Revision 12-2

 

 

§90.321 Determination of Employability

 

(a) A facility must comply with Texas Health and Safety Code, Chapter 250 (relating to Nurse Aide Registry and Criminal History Checks of Employees and Applicants for Employment in Certain Facilities Serving the Elderly or Persons with Disabilities).

(b) Before a facility hires an applicant for employment, the facility must search the employee misconduct registry (EMR) established under the Health and Safety Code, §253.007, and the nurse aide registry (NAR) maintained under the Omnibus Budget Reconciliation Act of 1987 (Public Law Number 100-203) to determine if the applicant is designated in the EMR or NAR as unemployable. The EMR and NAR may be accessed on the DADS Internet website.

(c) In addition to the initial search of the EMR and NAR, a facility must conduct a search of the EMR and NAR to determine if the employee is designated in either registry as unemployable, as follows:

(1) for an employee most recently hired before September 1, 2009, by August 31, 2011 and at least every twelve months thereafter; and

(2) for an employee most recently hired on or after September 1, 2009, at least every twelve months.

(d) A facility must keep a copy of the results of the initial and annual searches of the EMR and NAR in the employee's personnel file and make it available to DADS upon request.

(e) A facility is prohibited from hiring or continuing to employ a person who is listed in the EMR or NAR as unemployable.

(f) A facility must provide information about the EMR to an employee in accordance with §93.3 of this title (relating to Employment and Registry Information).

 

§90.323 Procedures for Inspection of Public Records

 

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

(b) The Long Term Care-Regulatory, Texas Department of Human Services (DHS), is responsible for the maintenance and release of records on licensed facilities, and other related records.

(c) The application for inspection of public records is subject to the following criteria.

(1) the application must be made to Long Term Care-Regulatory, Texas Department of Human Services, 8407 Wall Street, Austin, Texas 78754;

(2) the requestor must identify himself;

(3) the requestor must give reasonable prior notice of the time for inspection and/or copying of records;

(4) the requestor must specify the records requested;

(5) on written applications, if DHS is unable to ascertain the records being requested, DHS may return the written application to the requestor for clarification; and

(6) DHS will provide the requested records as soon as possible; however, if the records are in active use, or in storage, or time is needed for proper de-identifica tion or preparation of the records for inspection, DHS will so advise the requestor and set an hour and date within a reasonable time when the records will be available.

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

(e) Records maintained by Long Term Care-Regulatory are open to the public, with the following exceptions:

(1) incomplete reports, audits, evaluations, and investigations made of, for, or by DHS are confidential;

(2) all reports, records, and working papers used or developed by DHS in an investigation of reports of abuse and neglect are confidential, and may be released to the public only as follows:

(A) completed written investigation reports are open to the public, provided the report is de-identified. The process of de-identification means removing all names and other personally identifiable data, including any information from witnesses and others furnished to DHS as part of the investigation; and

(B) if DHS receives written authorization from a facility resident or the resident's legal representative regarding an investigation of abuse or neglect involving that resident, DHS will release the completed investigation report without removing the resident's name. The authorization must:

(i) be signed and dated within six months of the request or state a length of time the authorization is valid;

(ii) detail the information to be released;

(iii) identify to whom the information can be released; and

(iv) release DHS from all liability for complying with the authorization.

(3) all names and related personal, medical, or other identifying information about a resident are confidential;

(4) information about any identifiable person which is defamatory or an invasion of privacy is confidential;

(5) information identifying complainants or informants is confidential;

(6) itineraries of surveys and inspections are confidential;

(7) other information that is excepted from release by the Government Code, Chapter 552, is not available to the public; and

(8) to implement this subsection, DHS may not alter or de-identify original records. Instead, DHS will make available for public review or release only a properly de-identified copy of the original record.

(f) Long Term Care-Regulatory will charge for copies of records upon request.

(1) If the requestor wants to inspect records, the requestor will specify the records to be inspected. DHS will make no charge for this service, unless the director of Long Term Care-Regulatory determines a charge is appropriate based on the nature of the request.

(2) If the requestor wants copies of a record, the requestor will specify in writing the records to be copied on an appropriate DHS form, and DHS will complete the form by specifying the charge for the records, which the requestor must pay in advance. Checks and other instruments of payment must be made payable to the Texas Department of Human Services.

(3) Any expenses for standard-size copies incurred in the reproduction, preparation, or retrieval of records must be borne by the requestor on a cost basis in accordance with costs established by the State Purchasing and General Services Commission or DHS for office machine copies.

(4) For documents that are mailed, DHS will charge for the postage at the time it charges for the production. All applicable sales taxes will be added to the cost of copying records.

(5) When a request involves more than one long-term care facility, each facility will be considered a separate request.

 

§90.324 Emergency Medication Kit

 

Stocks of inventoried emergency medications may be kept in facilities.

(1) Emergency medication kits must be maintained in compliance with the Texas State Board of Pharmacy rules in 22 TAC §291.20 (relating to Remote Pharmacy Services).

(2) Facilities must have contracts with the provider pharmacy that provides the emergency medication kit. The contract must outline the services to be provided by the pharmacy and the responsibilities and accountabilities of each party in fulfilling the terms of the contract in compliance with federal and state laws and regulations.

 

§90.325 Controlled Substances

 

The facility must adhere to the following procedures governing the use of drugs covered by the Controlled Substances Act.

(1) A separate record must be maintained for each drug covered by Schedules II, III, and IV of the Controlled Substances Act, Health and Safety Code, Chapter 481.

(2) The record for each drug must contain the prescription number, name, and strength of drug, date received by the facility, date and time administered, name of resident, dose, physician's name, signature of person administering dose, and original amount dispensed with the balance verifiable by drug inventory at every shift change.

(3) Schedule V drugs are exempt from the requirements in paragraphs (1) and (2) of this section.

 

§90.326 Required Postings

 

A facility must prominently post for display in an area of the facility that is readily available to residents, employees, and visitors:

(1) the license issued under this chapter;

(2) a notice prescribed by DADS describing complaint procedures;

(3) a notice providing instructions for reporting an allegation of abuse, neglect, or exploitation to DFPS;

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

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

(6) a notice, in English and Spanish, stating that employees, other staff, residents, volunteers, and family members and guardians of residents are protected from discrimination or retaliation as specified in the Health and Safety Code, §§252.132-252.133 (relating to Suit for Retaliation and Suit for Retaliation Against Resident).

 

§90.327 Notice of Changes in Key Personnel

 

A facility must notify the department no later than 30 days after the date of hire of the administrator.

 

§90.328 Retaliation Prohibited

 

A facility must not discharge or otherwise retaliate against:

(1) an employee, resident, or other person because the employee, resident, or other person files a complaint, presents a grievance, or otherwise provides in good faith information relating to the misuse of restraint or seclusion at the facility; or

(2) a resident because someone on behalf of the resident files a complaint, presents a grievance, or otherwise provides in good faith information relating to the misuse of restraint or seclusion at the facility.

 

§90.329 Vaccine Preventable Diseases

 

(a) Effective September 1, 2012, a facility must develop and implement a policy to protect a resident from vaccine preventable diseases in accordance with Texas Health and Safety Code, Chapter 224.

(b) The policy must:

(1) require an employee or a contractor providing direct care to a resident to receive vaccines for the vaccine preventable diseases specified by the facility based on the level of risk the employee or contractor presents to residents by the employee's or contractor's routine and direct exposure to residents;

(2) specify the vaccines an employee or contractor is required to receive in accordance with paragraph (1) of this subsection;

(3) include procedures for the facility to verify that an employee or contractor has complied with the policy;

(4) include procedures for the facility to exempt an employee or contractor from the required vaccines for the medical conditions identified as contraindications or precautions by the Centers for Disease Control and Prevention;

(5) for an employee or contractor who is exempt from the required vaccines, include procedures the employee or contractor must follow to protect residents from exposure to disease, such as the use of protective equipment, such as gloves and masks, based on the level of risk the employee or contractor presents to residents by the employee's or contractor's routine and direct exposure to residents;

(6) prohibit discrimination or retaliatory action against an employee or contractor who is exempt from the required vaccines for the medical conditions identified as contraindications or precautions by the Centers for Disease Control and Prevention, except that required use of protective medical equipment, such as gloves and masks, may not be considered retaliatory action;

(7) require the facility to maintain a written or electronic record of each employee's or contractor's compliance with or exemption from the policy;

(8) include disciplinary actions the facility may take against an employee or contractor who fails to comply with the policy.

(c) The policy may:

(1) include procedures for an employee or contractor to be exempt from the required vaccines based on reasons of conscience, including religious beliefs; and

(2) prohibit an employee or contractor who is exempt from the required vaccines from having contact with residents during a public health disaster, as defined in Texas Health and Safety, §81.003 (relating to Definitions).