Revision 13-1

§97.601 Enforcement Actions

 

(a) Enforcement actions. DADS may take the following enforcement actions against an agency:

(1) license suspension;

(2) immediate license suspension;

(3) license revocation;

(4) immediate license revocation;

(5) administrative penalties; and

(6) denial of license application.

(b) Denial of license application. DADS may deny a license application for the reasons set out in §97.21 of this chapter (relating to Denial of an Application or a License).

(c) Suspension or revocation.

(1) DADS may suspend or revoke an agency's license if the license holder, the controlling person, the affiliate, the administrator, or the alternate administrator:

(A) fails to comply with this chapter;

(B) fails to comply with the statute; or

(C) violates Texas Occupations Code, §102.001 (relating to Soliciting Patients; Offense) and §102.006 (relating to Failure to Disclose; Offense).

(2) DADS may suspend or revoke an agency's license to provide licensed and certified home health services if the agency fails to maintain its certification qualifying the agency as a certified agency, as referenced in Health and Safety Code, §142.011(c).

(d) Administrative penalties.

(1) DADS may assess an administrative penalty against an agency in accordance with §97.602 of this chapter (relating to Administrative Penalties).

(2) DADS may consider the assessment of past administrative penalties when considering another enforcement action against an agency.

(e) Immediate licensure suspension or revocation. DADS may immediately suspend or revoke an agency's license when the health and safety of persons are threatened.

(1) If DADS issues an order for immediate suspension or revocation of the agency's license, DADS provides immediate notice to the controlling person, administrator, or alternate administrator of the agency by fax and either by certified mail with return receipt requested or hand-delivery. The notice includes:

(A) the action taken;

(B) legal grounds for the action;

(C) the procedure governing appeal of the action; and

(D) the effective date of the order.

(2) An order for immediate suspension or revocation goes into effect immediately.

(3) An agency is entitled to a formal administrative hearing not later than seven days after the effective date of the order for immediate suspension or revocation.

(4) If an agency requests a formal administrative hearing, the hearing is held in accordance with the Government Code, Chapter 2001, and with the formal hearing procedures in 1 TAC, Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act), and Chapter 91 of this title (relating to Hearings Under the Administrative Procedure Act).

(f) Opportunity to show compliance.

(1) Before revocation or suspension of an agency's license or denial of an application for the renewal of an agency's license, DADS gives the license holder:

(A) a notice by personal service or by registered or certified mail of the facts or conduct alleged to warrant the proposed action, with a copy sent to the agency; and

(B) an opportunity to show compliance with all requirements of law for the retention of the license by sending DADS Regulatory Services office a written request. The request must:

(i) be postmarked within 10 days after the date of DADS notice and be received in DADS Regulatory Services office within 10 days after the date of the postmark; and

(ii) contain specific documentation refuting DADS allegations.

(2) DADS limits its review to the documentation submitted by the license holder and information DADS used as the basis for its proposed action. An agency may not attend DADS meeting to review the opportunity to show compliance. DADS gives a license holder a written affirmation or reversal of the proposed action.

(3) After an opportunity to show compliance, DADS sends a license holder a written notice that:

(A) informs the license holder of DADS decision; and

(B) provides the agency with an opportunity to appeal DADS decision through a formal hearing process.

(g) Notice of denial of application for license or renewal of a license, suspension or revocation of license. DADS sends an applicant or license holder notice by fax and either by certified mail with return receipt requested or hand-delivery of DADS denial of an application for an initial license or renewal of a license, suspension of a license or revocation of a license.

(h) Formal appeal. An applicant or license holder has the right to make a formal appeal after receipt of DADS notification of denial of an application for an initial license or renewal of a license and suspension or revocation of a license.

(1) An agency must request a formal administrative hearing within 20 days of receipt of DADS notice of denial of an application for an initial license or renewal of a license, suspension of a license or revocation of a license. To make a formal appeal, the applicant or agency must comply with the formal hearing procedures in 1 TAC, Chapter 357, Subchapter I and Chapter 91 of this title.

(2) DADS presumes receipt of DADS notice to occur on the tenth day after the notice is mailed to the last known address unless another date is reflected on the return receipt.

(3) If an agency does not meet the deadline for requesting a formal hearing, the agency has lost its opportunity for a formal hearing, and DADS takes the proposed action.

(4) A formal administrative hearing is held in accordance with Government Code, Chapter 2001, and the formal hearing procedures in 1 TAC, Chapter 357, Subchapter I and Chapter 91of this title.

(5) Except for the denial of an application for an initial license, if an agency appeals, the license remains valid until all appeals are final, unless the license expires without a timely application for renewal submitted to DADS. The agency must continue to submit a renewal application in accordance with §97.17 of this chapter (relating to Application Procedures for a Renewal License) until the action to revoke, suspend, or deny renewal of the license is completed. However, DADS does not renew the license until it determines the reason for the proposed action no longer exists.

(6) If an agency appeals, the enforcement action will take effect when all appeals are final and the proposed enforcement action is upheld. If the agency wins the appeal, the proposed action does not happen.

(7) If DADS suspends a license, the suspension remains 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 conducts a survey of the agency before making a determination to recommend cancellation of a suspension.

(8) If DADS revokes or does not renew a license and one year has passed following the effective date of revocation or denial of licensure renewal, a person may reapply for a license by complying with the requirements and procedures in §97.13 of this chapter (relating to Application Procedures for an Initial License). DADS does not issue a license if the reason for revocation or nonrenewal continues to exist.

(i) Agency dissolution. Upon suspension, revocation or nonrenewal of a license, the license holder must:

(1) return the original license to DADS; and

(2) implement its written plan required in §97.291 of this chapter (relating to Agency Dissolution).

 

§97.602 Administrative Penalties

(a) Assessing penalties. DADS may assess an administrative penalty against a person who violates:

(1) the statute;

(2) a provision in this chapter for which a penalty may be assessed; or

(3) Texas Occupations Code, §102.001 (relating to Soliciting Patients; Offense) or §102.006 (relating to Failure to Disclose; Offense), if related to the provision of home health, hospice, or personal assistance services.

(b) Criteria for assessing penalties. DADS assesses administrative penalties in accordance with the schedule of appropriate and graduated penalties established in this section.

(1) The schedule of appropriate and graduated penalties for each violation is based on the following criteria:

(A) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and the hazard of the violation to the health or safety of clients;

(B) the history of previous violations by a person or a controlling person with respect to that person;

(C) whether the affected agency identified the violation as part of its internal quality assurance process and made a good faith, substantial effort to correct the violation in a timely manner;

(D) the amount necessary to deter future violations;

(E) efforts made to correct the violation; and

(F) any other matters that justice may require.

(2) In determining which violation warrants a penalty, DADS considers:

(A) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and the hazard of the violation to the health or safety of clients; and

(B) whether the affected agency identified the violation as part of its internal quality assurance program and made a good faith, substantial effort to correct the violation in a timely manner.

(c) Opportunity to correct. Except as provided in subsections (e) and (f) of this section, DADS provides an agency with an opportunity to correct a violation in accordance with the time frames established in §97.527(g)(2) of this chapter (relating to Post-Survey Procedures) before assessing an administrative penalty if a plan of correction has been implemented.

(d) Minor violations.

(1) DADS may not assess an administrative penalty for a minor violation unless the violation is of a continuing nature or is not corrected in accordance with an accepted plan of correction.

(2) DADS may assess an administrative penalty for a subsequent occurrence of a minor violation when cited within three years from the date the agency first received written notice of the violation.

(3) DADS does not assess an administrative penalty for a subsequent occurrence of a minor violation when cited more than three years from the date the agency first received written notice of the violation.

(e) No opportunity to correct. DADS may assess an administrative penalty without providing an agency with an opportunity to correct a violation if DADS determines that the violation:

(1) results in serious harm to or death of a client;

(2) constitutes a serious threat to the health or safety of a client;

(3) substantially limits the agency's capacity to provide care;

(4) involves the provisions of Texas Human Resources Code, Chapter 102, Rights of the Elderly;

(5) is a violation in which a person:

(A) makes a false statement, that the person knows or should know is false of a material fact:

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

(ii) with respect to a matter under investigation by DADS;

(B) refuses to allow a representative of DADS to inspect a book, record, or file required to be maintained by an agency;

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

(D) willfully interferes with a representative of DADS preserving evidence of a violation of this chapter or a rule, standard, or order adopted or license issued under this chapter;

(E) fails to pay a penalty assessed by DADS under this chapter not later than the 10th day after the date the assessment of the penalty becomes final; or

(F) fails to submit:

(i) a plan of correction not later than the 10th day after the date the person receives a statement of licensing violations; or

(ii) an acceptable plan of correction not later than the 30th day after the date the person receives notification from DADS that the previously submitted plan of correction is not acceptable.

(f) Violations relating to Advance Directives. As provided in Texas Health and Safety Code, §142.0145, DADS assesses an administrative penalty of $500 for a violation of §97.283 of this chapter (relating to Advance Directives) without providing an agency with an opportunity to correct the violation.

(g) Penalty calculation and assessment.

(1) Each day that a violation occurs before the date on which the person receives written notice of the violation is considered one violation.

(2) Each day that a violation occurs after the date on which an agency receives written notice of the violation constitutes a separate violation.

(h) Schedule of appropriate and graduated penalties.

(1) If two or more rules listed in subparagraphs (2) and (3) of this subsection relate to the same or similar matter, one administrative penalty may be assessed at the higher severity level violation.

(2) Severity Level A violations.

(A) The penalty range for a Severity Level A violation is $100 - $250 per violation.

(B) A Severity Level A violation is a violation that has or has had minor or no client health or safety significance.

(C) DADS assesses a penalty for a Severity Level A violation only if the violation is of a continuing nature or was not corrected in accordance with an accepted plan of correction.

(D) DADS may assess a separate Severity Level A administrative penalty for each of the rules listed in the following table.

Severity Level A Violations
$100 – $250 per violation
Rule Cite Subject Matter
§97.210(c)(1)-(2) separate penalties Providing information on how to contact the person in charge if an agency is closed during operating hours or between the hours of 8:00 a.m. and 5:00p.m., Monday through Friday.
§97.212 Prohibiting material alteration of a license.
§97.213(a), (b)(1) and (2), and (c) separate penalties Notification procedures for reporting a change in physical location.
§97.214(a)(1) and (2), (b), and (c) separate penalties Notification procedures for reporting a change in agency contact information and agency operating hours.
§97.217(b)(1)-(2) separate penalties Procedures for notifying DADS of a voluntary suspension of operations.
§97.218(a)(1)-(4) and (b) separate penalties Notification procedures for reporting a change in management personnel.
§97.219(a),(b), and (d) separate penalties Notification procedures for adding or deleting a category of service to an agency's license.
§97.220(a) Providing services only within an agency's licensed service area.
§97.220(c) and (d)(2)(A) and (B), separate penalties Notification procedures for reporting an expansion of an agency's licensed service area.
§97.220(e) Using the required DADS form and following DADS instructions to provide notice of an expansion or reduction of an agency’s licensed service area.
§97.220(g) Providing written notification of a reduction of an agency's licensed service area.
§97.220(j)(1) Not reporting an expansion of the service area as required to continue to provide services to an existing client outside the service area.
§97.220(j)(4) Not documenting the start and end date for services provided to a client outside the service area.
§97.220(k)(1)-(3) Information an agency must provide to a client if leaving the agency's service area.
§97.242(a)-(b) separate penalties Preparing and maintaining a current written description of the agency's organizational structure.
§97.243(b)(1)(A)-(E) and (G)-(J) separate penalties Responsibilities of the administrator.
§97.243(b)(3) Requirement that the administrator designate in writing an agency employee who must provide DADS surveyors entry to the agency.
§97.243(d) Adoption of a written policy for the supervision of branch offices or alternate delivery sites, if established.
§97.244(b)(1)-(5) separate penalties Conditions of the agency administrator and alternate administrator.
§97.245(a)-(b)(1)-(10) separate penalties Adoption and enforcement of written policies governing all personnel staffed by the agency.
§97.246(a)(1)-(6)(A)-(B) and (b) separate penalties An agency's personnel records and content of such records.
§97.247(a)(4) and (b)(4) separate penalties Providing unlicensed employees and volunteers with written information about the employee misconduct registry.
§97.247(c) Documentation of compliance with verifying the employability and use of unlicensed applicants, employees, and volunteers.
§97.248(b), (b)(1), and b(3) separate penalties The use of volunteers in an agency.
§97.249(b) Adoption of a written policy for the reporting of alleged acts of abuse, neglect, and exploitation of clients.
§97.250(a) Adoption of a written policy covering procedures for investigating known and alleged acts of abuse, neglect, and exploitation and other complaints.
§97.250(e) Prohibiting an agency from retaliating against a person for filing a complaint, presenting a grievance, or providing, in good faith, information about the services provided by the agency.
§97.251 Adoption of a written policy for ensuring that all professional disciplines comply with their respective professional practice acts or title acts for reporting and peer review.
§97.253 Adoption of a written policy describing whether an agency will conduct drug testing of employees that describes the method and provides a copy of the policy.
§97.254 Adoption of a written policy for ensuring that the agency submits accurate billings and insurance claims.
§97.255(a) Adoption of a written policy to ensure compliance with the Texas Occupations Code, Chapter 102, relating to Solicitation of Patients.
§97.256(a) Having a written emergency preparedness and response plan based on a risk assessment.
§97.256(b)(1)-(4)
separate penalties
Agency personnel responsible for developing, maintaining and implementing a written emergency preparedness and response plan.
§97.256(c)(1)-(5)
separate penalties
Contents of a written emergency preparedness and response plan.
§97.256(d)(1)-(4)
separate penalties
Response and recovery phases of a written emergency preparedness and response plan.
§97.256(e)(1)-(2)
separate penalties
Procedures to triage clients in a written emergency preparedness and response plan.
§97.256(f) Procedures in a written emergency preparedness and response plan to identify a client who may need evacuation assistance.
§97.256(g) Assisting a client as requested to register with 2-1-1 for evacuation assistance.
§97.256(h)(1)-(4)
separate penalties
Counseling each client about emergency preparedness.
§97.256(i) Training agency personnel in their responsibilities in a written emergency preparedness and response plan.
§97.256(j) and (k)
separate penalties
Annual review and update of a written emergency preparedness and response plan and annual test of the response phase of the plan.
§97.256(l) Good faith effort to comply with rules on emergency preparedness planning and implementation.
§97.256(n) Reproducing client records damaged during a disaster.
§97.256(o)(1)-(2) and (p)
separate penalties
Notice of temporary changes due to an emergency or disaster.
§97.259(g) Prohibiting use of the presurvey conference to meet initial training requirements for a first-time administrator and alternate administrator.
§97.260(d) Prohibiting use of the pre-survey conference to meeting continuing education requirements for an administrator and alternate administrator.
§97.281(1)-(16) separate penalties Adoption of a written policy that specifies the agency's client care practices.
§97.282(a)-(b), (d)-(f)(1)-(8), and (g)-(h) separate penalties Adoption of a written policy governing client conduct and responsibility and client rights.
§97.284 Adoption of a written policy for complying with the Clinical Laboratory Improvement Amendments of 1988, 42 USC, §263a, Certification of Laboratories (CLIA 1988).
§97.285 Adoption of written policies addressing infection control.
§97.285(1)(A)-(C) and (2) separate penalties Adoption and compliance with a written policy that addresses infection control.
§97.286(a) Adoption of a written policy for safe handling and disposal of biohazardous waste and materials, if applicable.
§97.288(a) Adoption of a written policy on coordination of services.
§97.288(b) Documentation of coordination of services.
§97.289(c)(2) Providing written information about the employee misconduct registry to an unlicensed person providing services under arrangement.
§97.289(e)(1)-(3) separate penalties Documentation of personnel qualifications and for unlicensed staff that provide services under arrangement.
§97.290(a) Adoption of a written policy for ensuring that backup services are available when an agency employee or contractor is not available to deliver the services.
§97.290(a)(1)-(2) Documentation that a client’s designee agreed to provide backup services.
§97.290(a)(3) Not coercing a client to accept backup services.
§97.290(b) Adoption of a written policy for ensuring that clients are educated in how to access care from the agency or another health care provider after regular business hours.
§97.291 Adoption of a written policy for an agency's written contingency plan.
§97.292(a) Providing a client or a client's family with a written agreement for services and ensuring appropriate content of the agreement.
§97.292(b) Obtaining acknowledgment that the client received an appropriate written agreement for services and ensuring that the acknowledgment is in the client's record.
§97.293 Maintaining a current list of clients for each category of service licensed.
§97.294 Adoption of a written policy for establishing a time frame for the initiation of care or services.
§97.295(c), (d), and (f) separate penalties Delivery of written notice and documentation requirements pertaining to an agency's transfer or discharge of a client.
§97.296(a) Adoption of a written policy that states whether physician delegation will be honored by the agency.
§97.296(b) Information the agency must receive to accept physician delegation.
§97.297 Adoption of a written policy describing protocols and procedures agency staff must follow when receiving physician orders, if applicable.
§97.297(2) Physician orders received by facsimile.
§97.298 Adoption of a written policy for ensuring compliance with rules adopted by the Texas Board of Nursing in 22 TAC, Chapter 224 (Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel for Clients with Acute Conditions or in Acute Care Environments) and 22 TAC, Chapter 225 (RN Delegation to Unlicensed Personnel and Tasks Not Requiring Delegation in Independent Living Environments for Clients with Stable and Predictable Conditions).
§97.299 Adoption of a written policy for ensuring compliance with rules of the Texas Board of Nursing adopted at 22 TAC Chapters 211-226 (Nursing Continuing Education, Licensure, and Practice in the State of Texas).
§97.300(b) Adoption of a written policy for maintaining a current medication list and a current medication administration record.
§97.300(b)(2)(A)-(B) separate penalties The administration of medication.
§97.301(a)(1)-(9)(A)-(P) separate penalties Requirements for maintaining an agency's client records.
§97.301(b)(1)-(3) separate penalties Adoption and enforcement of a written policy for retention of records.
§97.302 Adoption of a written policy for pronouncement of death if that function is carried out by an agency registered nurse.
§97.321(a) Branch office compliance with the regulations of its parent agency.
§97.321(c)(1) Providing services only within a branch office licensed service area.
§97.321(c)(3) Providing a written notification of an expansion of a branch office service area.
§97.321(c)(4) Providing written notification of a reduction of a branch office licensed service area.
§97.321(d)(1)-(3) separate penalties Requirements for branch offices.
§97.321(f) Requirement prohibiting branch offices from providing services not offered by the parent agency.
§97.322(a) and (c)(1)-(2) separate penalties Standards for hospice alternate delivery sites.
§97.401(f) The use of home health aides.
§97.402(b) Requirement for implementing a home health aide training and competency program.
§97.404(e) Requirement that an agency develops operational policies that are considerate of the principles of individual and family choice and control, functional need, and accessible and flexible services.
§97.404(f)(1)-(3) separate penalties Additional requirements for maintaining client records in an agency that provides personal assistance services.
§97.404(g) Adoption of a written policy that addresses the supervision of agency personnel with input from the client or family on the frequency of supervision.
§97.404(g)(1)-(2) separate penalties Conditions and qualifications for supervision of agency personnel delivering personal assistance services.
§97.405(d) Requirement for individual personnel files on all physicians.
§97.405(g) A written transfer agreement with a local hospital for an agency that provides home dialysis services.
§97.405(h) An agreement with a licensed end stage renal disease facility to provide backup outpatient dialysis services.
§97.405(j) Ensuring that names of clients awaiting a donor transplant are entered in the recipient registry program.
§97.405(s)(1) and (4)-(7) separate penalties Additional requirements for maintaining client records in an agency that provides home dialysis services.
§97.405(v) Development of a written preventive maintenance program for home dialysis equipment.
§97.405(v)(1)(B) Maintaining written evidence of preventive maintenance and equipment repairs.
§97.405(z) Adoption of policies and procedures for medical emergencies and emergencies resulting from a disaster required of an agency that provides home dialysis services.
§97.406(1) Adoption of a written policy for the provision of psychoactive treatments, if applicable.
§97.523(a) Staff availability for the initial survey.
§97.523(b) Staff availability for survey other than the initial survey.
§97.523(e) Providing surveyor entry to the agency during regular business hours and within two hours of the surveyor's arrival at the agency.
§97.525(c) Having documentation of accreditation available at the time of a survey.
§97.527(b) Providing surveyor with audio recording of the exit conference if made by the agency.
§97.527(c) Providing surveyor with video recording of the exit conference if made by the agency.
§97.527(g)(1)-(2)(A)-(D) Submitting an acceptable plan of correction and correcting a violation within the required time frame.
§97.801(a) Adoption of written policies relating to the standards for providing hospice services.
§97.801(e) Restriction on use of the word "hospice" if not licensed to provide hospice services.
§97.811(c)(1)-(8) separate penalties Factors to consider in the hospice comprehensive assessment.
§97.812(a) and (b)(1)-(3) separate penalties Requirements for updating the hospice comprehensive assessment.
§97.813(a) and (b)(1)-(5) separate penalties Including data elements in the hospice comprehensive assessment to measure outcomes.
§97.820(d) Designating an interdisciplinary team responsible for establishing the policies governing the provision of hospice services.
§97.821(d)(1)-(5) separate penalties The content of a hospice plan of care.
§97.821(d)(6) Documenting client understanding, involvement, and agreement with the hospice plan of care.
§97.844(b) and (c) separate penalties Requirements for hospice homemaker services.
§97.845(a) and (b)(1)-(2) separate penalties Using a qualified hospice homemaker to provide hospice homemaker services.
§97.846(a) and (b) separate penalties A hospice agency's use of and coordination with services provided under a state Medicaid personal care benefit.
§97.850(a)(1) and (2) separate penalties Organization and administration of hospice services.
§97.851(b)(1) and (2) separate penalties Hospice services provided by a licensed person.
§97.853(d) Hospice providing infection control education.
§97.854(a) and (b)(1)-(3) separate penalties Hospice professional management responsibility for contracted services.
§97.855(a) and (b) separate penalties Additional hospice requirements for criminal background checks.
§97.856(d) Including a hospice alternate delivery site in the written and actual organizational structure of the parent agency.
§97.857(1)-(2) and (4)-(5) separate penalties Hospice staff training.
§97.858(a)-(c) separate penalties Hospice medical director.
§97.859(a)-(g)
separate penalties
Hospice discharge or transfer of care.
§97.860(f), (g)(1)-(2), (j), (k)(1)-(5), (l)(1) and (3), and (m) separate penalties Provision of drugs and biologicals by a hospice.
§97.861(e)(1)-(8) separate penalties Written contract for providing hospice short-term inpatient care.
§97.871(a)(2)(A)-(G), (d)(1)-(4), (e)(1)-(5), (f), (g)(1), (l)(16), (m)(4), and (n)(4) separate penalties Physical environment in a hospice inpatient unit.
§97.880(b)(1)-(10), (c)(2), and (e) separate penalties Providing hospice care to residents of a skilled nursing facility, nursing facility, or an intermediate care facility for individuals with an intellectual disability or related conditions.

(3) Severity Level B violations.

(A) The penalty range for a Severity Level B violation is $500-$1,000 per violation.

(B) A Severity Level B violation is a violation that:

(i) results in serious harm to or death of a client;

(ii) constitutes an actual serious threat to the health or safety of a client; or

(iii) substantially limits the agency’s capacity to provide care.

(C) The penalty for a Severity Level B violation that:

(i) results in serious harm to or death of a client is $1,000;

(ii) constitutes an actual serious threat to the health or safety of a client is $500 - $1,000; and

(iii) substantially limits the agency’s capacity to provide care is $500 - $750.

(D) As provided in subsection (e) of this section, a Severity Level B violation is a violation for which DADS may assess an administrative penalty without providing an agency with an opportunity to correct the violation.

(E) DADS may assess a separate Severity Level B administrative penalty for each of the rules listed in the following table.

Severity Level B Violations
$500 – $1,000 per violation
Rule Cite Subject Matter
§97.11(d) Requirement to have a separate license for each place of business.
§97.23 A license may not be sold or assigned to another person.
§97.220(b) Maintaining adequate staff to provide services and supervise the provision of services.
§97.220(k)(1)-(3) Information an agency must provide to a client if leaving the agency's service area.
§97.241(a), (c), and (d) separate penalties Management responsibilities.
§97.243(a)(1) Designating a qualified agency administrator.
§97.243(a)(2) Designating a qualified agency alternate administrator.
§97.243(b)(1)(A)-(I) and (2)-(3) separate penalties Responsibilities of an agency administrator.
§97.243(c)(1) Requirement to directly employ or contract with a qualified individual to serve as the supervising nurse.
§97.243(c)(2) Requirement to designate a qualified alternate supervising nurse.
§97.243(c)(2)(A)(i)-(iv) separate penalties Supervisory responsibilities of the supervising nurse or alternate supervising nurse.
§97.243(c)(2)(B) Allowing the supervising nurse to be the administrator if the supervising nurse meets the qualifications of the administrator.
§97.243(c)(3) Requirements for the supervision of physical, occupational, speech, or respiratory therapy; medical social services; or nutritional counseling.
§97.243(d) Enforcing a written policy for the supervision of branch offices or alternate delivery sites, if established.
§97.244(a)(1) Qualifications of the agency administrator and alternate administrator for agencies licensed to provide licensed home health services, licensed and certified home health services or hospice services.
§97.244(a)(2) Additional qualifications for the agency administrator and alternate administrator for agencies licensed to provide hospice services.
§97.244(a)(3) Qualifications of the agency administrator and alternate administrator for agencies licensed to provide only personal assistance services.
§97.244(b)(1)-(5) separate penalties Conditions of the agency administrator and alternate administrator.
§97.244(c)(1) Qualifications of the supervising nurse and alternate supervising nurse for agencies without the home dialysis designation.
§97.244(c)(2) Qualifications of the supervising nurse and alternate supervising nurse for agencies with the home dialysis designation.
§97.245(a)-(b)(1)-(10) separate penalties Enforcement of staffing policies that govern all personnel used by the agency.
§97.247(a)(1)-(3) and (5)(A)-(B)-(6)(A)-(B) and (b)(1)-(3) and (5)(A)-(B)-(6)(A)-(B) separate penalties Verifying the employability and use of unlicensed applicants, employees and volunteers.
§97.248(b), (b)(1), and (b)(3) separate penalties The use of volunteers in an agency.
§97.249(c) Reporting alleged acts of abuse, neglect, and exploitation of clients.
§97.250(b)(1)-(3), (c)(1)-(2), and (d)-(e) separate penalties Enforcement of an agency's written policy for investigation of known and alleged acts of abuse, neglect, and exploitation and other complaints.
§97.251 Compliance with the agency's written policy to ensure that all professional disciplines comply with their respective professional practice acts or title acts for reporting and peer review.
§97.252(1)-(2) An agency's financial ability to carry out its functions.
§97.256(a) Having a written emergency preparedness and response plan based on a risk assessment.
§97.256(b)(1)-(4)
separate penalties
Agency personnel responsible for developing, maintaining and implementing a written emergency preparedness and response plan.
§97.256(c)(1)-(5)
separate penalties
Contents of a written emergency preparedness and response plan.
§97.256(d)(1)-(4)
separate penalties
Response and recovery phases of a written emergency preparedness and response plan.
§97.256(e)(1)-(2)
separate penalties
Procedures to triage clients in a written emergency preparedness and response plan.
§97.256(f) Procedures in a written emergency preparedness and response plan to identify a client who may need evacuation assistance.
§97.256(g) Assisting a client as requested to register with 2-1-1 for evacuation assistance.
§97.256(h)(1)-(4)
separate penalties
Counseling each client about emergency preparedness.
§97.256(i) Training agency personnel in their responsibilities in a written emergency preparedness and response plan.
§97.256(j) and (k)
separate penalties
Annual review and update of a written emergency preparedness and response plan and annual test of the response phase of the plan.
§97.256(l) Good faith effort to comply with rules on emergency preparedness planning and implementation.
§97.256(n) Reproducing client records damaged during a disaster.
§97.256(o)(1)-(2) and (p)
separate penalties
Notice of temporary changes due to an emergency or disaster.
§97.259(b)-(e)
separate penalties
Initial educational training requirements for a first-time agency administrator and alternate administrator.
§97.259(f) Documentation requirements for initial educational training of a first-time administrator and alternate administrator.

§97.260(a)

Annual continuing education requirements for an agency administrator and alternate administrator.
§97.260(b) Continuing education requirements for an agency administrator and alternate administrator who has not served for 180 days or more immediately preceding the date of designation.
§97.260(c) Documentation requirements for continuing education of an administrator and alternate administrator.
§97.281(1)-(16) separate penalties Enforcement of a written policy for client care practices.
§97.282(a)-(f)(1)-(8) and (g)-(h) separate penalties Compliance with an agency policy on client conduct and responsibility and client rights.
§97.284 Compliance with the Clinical Laboratory Improvement Amendments of 1988.
§97.285 Compliance with written policies addressing infection control.
§97.285(1)(A)-(C) and (2) separate penalties Enforcement and compliance with written policies on infection control.
§97.286(b) Compliance with 25 TAC §§1.131-1.137 concerning the Definition, Treatment, and Disposition of Special Waste from Health Care-Related Facilities.
§97.287(a)(1)-(3) and (b)-(c) separate penalties An agency's Quality Assessment and Performance Improvement Program.
§97.288(a)-(b) separate penalties Compliance with an agency's written policy for coordination of services and documentation requirements.
§97.289(a)-(b) separate penalties An agency's use of and agreement with independent contractors and arranged services.
§97.289(c)(1) and (3) separate penalties Initial searches and searches at least every 12 months of the nurse aide registry and employee misconduct registry for unlicensed staff providing services under arrangement.
§97.289(d)(1)-(2) separate penalties Conducting and reviewing a criminal history check for an unlicensed person that provides services under arrangement.
§97.290(a) Enforcing a written policy that backup services are available when needed.
§97.290(a)(1)-(2) Documentation that a client’s designee agreed to provide backup services.
§97.290(b) Enforcing a written policy that clients are educated in how to access care after hours.
§97.291(1)-(2) separate penalties Implementing a written policy for an agency's written contingency plan.
§97.292(a) Complying with the terms of a written agreement for services that the agency provided to a client or a client's family.
§97.295(a)(1)-(2) separate penalties Providing a client with written notification, and notifying a client’s attending physician if applicable, of transfer or discharge.
§97.295(b) An agency providing written notification of a client's transfer or discharge within the required time frame.
§97.296(a) Enforcement of an agency's policy regarding acceptance of physician delegation orders.
§97.296(b) Information the agency must receive to accept physician delegation.
§97.297 Enforcement of a written policy describing protocols and procedures agency staff must follow when receiving physician orders, if applicable.
§97.297(1) Countersignature of physician verbal orders.
§97.298 Enforcement of a written policy for ensuring compliance with the rules adopted by the Texas Board of Nursing in 22 TAC, Chapter 224 (Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel for Clients with Acute Conditions or in Acute Care Environments) and 22 TAC, Chapter 225 (RN Delegation to Unlicensed Personnel and Tasks Not Requiring Delegation in Independent Living Environments for Clients with Stable and Predictable Conditions).
§97.300(b) Enforcement of a written policy for maintaining a current medication list and a current medication administration record.
§97.300(b)(1)-(2)(A)-(B) and (3) separate penalties The administration of medication.
§97.303(1)-(3)(A)-(F) separate penalties The possession and use of sterile water or saline, certain vaccines or tuberculin, and certain dangerous drugs.
§97.321(c)(2) Maintaining adequate staff to provide and supervise services at a branch office.
§97.322(a) and (c)(1) separate penalties Standards for hospice alternate delivery sites.
§97.401(b)(1)-(2)(A)-B) separate penalties Acceptance of a client for home health services and the initiation of services.
§97.401(d) Requirement that qualified personnel provide and supervise all services.
§97.401(e) Requirement that all staff providing services, delegation, and supervision be employed by or be under contract with the agency.
§97.401(g) Age and competency of unlicensed persons providing licensed home health services.
§97.402(a) Compliance with the Medicare Conditions of Participation (Social Security Act, Title 42, Code of Federal Regulations, Part 484.)
§97.402(c)-(e) separate penalties Compliance with §97.701(f) of this chapter (relating to Home Health Aides) for an agency that implements a competency evaluation program.
§97.404(c) Qualifications of agency staff performing personal assistance services.
§97.404(d) Tasks authorized under a personal assistance services license category.
§97.404(g) Enforcement of a written policy that addresses the supervision of agency personnel with input from the client or family on the frequency of supervision.
§97.404(g)(1)-(2) separate penalties Conditions and qualifications for supervising agency personnel delivering personal assistance services.
§97.404(h)(1)-(5) separate penalties Performance of gastrostomy tube feedings and medication administration for an agency that provides personal assistance services.
§97.405(a) Requirements for agencies that provide peritoneal dialysis or hemodialysis services.
§97.405(c)(1)-(2) separate penalties Qualifications and responsibilities of the medical director for an agency that provides home dialysis services.
§97.405(e)(1)(A)-(C) separate penalties Provision and supervision of nursing services for an agency that provides home dialysis services.
§97.405(e)(2) Provision of nutritional counseling for an agency that provides home dialysis services.
§97.405(e)(3) Provision of medical social services for an agency that provides home dialysis services.
§97.405(f)(1) Requirements for orientation and training of personnel providing direct care to clients receiving home dialysis services.
§97.405(f)(2)(A)-(G) separate penalties Requirement for an orientation and skills education period for licensed nurses.
§97.405(i) Requirement that an agency coordinate the exchange of medical and other important information when transferring a home dialysis client to a health-care facility for treatment.
§97.405(k) Requirement for routine hepatitis testing of home dialysis clients and agency employees providing dialysis care.
§97.405(k)(1)(A)-(C) separate penalties Requirements for hepatitis B screening and vaccinations for staff.
§97.405(k)(2)(A)-(E) separate penalties Requirements for hepatitis B screening and vaccinations for clients.
§97.405(l) Requirements for employees providing direct care to clients to have a current CPR certification.
§97.405(m) Requirement for initial admission assessment of a client for home dialysis services.
§97.405(n) Requirement for development of a long-term program for a client receiving home dialysis services.
§97.405(o) Requirement that the agency conducts a history and physical of a home dialysis client at admission and annually.
§97.405(p)(1)-(2) separate penalties Requirement for physician orders for home self-assisted dialysis treatment.
§97.405(q)(1)-(7) separate penalties Requirements for development and implementation of a care plan for a home dialysis client.
§97.405(r) Requirement for medication administration by licensed personnel for an agency that provides home dialysis services.
§97.405(s)(2)-(3) separate penalties Additional requirements for maintaining client records in an agency that provides home dialysis services.
§97.405(t)(1)-(4) separate penalties Requirements for use of water in the home dialysis setting.
§97.405(u) Adoption and enforcement of a policy to test dialysis equipment prior to each treatment.
§97.405(v) Enforcing the agency’s written preventive maintenance program for home dialysis equipment.
§97.405(v)(1), (1)(A), (1)(C)-(D), and (2) separate penalties Implementing requirements for a written preventive maintenance program for home dialysis equipment.
§97.405(w)(1)-(6) separate penalties Reuse of disposable medical devices in the home dialysis setting.
§97.405(x)(1)-(2) Provision of laboratory services.
§97.405(x)(3)-(4) separate penalties Provision of laboratory services.
§97.405(y)(1)-(2) separate penalties Supplies for home dialysis services.
§97.405(z)(1)-(7) separate penalties Compliance with policies and procedures for medical emergencies and emergencies resulting from a disaster required of an agency that provides home dialysis services.
§97.406(2)-(5) separate penalties Provision of psychoactive services.
§97.407(1)-(11) separate penalties Provision of intravenous therapy services.
§97.523(e) Requirement to grant the surveyor entry to the agency if closed when the surveyor arrives during regular business hours.
§97.701(a)-(f)(1)-(7) separate penalties Home health aides.
§97.801(a) Adoption or enforcement of written policies relating to the standards for providing hospice services.
§97.801(d) Compliance with the Medicare Conditions of Participation in 42, CFR, Part 418, Hospice care.
§97.810(a) and (b) separate penalties Time requirements for completing a hospice initial assessment and using it to initiate hospice services.
§97.811(a)(1)-(4), (b), and (c)(1)-(8) separate penalties Requirements for the hospice comprehensive assessment.
§97.812(a) and (b)(1)-(3) separate penalties Requirements for updating the hospice comprehensive assessment.
§97.813(a) and (b)(1)-(5) separate penalties Including data elements in the hospice comprehensive assessment to measure outcomes.
§97.820(a) Approach to service delivery by the hospice interdisciplinary team.
§97.820(a), (b)(1)-(4), (c) and (d) separate penalties Requirements for a hospice interdisciplinary team.
§97.821(a)-(d)(1)-(6) and (e) separate penalties Requirements for a hospice plan of care for a client.
§97.822(a) and (b) separate penalties Review and revision of a hospice plan of care.
§97.823(1) Interdisciplinary team responsibilities for coordinating hospice services.
§97.830(a)(1)-(4) and (c) separate penalties Requirements for the provision of hospice core services.
§97.831(a)-(d) separate penalties Providing and supervising hospice physician services.
§97.832(a) and (b) separate penalties Providing hospice nursing services.
§97.833(a), (c), and (d) separate penalties Social worker qualifications and providing hospice medical social services.
§97.834(a), (b)(1)(A)-(D), (b)(2) and (b)(3)(A)-(C) separate penalties Requirements for hospice counseling services.
§97.840(a)(1)-(5) and (b) separate penalties Providing hospice non-core services.
§97.841 Providing hospice therapy services.
§97.842(b)(1)-(4), (c)(1)-(6), (d)(1)-(2), and (e)(1)-(5) separate penalties Requirements for hospice aide services.
§97.843(a)-(c)(1)-(3), (d)(1)-(6), (e)(1)-(3), and (f) separate penalties Using a qualified hospice aide to provide hospice aide services.
§97.844(b)-(d) separate penalties Requirements for hospice homemaker services.
§97.845(a) and (b)(1)-(2) separate penalties Using a qualified hospice homemaker to provide hospice homemaker services.
§97.846(a) and (b) separate penalties A hospice agency’s use and coordination with services provided under a state Medicaid personal care benefit.
§97.850(a)(1)-(2), (c)(1)-(9), (d)(1)-(3), (e)(1)-(7), and (f) separate penalties Requirements for the organization and administration of hospice services.
§97.851(a) and (b)(1)-(2) separate penalties Hospice services provided by a licensed person.
§97.852 (a) and (b)(1)-(2) separate penalties Responsibilities of a hospice governing body and administrator.
§97.853(a)-(c)(1)-(2) and (d) separate penalties Hospice infection control program.
§97.854(a) and (b)(1)-(3) separate penalties Hospice professional management responsibility for contracted services.
§97.855(a) and (b) separate penalties Additional hospice requirements for criminal background checks.
§97.856(c)-(e) separate penalties Hospice alternate delivery sites.
§97.857(1)-(5) separate penalties Hospice staff training.
§97.858(a)-(g) separate penalties Hospice medical director.
§97.859(a)-(g) separate penalties Hospice discharge or transfer of care.
§97.860(a)-(d), (e)(1)-(2), (f), (g)(1)-(2), (h)-(j), (k)(1)-(5), (l)(1)-(3), (m), (n)(1)-(2), and (o)-(q) separate penalties Provision of drugs, biologicals, medical supplies, and durable medical equipment by a hospice.
§97.861(a)-(d) and (e)(1)-(8) separate penalties Hospice short-term inpatient care.
§97.870(a) and (b)(1)-(3) separate penalties Staffing in a hospice inpatient unit.
§97.871(a)(1)-(2)(A)-(G), (b)(1)-(4), (c)(1) and (4)(A)-(D), (d)(1)-(4), (e)(1)-(5), (f), (g)(1)-(2), (h)-(k)(1)-(3), (l)(1)-(16), (m)(1)-(4), (n)(1)(A)-(C) and (2)-(4) separate penalties

Physical environment in a hospice inpatient unit.

§97.880(a), (b)(1)-(10), (c)(1)-(3), (d)(1)-(3), and (e) separate penalties Providing hospice services to residents of a skilled nursing facility, nursing facility, or an intermediate care facility for individuals with an intellectual disability or related conditions.

(i) Violations for which DADS may assess an administrative penalty of $500.

(1) DADS may assess an administrative penalty of $500 for each of the violations listed in subsection (e)(4) and (5) of this section, without providing an agency with an opportunity to correct the violation.

(2) A separate penalty may be assessed for each of these violations.

(j) Proposal of administrative penalties.

(1) If DADS assesses an administrative penalty, DADS provides a written notice of violation letter to an agency. The notice includes:

(A) a brief summary of the violation;

(B) the amount of the proposed penalty; and

(C) a statement of the agency's right to a formal administrative hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.

(2) An agency may accept DADS determination not later than 20 days after the date on which the agency receives the notice of violation letter, including the proposed penalty, or may make a written request for a formal administrative hearing on the determination.

(A) If an agency notified of a violation accepts DADS determination, the DADS commissioner or the DADS commissioner's designee issues an order approving the determination and ordering that the agency pay the proposed penalty.

(B) If an agency notified of a violation does not accept DADS determination, the agency must submit to the Health and Human Services Commission a written request for a formal administrative hearing on the determination and must not pay the proposed penalty. Remittance of the penalty to DADS is deemed acceptance by the agency of DADS determination, is final, and waives the agency's right to a formal administrative hearing.

(C) If an agency notified of a violation fails to respond to the notice of violation letter within the required time frame, the DADS commissioner or the DADS commissioner's designee issues an order approving the determination and ordering that the agency pay the proposed penalty.

(D) If an agency requests a formal administrative hearing, the hearing is held in accordance with the statute, §142.0172, §142.0173, and the formal hearing procedures in 1 TAC Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act), and Chapter 91 of this title (relating to Hearings Under the Administrative Procedure Act).

 

§97.603 Court Action

(a) If a person operates an agency without a license issued under this chapter, the person is liable for a civil penalty of not less than $1,000 or more than $2,500 for each day of violation.

(b) If a person violates the licensing requirements of the statute, DADS may petition the district court to restrain the person from continuing the violation.

 

§97.604 Surrender or Expiration of a License

(a) After a survey in which a surveyor cited deficiencies, an agency may surrender its license or allow its license to expire to avoid enforcement action by DADS.

(b) If an agency surrenders its license before the expiration date, the agency must return its original license and provide the following information to DADS:

(1) the effective date of closure;

(2) the location of client records;

(3) the name and address of the client record custodian;

(4) a statement signed and dated by the license holder agreeing to the surrender of the license; and

(5) the disposition of active clients at the time of closure.

(c) If an agency surrenders its license or allows its license to expire, DADS denies an application for license by the agency, its license holder, and its affiliate for one year after the date of the surrender or expiration.