day operations of a facility are [~~will be~~] unannounced. Any exceptions must be justified.

(c) [~~(d)~~] Certain visits may be announced, including initial architectural inspections, visits to determine the progress of physical plant construction or repairs, equipment installation or repairs, systems installation or repairs, or conditions when certain emergencies arise, such as fire, windstorm, or malfunctioning or nonfunctioning of electrical or mechanical systems.

(d) [~~(e)~~] Any person may request an inspection of a facility by notifying HHSC [~~in writing~~] of an alleged violation of a licensing requirement. The complaint should [~~shall~~] be as detailed as possible and signed by the complainant; however, HHSC does investigate anonymous complaints. Unless a complaint is anonymous, HHSC responds to the complainant in writing but without the outcome of the investigation. [HHSC performs an on-site inspection as soon as feasible but no later than 30 days after receiving the complaint, unless after an investigation the complaint is found to be frivolous. HHSC will respond to the complainant in writing.]

(e) If the complaint alleges abuse, neglect, or exploitation, HHSC performs an inspection as soon as feasible but not later than the 14th day after the date HHSC receives the complaint, unless after an investigation the complaint is found to be frivolous. If the complaint does not allege abuse, neglect, or exploitation, HHSC investigates the complaint not later than the 45th day after the date HHSC receives the complaint.

~~[(f) HHSC will receive and investigate anonymous complaints.]~~

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

(1) HHSC is authorized to photocopy documents, photograph clients, and use any other available recording devices to preserve all relevant evidence of conditions found during an inspection, survey, or investigation [~~that HHSC reasonably believes threaten the health and safety of a client~~].

(2) Examples of records and documents that may be requested and photocopied or otherwise reproduced are client medical records, including nursing notes, pharmacy records, medication records, and prescribing practitioner's [~~physician's~~] orders.

(3) The facility may charge HHSC at a rate not to exceed the rate HHSC charges for copies. The procedure of copying is the responsibility of the director or his or her designee. If copying requires that the records be removed from the facility, a representative of the facility is expected to accompany the records and ensure [~~assure~~] their order and preservation.

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

(5) If a facility maintains electronic records, it must have a mechanism for printing all documentation if a surveyor or investigator requests a printed copy.

(g) [~~(h)~~] HHSC does not reveal the [~~The~~] source of a [~~the~~] complaint [~~is not revealed~~].

(h) [~~(i)~~] HHSC inspects a facility at least once every two years after the initial inspection.

§559.83.Determinations and Actions Pursuant to Inspections.

(a) HHSC determines if a facility meets the licensing rules, including both physical plant and facility operation requirements.

(b) Violations of regulations are listed on forms designed for the purpose of the inspection.

(c) At the conclusion of an inspection or survey, any violations are discussed in an exit conference with the facility's management. HHSC leaves s written list of violations with the facility at the time of the exit conference.

(d) If additional violations are cited after the initial exit conference, the violations are communicated to the facility within 10 working days after the initial exit conference.

(e) HHSC provides a clear and concise written summary in nontechnical language of each licensure inspection, inspection of care, and complaint investigation. The summary outlines significant violations noted at the time of the inspection or survey but does not include names of clients, staff, or any other information that would identify individual clients or other prohibited information under general rules of public disclosure. The summary is provided to the facility at the time the report of contact or similar document is provided.

(f) Upon receipt of the final statement of violations, the facility has 10 working days to submit an acceptable plan of correction to the HHSC Regulatory Services Regional Office director. An acceptable plan of correction must address:

(1) how the facility will accomplish the corrective action for those clients affected by each violation;

(2) how the facility will identify other clients with the potential to be affected by the same violation;

(3) how the facility will put the corrective measure into practice or make systemic changes to ensure that the violation does not recur;

(4) how the facility will monitor the corrective action to ensure that the violation is corrected and will not recur; and

(5) the date the corrective action will be completed.

(g) If the facility disagrees with a survey finding regarding a violation of regulations, the facility is entitled to an informal dispute resolution (IDR) for the violation.

(1) The facility must request an IDR by submitting all supporting documentation to HHSC Regulatory Enforcement no later than the tenth day after receipt of the official statement of violations.

(2) HHSC completes the IDR process no later than the 30th day after receipt of a request from a facility.

(3) HHSC notifies the facility of the results of the IDR process in writing, and violations deemed invalid in the IDR are so noted in HHSC's records.

§559.85.Referrals to the Attorney General.

HHSC may refer a facility to the attorney general who may petition a district court for:

(1) a temporary restraining order to restrain a person from a violation or threatened violation of the requirements or any other law affecting clients if HHSC reasonably believes that the violation or threatened violation creates an immediate threat to the health and safety of a client; and

(2) an injunction to restrain a person from a violation or threatened violation of the requirements or any other law affecting clients if HHSC reasonably believes that the violation or threatened violation creates a threat to the health and safety of a client.

§559.87.Procedures for Inspection of Public Records.

(a) Procedures for inspection of public records are in accordance with Texas Government Code, Chapter 552, and as further described in this section.

(b) The HHSC Regulatory Services Division is responsible for the maintenance and release of records on licensed facilities and other related records.

(1) The application must be made to Regulatory Services, Texas Health and Human Services Commission, Mail Code E-349, P.O. Box 149030, Austin, Texas 78714-9030.

(2) The requester must identify himself or herself.

(3) The requester must specify the records requested.

(4) On written applications, if HHSC is unable to ascertain what records are being requested, HHSC may return the written application to the requester for clarification.

(5) HHSC provides the requested records as soon as possible; however, if the records are in active use, or in storage, or time is needed for proper de-identification or preparation of the records for inspection, HHSC so advises the requester and sets an hour and date within a reasonable time when the records will be available.

(d) Original records may be inspected or copied, but in no instance will original records be removed from HHSC offices.

(e) HHSC Regulatory Services charges for copies of records requested.

(1) If the requester wants to inspect records without requesting copies, the requester specifies the records to be inspected. HHSC does not charge this service, unless the director of HHSC Regulatory Services determines a charge is appropriate based on the nature of the request.

(2) If the requester wants copies of a record, the requester specifies in writing the records to be copied on an appropriate HHSC form, and HHSC completes the form by specifying the cost of the records, which the requester must pay in advance. Checks and other instruments of payment must be made payable to the Texas Health and Human Services Commission.

(3) Any expenses for standard-size copies incurred in the reproduction, preparation, or retrieval of records must be borne by the requester on a cost basis in accordance with costs established by the Office of the Attorney General or HHSC for office machine copies. All applicable sales taxes are added to the cost of copying records.

(4) For documents that are mailed, HHSC charges for postage at the time it charges for the production.

(5) When a request involves information pertaining to multiple facilities, HHSC may consider each facility's information a separate request.

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-202400842

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 7, 2024

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

26 TAC §§559.82 - 559.84

STATUTORY AUTHORITY

The repeals implement Texas Government Code §531.0055 and Texas Human Resources Code, Chapter 103.

§559.82.Determinations and Actions Pursuant to Inspections.

§559.83.Referrals to the Attorney General.

§559.84.Procedures for Inspection of Public Records.

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-202400843

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 7, 2024

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

SUBCHAPTER F. ABUSE, NEGLECT, AND EXPLOITATION: COMPLAINT AND INCIDENT REPORTS AND INVESTIGATIONS

26 TAC §§559.91, 559.93, 559.95, 559.97, 559.99

STATUTORY AUTHORITY

The amendment and new sections implement Texas Government Code §531.0055 and Texas Human Resources Code, Chapter 103.

§559.91.Definitions of Abuse, Neglect, and Exploitation.

For purposes of this subchapter, the definitions of abuse, neglect, and exploitation are those found in Chapter 48, Human Resources Code, and §559.3 [~~§98.1~~] of this chapter [~~title~~] (relating to Definitions).

§559.93.Abuse, Neglect, or Exploitation Reportable to HHSC by Facilities.

(a) Any facility staff who has reasonable cause to believe that a client is experiencing abuse, neglect, or exploitation must report the abuse, neglect, or exploitation to HHSC's state office at 1-800-458-9858 immediately and must follow the facility's internal policies regarding abuse, neglect, or exploitation.

(b) The following information must be reported to HHSC:

(1) name, age, and address of the client;

(2) name and address of the person responsible for the care of the client, if available;

(3) nature and extent of the elderly or disabled person's condition;

(4) basis of the reporter's knowledge; and

(5) any other relevant information.

(c) The facility must investigate the alleged abuse, neglect, or exploitation and submit a written report of the investigation electronically via the online portal to HHSC no later than the fifth day after the oral report and be available for inspection by HHSC.

§559.95.Complaint Investigation.

(a) A complaint is any allegation received by HHSC regarding abuse, neglect, or exploitation of a client or a violation of state standards.

(b) HHSC must give the facility notification of the complaint received and a summary of the complaint, without identifying the source of the complaint.

§559.97.Investigations of Complaints.

(a) HHSC only investigates complaints of abuse, neglect, or exploitation when the act occurs in the facility, the licensed facility is responsible for the supervision of the client at the time the act occurs, or the alleged perpetrator is affiliated with the facility. HHSC refers complaints of abuse, neglect, or exploitation not meeting these criteria to the Texas Department of Family and Protective Services.

(b) Complaint investigations must include a visit to the facility and consultation with persons thought to have knowledge of the relevant circumstances. If the facility fails to admit HHSC staff for a complaint investigation, HHSC seeks a probate or county court order for admission. Investigators may request of the court that a peace officer accompany them during investigations.

(c) In cases concluded to be physical abuse, HHSC submits the written report of the investigation to the appropriate law enforcement agency.

(d) In cases concluded to be abuse, neglect, or exploitation of a client with a guardian, HHSC submits the written report of the investigation to the probate or county court that oversees the guardianship.

§559.99.Confidentiality.

All reports, records, communications, and working papers used or developed by HHSC in an investigation are confidential and may be released only as provided in this section.

(1) HHSC may furnish the final written investigation report on cases to the district attorney and law enforcement agencies exercising jurisdiction if the investigation reveals abuse that is a criminal offense. HHSC may provide to another state agency or governmental entity information that is necessary for HHSC, the state agency, or entity to properly execute its duties and responsibilities to provide services to the elderly or disabled.

(2) HHSC may release the final written investigation report to the public upon request provided the report is de-identified to remove all names and other personally identifiable data, including any information from witnesses and other person furnished to HHSC as part of the investigation.

(3) HHSC notifies the reporter and the facility of the results of HHSC's investigation of a reported case of abuse, neglect, or exploitation, regardless of whether HHSC concluded that abuse, neglect, or exploitation occurred or did not occur.

(4) Upon the written request of the person who is the subject of a report of abuse, neglect, or exploitation, his or her legal representative, or the personal representative of the person's estate if he or she is deceased, HHSC releases to the person or the representative otherwise confidential information relating to the final report. The request must specify the information desired and be signed and dated by the person making the request. A legal representative or personal representative must also specify the reason the information is requested and include with the request sufficient documentation to establish his or her authority as the representative. HHSC edits the information requested before release to protect the confidentiality of information related to the reporter's identify and to protect any other individual whose safety or welfare may be endangered by disclosure.

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-202400844

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 7, 2024

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

26 TAC §§559.92 - 559.95

STATUTORY AUTHORITY

The repeals implement Texas Government Code §531.0055 and Texas Human Resources Code, Chapter 103.

§559.92.Abuse, Neglect, or Exploitation Reportable to DADS by Facilities.

§559.93.Complaint Investigation.

§559.94.Investigations of Complaints.

§559.95.Confidentiality.

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-202400845

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 7, 2024

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

SUBCHAPTER G. ENFORCEMENT

26 TAC §§559.101, 559.103, 559.105, 559.107

STATUTORY AUTHORITY

The new sections implement Texas Government Code §531.0055 and Texas Human Resources Code, Chapter 103.

§559.101.Nonemergency Suspension.

(a) HHSC may suspend a facility's license when the facility's violation of the licensure rules threatens to jeopardize the health and safety of clients.

(b) Suspension of a license may occur simultaneously with any other enforcement provision available to HHSC.

(c) HHSC notifies the facility of its intent to suspend the license, including the facts or conduct alleged to warrant the suspension. The facility has an opportunity to show compliance with all requirements of law for retention of the license as provided in §559.33 of this chapter (relating to Opportunity to Show Compliance). If the facility requests an opportunity to show compliance, HHSC gives the license holder a written affirmation or reversal of the proposedaction.

(d) HHSC notifies the facility of a suspension of the facility's license. If HHSC suspends a facility's license, the licensee may request a formal appeal by following HHSC's formal hearing procedures in 1 TAC Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act). A formal administrative hearing is conducted in accordance with Texas Government Code, Chapter 2001, and the formal hearing procedures in 1 TAC Chapter 357, Subchapter I. The suspension takes effect when the deadline for appeal of the suspension passes unless the facility appeals the suspension. If the facility appeals the suspension, the status of the license holder is preserved until final disposition of the contested matter. The license holder must return the license to HHSC within 72 hours of passing the appeal deadline or, if an appeal is filed, the final disposition of the appeal.

(e) The suspension remains in effect until HHSC determines that the reason for suspension no longer exists. A suspension may last no longer than the term of the license. HHSC conducts an on-site investigation before making a determination to lift a suspension.

§559.103.Revocation.

(a) HHSC may revoke a facility's license when the license holder has violated the requirements of Texas Human Resources Code, Chapter 103.

(b) In addition, HHSC may revoke a license if the licensee:

(1) submitted false or misleading statements in the application for a license or any accompanying attachments;

(2) used other evasive means to obtain the license;

(3) concealed a material fact in the application for a license or failed to disclose information required in §559.19 of this chapter (relating to Applicant Disclosure Requirements) that would have been the basis to deny the license under §559.31 of this chapter (relating to Criteria for Denying a License or Renewal of a License); or

(4) violated the rules adopted under this chapter.

(d) HHSC notifies the facility of its intent to revoke the license, including the facts or conduct alleged to warrant the revocation. The facility has an opportunity to show compliance with all requirements of law for retention of the license as provided in §559.33 of this title (relating to Opportunity to Show Compliance). If the facility requests an opportunity to show compliance, HHSC gives the license holder a written affirmation or reversal of the proposed action.

(e) If HHSC revokes a facility's license, the licensee may request a formal appeal by following the HHSC's formal hearing procedures in 1 TAC Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act). A formal administrative hearing is conducted in accordance with the formal hearing procedures in 1 TAC Chapter 357, Subchapter I. If the facility appeals the revocation, the status of the license holder is preserved until final disposition of the contested matter. The license holder must return the license to HHSC within 72 hours of passing the appeal deadline or, if an appeal is filed, final disposition of the appeal.

§559.105.Emergency Suspension and Closing Order.

(a) HHSC suspends a facility's license or orders an immediate closing of part of the facility if:

(1) HHSC finds that the facility is operating in violation of the licensure rules; and

(2) the violation creates an immediate threat to the health and safety of a client.

(b) The order suspending a license or closing a part of a facility under this section is immediately effective on the date the license holder receives a written notice or on a later date specified in the order.

(c) The order suspending a license or ordering an immediate closing of a part of the facility is valid for ten days after the effective date of the order.

(d) A licensee whose facility is closed under this section is entitled to request a formal administrative hearing under HHSC's formal hearing procedures in 1 TAC Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act), but a request for an administrative hearing does not suspend the effectiveness of the order.

(e) When an emergency suspension has been ordered and the conditions in the facility indicate that clients should be relocated, the following requirements apply.

(1) In all circumstances, a client's rights and freedom of choice in selecting another DAHS must be respected.

(2) If a facility or part thereof is closed, the following procedures must be followed.

(A) HHSC notifies the local health department director, city or county health authority, and representatives of the appropriate state agencies of the closure.

(B) The facility staff must notify each client's guardian or responsible party and attending physician, advising them of the action in process.

(C) The client or client's guardian or responsible party must be given opportunity to designate a preference for another specific facility or for other arrangements.

(D) HHSC arranges for relocation to another facility in the area in accordance with the client's preference. A facility chosen for relocation must be in good standing with HHSC and, if certified under Titles XVIII and XIX of the United States Social Security Act, must be in good standing under its contract. The facility chosen must be able to meet the needs of the client.

(E) If necessary to prevent the transport of a client over a substantial distance, HHSC may grant a waiver to a receiving facility to temporarily exceed its licensed capacity, provided the health and safety of clients is not compromised and the facility can meet the increased demands for direct service staff and dietary services. A facility may exceed its licensed capacity under these circumstances, monitored by HHSC staff, until clients can be transferred to a permanent location.

(F) With each client transferred, the following reports, records, and supplies must be transmitted to the receiving institution:

(i) a copy of the current prescribing practitioner's orders for medication, treatment, diet, and special services required;

(ii) personal information such as the name and address of the next of kin, guardian, or responsible party for the client; attending physician; Medicare and Medicaid identification number; social security number; and other identifying information as deemed necessary and available; and

(iii) all medication dispensed in the name of the client for which prescribing practitioner's orders are current. These must be inventoried and transferred with the client.

(G) If the closed facility is allowed to reopen within 90 days, the relocated clients have the first right to return to the facility. Relocated clients may choose to return, to stay in the receiving facility (if the facility is not exceeding its licensed capacity), or any other available accommodations.

(H) Any return to the facility must be treated as a new admission, including exchange of medical information, medications, and completion of required forms.

§559.107.Administrative Penalties.

(a) HHSC may assess an administrative penalty if a facility:

(1) violates Texas Human Resources Code, Chapter 103, a rule, standard, or order adopted under this chapter, or a term of a license issued under this chapter;

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

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

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

(3) refuses to allow an HHSC representative to inspect:

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

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

(4) willfully interferes with the work of a representative of HHSC or the enforcement of this chapter;

(5) willfully interferes with an HHSC representative who is preserving evidence of a violation of Texas Human Resources Code, Chapter 103, a rule adopted under this chapter, or a term of a license issued under this chapter;

(6) fails to pay a penalty assessed under Texas Human Resources Code, Chapter 103, or a rule adopted under this chapter not later than the 30th day after the date the assessment of the penalty becomes final; or

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

(b) HHSC assesses administrative penalties against a facility in accordance with the schedule of appropriate and graduated penalties established in this section. To determine the amount of an administrative penalty, HHSC considers:

(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the situation, and the hazard or potential hazard created by the situation to the health or safety of the public;

(2) the history of previous violations by a facility;

(3) the amount necessary to deter future violations;

(4) the facility's efforts to correct the violation; and

(5) any other matter that justice may require.

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

(d) The administrative penalty schedule includes violations that warrant an administrative penalty.

Figure: 26 TAC §559.107(d) (.pdf)

(e) HHSC may not collect an administrative penalty from a facility if, not later than the 45th day after the date, the facility receives notice under subsection (j) of this section, the facility corrects the violation to the satisfaction of HHSC.

(f) Subsection (e) of this section does not apply to:

(1) a violation that HHSC determines is:

(A) a pattern of violation that results in actual harm;

(B) widespread in scope and results in actual harm;

(i) staffing, including staff ratio, health, and training under §559.61 of this chapter (relating to Staffing Ratio and Hours), §559.63 of this chapter (relating to Infection Prevention and Control), and §559.67 of this chapter (relating to Training);

(ii) administration of medication under §559.69 of this chapter (relating to Medications); or

(iii) emergency preparedness and response under §559.79 of this chapter (relating to Emergency Preparedness and Response);

(D) an immediate threat to the health or safety of an elderly person or a person with a disability receiving services at a facility; or

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

(2) a violation described by subsection (a)(2) - (7) of this section;

(3) a violation of Texas Human Resources Code, Chapter 102; or

(4) a second or subsequent violation of §559.67(c) of this chapter that occurs before the second anniversary of the date of a previous violation of §559.67(c) of this chapter.

(g) A facility that corrects a violation must maintain the correction. If the facility fails to maintain the correction until at least the first anniversary after the date the correction was made, HHSC may assess and collect an administrative penalty for the subsequent violation. An administrative penalty assessed under this subsection is equal to three times the amount of the original penalty assessed but not collected. HHSC is not required to provide the facility with an opportunity to correct the subsequent violation.

(h) HHSC issues a preliminary report stating the facts on which HHSC concludes that a violation has occurred after HHSC has:

(1) examined the possible violation and facts surrounding the possible violation; and

(2) concluded that a violation has occurred.

(i) In the report, HHSC may recommend the assessment of an administrative penalty for each violation and the amount of the administrative penalty.

(j) HHSC provides a written notice of a preliminary report to the facility not later than 10 days after the date HHSC issues the preliminary report. The written notice includes:

(1) a brief summary of each violation;

(2) the amount of each recommended administrative penalty;

(3) a statement of whether a violation is subject to correction in accordance with subsection (e) of this section and, if the violation is subject to correction, a statement of:

(A) the date on which the facility must file with HHSC a plan of correction for approval by HHSC;

(B) the date on which the facility must complete the plan of correction to avoid assessment of the administrative penalty; and

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

(k) Not later than 20 days after the date on which a facility receives a written notice of a preliminary report, the facility may:

(1) give HHSC written notice that the facility agrees with HHSC report and consents to the recommended penalty; or

(2) make a written request for an administrative hearing.

(l) If a violation is subject to correction under subsection (e) of this section, the facility must submit a plan of correction to HHSC for approval not later than 10 days after the date on which the facility receives the written notice.

(m) If a violation is subject to correction, and the facility reports to HHSC that the violation has been corrected, HHSC inspects the correction or takes any other step necessary to confirm the correction and notify the facility that:

(1) the correction is satisfactory and HHSC will not assess an administrative penalty; or

(2) the correction is not satisfactory and HHSC recommends an administrative penalty.

(n) Not later than 20 days after the date on which a facility receives a notice that the correction is not satisfactory and HHSC recommends an administrative penalty, the facility may:

(1) give HHSC written notice that the facility agrees with HHSC's determination and consents to the recommended administrative penalty; or

(2) make a written request to HHSC for an administrative hearing.

(o) If a facility consents to the recommended administrative penalty or does not timely respond to a notice sent under subsection (j) of this section, the executive commissioner or designee assesses the recommended administrative penalty. If the executive commissioner or designee assesses the penalty, HHSC gives written notice of the penalty to the facility and the facility must pay the penalty within 30 days after receiving the notice.

(p) An administrative hearing is held in accordance with Chapter 110 of this title (relating to Hearings Under the Administrative Procedure Act) and HHSC rules at 1 TAC Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act).

(q) An administrative law judge sets a hearing and gives notice of the hearing if a facility that is assessed a penalty requests a hearing.

(r) The hearing is held before an administrative law judge who makes findings of fact and conclusions of law regarding the occurrence of a violation under Texas Human Resources Code, Chapter 103, a rule adopted under this chapter, or a term of a license issued under this chapter.

(s) Based on the findings of fact and conclusions of law and the recommendation of the administrative law judge, the executive commissioner or designee, by order, finds:

(1) a violation has occurred and assesses an administrative penalty; or

(2) a violation has not occurred.

(t) The executive commissioner or designee provides notice of the findings made under subsection (s) of this section to the facility charged with a violation. If the executive commissioner finds that a violation has occurred, the executive commissioner or designee provides written notice to the facility of:

(1) the findings;

(2) the amount of the administrative penalty;

(3) the rate of interest payable on the penalty and the date on which interest begins to accrue; and

(4) the facility's right to judicial review of the order of the executive commissioner.

(u) Not later than the 30th day after the date on which the order of the executive commissioner or designee is final, the facility assessed an administrative penalty must:

(1) pay the full amount of the penalty; or

(2) file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both.

(v) Notwithstanding subsection (o) of this section, HHSC may permit a facility to pay an administrative penalty in installments.

(w) If a facility does not pay an administrative penalty within the period provided by subsection (o) or (u) of this section or in accordance with the installment plan permitted by HHSC:

(1) the penalty is subject to interest; and

(2) HHSC may refer the matter to the attorney general for collection of the penalty and interest.

(x) Interest accrues:

(1) at a rate equal to the rate charged on loans to depository institutions by the New York Federal Reserve Bank; and

(2) for the period beginning on the day after the date on which the penalty becomes due and ending on the date the penalty is paid.

(y) If the amount of a penalty is reduced or the assessment of a penalty is not upheld on judicial review, the executive commissioner or designee must:

(1) remit to the facility the appropriate amount of any penalty payment plus accrued interest; or

(2) execute a release of the supersedeas bond if one has been posted.

(z) Accrued interest on the amount remitted by the executive commissioner or designee must be paid:

(1) at a rate equal to the rate charged on loans to depository institutions by the New York Federal Reserve Bank; and

(2) for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted to the facility.

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-202400846

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 7, 2024

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

26 TAC §§559.102 - 559.105

STATUTORY AUTHORITY

The repeals implement Texas Government Code §531.0055 and Texas Human Resources Code, Chapter 103.

§559.102.Nonemergency Suspension.

§559.103.Revocation.

§559.104.Emergency Suspension and Closing Order.

§559.105.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-202400847

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 7, 2024

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