Revision 16-1

 

 

§90.231 Warning Letter

 

When Texas Department of Human Services (DHS) personnel determine that a facility is out of compliance with licensure rules to a degree that places the facility at risk of the imposition of licensing actions, DHS may send a warning letter to the facility. The warning letter notifies the facility that the violations of licensing rules must be corrected.

 

§90.232 License Suspension

 

(a) The Texas Department of Human Services (DHS) may suspend a facility's license when the facility's violation of the licensure rules threatens to jeopardize the health and safety of residents.

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

(c) The facility will be notified by certified mail of DHS's 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 §90.18 of this title (relating to Informal Reconsideration). If the facility requests an informal reconsideration, DHS will give the license holder a written affirmation or reversal of the proposed action.

(d) The facility will be notified by certified mail of DHS's suspension of the facility's license. The facility has 15 days from receipt of the certified mail notice to request a hearing in accordance with §§79.1601-79.1614 of this title (relating to Formal Hearings). 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 DHS determines that the reason for suspension no longer exists. DHS will conduct an on-site investigation prior to making a determination. During the suspension, the license holder must return the license to DHS.

 

§90.233 Revocation

 

(a) The Texas Department of Human Services (DHS) may revoke a facility's license when:

(1) the facility's violation of the licensure rules jeopardizes the health and safety of residents; or

(2) the facility has violated the requirements of the Health and Safety Code, Chapter 252, or the rules adopted under that chapter, in either a repeated or substantial manner.

(b) In addition, DHS may revoke a license if the license holder:

(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 §90.13 of this title (relating to Applicant Disclosure Requirements) that would have been the basis to deny the license under §90.17 of this title (relating to Criteria for Denying a License or Renewal); or

(4) received monetary or other remuneration from a person or agency that furnishes services or materials to the facility or individuals for a fee.

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

(d) The facility will be notified by certified mail of DHS's 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 §90.18 of this title (relating to Informal Reconsideration). If the facility requests an informal reconsideration, DHS will give the license holder a written affirmation or reversal of the proposed action.

(e) The facility will be notified by certified mail of DHS's intent to revoke the license, including the facts or conduct alleged to warrant the revocation. The facility has 15 days from receipt of the certified mail notice to request a hearing in accordance §§79.1601-79.1614 of this title (relating to Formal Hearings). The revocation will take effect when the deadline for appeal of the revocation passes, unless the facility appeals the revocation. If the facility appeals the revocation, the status of the license holder is preserved until final disposition of the contested matter. Upon revocation, the license must be returned to DHS.

 

§90.234 Emergency License Suspension and Closing Order

 

(a) The Texas Department of Human Services (DHS) may suspend a facility's license or order an immediate closing of part of the facility if:

(1) DHS 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 resident.

(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 written notice or a later date specified in the order. Written notice includes notice by facsimile transmission.

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

(d) When an emergency suspension has been ordered and the conditions in the facility indicate that residents should be relocated, the following rules apply:

(1) A resident's rights or freedom of choice in selecting treatment facilities will be respected.

(2) If a facility or part thereof is closed:

(A) DHS will notify the Texas Department of Mental Health and Mental Retardation (TDMHMR), 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 resident's guardian or responsible party and attending physician, advising them of the action in process;

(C) the resident or the resident's guardian or responsible person will have an opportunity to designate a preference for a specific facility or for other arrangements;

(D) DHS must contact TDMHMR to arrange for relocation to other facilities in the area in accordance with the resident's preference. A facility chosen for relocation must be in good standing with DHS and, if certified under Titles XVIII and XIX of the Social Security Act, must be in good standing under its contract. The facility chosen must be able to meet the needs of the resident;

(E) if absolutely necessary, to prevent transport over substantial distances, DHS will grant a waiver to a receiving facility to temporarily exceed its licensed capacity, provided the health and safety of residents 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 DHS staff, until residents can be transferred to a permanent location;

(F) with each resident 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 party responsible for the resident; attending physician; Medicare and Medicaid identification number; social security number; and other identification information as deemed necessary and available;

(iii) all medication dispensed in the name of the resident for which physician's orders are current. The medication must be inventoried and transferred with the resident. Medications past an expiration date or discontinued by physician order must be inventoried for disposition in accordance with state law;

(iv) the residents' personal belongings, clothing, and toilet articles. An inventory of personal property and valuables must be made by the closing facility; and

(v) 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;

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

(H) any return to the facility must be treated as a new admission, including, but not limited to, exchange of medical information, medications, and completion of required forms.

(e) A licensee whose facility is closed under this section, is entitled to request an administrative hearing in accordance with §§79.1601-79.1614 of this title (relating to Formal Hearings), but a hearing request does not suspend the effectiveness of the order.

 

§90.235 Referral to the Attorney General

 

(a) The Texas Department of Human Services (DHS) may petition a district court for a temporary restraining order to restrain a person from continuing a violation of the standards prescribed by this chapter if DHS finds that the violation creates an immediate threat to the health and safety of the facility's residents.

(b) A district court, on petition by DHS, may by injunction:

(1) prohibit a person from continuing a violation of the standards or licensing requirements prescribed by this chapter;

(2) restrain or prevent the establishment, conduct, management, or operation of a facility without a license issued under this chapter; or

(3) grant the injunctive relief warranted by the facts on a finding by the court that a person is violating the standards or licensing requirements prescribed by this chapter.

(c) DHS may refer a facility to the attorney general for the assessment of civil penalties under the Texas Health and Safety Code, §252.064, for a violation that threatens the health and safety of a resident.

 

§90.236 Administrative Penalties

 

(a) DADS may assess administrative penalties against a person who:

(1) violates Texas Health and Safety Code, Chapter 252, or any rule, standard, or order adopted or a license issued under such chapter;

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

(A) on an application for issuance or renewal of a license or in documentation submitted to DADS in support of the application; or

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

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

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

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

(4) willfully interferes with the work of a representative of DADS or the enforcement of Texas Health and Safety Code, Chapter 252;

(5) willfully interferes with a representative of DADS preserving evidence of a violation of Texas Health and Safety Code, Chapter 252, or a rule, standard, or order adopted or license issued under such chapter;

(6) fails to pay a penalty assessed by DADS under Texas Health and Safety Code, Chapter 252, not later than the 10th day after the date the assessment of the penalty becomes final;

(7) fails to submit a plan of correction to DADS within 10 working days after receiving the final statement of licensing violations; or

(8) fails to notify DADS of a change in ownership before the effective date of that change of ownership.

(b) Definitions:

(1) For purposes of this section, a "violation" is defined as any noncompliance with Texas Health and Safety Code, Chapter 252, or any rule under this chapter.

(2) For purposes of this section, "immediate and serious threat" means a situation in which there is a high probability that serious harm or injury to residents could occur at any time or has already occurred and may occur again if individuals are not protected effectively from the harm or if the threat is not removed. "Immediate and serious threat" is described in Appendix Q of the State Operations Manual, "Guidelines for Determining Immediate and Serious Threat to Patient Health and Safety."

(3) For the purposes of this section, "serious harm" is any condition or situation that could result in severe, temporary or permanent injury, or death, or harm to the mental or physical condition of an individual.

(4) For the purposes of this section, "previous history" means any violation that resulted in the recommendation of an administrative penalty documented against a facility in the 24-month period immediately preceeding the citation of the violation.

(c) Failure to meet the requirements of §90.42(c) of this chapter (relating to Standards for Facilities Serving Persons with Mental Retardation or Related Conditions) is a cause to assess an administrative penalty.

(d) When a violation cited by DADS is determined to be within the scope, severity, and description of the penalty schedules as stated in subsection (m) of this section, the violation may be cause for assessment of a penalty as described in this section and as listed in subsection (m) of this section. In determining which violations warrant penalties, DADS will consider:

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

(2) whether the affected facility had identified the violation as part of its internal quality assurance process and had made appropriate progress on correction.

(e) No facility will be penalized because of a physician's or consultant's nonperformance beyond the facility's control or if documentation clearly indicates the violation is beyond the facility's control.

(f) An offense is defined as a sum of the licensure violations found during an inspection. The first offense violations carry the penalty shown in the "first offense" column under subsections (l) and (m) of this section. The second offense violations carry the penalty shown in the "second offense" column. The third offense violations carry the penalty shown in the "third offense" column. An offense is counted against the facility even if the facility corrected the prior violation and an administrative penalty was not actually imposed.

(g) The progression of offenses described in subsection (f) of this section applies to facilities regardless of license renewals; however, when a facility has not had an offense for a period of two years, the facility's next offense will be in the "first offense" column under subsections (l) and (m) of this section. A suspension of a license and subsequent reinstatement does not interrupt the progression.

(h) The administrative penalty begins on the date DADS first established the deficiency existed. Administrative penalties will not be imposed on minor infractions. Penalties will be imposed on a per diem basis for those infractions in the administrative penalty schedule, as outlined under subsection (m) of the section. If DADS determines that a violation has occurred that will result in an administrative penalty, the penalty for a facility with fewer than 60 beds will be not less than $100 or more than $1,000 for each violation. The penalty for a facility with 60 beds or more will not be less than $100 or more than $5,000 for each violation. The total amount of the penalty assessed for a violation continuing or occurring on separate days under this subsection may not exceed $5,000 for a facility with fewer than 60 beds or $25,000 for a facility with 60 beds or more.

(i) A per diem penalty ceases on the date a violation has been corrected, and the facility:

(1) notifies DADS in writing that the violation has been corrected; and

(2) provides the date of the correction; and

(3) evidences later that the violation was corrected.

(j) If DADS determines that a violation has occurred and that an administrative penalty is proposed, DADS gives written notice of the proposal to assess an administrative penalty to the person designated by the facility to receive notice. The notice will include:

(1) a brief summary of the alleged violation;

(2) a statement of the amount of the proposed penalty based on the factors listed in subsections (d), (l) and (m) of this section; and

(3) a statement of the person's right to a hearing on the occurrence of the violation, the amount of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.

(k) A facility for which an administrative penalty has been proposed may file a request for a hearing with the Health and Human Services Commission. The hearing must be requested in accordance with 1 TAC §357.484 (relating to Requests for a Hearing) except, as provided by Texas Health and Safety Code, §252.066, the facility must make a written request for a hearing within 20 calendar days after the date on which the facility receives written notice of the administrative penalty. A hearing requested under this section is governed by 1 TAC Chapter 357, Subchapter I, (relating to Hearings Under the Administrative Procedure Act).

(l) Assessments for violations warranting administrative penalties for licensed facilities, for which there is no right to correct prior to administrative penalty assessment are as follows:

(m) Assessments for violations warranting administrative penalties for licensed facilities for which there is a right to correct prior to administrative penalty assessment are as follows:

 

§90.237 Appointment of a Trustee by Agreement

 

(a) A person holding a controlling interest in a facility may, at any time, request the Texas Department of Human Services (DHS) to assume the operation of the facility through the appointment of a trustee.

(b) If DHS believes that the appointment of a trustee is desirable, DHS may enter into an agreement with the person holding the controlling interest for the appointment of the trustee to take charge of the facility.

(c) Any agreement entered into under this section must:

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

(2) preserve all rights of the residents as granted by law.

(d) The agreement will terminate either at a time specified in the agreement or upon receipt of notice of intent to terminate sent by either party.

(e) If DHS determines that termination of the agreement by the person holding a controlling interest in the facility would not be in the best interest of the residents, DHS will petition a court for an involuntary appointment under the terms of §90.238 of this title (relating to Involuntary Appointment of a Trustee).

(f) The appointment of a trustee by agreement does not suspend the obligation of a facility to pay assessed civil money or administrative penalties.

 

§90.238 Involuntary Appointment of a Trustee

 

(a) The Texas Department of Human Services (DHS) may petition a court of competent jurisdiction for the involuntary appointment of a trustee to operate a facility if 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) license suspension or revocation procedures against a facility are pending and an imminent threat to the health and safety of the residents exists;

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

(b) A trustee appointed under this section is entitled to a reasonable fee as determined by the court to be paid from the Nursing and Convalescent Home trust fund.

(c) The trustee may use the emergency assistance funds in the trust fund only to alleviate an immediate threat to the health and safety of the residents, through such disbursements as payments for food; medication; sanitation services; minor repairs; supplies necessary for personal hygiene; or services necessary for the personal care, health and safety of the residents.

(d) Before emergency assistance funds may be dispersed, a court order must be entered authorizing DHS to disburse emergency assistance funds to the facility.

(e) A facility that receives emergency assistance funds under this section must reimburse DHS for the amounts received not later that one year after the date on which the funds were received by the trustee. The owner of the facility at the time the trustee was appointed is responsible for the reimbursement and must pay interest from the date the funds were disbursed on the amount outstanding at a rate equal to the rate of interest determined under Texas Civil Statutes, Article 5069-1.05, to be applicable to judgments rendered during the month in which the money was disbursed to the facility. DHS will deposit the reimbursement and the interest received under this subsection to the credit of the Nursing and Convalescent Home Trust Fund.

(f) Any amount remaining due at the end of one year becomes delinquent and will be referred to the attorney general.

(g) The Texas Department of Mental Health and Mental Retardation may determine that the facility is ineligible for a Medicaid provider contract.

 

§90.239 Notification of Closure

 

(a) In this section, the terms "close" and "closure" refer to a facility ceasing to operate. The terms do not include temporarily relocating residents of a facility.

(b) Except as provided in subsection (c) of this section, if a license holder intends to voluntarily close a facility, the license holder must, at least 60 days before the facility closes:

(1) send written notice of the license holder's intent to close the facility, including the anticipated date of closure, to:

(A) DADS; and

(B) a resident; and

(2) make reasonable efforts to send written notice of the license holder's intent to close the facility, including the anticipated date of closure to:

(A) a resident's legally authorized representative; or

(B) if the resident does not have a legally authorized representative, the resident's nearest relative.

(c) If, for reasons beyond the license holder's control, the license holder cannot provide the notice required by subsection (b) of this section at least 60 days before the license holder anticipates closing the facility, the license holder must state in the notice the reason why a shorter time period is necessary.

(d) If DADS requires a facility to close or the facility's closure is in any other way involuntary, the license holder must, immediately after becoming aware that the facility is closing:

(1) send written notice of the closure, including the anticipated date of closure, to:

(A) DADS, if DADS is not requiring the facility to close; and

(B) a resident; and

(2) make reasonable efforts to send written notice of the closure, including the anticipateddate of closure to:

(A) a resident's legally authorized representative; or

(B) if the resident does not have a legally authorized representative, the resident's nearest relative.

(e) A license holder must submit the license of a closing facility to DADS with the notice required by subsection (b)(1)(A) or (d)(1)(A) of this section. If notice is not provided in accordance with subsection (b)(1)(A) or (d)(1)(A) of this section because DADS is requiring a facility to close, the license holder must submit the license to DADS when the closure is final.

 

§90.240 Right to Correct

 

(a) Except as provided in subsection (b) of this section, before imposing an administrative penalty, DADS will provide a reasonable period of time, not less than 45 days, to correct a violation if a plan of correction is implemented. A facility may request a shorter period of time to correct the violation by submitting a specific written request for an early inspection to clear the violation. If, during the requested early inspection, DADS finds that the correction is not satisfactory, an administrative penalty may immediately be assessed from the first day of violation.

(b) DADS is not required to give a facility the right to correct a violation prior to assessing an administrative penalty if DADS determines that the violation:

(1) has resulted in serious harm to or death of a resident;

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

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

(4) is described in §90.236(a)(2)-(8) of this subchapter (related to Administrative Penalties).

(c) DADS may not assess an administrative penalty for a minor violation if the facility corrects the violation not later than the 46th day after the facility receives notice of the violation.

(d) If the facility reports to DADS that the violation has been corrected, DADS will inspect the correction or take any other steps necessary to confirm that the violation has been corrected and notify the facility that:

(1) the correction is satisfactory and a penalty is not assessed; or

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

(e) If the facility wishes to appeal the administrative penalty, the facility must file a notice to request a hearing on the violation or penalty no later than the 20th calendar day after the date on which the notice to pay an administrative penalty is received.

 

§90.241 Amelioration of Violation

 

(a) In lieu of demanding payment of an administrative penalty, the commissioner may allow the person to use, under the supervision of the Texas Department of Human Services (DHS), a portion of the penalty to ameliorate the violation or to improve services, other than administrative services, in the facility.

(b) DHS will offer amelioration to a person for a violation if DHS determines that the violation does not constitute immediate jeopardy to the health and safety of a resident. In this section, "immediate jeopardy to health and safety" means a situation in which immediate corrective action is necessary because the facility's noncompliance with one or more requirements has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.

(c) DHS will not offer amelioration to a person if

(1) the person has been charged with a violation which is subject to the right-to-correct, or

(2) DHS determines that the violation constitutes immediate jeopardy to the health and safety of a resident.

(d) DHS will offer amelioration to a person not later than the 10th day after the date the person receives from DHS a final notification of assessment of administrative penalty that is sent to the person after an informal dispute resolution process but before an administrative hearing.

(e) A person to whom amelioration has been offered must file a plan for amelioration not later than the 45th day after the date the person receives the offer of amelioration from DHS. In submitting the plan, the person must agree to waive the person's right to an administrative hearing if DHS approves the plan.

(f) At a minimum, a plan for amelioration must:

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

(2) 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,

(3) establish clear goals to be achieved through the proposed changes,

(4) establish a timeline for implementing the proposed changes, and

(5) identify specific actions necessary to implement the proposed changes.

(g) DHS may require that an amelioration plan propose changes that would result in conditions that exceed the minimum requirements for facility licensure.

(h) DHS will approve or deny an amelioration plan not later than the 45th day after the date DHS receives the plan. On approval of a person's plan, DHS will deny a pending request for a hearing submitted by the person.

(i) DHS will not offer amelioration to a person:

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

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