Revision 13-1

 

 

§98.102 Nonemergency Suspension

 

(a) DADS 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 DADS.

(c) The facility will be notified by certified mail of DADS' 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 the retention of the license as provided in §98.20 of this title (relating to Opportunity to Show Compliance). If the facility requests an opportunity to show compliance, DADS will give the license holder a written affirmation or reversal of the proposed action.

(d) The facility will be notified by certified mail of DADS' suspension of the facility's license. If DADS suspends a facility'slicense, the licensee may request a formal appeal by following the Health and Human Services Commission's formal hearing procedures in 1 TAC Chapter 357, Subchapter I. 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 will take 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.

(e) The suspension will remain in effect until DADS determines that the reason for suspension no longer exists. A suspension may last no longer than the term of the license. DADS will conduct an on-site investigation before making a determination. During the suspension, the license holder must return the license to DADS.

 

§98.103 Revocation

 

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

(b) In addition, DADS 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 subterfuge or 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 §98.13 of this title (relating to Applicant Disclosure Requirements) that would have been the basis to deny the license under §98.19 of this title (relating to Criteria for Denying a License or Renewal of a License); or

(4) violated the requirements of the Texas Human Resources Code, Chapter 103, or the rules adopted under this chapter

(c) Revocation of a license may occur simultaneously with any other enforcement provision available to DADS.

(d) The facility will be notified by certified mail of DADS' 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 the retention of the license as provided in §98.20 of this title (relating to Opportunity to Show Compliance). If the facility requests an opportunity to show compliance, DADS will give the license holder a written affirmation or reversal of the proposed action.

(e) If DADS revokes a facility's license, the licensee may request a formal appeal by following the Health and Human Services Commission's formal hearing procedures in 1 TAC Chapter 357, Subchapter I. 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.

 

§98.104 Emergency Suspension and Closing Order

 

(a) DADS will suspend a facility's license or order an immediate closing of part of the facility if:

(1) DADS 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 hand-delivered 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 10 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 the Health and Human Services Commission's formal hearing procedures in 1 TAC, Chapter 357, Subchapter I, 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 apply:

(1) In all circumstances, a client's rights or freedom of choice in selecting an adult day care facility must be respected.

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

(A) DADS will notify 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 a specific facility or for other arrangements.

(D) DADS will arrange for relocation to other facilities in the area in accordance with the client's preference. A facility chosen for relocation must be in good standing with DADS 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 absolutely necessary, to prevent transport over substantial distances, DADS will 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 care personnel and dietary services. A facility may exceed its licensed capacity under these circumstances, monitored by DADS 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 physician's orders for medication, treatment, diet and special services required;

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

(iii) all medication dispensed in the name of the client for which physician'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, may stay in the receiving facility (if the facility is not exceeding its licensed capacity) or choose any other 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.

 

§98.105 Administrative Penalties

 

(a) DADS may assess an administrative penalty if an adult day care facility:

(1) violates Texas Human Resources Code (THRC) 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 DADS;

(3) refuses to allow a DADS representative to inspect:

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

(B) any portion of the premises of an adult day care facility;

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

(5) willfully interferes with a DADS representative who is preserving evidence of a violation of THRC 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 THRC 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 DADS of a change of ownership before the effective date of the change of ownership.

(b) DADS assesses administrative penalties against an adult day care facility in accordance with the schedule of appropriate and graduated penalties established in this section. DADS considers the following in determining the amount of an administrative penalty:

(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 on each successive day until it is corrected. The date of correction alleged by the facility in its written plan of correction will be presumed to be the actual date of correction unless it is later determined by DADS 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: 40 TAC §98.105(d)

(e) DADS may not collect an administrative penalty from an adult day care 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.

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

(1) a violation that DADS determines:

(A) results in serious harm to or death of a person attending the adult day care facility;

(B) constitutes a serious threat to the health and safety of a person attending the facility; or

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

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

(3) a violation of THRC Chapter 102.

(g) An adult day care 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, DADS 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. DADS is not required to provide the facility with an opportunity to correct the subsequent violation.

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

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

(2) concluded that a violation has occurred.

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

(j) DADS provides a written notice of a preliminary report to the adult day care facility not later than 10 days after the date DADS 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 statment of:

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

(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 an adult day care facility receives a written notice of a preliminary report, the facility may:

(1) give DADS written notice that the facility agrees with DADS 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 adult day care facility must submit a plan of correction to DADS 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 adult day care facility reports to DADS that the violation has been corrected, DADS inspects the correction or takes any other step necessary to confirm the correction and notify the facility that:

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

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

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

(1) give DADS written notice that the facility agrees with DADS determination and consents to the recommended administrative penalty; or

(2) make a written request to the Texas Health and Human Services Commission (HHSC) for an administrative hearing.

(o) If an adult day care facility consents to the recommended administrative penalty or does not timely respond to a notice sent under subsection (j) of this section (written notice of the preliminary report), the DADS commissioner or commissioner's designee assesses the recommended administrative penalty. If the DADS commissioner or commissioner's designee assesses the penalty, DADS 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 91 of this title (relating to Hearings Under the Administrative Procedure Act) and HHSC rules at 1 Texas Administrative Code, 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 an adult day care 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 THRC 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 DADS commissioner or commissioner's designee, by order, finds:

(1) a violation has occurred and assesses an administrative penalty; or

(2) a violation has not occurred.

(t) DADS commissioner or the commissioner's designee provides notice of the findings made under subsection (s) of this section to the adult day care facility charged with a violation. If the DADS commissioner finds that a violation has occurred, the commissioner or commissioner's 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 commissioner.;

(u) Not later than the 30th day after the date on which the order of the DADS commissioner or commissioner's designee is final, the adult day care 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, DADS may permit an adult day care facility to pay an administrative penalty in installments.

(w) If an adult day care 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 DADS:

(1) the penalty is subject to interest; and

(2) DADS 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, DADS commissioner or commissioner's designee must:

(1) remit to the adult day care 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 DADS commissioner or commissioner's 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 adult day care facility.