Revision 18-2

 

Division 1, General Information

§92.151 When may DHS take an enforcement action?

DHS may take enforcement action when a facility is in violation of:

(1) the sections of this chapter;

(2) the Health and Safety Code, Chapter 247;

(3) an order adopted under Chapter 247; or

(4) a license issued under Chapter 247.

 

§92.152 What enforcement actions may DHS take?

DHS may:

(1) suspend a license;

(2) order immediate closing of all or part of the facility;

(3) revoke a license;

(4) refer the violation to the Office of the Attorney General for involuntary appointment of a trustee, injunction, or for the assessment of civil penalties; or

(5) assess administrative penalties.

 

Division 2, Actions Against a License: Suspension

§92.201 When may DHS suspend a facility's license?

DHS may suspend a facility's license when the applicant, license holder, or a controlling person violates:

(1) the Health and Safety Code, Chapter 247; a section, standard or order adopted under Chapter 247; or a license issued under Chapter 247 in a repeated or substantial manner; or

(2) §92.551(2)-(5) of this chapter (relating to When is an administrative penalty assessed?).

 

§92.202 Does DHS provide notice of a license suspension and the opportunity for a hearing to the applicant, license holder, or a controlling person?

Yes.

 

§92.203 May DHS suspend a license at the same time another enforcement action is occurring?

Yes.

 

§92.204 How does DHS notify a license holder of a proposed suspension?

DHS notifies a license holder by certified mail.

 

§92.205 What information does DHS provide the license holder concerning a proposed suspension?

DHS provides the license holder with the facts or conduct alleged to warrant the suspension.

 

§92.206 Does the license holder have an opportunity to show compliance with all requirements for keeping the license before DHS begins proceedings to suspend a license?

Yes.

 

§92.207 How does a license holder request an opportunity to show compliance?

A license holder must send a written request for an opportunity to show compliance to the Director of Long Term Care-Regulatory.

 

§92.208 How much time does a license holder have to request an opportunity to show compliance?

A request for an opportunity to show compliance must be postmarked within 10 calendar days of the date of DHS's notice and must be received in the Director of Long Term Care-Regulatory's office within 10 calendar days of the postmark.

 

§92.209 What must the request for an opportunity to show compliance contain?

The request must contain specific documentation showing how the facts or conduct that support the proposed suspension are incorrect.

 

§92.210 How does DHS conduct the opportunity to show compliance?

DHS's review is limited to documentation submitted by the license holder and information used by DHS as the basis for its proposed action. The review is not conducted as an adversary hearing.

 

§92.211 Does DHS give the license holder a written affirmation or reversal of the proposed action?

Yes.

 

§92.212 How does DHS notify a license holder of its final decision to suspend a license?

DHS notifies the facility by certified mail.

 

§92.213 May the facility request a formal hearing?

Yes.

 

§92.214 How long does a license holder have to request a formal hearing?

The license holder has 15 calendar days from receipt of the certified mail notice to request a hearing.

 

§92.215 If a license holder does not appeal, when does the suspension take effect?

The suspension takes effect after the deadline for an appeal passes.

 

§92.216 If a license holder appeals, when does the suspension take effect?

The status of the license remains in effect until after the appeal is complete.

 

§92.217 May a facility operate during a suspension?

A facility may continue to operate as long as the suspension is under appeal.

 

§92.218 How long is the suspension?

The suspension remains in effect until DHS determines that the reason for the suspension no longer exists, but no longer than the license expiration date.

 

§92.219 How does DHS decide to remove the suspension?

DHS conducts an on-site inspection.

 

§92.220 Must the license be returned to DHS during a license suspension?

Yes.

 

Division 3, Actions Against a License: Revocation

§92.251 When may DHS revoke a license?

DHS may revoke a license when the applicant, license holder, or a controlling person:

(1) violates section §92.551(2)-(5) of this chapter (relating to When is an administrative penalty assessed?);

(2) violates the Health and Safety Code, Chapter 247; a section, standard or order adopted under Chapter 247; or a license issued under Chapter 247 in a repeated or substantial manner;

(3) submits false statements on a license application;

(4) submits false statements on license application attachments;

(5) submits misleading statements on a license application;

(6) submits misleading statements on license application attachments;

(7) uses subterfuge or other evasive means to obtain a license;

(8) conceals a material fact on a license application that would have been the basis for denying a license under §92.17 of this chapter (relating to Criteria for Denying a License or Renewal of a License);

(9) fails to disclose information required in §92.12 of this chapter (relating to Applicant Disclosure Requirements) that would have been the basis to deny a license under §92.17 of this chapter; or

(10) violates the Health and Safety Code, §247.021.

 

§92.252 Does DHS provide notice of a license revocation and opportunity for a hearing to the applicant, license holder, or controlling person?

Yes.

 

§92.253 May DHS take more than one enforcement action at a time against a license?

Yes.

 

§92.254 How will DHS notify a license holder of a proposed revocation?

DHS will notify a license holder by certified mail.

 

§92.255 What information does DHS provide the license holder concerning a proposed revocation?

DHS provides the license holder with the facts or conduct alleged to warrant the revocation.

 

§92.256 Does the license holder have an opportunity to show compliance with all requirements for keeping the license before DHS begins proceedings to revoke a license?

Yes.

 

§92.257 How does a license holder request an opportunity to show compliance?

A license holder must send a written request for an opportunity to show compliance to the Director of Long Term Care-Regulatory.

 

§92.258 How much time does a license holder have to request an opportunity to show compliance?

A request for an opportunity to show compliance must be postmarked within 10 calendar days of the date of DHS's notice and must be received in the Director of Long Term Care-Regulatory's office within 10 calendar days of the postmark.

 

§92.259 What must the request for the opportunity to show compliance contain?

The request must contain specific documentation showing how the facts or conduct that support the proposed revocation are incorrect.

 

§92.260 How does DHS conduct the opportunity to show compliance?

DHS's review is limited to documentation submitted by the license holder and information used by DHS as the basis for its proposed action. The review is not conducted as an adversary hearing.

 

§92.261 Does DHS give the license holder a written affirmation or reversal of the proposed action?

Yes.

 

§92.262 Does the license holder have an opportunity for a formal hearing?

Yes.

 

§92.263 How long does a license holder have to request a formal hearing?

The license holder has 15 calendar days from receipt of the certified mail notice to request a hearing.

 

§92.264 When does the revocation take effect if the license holder does not appeal?

The revocation takes effect after the deadline for an appeal passes.

 

§92.265 When does the revocation take effect if the license holder appeals the revocation?

The status of the license remains in effect until after the appeal is complete.

 

§92.266 May a facility operate during a revocation?

A facility may continue to operate, as long as the revocation is under appeal.

 

§92.267 What happens to a license if it is revoked?

If revoked, the license must be returned to DHS.

 

Division 4, Actions Against a License: Temporary Restraining Orders and Injunctions

§92.301 Why would DHS refer a facility to the Office of the Attorney General or local prosecuting authority for a temporary restraining order or an injunction?

DHS refers a facility to the Office of the Attorney General or local prosecuting authority for a temporary restraining order or an injunction when:

(1) a violation creates an immediate threat or threat to the health and safety of residents;

(2) a facility is operating without a license; or

(3) DHS is denied entry to a facility that is alleged to be operating without a license.

 

§92.302 To whom does DHS refer a facility that is operating without a license?

DHS refers a facility that is operating without a license to the:

(1) district attorney;

(2) county attorney;

(3) city attorney; or

(4) Attorney General.

 

Division 5, Actions Against a License: Emergency License Suspension and Closing Order

§92.351 When may DHS suspend a license or order an immediate closing of all or part of a facility?

DHS may suspend a license or order an immediate closing of all or part of a facility when:

(1) 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 resident.

 

§92.352 How does DHS notify a facility of a license suspension or immediate closing of all or part of a facility?

A notice is hand-delivered to a facility staff member.

 

§92.353 When does an order suspending a license or closing all or part of a facility go into effect?

The order goes into effect immediately upon receipt of the hand-delivered written notice or on a later date specified in the order.

 

§92.354 How long is an order suspending a license or closing all or part of a facility valid?

An order is valid for 10 calendar days after the effective date of the order.

 

§92.355 May a license holder request a hearing?

Yes.

 

§92.356 Where can a license holder find information about administrative changes?

Information about administrative hearings is located in Chapter 79, Subchapter Q of this title (relating to Formal Appeals).

 

§92.357 Does a request for an administrative hearing suspend the effectiveness of the order?

No.

 

§92.358 Does anything happen to a resident's rights or freedom of choice during an emergency relocation?

No.

 

§92.359 Who does DHS notify if all or part of a facility is closed?

If all or part of a facility is closed, DHS notifies:

(1) the local health department director;

(2) the city or county health authority; and

(3) representatives of the appropriate state agencies.

 

§92.360 Who must a facility notify if all or part of the facility is closed?

A facility must notify each resident's:

(1) guardian or responsible party; and

(2) attending physician.

 

§92.361 Who decides where to relocate a resident?

The resident, the resident's guardian, or the resident's responsible person may designate a preference for a specific facility or for other arrangements.

 

§92.362 Who arranges the relocation?

DHS arranges to relocate residents to other facilities in the area.

 

§92.363 Is a resident's preference considered?

Yes.

 

§92.364 What requirements must the facility a resident chooses for relocation meet?

The following apply when a facility is chosen for relocation:

(1) The facility must be in good standing with DHS.

(2) If the facility is certified under Titles XVIII and XIX of the Social Security Act, it must be in good standing under its contract.

(3) The facility must be able to meet the needs of the resident.

 

§92.365 Is a receiving facility allowed to temporarily exceed its licensed capacity?

Yes.

 

§92.366 Under what conditions is a receiving facility allowed to temporarily exceed its licensed capacity?

DHS may grant a waiver to a receiving facility to temporarily exceed its licensed capacity to prevent substantial transportation of a resident.

 

§92.367 What requirements must a facility meet to obtain a temporary waiver?

To be eligible for a temporary waiver to exceed its licensed capacity, a facility must:

(1) not compromise the health and safety of residents; and

(2) meet the increased demands for direct care personnel and dietary services.

 

§92.368 How long can a facility have a temporary waiver?

A facility may have a temporary waiver until residents can be transferred to a permanent location.

 

§92.369 Does DHS monitor a facility with a temporary waiver?

Yes.

 

§92.370 What records, reports, and supplies are sent to the receiving facility for transferred residents?

The following reports, records, and supplies must be sent to the receiving institution for each transferred resident:

(1) a copy of the current physician's orders for:

(A) medication;

(B) treatment;

(C) diet; and

(D) special services required;

(2) personal information, such as name and address of next of kin, guardian, or responsible party;

(3) attending physician;

(4) Medicare and Medicaid identification number, if applicable;

(5) social security number;

(6) other identification information as deemed necessary and available;

(7) a copy of the resident's current comprehensive assessment and service plan;

(8) all medications dispensed in the resident's name that have current physician's orders. Medications must be inventoried and transferred with the resident. Medications past expiration date or discontinued by physician order must be inventoried for disposition in accordance with state law. Only current prescription medications taken on a regular or as-needed basis may be transferred with the resident;

(9) the resident's personal belongings, clothing, and toilet articles. The closing facility must make an inventory of personal property and valuables; and

(10) resident trust fund accounts maintained by the closing facility. All items must be properly inventoried and receipts obtained for audit purposes by the appropriate state agency.

 

§92.371 May a resident return to the closed facility if it reopens within 90 calendar days?

Yes.

 

§92.372 Do the relocated residents have any special admission rights at the closed facility?

If the closed facility is allowed to reopen within 90 calendar days, the relocated residents have the first right to return to the facility.

 

§92.373 What options does a relocated resident have?

Relocated residents may choose to:

(1) return to the reopened facility;

(2) stay in the receiving facility, if the facility is not exceeding its licensed capacity; or

(3) choose other accommodations.

 

§92.374 Are relocated residents who return to the facility considered new admissions?

Yes. Any relocated resident who returns to the facility must be treated as a new admission. All procedures regarding new admissions apply.

 

Division 6, Actions Against a License: Civil Penalties

§92.401 When may DHS refer a facility to the Office of the Attorney General for assessment of civil penalties?

DHS may refer a facility for a violation that threatens the health and safety of a resident.

 

§92.402 What is the amount of the civil penalty that can be assessed for operating without a license?

A civil penalty of $1,000 to $10,000 per day may be assessed for operating without a license.

 

Division 7, Trustees: Involuntary Appointment of a Trustee

§92.451 When may DHS petition a court for the involuntary appointment of a trustee to operate a facility?

DHS may petition a court for the involuntary appointment of a trustee to operate a facility when one or more of the following conditions exist:

(1) the facility is operating without a license;

(2) the facility's license has been suspended or revoked;

(3) an imminent threat to the health and safety of the residents exists, and license suspension or revocation procedures are pending against the facility;

(4) an emergency exists that presents an immediate threat to the health and safety of the residents; or

(5) the facility is closing, whether voluntarily or through an emergency closure order, and arrangements for relocation of the residents to other licensed institutions have not been made before closure.

 

§92.452 When may DHS disburse emergency assistance funds?

DHS may disburse emergency assistance funds when a court order is given.

 

§92.453 Must a facility reimburse DHS for emergency assistance funds?

Yes.

 

§92.454 When is reimbursement for emergency assistance funds due to DHS?

Reimbursement is due not later than one year after the date the trustee received the funds.

 

§92.455 Who is responsible for reimbursement?

The owner of the facility at the time the trustee was appointed is responsible for reimbursement.

 

§92.456 What happens if a facility does not reimburse DHS in one year?

A license holder is referred to the Office of the Attorney General. DHS also may decide the facility is not eligible for a Medicaid provider contract.

 

Division 8, Trustees: Appointment of a Trustee by Agreement

§92.501 May a facility request the appointment of a trustee to assume operation of a facility?

Yes.

 

§92.502 Who may make the request?

A person holding a controlling interest in a facility may request that DHS assume the operation of the facility through the appointment of a trustee.

 

§92.503 What are the requirements for a trustee agreement?

An agreement must:

(1) specify all terms and conditions of the trustee's appointment and authority; and

(2) preserve all legal rights of the residents.

 

§92.504 When does an agreement for a trustee terminate?

An agreement for a trustee terminates at a time specified in the agreement or upon receipt of notice of intent to terminate sent by DHS or by the person holding a controlling interest in the facility.

 

§92.505 What happens if the controlling person wants to terminate the agreement, but DHS determines termination of the agreement is not in the best interest of the residents?

DHS petitions a court for an involuntary appointment of a trustee under the terms of §92.451 of this chapter (relating to When may DHS petition a court for the involuntary appointment of a trustee to operate a facility?).

 

§92.506 When DHS appoints a trustee, is the facility always required to pay assessed civil money penalties?

Yes.

 

Division 9, Administrative Penalties

§92.551 Administrative Penalties

(a) Assessment of an administrative penalty. HHSC may assess an administrative penalty if a license holder:

(1) violates:

(A) Texas Health and Safety Code, Chapter 247;

(B) a rule, standard, or order adopted under Texas Health and Safety Code, Chapter 247; or

(C) a term of a license issued under Texas Health and Safety Code, Chapter 247;

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

(A) on an application for issuance or renewal of a license;

(B) in an attachment to the application; or

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

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

(A) a book, record, or file that a facility must maintain; or

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

(4) willfully interferes with the work of, or retaliates against, an HHSC representative or the enforcement of this chapter;

(5) willfully interferes with, or retaliates against, an HHSC representative preserving evidence of a violation of Texas Health and Safety Code, Chapter 247; a rule, standard, or order adopted under Texas Health and Safety Code, Chapter 247; or a term of a license issued under Texas Health and Safety Code, Chapter 247;

(6) fails to pay an administrative penalty not later than the 30th calendar day after the penalty assessment becomes final; or

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

(8) willfully interferes with the State Ombudsman, a certified ombudsman, or an ombudsman intern performing the functions of the Ombudsman Program as described in 26 TAC Chapter 88 (relating to the State Long-Term Care Ombudsman Program); or

(9) retaliates against the State Ombudsman, a certified ombudsman, or an ombudsman intern:

(A) with respect to a resident, employee of a facility, or other person filing a complaint with, providing information to, or otherwise cooperating with the State Ombudsman, a certified ombudsman, or an ombudsman intern; or

(B) for performing the functions of the Ombudsman Program as described in 26 TAC Chapter 88.

(b) Criteria for assessing an administrative penalty. HHSC considers the following in determining the amount of an administrative penalty:

(1) the gradations of penalties established in subsection (d) of this section;

(2) 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;

(3) the history of previous violations;

(4) deterrence of future violations;

(5) the license holder's efforts to correct the violation;

(6) the size of the facility and of the business entity that owns the facility; and

(7) any other matter that justice may require.

(c) Late payment of an administrative penalty. A license holder must pay an administrative penalty within 30 calendar days after the penalty assessment becomes final. If a license holder fails to timely pay the administrative penalty, HHSC may assess an administrative penalty under subsection (a)(6) of this section, which is in addition to the penalty that was previously assessed and not timely paid.

(d) Administrative penalty schedule. HHSC uses the schedule of appropriate and graduated administrative penalties in this subsection to determine which violations warrant an administrative penalty.

 

Figure: 40 TAC §92.551(d)
ADMINISTRATIVE PENALTY SCHEDULE SMALL FACILITY
(4-16 beds)
LARGE FACILITY
(17+ beds)
Business entity owns one facility Business entity owns multiple facilities Business entity owns one facility Business entity owns multiple facilities
§92.3 Types of Assisted Living Facilities $300 $450 $500 $650
§92.4. License Fees $300 $400 $500 $600
§92.11. Criteria for Licensing $300 $450 $500 $650
§92.16. Change of Ownership $300 $400 $500 $600
§92.18. Increase in Capacity $300 $400 $500 $600
§92.21. Initial License for a Type A or Type B Facility for an Applicant in Good Standing        
(g) health inspection disclosure $500 $600 $700 $800
§92.22 Initial License for a Type B Facility with Alzheimer’s Certification for an Applicant in Good Standing $500 $600 $700 $800
(i) health inspection disclosure $500 $600 $700 $800
§92.41. Standards for Type A and Type B Assisted Living Facilities        
(a) employees $350 $550 $750 $950
(b) social services $200 $300 $400 $500
(c) resident assessment $400 $550 $600 $750
(d) resident policies $250 $350 $450 $550
(e) admission policies $300 $400 $500 $600
(f) inappropriate placement in Type A or Type B facilities $700 $800 $900 $1,000
(g) advance directives $500 $500 $500 $500
(h) resident records $200 $300 $400 $500
(i) personnel records $200 $300 $400 $500
(j) medications $400 $500 $600 $700
(k) accident, injury, or acute illness $400 $500 $600 $700
(l) resident finances $200 $300 $400 $500
(m) food and nutrition services $400 $550 $700 $850
(n) infection control $400 $550 $700 $850
(o) access to residents $150 $200 $250 $300
(p) restraints $700 $800 $900 $1,000
(q) accreditation status $700 $800 $900 $1,000
§92.51. Licensure of Facilities for Persons with Alzheimer's Disease $200 $300 $400 $500
§92.53. Standards for Certified Alzheimer's Assisted Living Facilities $400 $500 $600 $700
§92.54. Advertisements, Solicitations, and Promotional Material $250 $350 $450 $550
§92.61. Facility Construction-Introduction and Application $300 $400 $500 $600
§92.62. General Requirements $350 $450 $550 $650
§92.81. Inspections and Surveys $300 $400 $500 $600
§92.82. Determinations and Actions Pursuant to Inspections $200 $300 $400 $500
§92.102. Abuse, Neglect, Exploitation Reportable to DADS by Facilities $700 $800 $900 $1,000
§92.123. Investigation of Facility Employees $450 $550 $650 $750
§92.125. Resident's Bill of Rights and Provider Bill of Rights        
(a) resident's bill of rights -- -- -- --
(1) post and provide copy of bill $100 $150 $200 $250
(2) right to exercise civil rights $150 $200 $250 $300
(3) each resident has the right to: -- -- -- --
(A) be free from physical, mental abuse, corporal punishment, physical, chemical restraints for discipline/convenience $700 $800 $900 $1,000
(B) participate in activities $150 $200 $250 $300
(C) religion of choice $150 $200 $250 $300
(D) if MR, participate in behavior modification with guardian consent $150 $200 $250 $300
(E)(i)-(iii)--be treated with respect, consideration, dignity $200 $250 $300 $350
(F) safe, decent living environment $100 $150 $200 $250
(G) communicate in native language $100 $150 $200 $250
(H) complain about care, treatment $200 $250 $300 $350
(I) receive and send mail $100 $150 $200 $250
(J) unrestricted communication $150 $200 $250 $300
(K) make community contacts $100 $150 $200 $250
(L) manage financial affairs $100 $150 $200 $250
(M)(i)-(ii) access resident records $100 $150 $200 $250
(N) choose physician and be informed about treatment and care $100 $150 $200 $250
(O) help develop individual service plan $100 $150 $200 $250
(P)(i)-(ii) opportunity to refuse medical treatment or services $100 $150 $200 $250
(Q) unaccompanied access to telephone $100 $150 $200 $250
(R) privacy $100 $150 $200 $250
(S) retain and use personal possessions $100 $150 $200 $250
(T) determine personal preference in dress, hair style, personal effects $100 $150 $200 $250
(U) retain and use personal property $100 $150 $200 $250
(V) refuse to perform services $100 $150 $200 $250
(W)(i)-(ii) be informed about Medicare, Medicaid, and covered items/services $100 $150 $200 $250
(X)(i)-(v) not be transferred/discharged except under specific conditions $300 $350 $400 $450
(Y)(i)-(v) not be transferred/discharged except in an emergency without specific written notice $300 $350 $400 $450
(Z) leave facility temporarily or permanently $100 $150 $200 $250
(AA) access the Ombudsman program $100 $150 $200 $250
(BB) execute an advance directive or designate a guardian for decisions $200 $250 $300 $350
§92.127. Required Posting $250 $350 $450 $550
§92.129. Authorized Electronic Monitoring (AEM) $100 $150 $200 $250
§§92.351-92.374. Emergency License Suspension and Closing Order $150 $250 $350 $450
§§92.551-92.595. Administrative Penalties $400 $500 $600 $700

 

(e) Administrative penalty assessed against a resident. HHSC does not assess an administrative penalty against a resident, unless the resident is also an employee of the facility or a controlling person.

(f) Proposal of administrative penalties.

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

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

(B) concluded that a violation has occurred.

(2) HHSC may recommend in the preliminary report the assessment of an administrative penalty for each violation and the amount of the administrative penalty.

(3) HHSC provides a written notice of the preliminary report to the license holder not later than 10 calendar days after the date on which the preliminary report is issued. The written notice includes:

(A) a brief summary of the violation;

(B) the amount of the recommended administrative penalty;

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

(i) the date on which the license holder must file with HHSC a plan of correction for approval by HHSC; and

(ii) the date on which the license holder must complete the plan of correction to avoid assessment of the administrative penalty; and

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

(4) Not later than 20 calendar days after the date on which a license holder receives a written notice of the preliminary report, the license holder may:

(A) give HHSC written consent to the preliminary report, including the recommended administrative penalty; or

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

(5) If a violation is subject to correction under subsection (g) of this section, the license holder must submit a plan of correction to HHSC for approval not later than 10 calendar days after the date on which the license holder receives the written notice described in paragraph (3) of this subsection.

(6) If a violation is subject to correction under subsection (g) of this section, and after the license holder reports to HHSC that the violation has been corrected, HHSC inspects the correction or takes any other step necessary to confirm the correction and notifies the facility that:

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

(B) the correction is not satisfactory and a penalty is recommended.

(7) Not later than 20 calendar days after the date on which a license holder receives a notice under paragraph (6)(B) of this subsection (notice that the correction is not satisfactory and recommendation of a penalty), the license holder may:

(A) give HHSC written consent to HHSC report, including the recommended administrative penalty; or

(B) make a written request to HHSC for an administrative hearing.

(8) If a license holder consents to the recommended administrative penalty or does not timely respond to a notice sent under paragraph (3) of this subsection (written notice of the preliminary report) or paragraph (6)(B) of this subsection (notice that the correction is not satisfactory and recommendation of a penalty):

(A) the commissioner or the commissioner's designee assesses the recommended administrative penalty;

(B) HHSC gives written notice of the decision to the license holder; and

(C) the license holder must pay the penalty not later than 30 calendar days after the written notice given in subparagraph (B) of this paragraph.

(g) Opportunity to correct.

(1) A license holder has an opportunity to correct a violation, except a violation described in paragraph (2) of this subsection, to avoid paying an administrative penalty, if the license holder corrects the violation not later than 45 calendar days after the date the facility receives the written notice described in subsection (f)(3) of this section.

(2) A license holder does not have an opportunity to correct a violation:

(A) that HHSC determines results in serious harm to or death of a resident;

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

(C) related to advance directives as described in §92.41(g);

(D) that is the second or subsequent violation of:

(i) a right of the same resident under §92.125 of this chapter (relating to Resident’s Bill of Rights and Provider Bill of Rights); or

(ii) the same right of all residents under §92.125 of this chapter; or

(E) a violation that is written because of an inappropriately placed resident, except as described in §92.41(f) of this chapter (relating to Inappropriate Placement).

(3) Maintenance of violation correction.

(A) A license holder that corrects a violation must maintain the correction. If the license holder fails to maintain the correction until at least the first anniversary of the date the correction was made, DADS may assess and collect an administrative penalty for the subsequent violation.

(B) An administrative penalty assessed under this paragraph is equal to three times the amount of the original administrative penalty that was assessed but not collected.

(C) HHSC is not required to offer the license holder an opportunity to correct the subsequent violation.

(h) Hearing on an administrative penalty. If a license holder timely requests an administrative hearing as described in subsection (f)(3) or (f)(7) of this section, the administrative hearing is held in accordance with HHSC rules at 1 TAC Chapter 357, Subchapter I (relating to Hearings under the Administrative Procedure Act).

(i) DADS may charge interest on an administrative penalty. The interest begins the day after the date the penalty becomes due and ends on the date the penalty is paid in accordance with Texas Health and Safety Code, §247.0455(e).

(j) Amelioration of a violation.

(1) In lieu of demanding payment of an administrative penalty, the commissioner may allow a license holder to use, under HHSC supervision, any portion of the administrative penalty to ameliorate the violation or to improve services, other than administrative services, in the facility affected by the violation. Amelioration is an alternate form of payment of an administrative penalty, not an appeal, and does not remove a violation or an assessed administrative penalty from a facility's history.

(2) A license holder cannot ameliorate a violation that HHSC determines constitutes immediate jeopardy to the health or safety of a resident.

(3) HHSC offers amelioration to a license holder not later than 10 calendar days after the date a license holder receives a final notification of the recommended assessment of an administrative penalty that is sent to the license holder after an informal dispute resolution process but before an administrative hearing.

(4) A license holder to whom amelioration has been offered must:

(A) submit a plan for amelioration not later than 45 calendar days after the date the license holder receives the offer of amelioration from HHSC; and

(B) agree to waive the license holder's right to an administrative hearing if HHSC approves the plan for amelioration.

(5) A license holder's plan for amelioration must:

(A) propose changes to the management or operation of the facility that will improve services to or quality of care of residents;

(B) identify, through measurable outcomes, the ways in which and the extent to which the proposed changes will improve services to or quality of care of residents;

(C) establish clear goals to be achieved through the proposed changes;

(D) establish a time line for implementing the proposed changes; and

(E) identify specific actions the license holder will take to implement the proposed changes.

(6) A license holder's plan for amelioration may include proposed changes to:

(A) improve staff recruitment and retention;

(B) offer or improve dental services for residents; and

(C) improve the overall quality of life for residents.

(7) HHSC may require that an amelioration plan propose changes that would result in conditions that exceed the requirements of this chapter.

(8) HHSC approves or denies a license holder's amelioration plan not later than 45 calendar days after the date HHSC receives the plan. If HHSC approves the amelioration plan, any pending request the license holder has submitted for an administrative hearing must be withdrawn by the license holder.

(9) HHSC does not offer amelioration to a license holder:

(A) more than three times in a two-year period; or

(B) more than one time in a two-year period for the same or a similar violation.

 

Division 10, Arbitration

§92.601 Arbitration

A facility may elect binding arbitration in accordance with Texas Health and Safety Code (THSC) §247.082. Arbitration is conducted in accordance with THSC §§247.083-247.098 and may be used to resolve a dispute between the facility and DADS relating to:

(1) renewal of a license;

(2) suspension, revocation, or denial of a license;

(3) assessment of a civil penalty; or

(4) assessment of an administrative penalty.