Revision 18-1

§19.401 Introduction

 

(a) The resident has a right to a dignified existence, self-determination, and communication with and access to persons and services inside and outside the facility. A facility must protect and promote the rights of each resident.
(b) The Texas Department of Human Services has developed the following statement of the rights of a resident.
Attachment
(c) The facility must give a copy of the Statement of Resident Rights to each resident, next of kin or guardian, and facility staff member. The facility must maintain a copy of the statement, signed by the resident or the resident's next of kin or guardian, in the facility records.
(d) The Statement of Resident Rights must be posted in accordance with §19.1921 of this title (relating to General Requirements for a Nursing Facility).

 

§19.402 Exercise of Rights

 

(a) The resident has the right to exercise his rights as a resident at the facility and as a citizen or resident of the United States.
(b) The resident has the right to be free of interference, coercion, discrimination, or reprisal from the facility in exercising his rights.
(c) In the case of a resident adjudged incompetent under the laws of the State of Texas by a court of competent jurisdiction, the rights of the resident are exercised by the person appointed under Texas law to act on the resident's behalf.
(d) The facility must comply with all applicable provisions of the Human Resources Code, Title 6, Chapter 102. An individual may not be denied appropriate care on the basis of his race, religion, color, national origin, sex, age, handicap, marital status, or source of payment.
(e) The facility must allow the resident the right to observe his religious beliefs. The facility must respect the religious beliefs of the resident in accordance with 42 United States Code, §1396f.
(f) Competent adults may issue directives or durable powers of attorney for health care, subject to the requirements of §19.419 of this title (relating to Directives and Durable Powers of Attorney for Health Care).
(g) In the case of a resident not adjudicated incompetent by a state court, any legal surrogate designated in accordance with state law may exercise the resident's rights to the extent provided by state law.

 

§19.403 Notice of Rights and Services

 

(a) The facility must inform the resident, the resident's next of kin or guardian, both orally and in writing, in a language that the resident understands, of the resident's rights and all rules and regulations governing resident conduct and responsibilities during the stay in the facility. This notification must be made prior to or upon admission and during the resident's stay if changed.
(b) The facility must also inform the resident, upon admission and during the stay, in a language the resident understands, of the following:

(1) facility admission policies;
(2) a description of the protection of personal funds as described in §19.404 of this subchapter (relating to Protection of Resident Funds);
(3) the Human Resources Code, Title 6, Chapter 102; or a written list of the rights and responsibilities contained in the Human Resources Code, Title 6, Chapter 102; and
(4) a written description of the services available through the DADS Office of the State Long Term Care Ombudsman. This information must be made available to each facility by the ombudsman program. Facilities are responsible for reproducing this information and making it available to residents, their families, and legal representatives; and
(5) a written statement to the resident, the resident's next of kin, or guardian describing the facility's policy for:

(A) the drug testing of employees who have direct contact with residents; and
(B) the criminal history checks of employees and applicants for employment; and

(6) DADS' rules and the facility's policies related to the use of restraint and involuntary seclusion. This information must also be given to the resident's legally authorized representative, if the resident has one.

(c) Upon admission of a resident, a facility must:

(1) provide written information to the resident's family representative, in a language the representative understands, of the right to form a family council; or
(2) inform the resident's family representative, in writing, if a family council exists, of the council's meeting time, date, location and contact person.

(d) Receipt of information in subsections (a)-(c) of this section, and any amendments to it, must be acknowledged in writing by all parties receiving the information.

(e) The facility must post a copy of the documents specified in subsections (a)-(b) of this section in a conspicuous location.
(f) The resident or the resident's legal representative has the following rights:

(1) upon an oral or written request to the facility, to access all records pertaining to the resident, including clinical records, within 24 hours (excluding weekends and holidays); and
(2) after receipt of the resident's records for inspection, to purchase photocopies of all or any portion of the records, at a cost not to exceed the community standard, upon request and two workdays advance notice to the facility.

(g) The resident has the right to be fully informed in language the resident understands of the resident's total health status, including the resident's medical condition.
(h) The resident has the right to refuse treatment, to formulate an advance directive (as specified in §19.419 of this subchapter (relating to Advance Directives)), and to refuse to participate in experimental research.

(1) If the resident refuses treatment, the resident must be informed of the possible consequences.
(2) If the resident chooses to participate in experimental research, the resident must be fully notified of the research and possible effects of the research. The research may be carried on only with the full written consent of the resident's physician, and the resident.
(3) Experimental research must comply with Federal Drug Administration regulations on human research as found in 45 Code of Federal Regulations, Part 4b, Subpart A.

(i) The facility must inform each resident before, or at the time of admission, and periodically during the resident's stay (if there are any changes), of services available in the facility and of charges for those services, including any charges for services not covered under Medicare or by the facility's per diem rate. Notice must be in writing, at least 30 days before the effective date of any changes in rates for services not covered by the current charge, or in Medicaid-certified facilities, by Medicaid.
(j) The facility must provide a written description of a resident's legal rights which includes:

(1) a description of the manner of protecting personal funds, described in §19.404 of this subchapter;
(2) a posting of names, addresses, and telephone numbers of all pertinent state client advocacy groups such as DADS, the state ombudsman program, the protection and advocacy network, and, in Medicaid-certified facilities, the Medicaid fraud control unit; and
(3) a statement that the resident may file a complaint with DADS concerning resident abuse, neglect, and misappropriation of resident property in the facility.

(k) The facility must inform a resident of the name, specialty, and way of contacting the physician responsible for the resident's care.
(l) Notification of changes.

(1) A facility must immediately inform the resident; consult with the resident's physician; and if known, notify the resident's legal representative or an interested family member when there is:

(A) an accident involving the resident which results in injury and has the potential for requiring physician intervention;
(B) a significant change in the resident's physical, mental, or psychosocial status (that is, a deterioration in health, mental, or psychosocial status in either life-threatening conditions or clinical complications);
(C) a need to alter treatment significantly (that is, a need to discontinue an existing form of treatment due to adverse consequences, or to commence a new form of treatment); or
(D) a decision to transfer or discharge the resident from the facility.

(2) The facility also must promptly notify the resident and, if known, the resident's legal representative or interested family member when there is:

(A) a change in room or roommate assignment as described in §19.701(4)(B) of this chapter (relating to Quality of Life); or
(B) a change in resident rights under federal or state law or regulations as described in subsection (a) of this section.

(3) The facility must record and periodically update the address and phone number of the resident's family or legal representative, or a responsible party.

(m) Additional requirements for Medicaid-certified facilities. Medicaid-certified facilities must:

(1) provide the resident with the state-developed notice of rights under §1919 (e)(6) of the Social Security Act (see also §19.402 of this subchapter (relating to Exercise of Rights));
(2) inform a resident who is entitled to Medicaid benefits, in writing, at the time of admission to the nursing facility or, when the resident becomes eligible for Medicaid of:

(A) the items and services that are included in nursing facility services provided under the State Plan and for which the resident may not be charged;
(B) those other items and services that the facility offers and for which the resident may be charged, and the amount of charges for those services;

(3) inform each resident when changes are made to the items and services specified in paragraphs (2)(A) and (2)(B) of this subsection;
(4) provide a written description of the requirements and procedures for establishing eligibility for Medicaid, including the right to request an assessment under §1924(c) of the Social Security Act which:

(A) is used to determine the extent of a couple's nonexempt resources at the time of institutionalization; and
(B) attributes to the community spouse an equitable share of resources which cannot be considered available for payment toward the cost of the institutionalized spouse's medical care in the process of spending down to Medicaid eligibility levels; and

(5) prominently display in the facility written information, and provide to residents and potential residents oral and written information about how to apply for and use Medicare and Medicaid benefits, and how to receive funds for previous payments covered by such benefits.

 

§19.404 Protection of Resident Funds

 

(a) Management of financial affairs. The resident has the right to manage his financial affairs and the facility may not require residents to deposit their personal funds with the facility. The resident may designate another person to manage his financial affairs.
(b) Management of personal funds.

(1) Licensed-only facilities. Upon written authorization of a resident, the facility may hold, safeguard, manage, and account for the personal funds of the resident deposited with the facility. The facility will act as a fiduciary agent if the facility holds, safeguards, and accounts for the resident's personal funds.
(2) Medicaid-certified facilities. Upon written authorization of a resident, the facility must hold, safeguard, manage, and account for the personal funds of the resident deposited with the facility, as described in §19.405 of this title (relating to Additional Requirements for Trust Funds in Medicaid-Certified Facilities). The facility will act as a fiduciary agent if the facility holds, safeguards, and accounts for the resident's personal funds.

(c) Statement of resident rights and responsibilities. The facility must provide each resident and responsible party with a written statement at the time of admission that meets the following requirements:

(1) the statement describes the resident's rights to select how personal funds will be handled. The following alternatives must be included:

(A) the resident has the right to manage his financial affairs;
(B) the facility may not require residents to deposit their personal funds with the facility;
(C) the facility has an obligation, upon written authorization of a resident, to hold, safeguard, manage, and account for the personal funds of the resident deposited with the facility;
(D) the resident has a right to apply to the Social Security Administration to have a representative payee designated for federal or state benefits to which he may be entitled; and
(E) except when subparagraph (D) of this paragraph applies, the resident has a right to designate in writing another person to manage personal funds;

(2) the statement notes, when applicable, that any charge for the facility handling a Medicaid recipient's personal funds is included in the facility's basic rate; and
(3) the statement advises the resident that the facility must have written permission from the resident, responsible party, or legal representative to handle his personal funds.

 

§19.405 Additional Requirements for Trust Funds in Medicaid-Certified Facilities

 

(a) Deposit of funds. The facility must keep funds received from a resident for holding, safeguarding, and accounting, separate from the facility's funds.

(1) This separate account must be identified "(Name of Facility), Resident's Trust Fund Account," or by a similar title that shows a fiduciary relationship exists between a resident and the facility.
(2) A facility may commingle the trust funds of Medicaid residents and private-pay residents.
(3) If the funds are commingled, the facility must provide, upon request, the following records to the Department of Aging and Disability Services, the Texas attorney general's Medicaid Fraud Control Unit, and the U.S. Department of Health and Human Services:

(A) copies of release forms signed and dated by each private-pay resident or responsible party whose funds are commingled; and
(B) legible copies of the trust fund records of private-pay residents whose funds are commingled.

(4) The facility must maintain the forms and records described in paragraph (3) of this subsection in the same manner as the financial records of Medicaid residents as specified in this section.
(5) A facility must ensure that a release form described in paragraph (3)(A) of this subsection:

(A) includes permission for the facility to maintain trust fund records of private-pay residents in the same manner as those of Medicaid residents;
(B) is obtained from a private-pay resident upon admission or at the time of request for trust fund services; and
(C) includes a provision allowing inspection of the private-pay resident’s trust fund records by the agencies described in paragraph (3) of this subsection.

(b) Funds in excess of $50. The facility must deposit any residents' personal funds in excess of $50 in an interest-bearing account (or accounts) that is separate from any of the facility's operating accounts, and that credits all interest earned on the residents' funds to that account. In pooled accounts, there must be a separate accounting for each resident's share.
(c) Funds less than $50. The facility may maintain a resident's personal funds that do not exceed $50 in a noninterest-bearing account, interest-bearing account, or petty cash fund.
(d) Accounting and records.

(1)The facility must:

(A) establish and maintain current, written, individual records of all financial transactions involving a resident's personal funds that the facility is holding, safeguarding, and accounting;
(B) keep these records in accordance with:

(i) the American Institute of Certified Public Accountants' Generally Accepted Accounting Principles; and
(ii) the requirements of law for a fiduciary relationship; and

(C) include at least the following in these records:

(i) resident's name;
(ii) identification of resident's legally authorized representative, representative payee, or responsible party, if any, and payor source;
(iii) valid letter of guardianship, if any;
(iv) valid power of attorney, if any;
(v) resident’s admission and discharge dates;
(vi) resident’s trust fund ledger containing the following:

(I) description of each transaction;
(II) the date and amount of each deposit and withdrawal;
(III) the name of the person who accepted any withdrawn funds;
(IV) the balance after each transaction; and
(V) amount of interest earned, posted at least quarterly;

(vii) receipts for purchases and payments, including cash-register tapes or sales statements from a seller;
(viii) written requests for personal funds from the trust fund account; and
(ix) written requests for specific brands, items, or services.

(2)The facility must maintain the following as general trust fund records:

(A) valid trust fund trial balance;
(B) petty cash logs;
(C) bank statements for trust fund and operating accounts;
(D) trust fund checkbook and register;
(E) trust fund account monthly reconciliations;
(F) trust fund bank account agreement form;
(G) applied income ledgers;
(H) applied income payment plans from DADS;
(I) proof of surety bond;
(J) written agreements (e.g., bed hold, private room); and
(K) facility census, admission, discharge, and leave records.

(3) A resident must approve a withdrawal from the resident’s personal funds by signing a document that shows the resident's approval and the date of the approval.
(4) Except as provided in subparagraph (B) of this paragraph, a facility must obtain a receipt for the purchase of an item or service.

(A) The receipt must contain:

(i) the resident's name;
(ii) the date the receipt was written or created;
(iii) the amount of funds spent;
(iv) the specific item or service purchased;
(v) the name of the business from which the purchase was made; and
(vi) the signature of the resident.

(B) A receipt is not required if:

(i) a purchase is made with funds withdrawn in accordance with paragraph (3) of this subsection;
(ii) a purchase is made by the resident, a legally authorized representative, a responsible party, or an individual (other than facility personnel) authorized in writing by the resident; or
(iii) the item purchased costs one dollar or less.

(5) If a facility cannot obtain the signature of a resident as required by paragraph (3) or (4)(A)(vi) of this subsection, the facility must obtain the signature of a witness. The witness may not be the person responsible for accounting for the resident's trust funds, that person's supervisor, or the person who accepts the withdrawn funds or who sells the item being purchased. The facility and DADS staff must be able to identify the witness's name, address, and relationship to the resident or facility.

(e) Notice of certain balances. The facility must notify each resident that receives Medicaid benefits:

(1) if the amount in the resident's account reaches $200 less than SSI resource limit for one person, specified in §1611(a)(3)(B) of the Social Security Act; and
(2) that, if the amount in the account, in addition to the value of the resident's other nonexempt resources, reaches the SSI resource limit for one person, the resident may lose eligibility for Medicaid or SSI.

(f) Conveyance upon death.

(1) If a resident with personal funds managed by a facility dies, the facility must convey, within 30 days after the resident's death, the resident’s funds and a final accounting of those funds to the individual or probate jurisdiction administering the resident's estate, or make a bona fide effort to locate the responsible party or heir to the estate (see also §19.416 of this title (relating to Personal Property)).
(2) If a facility is not able to convey funds in accordance with paragraph (1) of this subsection, the facility must, within 30 days after the resident’s death;

(A) hold the funds by depositing them in a separate account or maintaining them in an existing account, designating on the account records that the resident is deceased; or
(B) submit funds to DADS in accordance with paragraph (4) of this subsection.

(3) If the facility holds funds in accordance with paragraph (2)(A) of this subsection:

(A) the facility must provide DADS with a notarized affidavit that contains:

(i) the resident's name;
(ii) the amount of funds being held;
(iii) a description of the facility's efforts to locate a responsible party or heir;
(iv) a statement acknowledging that the funds are not the property of the facility, but the property of the deceased resident's estate; and
(v) a statement that the facility will hold the funds until they are conveyed to a responsible party or heir or submitted to DADS in accordance with paragraph (4) of this subsection;

(B) the facility must submit the funds to DADS in accordance with paragraph (4) of this subsection within 180 days after the resident's death; and
(C) funds held by a facility in accordance with this paragraph may be monitored or reviewed by DADS or the Health and Human Services Commission, Office of Inspector General.

(4) A facility must submit unclaimed funds to DADS, Accounts Receivable, Mail Code E-411, P.O. Box 149030, Austin Texas 78714-9030.

(A) The funds must be identified as money that will escheat to the state.
(B) If the facility held the funds in accordance with paragraph (3) of this subsection, the facility must include the notarized affidavit described in paragraph (3)(A) of this subsection. (g) Assurance of financial security. The facility must purchase a surety bond, or otherwise provide assurance satisfactory to the Secretary of Health and Human Services to ensure the security of all personal funds of residents deposited with the facility.

(1) The amount of a surety bond must equal the average monthly balance of all the facility's resident trust fund accounts for the 12-month period preceding the bond issuance or renewal date.
(2) Resident trust fund accounts are specific only to the single facility purchasing a resident trust fund surety bond.
(3) If a facility employee is responsible for the loss of funds in a resident's trust fund account, the resident, the resident's family, and the resident's legal representative are not obligated to make any payments to the facility that would have been made out of the trust fund had the loss not occurred.

(h) Items and services that may not be charged to a resident’s personal funds.

(1) The facility may not impose a charge against the personal funds of a resident for any item or service for which payment is made under Medicaid or Medicare.
(2) Items or services included in Medicare or Medicaid payment that may not be billed to the resident's personal funds by the facility include:

(A) nursing services as required in §19.1001 of this title (relating to Nursing Services);
(B) dietary services as required in §19.1101 of this title (relating to Dietary Services);
(C) an activities program as required in §19.702 of this title (relating to Activities);
(D) room and bed maintenance services;
(E) routine personal hygiene items and services as required to meet the needs of the resident, including, but not limited to:

(i) hair hygiene supplies, including shampoo, comb, and brush;
(ii) bath soaps, disinfecting soaps, or specialized cleansing agents when indicated to treat special skin problems or to fight infection;
(iii) razor and shaving cream;
(iv) toothbrush, toothpaste, and dental floss;
(v) denture adhesive and denture cleanser;
(vi) moisturizing lotion;
(vii) tissues, cotton balls, and cotton swabs;
(viii) deodorant;
(ix) incontinent care and supplies, to include, but not limited to, cloth or disposable incontinent briefs;
(x) sanitary napkins and related supplies;
(xi) towels and washcloths;
(xii) hospital gowns;
(xiii) over-the-counter drugs;
(xiv) hair and nail hygiene services; and
(xv) personal laundry; and

(F) medically-related social services as required in §19.703 of this title (relating to Social Services General Requirements).

(3) A facility must base necessity for and type of incontinent brief described in paragraph (2)(E)(ix) of this subsection on an assessment of the resident's medical and psychosocial condition and resulting determination.

(i) Items and services that may be charged to a resident's personal funds. The facility may charge a resident for requested services that are more expensive than or in excess of covered services in accordance with §19.2601 of this title (relating to Vendor Payment (Items and Services Included)). The following list contains general categories and examples of items and services that the facility may charge to a resident's personal funds if they are requested by a resident, if the facility informs the resident that there will be a charge, and if payment is not made by Medicare or Medicaid:

(1) telephone;
(2) television or radio for personal use;
(3) personal comfort items, including smoking materials, notions and novelties, and confections;
(4) cosmetics and grooming items and services in excess of those for which payment is made under Medicare or Medicaid;
(5) personal clothing;
(6) personal reading material;
(7) gifts purchased on behalf of a resident;
(8) flowers and plants;
(9) social events and entertainment offered outside the scope of the activities program, provided under §19.702 of this title;
(10) noncovered special care services, such as privately hired nurses and aides;
(11) private room, except when therapeutically required, such as isolation for infection control;
(12) specially-prepared or alternative food requested instead of the food generally prepared by the facility, as required in §19.1101 of this title; and
(13) incontinent briefs if the resident's legally authorized representative or responsible party submits a written request to the facility and the attending physician and director of nurses (DON) determine and document in the clinical record that there is no medical or psychosocial need for supplies.

(j) Request for items or services that may be charged to a resident's personal funds. The facility must:

(1) not charge a resident, nor his representative, for any item or service not requested by the resident;
(2) not require a resident, or his representative, to request any item or service as a condition of admission or continued stay; and
(3) inform the resident or his representative, when he requests an item or service for which a charge will be made, that there will be a charge for the item or service and the amount of the charge.

(k)Access to financial record. The individual financial record must be available on request to the resident, responsible party, representative payee or legal representative.

(l)Quarterly statement.

(1) The individual financial record must be available, through quarterly statements and on request, to the resident, legally authorized representative, representative payee, or responsible party.
(2) The statement must reflect any resident’s funds that the facility has deposited in an account as well as any resident’s funds held by the facility in a petty cash account.
(3) The statement must include at least the following:

(A) balance at the beginning of the statement period;
(B) total deposits and withdrawals;
(C) interest earned, if any;
(D) bank name and location of any account in which the resident’s personal funds have been deposited; and
(E) ending balance.

(m) Banking charges.

(1) Charges for checks, deposit slips, and services for pooled checking accounts are the responsibility of the facility and may not be charged to the resident, legally authorized representative, or responsible party.
(2) Bank service charges and charges for checks and deposit slips may be deducted from the individual checking accounts if it is the resident’s written, individual choice to have this type of account.
(3) Bank fees on individual accounts established solely for the convenience of the facility are the responsibility of the facility and may not be charged to the resident, legally authorized representative, or responsible party.
(4) The facility may not charge the resident, legally authorized representative, or responsible party for the administrative handling of either type of account.
(5) If the facility places any part of the resident's funds in savings accounts, certificates of deposit, or any other plan whereby interest or other benefits are accrued, the facility must distribute the interest or benefit to participating residents on an equitable basis. If pooled accounts are used, interest must be prorated on the basis of actual earnings or end-of-quarter balances.

(n) Access to funds.

(1) Disbursements from the trust fund.

(A) A request for funds from the trust fund or trust fund petty cash box may be made, either orally or in writing, by the resident, the resident's legally authorized representative, representative payee, or responsible party to cover a resident's expenses.
(B) The facility must respond to a request received during normal business hours at the time of the request.
(C) The facility must respond to a request received during hours other than normal business hours immediately at the beginning of the next normal business hours.

(2) Discontinuing trust fund participation.

(A) If a resident, legally authorized representative, or responsible party requests that the facility discontinue managing the resident's personal funds the facility must return to the resident, legally authorized representative, or responsible party all of the resident's personal funds held by the facility, including any interest accrued.
(B) If the request is made during normal business hours, the facility must immediately return the funds.
(C) If the request is made during hours other than normal business hours, the facility must return the funds immediately during the next normal business hours.

(3) Transfer or discharge. If a resident is transferred or discharged from a facility, the facility must, within five working days after the transfer or discharge, return to the resident, legally authorized representative, or responsible party all of the resident's personal funds held by the facility, including any interest accrued.
(4) For purposes of this subsection, normal business hours are 8:00 a.m. to 5:00 p.m., Monday through Friday, excluding national holidays.

(o) Handling of monthly benefits. If the Social Security Administration has determined that a Title II and Title XVI Supplemental Security Income (SSI) benefit to which the resident is entitled should be paid through a representative payee, the provisions in 20 Code of Federal Regulations (CFR), §§404.2001 - 404.2065, for Old Age, Survivors, and Disability Insurance benefits and 20 CFR, §§416.601 - 416.665, for SSI benefits apply.
(p) Change of ownership. If the ownership of a facility changes, the former owner must transfer the bank balances or trust funds to the new owner with a list of the residents and their balances. The former owner must get a receipt from the new owner for the transfer of these funds. The former owner must keep this receipt for monitoring or audit purposes.
(q) Alternate forms of documentation. Without DADS prior written approval, a facility may not submit alternate forms of documentation, including affidavits, to verify a resident's personal fund expenditures or as proof of compliance with any requirements specified in these requirements for the resident's personal funds.
(r) Limitation on certain charges. A nursing facility may not impose charges for certain Medicaid-eligible individuals, for nursing facility services that exceed the per diem amount established by DADS for such services. "Certain Medicaid-eligible individuals" means an individual who is entitled to medical assistance for nursing facility services, but for whom such benefits are not being paid because, in determining the individual’s income to be applied monthly to the payment for the costs of nursing facility services, the amount of such income exceeds the payment amounts established by DADS.
(s) Trust fund monitoring and audits.

(1) DADS may periodically monitor all trust fund accounts to assure compliance with this section. DADS notifies a facility of monitoring plans and gives a report of the findings to the facility.
(2) DADS may, as a result of monitoring, refer a facility to the Office of Inspector General (OIG) for an audit.
(3) The facility must provide all records and other documents required by subsection (d) of this section to DADS upon request.
(4) DADS provides the facility with a report of the findings, which may include corrective actions that the facility must take and internal control recommendations that the facility may follow.
(5) The facility may request an informal review in accordance with subsection (t) of this section or a formal hearing in accordance with subsection (u) of this section to dispute the report of findings.
(6) If the facility does not request an informal review or a formal hearing and the report of findings requires corrective actions, the facility must complete corrective actions within 60 days after receiving the report of findings.
(7) If the facility does not complete corrective actions required by DADS within 60 days after receiving the report of findings, DADS may impose a vendor hold on payments due to the facility under the provider agreement until the facility completes corrective actions.
(8) If DADS imposes a vendor hold in accordance with paragraph (7) of this subsection, the facility may request a formal hearing in accordance with subsection (u)(5) of this section. If the failure to correct is upheld, DADS continues the vendor hold until the facility completes the corrective actions.

(t) Informal review.

(1) A facility that disputes the report of findings described in subsection (s)(4) of this section may request an informal review under this section. The purpose of an informal review is to provide for the informal and efficient resolution of the matters in dispute and is conducted according to the following procedures:

(A) DADS must receive a written request for an informal review by United States (U.S.) mail, hand delivery, special mail delivery, or fax no later than 15 days after the date on the written notification of the report of findings described in subsection (s)(4) of this section. If the 15th day is a Saturday, Sunday, national holiday, or state holiday, then the first day following the 15th day is the final day the written request will be accepted. A request for an informal review that is not received by the stated deadline is not granted.
(B) A facility must submit a written request for an informal review:

(i) by U.S. mail to DADS Trust Fund Monitoring Unit, Attn: Manager, P.O. Box 149030, Mail Code W-340, Austin, Texas 78714-9030;
(ii) hand delivery or special mail delivery to 701 West 51st Street, Austin, Texas 78751-2321; or
(iii) by fax to (512) 438-3639.

(C) A facility must, with its request for an informal review:

(i) submit a concise statement of the specific findings it disputes;
(ii) specify the procedures or rules that were not followed;
(iii) identify the affected cases;
(iv) describe the reason the findings are being disputed; and
(v) include supporting information and documentation that directly demonstrates that each disputed finding is not correct.

(D) DADS does not grant a request for an informal review that does not meet the requirements of this subsection.

(2) Informal review process. Upon receipt of a request for an informal review, the Trust Fund Monitoring Unit Manager coordinates the review of the information submitted.

(A) Additional information may be requested by DADS, and must be received in writing by U.S. mail, hand delivery, special mail, or fax in accordance with paragraph (1)(B)(i) - (iii) of this subsection no later than 15 days after the date the facility receives the written request for additional information. If the 15th day is a Saturday, Sunday, national holiday, or state holiday, then the first day following the 15th day is the final day the additional information will be accepted.
(B) DADS sends its written decision to the facility by certified mail, return receipt requested.

(i) If the original findings are upheld, DADS continues the schedule of deficiencies and requirement for corrective action.
(ii) If the original findings are reversed, DADS issues a corrected schedule of deficiencies with the written decision.
(iii) If the original findings are revised, DADS issues a revised schedule of deficiencies including any revised corrective action.
(iv) If the original findings are upheld or revised, the facility may request a formal hearing in accordance with subsection (u) of this section.
(v) If the original findings are upheld or revised and the facility does not request a formal hearing, the facility has 60 days from the date of receipt of the written decision to complete the corrective actions. If the facility does not complete the corrective actions by that date, DADS may impose a vendor hold. If DADS imposes a vendor hold, the facility may request a formal hearing in accordance with subsection (u)(5) of this section. If the failure to correct is upheld, DADS continues the vendor hold until the facility completes the corrective action.

(u) Formal hearing.

(1) The facility must submit a written request for a formal hearing under this section to: HHSC Appeals Division, Mail Code W-613, P.O. Box 149030, Austin, Texas 78714-9030.
(2) The written request for a formal hearing must be received within 15 days after:

(A) the date on the written notification of the report of findings described in subsection (s)(4) of this section; or
(B) the facility receives the written decision sent as described in subsection (t)(2)(B) of this section.

(3) A formal hearing is conducted in accordance with Texas Administrative Code, Title 1, Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act).
(4) No later than 60 days after a final determination is issued as a result of a formal hearing requested by a facility under subsection (s)(8) or (t)(2)(B)(iv) of this section, the facility must complete any corrective action required by DADS or be subject to a vendor hold on payments due to the facility under the provider agreement until the facility completes corrective action. If DADS imposes a vendor hold, the facility may request a formal hearing in accordance with paragraph (5) of this subsection. If the failure to correct is upheld, DADS continues the vendor hold until the facility completes the corrective action.
(5) If DADS imposes a vendor hold under subsections (s)(7), (t)(2)(B)(v), or (u)(4) of this section, the facility may request a formal hearing within 15 days after receiving notice of the correction failure and the vendor hold. The formal hearing is limited to the issue of whether the facility completed the corrective action.

 

§19.406 Free Choice

 

(a) Resident rights. The resident has the right to:

(1) choose and retain a personal attending physician, subject to that physician's compliance with the facility's standard operating procedures for physician practices in the facility;
(2) be fully informed in advance about care and treatment and of any changes in that care or treatment that may affect the resident's well-being; and
(3) unless adjudged incompetent or otherwise found to be incapacitated under the laws of the State of Texas, participate in planning care and treatment or changes in care and treatment. See §19.419 of this title (relating to Directives and Durable Powers of Attorney).

(b) Licensed-only facilities. The resident must be allowed complete freedom of choice to obtain pharmacy services from any pharmacy that is qualified to perform the services. A facility must not require residents to purchase pharmaceutical supplies or services from the facility itself or from any particular vendor. The resident has the right to be informed of prices before purchasing any pharmaceutical item or service from the facility, except in an emergency.
(c) Additional requirements regarding freedom of choice for Medicaid recipients. The recipient must be allowed complete freedom of choice to obtain any Medicaid services from any institution, agency, pharmacy, person, or organization that is qualified to perform the services, unless the provider causes the facility to be out of compliance with the requirements specified in this chapter.

(1) A facility must not require recipients to purchase supplies or services, including pharmaceutical supplies or services, from the facility itself or from any particular vendor. The recipient has the right to be informed of prices before purchasing any item or services from the facility, except in an emergency (see §19.1502(b)(3) of this title (relating to Choice of Pharmacy Provider)).
(2) The facility must furnish Medicaid recipients with complete information about available Medicaid services, how to obtain these services, their rights to freely choose service providers as specified in this subsection and the right to request a hearing before the Texas Department of Human Services (DHS) if the right to freely choose providers has been abridged without due process.

 

§19.407 Privacy and Confidentiality

 

The resident has the right to personal privacy and confidentiality of his personal and clinical records. (See also §19.1910(e) of this title (relating to Clinical Records) and §19.403(e) of this title (relating to Notice of Rights and Services).)
(1) Personal privacy includes accommodations, medical treatment, written and telephone communications, personal care, visits, and meetings of family and resident groups, but this does not require the facility to provide a private room for each resident.
(2) Except as provided in paragraph (3)(B) of this section, the resident may approve or refuse the release of personal and clinical records to any individual outside of the facility.
(3) The resident's right to refuse release of personal and clinical records does not apply when:

(A) the resident is transferred to another health care institution;
(B) record release is required by law; or
(C) during surveys.

(4) The facility must ensure the resident's right to privacy in the following areas:

(A) accommodations as described in §19.1701 of this title (relating to General Requirements);
(B) medical treatment. The facility must provide privacy to each resident during examinations, treatment, case discussions, and consultations. Staff must treat these matters confidentially;
(C) personal care;
(D) access and visitation as described in §19.413 of this title (relating to Access and Visitation Rights);
(E) governmental searches are permitted only if there exists probable cause to believe an illegal substance or activity is being concealed. Administrative searches by the appropriate entity, such as the fire inspector, are allowed only for limited purposes, but such searches would not ordinarily extend to the resident's personal belongings. The Texas Department of Human Services (DHS) and the nursing facility must provide for and allow residents their individual freedoms. State statutes authorize inspections of the nursing facility but do not authorize inspection of those areas in which an individual has a reasonable expectation of privacy. Any direct participation by DHS personnel in an inspection of "the contents of residents' personal drawers and possessions," is in violation of federal and state law; and
(F) the resident has the right to privacy for meetings with family and resident groups.

(5) All information that contains personal identification or descriptions which would uniquely identify an individual resident or a provider of health care is considered to be personal and private and will be kept confidential. Personal identifying information (except for PCN numbers) will be deleted from all records, reports, and/or minutes from formal studies which are forwarded to DHS, or anyone else. These records, reports, and/or minutes, which have been de-identified, will still be treated as confidential. All such material mailed to DHS or anyone else must be in a sealed envelope marked "Confidential."

 

§19.408 Grievances

 

(a) A resident has the right to:

(1) voice grievances without discrimination or reprisal. These grievances include those with respect to treatment which has been furnished as well as that which has not been furnished;
(2) prompt efforts by the facility to resolve grievances the resident may have, including those with respect to the behavior of other residents; and
(3) notify state agencies of complaints against a facility. Complaints will be acknowledged by the staff of the agency that receives the complaint. All complaints will be investigated, whether oral or written.

(b) A nursing facility may not retaliate or discriminate against a resident, a family member or guardian of the resident, or a volunteer because the resident, the resident's family member or guardian, a volunteer, or any other person:

(1) makes a complaint or files a grievance concerning the facility;
(2) reports a violation of law, including a violation of laws or regulations regarding nursing facilities; or
(3) initiates or cooperates in an investigation or proceeding of a governmental entity relating to care, services, or conditions at the nursing facility.

(c) A facility may 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 a restraint or involuntary 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 a restraint or involuntary seclusion at the facility.

 

§19.409 Examination of Survey Results

 

The resident has the right to:

(1) examine the results of the most recent survey of the facility conducted by federal or state surveyors and any plan of correction in effect with respect to the facility. The facility must make the results available for examination in a place readily accessible to residents, and must post a notice of their availability; and
(2) receive information from agencies acting as client advocates, and be afforded the opportunity to contact these agencies.

 

§19.410 Refunds in Medicaid-Certified Facilities

 

(a) The nursing facility must refund private funds paid to the facility for periods covered by Medicaid, including retroactive periods of Medicaid coverage, when:

(1) the Medicaid vendor payment has been accepted by the nursing facility; or
(2) the nursing facility has been notified by the Texas Department of Human Services (DHS) about an individual's eligibility for Medicaid.

(b) The nursing facility must make the refund within 30 days of:

(1) notification of eligibility for nursing home coverage;
(2) notification of correction of applied income (see also §19.2316(f) of this title (relating to Collection of Applied Income) which specifies procedures concerning applied income refunds at the time of discharge); or
(3) receipt of any vendor payment from DHS for any covered period.

(c) When the facility becomes aware of the need for a refund as indicated in subsection (a) of this section, facility staff must write to the resident or his responsible party, notifying him about his right to a refund and the amount due.

 

§19.411 Work

 

The resident has the right to:

(1) refuse to perform services for the facility; and
(2) perform services for the facility, if he chooses, when:

(A) the facility has documented the need or desire for work in the plan of care;
(B) the plan specifies the nature of the services performed and whether the services are voluntary or paid;
(C) compensation for paid services is at or above prevailing rates; and
(D) the resident agrees to the work arrangement described in the plan of care.

 

§19.412 Mail

 

The resident has the right to privacy in written communications, including the right to:
(1) send and receive mail promptly that is unopened;
(2) request facility staff to help open and read incoming mail and help address and post outgoing mail;
(3) have access to stationery, postage, and writing implements at the resident's own expense.

 

§19.413 Access and Visitation Rights

 

(a) A resident has the right to have access to, and the facility must provide immediate access to a resident to, the following:

(1) in Medicaid-certified facilities, a representative of the Secretary of Health and Human Services;
(2) a representative of the State of Texas;
(3) the resident's individual physician;
(4) a representative of the Office of the State Long Term Care Ombudsman (the Office), as described in §85.401(r) of this title (relating to Long-Term Care Ombudsman Program);
(5) a representative of Advocacy, Incorporated, which is responsible for the protection and advocacy system for developmentally disabled individuals established under the Developmental Disabilities Assistance and Bill of Rights Act, part C;
(6) a representative of Advocacy, Incorporated, which is responsible for the protection and advocacy system for mentally ill individuals established under the Protection and Advocacy for Mentally Ill Individuals Act;
(7) subject to the resident's right to deny or withdraw consent at any time, immediate family or other relatives of the resident; and
(8) subject to reasonable restrictions and the resident's right to deny or withdraw consent at any time, others who are visiting with the consent of the resident.

(b) A facility must provide reasonable access to a resident by any entity or individual that provides health, social, legal, or other services to the resident, subject to the resident's right to deny or withdraw consent at any time.
(c) A facility must allow a certified ombudsman, as defined in §85.2 of this title (relating to Definitions), and a staff person of the Office access:

(1) to the medical and social records of a resident, including an incident report involving the resident, if the certified ombudsman or staff person of the Office has the consent of the resident or the legally authorized representative of the resident;
(2) to the medical and social records of a resident 60 years of age or older, including an incident report involving the resident, in accordance with the Older Americans Act, §712(b); and
(3) to the administrative records, policies, and documents of the facility to which the facility residents or general public have access.

 

§19.414 Telephone

 

(a) The resident has the right to have reasonable access to the use of a telephone (other than a pay phone), where calls can be made without being overheard, and which can also be used for making calls to summon help in case of emergency.
(b) The facility must permit residents to contract for private telephones at their own expense. The facility must not require private telephones to be connected to a central switchboard.

 

§19.415 Postmortem Procedures

 

The facility must have policies regarding postmortem procedures, including soliciting and meeting the resident's or families' requests regarding notification of a death, disposition of possessions or personal property, and choice of funeral homes.

 

§19.416 Personal Property

 

The resident has the right to retain and use personal possessions, including some furnishings, and appropriate clothing as space permits, unless to do so would infringe upon the rights or health and safety of other residents. Reasons for any limitations are documented in the resident's clinical record. See §19.1921(i) of this title (relating to General Requirements for a Nursing Facility).

(1) If the resident dies, personal property must be transferred to the estate or the person designated by the resident.
(2) If it is donated or sold to the facility by the resident or estate, the transaction must be documented.
(3) If the resident dies and there is no responsible party, family, or legal guardian and no arrangements have been made for the disposition of property, the facility must dispose of property according to the Texas Property Code, Title 6, Chapter 71 (relating to Escheat of Property) and according to the Texas Probate Code, Chapter 10 (relating to Payment of Estates into State Treasury).

 

§19.417 Married Couples

 

The resident must be ensured privacy for visits with his spouse. The resident has the right to share a room with his spouse when married residents live in the same facility and both spouses consent to the arrangement.

 

§19.418 Self-Administration of Drugs

 

An individual may self-administer drugs if the interdisciplinary team, as defined in §19.802(b)(2) of this title (relating to Comprehensive Care Plans), has determined that this practice is safe.

 

§19.419 Advance Directives

 

(a) Competent adults may issue advance directives in accordance with applicable laws. An advance directive has the meaning as defined in Texas Health and Safety Code, §166.002.
(b) A facility must maintain policies and procedures implementing the following with respect to all adult residents:

(1) The facility must:

(A) maintain written policies regarding the implementation of advance directives; and
(B) include a clear and precise statement of any procedure the facility is unwilling or unable to provide or withhold in accordance with an advance directive.

(2) The facility must:

(A) when a resident is admitted, provide the resident or the appropriate person referenced in paragraph (8) of this subsection with a copy of:

(i) the advance care planning educational material provided by DADS;
(ii) the resident's rights under Texas law (whether statutory or as recognized by the courts of the state) to make decisions concerning medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives; and
(iii) the facility's policies respecting the implementation of these rights, including the written policies regarding the implementation of advance directives;

(B) within 14 days after the resident is admitted, orally review and discuss the information provided in accordance with subparagraph (A) of this paragraph and the importance of planning for end-of-life care with the resident or with the appropriate person referenced in paragraph (8) of this subsection; and
(C) annually and when there is a significant positive change or a significant deterioration in the resident's clinical condition, provide, review, and discuss the written information regarding advance directives listed in subparagraph (A) of this paragraph with the resident or with the appropriate person referenced in paragraph (8) of this subsection.

(3) The facility must document the oral discussion and the provision of the written information in the resident's clinical record. The facility must document in the resident's clinical record whether or not the resident has executed an advance directive.
(4) The facility must not condition the provision of care or otherwise discriminate against a resident based on whether or not the residen has executed an advance directive.
(5) The facility must ensure compliance with the requirements of Texas law, whether statutory or as recognized by the courts of Texas, respecting advance directives.
(6) The facility must provide, individually or with others, education for staff and the community on issues concerning advance directives. For the community, this may include newsletters, newspaper articles, local news reports, or commercials. For educating staff, this may include in-service programs.
(7) The facility must provide the attending physician, emergency medical technician, and hospital personnel with any information relating to a resident's known existing advance directive and assist with coordinating physicians' orders with the resident's known existing advance directive.
(8) Except as provided in paragraph (9) of this subsection, if a resident is in a comatose or otherwise incapacitated state, and therefore is unable to receive information or articulate whether the resident has executed an advance directive, the facility must provide, review, and discuss written information regarding advance directives, including advance care planning educational material provided by DADS and facility policies regarding the implementation of advance directives, in the following order of preference, to:

(A) the resident's legal guardian;
(B) a person responsible for the resident's health care decisions;
(C) the resident's spouse;
(D) the resident's adult child;
(E) the resident's parents; or
(F) the person admitting the resident.

(9) If a resident is in a comatose or otherwise incapacitated state, and therefore is unable to receive information or articulate whether the resident has executed an advance directive, and if the facility is unable, after diligent search, to locate a person listed under paragraph (8) of this subsection, the facility is not required to provide written information regarding advance directives. The facility must document in the resident's clinical record its attempts to make a diligent search.
(10) If a resident, who was incompetent or otherwise incapacitated and was unable to receive information regarding advance directives, including written policies regarding the implementation of advance directives, later becomes able to receive the information, the facility must provide, review, and discuss the written information at the time the resident becomes able to receive the information.
(11) If the resident or a relative, surrogate, or other concerned or related person presents the facility with a copy of the resident's advance directive, the facility must comply with the advance directive, including recognition of a Medical Power of Attorney, to the extent allowed under state law. If no one comes forward with a previously executed advance directive and the resident is incapacitated or otherwise unable to receive information or articulate whether he has executed an advance directive, the facility must document in the resident's clinical record that the resident was not able to receive information and was unable to communicate whether an advance directive existed.

(c) Failure to provide the facility's written policies as required in subsection (b)(2)(A)(iii) of this section when a resident is admitted will result in an administrative penalty of $500.
(d) A facility that provides services to children must ensure that:

(1) prior to admission to the facility, the primary physician, who has been providing care to the child, has discussed advance directives with the family or guardian and has provided documentation of this discussion to the facility; and
(2) the decision made by the family or guardian regarding advance directives is addressed in the comprehensive care plan (see §19.802 of this title (relating to Comprehensive Care Plans)).

 

§19.420 Documentation for the Delegation of Long-Term Care Resident's Rights

 

(a) The delegation of resident rights may occur in three cases:

(1) when a competent individual chooses to allow another to act for him, such as with a Durable Power of Attorney;
(2) when the resident has been adjudicated to be incompetent by a court of law and a guardian has been appointed; or
(3) when the physician has determined that, for medical reasons, the resident is incapable of understanding and exercising such rights. The Health and Safety Code, Chapter 313, Consent to Medical Treatment, provides guidance under certain circumstances when a resident is comatose, incapacitated, or otherwise mentally or physically incapable of communication.

(b) In order to assure preservation of rights, the physician and the facility must document specific information concerning the incapability of the resident to understand and exercise his rights.
(c) Facility documentation must cover:

(1) the relationship of the resident to the person assuming his rights and responsibilities;
(2) the authority allowing the responsible person to act for the resident;
(3) resident assessments, care plans, and progress notes that address the resident's inability to exercise his rights and responsibilities; and
(4) assurance that the resident who is mentally capable of understanding and exercising his rights, but physically incapable of doing so, receives interventions which facilitate the exercise of his rights.

(d) Physician documentation must cover:

(1) resident's comatose state, incapacity, or other mental or physical inability to communicate;
(2) proposed medical treatment or decision;
(3) periodic assurance that there has been no essential change in the resident's mental function; and
(4) reevaluation whenever a significant change in resident status occurs or for orders that impact on resident rights (such as "No CPR").

 

§19.421 Refusal of Certain Transfers in Medicaid-Certified Facilities

 

(a) An individual has the right to refuse a transfer to another room within the facility, if the purpose of the transfer is to relocate:

(1) a resident of a skilled nursing facility (SNF) from the distinct part of the facility that is an SNF to a part of the facility that is not an SNF, or
(2) a resident of a nursing facility from the distinct part of the facility that is a nursing facility to a distinct part of the facility that is an SNF.

(b) A resident's exercise of the right to refuse transfer under this section does not affect the individual's eligibility or entitlement to Medicaid benefits.

 

§19.422 Authorized Electronic Monitoring (AEM)

 

(a) A facility must permit a resident or the resident's guardian or legal representative to monitor the resident's room through the use of electronic monitoring devices.
(b) A facility may not refuse to admit an individual and may not discharge a resident because of a request to conduct authorized video monitoring.
(c) The Texas Department of Human Services (DHS) Information Regarding Authorized Electronic Monitoring form must be signed by or on behalf of all new residents upon admission. The form must be completed and signed by or on behalf of all current residents by July 1, 2003. A copy of the form must be maintained in the active portion of the resident's clinical record.
(d) A resident, or the resident's guardian or legal representative, who wishes to conduct AEM must request AEM by giving a completed, signed, and dated DHS Request for Authorized Electronic Monitoring form to the administrator or designee. A copy of the form must be maintained in the active portion of the resident's clinical record.

(1) If a resident has capacity to request AEM and has not been judicially declared to lack the required capacity, only the resident may request AEM, notwithstanding the terms of any durable power of attorney or similar instrument.
(2) If a resident has been judicially declared to lack the capacity required to request AEM, only the guardian of the resident may request AEM.
(3) If a resident does not have capacity to request AEM and has not been judicially declared to lack the required capacity, only the legal representative of the resident may request AEM.

(A) A resident's physician makes the determination regarding the capacity to request AEM. Documentation of the determination must be made in the resident's clinical record.
(B) When a resident's physician determines the resident lacks capacity to request AEM, a person from the following list, in order of priority, may act as the resident's legal representative for the limited purpose of requesting AEM:

(i) a person named in the resident's medical power of attorney or other advance directive;
(ii) the resident's spouse;
(iii) an adult child of the resident who has the waiver and consent of all other qualified adult children of the resident to act as the sole decision-maker; (iv) a majority of the resident's reasonably available adult children;
(v) the resident's parents; or
(vi) the individual clearly identified to act for the resident by the resident before the resident became incapacitated or the resident's nearest living relative. (e) A resident, or the resident's guardian or legal representative, who wishes to conduct AEM also must obtain the consent of other residents in the room, using the DHS Consent to Authorized Electronic Monitoring form. When complete, the form must be given to the administrator or designee. A copy of the form must be maintained in the active portion of the resident's clinical record.

(1) Consent to AEM may be given only by:

(A) the other resident or residents in the room;
(B) the guardian of the other resident, if the resident has been judicially declared to lack the required capacity; or
(C) the legal representative of the other resident, determined by following the same procedure established under (d)(3) of this section.

(2) Another resident in the room may condition consent on:

(A) pointing the camera away from the consenting resident, when the proposed electronic monitoring is a video surveillance camera; and
(B) limiting or prohibiting the use of an audio electronic monitoring device.

(3) AEM must be conducted in accordance with any limitation placed on the monitoring as a condition of the consent given by or on behalf of another resident in the room. The resident's roommate, their guardian, or legal representative assumes responsibility for assuring AEM is conducted according to the designated limitations.
(4) If AEM is being conducted in a resident's room, and another resident is moved into the room who has not yet consented to AEM, the monitoring must cease until the new resident, or the resident's guardian or legal representative, consents.

(f) When the completed Request for Authorized Electronic Monitoring form and the Consent to Authorized Electronic Monitoring form, if applicable, have been given to the administrator or designee, AEM may begin.

(1) Anyone conducting AEM must post and maintain a conspicuous notice at the entrance to the resident's room. The notice must state that the room is being monitored by an electronic monitoring device.
(2) The resident, or the resident's guardian or legal representative, must pay for all costs associated with conducting AEM, including installation in compliance with life safety and electrical codes, maintenance, removal of the equipment, posting and removal of the notice, or repair following removal of the equipment and notice, other than the cost of electricity.
(3) The facility must meet residents' requests to have a video camera obstructed to protect their dignity.
(4) The facility must make reasonable physical accommodation for AEM, which includes providing:

(A) a reasonably secure place to mount the video surveillance camera or other electronic monitoring device; and
(B) access to power sources for the video surveillance camera or other electronic monitoring device.

(g) All facilities, regardless of whether AEM is being conducted, must post an 8-inch by 11-inch notice at the main facility entrance. The notice must be entitled "Electronic Monitoring" and must state, in large, easy-to-read type, "The rooms of some residents may be monitored electronically by or on behalf of the residents. Monitoring may not be open and obvious in all cases."
(h) A facility may:

(1) require an electronic monitoring device to be installed in a manner that is safe for residents, employees, or visitors who may be moving about the room, and meets all local and state regulations;
(2) require AEM to be conducted in plain view;
(3) place a resident in a different room to accommodate a request for AEM.

(i) A facility may not discharge a resident because covert electronic monitoring is being conducted by or on behalf of a resident. If a facility discovers a covert electronic monitoring device and it is no longer covert as defined in §242.843, Health and Safety Code, the resident must meet all the requirements for AEM before monitoring is allowed to continue.

(j) DHS may assess an administrative penalty of $500 against a facility for each instance in which the facility:

(1) refuses to permit a resident, or the resident's guardian or legal representative, to conduct AEM;
(2) refuses to admit an individual or discharges a resident because of a request to conduct AEM;
(3) discharges a resident because covert electronic monitoring is being conducted by or on behalf of the resident; or
(4) violates any other provision related to AEM.

(k) All instances of abuse or neglect must be reported to DHS, as required by §19.602 of this title (relating to Incidents of Abuse and Neglect Reportable to the Texas Department of Human Services (DHS) by Facilities). For purposes of the duty to report abuse or neglect and the criminal penalty for the failure to report abuse or neglect, established under the Health and Safety Code, §242.122, the following apply:

(1) A person who is conducting electronic monitoring on behalf of a resident is considered to have viewed or listened to a tape or recording made by the electronic monitoring device on or before the 14th day after the date the tape or recording is made.
(2) If a resident, who has capacity to determine that the resident has been abused or neglected and who is conducting electronic monitoring, gives a tape or recording made by the electronic monitoring device to a person and directs the person to view or listen to the tape or recording to determine whether abuse or neglect has occurred, the person to whom the resident gives the tape or recording is considered to have viewed or listened to the tape or recording on or before the seventh day after the date the person receives the tape or recording.
(3) A person is required to report abuse based on the person's viewing of or listening to a tape or recording only if the incident of abuse is acquired on the tape or recording. A person is required to report neglect based on the person's viewing of or listening to a tape or recording only if it is clear from viewing or listening to the tape or recording that neglect has occurred.
(4) If abuse or neglect of the resident is reported to the facility and the facility requests a copy of any relevant tape or recording made by an electronic monitoring device, the person who possesses the tape or recording must provide the facility with a copy at the facility's expense. The cost of the copy must not exceed the community standard. If the contents of the tape or recording are transferred from the original technological format, a qualified professional must do the transfer.
(5) A person who sends more than one tape or recording to DHS must identify each tape or recording on which the person believes an incident of abuse or evidence of neglect may be found. Tapes or recordings should identify the place on the tape or recording that an incident of abuse or evidence of neglect may be found.

 

§19.423 Model Drug Testing Policy

 

The Texas Department of Human Services (DHS) is required to provide a model drug testing policy to nursing facilities under the Health and Safety Code, §242.050. A nursing facility is not required to perform drug testing on its employees or applicants for employment. Although this policy only covers drugs, coverage of alcohol may be added. Before implementing any drug testing policy, including the following model policy, DHS recommends that a facility discuss the policy with its attorney.
(1) Policy.

(A) (NURSING FACILITY NAME) has a vital interest in maintaining a safe, healthy, and efficient working environment. Being under the influence of a drug on the job poses serious safety and health risks to the user, co-workers, and residents. The use, sale, purchase, transfer, or possession of an illegal drug in the workplace poses unacceptable risks for safe, healthy, and efficient operations.
(B) (NURSING FACILITY NAME) has the obligation to maintain a safe, healthy and efficient workplace for all of its employees and residents, and to protect the facility's property, information, equipment, operations, and reputation.
(C) (NURSING FACILITY NAME) recognizes its obligation to its residents to provide services that are free of the influence of illegal drugs and endeavors through this policy to provide drug-free services.
(D) (NURSING FACILITY NAME) complies with federal and state rules, regulations, or laws that relate to the maintenance of a workplace free from illegal drugs.
(E) All employees are required to abide by the terms of this policy and to notify management of any criminal drug statute conviction for a violation that occurred in the workplace no later than five days after such conviction.

(2) Purpose. This policy outlines the goals and objectives of (NURSING FACILITY NAME'S) drug testing program and provides guidance to supervisors and employees concerning their responsibilities for carrying out the program.
(3) Scope. This policy applies to all departments, all employees, and all job applicants. The term employee includes contracted employees.
(4) Definitions. The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

(A) Facility premises — All property of (NURSING FACILITY NAME) including, but not limited to, the offices, facilities, and surrounding areas on (NURSING FACILITY NAME)-owned or -leased property, parking lots, and storage areas. The term also includes (NURSING FACILITY NAME)-owned or -leased vehicles and equipment.
(B) Drug testing — The scientific analysis of urine, blood, breath, saliva, hair, tissue, and other specimens for detecting a drug.
(C) Illegal drug — Any drug that is not legally obtainable. Examples of illegal drugs are marijuana, cocaine, heroin, methamphetamines, and phencyclidine (PCP).
(D) Legal drug — Any prescribed drug or over-the-counter drug that has been legally obtained and is being used for the purpose for which it was prescribed or manufactured.
(E) Reasonable belief — A belief based on facts sufficient to lead a prudent person to conclude that a particular employee is unable to perform his or her job duties due to drug impairment. Such inability to perform may include, but not be limited to, decreases in the quality or quantity of the employee's productivity, judgment, reasoning, concentration and psychomotor control, and marked changes in behavior. Accidents, deviations from safe working practices, and erratic conduct indicative of impairment are examples of "reasonable belief" situations.
(F) Under the influence — A condition in which a person is affected by a drug in any detectable manner. The symptoms of influence are not confined to those consistent with misbehavior or to obvious impairment of physical or mental ability, such as slurred speech or difficulty in maintaining balance. A determination of being under the influence can be established by a professional opinion; a scientifically valid test, such as urinalysis or blood analysis; and in some cases by the opinion of a layperson.

(5) Education.

(A) Management personnel are to be trained to:

(i) detect the signs and behavior of employees who may be using drugs in violation of this policy; and
(ii) intervene in situations that may involve violations of this policy.

(B) Employees are to be informed of the provisions of this policy.

(6) Prohibited activities.

(A) Legal drugs. (NURSING FACILITY NAME) reserves the right at all times to judge the effect that a legal drug may have on an employee's job performance and to restrict the employee's work activity or presence at the workplace accordingly.
(B) Illegal drugs. The use, sale, purchase, transfer, or possession of an illegal drug by any employee while on (NURSING FACILITY NAME) premises or while performing (NURSING FACILITY NAME) business is prohibited.

(7) Discipline.

(A) Any employee who possesses, distributes, sells, attempts to sell, or transfers illegal drugs on (NURSING FACILITY NAME) premises or while on (NURSING FACILITY NAME) business will be subject to immediate discharge.
(B) Any employee found through drug testing to have in his or her body a detectable amount of an illegal drug will be subject to discipline up to and including discharge. An employee may be offered a one-time opportunity to enter and successfully complete a rehabilitation program, approved by (NURSING FACILITY NAME), at the employee's expense. During rehabilitation, the employee will be subject to unannounced drug testing. Upon return to work from rehabilitation, the employee may be subject to unannounced drug testing at (NURSING FACILITY NAME) expense for a period of 12 months. Any employee whose test is confirmed as positive during or following rehabilitation will be subjected to immediate discharge.

(8) Drug testing for job applicants.

(A) All applicants for employment, including applicants for part-time and seasonal positions and applicants who are former employees, are subject to drug testing.
(B) If an applicant refuses to take a drug test, or if evidence of the use of illegal drugs by an applicant is discovered, either through testing or other means, the pre-employment process will be terminated.
(C) An applicant must pass the drug test to be considered for employment.
(D) An applicant will be provided written notice of this policy and, by signature, will be required to acknowledge receipt and understanding of the policy before being tested.

(9) Drug testing of employees.

(A) (NURSING FACILITY NAME) will notify employees of this policy by:

(i) providing them with a copy of the policy and obtaining written acknowledgement that the policy has been received and read.
(ii) announcing the policy in written communications and making presentations at employee meetings.

(B) (NURSING FACILITY NAME) will perform drug testing:

(i) of any employee who exhibits "reasonable belief" behavior;
(ii) of each employee who has direct contact with residents annually;
(iii) of any employee who is subject to drug testing pursuant to federal or state rules, regulations, or laws;
(iv) on a random basis of any employee.

(C) An employee's consent to submit to drug testing is required as a condition of employment and the employee's refusal to consent may result in disciplinary action, including discharge, for a first refusal or any subsequent refusal.
(D) An employee who is tested in a "reasonable belief" situation may be suspended pending receipt of written test results and inquiries that may be required.

(10) Appeal of a drug test result.

(A) An applicant or employee whose drug test was positive will have an opportunity to explain why the positive finding could have resulted from a cause other than drug use. (NURSING FACILITY NAME) will judge whether the employee's explanation merits further inquiry.
(B) An applicant or employee whose drug test is reported positive will be offered the opportunity to:

(i) obtain and independently test, at their expense, the remaining portion of the urine specimen that yielded the positive result; and
(ii) obtain the written test result and submit it to an independent medical review, at their expense.

(C) During an appeal and any resulting inquiries, the pre-employment selection process for an applicant will be placed on hold, and the employment status of an employee may be suspended. An employee who is suspended pending appeal may use any available annual leave to remain in an active pay status. If the employee has no annual leave or chooses not to use it, the suspension will be without pay.

(11) Confidentiality. All information related to drug testing or the identification of persons as users of drugs will be protected by (NURSING FACILITY NAME) as confidential unless otherwise required by law or overriding public health and safety concerns, or authorized in writing by the persons in question.

 

§19.424 Wheelchair Self Release Seat Belts

 

(a) For the purposes of this section, a "self-release seat belt" is a seat belt on a resident's wheelchair that the resident demonstrates the ability to fasten and release without assistance. A self-release seat belt is not a restraint.

(b) Except as provided in subsection (c) of this section, a facility must allow a resident to use a self-release seat belt if:

(1) the resident or the resident's legal guardian requests that the resident use a self-release seat belt;

(2) the resident consistently demonstrates the ability to fasten and release the self-release seat belt without assistance;

(3) the use of the self-release seat belt is documented in and complies with the resident's comprehensive care plan; and

(4) the facility receives written authorization, signed by the resident or the resident's legal guardian, for the resident to use the self-release seat belt.

(c) A facility that advertises as a restraint-free facility is not required to allow a resident to use a self-release seat belt if the facility:

(1) provides a written statement to all residents that the facility is restraint-free and is not required to allow a resident to use a self-release seat belt; and

(2) makes reasonable efforts to accommodate the concerns of a resident who requests a self-release seat belt in accordance with subsection (b) of this section.

(d) A facility is not required to continue to allow a resident to use a self-release seat belt in accordance with subsection (b) of this section if:

(1) the resident cannot consistently demonstrate the ability to fasten and release the seat belt without assistance;

(2) the use of the self-release seat belt does not comply with the resident's comprehensive care plan; or

(3) the resident or the resident's legal guardian revokes in writing the authorization for the resident to use the self-release seat belt.