Revision 17-1; Effective February 15, 2017

 

Note: The Department of Aging and Disability Services (DADS) maintains rules on this website to enhance public access to information concerning its programs. The Texas Register and the Texas Administrative Code remain the official sources for all DADS rules.

 

§18.51 Referral and Complaint Procedures

Effective June 1, 2009

 

(a) DADS' Professional Credentialing Enforcement Unit receives and investigates:

(1) referrals from Regulatory Services Division regional staff to determine an administrator's compliance with licensure requirements when survey findings cite deficiencies or substandard quality of care; and
(2) complaints alleging an administrator violated one or more of the licensure rules.

(b) Persons wanting to file a complaint against a licensee may contact the Professional Credentialing Enforcement Unit:

(1) by calling (512) 438-5495; or
(2) by writing the Department of Aging and Disability Services, Professional Credentialing Enforcement Unit, Mail Code E-302, ATTN: NFA Complaint Investigations, P.O. Box 149030, Austin, TX 78714-9030.

(c) DADS sends a Nursing Facility Administrator Complaint form to persons wanting to file a complaint. The complainant must complete, sign, and return the form to DADS.
(d) If a referral or complaint is received, the Professional Credentialing Enforcement Unit notifies the licensee and, if applicable, the person filing the complaint of the:

(1) alleged rule violation;
(2) assigned case number; and
(3) investigator contact information.

(e) DADS investigates referrals and complaints by first determining if a complaint is within Professional Credentialing Enforcement Unit authority to investigate, then by:

(1) reviewing pertinent documentation maintained by the facility, including financial and resident medical records;
(2) gathering additional evidence, including licensee and witness statements;
(3) determining licensee culpability for survey or investigative findings; and
(4) utilizing the services of a private investigator when special circumstances exist.

(f) DADS keeps records confidential in accordance with state and federal law.
(g) DADS prioritizes complaints as follows:

(1) Priority one complaints allege physical abuse, sexual abuse, neglect, serious injury, death, or immediate jeopardy to resident health or safety. Investigations are initiated within 24 hours of receipt or by the next working day
(2) Priority two complaints allege all other types of misconduct by the licensee. Investigations are initiated within 30 days of receipt.

(h) After the investigation is complete, a final report with supporting documentation is given to the NFAAC for review and recommendation consideration on the appropriate action.
(i) After evaluating the NFAAC's recommendation, DADS makes a decision to:

(1) impose a sanction;
(2) collect additional information; or
(3) dismiss the case.

(j) DADS notifies the licensee and, if applicable, the person filing a complaint of the status and final outcome of a complaint or referral.

 

§18.52 Informal Reviews

Effective February 15, 2017

 

(a) Before DADS initiates proceedings to revoke a license, suspend a license, or deny a license renewal, DADS gives a licensee:

(1) a description of the alleged rule violation warranting the proposed sanction; and
(2) an option to:

(A) request an informal review to demonstrate that the licensee did not commit the alleged violation; or
(B) accept the sanction.

(b) A licensee's request for an informal review must:

(1) be received by DADS within 10 calendar days after the licensee receives the notice letter from DADS; and
(2) contain documentation that refutes the allegations.

(c) DADS conducts the informal review:

(1) by telephone;
(2) in person; or
(3) by reviewing the licensee's written response and supporting evidence.

(d) DADS provides the licensee with official notice of the outcome of the informal review.

 

§18.53 Formal Hearings

Effective February 15, 2017

 

(a) DADS gives a licensee a formal hearing notice if:

(1) DADS proposes a sanction; or
(2) DADS upholds or modifies a proposed sanction after an informal review, in accordance with §18.52 of this subchapter (relating to Informal Reviews).

(b) The formal hearing notice to the licensee includes:

(1) a description of the alleged rule violations warranting the proposed sanction;
(2) DADS decision to uphold or modify the sanction if the notice is issued after an informal review; and
(3) the option for the licensee to;

(A) accept the sanction; or
(B) request a formal hearing no later than 20 days after receiving the formal hearing notice from DADS.

(c) DADS imposes a sanction against a licensee if:

(1) the licensee accepts the decision from DADS to impose the sanction;
(2) the administrative law judge upholds the proposed sanction from DADS after the formal hearing; or
(3) the licensee does not request a hearing within 20 days after receiving the formal hearing notice from DADS.

(d) A hearing is governed by 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).

 

§18.54 Rule or Statutory Violations

Effective February 15, 2017

 

DADS may impose sanctions listed in §18.57 of this subchapter (relating to Schedule of Sanctions) against a licensee for the following violations:

(1) the licensee willfully or repeatedly violated a provision of Texas Health and Safety Code, Chapter 242, or a rule in this chapter;
(2) the licensee willfully or repeatedly acted in a manner inconsistent with the health and safety of the residents of a nursing facility of which the licensee is an administrator;
(3) the licensee obtained or attempted to obtain a license through misrepresentation or deceit or by making a material misstatement of fact on a license application;
(4) the licensee's use of alcohol or drugs creates a hazard to the residents of a facility;
(5) a judgment of a court of competent jurisdiction finds that the licensee is mentally incapacitated;
(6) the licensee has been convicted in a court of competent jurisdiction of a misdemeanor or felony involving moral turpitude;
(7) the licensee has been convicted in a court of competent jurisdiction of an offense listed in §18.41(c) of the chapter (relating to Licensure of Persons with Criminal Backgrounds), including an offense listed in Texas Health and Safety Code, §250.006; or
(8) the licensee has been negligent or incompetent in the licensee's duties as a nursing facility administrator.

 

§18.55 Violations of Standards of Conduct

Effective June 1, 2009

 

(a) DADS may impose a sanction listed in §18.57 of this subchapter (relating to Schedule of Sanctions) against a licensee for violations of the following nursing facility administrator Standards of Conduct:

(1) A licensee must employ sufficient staff to adequately meet the needs of nursing facility residents as determined by care outcomes.
(2) A licensee must ensure that sufficient resources are present to provide adequate nutrition, medications, and treatments to nursing facility residents in accordance with physician orders as determined by care outcomes.
(3) A licensee must promote and protect the rights of nursing facility residents and ensure that employees, contractors, and others respect the rights of residents.
(4) A licensee must ensure that nursing facility residents remain free of chemical and physical restraints unless required by a physician's order to protect a nursing facility resident's health and safety.
(5) A licensee must report and direct nursing facility staff to report to the appropriate government agency any suspected case of abuse, neglect, or misappropriation of resident property as defined in §18.2 of this chapter (relating to Definitions).
(6) A licensee must ensure that the nursing facility is physically maintained in a manner that protects the health and safety of the residents and the public.
(7) A licensee must notify and direct employees to notify an appropriate government agency of any suspected cases of criminal activity as defined by state and federal laws.
(8) A licensee must post in the nursing facility where employed the notice provided by DADS that gives the address and telephone number for reporting complaints against an administrator. The notice must be posted in a conspicuous place and in clearly legible type.
(9) A licensee must not knowingly or through negligence commit, direct, or allow actions that result or could result in inadequate care, harm, or injury to a nursing facility resident.
(10) A licensee must not knowingly or through negligence allow nursing facility employees to harm nursing facility residents by coercion, threat, intimidation, solicitation, harassment, theft of personal property, or cruelty.
(11) A licensee must not knowingly or through negligence allow or direct employees to contradict or alter in any manner the orders of a physician regarding a nursing facility resident's medical or therapeutic care.
(12) A licensee must not knowingly commit or through negligence allow another individual to commit an act of abuse, neglect, or misappropriation of resident property as defined in §18.2 of this chapter.
(13) A licensee must not permit another individual to use his or her license or allow a nursing facility to falsely post his or her license.
(14) A licensee must not advertise or knowingly participate in the advertisement of nursing facility services in a manner that is fraudulent, false, deceptive, or misleading in form or content.
(15) A licensee must not knowingly allow, aid, or abet a violation by another licensed nursing facility administrator of the Texas Health and Safety Code, Chapter 242, Subchapter I, or the agency's rules adopted under that subchapter and must report such violations to DADS.
(16) A licensee must not make or allow employees, contractors, or volunteers to make misrepresentations or fraudulent statements about the operation of a nursing facility.
(17) A licensee must not allow an employee's, a contractor's, or another person's action or inaction to result in harassment or intimidation of any person for purposes of coercing that person to use the services or equipment of a particular health agency or facility.
(18) A licensee must not falsely bill for goods or services or allow another person to bill for goods or services other than those that have actually been rendered.
(19) A licensee must not make or file false reports or allow an employee, contractor, or volunteer to make or file a report that the licensee knows to be false.
(20) A licensee must not intentionally fail to file a report or record required by state or federal law, impede or obstruct such filings, or induce another person to impede or obstruct such filings.
(21) A licensee must not use or knowingly allow employees or others to use alcohol, narcotics, or other drugs in a manner that interferes with the performance of the administrator's or other person's duties.
(22) A licensee must not knowingly or through negligence violate any confidentiality provisions as prescribed by state or federal law concerning a nursing facility resident.
(23) A licensee must not interfere or impede an investigation by withholding or misrepresenting fact to DADS representatives, or by using threats or harassment against any person involved or participating in the investigation.
(24) A licensee must not display a license issued by DADS that is reproduced, altered, expired, suspended, or revoked.
(25) A licensee must not, knowingly or through negligence, allow employees or other individuals to mismanage a resident's personal funds deposited with the nursing facility.
(26) A licensee must not harass or intimidate employees of DADS, other government agencies, or their representatives concerning the administration of the nursing facility.
(27) A licensee must not offer or give any gift, loan, or other benefit to a person working for DADS unless the benefit is offered or given on account of kinship or a personal relationship independent of the official status of the person working for DADS.

(b) Negligence, as referenced in the Standards of Conduct in subsection (a) of this section, means the failure of a licensee to use such care as a reasonably prudent and careful licensee would use in similar circumstances, or failure to act as a reasonably prudent licensee would in similar circumstances.

 

§18.56 Violations by Unlicensed Persons

Effective June 1, 2009

 

(a) Persons with an expired license must not engage in activities that require a license.
(b) A person practicing as a licensed nursing facility administrator after license expiration:

(1) commits an offense punishable as a Class B misdemeanor;
(2) is subject to local criminal prosecution; and
(3) may be referred to the Office of Attorney General for civil penalties not to exceed $1,000 per violation per day for each day the violation continues.

(c) A licensee whose license expires before an investigation is complete, may still receive:

(1) a written reprimand; or
(2) an administrative penalty.
(d) A licensee allowing a license to expire instead of accepting a proposed license revocation is disqualified from licensure in Texas.
(e) A person with an expired license must return the license certificate to DADS.

 

§18.57 Schedule of Sanctions

Effective June 1, 2009

 

(a) DADS may impose one or more of the following sanctions against a licensee for violations listed in §18.54 of this subchapter (relating to Rule or Statutory Violations) and §18.55 of this subchapter (relating to Violations of Standards of Conduct):

(1) revocation of license;
(2) license suspension;
(3) denial of application for license renewal;
(4) assessment of an administrative penalty;
(5) written letter of reprimand;
(6) requiring a licensee to participate in continuing education; or
(7) probation.

(b) If a sanction is probated, DADS may require the licensee to:

(1) report regularly to DADS on matters that are the basis of the probation;
(2) limit practice to the areas prescribed by DADS;
(3) practice under the direct supervision or guidance of a DADS-certified preceptor as specified in §18.14 of this chapter (relating to Preceptor Requirements) ; or
(4) complete prescribed continuing education until the licensee attains a degree of skill satisfactory to DADS in those areas that are the basis of the probation.

(c) Civil penalties may result from a referral to the Office of Attorney General not to exceed $1,000 per violation per day for each day the violation continues.
(d) Administrative penalties may not exceed $1,000 per violation per day for each day the violation continues.
(e) The amount the administrative penalty is assessed is based on:

(1) the seriousness of the violation, including:

(A) the nature, circumstances, extent, and gravity of prohibited acts; and
(B) the hazard or potential hazard created to the health, safety, or economic welfare of the public;

(2) economic harm to property or environment;
(3) history of previous violations;
(4) amount necessary to deter future violations;
(5) efforts to correct the violations;
(6) the severity level of the violation:

(A) Level I — $500 to $1,000 for violations that have or had an adverse impact on nursing facility resident health or safety that includes serious harm, permanent injury, or death to a nursing facility resident;
(B) Level II — $250 to $500 for violations that have or had a potential or adverse impact on the health or safety of a nursing facility resident, but less impact than Level I; or
(C) Level III — $250 or less for violations having minimal or no significant impact on nursing facility resident health or safety; and

(7) any other matter that justice may require.