26 TAC ch. 554

Nursing Facility Requirements for Licensure and Medicaid Certification

This regulation establishes the licensing and Medicaid certification requirements for nursing facilities in Texas under 26 TAC Chapter 554, implementing both state law (Texas Health and Safety Code Chapter 242) and federal Medicaid standards (OBRA 1987). The basis and scope section clarifies that these rules apply to institutions providing organized nursing care seeking licensure and/or Medicaid participation, and that Medicaid-specific requirements apply to all residents in certified facilities. The definitions section provides standardized terminology governing facility operations, staffing, resident assessment, care planning, restraints, abuse/neglect, and administrative processes that operators must understand and apply throughout the chapter.

[§554.1 Basis and Scope]
(a) Basis in legislation. The Nursing Facility Requirements for Licensure and Medicaid Certification implement the requirements of federal and state laws and regulations governing licensed nursing facilities and nursing facilities participating in the Medicaid program administered by HHSC in cooperation with other federal and state agencies. If there is a conflict between material in these requirements and the laws or regulations governing the Medicaid program, the Medicaid laws and regulations are controlling. It is the intent of the Texas Legislature that rules adopted under Chapter 242 of the Texas Health and Safety Code may be more stringent than the standards imposed by federal law for certification for participation in the state Medicaid program. The rules and standards may not be less stringent than the Medicaid certification standards imposed under the Omnibus Budget Reconciliation Act of 1987.

(b) Scope. The Nursing Facility Requirements for Licensure and Medicaid Certification contain the requirements that an institution must meet in order to be licensed as a nursing facility and also to qualify to participate in the Medicaid program. The requirements serve as a basis for survey activities for licensure and certification.

(1) Certain requirements are specific to Medicaid-certified facilities and are so designated. The Medicaid-specific requirements apply to all residents, including private pay, Medicaid applicants and recipients, U.S. Department of Veteran's Affairs patients, and Medicare recipients, who are admitted to and reside in a Medicaid-certified facility or a Medicaid-certified distinct part of a facility.

(2) Additional requirements for facilities or distinct parts of facilities that are certified for Medicare-only participation are in 42 CFR §§483.5-483.95.

(3) These requirements do not apply to skilled nursing facilities licensed under the Texas Health and Safety Code, Chapter 241, participating only in the Medicare program.
Source Note: The provisions of this §554.1 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective August 1, 2000, 25 TexReg 6779; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.101 Definitions]
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

(1) Abuse--Negligent or willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical or emotional harm or pain to a resident; or sexual abuse, including involuntary or nonconsensual sexual conduct that would constitute an offense under Texas Penal Code §21.08 (relating to Indecent Exposure) or Texas Penal Code Chapter 22 (relating to Assaultive Offenses), sexual harassment, sexual coercion, or sexual assault.

(2) Act--Texas Health and Safety Code Chapter 242.

(3) Activities assessment--See Comprehensive Assessment and Comprehensive Care Plan in paragraphs (26) and (27) of this section.

(4) Activity director--The qualified individual appointed by the facility to direct the activities program as described in §554.702 of this chapter (relating to Activities).

(5) Addition--The addition of floor space to an institution.

(6) Administrator--A person currently licensed in accordance with Chapter 555 of this title (relating to Nursing Facility Administrators).

(7) Admission MDS assessment--An MDS assessment that determines a recipient's initial determination of eligibility for medical necessity for admission into the Texas Medicaid Nursing Facility Program.

(8) Advanced practice registered nurse--A person licensed as a registered nurse and approved to practice as an advanced practice registered nurse by the Texas Board of Nursing.

(9) Adverse event--An untoward, undesirable, and usually unanticipated event that causes death or serious injury, or the risk of death or serious injury.

(10) Alzheimer's Disclosure Statement for Nursing Facilities--The HHSC-prescribed form a facility uses to describe the nature of care or treatment of residents with Alzheimer's disease and related disorders.

(11) Alzheimer's disease and related disorders--Alzheimer's disease and any other irreversible dementia described by the Centers for Disease Control and Prevention or the most current edition of the Diagnostic and Statistical Manual of Mental Disorders.

(12) Applicant--A person or governmental unit, as defined in the Texas Health and Safety Code Chapter 242, applying for a license under that chapter.

(13) Attending physician--A physician, currently licensed by the Texas Medical Board, who is designated by the resident or resident representative as having primary responsibility for the treatment and care of the resident.

(14) Authorized electronic monitoring--The placement of an electronic monitoring device in a resident's room and using the device to make tapes or recordings after making a request to the facility to allow electronic monitoring.

(15) Barrier precautions--Precautions, including the use of gloves, masks, gowns, resuscitation equipment, eye protectors, aprons, face shields, and protective clothing for purposes of infection control.

(16) Care and treatment--Services required to maximize resident independence, personal choice, participation, health, self-care, psychosocial functioning, and reasonable safety, all consistent with the preferences of the resident.

(17) Certification--The determination by HHSC that a nursing facility meets all the requirements of the Medicaid or Medicare programs.

(18) Certified facility--A facility that meets the requirements of the Medicare program, the Medicaid program, or both.

(19) Certified Ombudsman--Has the meaning given in §88.2 of this title (relating to Definitions).

(20) CFR--Code of Federal Regulations.

(21) Change of ownership--An event that results in a change to the federal taxpayer identification number of the license holder of a facility. The substitution of a personal representative for a deceased license holder is not a change of ownership.

(22) Chemical restraints--Any drug administered for the purpose of discipline or convenience, and not required to treat the resident's medical symptoms.

(23) CMS--Centers for Medicare & Medicaid Services.

(24) Complaint--Any allegation received by HHSC other than an incident reported by the facility. Such allegations include abuse, neglect, exploitation, or violation of state or federal standards.

(25) Completion date--The date an RN assessment coordinator signs an MDS assessment as complete.

(26) Comprehensive assessment--An interdisciplinary description of a resident's needs and capabilities, including daily life functions and significant impairments of functional capacity, as described in §554.801(2) of this chapter (relating to Resident Assessment).

(27) Comprehensive care plan--A plan of care prepared by an interdisciplinary team that includes measurable short-term and long-term objectives and timetables to meet the resident's needs developed for each resident after admission.

(A) The plan addresses at least the following needs:

(i) medical;

(ii) nursing;

(iii) rehabilitative;

(iv) psychosocial;

(v) dietary;

(vi) activity; and

(vii) resident's rights.

(B) The plan includes strategies developed by the team, as described in §554.802(c)(2) of this chapter (relating to Comprehensive Person-Centered Care Planning), consistent with the physician's prescribed plan of care, to assist the resident in eliminating, managing, or alleviating health or psychosocial problems identified through assessment. Planning includes:

(i) goal setting;

(ii) establishing priorities for management of care;

(iii) making decisions about specific measures to be used to resolve the resident's problems; and

(iv) assisting in the development of appropriate coping mechanisms.

(28) Controlling person--A person with the ability, acting alone or in concert with others, to directly or indirectly, influence, direct, or cause the direction of the management, expenditure of money, or policies of a nursing facility or other person. A controlling person does not include a person, such as an employee, lender, secured creditor, or landlord, who does not exercise any influence or control, whether formal or actual, over the operation of a facility. A controlling person includes:

(A) a management company, landlord, or other business entity that operates or contracts with others for the operation of a nursing facility;

(B) any person who is a controlling person of a management company or other business entity that operates a nursing facility or that contracts with another person for the operation of a nursing facility;

(C) an officer or director of a publicly traded corporation that is, or that controls, a facility, management company, or other business entity described in subparagraph (A) of this paragraph but does not include a shareholder or lender of the publicly traded corporation; and

(D) any other individual who, because of a personal, familial, or other relationship with the owner, manager, landlord, tenant, or provider of a nursing facility, is in a position of actual control or authority with respect to the nursing facility, without regard to whether the individual is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility.

(29) Covert electronic monitoring--The placement and use of an electronic monitoring device that is not open and obvious, and the facility and HHSC have not been informed about the device by the resident, by a person who placed the device in the room, or by a person who uses the device.

(30) DADS--The term referred to the Department of Aging and Disability Services; it now refers to HHSC.

(31) Dentist--A practitioner licensed to practice dentistry by the Texas State Board of Dental Examiners.

(32) DHS--This term referred to the Texas Department of Human Services; it now refers to HHSC.

(33) Dietitian--A person qualified based upon either:

(A) registration by the Commission on Dietetic Registration of the Academy of Nutrition and Dietetics; or

(B) licensure, or provisional licensure, as a dietitian under Texas Occupations Code Chapter 701 and one year of supervisory experience in dietetic service of a health care facility.

(34) Direct ownership interest--Ownership of equity in the capital, stock, or profits of, or a membership interest in, an applicant or license holder.

(35) Disclosable interest--Five percent or more direct or indirect ownership interest in an applicant or license holder.

(36) Distinct part--That portion of a facility certified to participate in the Medicaid Nursing Facility program or as a SNF in the Medicare program.

(37) Drug (also referred to as medication)--Any of the following:

(A) any substance recognized as a drug in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them;

(B) any substance intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in humans;

(C) any substance (other than food) intended to affect the structure or any function of the body of a human; and

(D) any substance intended for use as a component of any substance specified in subparagraphs (A) - (C) of this paragraph. The term does not include devices or components, parts, or accessories.

(38) Electronic monitoring device--Video surveillance cameras and audio devices installed in a resident's room, designed to acquire communications or other sounds that occur in the room. An electronic, mechanical, or other device used specifically for the nonconsensual interception of wire or electronic communication is excluded from this definition.

(39) Emergency--A sudden change in a resident's condition requiring immediate medical intervention.

(40) Essential Caregiver--A family member, friend, guardian, volunteer, or other person designated for in-person visits by an individual, resident, or client or the individual's, resident's, or client's guardian or legally authorized representative (LAR) during a public health emergency or disaster. In case of conflict between an individual's, resident's, or client's selection and a guardian's selection on behalf of the individual, resident, or client, the guardian's selection prevails, in accordance with the terms of the guardianship. If an individual, resident, or client has no guardian and is unable to select an essential caregiver, the individual's, resident's, or client's LAR may select the essential caregiver.

(41) Executive commissioner--The executive commissioner of the Texas Health and Human Services Commission.

(42) Exploitation--The illegal or improper act or process of a caregiver, family member, or other individual who has an ongoing relationship with a resident using the resources of the resident for monetary or personal benefit, profit, or gain without the informed consent of the resident.

(43) Facility--Unless otherwise indicated, a facility is an institution that provides organized and structured nursing care and service and is subject to licensure under Texas Health and Safety Code Chapter 242.

(A) For Medicaid, a facility is a nursing facility that meets the requirements of §1919(a) - (d) of the Social Security Act (42 United States Code §1396r(a) - (d)). A facility may not include any institution that is for the care and treatment of mental diseases except for services furnished to individuals age 65 and over and who are eligible as defined in Chapter 303 of this title (relating to Preadmission Screening and Resident Review (PASRR)).

(B) For Medicare and Medicaid purposes (including eligibility, coverage, certification, and payment), the "facility" is always the entity which participates in the program, whether that entity is comprised of all, or a distinct part of, a larger institution.

(C) "Facility" is also referred to as a nursing home or nursing facility. Depending on context, these terms are used to represent the management, administrator, or other persons or groups involved in the provision of care of the resident; or to represent the physical building, which may consist of one or more floors or one or more units, or which may be a distinct part of a licensed hospital.

(44) Family council--A group of family members, friends, or legal guardians of residents, who organize and meet privately or openly.

(45) Family representative--An individual appointed by the resident to represent the resident and other family members, by formal or informal arrangement.

(46) Fiduciary agent--An individual who holds in trust another's monies.

(47) Goals--Long-term: general statements of desired outcomes. Short-term: measurable, time-limited, expected results that provide the means to evaluate the resident's progress toward achieving long-term goals.

(48) Governmental unit--A state or a political subdivision of the state, including a county or municipality.

(49) Health care provider--An individual, including a physician, or facility licensed, certified, or otherwise authorized to administer health care, in the ordinary course of business or professional practice.

(50) Hearing--A contested case hearing held in accordance with the Administrative Procedure Act, Texas Government Code Chapter 2001, and the formal hearing procedures in 1 Texas Administrative Code Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act) and Chapter 110 of this title (relating to Hearings Under the Administrative Procedure Act).

(51) HHSC--The Texas Health and Human Services Commission.

(52) HIV--Human Immunodeficiency Virus.

(53) Incident--An abnormal event, including accidents or injury to staff or residents, which is documented in facility reports. An occurrence in which a resident may have been subject to abuse, neglect, or exploitation must also be reported to HHSC.

(54) Indirect ownership interest--Any ownership or membership interest in a person that has a direct ownership interest in an applicant or license holder.

(55) Infection control--A program designed to prevent the transmission of disease and infection in order to provide a safe and sanitary environment.

(56) Inspection--Any on-site visit to or survey of an institution by HHSC for the purpose of licensing, monitoring, complaint investigation, architectural review, or similar purpose.

(57) Involuntary seclusion--Separation of a resident from others or from the resident's room or confinement to the resident's room, against the resident's will or the will of a person who is legally authorized to act on behalf of the resident. Monitored separation from other residents is not involuntary seclusion if the separation is a therapeutic intervention that uses the least restrictive approach for the minimum amount of time, not to exceed 24 hours, until professional staff can develop a care plan to meet the resident's needs.

(58) IV--Intravenous.

(59) Legend drug or prescription drug--Any drug that requires a written or telephonic order of a practitioner before it may be dispensed by a pharmacist, or that may be delivered to a particular resident by a practitioner in the course of the practitioner's practice.

(60) License holder--A person that holds a license to operate a facility.

(61) Licensed health professional--A physician; physician assistant; advanced practice registered nurse; physical, speech, or occupational therapist; pharmacist; physical therapist assistant occupational therapy assistant; registered professional nurse; licensed vocational nurse; licensed dietitian; licensed social worker; or certified respiratory care practitioner.

(62) Licensed vocational nurse (LVN)--A nurse who is currently licensed by the Texas Board of Nursing as a licensed vocational nurse.

(63) Life Safety Code--NFPA 101.

(64) Life safety features--Fire safety components required by NFPA 101, including building construction, fire alarm systems, smoke detection systems, interior finishes, sizes and thicknesses of doors, exits, emergency electrical systems, and sprinkler systems.

(65) Life support--Use of any technique, therapy, or device to assist in sustaining life. (See §554.419 of this chapter (relating to Advance Directives)).

(66) Local authorities--Persons, including local health authority, fire marshal, and building inspector, who may be authorized by state law, county order, or municipal ordinance to perform certain inspections or certifications.

(67) Local health authority--The physician appointed by the governing body of a municipality or the commissioner's court of the county to administer state and local laws relating to public health in the municipality's or county's jurisdiction as defined in Texas Health and Safety Code §121.021.

(68) Long-term Care Regulation--HHSC Regulatory Services Division, which is responsible for surveying nursing facilities to determine compliance with regulations for licensure and certification for Medicaid participation.

(69) Major injury--An injury that qualifies as a major injury under NFPA 99.

(70) Management services--Services provided under contract between the owner of a facility and a person to provide for the operation of a facility, including administration, staffing, maintenance, or delivery of resident services. Management services do not include contracts solely for maintenance, laundry, or food service.

(71) Manager--A person, other than a licensed nursing home administrator, having a contractual relationship to provide management services to a facility.

(72) Managing local ombudsman--Has the meaning given in §88.2 of this title.

(73) MDS--Minimum data set. See RAI.

(74) MDS nurse reviewer--A registered nurse employed by HHSC to monitor the accuracy of the MDS assessment submitted by a Medicaid-certified nursing facility.

(75) Medicaid applicant--A person who requests the determination of eligibility to become a Medicaid recipient.

(76) Medicaid nursing facility vendor payment system--Electronic billing and payment system for reimbursement to nursing facilities for services provided to eligible Medicaid recipients.

(77) Medicaid recipient--A person who meets the eligibility requirements of the Title XIX Medicaid program, is eligible for nursing facility services, and resides in a Medicaid-participating facility.

(78) Medical director--A physician licensed by the Texas Medical Board, who is engaged by the nursing home to assist in and advise regarding the provision of nursing and health care.

(79) Medical power of attorney--The legal document that designates an agent to make treatment decisions if the individual designator becomes incapable.

(80) Medication aide--A person who holds a current permit issued under the Medication Aide Training Program as described in Chapter 557 of this title (relating to Medication Aides--Program Requirements) and acts under the authority of a person who holds a current license under state law which authorizes the licensee to administer medication.

(81) Memory Care Disclosure Statement for Nursing Facilities--The HHSC-prescribed form a facility uses when the facility advertises, markets, or otherwise promotes that it provides services to residents with Alzheimer's disease and related disorders.

(82) Memory care services--Services provided by a nursing facility that meet the needs of residents with a diagnosis of Alzheimer's disease or related disorders or a diagnosis of dementia.

(83) Misappropriation--The taking, secretion, misapplication, deprivation, transfer, or attempted transfer to any person not entitled to receive any property, real or personal, or anything of value belonging to or under the legal control of a resident without the effective consent of the resident or other appropriate legal authority, or the taking of any action contrary to any duty imposed by federal or state law prescribing conduct relating to the custody or disposition of property of a resident.

(84) MN--Medical necessity. A determination, made by physicians and registered nurses who are employed by or contract with the state Medicaid claims administrator, that a recipient requires the services of a licensed nurse in an institutional setting to carry out a physician's planned regimen for total care. A recipient's need for custodial care in a 24-hour institutional setting does not constitute medical necessity.

(85) Neglect--The failure to provide goods or services, including medical services, that are necessary to avoid physical or emotional harm, pain, or mental illness.

(86) NFPA--National Fire Protection Association.

(87) NFPA 99--NFPA 99, Health Care Facilities Code, 2012 Edition.

(88) NFPA 101--NFPA 101, Life Safety Code, 2012 Edition.

(89) Nurse aide--An individual who provides nursing or nursing-related services to residents in a facility under the supervision of a licensed nurse. This term may include an individual who provides these services through an agency or under a contract with the facility. This definition does not include an individual who is a licensed health professional, a registered dietitian, or someone who volunteers such services without pay. A nurse aide is not authorized to provide nursing or nursing-related services for which a license or registration is required under state law. Nurse aides do not include those individuals who furnish services to residents only as paid feeding assistants.

(90) Nurse practitioner--An advanced practice registered nurse licensed by the Texas Board of Nursing in the role of Nurse Practitioner.

(91) Nurses' station--A nurses' station is an area designated as the focal point on all shifts for the administration and supervision of resident-care activities for a designated number of resident bedrooms.

(92) Nursing care--Services provided by nursing personnel which include, but are not limited to, observation; promotion and maintenance of health; prevention of illness and disability; management of health care during acute and chronic phases of illness; guidance and counseling of individuals and families; and referral to physicians, other health care providers, and community resources when appropriate.

(93) Nursing facility or nursing home--See definition of "facility."

(94) Nursing personnel--Persons assigned to give direct personal and nursing services to residents, including registered nurses, licensed vocational nurses, nurse aides, and medication aides. Unlicensed personnel function under the authority of licensed personnel.

(95) Objectives--See Goals in paragraph (47) of this section.

(96) OBRA--Omnibus Budget Reconciliation Act of 1987, which includes provisions relating to nursing home reform.

(97) Ombudsman intern--Has the meaning given in §88.2 of this title.

(98) Ombudsman Program--Has the meaning given in §88.2 of this title.

(99) Paid feeding assistant--An individual who meets the requirements of §554.1113 of this chapter (relating to Paid Feeding Assistants) and who is paid to feed residents by a facility or who is used under an arrangement with another agency or organization.

(100) Palliative plan of care--Appropriate medical and nursing care for residents with advanced and progressive diseases for whom the focus of care is controlling pain and symptoms while maintaining optimum quality of life.

(101) PASARR or PASRR--Preadmission Screening and Resident Review.

(102) Patient care-related electrical appliance--An electrical appliance that is intended to be used for diagnostic, therapeutic, or monitoring purposes in a patient care area, as defined in Standard 99 of the National Fire Protection Association.

(103) Person--An individual, firm, partnership, corporation, association, joint stock company, limited partnership, limited liability company, or any other legal entity, including a legal successor of those entities.

(104) Person-centered care--To focus on the resident as the locus of control, and to support the resident in making choices and having control over the resident's daily life.

(105) Pharmacist--An individual, licensed by the Texas State Board of Pharmacy to practice pharmacy, who prepares and dispenses medications prescribed by a practitioner.

(106) Physical restraint--Any manual method, or physical or mechanical device, material or equipment attached, or adjacent to the resident's body, that the individual cannot remove easily which restricts freedom of movement or normal access to one's body. The term includes a restraint hold.

(107) Physician--A doctor of medicine or osteopathy currently licensed by the Texas Medical Board to practice medicine.

(108) Physician assistant (PA)--An individual who is licensed as a physician assistant under Texas Occupations Code Chapter 204.

(109) Podiatrist--A practitioner whose profession encompasses the care and treatment of feet who is licensed to practice podiatry by the Texas State Board of Podiatric Medical Examiners.

(110) Poison--Any substance that federal or state regulations require the manufacturer to label as a poison and is to be used externally by the consumer from the original manufacturer's container. Drugs to be taken internally that contain the manufacturer's poison label, but are dispensed by a pharmacist only by or on the prescription order of a practitioner, are not considered a poison, unless regulations specifically require poison labeling by the pharmacist.

(111) Practitioner--A physician, podiatrist, dentist, or an advanced practice registered nurse or physician assistant to whom a physician has delegated authority to sign a prescription order, when relating to pharmacy services.

(112) Private and unimpeded access--Access to enter a facility, or communicate with a resident outside of the hearing or view of others, without interference or obstruction from facility employees, volunteers, or contractors.

(113) PRN (pro re nata)--As needed.

(114) Provider--The individual or legal business entity that is contractually responsible for providing Medicaid services under an agreement with HHSC.

(115) QMHP-CS--Qualified mental health professional-community services. Has the meaning given in §301.303 of this title (relating to Definitions).

(116) Qualified surveyor--An employee of HHSC who has completed state and federal training on the survey process and passed a federal standardized exam.

(117) Quality assessment and assurance committee--A group of health care professionals in a facility who develop and implement appropriate action to identify and rectify substandard care and deficient facility practice.

(118) Quality measure report--A report that provides information derived from an MDS that provides a numeric value to quality indicators. This data is available to the public as part of the Nursing Home Quality Initiative (NHQI)and is intended to provide objective measures for consumers to make informed decisions about the quality of care in a nursing facility.

(119) Quality-of-care monitor--A registered nurse, pharmacist, or dietitian employed by HHSC who is trained and experienced in long-term care facility regulation, standards of practice in long-term care, and evaluation of resident care, and functions independently of HHSC Regulatory Services Division.

(120) RAI--Resident Assessment Instrument. An assessment tool used to conduct comprehensive, accurate, standardized, and reproducible assessments of each resident's functional capacity as specified by the Secretary of the U. S. Department of Health and Human Services. At a minimum, this instrument must consist of the MDS core elements as specified by CMS; utilization guidelines; and Care Area Assessment process.

(121) Recipient--Any individual residing in a Medicaid certified facility or a Medicaid certified distinct part of a facility whose daily vendor rate is paid by Medicaid.

(122) Rehabilitative services--Rehabilitative therapies and devices provided to help a person regain, maintain, or prevent deterioration of a skill or function that has been acquired but then lost or impaired due to illness, injury, or disabling condition. The term includes physical and occupational therapy, speech-language pathology, and psychiatric rehabilitation services.

(123) Reportable conduct--Conduct subject to reporting to the Employee Misconduct Registry (EMR) established under Texas Health and Safety Code Chapter 253, including:

(A) abuse or neglect that causes or may cause death or harm to a resident;

(B) sexual abuse of a resident;

(C) financial exploitation of a resident in an amount of $25 or more; and

(D) emotional, verbal, or psychological abuse that causes harm to a resident.

(124) Representative payee--A person designated by the Social Security Administration to receive and disburse benefits, act in the best interest of the beneficiary, and ensure that benefits will be used according to the beneficiary's needs.

(125) Resident--Any individual residing in a nursing facility.

(126) Resident group--A group or council of residents who meet regularly.

(127) Resident representative--

(A) Any of the following:

(i) an individual chosen by the resident to act on behalf of the resident in order to support the resident in decision-making; access medical, social, or other personal information of the resident; manage financial matters; or receive notifications;

(ii) a person authorized by state or federal law (including agents under power of attorney, representative payees, and other fiduciaries) to act on behalf of the resident in order to support the resident in decision-making; access medical, social, or other personal information of the resident; manage financial matters; or receive notifications;

(iii) legal representative, as used in Section 712 of the Older Americans Act (40 United States Code (U.S.C.) §3058g); or

(iv) the court-appointed guardian of a resident.

(B) This definition is not intended to expand the scope of authority of any resident representative beyond that authority specifically authorized by the resident, state or federal law, or a court of competent jurisdiction.

(128) Responsible party--An individual authorized by the resident to act for him as an official delegate or agent. Responsible party is usually a family member or relative, but may be a legal guardian or other individual. Authorization may be in writing or may be given orally.

(129) Restraint--A chemical or physical restraint.

(130) Restraint hold--

(A) A manual method, except for physical guidance or prompting of brief duration, used to restrict:

(i) free movement or normal functioning of all or a portion of a resident's body; or

(ii) normal access by a resident to a portion of the resident's body.

(B) Physical guidance or prompting of brief duration becomes a restraint if the resident resists the guidance or prompting.

(131) RN--Registered nurse. An individual currently licensed by the Texas Board of Nursing as a registered nurse.

(132) RN assessment coordinator--A registered nurse who signs and certifies a comprehensive assessment of a resident's needs, using the RAI, including the MDS, as specified by HHSC.

(133) RUG--Resource Utilization Group. A categorization method, consisting of 34 categories based on the MDS, that is used to determine a recipient's service and care requirements and to determine the daily rate HHSC pays a nursing facility for services provided to the recipient.

(134) Secretary--Secretary of the U.S. Department of Health and Human Services.

(135) Services required on a regular basis--Services which are provided at fixed or recurring intervals and are needed so frequently that it would be impractical to provide the services in a home or family setting. Services required on a regular basis include continuous or periodic nursing observation, assessment, and intervention in all areas of resident care.

(136) SNF--A skilled nursing facility or distinct part of a facility that participates in the Medicare program. SNF requirements apply when a certified facility is billing Medicare for a resident's per diem rate.

(137) Social Security Administration--Federal agency for administration of social security benefits. Local social security administration offices take applications for Medicare, assist beneficiaries file claims, and provide information about the Medicare program.

(138) Social worker--An individual licensed, or provisionally licensed, by the Texas State Board of Social Work Examiners as prescribed by the Texas Occupations Code Chapter 505, and has at least:

(A) a bachelor's degree in social work; or

(B) similar professional qualifications, which include a minimum educational requirement of a bachelor's degree and one year experience met by supervised employment providing social services in a health care setting.

(139) Standards--The minimum conditions, requirements, and criteria established in this chapter with which an institution must comply to be licensed under this chapter.

(140) State Medicaid claims administrator--The entity under contract with HHSC to process Medicaid claims in Texas.

(141) State Ombudsman--Has the meaning given in §88.2 of this title.

(142) State plan--A formal plan for the medical assistance program, submitted to CMS, in which the State of Texas agrees to administer the program in accordance with the provisions of the State Plan, the requirements of Titles XVIII and XIX, and all applicable federal regulations and other official issuances of the U.S. Department of Health and Human Services.

(143) Stay agreement--An agreement between a license holder and the executive commissioner that sets forth all requirements necessary to lift a stay and rescind a license revocation proposed under §554.2107 of this chapter (relating to Revocation of a License by the HHSC Executive Commissioner).

(144) Substandard quality of care violation--A violation of §554.401(a) or (b) of this chapter (relating to Introduction); §554.402(b) or (c) of this chapter (relating to Exercise of Rights); §554.406 of this chapter (relating to Free Choice); §554.417 of this chapter (relating to Married Couples); §554.504(a) of this chapter (relating to Equal Access to Quality Care in Medicaid-certified Facilities); §554.601 of this chapter (relating to Freedom from Abuse, Neglect and Exploitation); §554.602 of this chapter (relating to Incidents of Abuse, Neglect, and Exploitation Reportable to the Texas Health and Human Services Commission and Law Enforcement Agencies by Facilities); §554.701 of this chapter (relating to Quality of Life); §554.703 of this chapter (relating to Social Services General Requirements); §554.706(a), (c), (d)(1) - (5), or (e)(7) of this chapter (relating to Resident Group and Family Council); §554.801 of this chapter (relating to Resident Assessment); §554.901 of this chapter (relating to Quality of Care); §554.904(2) or (4) of this chapter (relating to Behavioral Health Services); §554.1501(5), (6), or (7) of this chapter (relating to Pharmacy Services); or §554.1601(e)(2) of this chapter (relating to Infection Control) that constitutes:

(A) an immediate threat to resident health or safety;

(B) a pattern of or actual harm that is not an immediate threat; or

(C) a widespread potential for more than minimal harm, but less than an immediate threat, with no actual harm.

(145) Supervision--General supervision, unless otherwise identified.

(146) Supervision (direct)--Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity within the qualified person's sphere of competence. If the person being supervised does not meet assistant-level qualifications specified in this chapter and in federal regulations, the supervisor must be on the premises and directly supervising.

(147) Supervision (general)--Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity within the qualified person's sphere of competence. The person being supervised must have access to the qualified person providing the supervision.

(148) Survey agency--HHSC is the agency that, through contractual agreement with CMS, is responsible for Title XIX (Medicaid) survey and certification of nursing facilities.

(149) Texas Register--A publication of the Texas Register Publications Section of the Office of the Secretary of State that contains emergency, proposed, withdrawn, and adopted rules issued by Texas state agencies.

(150) Therapeutic diet--A diet ordered by a physician as part of treatment for a disease or clinical condition, in order to eliminate, decrease, or increase certain substances in the diet or to provide food which has been altered to make it easier for the resident to eat.

(151) Threatened violation--A situation that, unless immediate steps are taken to correct, may cause injury or harm to a resident's health and safety.

(152) Title II--Federal Old-Age, Survivors, and Disability Insurance Benefits of the Social Security Act (42 U.S.C. §§401 - 434).

(153) Title XVI--Supplemental Security Income (SSI) of the Social Security Act (42 U.S.C. §§1381 - 1385).

(154) Title XVIII--Medicare provisions of the Social Security Act (42 U.S.C. §§1390 - 1395lll).

(155) Title XIX--Medicaid provisions of the Social Security Act (42 U.S.C. §§1396 - 1396w-5).

(156) Total health status--Includes functional status, medical care, nursing care, nutritional status, rehabilitation and restorative potential, activities potential, cognitive status, oral health status, psychosocial status, and sensory and physical impairments.

(157) Universal precautions--The use of barrier precautions and other precautions to prevent the spread of blood-borne diseases.

(158) Unreasonable confinement--Involuntary seclusion.

(159) Vaccine preventable diseases--The diseases included in the most current recommendations of the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention.

(160) Vendor payment--Payment made by HHSC on a daily-rate basis for services delivered to recipients in Medicaid-certified nursing facilities. Vendor payment is based on the nursing facility's approved-to-pay claim processed by the state Medicaid claims administrator. The Nursing Facility Billing Statement, subject to adjustments and corrections, is prepared from information submitted by the nursing facility, which is currently on file in the computer system as of the billing date. Vendor payment is made at periodic intervals, but not less than once per month for services rendered during the previous billing cycle.

(161) Widespread--When the problem causing a violation is pervasive in a facility or represents systemic failure that affected or has the potential to affect a large portion or all facility residents.

(162) Willfully interfere--To act or not act to intentionally prevent, interfere with, or impede or to attempt to intentionally prevent, interfere with, or impede.

(163) Working day--Any 24-hour period, Monday through Friday, excluding state and federal holidays.
Source Note: The provisions of this §19.101 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective January 15, 1997, 21 TexReg 11970; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective August 1, 2000, 25 TexReg 6779; amended to be effective June 1, 2001, 26 TexReg 3824; amended to be effective May 1, 2002, 27 TexReg 3207; amended to be effective June 1, 2004, 29 TexReg 5416; amended to be effective June 1, 2006, 31 TexReg 4449; amended to be effective September 1, 2008, 33 TexReg 6151; amended to be effective September 1, 2008, 33 TexReg 7264; amended to be effective June 1, 2010, 35 TexReg 4465; amended to be effective June 1, 2012, 37 TexReg 3862; amended to be effective October 31, 2013, 38 TexReg 7465; amended to be effective August 31, 2015, 40 TexReg 5461; amended to be effective July 21, 2016, 41 TexReg 5203; amended to be effective March 27, 2017, 42 TexReg 1574; amended to be effective September 10, 2017, 42 TexReg 4468; amended to be effective October 11, 2017, 42 TexReg 5498; amended to be effective March 22, 2018, 43 TexReg 1646; amended to be effective April 5, 2018, 43 TexReg 2017; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871; amended to be effective December 6, 2022, 47 TexReg 7712; amended to be effective September 18, 2024, 49 TexReg 7331; amended to be effective July 30, 2026, 51 TexReg 4887.

[§554.201 Criteria for Licensing]
(a) A person or governmental unit, acting jointly or severally, must be licensed by DADS to establish, conduct, or maintain a facility.

(b) An applicant for a license must submit a complete application form and license fee to DADS.

(c) No person may apply for a probationary license, a license, change of ownership, increase in capacity, or renewal of a nursing facility license without making a disclosure of information as required in this section.

(d) An applicant for a license must affirmatively show that:

(1) the applicant or license holder has the ability to comply with:

(A) minimum standards of medical care, nursing care and financial condition; and

(B) any other applicable state or federal standard;

(2) the facility meets the standards of the Life Safety Code;

(3) the facility meets the construction standards in Subchapter D of this chapter (relating to Facility Construction); and

(4) the facility meets the standards for operation based on an on-site survey.

(e) Before issuing a license, DADS considers the background and qualifications of:

(1) the applicant or license holder;

(2) a partner, officer, director, or managing employee of the applicant or license holder;

(3) a person who owns or who controls the owner of the physical plant of a facility in which the nursing facility operates or is to operate; and

(4) a controlling person with respect to the nursing facility for which a license or license renewal is requested.

(f) An applicant or license holder must submit to DADS a sworn affidavit of a satisfactory compliance history and any other information required by DADS to substantiate a satisfactory compliance history in each state or other jurisdiction for any time period during which persons described in subsection (e) of this section operated a long-term care facility. For purposes of the sworn affidavit of a satisfactory compliance history, the applicant will be considered to have complied with the submission requirement (but not necessarily be entitled to a license) if the applicant swears or affirms that all the information disclosed in the application concerning previous state and federal nursing facility sanctions and penalties and related information are true and correct. The affidavit of compliance history is contained in DADS application form.

(g) A license is issued if, after inspection and investigation, DADS finds that the persons described in subsection (e) of this section meet all requirements of this chapter. Except as provided in §19.205 of this subchapter (relating to Probationary License) and §19.208(b)(2) of this subchapter (relating to Renewal Procedures and Qualifications), the license is valid for three years. Each license specifies the maximum allowable number of residents. The number of residents authorized by the license must not be exceeded.

(h) In making a determination whether to grant a nursing facility license, DADS reviews:

(1) the information contained in the application;

(2) the criminal history information of the persons described in subsection (e) of this section; and

(3) other documents DADS deems relevant, including survey and complaint investigation findings in each facility with which the applicant or any other person named in subsection (e) of this section has been affiliated at any time.
Source Note: The provisions of this §554.201 adopted to be effective May 1, 1995, 20 TexReg 2054; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective October 15, 1998, 23 TexReg 10496; amended to be effective March 15, 1999, 24 TexReg 994; amended to be effective October 1, 1999, 24 TexReg 8314; amended to be effective August 1, 2000, 25 TexReg 6779; amended to be effective May 1, 2002, 27 TexReg 3369; amended to be effective September 1, 2007, 32 TexReg 4231; amended to be effective September 1, 2009, 34 TexReg 5138; amended to be effective December 2,2012, 37 TexReg 9525; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.202 Building Approval]
All applications for license must include written approval of the local fire authority that the facility and its operation meet local fire ordinances.

(1) New facility. The sponsor of a new facility under construction or a previously unlicensed facility will provide to the Texas Department of Human Services (DHS) a copy of a dated, written notice to the local health authority that construction or modification has been or will be completed by a specific date. The local health authority may provide recommendations to DHS regarding the status of compliance with local codes, ordinances, or regulations. The sponsor must also provide a copy of a dated, written notice of the approval for occupancy by the local building code authority, if applicable.

(2) Increase in capacity. The license holder must request an application for increase in capacity from DHS. DHS provides the license holder with the application form, and DHS notifies the local fire marshal and the local health authority of the request. The license holder must arrange for the inspection of the facility by the local fire marshal. Upon completion of the inspection, the license holder must notify the local health authority and DHS in writing if the facility meets local code requirements. DHS approves the application only if the facility is found to be in compliance with the standards. Approval to occupy the increased capacity may be granted by DHS prior to the issuance of the license covering the increased capacity after inspection by DHS if standards are met.

(3) Change of ownership. The applicant for a change of ownership license must provide to DHS a copy of a letter notifying the local health authority of the request for a change of ownership. The local health authority may provide recommendations to DHS regarding the status of compliance with local codes, ordinances, or regulations.

(4) Renewal. DHS sends the local health authority a copy of DHS's license renewal notice specifying the expiration date of the facility's current license. The local health authority may provide recommendations to DHS regarding the status of compliance with local codes, ordinances, or regulations. The local authority may also recommend that a state license be issued or denied; however, the final decision on licensure status remains with DHS.
Source Note: The provisions of this §554.202 adopted to be effective May 1, 1995, 20 TexReg 2054; amended to be effective July 1, 1996, 21 TexReg 4408; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.204 Application Requirements]
(a) Applications. All applications must be made on forms prescribed by and available from the Texas Health and Human Services Commission (HHSC). All applications must be submitted through the licensure system.

(1) Each application must be completed in accordance with HHSC instructions.

(2) Changes to information required in the application must be reported to HHSC by submitting a change application in the licensure system, as required by §554.1918 of this chapter (relating to Disclosure of Ownership).

(b) General information required. An applicant for an initial application or change of ownership, must file with HHSC an application in the licensure system that contains evidence of the right to possession of the facility at the time the application will be granted, which may be satisfied by the submission of applicable portions of a lease agreement, deed or trust, or appropriate legal document. The names and addresses of any persons or organizations listed as owner of record in the real estate, including the buildings and grounds, must be disclosed to HHSC.

(c) Requested information. An applicant or license holder must provide any information HHSC requests within 30 days after the request.

(d) Exemptions. The provisions of this section do not apply to a bank, trust company, financial institution, title insurer, escrow company, or underwriter title company to which a license is issued in a fiduciary capacity.
Source Note: The provisions of this §554.204 adopted to be effective May 1, 1995, 20 TexReg 2054; amended to be effective July 1, 1996, 21 TexReg 4408; amended to be effective September 1, 1996, 21 TexReg 7859; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective August 1, 2000, 25 TexReg 6779; amended to be effective September 1, 2007, 32 TexReg 4231; amended to be effective July 21, 2016, 41 TexReg 5203; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871; amended to be effective December 6,2022, 47 TexReg 7712.

[§554.205 Probationary License]
The initial license issued to a license holder who has not previously held a license is a probationary license and is effective for one year. A permanent license may be issued only after DHS finds that the license holder and any other person listed in §19.201(f) of this title (relating to Criteria for Licensing) continues to meet the nursing facility requirements and submits an application requesting a permanent license with the applicable license fee. The facility must also be able to pass an inspection unless an inspection is not required as provided by §242.047, Health and Safety Code.
Source Note: The provisions of this §554.205 adopted to be effective August 1, 2000, 25 TexReg 6779; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.206 Increase in Capacity]
(a) During the license term, a license holder may not increase capacity without approval from the Texas Department of Human Services (DHS). The license holder must submit to DHS a complete application for increase in capacity and the fee required in §19.216 of this title (relating to License Fees).

(b) Upon approval of an increase in capacity, DHS will issue a new license.
Source Note: The provisions of this §554.206 adopted to be effective May 1, 1995, 20 TexReg 2054; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.208 Renewal Procedures and Qualifications]
(a) A license issued under this chapter is not automatically renewed. Each license expires three years from the date issued, except as provided in §19.205 of this subchapter (relating to Probationary Licenses) and subsection (b)(2) of this section.

(b) For a license that expires during the period September 1, 2013, through August 31, 2014, DADS:

(1) issues a three-year renewal license to a facility with a facility identification number ending in an odd digit; and

(2) issues a two-year renewal license to a facility with a facility identification number ending in an even digit.

(c) The license fee for renewal licenses issued in accordance with subsection (b)(2) of this section is two-thirds of the amount referenced in §19.216(a)(2) of this subchapter (relating to License Fees).

(d) For a license that expires after August 31, 2014, DADS issues a three-year renewal license.

(e) Each license holder must, no later than the 45th day before the expiration of the current license, submit an application for renewal with DADS. DADS considers that an individual has submitted a timely and sufficient application for the renewal of a license if the license holder submits:

(1) a complete application to DADS, and DADS receives the complete application no later than the 45th day before the expiration date of the current license;

(2) an incomplete application to DADS with a letter explaining the circumstances which prevented the inclusion of the missing information, and DADS receives the incomplete application and letter no later than the 45th day before the expiration date of the current license; or

(3) a complete application or an incomplete application with a letter explaining the circumstances which prevented the inclusion of the missing information to DADS, DADS receives the application during the 45-day period ending on the date the current license expires, and the license holder pays the late fee established in §19.216(a)(6) of this subchapter in addition to the basic renewal fee.

(f) If the application is postmarked by the submission deadline, the application will be considered timely if received in DADS Licensing and Credentialing Section, Regulatory Services Division within 15 days after the postmark.

(g) The appropriate license fee must be paid upon submission of the renewal application.

(h) The renewal of a license may be denied for the same reasons an original application for a license may be denied. See §19.214 of this subchapter (relating to Criteria for Denying a License or Renewal of a License).
Source Note: The provisions of this §554.208 adopted to be effective May 1, 1995, 20 TexReg 2054; amended to be effective April 1, 2001, 26 TexReg 1547; amended to be effective May 4, 2008, 33 TexReg 3446; amended to be effective January 15, 2009, 34 TexReg 237; amended to be effective December 2, 2012, 37 TexReg 9525; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.209 Exclusion from Licensure]
(a) DADS, after providing notice and opportunity for a hearing, may exclude a person from eligibility for a license if the person or any person described in §19.201(e) of this subchapter (relating to Criteria for Licensing) has substantially failed to comply with the rules in this chapter. During the period of exclusion, the excluded person is not eligible to be a license holder or a controlling person of a license holder. The period of exclusion:

(1) must be for at least two years; and

(2) may be:

(A) for no more than ten years if the exclusion is based on conduct that occurred before September 1, 2011; or

(B) throughout the person's lifetime or existence if the exclusion is based on conduct that occurred on or after September 1, 2011.

(b) A license holder or controlling person who operates a nursing facility or an assisted living facility for which a trustee was appointed and for which emergency assistance funds, other than funds to pay the expenses of the trustee, were used is subject to exclusion from eligibility for the:

(1) issuance of an original license for a facility for which the person has not previously held a license; or

(2) renewal of the license of the facility for which the trustee was appointed.
Source Note: The provisions of this §554.209 adopted to be effective March 1, 1998, 23 TexReg 1314; amended to be effective August 1, 2000, 25 TexReg 6779; amended to be effective September 1, 2007, 32 TexReg 4231; amended to be effective December 2, 2012, 37 TexReg 9525; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.210 Change of Ownership and Notice of Changes]
(a) A license holder may not transfer its license. If there is a change of ownership, the license holder's license becomes invalid on the date of the change of ownership. The new owner must obtain a change of ownership license in accordance with subsection (b) of this section. The license holder and new license applicant must notify DADS before a change of ownership occurs.

(b) The applicant must submit to DADS:

(1) a complete application for a change of ownership license under §19.201 of this subchapter (relating to Criteria for Licensing) or an incomplete application with a letter explaining the circumstances that prevented the inclusion of the missing information;

(2) the application fee, in accordance with §19.216 of this subchapter (relating to License Fees); and

(3) signed, written notice from the facility's existing license holder of his intent to transfer operation of the facility to the applicant beginning on a date specified by the applicant.

(c) To avoid a facility operating while unlicensed, an applicant must submit all items in subsection (b) of this section at least 30 days before the anticipated date of the change of ownership. DADS considers an application as submitted timely if the application is postmarked at least 30 days before the anticipated date of the change of ownership and received in DADS Licensing and Credentialing Section, Regulatory Services Division, within 15 days after the date of the postmark.

(d) The 30-day notification from the applicant or the 30-day notification from the existing license holder or both may be waived if DADS determines that the applicant presented evidence showing that circumstances prevented the submission of the 30-day notice and if DADS determines that not waiving the 30-day notification would create a threat to resident welfare or health and safety. If the applicant submits a timely and sufficient application for a change of ownership license and meets all requirements for a license, DADS issues a change of ownership license effective on the date requested by the applicant.

(e) A change of ownership license is a 90-day temporary license issued to an applicant who proposes to become the new operator of a nursing facility that exists on the date the application is submitted. Upon receipt of a complete application, fee, and signed, written notice from the facility's existing license holder of the intent to transfer the operation of the facility to the applicant beginning on a date specified by the applicant, DADS issues a change of ownership license to the applicant if DADS finds that the applicant and any other persons listed in §19.201(e) of this subchapter meet the requirements in §19.201(d)(1) and (f) of this subchapter.

(1) All applications must be made on forms prescribed by and available from DADS. Each application must be completed in accordance with DADS instructions, signed, and notarized, and must contain all forms required by DADS.

(2) DADS approves or denies an application for a change of ownership license not later than the 31st day after the date of receipt of the complete application, fee, and signed, written notice from the facility's existing license holder of his intent to transfer the operation of the facility to the applicant beginning on a date specified by the applicant. The effective date of the license is the later of the date requested in the application or the 31st day after the date DADS receives the application, fee, and signed, written notice from the existing license holder, unless waived in accordance with subsection (d) of this section. The effective date of the change of ownership license cannot precede the date the application is received in DADS Licensing and Credentialing Section, Regulatory Services Division.

(3) If the applicant meets the requirements of §19.201 of this subchapter and passes an initial inspection, desk review, or a subsequent inspection before the change of ownership license expires, a regular three-year license is issued. The effective date of the regular three-year license is the same date as the effective date of the change of ownership and cannot precede the date the application is received by DADS Licensing and Credentialing Section, Regulatory Services Division.

(4) When an applicant has not previously held a license in Texas, a probationary license is issued following the change of ownership license. The effective date of the probationary one-year license is the same date as the change of ownership license and cannot precede the date the application is received in DADS Licensing and Credentialing Section, Regulatory Services Division.

(5) A change of ownership license expires on the 90th day after its effective date.

(6) DADS conducts an on-site health inspection to verify compliance with the licensure requirements after issuing a change of ownership license. DADS may conduct a desk review instead of an on-site health inspection after issuing a change of ownership license if:

(A) less than 50 percent of the direct or indirect ownership interest in the former license holder changed, when compared to the new license holder; or

(B) every owner with a disclosable interest in the new license holder had a disclosable interest in the former license holder.

(7) DADS, in its sole discretion, may conduct an on-site Life Safety Code inspection after issuing a change of ownership license.

(f) A license holder may be eligible to acquire, on an expedited basis, a license to operate another existing nursing facility. A license holder that appears on the expedited change of ownership list may be granted expedited approval in obtaining a change of ownership license to operate another existing nursing facility in Texas.

(1) DADS maintains and keeps current a list of nursing facility license holders that operate an institution in Texas and that have met the criteria to qualify for an expedited change of ownership according to the information available to DADS.

(2) In order to establish and maintain the expedited change of ownership list, DADS uses the criteria found in §19.2322(e) of this chapter (relating to Medicaid Bed Allocation Requirements). A license holder meeting these criteria appears on the list and is eligible to be issued, on an expedited basis, a change of ownership license to operate another existing institution in Texas.

(3) A license holder appearing on the list must submit an affidavit that demonstrates the license holder continues to meet the criteria established for being listed on the expedited change of ownership list, and continues to meet the requirements in §19.201(d)(1) and (f) of this subchapter.

(4) DADS processes a change of ownership license application on an expedited basis for a license holder on the list if DADS finds that the license holder and any other persons listed in §19.201(e) of this subchapter meet the requirements in §19.201(d)(1) and (f) of this subchapter.

(5) If the license holder requesting a change of ownership license on an expedited basis complies with subsections (b) - (e) of this section, DADS approves or denies the application for a change of ownership license not later than the 15th day after the date of receipt of the complete application, fee, and signed, written notice from the facility's existing license holder of the intent to transfer the operation of the facility to the applicant beginning on a date requested in the application. The effective date of the license is the later of the date requested in the application or the 31st day after the date DADS receives the application fee, and signed, written notice from the existing license holder, unless waived in accordance with subsection (d) of this section. The effective date of the change of ownership license cannot precede the date the application is received in DADS Licensing and Credentialing Section, Regulatory Services Division.

(6) An applicant for a change of ownership license on an expedited basis must meet all applicable requirements that an applicant for renewal of a license must meet. Any requirement relating to inspections or to an accreditation review applies only to institutions operated by the license holder at the time the application is made for the change of ownership license.

(g) If a license holder changes its name, but does not undergo a change of ownership, the license holder must notify DADS and submit documentation evidencing a legal name change. On receipt of the notice and documentation, DADS re-issues the current license in the license holder's new name.

(h) If a license holder adds an owner with a disclosable interest, but the license holder does not undergo a change of ownership, the license holder must notify DADS no later than 30 days after the addition of the owner.
Source Note: The provisions of this §554.210 adopted to be effective December 1, 2008, 33 TexReg 9713; amended to be effective September 1, 2009, 34 TexReg 5138; amended to be effective December 2, 2012, 37 TexReg 9525; amended to be effective October 11, 2017, 42 TexReg 5498; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.211 Relocation]
(a) A license holder may not relocate a facility to another location without approval from the Texas Department of Human Services (DHS). The license holder must submit a complete application and the fee required under §19.216 of this title (relating to License Fees) to DHS before the relocation.

(b) Residents may not be relocated until the new building has been inspected and approved as meeting the standards of the Life Safety Code as applicable to nursing facilities.

(c) Following Life Safety Code approval by DHS, the license holder must notify DHS of the date residents will be relocated. If the new facility meets the standards for operation based on an on-site survey, a license will be issued.

(d) The effective date of the license will be the date all residents are relocated.

(e) The license holder must continue to maintain the license at the current location and must continue to meet all requirements for operation of the facility until the date of the relocation.

(f) This section applies to relocation of a currently licensed facility, and does not govern the relocation of Medicaid-certified beds. See §19.2322 of this title (relating to Medicaid Bed Allocation Requirements) for guidelines on relocation of Medicaid-certified beds.
Source Note: The provisions of this §554.211 adopted to be effective May 1, 2002, 27 TexReg 3369; amended to be effective November 1, 2002, 27 TexReg 9154; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.212 Time Periods for Processing License Applications]
(a) The Health and Human Services Commission (HHSC) will process only applications received within 60 days prior to the requested date of the issuance of the license.

(b) An application is complete when all requirements for licensing have been met, including compliance with standards. If an inspection for compliance is required, the application is not complete until the inspection has occurred, reports have been reviewed, and the applicant complies with the standards.

(c) If the application is postmarked by the filing deadline and received by HHSC within 15 days of the postmark, the application is considered to be timely filed.

(d) HHSC notifies a facility within 30 days of receipt of the application if any of the following applications are incomplete:

(1) initial application;

(2) change of ownership;

(3) renewal; and

(4) increase in capacity.

(e) A license will be issued or denied within 30 days of the receipt of a complete application or within 30 days prior to the expiration date of the license.

(f) HHSC may pend action for up to six months on an application:

(1) of any type listed in subsection (d) of this section to give an applicant time to comply with licensure requirements imposed by HHSC; or

(2) for renewal of the license if the facility is subject to a proposed denial or pending licensure revocation action.

(g) Criteria for reimbursement of fees are as follows.

(1) In the event the application is not processed in the time periods as stated, the applicant has a right to request of the program director full reimbursement of all filing fees paid in that particular application process. If the program director does not agree that the established periods have been violated or finds that good cause existed for exceeding the established periods, the request will be denied. Good cause for exceeding the period established is considered to exist if:

(A) the number of applications to be processed exceeds by 15% or more the number processed in the same calendar quarter of the preceding year;

(B) another public or private entity used in the application process caused the delay; or

(C) other conditions existed giving good cause for exceeding the established periods.

(2) If the request for full reimbursement is denied, the applicant may appeal directly to the executive commissioner for resolution of the dispute. The applicant must send a written statement to the executive commissioner describing the request for reimbursement and the reasons for it. The program also may send a written statement to the executive commissioner describing the program's reasons for denying reimbursement. The executive commissioner makes a timely decision concerning the appeal and notifies the applicant and the program in writing of the decision.
Source Note: The provisions of this §554.212 adopted to be effective May 1, 1995, 20 TexReg 2054; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective February 20, 2018, 43 TexReg 900; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.214 Criteria for Denying a License or Renewal of a License]
(a) DADS may deny an initial license or refuse to renew a license if any person described in §19.201(e) of this subchapter (relating to Criteria for Licensing):

(1) is subject to denial or refusal as described in Chapter 99 of this title (relating to Denial or Refusal of License) during the time frames described in that chapter;

(2) does not have a satisfactory history of compliance with state and federal nursing home regulations. In determining whether there is a history of satisfactory compliance with federal or state regulations, DADS at a minimum may consider:

(A) whether any violation resulted in significant harm or a serious and immediate threat to the health, safety, or welfare of any resident;

(B) whether the person promptly investigated the circumstances surrounding any violation and took steps to correct and prevent a recurrence of a violation;

(C) the history of surveys and complaint investigation findings and any resulting enforcement actions;

(D) a repeated failure to comply with regulation;

(E) an inability to attain compliance with cited deficiencies within an acceptable period of time as specified in the plan of correction or credible allegation of compliance, whichever is appropriate;

(F) the number of violations relative to the number of facilities the applicant or any other person named in §19.201(e) of this subchapter has been affiliated with at any time; and

(G) any exculpatory information deemed relevant by DADS;

(3) has committed any act described in §19.2112(a)(2) - (7) of this chapter (relating to Administrative Penalties);

(4) violated Chapter 242 of the Texas Health and Safety Code in either a repeated or substantial manner;

(5) aids, abets, or permits a substantial violation described in paragraph (4) of this subsection about which the person had or should have had knowledge;

(6) fails to provide the required information and facts and/or references;

(7) fails to pay the following fees, taxes, and assessments when due:

(A) licensing fees as described in §19.216 of this subchapter (relating to License Fees);

(B) reimbursement of emergency assistance funds within one year after the date on which the funds were received by the trustee in accordance with the provisions of §19.2116(e) and (f) of this chapter (relating to Involuntary Appointment of a Trustee); or

(C) franchise taxes;

(8) has a history of any of the following actions at any time preceding the date of the application:

(A) operation of a facility that has been decertified or had its contract canceled under the Medicare or Medicaid program in any state or both;

(B) federal or state nursing facility sanctions or penalties, including, but not limited to, monetary penalties, downgrading the status of a facility license, proposals to decertify, directed plans of correction or the denial of payment for new Medicaid admissions;

(C) unsatisfied final judgments;

(D) eviction involving any property or space used as a facility in any state;

(E) suspension of a license to operate a health care facility, long-term care facility, assisted living facility, or a similar facility in any state;

(F) revocation of a license to operate a health care facility, long-term care facility, assisted living facility, or similar facility in any state;

(G) surrender of a license in lieu of revocation or while a revocation hearing is pending; or

(H) expiration of a license while a revocation action is pending and the license is surrendered without an appeal of the revocation or an appeal is withdrawn;

(9) fails to meet minimum standards of financial condition as described in §19.201(d)(1)(A) of this subchapter and §19.1925(a) of this chapter (relating to Financial Condition); or

(10) fails to notify DADS of a significant adverse change in financial condition as required under §19.1925 of this chapter.

(b) DADS:

(1) denies a license to an applicant to operate a facility if the applicant has on the date of the application:

(A) a debarment or exclusion from the Medicare or Medicaid programs by the federal government or a state; or

(B) a court injunction prohibiting the applicant or manager from operating a facility; or

(2) may deny a license to an applicant to operate a new facility if the applicant has a history of any of the following actions at any time preceding the date of the application:

(A) revocation of a license to operate a health care facility, long-term care facility, assisted living facility, or similar facility in any state;

(B) surrender of a license in lieu of revocation or while a revocation hearing is pending;

(C) expiration of a license while a revocation action is pending and the license is surrendered without an appeal of the revocation or an appeal is withdrawn;

(D) debarment or exclusion from the Medicare or Medicaid programs by the federal government or a state; or

(E) a court injunction prohibiting the applicant or manager from operating a facility.

(c) Only final actions are considered for purposes of subsections (a)(8) and (b) of this section. An action is final when routine administrative and judicial remedies are exhausted. All actions, whether pending or final, must be disclosed.

(d) If an applicant for a new license owns multiple facilities, DADS examines the overall record of compliance in all of the applicant's facilities. Denial of an application for a new license will not preclude the renewal of licenses for the applicant's other facilities with satisfactory records.

(e) If DADS denies a license or refuses to issue a renewal of a license, the applicant or license holder may request an administrative hearing. Administrative hearings are held under the Health and Human Services Commission's hearing procedures in 1 TAC Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act), and Chapter 91 of this title (relating to Hearings Under the Administrative Procedure Act).
Source Note: The provisions of this §554.214 adopted to be effective May 1, 1995, 20 TexReg 2054; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective October 1, 1999, 24 TexReg 8314; amended to be effective April 1, 2001, 26 TexReg 1547; amended to be effective September 1, 2007, 32 TexReg 4231; amended to be effective May 4, 2008, 33 TexReg 3446; amended to be effective September 1, 2009, 34 TexReg 5138; amended to be effective January 18, 2012, 37 TexReg 125; amended to be effective December 2, 2012, 37 TexReg 9525;transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.215 Opportunity to Show Compliance]
(a) Before the institution of proceedings to revoke or suspend a license or deny an application for the renewal of a license, the Texas Department of Human Services (DHS) gives the license holder:

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

(2) an opportunity to show compliance with all requirements of law for the retention of the license by sending the director of Long Term Care-Regulatory a written request. The request must:

(A) be postmarked within 10 days of the date of DHS's notice and be received in the state office of the director of Long-Term Care-Regulatory within 10 days of the date of the postmark; and

(B) contain specific documentation refuting DHS's allegations.

(b) DHS's review will be limited to a review of documentation submitted by the license holder and information DHS used as the basis for its proposed action and will not be conducted as an adversary hearing. DHS will give the license holder a written affirmation or reversal of the proposed action.
Source Note: The provisions of this §554.215 adopted to be effective May 1, 1995, 20 TexReg 2054; amended to be effective July 1, 2001, 26 TexReg 3824; amended to be effective May 1, 2003, 28 TexReg 2619; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.216 License Fees]
(a) Basic fees.

(1) Probationary license. The license fee is $125 plus $5 for each unit of capacity or bed space for which a license is sought.

(2) Initial and renewal license. The license fee is $375 plus $15 for each unit of capacity or bed space for which a license is sought. The fee must be paid with each initial and renewal of license application.

(3) Increase in bed space. An approved increase in bed space is subject to an additional fee of $15 for each unit of capacity or bed space.

(4) Change of administrator. A facility must report a change of administrator within 30 days of the effective date of the change by submitting a change of administrator notice and a $20 fee to DADS Licensing and Credentialing Section, Regulatory Services Division. If DADS Licensing and Credentialing Section, Regulatory Services Division does not receive the notice within 30 days of the effective date of the change, DADS may impose a $500 administrative penalty. If the notice is postmarked within the 30-day period, 15 days will be added to the time period to receive the notice.

(5) Background information fee. The background information fee is $50.

(6) Late renewal fee. An applicant for license renewal that submits an application during the 45-day period ending on the date the current license expires must pay a late fee of an amount equal to one-half of the total basic renewal fee in subsection (a)(2) of this section. The late fee for a two-year renewal license issued in accordance with §19.208(b)(2) of this subchapter (relating to Renewal Procedures and Qualifications) is one half of the total two-year renewal fee calculated in accordance with §19.208(c) of this subchapter.

(b) Trust fund fee.

(1) In addition to the basic license fee described in subsection (a) of this section, DADS has established a trust fund for the use of a court-appointed trustee as described in the Texas Health and Safety Code, Chapter 242, Subchapter D.

(2) DADS charges and collects an annual fee from each facility licensed under the Texas Health and Safety Code, Chapter 242 each calendar year if the amount of the nursing and convalescent trust fund is less than $10,000,000. The fee is based on a monetary amount specified for each licensed unit of capacity or bed space, not to exceed $20 annually, and is in an amount sufficient to provide not more than $10,000,000 in the trust fund. In calculating the fee, the amount will be rounded to the next whole cent.

(3) Veterans homes (as defined in the Texas Natural Resources Code, §164.002) are exempt from paying a trust fund fee.

(4) DADS may charge and collect a fee more than once a year only if necessary to ensure that the amount in the nursing and convalescent trust fund is sufficient to allow required disbursements.

(c) Alzheimer's certification. In addition to the basic license fee described in subsection (a) of this section, a facility that applies for certification to provide specialized services to persons with Alzheimer's disease or related conditions under Subchapter W of this chapter (relating to Certification of Facilities for Care of Persons with Alzheimer's Disease and Related Disorders) must pay with each initial and renewal certification application a fee of $300 for the three-year certification.
Source Note: The provisions of this §554.216 adopted to be effective May 1, 1995, 20 TexReg 2054; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective January 1, 2000, 24 TexReg 11781; amended to be effective August 1, 2000, 25 TexReg 6779; amended to be effective April 1, 2001, 26 TexReg 1547; amended to be effective September 1, 2003, 28 TexReg 6939; amended to be effective January 15, 2009, 34 TexReg 237; amended to be effective December 2, 2012, 37 TexReg 9525; amended to be effective January 1, 2014, 38 TexReg 9629; transferred effective January 15, 2021, aspublished in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.218 Method of Payment]
Payment of fees must be by check or money order made payable to the Texas Department of Human Services. All fees are nonrefundable except as provided by the Government Code, Chapter 2005.
Source Note: The provisions of this §554.218 adopted to be effective May 1, 1995, 20 TexReg 2054; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.219 Plan Review Fees]
(a) The Texas Department of Human Services (DHS) charges a fee to review plans for new buildings, additions, conversion of buildings not licensed by DHS, or remodeling of existing licensed facilities.

(b) The fee schedule follows:

(1) Facilities--new construction:

(A) single-story facilities--$20 per bed, $2,000 minimum; and

(B) multiple-story facilities--$24 per bed, $2,500 minimum.

(2) Additions or remodeling of existing licensed facilities--2% of construction cost with $500 minimum fee and a maximum not to exceed $2,000.

(3) Alzheimer's certification--$550 in addition to the fees specified in paragraphs (1) - (2) of this subsection.
Source Note: The provisions of this §554.219 adopted to be effective April 1, 2002, 27 TexReg 2249; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.220 Expedited Life Safety Code and Physical Plant Inspection Fees]
(a) DADS charges a fee for expedited Life Safety Code and physical plant inspections for new buildings, additions, conversion of buildings not licensed by DADS, or remodeling of existing licensed facilities.

(b) Table of Expedited Life Safety Code and Physical Plant Inspection Fees.

Attached Graphic
Source Note: The provisions of this §554.220 adopted to be effective June 1, 2010, 35 TexReg 4465; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.401 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) HHSC adopts by reference as a requirement for obtaining a license under Texas Health and Safety Code Chapter 242 the Centers for Medicare and Medicaid Services rule regarding resident rights, 42 CFR §483.10, adopted to be effective November 28, 2016. The adopted rule was published in the October 4, 2016, issue of the Federal Register (81 Fed. Reg. 68688, 68849).

(c) HHSC has developed the following statement of the rights of a resident.

Attached Graphic

(d) 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.

(e) The Statement of Resident Rights must be posted in accordance with §19.1921 of this chapter (relating to General Requirements for a Nursing Facility).
Source Note: The provisions of this §554.401 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective July 1, 2002, 27 TexReg 4362; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.402 Exercise of Rights]
(a) The resident has the right to exercise the resident's 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 the resident's rights.

(c) In the case of a resident found to lack capacity under the laws of the State of Texas by a court of competent jurisdiction, the rights of the resident are exercised by the resident representative appointed under Texas law to act on the resident's behalf.

(d) The facility must comply with all applicable provisions of the Texas Human Resources Code, Title 6, Chapter 102. An individual may not be denied appropriate care on the basis of the individual's race, religion, color, national origin, sex, age, disability, marital status, or source of payment.

(e) The facility must allow the resident the right to observe the resident's 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 subchapter (relating to Advance Directives).

(g) In the case of a resident who has not been found to lack capacity 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.
Source Note: The provisions of this §554.402 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective July 1, 1996, 21 TexReg 4408; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.403 Notice of Rights and Services]
(a) The facility must inform the resident, 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 §554.404 of this subchapter (relating to Protection of Resident Funds);

(3) the Texas Human Resources Code, Title 6, Chapter 102; or a written list of the rights and responsibilities contained in the Texas Human Resources Code, Title 6, Chapter 102;

(4) a written description of the services available through the Ombudsman Program. 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 resident representatives;

(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;

(6) HHSC 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; and

(7) facility essential caregiver policies and procedures during a public health emergency or disaster, and 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 (b) - (d) 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) and (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) to purchase photocopies of all or any portion of the records 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 §554.419 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 CFR, Part 46.

(i) The facility must inform a 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.

(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 §554.404 of this subchapter;

(2) a posting of names, addresses, and telephone numbers of all pertinent state client advocacy groups such as HHSC, the 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 HHSC 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 notify, consistent with the representative's authority, the resident representative when there is:

(A) an accident involving the resident that 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 the resident representative, if any, when there is:

(A) a change in room or roommate assignment with the reason for the change provided in writing; or

(B) a change in resident rights under federal or state law or regulations as described in subsection (b) of this section.

(3) The facility must record and periodically update the address and phone number of the resident.

(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 (42 U.S.C. §1396r(e)(6));

(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 paragraph (2)(A) and (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 (42 U.S.C. §1396r-5(c)), 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 that 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 refunds for previous payments covered by such benefits.

(n) Additional requirements for certain facilities related to memory care and Alzheimer's disease and related disorders. Facilities must provide the following HHSC forms:

(1) for a facility that advertises, markets, or otherwise promotes that it provides memory care services to residents, the Memory Care Disclosure Statement for Nursing Facilities, to each resident, disclosing as required by the Texas Health and Safety Code §242.0405 whether the facility is certified to provide specialized care and treatment for a resident with Alzheimer's disease and related disorders, to:

(A) each resident or resident representative; and

(B) each person seeking information about the facility's care and treatment of residents with Alzheimer's disease or related disorders or dementia; or

(2) for a facility that advertises, markets, or otherwise promotes that it provides services to residents with Alzheimer's disease and related disorders, HHSC Form 3641-A, Alzheimer's Disclosure Statement for Nursing Facilities, disclosing as required by the Texas Health and Safety Code §242.202 whether the facility is certified to provide specialized care and treatment for a resident with Alzheimer's disease and related disorders to:

(A) each resident or resident representative;

(B) each person seeking to become a resident of the facility or that person's representative; and

(C) a person seeking information about the facility's care and treatment of residents with Alzheimer's disease and related disorders.

(o) Amended disclosure statement. A facility must provide an amended disclosure statement required by subsection (n)(1) and (2) of this section, to a resident, responsible party, or legal guardian at least 30 days before the change in the operation of the facility reflected in the amended disclosure statement is effective.
Source Note: The provisions of this §554.403 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective August 1, 2000, 25 TexReg 6779; amended to be effective July 1, 2001, 26 TexReg 3824; amended to be effective May 1, 2002, 27 TexReg 3207; amended to be effective August 1, 2002, 27 TexReg 6052; amended to be effective June 1, 2006, 31 TexReg 4449; amended to be effective September 1, 2008, 33 TexReg 6151; amended to be effective April 5, 2018, 43 TexReg 2017; amended to be effective March 24, 2020, 45 TexReg 2025; transferredeffective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871; amended to be effective December 6, 2022, 47 TexReg 7712.

[§554.404 Protection of Resident Funds]
(a) Management of financial affairs. The resident has the right to manage the resident's financial affairs and the facility may not require a resident to deposit their personal funds with the facility. A resident may designate another person to manage the resident's 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 subchapter (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 resident representative 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 the resident's financial affairs;

(B) the facility may not require a resident to deposit the resident's 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 the resident 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 the resident's 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, or resident representative to handle the resident's personal funds.
Source Note: The provisions of this §554.404 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.405 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 designation 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 HHSC, the Texas Office of the Attorney General 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 resident representative 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 the resident's representative payee and resident representative, 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 HHSC;

(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 resident representative, 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 HHSC 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 Supplemental Security Income (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) Upon the death of a resident with a personal fund deposited with the facility, the facility must convey, within 30 days after the date of the 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 resident representative or heir to the estate.

(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 HHSC 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 HHSC 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 resident representative 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 resident representative or heir or submitted to HHSC in accordance with paragraph (4) of this subsection;

(B) the facility must submit the funds to HHSC 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 HHSC or the Office of Inspector General.

(4) A facility must submit unclaimed funds to HHSC, Accounts Receivable.

(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 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 §554.1001 of this chapter (relating to Nursing Services);

(B) dietary services as required in §554.1101 of this chapter (relating to Food and Nutrition Services);

(C) an activities program as required in §554.702 of this chapter (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:

(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 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 §554.703 of this chapter (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 §554.2601 of this chapter (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 §554.702 of this chapter;

(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 §554.1101 of this chapter; and

(13) incontinent briefs if the resident representative 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.

(1) The facility can only charge a resident for an item or service not included under §554.2601 of this chapter if the resident or the resident representative specifically requests the item or service.

(2) The facility must not require a resident or resident representative to request any item or service as a condition of admission or continued stay.

(3) The facility must inform, orally and in writing, the resident or resident representative, when the resident or resident representative 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, resident representative, and representative.

(l) Quarterly statement.

(1) The individual financial record must be available, through quarterly statements and on request, to the resident, representative payee, and resident representative.

(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 or resident representative.

(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 or resident representative.

(4) The facility may not charge the resident or resident 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, or resident representative 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 or resident representative requests that the facility discontinue managing the resident's personal funds, the facility must return to the resident or resident representative all 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 or resident representative all 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 SSI benefit to which the resident is entitled should be paid through a representative payee, the provisions in 20 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 HHSC's 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 HHSC 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 HHSC.

(s) Trust fund monitoring and audits.

(1) HHSC may periodically monitor all trust fund accounts to ensure compliance with this section. HHSC notifies a facility of monitoring plans and gives a report of the findings to the facility.

(2) HHSC 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 HHSC upon request.

(4) HHSC 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 HHSC within 60 days after receiving the report of findings, HHSC may impose a vendor hold on payments due to the facility under the provider agreement until the facility completes corrective actions.

(8) If HHSC 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, HHSC 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) HHSC must receive a written request for an informal review by United States 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 to the HHSC Trust Fund Monitoring Unit.

(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) HHSC 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 HHSC and must be received in writing 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) HHSC sends its written decision to the facility by certified mail, return receipt requested.

(i) If the original findings are upheld, HHSC continues the schedule of deficiencies and requirement for corrective action.

(ii) If the original findings are reversed, HHSC issues a corrected schedule of deficiencies with the written decision.

(iii) If the original findings are revised, HHSC 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, HHSC may impose a vendor hold. If HHSC 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, HHSC 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 the HHSC Appeals Division.

(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 HHSC or be subject to a vendor hold on payments due to the facility under the provider agreement until the facility completes corrective action. If HHSC 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, HHSC continues the vendor hold until the facility completes the corrective action.

(5) If HHSC 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.
Source Note: The provisions of this §554.405 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective September 1, 2003, 28 TexReg 6941; amended to be effective August 31, 2004, 29 TexReg 8140; amended to be effective November 20, 2012, 37 TexReg 9112; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871; amended to be effective September 18, 2024, 49 TexReg 7331.

[§554.406 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) participate in planning care and treatment or changes in care and treatment, to the extent practicable. See §19.419 of this title (relating to Advance Directives).

(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.

(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 HHSC if the right to freely choose providers has been abridged without due process.
Source Note: The provisions of this §554.406 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.407 Privacy and Confidentiality]
The resident has the right to personal privacy and confidentiality of the resident's personal and clinical records.

(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:

(A) when the resident is transferred to another health care institution;

(B) when the record release is required by law or permitted under §19.1910(d) of this chapter (relating to Clinical Records); 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 chapter (relating to Physical Environment);

(B) medical treatment, including during examinations, treatment, case discussions, and consultations;

(C) personal care;

(D) access and visitation as described in §19.413 of this subchapter (relating to Access and Visitation Rights); and

(E) meetings with family and resident groups.

(5) 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. HHSC 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 HHSC personnel in an inspection of "the contents of residents' personal drawers and possessions," is in violation of federal and state law; and

(6) All information that contains personal identification or descriptions which would uniquely identify an individual resident is considered to be personal and private and will be kept confidential.
Source Note: The provisions of this §554.407 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.408 Grievances]
(a) A resident has the right to:

(1) voice grievances without discrimination or reprisal including grievances regarding treatment that has been furnished as well as treatment that 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 resident representative, or a volunteer because the resident, the resident representative, 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.
Source Note: The provisions of this §554.408 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective August 1, 2000, 25 TexReg 6779; amended to be effective May 1, 2002, 27 TexReg 2832; amended to be effective June 1, 2006, 31 TexReg 4449; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.409 Examination of Survey Results]
(a) 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; and

(2) receive information from agencies acting as client advocates, and be afforded the opportunity to contact these agencies.

(b) The facility must make the survey results available for examination in a place readily accessible to residents and must post a notice of their availability.
Source Note: The provisions of this §554.409 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.410 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 HHSC 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; or

(3) receipt of any vendor payment from HHSC 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 resident representative, notifying the resident about the right to a refund and the amount due.
Source Note: The provisions of this §554.410 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.411 Work]
The resident has the right to:

(1) refuse to perform services for the facility; and

(2) perform services for the facility, if the resident chooses, when:

(A) the facility has documented the resident's need or desire for work in the care plan;

(B) the care 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 care plan.
Source Note: The provisions of this §554.411 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.412 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.
Source Note: The provisions of this §554.412 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.413 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, any representative of the Secretary of Health and Human Services;

(2) any representative of the State of Texas;

(3) the resident's individual physician;

(4) the State Ombudsman;

(5) a certified ombudsman;

(6) any representative of the protection and advocacy system for individuals with intellectual or developmental disabilities established under the Developmental Disabilities Assistance and Bill of Rights Act, 42 USC Chapter 144, Subchapter I, Part C;

(7) any representative of the protection and advocacy system for individuals with mental illness established under the Protection and Advocacy for Mentally Ill Individuals Act, 42 USC Chapter 114, Subchapter I;

(8) subject to the resident's right to deny or withdraw consent at any time, immediate family or other relatives of the resident;

(9) 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; and

(10) the resident representative.

(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) In accordance with the Older Americans Act, §712(b)(1)(A) and 45 CFR §1324.11(e)(2), a facility must allow:

(1) the State Ombudsman, a certified ombudsman, and an ombudsman intern to have:

(A) immediate, private, and unimpeded access to enter the facility at any time during the facility's regular business hours or regular visiting hours;

(B) immediate, private, and unimpeded access to a resident; and

(C) immediate and unimpeded access to the name and contact information of a resident representative if the State Ombudsman, a certified ombudsman, or an ombudsman intern determines the information is needed to perform a function of the Ombudsman Program; and

(2) the State Ombudsman and a certified ombudsman to have immediate, private, and unimpeded access to enter the facility at a time other than regular business hours or visiting hours, if the State Ombudsman or a certified ombudsman determines access may be required by the circumstances to be investigated.

(d) A facility, in accordance with the Older American Act, §712(b)(1)(B) and 45 CFR §1324.11(e)(2), must allow the State Ombudsman and a certified ombudsman immediate access to:

(1) all files, records, and other information concerning a resident, including an incident report involving the resident, if:

(A) the State Ombudsman or certified ombudsman has the consent of the resident or resident representative;

(B) the resident is unable to communicate consent to access and has no resident representative; or

(C) such access is necessary to investigate a complaint and the following occurs:

(i) the resident representative refuses to give consent to access to the records, files and other information;

(ii) the State Ombudsman or certified ombudsman has reasonable cause to believe that the resident representative is not acting in the best interest of the resident; and

(iii) if it is a certified ombudsman seeking access to the records, files, or other information, the certified ombudsman obtains the approval of the State Ombudsman to access the records, files, or other information without the resident representative's consent; and

(2) the administrative records, policies, and documents of the facility to which the residents or general public have access.

(e) The rules adopted under the Health Insurance Portability and Accountability Act of 1996, 45 CFR Part 164, Subparts A and E, do not preclude a facility from releasing protected health information or other identifying information regarding a resident to the State Ombudsman or a certified ombudsman if the requirements of subsections (c)(1)(C) and (d)(1)(A), (B), or (C) of this section are met. The State Ombudsman and a certified ombudsman are each a "health oversight agency" as that phrase is defined in 45 CFR §164.501.
Source Note: The provisions of this §554.413 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective September 1, 2008, 33 TexReg 7280; amended to be effective April 5, 2018, 43 TexReg 2017; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.414 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.
Source Note: The provisions of this §554.414 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.415 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.
Source Note: The provisions of this §554.415 adopted to be effective March 1, 1998, 23 TexReg 1314; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.416 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.

(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 resident representative or family 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 (concerning Escheat of Property) and according to the Texas Estates Code, Chapter 551 (concerning Payment of Certain Estates to State).
Source Note: The provisions of this §554.416 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective July 1, 1996, 21 TexReg 4408; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.417 Married Couples]
A resident must be ensured privacy for visits with the resident's spouse. The resident has the right to share a room with the resident's spouse when married residents live in the same facility and both spouses consent to the arrangement.
Source Note: The provisions of this §554.417 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.419 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 resident 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)).
Source Note: The provisions of this §554.419 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective August 1, 2000, 25 TexReg 6779; amended to be effective April 1, 2007, 32 TexReg 1582; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.420 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").
Source Note: The provisions of this §554.420 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.421 Refusal of Certain Transfers in Medicaid-certified Facilities]
(a) A resident has the right to refuse a transfer to another room within the facility, if the purpose of the transfer is:

(1) to relocate 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;

(2) to relocate 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; or

(3) solely for the convenience of the staff.

(b) A resident's exercise of the right to refuse transfer under this section does not affect the resident's eligibility or entitlement to Medicaid benefits.
Source Note: The provisions of this §554.421 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.422 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.

Attached Graphic

(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.
Source Note: The provisions of this §554.422 adopted to be effective July 1, 2002, 27 TexReg 4362; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.423 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.
Source Note: The provisions of this §554.423 adopted to be effective August 1, 2002, 27 TexReg 6052; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.424 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.
Source Note: The provisions of this §554.424 adopted to be effective January 1, 2018, 42 TexReg 7726; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.501 Admissions Policy for Medicaid-certified Facilities]
(a) The facility must establish and implement an admissions policy.

(b) The facility must not request or require:

(1) a resident or a potential resident to waive the resident's or potential resident's rights, including the resident's or potential resident's rights to Medicare or Medicaid;

(2) oral or written assurance that a resident or a potential resident is not eligible for, or will not apply for, Medicare or Medicaid benefits; and

(3) a resident or a potential resident to waive potential facility liability for losses of personal property.

(c) The facility must not request or require a third-party guarantee of payment to the facility as a condition of admission or expedited admission, or continued stay in the facility. However, the facility may require an individual who has legal access to a resident's income or resources available to pay for facility care to sign a contract, without incurring personal financial liability, to provide facility payment from the resident's income or resources.

(d) In the case of a person eligible for Medicaid, a nursing facility must not charge, solicit, accept, or receive, in addition to any amount otherwise required to be paid under the State Plan, any gift, money, donation, or other consideration as a precondition of admission, expedited admission, or continued stay in the facility. However, a nursing facility may:

(1) charge a resident who is eligible for Medicaid for items and services the resident has requested and received, and that are not specified in the State Plan as included in the term "nursing facility services" so long as the facility gives proper notice of the availability and cost of these services to a resident and does not condition the resident's admission or continued stay on the request for and receipt of these additional services; and

(2) solicit, accept, or receive a charitable, religious, or philanthropic contribution from an organization or from a person unrelated to a Medicaid-eligible resident or potential resident, but only to the extent that the contribution is not a condition of admission, expedited admission, or continued stay in the facility for a Medicaid-eligible resident.

(e) A nursing facility must disclose and provide a resident or potential resident before time of admission, notice of special characteristics or service limitations of the facility.

(f) A nursing facility that is a composite distinct part, as defined by 42 CFR §483.5, must disclose in its admission agreement its physical configuration, including the various locations that comprise the composite distinct part, and must specify the policies that apply to room changes between its different locations.
Source Note: The provisions of this §554.501 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.502 Transfer and Discharge in Medicaid-certified Facilities]
(a) Examples. Transfer and discharge includes movement of a resident to a bed outside the certified facility, whether that bed is in the same physical plant or not. Transfer and discharge does not refer to movement within the same certified facility.

(b) Transfer and discharge requirements. The facility must permit each resident to remain in the facility and must not transfer or discharge the resident from the facility unless:

(1) the transfer or discharge is necessary for the resident's welfare, and the resident's needs cannot be met in the facility;

(2) the transfer or discharge is appropriate because the resident's health has improved sufficiently so the resident no longer needs the services provided by the facility;

(3) the safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident;

(4) the health of other individuals in the facility would otherwise be endangered;

(5) the resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility. Nonpayment applies if the resident does not submit the necessary paperwork for third party payment or after the third party, including Medicare or Medicaid, denies the claim and the resident refuses to pay for the resident's stay. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid;

(6) the resident or resident representative requests a voluntary transfer or discharge; or

(7) the facility ceases to operate as a nursing facility and no longer provides resident care.

(c) Documentation. When the facility transfers or discharges a resident under any of the circumstances specified in subsection (b)(1) - (7) of this section, the facility must ensure that the transfer or discharge is documented in the resident's clinical record and appropriate information is communicated to the receiving health care institution or provider.

(1) Documentation must include:

(A) the basis for the transfer per subsection (b)(1) - (7) of this section; and

(B) in the case of subsection (b)(1) of this section, the specific resident's needs that cannot be met, facility attempts to meet the resident needs, and the service available at the receiving facility to meet the needs.

(2) The documentation required by paragraph (1) of this subsection, must be made by:

(A) the resident's physician when transfer or discharge is necessary under subsection (b)(1) or (b)(2) of this section; or

(B) a physician when transfer or discharge is necessary under subsection (b)(3) or (b)(4) of this section.

(3) Information provided to the receiving health care institution or provider must include the following:

(A) contact information of the practitioner responsible for the care of the resident;

(B) resident representative information, including contact information;

(C) advance directive information;

(D) all special instructions or precautions for ongoing care, as appropriate;

(E) comprehensive care plan goals; and

(F) all other necessary information, including a copy of the resident's discharge summary, consistent with §19.803 of this chapter (relating to Discharge Summary (Discharge Plan of Care)), as applicable, to ensure a safe and effective transition of care.

(d) Notice before transfer or discharge. Before a facility transfers or discharges a resident, the facility must:

(1) notify the resident and the resident representative about the transfer or discharge and the reasons for the move in writing and in a language and manner the resident understands;

(2) if the discharge or transfer is initiated by the facility, send a copy of the notice to a representative of the Ombudsman Program at the time a discharge notice is presented to the resident and resident representative, in accordance with the timeframes described in subsection (e) of this section, except that the notice may be provided as soon as practicable, such as in a list of residents sent on a monthly basis, when a resident is temporarily transferred on an emergency basis to an acute care facility;

(3) record the reasons for the transfer or discharge in the resident's clinical record;

(4) include in the notice the items described in subsection (f) of this section; and

(5) comply with §19.2310 of this chapter (relating to Nursing Facility Ceases to Participate) when the facility voluntarily withdraws from Medicaid or Medicare or is terminated from Medicaid or Medicare participation by HHSC or the secretary.

(e) Timing of the notice.

(1) Except when specified in paragraph (3) of this subsection or in §19.2310 of this chapter, the notice of transfer or discharge required under subsection (d) of this section must be made by the facility at least 30 days before the resident is transferred or discharged.

(2) The requirements described in paragraph (1) of this subsection and subsection (h) of this section do not have to be met if the resident or resident representative requests the transfer or discharge.

(3) Notice must be made as soon as practicable before transfer or discharge when:

(A) the safety of individuals in the facility would be endangered, as specified in subsection (b)(3) of this section;

(B) the health of individuals in the facility would be endangered, as specified in subsection (b)(4) of this section;

(C) the resident's health improves sufficiently to allow a more immediate transfer or discharge, as specified in subsection (b)(2) of this section;

(D) the transfer and discharge is necessary for the resident's welfare because the resident's needs cannot be met in the facility, as specified in subsection (b)(1) of this section, and the resident's urgent medical needs require an immediate transfer or discharge; or

(E) a resident has not resided in the facility for 30 days.

(4) When an immediate involuntary transfer or discharge as specified in subsection (b)(3) or (4) of this section, is contemplated, unless the discharge is to a hospital, the facility must:

(A) immediately call the staff of the Office of the State Long-term Care Ombudsman to report its intention to discharge; and

(B) submit to HHSC the required physician documentation regarding the discharge.

(f) Contents of the notice. For nursing facilities, the written notice specified in subsection (d) of this section must include the following:

(1) the reason for transfer or discharge;

(2) the effective date of transfer or discharge;

(3) the location to which the resident is transferred or discharged;

(4) a statement of the resident's appeal rights, including:

(A) the resident has the right to appeal the action as outlined in HHSC's Fair and Fraud Hearings Handbook by requesting a hearing within 90 days after the date of the notice;

(B) if the resident requests the hearing before the discharge date, the resident has the right to remain in the facility until the hearing officer makes a final determination unless failure to transfer or discharge would endanger the health or safety of the resident or individuals in the facility. The facility must document the danger failure to discharge would present; and

(C) information on how to obtain an appeal form and assistance in completing the form and submitting the appeal hearing request;

(5) the name, address, email address, and telephone number of the managing local ombudsman and the toll-free number of the Ombudsman Program;

(6) in the case of a resident with mental illness, the address, email address, and phone number of the state mental health authority; and

(7) in the case of a resident with an intellectual or developmental disability, the authority for individuals with intellectual and developmental disabilities, and the phone number, address, and email address of the agency responsible for the protection and advocacy of individuals with intellectual and developmental disabilities.

(g) Changes to the notice. If the information in the notice changes before effecting the transfer or discharge, the facility must update the recipients of the notice as soon as practicable once the updated information becomes available.

(h) Orientation for transfer or discharge. A facility must provide and document sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility. This orientation must be provided in a form and manner that the resident can understand.

(i) Notice of relocation to another room. Except in an emergency, the facility must notify the resident and the resident representative at least five days before relocation of the resident to another room within the facility. The facility must prepare a written notice which contains:

(1) the reasons for the relocation;

(2) the effective date of the relocation; and

(3) the room to which the facility is relocating the resident.

(j) Fair hearings.

(1) Individuals who receive a discharge notice from a facility have 90 days to appeal. If the recipient appeals before the discharge date, the facility must allow the resident to remain in the facility, except in the circumstances described in subsections (b)(5) and (e)(3) of this section, until the hearing officer makes a final determination. Vendor payments and eligibility will continue until the hearing officer makes a final determination. If the recipient has left the facility, Medicaid eligibility will remain in effect until the hearing officer makes a final determination.

(2) When the hearing officer determines that the discharge was inappropriate, the facility, upon written notification by the hearing officer, must readmit the resident immediately, or to the next available bed. If the discharge has not yet taken place, and the hearing officer finds that the discharge will be inappropriate, the facility, upon written notification by the hearing officer, must allow the resident to remain in the facility. The hearing officer will also report the findings to HHSC Regulatory Services Division for investigation of possible noncompliance.

(3) When the hearing officer determines that the discharge is appropriate, the resident is notified in writing of this decision. Any payments made on behalf of the recipient past the date of discharge or decision, whichever is later, must be recouped.

(k) Discharge of married residents. If two residents in a facility are married and the facility proposes to discharge one spouse to another facility, the facility must give the other spouse notice of the spouse's right to be discharged to the same facility. If the spouse notifies a facility, in writing, that the spouse wishes to be discharged to another facility, the facility must discharge both spouses on the same day, pending availability of accommodations.
Source Note: The provisions of this §554.502 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective January 1, 2000, 24 TexReg 11781; amended to be effective August 1, 2000, 25 TexReg 6779; amended to be effective October 31, 2013, 38 TexReg 7465; amended to be effective April 5, 2018, 43 TexReg 2017; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11,2020, 45 TexReg 8871.

[§554.503 Notice of Bed-Hold Policy and Return To Medicaid-certified Facilities]
(a) Notice before transfer. Before a nursing facility transfers a resident to a hospital or a resident goes on therapeutic leave, the nursing facility must provide written information to the resident or resident representative that specifies:

(1) the duration of the bed-hold policy under the Medicaid State Plan, if any, during which the resident is permitted to return and resume residence in the facility;

(2) the reserved bed payment policy, in the State plan;

(3) the facility's policies regarding bed-hold periods, which must be consistent with subsection (c) of this section, permitting a resident to return; and

(4) the information specified in §19.502 of this subchapter (relating to Transfer and Discharge in Medicaid-certified Facilities).

(b) Bed-hold notice upon transfer. At the time of transfer of a resident to a hospital or for therapeutic leave, a nursing facility must provide to the resident and resident representative, written notice which specifies the duration of the bed-hold policy described in subsection (a) of this section.

(c) Permitting resident to return to facility. A nursing facility must establish and follow a written policy on permitting residents to return to the facility after they are hospitalized or placed on therapeutic leave.

(1) The policy must provide that a resident whose hospitalization or therapeutic leave exceeds the bed-hold period under the State Plan returns to the facility and to the resident's previous room if available or returns to the facility immediately upon the first availability of a bed in a semi-private room if the resident:

(A) requires the services provided by the facility; and

(B) is eligible for Medicare skilled nursing facility services or Medicaid nursing facility services.

(2) If the facility that determines that a resident who was transferred with an expectation of returning to the facility cannot return to the facility, the facility must comply with the requirements of §19.502 of this subchapter.

(d) Readmission to a composite distinct part. When the facility to which a resident returns is a composite distinct part, as defined by 42 CFR §483.5, the resident must be permitted to return to an available bed in the particular location of the composite distinct part in which the resident resided previously. If the bed is not available in that location at the time of readmission, the resident must be given the option to return to that location upon the first availability of a bed.

(e) Bed-hold charges. The facility may enter into a written agreement with the resident or resident representative to reserve a bed.

(1) The facility may charge the recipient an amount not to exceed the HHSC daily vendor rate according to the recipient's classification at the time the resident leaves the facility.

(2) The facility must document all bed-hold charges in the recipient's financial record at the time the bed-hold reservation services were provided.

(3) The facility may not charge a bed-hold fee if HHSC is paying for the same period of time, as in a three-day therapeutic home visit.
Source Note: The provisions of this §554.503 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.504 Equal Access to Quality Care in Medicaid-certified Facilities]
(a) A facility must provide equal access to quality care regardless of diagnosis, severity of condition, or payment source.

(b) A facility must establish, maintain, and implement identical policies and practices regarding transfer, discharge, and the provision of services under the Medicaid State Plan for all individuals regardless of source of payment.

(c) The facility may charge any amount for services furnished to non-Medicaid residents consistent with the notice requirement in §19.403(i) and (j) of this chapter (relating to Notice of Rights and Services).

(d) HHSC is not required to offer additional services on behalf of a recipient other than services provided in the State Plan.
Source Note: The provisions of this §554.504 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.505 Discharge Planning in Medicaid-certified Facilities]
Discharge planning must be done by appropriate facility staff in accordance with the provisions outlined in §19.803 of this title (relating to Discharge Summary (Discharge Plan of Care)).
Source Note: The provisions of this §554.505 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.601 Freedom from Abuse, Neglect, and Exploitation]
(a) General. The resident has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation as defined in §554.101 of this chapter (relating to Definitions). This includes freedom from any physical or chemical restraint not required to treat the resident's medical symptoms.

(b) Abuse. The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.

(c) Policies and procedures. The facility must develop and implement written policies and procedures that prohibit and prevent mistreatment, abuse, neglect, and exploitation of a resident, and misappropriation of a resident's property.

(1) The facility must:

(A) not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion;

(B) not employ or otherwise engage an individual who has:

(i) been found guilty of abuse, neglect, exploitation, misappropriation of property, or mistreatment of a resident by a court of law;

(ii) had a finding entered into the state nurse aide registry concerning abuse, neglect, exploitation or mistreatment of a resident, or misappropriation of a resident's property;

(iii) been convicted of any crime contained in §250.006, Texas Health and Safety Code; or

(iv) a disciplinary action in effect against the individual's professional license by a state licensure body as a result of a finding of abuse, neglect, exploitation, mistreatment of a resident or misappropriation of a resident's property;

(C) report any knowledge it has of actions by a court of law against an employee that would indicate unfitness for service as a nurse aide or other staff to the state nurse aide registry or licensing authority; and

(D) suspend the employment of an employee who HHSC finds has engaged in reportable conduct, as defined in section §554.101 of this chapter, while the employee exhausts any applicable appeals process, including informal and formal appeals and any hearing or judicial review, pending a final decision by an administrative law judge. A facility must not reinstate the employee's employment or contract during any applicable appeals process.

(2) The written policies and procedures must:

(A) establish protocols to investigate any such allegations; and

(B) include training as required by §554.1929 of this chapter (relating to Staff Development).

(d) Restraints. The facility must ensure that the resident is free from physical or chemical restraints imposed for purposes of discipline or convenience and that are not required to treat the resident's medical symptoms. If the use of restraints is indicated, the facility must use the least restrictive alternative for the least amount of time and document ongoing re-evaluation of the need for restraints.

(1) If physical restraints are used because they are required to treat the resident's medical condition, the restraints must be released and the resident repositioned as needed to prevent deterioration in the resident's condition. Residents must be monitored hourly and, at a minimum, restraints must be released every two hours for a minimum of ten minutes, and the resident repositioned.

(2) A facility must not administer to a resident a restraint that:

(A) obstructs the resident's airway, including a procedure that places anything in, on, or over the resident's mouth or nose;

(B) impairs the resident's breathing by putting pressure on the resident's torso;

(C) interferes with the resident's ability to communicate; or

(D) places the resident in a prone or supine hold.

(3) A behavioral emergency is a situation in which severely aggressive, destructive, violent, or self-injurious behavior exhibited by a resident:

(A) poses a substantial risk of imminent probable death of, or substantial bodily harm to, the resident or others;

(B) has not abated in response to attempted preventive de-escalatory or redirection techniques;

(C) could not reasonably have been anticipated; and

(D) is not addressed in the resident's comprehensive care plan.

(4) If restraint is used in a behavioral emergency, the facility must use only an acceptable restraint hold. An acceptable restraint hold is a hold in which the resident's limbs are held close to the body to limit or prevent movement and that does not violate the provisions of paragraph (2) of this subsection.

(5) A staff person may use a restraint hold only for the shortest period of time necessary to ensure the protection of the resident or others in a behavioral emergency.

(6) A facility may adopt policies that allow less use of restraint than allowed by the rules of this chapter.

(7) A resident, or the resident's legally authorized representative, must agree to the use of a physical restraint in accordance with §554.402 of this chapter (relating to Exercise of Rights) and §554.406 of this chapter (relating to Free Choice).

(8) A physical restraint must be ordered by a physician. The order must include why the restraint is necessary to treat the resident's medical condition and the specified timeframe for re-evaluation of the order.

(9) Use of restraints and their release must be documented in the resident's clinical record and in the resident's care plan in accordance with §554.802 of this chapter (relating to Comprehensive Person-Centered Care Planning).
Source Note: The provisions of this §554.601 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective June 1, 2006, 31 TexReg 4449; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871; amended to be effective September 18, 2024, 49 TexReg 7331.

[§554.602 Incidents of Abuse, Neglect, and Exploitation Reportable to the Texas Health and Human Services Commission and Law Enforcement Agencies by Facilities]
(a) In response to allegations of abuse, neglect, exploitation, or mistreatment, the facility must:

(1) ensure that all alleged violations involving abuse, neglect, exploitation or mistreatment, including injuries of unknown source and misappropriation of resident property are reported:

(A) immediately to the administrator of the facility and to HHSC Complaint and Incident Intake, but no later than two hours after the allegation is made, if the events that cause the allegation involve abuse, or result in serious bodily injury; or

(B) no later than 24 hours after the allegation is made to the administrator of the facility and to HHSC Complaint and Incident Intake, if the events that cause the allegation do not involve abuse and do not result in serious bodily injury;

(2) conduct an investigation of the reported acts and have evidence that all alleged violations are thoroughly investigated;

(3) prevent further potential abuse, neglect, exploitation, or mistreatment while the investigation is in progress; and

(4) report the results of all investigations to the administrator or the administrator's designee and to HHSC Complaint and Incident Intake within five working days of the incident and, if the alleged violation is verified, take appropriate corrective action.

(b) A facility owner or employee who has cause to believe that the physical or mental health or welfare of a resident has been or may be adversely affected by abuse, neglect, or exploitation caused by another person must report the abuse, neglect, or exploitation.

(c) Reports described in subsections (a)(1) and (b) of this section must be made to HHSC Complaint and Incident Intake.

(d) Written investigation reports described in subsection (a)(4) of this section must be sent to HHSC Complaint and Incident Intake no later than the fifth working day after the initial.

(e) As a condition of employment, an employee of a facility must sign a statement that states:

(1) the employee may be criminally liable for failure to report abuses; and

(2) the employee has a cause of action against a facility, its owners or employees if the employee is suspended, terminated, disciplined, discriminated against, or retaliated against, under the Texas Health and Safety Code, Title 4, §260A.014, as a result of:

(A) reporting to the employee's supervisor, the administrator, HHSC, or a law enforcement agency a violation of law, including a violation of laws or regulations regarding nursing facilities; or

(B) initiating or cooperating in any investigation or proceeding of a governmental entity relating to care, services, or conditions at the nursing facility.

(f) The statements described in subsection (e) of this section must be available for inspection by HHSC.

(g) A local or state law enforcement agency must be notified of reports described in subsection (b) of this section that allege that:

(1) a resident's health or safety is in imminent danger;

(2) a resident has recently died because of conduct alleged in the report of abuse or neglect or other complaint;

(3) a resident has been hospitalized or treated in an emergency room because of conduct alleged in the report of abuse or neglect or other complaint;

(4) a resident has been a victim of any act or attempted act described in the Texas Penal Code, §§21.02, 21.11, 22.011, or 22.021; or

(5) a resident has suffered bodily injury, as that term is defined in the Texas Penal Code, §1.07, because of conduct alleged in the report of abuse or neglect or other complaint.
Source Note: The provisions of this §554.602 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective October 15, 1998, 23 TexReg 10496; amended to be effective August 1, 2000, 25 TexReg 6779; amended to be effective September 1, 2003, 28 TexReg 6939; amended to be effective May 1, 2004, 29 TexReg 3235; amended to be effective October 31, 2013, 38 TexReg 7465; amended to be effectiveMarch 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.604 Complaint Investigation]
(a) A complaint is any allegation received by the Texas Department of Human Services (DHS) other than an incident reported by facility staff. These allegations include, but are not limited to, abuse, neglect, exploitation, or violation of state or federal standards.

(b) DHS will furnish the facility with a notification of the complaint received and a summary of the complaint, without identifying the source of the complaint.
Source Note: The provisions of this §554.604 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.606 Reporting of Resident Death Information]
(a) All licensed facilities must report to HHSC the death of any resident in the facility and any resident who is transferred from the facility to a hospital and who dies within 24 hours after transfer.

(b) The facility must submit to HHSC Complaint and Incident Intake a standard HHSC form within ten working days after the last day of the month in which a resident death occurs. The form must include:

(1) name of deceased;

(2) social security number of the deceased;

(3) date of death; and

(4) name and address of the institution.

(c) These reports are confidential under the Texas Health and Safety Code, §260A.016; however, a licensed facility must make available historical statistics provided to the facility by HHSC and must provide the statistics, if requested, to an applicant for admission or the applicant's representative.

(d) HHSC produces statistical information of official causes of death to determine patterns and trends of incidents of death among the elderly and in specific facilities and makes this information available to the public upon request.
Source Note: The provisions of this §554.606 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.701 Quality of Life]
(a) Each resident must receive, and the facility must provide, the necessary care and services to attain or maintain the highest practicable, physical, mental, and psychosocial well-being consistent with the resident's comprehensive assessment and care plan.

(1) Based on the comprehensive assessment of a resident and consistent with the resident's needs and choices, the facility must provide the necessary care and services to ensure that a resident's abilities in activities of daily living do not diminish unless circumstances of the resident's clinical condition demonstrate that such diminution was unavoidable.

(2) This includes the facility ensuring that:

(A) a resident is given the appropriate treatment and services to maintain or improve the ability to carry out the activities of daily living, including those specified in subsection (b) of this section;

(B) a resident who is unable to carry out activities of daily living receives the necessary services to maintain good nutrition, grooming, and personal and oral hygiene; and

(C) personnel provide basic life support, including CPR, to a resident requiring such emergency care prior to the arrival of emergency medical personnel and subject to related physician orders and the resident's advance directives.

(b) The facility must provide care and services in accordance with subsection (a) of this section for the following activities of daily living:

(1) hygiene - bathing, dressing, grooming, and oral care;

(2) mobility - transfer and ambulation, including walking;

(3) elimination - toileting;

(4) dining - eating including meals and snacks; and

(5) communication - speech, language, and other functional communication systems.

(c) If a child is admitted to a facility, care must be provided to meet the child's unique medical and developmental needs.

(d) Pediatric residents should be matched with roommates of similar age and developmental levels.
Source Note: The provisions of this §554.701 adopted to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.702 Activities]
(a) The facility must provide, based on the comprehensive assessment and care plan and the preferences of each resident, an ongoing program to support a resident in the resident's choice of activities, both facility-sponsored group and individual activities and independent activities, designed to meet the interests of and support the physical, mental, and psychosocial well-being of each resident, encouraging both independence and interaction in the community.

(b) The activities program must be directed by a qualified professional who is a qualified therapeutic recreation specialist or an activities professional who:

(1) is eligible for certification as a therapeutic recreation specialist or as an activities professional by a recognized accrediting body, such as the National Council for Therapeutic Recreation Certification, on or after October 1, 1990, the Consortium for Therapeutic Recreation/Activities Certification, or the National Certification Council for Activity Professionals;

(2) has two years of experience in a social or recreational program within the last five years, one of which was full-time in a therapeutic activities program;

(3) is a qualified occupational therapist or occupational therapy assistant; or

(4) has completed an activity director training course approved by a recognized credentialing body, such as the National Certification Council for Activity Professionals, National Council for Therapeutic Recreation Certification, or the Consortium for Therapeutic Recreation/Activities Certification, Inc.

(c) An activity director must complete eight hours of approved continuing education or equivalent continuing education units each year. Approval bodies include organizations or associations recognized as such by certified therapeutic recreation specialists or certified activity professionals or registered occupational therapists.

(d) The facility must ensure that activities assessment and care planning are completed and reviewed or updated as provided in §19.801 and §19.802 of this chapter (relating to Resident Assessment and Comprehensive Person-Centered Care Planning). If indicated by the RAI or the resident's need, an in-depth activities assessment is required.

(e) Toys and recreational equipment for a pediatric resident must be appropriate for the size, age, and developmental level of the resident.
Source Note: The provisions of this §554.702 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective April 1, 2001, 26 TexReg 2407; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.703 Social Services General Requirements]
(a) The facility must provide medically-related social services to attain the highest practicable physical, mental, or psychosocial well-being of each resident.

(1) A facility with more than 120 beds must employ a qualified social worker on a full-time basis.

(2) A facility of 120 beds or less must employ or contract with a qualified social worker (or in lieu thereof, a social worker who is licensed by the Texas State Board of Social Worker Examiners, and who meets the requirements of subsection (b)(2) of this section) to provide social services a sufficient amount of time to meet the needs of the residents.

(b) A qualified social worker is an individual who is licensed, including a temporary or provisional license, by the Texas State Board of Social Worker Examiners as prescribed by Texas Occupations Code, Chapter 505, and who has at least:

(1) a bachelor's degree in social work, or a bachelor's degree in a human services field, including sociology, gerontology, special education, rehabilitation counseling, and psychology; and

(2) one year of supervised social work experience in a health care setting working directly with individuals.
Source Note: The provisions of this §554.703 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective August 1, 2000, 25 TexReg 6779; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.704 Social Services Process]
(a) The facility must ensure that psychosocial assessment and care planning are completed and reviewed or updated as provided in §19.801 and §19.802 of this title (relating to Resident Assessment and Comprehensive Care Plans).

(b) If indicated by the Resident Assessment Instrument (RAI) and/or the resident's need, an in-depth psychosocial assessment is required. The social service needs of each resident must be identified and addressed by the direct provision of services or by arranging access to services.
Source Note: The provisions of this §554.704 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.706 Resident Group and Family Council]
(a) A resident has the right to organize and participate in resident groups in a facility.

(b) A facility must assist a resident who requires assistance to attend resident group meetings.

(c) A resident has the right to have a family member or other resident representative meet in the facility with the family or resident representative of other residents in the facility and organize a family council. A family council may:

(1) make recommendations to the facility proposing policy and operational decisions affecting resident care and quality of life; and

(2) promote educational programs and projects intended to promote the health and happiness of residents.

(d) If a resident group or family council exists, a facility must:

(1) listen to and consider the views of a resident group or family council and act promptly upon the grievances and recommendations of residents and families concerning issues of resident care and life in the facility;

(2) be able to demonstrate responses to the grievances and recommendations of the resident group or family council and the rationale for such responses;

(3) provide a resident group or family council with private space and take reasonable steps with the approval of the group, to make residents and family members aware of upcoming meetings in a timely manner;

(4) provide a designated staff person who is approved by the resident or family group and the facility and who is responsible for providing assistance and responding to written requests that result from resident group and family council meetings; and

(5) allow staff or visitors to attend meetings only at the resident group's or family council's invitation.

(e) If a family council exists, a facility must:

(1) upon written request, allow the family council to meet in a common meeting room of the facility at least once a month during hours mutually agreed upon by the family council and the facility;

(2) provide the family council with adequate space on a prominent bulletin board to post notices and other information;

(3) designate a staff person to act as the family council's liaison to the facility;

(4) respond in writing to written requests by the family council within five working days;

(5) include information about the existence of the family council in a mailing that occurs at least semiannually;

(6) permit a representative of the family council to discuss concerns with an individual conducting an inspection or survey of the facility; and

(7) allow a resident to participate in a family council.

(f) Unless the resident objects, a family council member may authorize, in writing, another member to visit and observe a resident represented by the authorizing member.

(g) A facility must not limit the rights of a resident, a resident's family member, or a family council member to meet with an outside person, including:

(1) an employee of the facility during the employee's nonworking hours if the employee agrees;

(2) a member of a nonprofit or government organization; or

(3) another resident representative.

(h) A facility must not:

(1) terminate an existing family council;

(2) prevent or interfere with the family council from receiving outside correspondence addressed to the family council or open family council mail; or

(3) willfully interfere with the formation, maintenance, or operation of a family council, including interfering by:

(A) denying a family council the opportunity to accept help from an outside person;

(B) discriminating or retaliating against a family council participant; or

(C) willfully scheduling events in conflict with previously scheduled family council meetings, if the facility has other scheduling options.
Source Note: The provisions of this §554.706 adopted to be effective September 1, 2008, 33 TexReg 6151; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.801 Resident Assessment]
A facility must conduct, initially and periodically, a comprehensive, accurate, standardized, reproducible assessment of a resident's functional capacity. The facility must electronically transmit to CMS resident-entry-and-death-in-facility tracking records required by the RAI; and OBRA assessments, including admission, annual, quarterly, significant change, significant correction, and discharge assessments.

(1) Admission orders. At the time a resident is admitted, the facility must have physician orders for the resident's immediate care.

(2) Comprehensive assessments.

(A) A facility must make a comprehensive assessment of a resident's needs, strengths, goals, life history, and preferences, using the current RAI process, including the MDS, Care Area Assessment process, and the Utilization Guidelines specified by HHSC and approved by CMS. The current RAI process is found in the MDS 3.0 manual posted by CMS on http://www.cms.gov.

(B) A facility must conduct an additional assessment and document the summary information if the MDS indicates an additional assessment on a care area is required.

(C) A facility must conduct a comprehensive assessment of a resident as follows:

(i) within 14 calendar days after admission, excluding readmissions in which there is no significant change in the resident's physical or mental condition. For purposes of this section, "readmission" means a return to the facility following a temporary absence for hospitalization or for therapeutic leave;

(ii) within 14 calendar days after the facility determines, or should have determined, that there has been a significant change in the resident's physical or mental condition. For purposes of this section, a "significant change" means a major decline or improvement in the resident's status that will not normally resolve itself without further intervention by staff or by implementing standard disease-related clinical interventions, that has an impact on more than one area of the resident's health status, and requires interdisciplinary review or revision of the comprehensive care plan, or both; and

(iii) not less often than once every 12 months.

(3) Quarterly review assessment. A facility must assess a resident using the quarterly review instrument specified by HHSC and approved by CMS not less frequently than once every three months.

(4) Use. A facility must maintain all resident assessments completed within the previous 15 months in the resident's active record and use the results of the assessments to develop, review, and revise the resident's comprehensive care plan as specified in §19.802 of this subchapter (relating to Comprehensive Person-Centered Care Planning).

(5) PASRR. A Medicaid-certified facility must:

(A) coordinate assessments with the PASRR process in 42 CFR, Part 483, Subpart C to the maximum extent practicable to avoid duplicative testing and effort, including:

(i) incorporating the recommendations from the PASRR level II determination and the PASRR evaluation report into a resident's assessment, care planning, and transitions of care; and

(ii) referring a level II resident and a resident suspected of having mental illness, an intellectual disability, or a developmental disability for level II resident review upon a significant change in status assessment; and

(B) promptly report a significant change in the mental or physical condition of a resident by submitting an MDS Significant Change in Status Assessment Form in the LTC Online Portal, in accordance with §19.2704(i)(12) of this chapter (Nursing Facility Responsibilities Related to PASRR).

(6) Automated data processing requirement.

(A) A facility must complete an MDS for a resident. The facility must enter MDS data into the facility's assessment software within 7 days after completing the MDS and electronically transmit the MDS data to CMS within 14 days after completing the MDS.

(B) A facility must complete the Long Term Care Medicaid Information form on an OBRA assessment that is submitted to the state Medicaid claims system for a Medicaid recipient or Medicaid applicant according to HHSC instructions located on the Texas Medicaid Healthcare Partnership Long Term Care Portal at http://www.tmhp.com.

(C) Data format. The facility must transmit MDS data to CMS in the format specified by CMS and HHSC.

(D) Information concerning a resident is confidential and a facility must not release information concerning a resident except as allowed by this chapter, including §19.407 of this chapter (relating to Privacy and Confidentiality) and §19.1910(d) of this chapter (relating to Clinical Records).

(7) Accuracy of assessments. The assessment must accurately reflect the resident's status.

(8) Coordination. A registered nurse must conduct or coordinate each assessment with the appropriate participation of health professionals.

(9) Certification.

(A) A registered nurse must sign and certify that the assessment is completed.

(B) Each individual who completes a portion of the assessment must sign and certify the accuracy of that portion of the assessment.

(10) Penalty for falsification under Medicare and Medicaid.

(A) An individual who willfully and knowingly:

(i) certifies a material and false statement in a resident assessment is subject to a civil money penalty of not more than $1,000 for each assessment; or

(ii) causes another individual to certify a material and false statement in a resident assessment is subject to a civil money penalty of not more than $5,000 for each assessment.

(B) Clinical disagreement does not constitute a material and false statement.

(11) Use of independent assessors in Medicaid-certified facilities and dually certified facilities. If HHSC determines, under a certification survey or otherwise, that there has been a knowing and willful certification of false statements under paragraph (10) of this section, HHSC may require (for a period specified by HHSC) individuals who are independent of the facility and who are approved by HHSC to conduct and certify the resident assessments under this section.

(12) Pediatric resident assessment.

(A) A facility must ensure that a pediatric assessment:

(i) is performed by a licensed health professional experienced in the care and assessment of children;

(ii) includes parents or guardians in the assessment process; and

(iii) includes a discussion with a parent or guardian about the potential for community transition.

(B) The clinical record of a child must include a record of immunizations, blood screening for lead, and developmental assessment. The local school district's developmental assessment may be used if available.

(C) A licensed health professional must assess a child's functional status in relation to pediatric developmental levels, rather than adult developmental levels.

(D) A facility must ensure pediatric residents receive services in accordance with the guidelines established by the Department of State Health Services' Texas Health Steps (THSteps). For Medicaid-eligible pediatric residents between the ages of six months and six years, blood screening for lead must be done in accordance with THSteps guidelines.
Source Note: The provisions of this §554.801 adopted to be effective October 1, 1999, 24 TexReg 7767; amended to be effective January 1, 2000, 24 TexReg 11522; amended to be effective May 1, 2002, 27 TexReg 2834; amended to be effective June 1, 2006, 31 TexReg 4457; amended to be effective August 31, 2015, 40 TexReg 5461; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.802 Comprehensive Person-Centered Care Planning]
(a) Baseline care plans.

(1) The facility must develop and implement a baseline care plan for each resident that includes the instructions needed to provide effective and person-centered care of the resident that meet professional standards of quality care. The baseline care plan must:

(A) be developed within 48 hours of a resident's admission;

(B) include the minimum healthcare information necessary to properly care for a resident, including:

(i) initial goals based on admission orders;

(ii) physician orders;

(iii) dietary orders;

(iv) therapy services;

(v) social services; and

(vi) PASRR recommendation, if applicable.

(2) The facility may develop a comprehensive care plan in place of the baseline care plan if the comprehensive care plan:

(A) is developed within 48 hours of the resident's admission; and

(B) meets the requirements set forth in subsections (b) - (g) of this section, except subsection (c)(1) of this section.

(3) The facility must provide the resident and the resident representative a summary of the baseline care plan that includes:

(A) the initial goals of the resident;

(B) a summary of the resident's medications and dietary instructions;

(C) any services and treatments to be administered by the facility and personnel acting on behalf of the facility; and

(D) any updated information based on the details of the comprehensive care plan, as necessary.

(b) A facility must develop a comprehensive care plan for each resident, consistent with the resident's rights, that includes measurable short-term and long-term objectives and timeframes to meet a resident's medical, nursing, mental, and psychosocial needs that are identified in the comprehensive assessment. If a child is admitted to the facility, the comprehensive care plan must be based on the child's individual needs. The comprehensive care plan must describe the following:

(1) the services that are to be furnished to attain or maintain the resident's highest practicable physical, mental, and psychosocial well-being as required under §19.701 of this chapter (relating to Quality of Life) and §19.901 of this chapter (relating to Quality of Care);

(2) any services that would otherwise be required under §19.701 of this chapter and §19.901 of this chapter but are not provided due to the resident's exercise of rights, including the right to refuse treatment under §19.403(i) of this chapter (relating to Notice of Rights and Services);

(3) any nursing facility specialized services or nursing facility PASRR support activities the nursing facility will provide as a result of PASRR recommendations, in accordance with Subchapter BB of this chapter (relating to Nursing Facility Responsibilities Related To Preadmission Screening And Resident Review (PASRR)); and

(4) in consultation with the resident and resident representative:

(A) the resident's goals for admission and desired outcomes;

(B) the resident's preference and potential for future discharge, whether the resident's desire to return to the community was assessed, and any referrals to local contact agencies or other appropriate entities; and

(C) discharge plans in the comprehensive care plan as appropriate, in accordance with §19.803 of this subchapter (relating to Discharge Summary (Discharge Plan of Care)).

(c) The comprehensive care plan must be:

(1) developed within seven days after completion of the comprehensive assessment;

(2) prepared by an interdisciplinary team that includes:

(A) the attending physician;

(B) a registered nurse with responsibility for the resident;

(C) a nurse aide with responsibility for the resident;

(D) the qualified dietitian or director of food and nutrition services;

(E) other appropriate staff in disciplines as determined by the resident's needs or as requested by the resident; and

(F) to the extent practicable, the participation of the resident and the resident representative;

(3) periodically reviewed and revised by a team of qualified persons after each assessment, including both the comprehensive and quarterly review assessments; and

(4) for a resident under 22 years of age, annually reviewed at a comprehensive care plan meeting between the facility and the resident's LAR as defined in §19.805(a)(5) of this subchapter (relating to Permanency Planning for a Resident Under 22 Years of Age), which includes a review of:

(A) the LAR's contact information as required by §19.805(b)(4)(F) of this subchapter;

(B) the resident's comprehensive assessment;

(C) the resident's educational status; and

(D) the resident's permanency plan.

(d) Regarding subsection (c)(2)(F) of this section, an explanation must be included in a resident's clinical record if the participation of the resident and the resident representative is determined not practicable for the development of the resident's comprehensive care plan.

(e) A comprehensive care plan must include:

(1) for a resident under 18 years of age, the activities, supports, and services that, when provided or facilitated by the facility, will enable the resident to live with a family; or

(2) for a resident 18-22 years of age, the activities, supports, and services that, when provided or facilitated by the facility, will result in the resident having a consistent and nurturing environment in the least restrictive setting, as defined by the resident and LAR as defined in §19.805(a)(5) of this subchapter.

(f) A comprehensive care plan may include a palliative plan of care. This plan may be developed only at the request of the resident, surrogate decision maker or legal representative for residents with terminal conditions, end stage diseases or other conditions for which curative medical interventions are not appropriate. The plan of care must have goals that focus on maintaining a safe, comfortable and supportive environment in providing care to a resident at the end of life.

(g) For a resident under 22 years of age, the facility must provide written notice to the LAR, as defined in §19.805(a)(5) of this subchapter, of a meeting to conduct an annual review of the resident's comprehensive care plan no later than 21 days before the meeting date and request a response from the LAR.

(h) The services provided or arranged by the facility must:

(1) meet professional standards of quality;

(2) be provided by qualified persons in accordance with each resident's written comprehensive care plan; and

(3) effective November 28, 2019, be culturally-competent and trauma-informed.

(i) The comprehensive care plan must be made available to all direct care staff.
Source Note: The provisions of this §554.802 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective June 1, 2001, 26 TexReg 3824; amended to be effective September 1, 2006, 31 TexReg 6800; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.803 Discharge Summary (Discharge Plan of Care)]
(a) Discharge planning. The facility must develop and implement an effective discharge planning process.

(1) The facility's discharge planning process must:

(A) ensure that the discharge needs of each resident are identified and result in the development of a discharge plan for each resident;

(B) include regular re-evaluation of a resident to identify changes that require modification of the discharge plan and update the discharge plan to reflect these changes;

(C) involve the interdisciplinary team in the ongoing process of developing the discharge plan;

(D) consider caregiver or support person availability and the resident's or caregiver's or support person's capacity and capability to perform required care, as part of the identification of discharge needs;

(E) involve the resident and resident representative in the development of the discharge plan and inform the resident and resident representative of the final plan;

(F) address the resident's goals of care and treatment preferences; and

(G) document that a resident has been asked about their interest in receiving information regarding returning to the community.

(i) If the resident indicates an interest in returning to the community, the facility must document any referrals to local contact agencies or other appropriate entities made for this purpose.

(ii) Facilities must update a resident's comprehensive care plan and discharge plan as appropriate, in response to information received from referrals to local contact agencies or other appropriate entities.

(iii) If discharge to the community is determined to not be feasible, the facility must document who made the determination and why.

(2) The evaluation of the resident's discharge needs and discharge plan must be completed on a timely basis and documented in the resident's clinical record.

(3) The results of the evaluation of the resident's discharge needs and discharge plan must be discussed with the resident or the resident representative.

(b) When a facility anticipates a resident's discharge, the facility must develop a discharge summary that includes:

(1) a recapitulation of the overall course of the resident's stay that includes diagnoses, course of illness, treatment, or therapy and pertinent lab, radiology, and consultation results, a final summary of the resident's status;

(2) reconciliation or all pre-discharge medications with the resident's post-discharge medications both prescribed and over-the-counter;

(3) a statement notifying a resident granted permanent medical necessity (PMN) under the Medicaid program that:

(A) PMN status continues after discharge, unless the resident is discharged to home;

(B) PMN status expires 30 consecutive days after the resident is discharged to home; and

(C) a new medical necessity determination is required if the resident applies to be admitted to a nursing facility under the Medicaid program more than 30 consecutive days after the resident moves home from a nursing facility; and

(4) a post-discharge care plan, developed with the participation of the resident and a resident representative that:

(A) will assist the resident to adjust to the new living environment; and

(B) indicates where the resident plans to reside and arrangements that have been made for follow-up care and any post discharge medical and non-medical services.

(c) The facility discharge summary must be available for release to authorized persons, facilities or agencies with the consent of the resident or resident representative.
Source Note: The provisions of this §554.803 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective August 31, 2015, 40 TexReg 5461; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.804 Capacity Assessment for Self Care and Financial Management]
(a) A facility will perform a Capacity Assessment for Self Care and Financial Management for persons who will be referred to a court for guardianship if the person:

(1) is elderly, which is defined as a person 60 years of age or older; or

(2) has mental retardation or a developmental disability; or

(3) is suspected of being a person with mental retardation or a developmental disability.

(b) The assessment will be completed when:

(1) a facility determines that a guardian of the estate, or the person, or both, may be appropriate and a referral to a court for guardianship is anticipated; or

(2) requested to do so by a court.

(c) The facility will use the Capacity Assessment for Self Care and Financial Management instrument developed by the Texas Department of Mental Health and Mental Retardation.

(d) The Capacity Assessment for Self Care and Financial Management will be performed by the facility social worker, with assistance from other professionals as requested by the social worker.
Source Note: The provisions of this §554.804 adopted to be effective March 15, 2000, 25 TexReg 1395; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.805 Permanency Planning for a Resident Under 22 Years of Age]
(a) Definitions. The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.

(1) Permanency planning--A philosophy and planning process that focuses on the outcome of family support by facilitating a permanent living arrangement, with the primary feature of an enduring and nurturing parental relationship. Family-directed planning empowers the family of a child under the age of 18 to direct the development of supports and services that meet the child and family's personal outcomes as related to that child. Person-directed planning empowers the child who is between 18 and 22 years of age to direct the development of a plan of supports and services that meets the needs for self-determination.

(2) Child--A person with a developmental disability who is under 22 years of age.

(3) CRCG (Community resource coordination group)--A local interagency group composed of public and private agencies that develops service plans for individuals whose needs can be met only through interagency coordination and cooperation. The group's role and responsibilities are described in the Memorandum of Understanding on Coordinated Services to Persons Needing Services from More Than One Agency, available on the Health and Human Services Commission website at www.hhsc.state.tx.us/crcg/crcg.htm.

(4) Emergency situation--An unexpected situation involving a child's health, safety, or welfare, of which a person of ordinary prudence would determine that the LAR should be informed, such as:

(A) a child needing emergency medical care;

(B) a child being removed from his residence by law enforcement;

(C) a child leaving his residence without notifying staff and not being located; and

(D) a child being moved from his residence to protect the child (for example, because of a hurricane, fire, or flood).

(5) LAR (legally authorized representative)--A person authorized by law to act on behalf of a resident with regard to a matter described in this subchapter, which may include a parent, guardian, managing conservator of a minor individual, a guardian of an adult individual, or legal representative of a deceased individual.

(6) Permanency planner--A person assigned by DADS to conduct permanency planning activities for a child who resides in a facility.

(b) Facility responsibilities regarding permanency planning.

(1) A facility must request a Preadmission Screening and Resident Review (PASARR) on every child who is a potential admission to a facility, as well as on all children currently residing in a facility who have not had a previous PASARR completed. Documentation regarding the request for or completion of a PASARR must be kept in the chart.

(2) A facility must notify the following entities of the child's admission not later than the third day after a child is initially placed in a facility:

(A) DADS via fax, using DADS Form 2437, Notification of Nursing Facility Admission of Individual Under Age 22;

(B) the CRCG in the county where the LAR resides (see www.hhsc.state.tx.us/crcg/crcg.htm for a listing of CRCG chairpersons by county);

(C) the local office of the Early Childhood Intervention (ECI) Program of the Texas Department of Assistive and Rehabilitative Services, if a child is less than three years of age (see www.dars.state.tx.us/ecis/index.shtml or call 1-800-628-5115 for a listing of ECI programs by county); and

(D) the local school district, if a child is 3 to 22 years of age, with which the facility must coordinate educational opportunities (See §19.1934 of this title (relating to Educational Requirements for Persons under Age 22)).

(3) A facility must keep in a separate section at the front of each child's records:

(A) documentation regarding the notifications required in paragraph (2) of this subsection;

(B) a copy of all PASARR documents; and

(C) a copy of the current permanency plan.

(4) A facility must:

(A) cooperate with the permanency planner by:

(i) allowing access to a child's records or providing other information in a timely manner as requested by the permanency planner or the Health and Human Services Commission;

(ii) participating in meetings to review the child's permanency plan; and

(iii) identifying, in coordination with the permanency planner, activities, supports, and services that can be provided by the family, LAR, facility, or the permanency planner to prepare the child for an alternative living arrangement;

(B) encourage regular contact between the child and LAR and, if desired by the child and LAR, between the child and advocates and friends in the community to continue supportive and nurturing relationships;

(C) encourage participation in the comprehensive care plan meetings by the LAR, and, if desired by the child or LAR, by family members, advocates, and friends in the community;

(D) make reasonable accommodations to promote the participation of the LAR in all planning and decision-making regarding the child's care, including participating in:

(i) the initial development and annual review of the child's comprehensive care plan;

(ii) decision-making regarding the child's medical care;

(iii) routine interdisciplinary team meetings; and

(iv) decision-making and other activities involving the child's health and safety;

(E) ensure that reasonable accommodations include:

(i) conducting a meeting in person or by telephone, as mutually agreed upon by the facility and the LAR;

(ii) conducting a meeting at a time and, if the meeting is in person, at a location that is mutually agreed upon by the facility and the LAR;

(iii) if the LAR has a disability, providing reasonable accommodations in accordance with the Americans with Disabilities Act, including providing an accessible meeting location or a sign language interpreter, if appropriate; and

(iv) providing a language interpreter, if appropriate;

(F) upon admission and annually thereafter:

(i) request from and encourage an LAR to provide the following information for a child during the annual comprehensive care plan meeting and, for an applicant, upon admission:

(I) the LAR's:

(-a-) name;

(-b-) address;

(-c-) telephone number;

(-d-) driver license number and state of issuance or personal identification card number issued by the Department of Public Safety; and

(-e-) place of employment and the employer's address and telephone number;

(II) the name, address, and telephone number of a relative of the child or other person whom DADS or the facility may contact in an emergency situation, a statement indicating the relation between that person and the child, and at the LAR's option:

(-a-) that person's driver license number and state of issuance or personal identification card number issued by the Department of Public Safety; and

(-b-) the name, address, and telephone number of that person's employer; and

(III) a signed acknowledgement of responsibility stating that the LAR agrees to:

(-a-) notify the facility of any changes to the contact information submitted; and

(-b-) make reasonable efforts to participate in the child's life and in planning activities for the child; and

(ii) inform the LAR that if the information described in clause (i) of this subparagraph is not provided or is not accurate and the facility and DADS are unable to locate the LAR as described in subparagraph (J) of this paragraph, DADS refers the case to the Department of Family and Protective Services, in accordance with subsection (c) of this section;

(G) refrain from providing the LAR with inaccurate or misleading information regarding the risks of moving the child to another facility or community setting;

(H) if an emergency situation occurs, attempt to notify the LAR as soon as the emergency situation allows and request a response from the LAR;

(I) if an LAR does not respond to a notice of the child's annual comprehensive care plan meeting, a request for the LAR's consent, or an emergency situation, attempt to locate the LAR by contacting a person identified by the LAR in the contact information described in subparagraph (F) if this paragraph;

(J) no later than 30 days after the date the facility determines that it is unable to locate the LAR, notify DADS at 1-800-458-9858 of that determination and request that DADS initiate a search for the LAR;

(K) before a child who is under 18 years of age, or who is 18-22 years of age and for whom an LAR has been appointed, is transferred to another facility operated by the transferring facility, attempt to obtain consent for the transfer from the LAR, unless the transfer is made because of a serious risk to the health and safety of the child or another person; and

(L) document compliance with the requirements of this paragraph in the child's records.

(5) The facility administrator must ensure that the social worker or other appropriate staff, as needed, will contribute to the development of the permanency plan.

(6) Paragraphs (3) - (5) of this subsection do not apply to short-stay care of less than 14 days; however, the facility must notify DADS, the CRCG, ECI, and the local school district as required in paragraph (2)(A) - (D) of this subsection.

(c) If, within one year of the date DADS receives the notification described in subsection (b)(4)(J) of this section, DADS is unable to locate the LAR, DADS refers the case to:

(1) the Child Protective Services Division of the Department of Family and Protective Services if the child is under 18 years of age; or

(2) the Adult Protective Services Division of the Department of Family and Protective Services if the child is 18-22 years of age.
Source Note: The provisions of this §554.805 adopted to be effective May 1, 2002, 27 TexReg 2834; amended to be effective September 1, 2006, 31 TexReg 6800; amended to be effective August 3, 2011, 36 TexReg 4809; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.901 Quality of Care]
Based on the comprehensive assessment of a resident, the facility must ensure that a resident receives treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident's choices, including the following:

(1) Vision and hearing. To ensure that a resident receives proper treatment and assistive devices to maintain vision and hearing abilities, the facility must, if necessary, assist the resident:

(A) in making appointments; and

(B) by arranging for transportation to and from the office of a practitioner specializing in the treatment of vision or hearing impairment or the office of a professional specializing in the provision of vision or hearing assistive devices.

(2) Skin Integrity.

(A) Pressure ulcers. Based on the comprehensive assessment of the resident, the facility must ensure that:

(i) a resident receives care, consistent with professional standards of practice, to prevent pressure ulcers and does not develop pressure ulcers unless the resident's clinical condition demonstrates that they are unavoidable; and

(ii) a resident with pressure ulcers receives necessary treatment and services, consistent with professional standards of practice, to promote healing, prevent infection, and prevent new ulcers from developing.

(B) Foot Care. To ensure that a resident receives proper treatment and care to maintain mobility and good foot health, the facility must:

(i) provide foot care and treatment, in accordance with professional standards of practice, including to prevent complications from the resident's medical condition; and

(ii) if necessary, assist the resident in making appointments with a qualified person, and arranging for transportation to and from such appointments.

(3) Incontinence.

(A) The facility must ensure that a resident who is continent of bladder and bowel on admission receives services and assistance to maintain continence unless the resident's clinical condition is or becomes such that continence is not possible to maintain.

(B) For a resident with urinary incontinence, based on the comprehensive assessment of the resident, the facility must ensure that:

(i) a resident who enters the facility without an indwelling catheter is not catheterized unless the resident's clinical condition demonstrates that catheterization is necessary;

(ii) a resident who enters the facility with an indwelling catheter or subsequently receives one is assessed for removal of the catheter as soon as possible unless the resident's clinical condition demonstrates that catheterization is necessary; and

(iii) a resident who is incontinent of bladder receives appropriate treatment and services to prevent urinary tract infections and to restore continence to the extent possible.

(C) For a resident with fecal incontinence, based on the resident's comprehensive assessment, the facility must ensure that a resident who is incontinent of bowel receives appropriate treatment and services to restore as much normal bowel function as possible.

(4) Colostomy, urostomy, or ileostomy care. The facility must ensure that a resident who requires colostomy, urostomy, or ileostomy services, receives such care consistent with professional standards of practice, the comprehensive care plan, and the resident's goals and preferences.

(5) Mobility. The facility must ensure that:

(A) a resident who enters the facility without a limited range of motion does not experience reduction in range of motion unless the resident's clinical condition demonstrates that a reduction in range of motion is unavoidable;

(B) a resident with a limited range of motion receives appropriate treatment and services to increase range of motion and to prevent further decrease in range of motion; and

(C) a resident with limited mobility receives appropriate services, equipment, and assistance to maintain or improve mobility with the maximum practicable independence unless a reduction in mobility is unavoidable.

(6) Assisted nutrition and hydration. (Includes naso-gastric and gastrostomy tubes, both percutaneous endoscopic gastrostomy and percutaneous endoscopic jejunostomy, and enteral fluids). Based on a resident's comprehensive assessment, the facility must ensure that a resident:

(A) maintains acceptable parameters of nutritional status, such as usual body weight or desirable body weight range and electrolyte balance, unless the resident's clinical condition demonstrates that this is not possible or the resident preferences indicate otherwise;

(B) is offered sufficient fluid intake to maintain proper hydration and health;

(C) is offered a therapeutic diet when there is a nutritional problem and the health care provider orders a therapeutic diet;

(D) who has been able to eat enough alone or with assistance is not fed by enteral methods unless the resident's clinical condition demonstrates that enteral feeding was clinically indicated and consented to by the resident; and

(E) who is fed by enteral means receives the appropriate treatment and services to restore, if possible, oral eating skills and to prevent complications of enteral feeding including aspiration pneumonia, diarrhea, vomiting, dehydration, metabolic abnormalities, and nasal-pharyngeal ulcers.

(7) Parenteral fluids. Parenteral fluids must be administered consistent with professional standards of practice and in accordance with physician orders, the comprehensive care plan, and the resident's goals and preferences.

(8) Respiratory care, including tracheostomy care and tracheal suctioning. The facility must ensure that a resident who needs respiratory care, including tracheostomy care and tracheal suctioning, is provided such care, consistent with professional standards of practice, the comprehensive care plan, the resident's goals and preferences, and §19.802 of this chapter, (relating to Comprehensive Person-Centered Care Planning).

(9) Prostheses. The facility must ensure that a resident who has a prosthesis is provided care and assistance, consistent with professional standards of practice, the comprehensive care plan, and the resident's goals and preferences, to wear and be able to use the prosthetic device.

(10) Pain management. The facility must ensure that pain management is provided to a resident who requires such services, consistent with professional standards of practice, the comprehensive care plan, and the resident's goals and preferences.

(11) Dialysis. The facility must ensure that a resident who requires dialysis receives such services, consistent with professional standards of practice, the comprehensive care plan, and the resident's goals and preferences.

(12) Trauma-informed care. Effective November 28, 2019, the facility must ensure that a resident who is a trauma survivor receives culturally-competent, trauma-informed care in accordance with professional standards of practice and accounting for resident's experiences and preferences in order to eliminate or mitigate triggers that may cause re-traumatization of the resident.

(13) Bed rails. The facility must attempt to use appropriate alternatives before installing a side or bed rail. If a bed or side rail is used, the facility must ensure correct installation, use, and maintenance of bed rails, including the following elements:

(A) assess the resident for risk of entrapment from bed rails before installation;

(B) review the risks and benefits of bed rails with the resident or resident representative and obtain informed consent before installation;

(C) ensure the bed's dimensions are appropriate for the resident's size and weight; and

(D) follow the manufacturers' recommendations and specifications for installing and maintaining bed rails.

(14) Accidents. The facility must ensure that:

(A) the resident environment remains as free of accident hazards as possible; and

(B) each resident receives adequate supervision and assistive devices to prevent accidents.

(15) Pediatric care.

(A) Licensed nursing care of children. A facility caring for children must have 24 hour a day on-site licensed nursing staff in numbers sufficient to provide safe care. For any facility with five or more children under 26 pounds, at least one nurse must be assigned solely to the care of those children.

(B) Fewer than five pediatric residents. Facilities with fewer than five pediatric residents must assure that the children's rooms are in close proximity to the nurses' station.

(C) Respiratory care of children.

(i) To facilitate the care of ventilator-dependent children or children with tracheostomies, a facility must group those children in rooms contiguous or in close proximity to each other. An exception to this rule is children who are able to be schooled off-site.

(ii) Facilities must assure that alarms on ventilators, apnea monitors, and any other such equipment uniquely identify the child or the child's room.

(iii) A facility caring for children with tracheostomies requiring daily care (including ventilator-dependent children with tracheostomies) must have 24 hour a day on-site respiratory therapy staff in numbers sufficient to provide a safe ratio of respiratory therapist per these residents. For the purposes of this rule, respiratory therapy staff is defined as a registered respiratory therapist (RRT), a certified respiratory therapy technician (CRT), or a licensed nurse whose primary function is respiratory care.

(I) If the facility cares for nine or more children with tracheostomies requiring daily care (including ventilator-dependent children with tracheostomies), the facility must maintain a ratio of no less than one respiratory therapy staff per nine tracheostomy residents 24 hours a day.

(II) If the facility cares for six or more ventilator dependent children, the facility must:

(-a-) designate a respiratory therapy supervisor, either on staff or contracted who must be credentialed by the National Board for Respiratory Care (either CRT or RRT).

(-b-) provide and document that all respiratory therapy staff is trained in the care of children who are ventilator dependent. This training must be reviewed annually.

(-c-) assure that appropriate care, maintenance, and disinfection of all ventilator equipment and accessories occurs.
Source Note: The provisions of this §554.901 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective May 15, 1998, 23 TexReg 4572; amended to be effective March 24, 2020, 45 TexReg 2020; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.904 Behavioral Health Services]
Each resident must receive and the facility must provide the necessary behavioral health care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and care plan.

(1) The facility must have sufficient staff who provide direct services to a resident with the appropriate competencies and skills sets to provide nursing and related services to assure resident safety and attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident. This is determined by resident assessments and individual comprehensive care plans and considering the number, acuity and diagnoses of the facility's resident population in accordance with §19.1931 of this chapter (relating to Facility Assessment). These competencies and skills sets include knowledge of and appropriate training and supervision for:

(A) caring for a resident with mental and psychosocial disorders, as well as a resident with a history of trauma or post-traumatic stress disorder, that have been identified in the facility assessment conducted pursuant to §19.1931 of this chapter; and

(B) implementing non-pharmacological interventions.

(2) Based on the comprehensive assessment of a resident, the facility must ensure that:

(A) a resident who displays or is diagnosed with mental disorder or psychosocial adjustment difficulty, or who has a history of trauma or post-traumatic stress disorder, receives appropriate treatment and services to correct the assessed problem or to attain the highest practicable mental and psychosocial well-being;

(B) a resident whose assessment did not reveal or who does not have a diagnosis of a mental or psychosocial adjustment difficulty or a documented history of trauma or post-traumatic stress disorder does not display a pattern of decreased social interaction or increased withdrawn, angry, or depressive behaviors, unless the resident's clinical condition demonstrates that development of such a pattern was unavoidable; and

(C) a resident who displays or is diagnosed with dementia, receives the appropriate treatment and services to attain or maintain the resident's highest practicable physical, mental, and psychosocial well-being.

(3) If rehabilitative services such as physical therapy, speech-language pathology, occupational therapy, and rehabilitative services for mental disorders and intellectual disability, are required in the resident's comprehensive care plan, the facility must:

(A) provide the required services, including specialized rehabilitation services as required in §19.802 of this chapter (relating to Comprehensive Person-Centered Care Planning).

(B) obtain the required services from an outside resource in accordance with §19.1906 of this chapter (relating to Use of Outside Resources), from a Medicare or Medicaid provider of specialized rehabilitative services.

(4) The facility must provide medically-related social services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident.
Source Note: The provisions of this §554.904 adopted to be effective March 24, 2020, 45 TexReg 2020; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.910 Quality Assurance Early Warning System]
The Health and Human Services Commission (HHSC) uses an early warning system to detect conditions that could be detrimental to the health, safety, and welfare of residents.

(1) Quality-of-care monitors conduct visits that may be announced or unannounced and may occur on any day and at any time, including nights, weekends, and holidays.

(2) Quality-of-care monitors may visit a facility:

(A) with a history of resident care deficiencies;

(B) that is identified as a medium risk through the early warning system; or

(C) that requests a visit.

(3) Quality-of-care monitors assess:

(A) the overall quality of life in the facility; and

(B) specific conditions in the facility directly related to resident care, including conditions identified through the facility's quality measure reports based on MDS assessments.

(4) A quality-of-care monitor assessment visit includes:

(A) observation of the care and services provided to a resident; and

(B) formal and informal interviews with residents, family members, facility staff, resident guests, volunteers, other regular staff, and resident representatives and advocates.

(5) HHSC does not disclose the identity of a resident or family member of a resident interviewed by a quality-of-care monitor unless required by law to do so.

(6) A quality-of-care monitor provides the findings of a monitoring visit, both positive and negative, orally and in writing to the facility administrator or, in the absence of the facility administrator, to the administrator on duty or the director of nursing.

(7) A quality-of-care monitor may recommend to the facility administrator procedural and policy changes and staff training to improve the care or quality of life of residents.

(8) A quality-of-care monitor conducts a follow-up visit within 45 days after the date of an initial visit.

(9) A quality-of-care monitor who observes conditions that may constitute an immediate threat to the health or safety of a resident immediately reports the conditions to the facility administrator, the monitor's regional office supervisor for appropriate action and, as appropriate, to law enforcement, adult protective services, other divisions of HHSC, and other agencies.
Source Note: The provisions of this §554.910 adopted to be effective May 1, 2002, 27 TexReg 3207; amended to be effective June 1, 2006, 31 TexReg 4458; amended to be effective March 27, 2017, 42 TexReg 1575; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.911 Rapid Response Teams]
(a) A rapid response team is comprised of one or more Health and Human Services Commission (HHSC) quality-of-care monitors and visits a facility that:

(1) is identified as high risk through the early warning system described in §19.910 of this subchapter (relating to Quality Assurance Early Warning System); or

(2) has committed three violations that constitute an immediate threat to health and safety relating to abuse or neglect of a resident as described in §19.2107 of this chapter (relating to Revocation of a License by the HHSC Executive Commissioner).

(b) A facility must cooperate with a rapid response team to improve the quality of care provided at the facility by:

(1) providing immediate access to all the parts of the building;

(2) providing immediate access to residents, staff, contractors and reasonable access to volunteers;

(3) providing access to all documents maintained by or on behalf of the facility upon request from the rapid response team;

(4) allowing the rapid response team to copy documents, photograph residents, and use any other available recording devices in accordance with §19.2002(h) of this chapter (relating to Procedural Requirements--Licensure Inspections and Surveys); and

(5) not interfering with the work of the rapid response team during a visit.

(c) In determining whether a facility has demonstrated improvement in the quality of care, the rapid response team may consider factors such as implementation of the team's recommendation or guidance.

(d) A rapid response team may visit a facility that requests assistance from HHSC. A visit under this subsection may not occur until at least 60 days after the date of an exit interview following an inspection.

(e) A rapid response team may not be deployed for the purpose of helping a facility prepare for an inspection or survey.
Source Note: The provisions of this §554.911 adopted to be effective May 1, 2002, 27 TexReg 3207; amended to be effective June 1, 2006, 31 TexReg 4458; amended to be effective March 27, 2017, 42 TexReg 1575; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1001 Nursing Services]
(a) The facility must have sufficient staff with the appropriate competencies and skill sets to provide nursing and related services to assure resident safety and attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident. This is determined by resident assessments and individual comprehensive care plans and considering the number, acuity and diagnoses of the facility's resident population in accordance with the facility assessment required at §554.1931 of this chapter (relating to Facility Assessment). Staff who have been instructed and who have demonstrated competence in the care of children must provide nursing services to children. Care and services are to be provided as specified in §554.901 of this chapter (relating to Quality of Care).

(1) Sufficient staff.

(A) The facility must provide services by sufficient numbers of each of the following types of personnel on a 24-hour basis to provide nursing care to all residents in accordance with resident care plans:

(i) licensed nurses, except when waived under paragraph (5) of this subsection; and

(ii) other nursing personnel, including nurse aides.

(B) The facility must designate a licensed nurse to serve as a charge nurse on each shift, except when waived under paragraph (5) of this subsection.

(C) The facility must ensure that licensed nurses have the specific competencies and skill sets necessary to care for a resident's needs, as identified through resident assessments, and described in the comprehensive care plan.

(D) The facility must provide care that includes assessing, evaluating, planning, and implementing resident comprehensive care plans and responding to a resident's needs.

(2) Registered nurse.

(A) The facility must use the services of a registered nurse for at least eight consecutive hours a day, seven days a week, except when waived under paragraph (5) or (6) of this subsection.

(B) The facility must designate a registered nurse to serve as the director of nursing on a full-time basis, 40 hours per week, except when waived under paragraph (6) of this subsection.

(C) The director of nursing may serve as a charge nurse only when the facility has an average daily occupancy of 60 or fewer residents.

(3) Proficiency of nurse aides. The facility must ensure that nurse aides are able to demonstrate competency in skills and techniques necessary to care for a resident's needs, as identified through resident assessments, and described in the resident's comprehensive care plan.

(4) Requirements for facility hiring and use of nurse aides.

(A) General rule. A facility must not use any individual working in the facility as a nurse aide for more than four months, on a full-time basis, unless:

(i) the individual is competent to provide nursing and nursing related services; and

(ii) the individual:

(I) has completed a training and competency evaluation program, or a competency evaluation program approved by the state as meeting the requirements of 42 CFR §§483.151-483.154; or

(II) has been deemed or determined competent as provided in 42 CFR §483.150(a) and (b).

(B) Nonpermanent employees. A facility must not use on a temporary, per diem, leased, or any basis other than a permanent employee any individual who does not meet the requirements in subparagraphs (4)(A)(i) and (ii) of this paragraph.

(C) Competency. A facility must not use any individual who has worked less than four months as a nurse aide in that facility unless the individual:

(i) is a full-time employee in a state-approved training and competency evaluation program;

(ii) has demonstrated competence through satisfactory participation in a state-approved nurse aide training and competency evaluation program, or competency evaluation program; or

(iii) has been deemed or determined competent as provided in 42 CFR §483.150(a) and (b).

(D) Registry Verification. Before allowing an individual to serve as a nurse aide, a facility must receive registry verification that the individual has met competency evaluation requirements and is not designated in the registry as having a finding concerning abuse, neglect or mistreatment of a resident, or misappropriation of a resident's property, unless:

(i) the individual is a full-time employee in a training and competency evaluation program approved by the state; or

(ii) the individual can prove that the individual has recently successfully completed a training and competency evaluation program, or competency evaluation program approved by the state and has not yet been included in the registry. A facility must follow up to ensure that such an individual actually becomes registered.

(E) Multi-state registry verification. Before allowing an individual to serve as a nurse aide, a facility must seek information from every state registry, established under §1819(e)(2)(A) or §1919(e)(2)(A) of the Social Security Act (42 U.S.C. §1395i-3(e)(2)(A); 42 U.S.C. §1396r(e)(2)(A)), that the facility believes will include information about the individual.

(F) Required retraining. If, since an individual's most recent completion of a training and competency evaluation program, there has been a continuous period of 24 consecutive months during none of which the individual provided nursing or nursing-related services for monetary compensation, the individual must complete a new training and competency evaluation program or a new competency evaluation program.

(G) Regular in-service education. The facility must complete a performance review of every nurse aide at least once every 12 months, and must provide regular in-service education based on the outcome of these reviews. The in-service training must:

(i) be sufficient to ensure the continuing competence of a nurse aide, but must be no less than 12 hours per year;

(ii) include at least two hours of training on infection control and personal protective equipment per year;

(iii) address areas of weakness as determined in nurse aides' performance reviews and facility assessment at §554.1931 of this chapter, and may address the special needs of a resident as determined by the facility staff;

(iv) for a nurse aide providing services to an individual with cognitive impairments, address the care of the cognitively impaired; and

(v) include dementia management training and resident abuse prevention training.

(H) The facility must comply with the nurse aide training and registry rules found in Chapter 556 of this title (relating to Nurse Aides).

(5) Waiver of requirement to provide licensed nurses on a 24-hour basis.

(A) To the extent that a facility is unable to meet the requirements of paragraphs (1)(B) and (2)(A) of this subsection, the state may waive these requirements with respect to the facility, if:

(i) the facility demonstrates to the satisfaction of HHSC that the facility has been unable, despite diligent efforts (including offering wages at the community prevailing rate for nursing facilities), to recruit appropriate personnel;

(ii) HHSC determines that a waiver of the requirement will not endanger the health or safety of individuals staying in the facility;

(iii) the state finds that, for any periods in which licensed nursing services are not available, a registered nurse or a physician is obligated to respond immediately to telephone calls from the facility; and

(iv) the waivered facility has a full-time registered or licensed vocational nurse on the day shift seven days a week. For purposes of this requirement, the starting time for the day shift must be between 6 a.m. and 9 a.m. The facility must specify in writing the schedule that it follows.

(B) A waiver granted under the conditions listed in this paragraph is subject to annual state review.

(C) In granting or renewing a waiver, a facility may be required by the state to use other qualified, licensed personnel.

(D) The state agency granting a waiver of these requirements provides notice of the waiver to the State Ombudsman and the protection and advocacy systems in the state for individuals with mental illness established under the Protection and Advocacy for Mentally Ill Individuals Act (42 USC Chapter 114, Subchapter I) and individuals with intellectual or developmental disabilities established under the Developmental Disabilities Assistance and Bill of Rights Act (42 USC Chapter 144, Subchapter I, Part C).

(E) The nursing facility that is granted a waiver by the state notifies residents of the facility and the resident representatives of the waiver.

(6) Waiver of the requirement to provide services of a registered nurse for more than 40 hours a week in a Medicare skilled nursing facility (SNF).

(A) The secretary of the U.S. Department of Health and Human Services (secretary) may waive the requirement that a Medicare SNF provide the services of a registered nurse for more than 40 hours a week, including a director of nursing specified in paragraph (2) of this subsection, if the secretary finds that:

(i) the facility is located in a rural area and the supply of Medicare SNF services in the area is not sufficient to meet the needs of individuals residing in the area;

(ii) the facility has one full-time registered nurse who is regularly on duty at the facility 40 hours a week; and

(iii) the facility either has:

(I) only residents whose physicians have indicated (through physician's orders or admission notes) that they do not require the services of a registered nurse or a physician for a 48-hour period; or

(II) made arrangements for a registered nurse or a physician to spend time at the facility, as determined necessary by the physician, to provide necessary skilled nursing services on days when the regular full-time registered nurse is not on duty.

(B) The secretary provides notice of the waiver to the State Ombudsman and the protection and advocacy systems in the state for individuals with mental illness established under the Protection and Advocacy for Mentally Ill Individuals Act (42 USC Chapter 114, Subchapter I) and individuals with intellectual or developmental disabilities established under the Developmental Disabilities Assistance and Bill of Rights Act (42 USC Chapter 144, Subchapter I, Part C).

(C) The SNF that is granted a waiver notifies residents of the facility and the resident representatives of the waiver.

(D) A waiver of the registered nurse requirement under subparagraph (A) of this paragraph is subject to annual renewal by the secretary.

(7) Request for waiver concerning staffing levels. The facility must request a waiver through the local HHSC Regulatory Services Division, in writing, at any time the administrator determines that staffing will fall, or has fallen, below that required in paragraphs (1) and (2) of this subsection for a period of 30 days or more out of any 45 days.

(A) The following information must be included in the request:

(i) beginning date when facility was or is unable to meet staffing requirements;

(ii) type waiver requested (24-hour licensed nurse or seven-day-per-week R.N.);

(iii) projected number of hours per month staffing reduced for 24-hour licensed nurse waiver or seven-day-per-week R.N. waiver; and

(iv) staffing adjustments made due to inability to meet staffing requirements.

(B) Waivers for licensed-only or certified facilities will be granted by HHSC Regulatory Services Division staff. Waivers for a Medicare SNF receive final approval from the CMS.

(C) If a facility, after requesting a waiver, is later able to meet the staffing requirements of paragraphs (1) and (2) of this subsection, HHSC Regulatory Services Division staff must be notified, in writing, of the effective date that staffing meets requirements.

(D) Verification that the facility appropriately made a request and notification will be done at the time of survey.

(E) Amounts paid to Medicaid-certified facilities in the per diem payment to meet the staffing requirements of paragraphs (1) and (2) of this subsection may be adjusted if staffing requirements are not met.

(8) Duration of waiver. Approved waivers are valid throughout the facility licensure or certification period, unless approval is withdrawn. During the relicensure or recertification survey, the determination is made for approval or denial for the next facility licensure or certification period if a waiver continues to be necessary. The facility requests a redetermination for a waiver from HHSC Regulatory Services Division staff at the time the survey is scheduled. At other times if a request is made, HHSC staff may schedule a visit for waiver determination.

(9) Requirements for waiver approval. To be approved for a waiver, the nursing facility must meet all of the requirements stated in this subchapter and the requirements specified throughout this chapter. In some instances, the survey agency may require additional conditions or arrangements such as:

(A) an additional licensed vocational nurse on day-shift duty when the registered nurse is absent;

(B) modification of nursing services operations; and

(C) modification of the physical environment relating to nursing services.

(10) Denial or withdrawal of a waiver. Denial or withdrawal of a waiver may be made at any time if any of the following conditions exist:

(A) requirements for a waiver are not met on a continuing basis;

(B) the quality of resident care is not acceptable; or

(C) justified complaints are found in areas affecting resident care.

(11) Requirement that SNFs be in a rural area. A SNF (Medicare) must be in a rural area for waiver consideration, as specified in paragraph (6) of this subsection. A rural area is any area outside the boundaries of a standard metropolitan statistical area. Rural areas are defined and designated by the federal Office of Management and Budget; are determined by population, economic, and social requirements; and are subject to revisions.

(b) Nurse staffing information.

(1) Data requirements. The facility must post the following information:

(A) on a daily basis:

(i) the facility name;

(ii) the current date;

(iii) the resident census; and

(iv) the specific shifts for the day; and

(B) at the beginning of each shift, the total number of hours and actual time of day to be worked by the following licensed and unlicensed nursing staff, including relief personnel directly responsible for resident care:

(i) RNs;

(ii) LVNs; and

(iii) CNAs.

(2) Posting requirements. The nursing facility must post the data described in paragraph (1) of this subsection:

(A) in a clear and readable format; and

(B) in a prominent place readily accessible to residents and visitors.

(3) Public access to posted nurse staffing data. The facility must, upon oral or written request, make copies of nurse staffing data available to the public for review at a cost not to exceed the community standard rate.

(4) Facility data retention requirements. The facility must maintain the posted daily nurse staffing data for the period of time specified by written facility policy or for at least two years following the last day in the schedule, whichever is longer.
Source Note: The provisions of this §554.1001 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective October 30, 2011, 36 TexReg 7174; amended to be effective April 5, 2018, 43 TexReg 2017; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871; amended to be effective January 2, 2022, 46 TexReg 9037.

[§554.1002 Additional Nursing Services Staffing Requirements]
(a) The ratio of licensed nurses to residents must be sufficient to meet the needs of the residents.

(1) At a minimum, the facility must maintain a ratio (for every 24-hour period) of one licensed nursing staff person for each 20 residents or a minimum of .4 licensed-care hours per resident day. To determine licensed-care hours per resident day, multiply the number of licensed nurses by the number of hours they work in a single day and divide the product by the number of residents in the facility. Three nurses working eight-hour shifts is 24 hours, divided by 60 residents, equals .4 licensed-care hours per resident day.

(2) Licensed nurses who may be counted in the ratio include, but are not limited to, director of nursing, assistant directors of nursing, staff development coordinators, charge nurses, and medication/treatment nurses. These licensed nurses may be counted subject to the limitations of paragraphs (3) and (4) of this subsection.

(3) Staff, who also have administrative duties not related to nursing, may be counted in the ratio only to the degree of hours spent in nursing-related duties.

(4) If a multi-level facility (nursing facility or Medicare SNF) has one director of nursing over the entire facility, he may not be counted in the nursing ratio. A director of nursing for a single distinct part may be counted in the ratio for the distinct part.

(b) A graduate vocational nurse who has a temporary work permit must work under the direction of a licensed vocational nurse, registered nurse, or licensed physician who is physically present in the facility. The graduate nurse who has a temporary work permit must work under the direction of a registered nurse until registration has been achieved.

(c) If the facility uses licensed temporary nursing personnel, the temporary personnel must have the same qualifications that permanent facility employees do. If temporary personnel are used for afternoon or night shifts, a full-time, licensed nurse must be on call and immediately available by telephone. The on-call nurse must be a registered nurse unless the facility has a current waiver from DHS and is not required to provide daily RN coverage.

(d) Consultative pediatric nursing services must be available to facility staff if the facility has a pediatric resident.
Source Note: The provisions of this §554.1002 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective October 30, 2011, 36 TexReg 7174; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1004 Director of Nursing Services]
The director of nursing services must serve only one facility in this capacity.

(1) If the director of nursing services has other institutional responsibilities, a qualified registered nurse must serve as an assistant so that there is the equivalent of a full-time director of nursing services on duty.

(2) If a nursing facility, as a result of waivered status, employs a licensed vocational nurse to supervise and direct nursing services, the facility must have an agreement with a registered nurse who must provide the vocational nurse at least four hours of consultation in the facility per week. The registered nurse must not assume director of nursing duties, but must act as a consultant to solve problems involving resident care, conduct in-service training, and maintain proper clinical records.
Source Note: The provisions of this §554.1004 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1006 Nursing Facility Restorative Nursing Care]
The facility must have a program of restorative nursing care that is an integral part of nursing service and is directed toward helping each resident to achieve and maintain an optimal level of self-care and independence, as defined by the Comprehensive Assessment and Comprehensive Care Plan. Nursing personnel must be trained in restorative nursing and must provide restorative services daily for residents who require them. Nursing personnel must routinely record these services in the resident's clinical record.
Source Note: The provisions of this §554.1006 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1010 Nursing Practices]
(a) A licensed nurse must practice within the constraints of applicable state laws and regulations governing their practice, including the Nurse Practice Act, and must follow the guidelines contained in the facility's written policies and procedures.

(b) A nurse must enter, or approve and sign, nurses' notes in the following instances:

(1) at least monthly; and

(2) at the time of any physical complaints, accidents, incidents, and change in condition or diagnosis, and progress. All of these situations must be promptly recorded as exceptions and included in the clinical record.

(c) If permitted by written policies of the nursing facility, an RN or a physician's assistant may determine and pronounce a resident dead unless a resident is being supported by artificial means that preclude a determination that the resident's spontaneous respiratory and circulatory functions have ceased. The facility's nursing staff and the medical staff or consultant must have jointly developed and approved the policies. The policies must include the following requirements:

(1) The apparent death of a resident must be reported immediately to the attending physician, relatives, and any guardian or legal representatives.

(2) The body of a deceased resident must not be removed from the facility without a physician's or registered nurse's authorization. Telephone authorization is acceptable, if not in conflict with local regulations. Authorization by a justice of the peace, acting as a coroner, is sufficient when the attending or consulting physician or registered nurse is not available.

(3) A death that involves trauma, or unusual or suspicious circumstances, must be reported immediately, in accordance with local regulations, and to HHSC Complaint and Incident Intake, in accordance with §19.602(g)(2) of this chapter (relating to Incidents of Abuse, Neglect, and Exploitation Reportable to the Texas Health and Human Services Commission and Law Enforcement Agencies by Facilities). Deaths must also be reported to HHSC monthly, in accordance with §19.606 of this chapter (relating to Reporting of Resident Death Information).
Source Note: The provisions of this §554.1010 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective August 31, 2015, 40 TexReg 5461; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1011 Student Nurses]
If the facility has a contract or agreement with an accredited school of nursing to use their facility for a portion of the student nurses' clinical experience, those student nurses may provide care under the following conditions.

(1) Student nurses may be used in nursing facilities, provided the instructor gives class supervision and assumes responsibility for all student nursing activities occurring within the facility. These students cannot be counted in the nurse-to-resident ratio required in the standards.

(2) The student nurse may administer medications only when in the facility on assignment as a student of their school of nursing.
Source Note: The provisions of this §554.1011 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1012 Special Nurses and Sitters]
(a) Facilities may develop their own policies regarding private duty aides and sitters.

(b) The nursing facility is responsible for meeting the needs of the residents regardless of the presence of special nurses or sitters.

(c) In Medicaid-certified facilities, the following apply.

(1) The facility is not responsible for payment for a special nurse (registered nurse or licensed vocational nurse) or sitter requested by the resident's physician or family.

(2) The special nurse or sitter must be hired as a separate agreement between the nurse or sitter and resident, or the resident's family or legal representative, and paid directly by them.

(3) The facility may assist in the hiring of a special nurse or sitter but may not in any way enter into the billing, collection, or fee-setting for the special duty nurse or sitter. If it is determined by the auditing staff that the facility received monetary benefits from an arrangement for special duty nurses or sitters, a financial exception will be made and the facility will be asked to reimburse the resident or the responsible party who paid the special duty nurses or sitters. If the resident or family hires an individual to do the special duty nursing, who was already on the facility's staff and a replacement for this person was not hired, the facility will be determined to have received a monetary benefit. See §19.2606 of this title (relating to Supplementation of Vendor Payments).
Source Note: The provisions of this §554.1012 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1101 Food and Nutrition Services]
The facility must provide each resident with a nourishing, palatable, well-balanced diet that meets each resident's daily nutritional and special dietary needs, taking into consideration the preferences of each resident.
Source Note: The provisions of this §554.1101 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1102 Staffing]
The facility must employ sufficient staff with the appropriate competencies and skill sets to carry out the functions of the food and nutrition services, taking into consideration resident assessments, individual plans of care, and the number, acuity, and diagnoses of the facility's resident population in accordance with the facility assessment required at §19.1931 of this chapter (relating to Facility Assessment). This includes:

(1) a qualified dietitian, either full-time, part-time, or on a consultant basis. A qualified dietitian:

(A) holds a bachelors' or higher degree granted by a regionally accredited college or university in the United States, or an equivalent foreign degree, with completion of the academic requirements of a program in nutrition or dietetics accredited by an appropriate national accreditation organization recognized for this purpose;

(B) has completed at least 900 hours of supervised dietetics practice under the supervision of a registered dietitian or nutrition professional; and

(C) is licensed as a dietitian by the state of Texas;

(2) a dietitian hired or contracted with before November 28, 2016, that does not meet the requirements in paragraph (1)(A) - (C) of this section must:

(A) be either:

(i) registered by the Commission on Dietetic Registration or;

(ii) licensed, or provisionally licensed, by the Texas Department of Licensing and Regulation with at least one year of supervisory experience in dietetic service of a health care facility; and

(B) meet the requirements in paragraph (1)(A) - (C) of this section by November 28, 2021;

(3) if a qualified dietitian is not employed full-time, the facility must designate a person to serve as the director of food and nutrition services who receives frequent scheduled consultations from a qualified dietitian and who:

(A) is a certified dietary manager;

(B) is a certified food service manager;

(C) has similar national certification for food service management and safety from a national certifying body; or

(D) has an associate's or higher degree in food service management or in hospitality, if the course study includes food service or restaurant management, from an accredited institution of higher learning;

(4) a director of food and nutrition services who is not a qualified dietitian and does not meet the requirements in paragraph (3)(A) - (D) of this section, and who was designated before November 28, 2016, must:

(A) be at least:

(i) an associate-in-arts graduate in nutrition and food service management;

(ii) a graduate of a dietetic technician or dietetic assistant training program approved by the Academy of Nutrition and Dietetics or the Association of Nutrition & Foodservice Professionals;

(iii) a person who has completed a state-agency-approved 90-hour course in food service supervision; or

(iv) a person who has training and experience in food service supervision and management in a military service equivalent in content to the programs in paragraph (3) of this section or clauses (i) - (iii) of this subparagraph and has had the person's training credentials evaluated and approved by the nutrition program specialist of the HHSC Regulatory Services Division; and

(B) meet one of the requirements in paragraph (3)(A) - (D) of this subsection by November 28, 2021.

(5) Support staff. The facility must provide sufficient support personnel to carry out the functions of the food and nutrition service.
Source Note: The provisions of this §554.1102 adopted to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1104 Dietary Consultant Requirements]
(a) The facility must ensure a qualified dietitian is available as frequently and for such time as is necessary to assure each resident a diet that meets the daily nutritional and special dietary needs of each resident, based upon the acuity and clinical needs of the resident. The facility must ensure that monthly dietary consultant hours are provided, at a minimum, as follows:

(1) facility population: 60 residents or under - eight hours;

(2) facility population: each additional 30 residents or fraction thereof - additional four hours.

(b) To meet the consultant-hour requirement, time is accrued and counted exactly as rendered.

(c) The facility must outline consultant services in a signed contract. This requirement does not apply to a facility that employs a qualified dietitian on the facility's staff.
Source Note: The provisions of this §554.1104 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective December 1, 2000, 25 TexReg 11665; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1107 Menus, Nutritional Adequacy, and Meal Service]
(a) Menus must:

(1) meet the nutritional needs of residents in accordance with established national guidelines;

(2) be prepared at least one week in advance;

(3) be written for each type of diet ordered in the facility, in accordance with the facility's diet manual;

(4) be written or completely evaluated for nutritional adequacy by the facility's qualified dietitian;

(5) vary from week to week, taking the general age-group of residents into consideration;

(6) be followed unless substitutions are documented as required in subsection (d) of this section;

(7) reflect, based on a facility's reasonable effort, the religious, cultural, and ethnic needs of the resident population, as well as input received from residents and resident groups; and

(8) be updated periodically.

(b) A qualified dietitian may accept diet orders and changes from the physician.

(c) The facility must ensure that a current diet manual, approved by the qualified dietitian, is readily available to dietary service personnel and the supervisor of nursing service. To be current, the diet manual must be no more than five years old.

(d) The facility must retain records of menus served, including substitutions, and food purchased for 30 days. A list of residents receiving special diets and a record of their diets must be kept in the dietary area for at least 30 days.

(e) The facility must post the current week's menu:

(1) in the dietary department, including therapeutic diet menus, so employees responsible for purchasing, preparing, and serving foods can use it; and

(2) in a convenient location so the residents may see it.

(f) The dietary department must keep a seven-day supply of staple foods and a two-day supply of perishable foods at all times. The facility is allowed the flexibility to use food on hand to make substitutions at any interval as long as comparable nutritional value is maintained. Any substitution of menu items must be recorded on the day of use.

(g) Accommodation of a resident's needs. The facility must provide:

(1) table service for all who can and will eat at the table, including a resident who uses a wheelchair;

(2) firm supports, such as over-bed tables, for serving trays to a resident who is bedfast;

(3) sturdy tray stands of proper height to a resident able to be out of bed for the resident's meals;

(4) special eating equipment and utensils for a resident who needs them and appropriate assistance to ensure that the resident can use the assistive devices when consuming meals and snacks; and

(5) prompt assistance for a resident who needs help eating.

(h) An identification system, such as tray cards, must be available to ensure that all diets are served in accordance with physician's orders.

(i) Nothing in this section limits a resident's right to make personal dietary choices.
Source Note: The provisions of this §554.1107 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1108 Food and Drink]
Each resident must receive and the facility must provide:

(1) food prepared in accordance with established professional food preparation practices and by methods that conserve nutritive value, flavor, and appearance;

(2) adequate amounts of food and drink that is palatable, attractive, and at a safe and appetizing temperature;

(3) food prepared in a form designed to meet individual needs;

(4) appealing options of similar nutritive value to a resident who chooses not to eat food that is initially served or who requests a different meal choice;

(5) food that is prepared and served on schedule;

(6) food that accommodates resident allergies, intolerances, and preferences; and

(7) drinks, including water and other liquids, consistent with a resident's needs and preferences, and sufficient to maintain resident hydration.
Source Note: The provisions of this §554.1108 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1109 Food Intake]
Food intake of a resident must be monitored and recorded as follows.

(1) Deviations from normal food and fluid intake must be recorded in the clinical records in accordance with §19.1911(b)(16)(E) of this chapter (relating to Contents of the Clinical Record).

(2) In-between meals and bedtime snacks, and supplementary feedings, either as a part of the overall comprehensive care plan or as ordered by a physician, including caloric-restricted diets, must be documented using the point, percentage, or other system consistently facility-wide.
Source Note: The provisions of this §554.1109 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective August 1, 2000, 25 TexReg 6779; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1110 Frequency of Meals]
(a) Each resident must receive and the facility must provide at least three meals daily, at regular times comparable to normal mealtimes in the community or in accordance with a resident's needs, preferences, requests, and comprehensive care plan.

(b) There must be not more than 14 hours between a substantial evening meal and breakfast the following day, except when a nourishing snack is served at bedtime, up to 16 hours may elapse between a substantial evening meal and breakfast the following day if a resident group agrees to this meal span.

(c) Suitable, nourishing alternative meals and snacks must be provided to a resident who wants to eat at non-traditional times or outside of scheduled meal service times, consistent with the resident's plans of care.
Source Note: The provisions of this §554.1110 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1111 Food Safety Requirements]
(a) The facility must procure food from sources approved or considered satisfactory by federal, state, and local authorities.

(1) The facility may include food items obtained directly from local producers, subject to applicable State and local laws or regulations.

(2) This section does not prohibit or prevent a facility from using produce grown in facility gardens, subject to compliance with applicable safe growing and food handling practices.

(3) This section does not preclude a resident from consuming foods not procured by the facility.

(b) The facility must store, prepare, and serve food under sanitary conditions, as required by the Texas Department of State Health Services food service sanitation requirements.

(c) The facility must dispose of garbage and refuse properly.

(d) The facility must have a written policy regarding use and storage of foods brought to a resident by family and other visitors to ensure safe and sanitary storage, handling, and consumption.

(e) Dietary service personnel must be in good health and practice hygienic food-handling techniques. Persons with symptoms of communicable diseases or open, infected wounds may not work.

(f) Dietary service personnel must wear clean, washable garments, wear hair coverings or clean caps, and have clean hands and fingernails.

(g) The facility and all food service personnel must meet the standards imposed by local, state, and federal codes regarding food and food handling.
Source Note: The provisions of this §554.1111 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective July 1, 2002, 27 TexReg 5245; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1113 Paid Feeding Assistants]
(a) State-approved training course. The facility may use a paid feeding assistant, if the paid feeding assistant has successfully completed a state-approved training course that meets the requirements of §19.1115 of this subchapter (relating to Requirements for Training of Paid Feeding Assistants) before feeding a resident.

(b) Supervision. A paid feeding assistant must work under the supervision of an RN or an LVN. In an emergency, a paid feeding assistant must call a supervisory nurse for help. A paid feeding assistant can only feed a resident in the dining room.

(c) Resident selection criteria.

(1) The facility must ensure that a paid feeding assistant provides dining assistance only for a resident who has no complicated feeding problems, which include difficulty swallowing, recurrent lung aspirations, and tube or parenteral/IV feedings.

(2) The facility must base resident selection on the interdisciplinary team's assessment and the resident's latest assessment and comprehensive care plan. A resident's comprehensive care plan must reflect the resident's appropriateness for a paid feeding assistant.
Source Note: The provisions of this §554.1113 adopted to be effective June 1, 2004, 29 TexReg 5416; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1115 Requirements for Training of Paid Feeding Assistants]
(a) Minimum training course contents. A state-approved training course for paid feeding assistants must include, at a minimum, 16 hours of training in the following:

(1) feeding techniques;

(2) assistance with feeding and hydration;

(3) communication and interpersonal skills;

(4) appropriate response to resident behavior;

(5) safety and emergency procedures, including the Heimlich maneuver;

(6) infection control;

(7) resident rights; and

(8) recognizing changes in residents that are inconsistent with their normal behavior and the importance of reporting those changes to the supervisory nurse.

(b) Maintenance of records. The facility must maintain a record of all individuals used by the facility as paid feeding assistants who have successfully completed the state-approved training course for paid feeding assistants. At a minimum, documentation must include the date and location of the course, the name of the trainer, and a statement that the course was successfully completed.

(c) Repeat training. If paid feeding assistants seek employment at a facility other than the facility at which they were trained, they will not be required to repeat the state-approved training course if documentation of successful course completion, as outlined in subsection (b) of this section, is given to the hiring facility.
Source Note: The provisions of this §554.1115 adopted to be effective June 1, 2004, 29 TexReg 5416; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1116 Therapeutic Diets]
If a resident requires a therapeutic diet, the attending physician must prescribe the therapeutic diet, unless the physician delegates this task to a qualified dietitian, to the extent allowed by Texas law.
Source Note: The provisions of this §554.1116 adopted to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1201 Physician Services]
A physician must personally approve in writing a recommendation that an individual be admitted to a facility. Each resident must remain under the care of a physician. A physician, physician assistant, or advanced practice registered nurse must provide orders for the resident's immediate care and needs. The facility must ensure that:

(1) the medical care and other health care of each resident is supervised by an attending physician. Any consultations must be ordered by the attending physician;

(2) another physician supervises the medical care and other health care of a resident when the resident's attending physician is unavailable; and

(3) if a child is admitted to the facility:

(A) appropriate pediatric consultative services are utilized, in accordance with the comprehensive assessment and comprehensive care plan; and

(B) a pediatrician or other physician with training or expertise in the clinical care of children with complex medical needs participates in all aspects of the medical care.
Source Note: The provisions of this §554.1201 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1202 Physician Visits]
The physician must:

(1) review, revise, if necessary, and sign orders relating to the resident's total program of care, including medications and treatments, according to the visit schedule required by §19.1203(2) of this subchapter (relating to Frequency of Physician Visits);

(2) write, sign, and date progress notes at each visit;

(3) sign and date all orders, with the exception of influenza and pneumococcal vaccines, which may be administered per physician's standing order after an assessment for contraindications;

(4) write, sign, and date a physician's discharge summary within 20 working days of being notified by the facility of the discharge, except as specified in §19.1912(e) of this chapter (relating to Additional Clinical Record Service Requirements), if the resident has been temporarily discharged for 30 days or less, and readmitted to the same facility; and

(5) provide documentation in the clinical record as specified in §19.1911 and §19.1912 of this chapter (relating to Contents of the Clinical Record and Additional Clinical Record Service Requirements).
Source Note: The provisions of this §554.1202 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1203 Frequency of Physician Visits]
Physician visits must conform to the following schedule:

(1) Licensed-only facility. Each resident must have a medical examination at least annually by the resident's physician and as necessary to meet the needs of the resident. Physician orders must be reviewed and revised as necessary at least once every 60 days, unless the resident's physician specifies, in writing in the resident's clinical record, a different schedule for each review and revision.

(2) Medicaid-certified facilities and Medicare skilled nursing facilities.

(A) The resident must be seen by a physician at least once every 30 days for the first 90 days after admission, and at least once every 60 days thereafter.

(B) A physician visit is considered timely if it occurs not later than ten days after the date the visit was required.

(C) Except as provided in paragraph (3) of this section and §19.1205(c) of this subchapter (relating to Physician Delegation of Tasks), all required visits must be made by the physician personally.

(3) Medicare skilled nursing facilities. At the option of the physician, required visits in Medicare skilled nursing facilities after the initial visit may alternate between personal visits by the physician and visits by a physician assistant or an advanced practice registered nurse in accordance with §19.1205 of this subchapter.
Source Note: The provisions of this §554.1203 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective October 15, 1998, 23 TexReg 10496; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1204 Availability of Physician for Emergency Care]
The facility must provide or arrange for the provision of physician services 24 hours a day, in case of an emergency.
Source Note: The provisions of this §554.1204 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1205 Physician Delegation of Tasks]
(a) In a Medicare skilled nursing facility (SNF), except as specified in subsection (b) of this section, a physician may delegate tasks to a physician assistant, or an advanced practice registered nurse who:

(1) is acting within the scope of practice as defined by state law; and

(2) is under the supervision of the physician.

(b) In a Medicare SNF, a physician may not delegate a task when the regulations specify that the physician must perform it personally, or when the delegation is prohibited under state law or by the facility's own policies.

(c) In a Medicaid nursing facility, any required physician task may also be satisfied when performed by an advanced practice registered nurse or physician assistant who is not an employee of the facility but who is working in collaboration with a physician. Services must be provided in the context of applicable state laws, rules, and regulations governing the practice of an advanced practice registered nurse and physician assistants.

(d) A physician may delegate the task of writing dietary orders to a qualified dietitian who:

(1) is acting within the scope of practice; and

(2) is under the supervision of the physician.

(e) A physician may delegate the task of writing therapy orders to a qualified therapist who:

(1) is acting within the scope of practice; and

(2) is under the supervision of the physician.

(f) The physician assistant or advanced practice registered nurse providing care to a pediatric resident must have training and expertise in the care of children with complex medical needs.
Source Note: The provisions of this §554.1205 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1206 Physician Signatures]
Signature stamps and faxed signed documents are acceptable if used as described in §19.1912(f)(2) of this title (relating to Additional Clinical Record Service Requirements).
Source Note: The provisions of this §554.1206 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective August 1, 2000, 25 TexReg 6779; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1207 Prescription of Psychoactive Medication]
(a) In this section, the following words and terms have the following meanings, unless the context clearly indicates otherwise:

(1) Medication-related emergency--A situation in which it is immediately necessary to administer medication to a resident to prevent:

(A) imminent probable death or substantial bodily harm (emotional or physical) to the resident; or

(B) imminent physical or emotional harm to another because of threats, attempts, or other acts the resident overtly or continually makes or commits.

(2) Psychoactive medication--A medication prescribed for the treatment of symptoms of psychosis or other severe mental or emotional disorders and used to exercise an effect on the central nervous system to influence and modify behavior, cognition, or affective state when treating the symptoms of mental illness. The term includes the following categories when used as described by this subdivision:

(A) anti-psychotics or neuroleptics;

(B) antidepressants;

(C) agents for control of mania or depression;

(D) anti-anxiety agents;

(E) sedatives, hypnotics, or other sleep-promoting drugs; and

(F) psychomotor stimulants.

(b) A person may not administer a psychoactive medication to a resident who does not consent to the prescription unless:

(1) the resident is having a medication-related emergency; or

(2) the person authorized by law to consent on behalf of the resident has consented to the prescription.

(c) Consent to the prescription of psychoactive medication given by a resident, or by a person authorized by law to consent on behalf of the resident, is valid only if:

(1) the consent is given voluntarily and without coercive or undue influence;

(2) the person who prescribes the medication, that person's designee, or the facility's medical director provides the resident and, if applicable, the person authorized by law to consent on behalf of the resident, with a form containing the following information identified as being for the purpose of consent to treatment with psychoactive medication:

(A) the specific condition to be treated;

(B) the beneficial effects on that condition expected from the medication;

(C) the probable clinically significant side effects and risks associated with the medication, as reported in widely available pharmacy databases or the manufacturer's package insert; and

(D) the proposed course of the medication;

(3) the resident and, if appropriate, the person authorized by law to consent on behalf of the resident, are informed in writing that consent may be revoked;

(4) consent is given in writing by a resident or by a person authorized by law to consent on behalf of the resident, on a form prescribed by HHSC, if the prescription is for antipsychotics or neuroleptics; and

(5) the consent is evidenced in the resident's clinical record by:

(A) a signed form prescribed by the facility, or by a statement of the person who prescribes the medication or that person's designee that documents consent was given by the appropriate person and the circumstances under which the consent was obtained; and

(B) the original or a copy of the form described in paragraph (4) of this subsection.

(d) Consent is valid until:

(1) consent is withdrawn; or

(2) the practitioner has discontinued the medication.

(e) For purposes of this rule, a medication will be considered to be discontinued if therapy has been suspended for more than 70 days. If the suspended therapy is resumed within the 70-day period, an oral explanation of side effects should be documented in the clinical record.

(f) The Health and Safety Code, Chapter 313, Consent to Medical Treatment, provides guidance on treatment decisions when a resident is comatose, incapacitated, or otherwise mentally or physically incapable of communication. An ethics committee also may prove helpful in such situations.

(g) A resident's refusal to consent to receive psychoactive medication must be documented in the resident's clinical record.

(h) If a person prescribes psychoactive medication to a resident without the resident's consent because the resident is having a medication-related emergency:

(1) the person must document the necessity of the order in the resident's clinical record in specific medical or behavioral terms; and

(2) treatment of the resident with the psychoactive medication must be provided in the manner, consistent with clinically appropriate medical care, least restrictive of the resident's personal liberty.

(i) A physician, or a person designated by the physician, is not liable for civil damages or an administrative penalty and is not subject to disciplinary action for a breach of confidentiality of medical information for a disclosure of the information provided under subsection (c)(2) of this section made by the resident, or the person authorized by law to consent on behalf of the resident, that occurs while the information is in the possession or control of the resident or the person authorized by law to consent on behalf of the resident.
Source Note: The provisions of this §554.1207 adopted to be effective July 1, 2002, 27 TexReg 4362; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871; amended to be effective January 2, 2022, 46 TexReg 9037.

[§554.1208 Physicians' Reporting Communicable Diseases]
The physician must report all reportable communicable diseases immediately according to the requirements specified in §19.1601(2)(D) of this title (relating to Infection Control).
Source Note: The provisions of this §554.1208 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1210 Certification and Recertification Requirements in Medicaid-Certified Facilities]
(a) A recipient's physician must certify and recertify the recipient's need for nursing facility care in accordance with this section.

(b) A recipient's physician must certify the recipient's need for nursing facility care no later than 20 days after the recipient's admission to the facility.

(c) A recipient's physician must recertify the recipient's need for nursing facility care every 180 days that the recipient remains in the nursing facility after the first certification.

(d) A nursing facility must:

(1) ensure that each certification and recertification statement states: "I hereby certify that this resident requires/continues to require nursing facility care for 180 days"; and

(2) keep the physician's certification and recertification statements in the recipient's clinical record.
Source Note: The provisions of this §554.1210 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective July 1, 1996, 21 TexReg 4408; amended to be effective September 1, 2008, 33 TexReg 7264; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1300 Purpose]
(a) This subchapter contains the requirements a facility must comply with to provide rehabilitative services to a resident.

(b) Subchapter BB (relating to Nursing Facility Responsibilities Related to Preadmission Screening and Resident Review (PASRR) contains the requirements a facility must comply with to provide nursing facility specialized services to a designated resident, as defined in §19.2703 of this chapter (relating to Definitions).
Source Note: The provisions of this §554.1300 adopted to be effective September 10, 2017, 42 TexReg 4468; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1301 Provision of Rehabilitative Services]
(a) If rehabilitative services are required in a resident's comprehensive care plan, the facility must:

(1) provide the required services; or

(2) obtain the required services from an outside resource, in accordance with §19.1906 of this chapter (relating to Use of Outside Resources).

(b) A facility must ensure that rehabilitative services:

(1) are provided to a resident under a comprehensive care plan based on a physician's diagnosis and orders; and

(2) are documented in the resident's clinical record.
Source Note: The provisions of this §554.1301 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective September 10, 2017, 42 TexReg 4468; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1302 Qualifications]
A facility must ensure that rehabilitative services are provided by:

(1) an individual who:

(A) is a speech-language pathologist licensed by the Texas Department of Licensing and Regulation; or

(B) meets the educational requirements and has accumulated, or is in the process of accumulating, the supervised professional experience required to be licensed as a speech-language pathologist;

(2) an individual who:

(A) is an audiologist licensed by the Texas Department of Licensing and Regulation; or

(B) meets the educational requirements and has accumulated, or is in the process of accumulating, the supervised professional experience required to be licensed as an audiologist;

(3) an occupational therapist licensed by the Texas Board of Occupational Therapy Examiners;

(4) an occupational therapy assistant licensed by the Texas Board of Occupational Therapy Examiners;

(5) a physical therapist licensed by the Texas Board of Physical Therapy Examiners;

(6) a physical therapist assistant licensed by the Texas Board of Physical Therapy Examiners; or

(7) a qualified mental health professional - community services.
Source Note: The provisions of this §554.1302 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective September 10, 2017, 42 TexReg 4468; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1304 Rehabilitative Services in Medicaid-certified Facilities]
(a) Rehabilitative services covered by Medicaid are physical therapy services, occupational therapy services, and speech therapy services.

(b) A facility must ensure that rehabilitative services covered by Medicaid are provided to a resident to evaluate or treat a function that has been impaired by illness or injury. Rehabilitative services must be provided with the expectation that the resident's functioning will improve measurably in 30 days.
Source Note: The provisions of this §554.1304 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective November 1, 2002, 27 TexReg 9387; amended to be effective September 10, 2017, 42 TexReg 4468; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1306 Fee-for-Service Payment for Rehabilitative Services]
(a) HHSC pays a facility for rehabilitative services provided to a Medicaid eligible resident based on fees determined in accordance with 1 TAC §355.313 (relating to Reimbursement Methodology for Rehabilitative and Specialized Services).

(b) A facility must ensure that rehabilitative services provided to a resident eligible for Medicaid are:

(1) ordered by the resident's attending physician; and

(2) except as provided in subsection (c)(1) of this section, pre-certified by DADS.

(c) A session is one physical, occupational, or speech therapy service provided to one resident. HHSC pays for an evaluation at the same rate as a session.

(1) HHSC pays for one evaluation that is not pre-certified by DADS.

(2) To have an additional evaluation pre-certified by DADS, a facility must submit documentation by the attending physician that indicates the resident has a new illness or injury, or a substantive change in a pre-existing condition.

(d) A facility must submit a complete and accurate claim for services that is received by DADS within 12 months after the last day services are provided in accordance with a single pre-certification by DADS.

(e) A resident whose request for pre-certification of Medicaid rehabilitative services is denied may request a fair hearing in accordance with 1 TAC Chapter 357, Subchapter A (relating to Uniform Fair Hearing Rules).
Source Note: The provisions of this §554.1306 adopted to be effective November 1, 2002, 27 TexReg 9387; amended to be effective February 1, 2008, 33 TexReg 761; amended to be effective September 10, 2017, 42 TexReg 4468; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1401 Dental Services]
(a) The facility must assist a resident in obtaining routine and 24-hour emergency dental care.

(1) At the time of admission, the facility must obtain the name of the resident's preferred dentist and record the name in the clinical record.

(2) At least annually, the facility must ask each resident and resident representative if the resident desires a dental examination at the resident's expense.

(3) The facility must make all reasonable efforts to arrange for a dental examination for each resident who desires one.

(4) The facility is not liable for the cost of the resident's dental care.

(5) Licensed-only facilities must maintain a list of local dentists for a resident who requires a dentist.

(b) Medicaid-certified facilities also must provide or obtain from an outside resource, in accordance with §19.1906 of this chapter (relating to Use of Outside Resources), the following dental services to meet the needs of each resident:

(1) Emergency dental services, which are limited to procedures necessary to control bleeding, relieve pain, and eliminate acute infection; operative procedures which are required to prevent the imminent loss of teeth; treatment of injuries to the teeth or supporting structures.

(A) Covered emergency dental procedures include:

(i) alleviation of extreme pain in oral cavity associated with serious infection or swelling;

(ii) repair of damage from loss of tooth due to trauma (acute care only, no restoration);

(iii) open or closed reduction of fracture of the maxilla or mandible;

(iv) repair of laceration in or around oral cavity;

(v) excision of neoplasms, including benign, malignant and premalignant lesions, tumors and cysts;

(vi) incision and drainage of cellulitis;

(vii) root canal therapy, for which payment is subject to dental necessity review and pre- and post-operative x-rays are required; and

(viii) extractions: single tooth, permanent; single tooth, primary; supernumerary teeth; soft tissue impaction; partial bony impaction; complete bony impaction; surgical extraction of erupted tooth or residual root tip.

(B) Routine restorative procedures are not considered emergency procedures. Dental services not covered include:

(i) cleaning;

(ii) filling teeth with amalgam composite, glass ionomer, or any other restorative material;

(iii) cast or preformed crowns (capping);

(iv) restoration of carious or noncarious permanent or primary teeth, including those requiring root canal therapy;

(v) replacement or repositioning of teeth;

(vi) services to the alveolar ridges or periodontium of the maxilla and the mandible, except for procedures covered under subparagraph (A) of this paragraph; and

(vii) complete or partial dentures.

(2) Assistance to the resident, if necessary:

(A) in making appointments; and

(B) by arranging for transportation to and from the dentist's office.

(3) Prompt referral, within three days, of a resident with lost or damaged dentures for dental services. If a referral does not occur within three days, the facility must provide documentation of what they did to ensure the resident could still eat and drink adequately while awaiting dental services and the extenuating circumstances that led to the delay.

(4) Coordination of dental services for pediatric residents age 12 months to 21 years, in accordance with Texas Health Steps (THSteps) guidelines.

(c) The facility must have a written policy identifying those circumstances when the loss or damage of dentures is the facility's responsibility and may not charge a resident for the loss or damage of dentures determined in accordance with facility policy to be the facility's responsibility.

(d) Medicaid-certified facilities are not required to provide routine dental services.

(e) Payment for services provided on the teeth, gums, alveolar ridges, and supporting structures are not a benefit of the Texas Medicaid Program; however, recipients with applied income may use incurred medical expenses to pay for routine dental services and appliances.
Source Note: The provisions of this §554.1401 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1402 Medicaid-certified Nursing Facility Emergency Dental Services]
(a) Emergency dental services. The Texas Department of Human Services (DHS) will reimburse nursing facilities the cost of emergency dental services provided to eligible Medicaid residents residing in Medicaid-contracted facilities or distinct parts.

(1) Recipients must be 21 years of age or older.

(2) Dental care for recipients under the age of 21 is covered under the Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) program.

(3) Services reimbursed are subject to the limitations specified in §19.1401(b) of this title (relating to Dental Services).

(4) Emergency dental services may be provided only if the attending physician orders a dental consultation. See §19.1201 of this title (relating to Physician Services).

(b) Dental providers. Emergency dental services must be provided by a dentist licensed by the Texas State Board of Dental Examiners who, if not employed by the facility, contracts with the facility according to the specifications outlined in §19.1906 of this title (relating to Use of Outside Resources).

(c) Reimbursement for Emergency Dental Services. The cost of emergency dental services provided to eligible Medicaid residents residing in nursing facilities will be reimbursed to facilities, provided that the services are not reimbursable by the Medicaid claims processor or the EPSDT program.

(d) Payment of Claims.

(1) The facility must accept payment by DHS as payment in full for services. Neither the dentist nor the facility may charge an additional fee to the recipient, his family, or his trust fund, except that the dentist may charge the recipient for services that:

(A) the recipient requests; and

(B) are not reimbursable by the Texas Medical Assistance Program.

(2) Payments for emergency dental services are the lower of the:

(A) dentist's usual fee; or

(B) maximum fee as determined by the Texas Health and Human Services Commission (HHSC).

(3) DHS reimburses facilities for services properly rendered in accordance with applicable laws, regulations, and operational instructions. DHS may withhold or suspend payment for services that are not properly rendered.

(4) Nursing Facility Emergency Dental Services makes no payment for services that are available under any other Texas Medical Assistance Program.

(5) Complete and accurate claims for services must be received within 12 months from the date of service.

(6) Claims for services delivered before the effective date of this section must be submitted within 12 months of the effective date of this section.

(7) Adjustments to claims must be received by DHS's claims processor during the applicable 12-month period. Claims and adjustments rejected or denied during the 12-month period through no fault of the dentist may be paid upon approval by DHS.
Source Note: The provisions of this §554.1402 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective November 1, 2002, 27 TexReg 9387; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1501 Pharmacy Services]
A licensed-only facility must assist the resident in obtaining routine drugs and biologicals and make emergency drugs readily available, or obtain them under an agreement described in §19.1906 of this chapter (relating to Use of Outside Resources). A Medicaid-certified facility must provide routine and emergency drugs and biologicals to its residents, or obtain them under an agreement described in §19.1906 of this chapter.

(1) Methods and procedures. The facility may permit unlicensed personnel to administer drugs, but only under the general supervision of a licensed nurse. The unlicensed individual must be a nursing student, a medication aide student, or a medication aide with a current permit issued by HHSC.

(2) Accuracy in service delivery. A facility must provide pharmaceutical services (including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of each resident.

(3) Service consultation. The facility must employ or obtain the services of a pharmacist, currently licensed by the Texas State Board of Pharmacy and in good standing, who:

(A) provides consultation on all aspects of the provision of pharmacy services in the facility;

(B) establishes a system of records of receipt and disposition of all controlled drugs in sufficient detail to enable an accurate reconciliation;

(C) determines that drug records are in order and that an account of all controlled drugs is maintained and periodically reconciled; and

(D) adheres to requirements in §19.1503 of this subchapter (relating to Additional Supervision and Consultation Requirements).

(4) Drug regimen review.

(A) The drug regimen of each resident must be reviewed at least once a month by a licensed pharmacist. The consultant pharmacist's drug regimen review must be maintained in the resident's clinical record. This review must include a review of the resident's medical chart.

(B) A psychotropic drug is any drug that affects brain activities associated with mental processes and behavior. Psychotropic drugs include psychoactive medications as defined in §19.1207 of this chapter (relating to Prescription of Psychoactive Medication). These drugs include drugs in the following categories:

(i) anti-psychotic;

(ii) anti-depressant;

(iii) anti-anxiety; and

(iv) hypnotic.

(C) The pharmacist must report any irregularities to the attending physician and the director of nursing, and these reports must be acted upon.

(i) Irregularities include any drug that meets the criteria set forth in paragraph (5) of this subsection.

(ii) Any irregularities noted by the pharmacist during this review must be documented on a separate, written report that is sent to the attending physician and the facility's medical director and director of nursing and lists the resident's name, the relevant drug, and the irregularity the pharmacist identified.

(iii) The attending physician must document in the resident's clinical record that the identified irregularity has been reviewed and what, if any, action has been taken to address it. If there is to be no change in the medication, the attending physician must document the physician's rationale in the resident's clinical record.

(D) The facility must develop and maintain written policies and procedures for the monthly drug regiment review that include time frames for the different steps in the process and steps the pharmacist must take when the pharmacist identifies an irregularity that requires urgent action to protect the resident.

(5) Unnecessary Drugs. Each resident's drug regimen must be free from unnecessary drugs. An unnecessary drug is any drug when used:

(A) in excessive dose (including duplicate drug therapy);

(B) for excessive duration;

(C) without adequate monitoring;

(D) without adequate indications for its use;

(E) in the presence of adverse consequences which indicate the dose should be reduced or discontinued; or

(F) in any combination of the reasons stated in subparagraphs (A) - (E) of the paragraph.

(6) Psychotropic drugs. Based on a comprehensive assessment of a resident, the facility must ensure that:

(A) a resident who has not used psychotropic drugs is not given these drugs unless the medication is necessary to treat a specific condition as diagnosed and documented in the resident's clinical record;

(B) a resident who uses psychotropic drugs receives gradual dose reductions and behavioral interventions, unless clinically contraindicated, in an effort to discontinue use of these drugs;

(C) a resident does not receive psychotropic drugs pursuant to a PRN order unless that medication is necessary to treat a diagnosed specific condition that is documented in the resident's clinical record; and

(D) PRN orders for psychotropic drugs are limited to 14 days. Except as provided in subparagraph (E) of this paragraph, if the attending physician or prescribing practitioner believes that it is appropriate for the PRN order to be extended beyond 14 days, the physician must document the rationale in the resident's clinical record and indicate the duration for the PRN order.

(E) PRN orders for anti-psychotic drugs are limited to 14 days and cannot be renewed unless the attending physician or prescribing practitioner evaluates the resident for the appropriateness of the medication.

(7) Medication errors. The facility must ensure that:

(A) the medication error rates are not 5 percent or greater; and

(B) the residents are free of any significant medication errors.

(8) Labeling of drugs and biologicals. Drugs and biologicals used in the facility must be labeled in accordance with currently accepted professional principals and in compliance with the state laws and regulations, including the appropriate accessory and cautionary instructions and the expiration date when applicable.

(9) Storage of drugs and biologicals.

(A) In accordance with state and federal laws, the facility must store all drugs and biologicals in locked compartments under proper temperature controls and permit only authorized personnel to have access to the keys.

(B) The facility must provide separately locked, permanently affixed compartments for storage of controlled drugs, listed in Schedule II of the Comprehensive Drug Abuse Prevention and Control Act of 1976, and of other drugs subject to abuse, except when the facility uses single-unit-package drug distribution systems in which the quantity stored is minimal and a missing dose can be readily detected.
Source Note: The provisions of this §554.1501 adopted to be effective May 1, 1995, 20 TexReg 2054; amended to be effective July 1, 2002, 27 TexReg 5524; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1502 Choice of Pharmacy Provider]
(a) Unless the facility is paying for the drugs and biologicals, the resident's choice of pharmacy provider and any changes in his choice must be recorded on appropriate forms maintained by the facility.

(b) A Medicaid-certified facility must have written agreements with its provider pharmacies that define required services. These agreements will not be considered to abridge the resident's freedom of choice of pharmacy services when they require labeling, packaging, and a drug-distribution system according to facility policy. The drug-distribution system must be accessible to all pharmacies willing to meet the distribution system requirements. The agreements must require the following:

(1) that the resident's pharmacy services be provided by a pharmacy on a 24-hour basis for emergency medications; and

(2) that the resident's medications be delivered to the facility on a timely and reasonable basis.

(c) The resident's choice of pharmacy provider must be in accordance with §19.406(c) of this title (relating to Free Choice).
Source Note: The provisions of this §554.1502 adopted to be effective May 1, 1995, 20 TexReg 2054; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1503 Additional Supervision and Consultation Requirements]
(a) The facility must provide pharmaceutical services under the responsibility and direction of the consultant pharmacist and the director of nursing.

(b) The facility must ensure that notes on the monthly visits by the consulting pharmacist are entered in the resident's clinical record.

(c) The number of hours per month the consultant pharmacist devotes to the pharmaceutical services for ordering, storage, administration, disposal, recordkeeping (documentation) of drugs and medications, and drug regimen review must be sufficient to meet the needs of the residents.

(d) A record of consultant pharmacist services, consultations, and recommendations for pharmacy procedure must be maintained at the facility.
Source Note: The provisions of this §554.1503 adopted to be effective May 1, 1995, 20 TexReg 2054; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1504 Drug Security]
(a) The facility must establish procedures for storing and disposing of drugs and biologicals in accordance with federal, state, and local laws.

(b) When not in use, a medication cart must be secured in a designated area.

(c) Small multiple-dose drug containers which are placed into another container must be labeled in a manner so that, if the two containers become separated, the small drug container still has a strip label attached containing the name of the resident and the prescription number.

(d) Self-administered medications may be kept in a locked cabinet in the resident's room. When medications are self-administered, the facility remains responsible for medication security, accurate information, and medication compliance.

(e) The facility must store each resident's drugs in their original containers.

(f) The facility must store medications under appropriate conditions of sanitation, temperature, light, moisture, ventilation, segregation, and security.

(g) Medications of deceased residents, medications that have passed the expiration date, and medications that have been discontinued must be securely stored and reconciled. These medications must be disposed of according to federal and state laws or rules on a quarterly basis. Discontinued drugs may be reinstated if reordered prior to destruction. These medications cannot be given to a family member or representative.

(h) When the directions for administration of a resident's medication have changed, but the existing supply of medication can still be administered accurately, the medication must not be destroyed. The facility must affix a change-of-direction ancillary sticker or similar system and use the remaining medication. The medication label must be updated at the time of next dispensing.
Source Note: The provisions of this §554.1504 adopted to be effective May 1, 1995, 20 TexReg 2054; amended to be effective September 1, 2003, 28 TexReg 6939; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1506 Drug Orders]
(a) All drugs must be prescribed by the resident's physician or consulting physician, dentist, podiatrist, or other individual allowed by law to prescribe. If drug orders are verbal, they must be taken by a licensed nurse, pharmacist, physician assistant or a physician, and immediately recorded and signed by the person receiving the order. All drug orders must be counter-signed by the prescriber and returned to the chart in a timely manner.

(b) The facility may permit verbal orders for Schedule II drugs only in an emergency.

(c) Medications must be ordered and reordered on a timely basis so that no resident misses a dose.

(d) The facility must have written policies and procedures for stopping the administration of drugs.
Source Note: The provisions of this §554.1506 adopted to be effective May 1, 1995, 20 TexReg 2054; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1507 Drug Release]
(a) Medications must be released to residents only on the written or verbal authorization of the attending physician. When a resident is transferred directly to another nursing facility or discharged to home, the resident's medications must be released to the new facility or to the resident or his family, respectively.

(b) If a resident is leaving the facility on a furlough, enough prescription drugs to last throughout the furlough must be released. The facility must inventory Schedule II, III, and IV drugs in and out. Nonschedule drugs should be listed by name. The pharmacist must handle any division of the prescription, and all information on the original prescription label must appear on the furlough medication supply.
Source Note: The provisions of this §554.1507 adopted to be effective May 1, 1995, 20 TexReg 2054; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1508 Drug Administration]
(a) The facility must establish drug administration procedures to ensure that:

(1) drugs to be administered are checked against the physician's orders;

(2) the resident is identified before the administration of a drug;

(3) each resident has an individual medication record, where the dose of drug administered is properly recorded by the person who administered the drug;

(4) drugs and biologicals are prepared and administered by the same person, except under unit-of-use package distribution systems and as outlined in §19.418 of this title (relating to Self-Administration of Drugs); and

(5) drugs prescribed for one resident must not be administered to any other person.

(b) The facility nursing staff must report drug errors and adverse drug reactions to the resident's physician in a timely manner, as warranted by an assessment of the resident's condition, and record them in the resident's record. An incident report must be completed in accordance with §19.1923 of this title (relating to Incident or Accident Reporting). Medication errors include, but are not limited to, administering the wrong medication, administering at the wrong time, administering the wrong dosage strength, administering by the wrong route, omitting a medication, and/or administering to the wrong resident.

(c) Nursing facilities must have current medication reference texts or sources, including information on pediatric medications, dosages, sites, routes, techniques of drug administration, desired effects, and possible side effects, if facilities have pediatric residents.

(d) A licensed nurse may exercise professional judgment in the crushing of a medication, providing that the medication is not a time-released or enteric coated medication.

(1) If there is any question about crushing a medication for a resident, the licensed nurse must check with the treating physician, dispensing pharmacist, or consultant pharmacist.

(2) The crushed medication should be administered as soon as feasible once it has been added to another substance.
Source Note: The provisions of this §554.1508 adopted to be effective May 1, 1995, 20 TexReg 2054; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1509 Controlled Substances]
The facility must adhere to the following procedures governing the use of drugs covered by the Controlled Substances Act:

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

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

(3) Schedule V drugs are exempt from the requirements in paragraphs (1) and (2) of this section.
Source Note: The provisions of this §554.1509 adopted to be effective May 1, 1995, 20 TexReg 2054; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1510 Emergency Medication Kits]
Stocks of inventoried emergency medications may be kept in facilities.

(1) Emergency medication kits must be maintained in compliance with 22 TAC §291.121(b) (relating to Remote Pharmacy Services), with the exception of emergency medication kits in veterans homes, as defined by Natural Resources Code, §164.002. In veterans homes, a United States Department of Veterans Affairs pharmacy or another federally operated pharmacy may maintain emergency medication kits.

(2) Facilities must have contracts with the pharmacy that provides the emergency medication kit. The contract must outline the services to be provided by the pharmacy and the responsibilities and accountabilities of each party in fulfilling the terms of the contract in compliance with federal and state laws and regulations.
Source Note: The provisions of this §554.1510 adopted to be effective May 1, 1995, 20 TexReg 2054; amended to be effective October 15, 1998, 23 TexReg 10496; amended to be effective May 1, 2002, 27 TexReg 1534; amended to be effective September 1, 2003, 28 TexReg 6939; amended to be effective October 30, 2011, 36 TexReg 7174; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1601 Infection Control]
(a) General. The facility must establish and maintain an infection prevention and control program designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of communicable diseases and infections.

(b) Infection prevention and control program (IPCP). The facility must establish an IPCP and conduct an annual review, effective November 28, 2019, of the IPCP and update the program, as necessary. The Quality Assessment and Assurance Committee, as described in §554.1917 of this chapter (relating to Quality Assessment and Assurance) monitors the IPCP. The IPCP must include:

(1) a system for preventing, identifying, reporting, investigating, and controlling infections and communicable diseases for all residents, staff, volunteers, visitors, and other individuals providing services under a contractual arrangement based upon the facility assessment conducted according to §554.1931 of this chapter (relating to Facility Assessment), and following accepted national standards;

(2) written standards, policies, and procedures for the program, which must include:

(A) a system of surveillance designed to identify possible communicable diseases or infections, including multidrug-resistant organisms, before they can spread to other persons in the facility;

(B) when and to whom possible incidents of communicable diseases or infections should be reported;

(C) standard and transmission-based precautions to be followed to prevent spread of infections;

(D) when and how isolation should be used for a resident; including:

(i) the type and duration of the isolation, depending upon the infectious agent or organism involved; and

(ii) a requirement that the isolation should be the least restrictive possible for the resident under the circumstances;

(E) the circumstances under which the facility must prohibit employees with a communicable disease or infected skin lesions from direct contact with a resident or a resident's food, if direct contact will transmit the disease; and

(F) the hand hygiene procedures to be followed by staff involved in direct resident contact;

(3) an antibiotic stewardship program that includes antibiotic use protocols and a system to monitor antibiotic use;

(4) procedures for making rapid influenza diagnostic tests available to facility residents;

(5) a system for recording incidents identified under the facility's IPCP and the corrective actions taken by the facility; and

(6) acceptable accommodations for a resident with a communicable disease according to current practices and policies for infection control.

(c) Infection preventionist. Effective November 28, 2019, the facility must designate one or more individuals as the infection preventionist (IP) who is responsible for the facility's IPCP. The individual designated as the IP, or at least one of the individuals if there is more than one IP, must be a member of the facility's Quality Assessment and Assurance Committee and report to the committee on the IPCP on a regular basis. The IP must:

(1) have primary professional training in nursing, medical technology, microbiology, epidemiology, or other related field;

(2) be qualified by education, training, experience or certification;

(3) work at least part-time at the facility; and

(4) have completed specialized training in infection prevention and control.

(d) Communicable Diseases.

(1) Policies. The facility must have and implement written policies for the control of communicable diseases in employees and residents and must maintain evidence of compliance with local and state health codes and ordinances regarding employee and resident health status.

(2) Reporting. The name of any resident with a reportable disease as specified in Title 25, Chapter 97, Subchapter A (relating to Control of Communicable Diseases), must be reported immediately to the city health officer, county health officer, or health unit director having jurisdiction, and appropriate infection control procedures must be implemented as directed by the local health authority.

(3) Tuberculosis.

(A) The facility must conduct and document an annual review that assesses the facility's current risk classification according to the current CDC Guidelines for Preventing the Transmission of Mycobacterium Tuberculosis in Health Care Settings.

(B) The facility must screen all employees before providing services in the facility, according to CDC guidelines. The facility must require all persons providing services under an outside resource contract to provide evidence of a current tuberculosis screening prior to providing services in the facility. The facility must document or keep a copy of the evidence provided.

(C) If the facility determines or suspects that an employee or person providing services under an outside resource contract has been exposed to or has a positive screening for a communicable disease, the facility must respond according to the current CDC guidelines and keep documentation of the action taken.

(D) If the facility determines that an employee or a person providing services under an outside resource contract has been exposed to a communicable disease, the facility must conduct and document a reassessment of the risk classification. The facility must conduct and document subsequent screening based upon the reassessed risk classification.

(E) The facility must screen all residents at admission in accordance with the attending physician's recommendations and current CDC guidelines. If the facility determines or suspects that a resident has been exposed to a communicable disease or has a positive screening, the facility must respond according to the current CDC guidelines and attending physician's recommendations, and keep documentation of the response.

(e) Vaccinations.

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

(A) The policy must:

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

(ii) specify the vaccines an employee, contractor, or other individual with privileges to provide direct resident care is required to receive in accordance with clause (i) of this subparagraph;

(iii) include procedures for the facility to verify that an employee, contractor, or other individual with privileges to provide direct resident care has complied with the policy;

(iv) include procedures for the facility to exempt an employee, contractor, or other individual with privileges to provide direct resident care from the required vaccines for the medical conditions identified as contraindications or precautions by the CDC;

(v) for an employee, contractor, or other individual with privileges to provide direct resident care who is exempt from the required vaccines, include procedures the employee, contractor, or other individual must follow to protect residents from exposure to vaccine preventable diseases, such as the use of protective equipment, such as gloves and masks, based on the level of risk the employee, contractor, or other individual presents to residents by the employee's, contractor's, or other individual's routine and direct exposure to residents;

(vi) prohibit discrimination or retaliatory action against an employee, contractor, or other individual with privileges to provide direct resident care who is exempt from the required vaccines for the medical conditions identified as contraindications or precautions by the CDC, except that required use of protective medical equipment, such as gloves and masks, may not be considered retaliatory action;

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

(viii) include disciplinary actions the facility may take against an employee, contractor, or other individual with privileges to provide direct resident care who fails to comply with the policy.

(B) The policy may:

(i) include procedures for an employee, contractor, or other individual with privileges to provide direct resident care to be exempt from the required vaccines based on reasons of conscience, including religious beliefs; and

(ii) prohibit an employee, contractor, or other individual with privileges to provide direct resident care who is exempt from the required vaccines from having contact with residents during a public health disaster, as defined in Texas Health and Safety Code, §81.003 (relating to Definitions).

(2) A facility must offer vaccinations to a resident in accordance with an immunization schedule adopted by the Advisory Committee on Immunization Practices of the CDC.

(A) Pneumococcal vaccinations for residents. The facility must offer pneumococcal vaccination to a resident 65 years of age or older who has not received the vaccination and to a resident younger than 65 years of age, who has not received the vaccination but is a candidate for it because of chronic illness. A pneumococcal vaccination must be offered to a current resident of a facility and to a new resident at the time of admission. A vaccination must be completed unless a physician has indicated that the vaccination is medically contraindicated or the resident refuses the vaccination. The facility must develop and implement policies and procedures to ensure that:

(i) before offering the pneumococcal immunization, each resident or resident representative receives education regarding the benefits and potential side effects of the pneumococcal vaccination;

(ii) each resident is offered a pneumococcal immunization, unless the immunization is medically contraindicated or the resident has already been immunized;

(iii) the resident or the resident representative has the opportunity to refuse immunization; and

(iv) the resident's clinical record includes documentation that indicates:

(I) that the resident or the resident representative was provided education regarding the benefits and potential side effects of pneumococcal immunization;

(II) that the resident either received the pneumococcal immunization or did not receive the pneumococcal immunization due to medical contraindication or refusal; and

(III) the date of the receipt or refusal of the pneumococcal vaccination.

(v) Based on an assessment and practitioner recommendation, a second pneumococcal vaccination may be given five years after the first pneumococcal vaccination, unless medically contraindicated or the resident or the resident representative refuses the second vaccination.

(B) Influenza vaccinations for residents and employees. The facility must offer an influenza vaccination to a resident and an employee in contact with residents, unless the vaccination is medically contraindicated by a physician or the employee or resident has refused the vaccination.

(i) Influenza vaccinations for all residents and employees in contact with a resident must be completed by November 30 of each year. Employees hired or residents admitted after this date and during the influenza season (through March of each year) must receive influenza vaccinations, unless medically contraindicated by a physician or the employee, the resident, or the resident representative refuses the vaccination.

(ii) The facility must develop and implement policies and procedures that ensure that:

(I) before offering the influenza immunization, each resident or resident representative receives education regarding the benefits and potential side effects of the influenza vaccination; and

(II) the resident's clinical record includes documentation that indicates:

(-a-) that the resident or the resident representative was provided education regarding the benefits and potential side effects of influenza immunization;

(-b-) that the resident either received the influenza immunization or did not receive the influenza immunization due to medical contraindications or refusal; and

(-c-) the date of the receipt or refusal of the annual influenza vaccination.

(C) Hepatitis B vaccinations for employees. The facility must develop a method to identify employees at risk of directly contacting blood or potentially infectious materials. The facility must offer an employee identified as being at risk of directly contacting blood or potentially infectious materials a hepatitis B vaccine within 10 days of employment. If the employee initially declines the hepatitis B vaccination but at a later date, while still at risk of directly contacting blood or potentially infectious materials, decides to accept the vaccination, the facility must make the vaccination available within 10 days after the employee decides to accept that vaccination.

(f) Linens. Personnel must handle, store, process, and transport linens so as to prevent the spread of infection and in accordance with §554.325 of this chapter (relating to Linen).

(g) The Quality Assessment and Assurance Committee as described in §554.1917 of this chapter (relating to Quality Assessment and Assurance) will monitor the Infection Prevention and Control Program.
Source Note: The provisions of this §554.1601 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective August 1, 2000, 25 TexReg 6779; amended to be effective October 30, 2011, 36 TexReg 7174; amended to be effective June 1, 2012, 37 TexReg 3862; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871; amended to be effective January 2, 2022, 46 TexReg 9037.

[§554.1602 Universal Precautions]
Universal precautions must be used in the care of all residents. Facilities are responsible for complying with Occupational Safety Hazards Administration (OSHA) regulations found at 29 Code of Federal Regulations §1910.1030 (relating to Bloodborne Pathogens).
Source Note: The provisions of this §554.1602 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1701 Physical Environment]
The facility must be designed, constructed, equipped, and maintained to protect the health and ensure the safety of residents, personnel, and the public.

(1) Life safety from fire.

(A) The facility must meet the applicable provisions of NFPA 101 as designated by the federal law and regulations.

(B) After consideration of the findings of HHSC, CMS may waive specific provisions of NFPA 101 which, if rigidly applied, would result in unreasonable hardship on the facility, but only if the waiver does not adversely affect the health and safety of residents or personnel.

(2) Emergency power.

(A) An emergency electrical power system must supply power adequate at least for lighting all entrances and exits; equipment to maintain the fire detection, alarm, and extinguishing systems; and any systems or equipment whose failure is likely to cause major injury or death to a resident if the normal electrical supply is interrupted.

(B) When systems or equipment whose failure is likely to cause major injury or death to a resident are used, the facility must provide emergency electrical power with an emergency generator defined in NFPA 99 located on the premises.

(3) Space and equipment. The facility must:

(A) provide sufficient space and equipment in dining, health services, recreation, living, and program areas to enable staff to provide residents with needed services as required by these standards and as identified in each resident's assessment and plan of care;

(B) maintain all essential mechanical, electrical, and patient care equipment in safe operating condition; and

(C) conduct regular inspections of all bed frames, mattresses, and bed rails, if any, as part of a regular maintenance program to identify areas of possible entrapment. When bed rails and mattresses are used and purchased separately from the bed frame, the facility must ensure that the bed rails, mattress, and bed frame are compatible.

(4) Resident rooms. Resident rooms must be designed and equipped for adequate nursing care, comfort, and privacy of residents.

(A) Bedrooms must:

(i) accommodate no more than four residents for a facility that receives approval of construction or reconstruction plans by state and local authorities or are newly certified before November 28, 2016;

(ii) accommodate no more than two residents for a facility that receives approval of construction or reconstruction plans by state and local authorities or are newly certified on or after November 28, 2016;

(iii) measure at least 80 square feet per resident in multiple resident bedrooms and at least 100 square feet in single resident rooms;

(iv) have direct access to an exit corridor;

(v) be designed or equipped to ensure full visual privacy for each resident;

(vi) in facilities initially certified after March 31, 1992, except in private rooms, have ceiling-suspended curtains for each bed, which extend around the bed to provide total visual privacy, in combination with adjacent walls and curtain;

(vii) have at least one window to the outside; and

(viii) have a floor at or above grade level.

(B) The facility must provide each resident with:

(i) a separate bed of proper size and height for the safety and convenience of the resident;

(ii) a clean, comfortable mattress;

(iii) bedding appropriate to the weather and climate; and

(iv) functional furniture appropriate to the resident's needs and individual private closet space in the resident's bedroom with clothes racks and shelves accessible to the resident.

(C) HHSC may permit variations in requirements specified in paragraph (1)(A) and (B) of this section relating to rooms in individual cases when the facility demonstrates in writing that the variations:

(i) are required by the special needs of the residents; and

(ii) will not adversely affect residents' health and safety.

(5) Bathroom. Each resident room must be equipped with or located near toilet and bathing facilities. For a facility that receives approval of construction from state and local authorities or are newly certified on or after November 28, 2016, each resident room must have its own bathroom equipped with at least a commode and sink.

(6) Nurse call system. The facility must be adequately equipped to allow residents to call for staff assistance through a communication system which relays the call directly to a staff member or to a centralized staff work area:

(A) before November 28, 2019, from each resident's room;

(B) beginning November 28, 2019, from each resident's beside; and

(C) from toilet and bathing facilities.

(7) Dining and resident activities. The facility must provide one or more rooms designated for resident dining and activities. These rooms must be:

(A) well-lighted;

(B) well ventilated, with nonsmoking areas identified;

(C) adequately furnished; and

(D) sufficiently spacious to accommodate all activities.

(8) Other environmental conditions. The facility must provide a safe, functional, sanitary, and comfortable environment for residents, staff, and the public. The facility must:

(A) establish procedures to ensure that water is available to essential areas when there is a loss of normal water supply;

(B) have adequate outside ventilation by means of windows, mechanical ventilation, or a combination of the two;

(C) equip corridors with firmly secured handrails on each side; and

(D) maintain an effective pest control program so that the facility is free of pests and rodents.

(E) establish policies, according to applicable federal, state, and local laws and regulations, regarding smoking, smoking areas, and smoking safety that also take into account non-smoking residents.
Source Note: The provisions of this §554.1701 adopted to be effective July 1, 1996, 21 TexReg 4408; amended to be effective March 22, 2018, 43 TexReg 1646; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1901 Administration]
A nursing facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.

(1) Licensure. A nursing facility (NF) must be licensed by HHSC as described in §19.201 of this chapter (relating to Criteria for Licensing).

(2) Compliance with federal, state, and local laws and professional standards. The facility must operate and provide services in compliance with all applicable federal, state, and local laws, regulations, and codes, and with accepted professional standards and principles that apply to professionals providing services in such a facility.

(3) Medicaid-certified facilities' relationship to other Health and Human Services regulations.

(A) In addition to compliance with the regulations set forth in this chapter, as Medicaid providers, facilities are obliged to meet the applicable provisions of other federal regulations, including those pertaining to:

(i) nondiscrimination on the basis of race, color, or national origin (45 CFR, Part 80);

(ii) nondiscrimination on the basis of disability (45 CFR, Part 84);

(iii) nondiscrimination on the basis of age (45 CFR, Part 91);

(iv) nondiscrimination on the basis of race, color, national origin, sex, age, or disability (45 CFR, Part 92);

(v) protection of human subjects of research (45 CFR, Part 46);

(vi) protection from fraud and abuse (42 CFR, Part 455); and

(vii) protection of individually identifiable health information (45 CFR, Parts 160 and 164).

(B) Although the regulations listed in subparagraph (A) of this paragraph are not in themselves considered requirements under 42 CFR, Part 483, their violation may result in the termination or suspension of payment with federal funds, or the refusal to grant or continue payment with federal funds.
Source Note: The provisions of this §554.1901 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1902 Governing Body]
(a) The facility must have a governing body, or designated persons functioning as a governing body that is legally responsible for establishing and implementing policies regarding the management and operation of the facility. The governing body must have periodically updated written policies and procedures that are formally adopted and dated, specifying and governing all services. The policies and procedures must be available to all of the facility's governing body's members, staff, residents, family or resident representatives, and the public. The governing body must:

(1) designate a person to exercise the administrator's authority when the facility does not have an administrator. The facility must secure a licensed nursing home administrator within 30 days; and

(2) ensure that a person designated as being in authority notifies HHSC immediately when the facility does not have an administrator.

(b) The governing board appoints and the facility must operate under the supervision of a nursing facility administrator who is:

(1) licensed by the Texas Board of Nursing Facility Administrators;

(2) responsible for management of the facility;

(3) required to work at least 40 hours per week on administrative duties; and

(4) accountable to and who reports to the governing body for the overall management of the facility.
Source Note: The provisions of this §554.1902 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1905 Staff Qualifications]
(a) The facility must employ on a full-time, part-time, or consultant basis those professionals necessary to carry out the provisions of these requirements of participation.

(b) Professional staff must be licensed, certified or registered in accordance with applicable state laws.
Source Note: The provisions of this §554.1905 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1906 Use of Outside Resources]
(a) If the facility does not employ a qualified professional to furnish a specific service to be provided by the facility, the facility must have that service furnished to residents by a person or agency outside the facility under an agreement described in subsection (b) of this section.

(b) Agreements pertaining to services furnished by outside resources must specify in writing that the facility assumes responsibility for:

(1) obtaining services that meet professional standards and principles; and

(2) the timeliness of the services.

(c) Except for those members of the comprehensive assessment team, the facility allows outside resources access to the clinical records of only those residents who have orders for the service(s) to be provided.
Source Note: The provisions of this §554.1906 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1907 Medical Director]
(a) The nursing facility must designate a physician to serve as medical director.

(b) The medical director is responsible for:

(1) implementation of resident care policies (see §19.1922 of this title (relating to Resident Care Policies)); and

(2) the coordination of medical care in the facility.
Source Note: The provisions of this §554.1907 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1908 Laboratory Services]
(a) The facility must provide or obtain clinical laboratory services to meet the needs of its residents. The facility is responsible for the quality and timeliness of the services.

(1) If the facility provides its own laboratory services, the services must meet the applicable requirements for laboratories specified in 42 CFR, Part 493.

(2) If the facility provides blood bank and transfusion services, it must meet the applicable requirements for laboratories specified in 42 CFR, Part 493.

(3) If the laboratory chooses to refer specimens for testing to another laboratory, the referral laboratory must be certified in the appropriate specialties or subspecialties of services in accordance with 42 CFR, Part 493.

(4) If the facility does not provide laboratory services on site, it must have an agreement to obtain these services only from a laboratory that meets the applicable requirements of 42 CFR, Part 493, or from a physician's office.

(b) The facility must:

(1) provide or obtain laboratory services only when ordered by a physician, physician assistant, or advanced practice registered nurse in accordance with state law, including scope of practice laws;

(2) promptly notify the ordering physician, physician assistant, or advanced practice registered nurse of the results that fall outside of clinical reference ranges in accordance with written facility policies and procedures for notification of a practitioner or per the ordering physician's orders;

(3) assist the resident in making transportation arrangements to and from the source of service, if the resident needs assistance; and

(4) file in the resident's clinical record laboratory reports that are dated and contain the name and address of the testing laboratory.
Source Note: The provisions of this §554.1908 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1909 Radiology and Other Diagnostic Services]
(a) The nursing facility must provide or obtain radiology and other diagnostic services to meet the needs of its residents. The facility is responsible for the quality and timeliness of the services.

(1) If the facility provides its own diagnostic services, the services must meet the applicable conditions of participation for hospitals contained in 42 CFR, §482.26.

(2) If the facility does not provide its own diagnostic services, it must have an agreement to obtain these services from a provider or supplier that is approved to provide these services under Medicare.

(b) The facility must:

(1) provide or obtain radiology and other diagnostic services only when ordered by a physician, physician assistant, or advanced practice registered nurse in accordance with state law, including scope of practice laws;

(2) promptly notify the ordering physician, physician assistant, or advanced practice registered nurse of the results that fall outside of clinical reference ranges in accordance with written facility policies and procedures for notification of a practitioner or per the ordering physician's orders;

(3) assist the resident in making transportation arrangements to and from the source of service, if the resident needs assistance; and

(4) file in the resident's clinical record signed and dated reports of x-ray and other diagnostic services.
Source Note: The provisions of this §554.1909 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1910 Clinical Records]
(a) The facility must maintain clinical records on each resident, in accordance with accepted professional health information management standards and practices, that are:

(1) complete;

(2) accurately documented;

(3) readily accessible;

(4) systematically organized; and

(5) protected from unauthorized release.

(b) Clinical records must be retained:

(1) for five years after medical services end; or

(2) for a minor, for three years after a resident reaches legal age under Texas law.

(c) The facility must safeguard clinical record information against loss, destruction, or unauthorized use.

(d) The facility must keep confidential all information contained in the resident's records, regardless of the form or storage method of the records, except when release is:

(1) required by law or this chapter;

(2) to the resident or resident representative where permitted by applicable law;

(3) for treatment, payment, or health care operations, as permitted by and in compliance with applicable law; or

(4) for public health activities, reporting of abuse, neglect or domestic violence, health oversight activities, judicial and administrative proceedings, law enforcement purposes, organ donation purposes, research purposes, or to coroners, medical examiners, funeral directors, and to avert a serious threat to health or safety as permitted by and in compliance with applicable law.
Source Note: The provisions of this §554.1910 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1911 Contents of the Clinical Record]
(a) A resident's clinical record must meet all documentation requirements in the HHSC rule at Texas Administrative Code, Title 1, Part 15, Chapter 371, Subchapter C (relating to Utilization Review).

(b) The clinical record of each resident must contain:

(1) a face sheet that contains the attending physician's current mailing address and telephone numbers;

(2) sufficient information to identify and care for the resident, to include at a minimum:

(A) full name of resident;

(B) full home or mailing address, or both;

(C) social security number;

(D) health insurance claim numbers, if applicable;

(E) date of birth; and

(F) clinical record number, if applicable;

(3) a record of the resident's assessments, including 15 months of MDS records;

(4) the comprehensive care plan and services provided;

(5) a permanency plan, for residents younger than 22 years of age;

(6) the results of any Preadmission Screening and Resident Review;

(7) signed and dated clinical documentation from all health care practitioners involved in the resident's care, with each page identifying the name of the resident for whom the clinical care is intended;

(8) any directives or medical powers of attorney as described in §19.419 of this chapter (relating to Advance Directives);

(9) discharge information and a discharge summary in accordance with §19.803 of this chapter (relating to Discharge Summary (Discharge Plan of Care));

(10) at admission or within 14 days after admission, documentation of an initial medical evaluation, including history, physical examination, diagnoses and an estimate of discharge potential and rehabilitation potential, and documentation of a previous annual medical examination;

(11) authentication of a hospital diagnosis, which may be in the form of a signed hospital discharge summary, a signed report from the resident's hospital or attending physician, or a transfer form signed by the physician;

(12) the physician's signed and dated orders, including medication, treatment, diet, restorative and special medical procedures, and routine care to maintain or improve the resident's functional abilities (required for the safety and well-being of the resident), which must not be changed either on a handwritten or computerized physician's order sheet after the orders have been signed by the physician unless space allows for additional orders below the physician's signature, including space for the physician to sign and date again;

(13) arrangements for the emergency care of the resident in accordance with §19.1204 of this chapter (relating to Availability of Physician for Emergency Care);

(14) observations made by nursing personnel according to the time frames specified in §19.1010 of this chapter (relating to Nursing Practices);

(15) items as specified on the MDS assessment;

(16) current information, including:

(A) PRN medications and results;

(B) treatments and any notable results;

(C) physical complaints, changes in clinical signs and behavior, mental and behavioral status, and all incidents or accidents;

(D) flow sheets, which may include bathing, restraint observation or release documentation, elimination, fluid intake, vital signs, ambulation status, positioning, continence status and care, and weight;

(E) a record of dietary intake, including deviations from normal diet, rejection of substitutions, and physician's ordered snacks or supplemental feedings;

(F) a record of the date and hour a drug or treatment is administered; and

(G) documentation of a special procedure performed for the safety and well-being of the resident; and

(17) laboratory, radiology and other diagnostic services reports, as required by §19.1908 of this subchapter (relating to Laboratory Services) and §19.1909 of this subchapter (relating to Radiology and Other Diagnostic Services).
Source Note: The provisions of this §554.1911 adopted to be effective August 1, 2000, 25 TexReg 6779; amended to be effective May 1, 2002, 27 TexReg 2834; amended to be effective September 1, 2008, 33 TexReg 7264; amended to be effective August 31, 2015, 40 TexReg 5461; amended to be effective July 21, 2016, 41 TexReg 5203; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1912 Additional Clinical Record Service Requirements]
(a) Index of admissions and discharges. The facility must maintain a permanent, master index of all residents admitted to and discharged from the facility. This index must contain at least the following information concerning each resident:

(1) name of resident (first, middle, and last);

(2) date of birth;

(3) date of admission;

(4) date of discharge; and

(5) social security, Medicare, or Medicaid number.

(b) Facility closure. In the event of closure of a facility, change of ownership or change of administrative authority:

(1) the facility must have in place written policies and procedures to ensure that the administrator's duties and responsibilities involve providing the appropriate notices, as required by §19.2310 of this chapter (relating to Nursing Facility Ceases to Participate); and

(2) the new management must maintain documented proof of the medical information required for the continuity of care of all residents. This documentation may be in the form of copies of the resident's clinical record or the original clinical record. In a change of ownership, the two parties will agree and designate in writing who will be responsible for the retention and protection of the inactive and closed clinical records.

(c) Method of recording and correcting information. All resident care information must be recorded in ink or permanent print except for the medication, treatment, or diet section of the resident's comprehensive care plan. Correction of errors will be in accordance with accepted health information management standards.

(1) Erasures are not allowed on any part of the clinical record, with the exception of the medication, treatment, or diet section of the resident's comprehensive care plan.

(2) Correction of errors will be in accordance with accepted health information management standards.

(d) Required record retention. Periodic thinning of active clinical records is permitted; however, the following items must remain in the active clinical record:

(1) current history and physical;

(2) current physician's orders and progress notes;

(3) current RAI and subsequent quarterly reviews; in Medicaid-certified facilities, all RAIs and Quarterly Reviews for the prior 15-month period;

(4) current comprehensive care plan;

(5) most recent hospital discharge summary or transfer form;

(6) current nursing and therapy notes;

(7) current medication and treatment records;

(8) current lab and x-ray reports;

(9) the admission record; and

(10) the current permanency plan.

(e) Readmissions.

(1) If a resident is discharged for 30 days or less and readmitted to the same facility, upon readmission, to update the clinical record, staff must:

(A) obtain current, signed physician's orders;

(B) record a descriptive nurse note, giving a complete assessment of the resident's condition;

(C) include any changes in diagnoses;

(D) obtain signed copies of the hospital or transferring facility history and physical and discharge summary and a transfer summary containing this information is acceptable;

(E) complete a new RAI and update the comprehensive care plan if evaluation of the resident indicates a significant change, which appears to be permanent and if no such change has occurred, then update only the resident comprehensive care plan; and

(F) comply with §19.805 of this chapter (regarding Permanency Planning for a Resident Under 22 Years of Age).

(2) A new clinical record must be initiated if the resident is a new admission or has been discharged for over 30 days.

(f) Signatures.

(1) The use of faxing is acceptable for sending and receiving health care documents, including the transmission of physicians' orders. Long term care facilities may utilize electronic transmission if they adhere to the following requirements:

(A) The facility must implement safeguards to assure that faxed documents are directed to the correct location to protect confidential health information.

(B) All faxed documents must be signed by the author before transmission.

(2) Stamped signatures are acceptable for all health care documents requiring a physician's signature, if the person using the stamp sends a letter of intent which specifies that he will be the only one using the stamp, and then signs the letter with the same signature as the stamp.

(3) The facility must maintain all letters of intent on file and make them available to representatives of HHSC upon request.

(4) Use of a master signature legend in lieu of the legend on each form for nursing staff signatures of medication, treatment, or flow sheet entries is acceptable under the following circumstances.

(A) Each nursing employee documenting on medication, treatment, or flow sheets signs employee's full name, title, and initials on the legend.

(B) The original master legend is kept in the clinical records office or director of nurses' office.

(C) A current copy of the legend is filed at each nurses' station.

(D) When a nursing employee leaves employment with the facility, the employee's name is deleted from the list by lining through it and writing the current date by the name.

(E) The facility updates the master legend as needed for newly hired and terminated employees.

(F) The master signature legend must be retained permanently as a reference to entries made in clinical records.

(g) Destruction of Records. When resident records are destroyed after the retention period is complete, the facility must shred or incinerate the records in a manner which protects confidentiality. At the time of destruction, the facility must document the following for each record destroyed:

(1) resident name;

(2) clinical or medical record number, if used;

(3) social security number, Medicare number, Medicaid number or the date of birth; and

(4) date and signature of person carrying out disposal.

(h) Confidentiality. The facility must develop and implement written policies and procedures to safeguard the confidentiality of clinical record information from unauthorized access.

(1) Except as provided in paragraph (2) of this subsection, the facility must not allow access to a resident's clinical record unless a physician's order exists for supplies, equipment, or services provided by the entity seeking access to the record.

(2) The facility must allow access and release confidential medical information under court order or by written authorization of the resident or the resident representative, as in §19.407 of this chapter (relating to Privacy and Confidentiality).
Source Note: The provisions of this §554.1912 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective October 15, 1998, 23 TexReg 10496; amended to be effective May 1, 2002, 27 TexReg 2834; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1914 Emergency Preparedness and Response]
(a) Definitions. In this section:

(1) "emergency situation" means an impending or actual situation that:

(A) interferes with normal activities of a facility and its residents;

(B) may:

(i) cause injury or death to a resident or staff member of the facility; or

(ii) cause damage to facility property;

(C) requires the facility to respond immediately to mitigate or avoid the injury, death, damage or interference; and

(D) does not include a situation that arises from the medical condition of a resident, such as cardiac arrest, obstructed airway, or cerebrovascular accident;

(2) "plan" refers to a facility's emergency preparedness and response plan; and

(3) "receiving facility" means a facility or location that has agreed to receive the residents of another facility who are evacuated due to an emergency situation.

(b) Administration. A facility must:

(1) develop and implement a written plan as described in subsection (c) of this section;

(2) maintain a current printed copy of the plan in a central location that is accessible to all staff at all times and at a work station of each personnel supervisor who has responsibilities under the plan;

(3) evaluate the plan to determine if information in the plan needs to change:

(A) within 30 days after an emergency situation;

(B) due to remodeling or making an addition to the facility; and

(C) at least annually;

(4) revise the plan within 30 days after information in the plan changes; and

(5) maintain documentation of compliance with this section.

(c) Emergency Preparedness and Response Plan. A facility's plan must:

(1) include a risk assessment of all potential internal and external emergency situations relevant to the facility's operations and geographical area, such as a fire, failure of heating and cooling systems, a power outage, a bomb threat, an explosion, a hurricane, a tornado, a flood, extreme snow and ice conditions for the area, a wildfire, terrorism, a hazardous materials accident, or a thunderstorm with a risk for harm to persons or property;

(2) include a description of the facility's resident population;

(3) include a section for each core function of emergency management, as described in subsection (d) of this section, that is based on a facility's decision to either shelter-in-place or evacuate during an emergency situation;

(4) include a section for a fire safety plan that complies with §554.326 of this chapter (relating to Safety Operations); and

(5) include a section for self reporting incidents that complies with subsection (f) of this section.

(d) Plan Requirements Regarding Eight Core Functions of Emergency Management.

(1) Direction and control. The facility's plan must contain a section for direction and control that:

(A) designates by name or title the emergency preparedness coordinator (EPC), who is the facility staff person with the authority to manage the facility's response to an emergency situation in accordance with the plan, and includes the EPC's current phone number;

(B) designates by name or title the alternate EPC, who is the facility staff person with the authority to act as the EPC if the EPC is unable to serve in that capacity, and includes the alternate EPC's current phone number;

(C) documents the name and contact information for the local emergency management coordinator (EMC) for the area where the facility is located, as identified by the office of the local mayor or county judge;

(D) includes procedures for notifying the local EMC of the execution of the plan;

(E) includes a plan for coordinating a staffing response to an emergency situation; and

(F) includes a plan for guiding residents to a safe location that is based on the type of emergency situation occurring and a facility's decision to either shelter-in-place or evacuate during an emergency situation.

(2) Warning. A facility's plan must contain a section for warning that:

(A) describes how the EPC will be notified of an emergency situation;

(B) identifies who the EPC will notify of an emergency situation and when the notification will occur, including during off hours, weekends, and holidays; and

(C) addresses monitoring local news and weather reports regarding a disaster or potential disaster taking into consideration factors such as geographic specific natural disasters, whether a disaster is likely to be addressed or forecast in the reports, and the conditions, natural or otherwise, that would cause staff to monitor news and weather reports for a disaster.

(3) Communication. A facility's plan must contain a section for communication that:

(A) identifies the facility's primary mode of communication to be used during an emergency situation and the facility's alternate mode of communication to be used in the event of power failure or the loss of the facility's primary mode of communication in an emergency situation;

(B) requires posting of the emergency contact number for the local fire department, ambulance, and police on or near each telephone in the facility in communities where a "911" emergency management system is unavailable;

(C) includes procedures for maintaining a current list of telephone numbers for residents' responsible parties;

(D) includes procedures for maintaining a current list of telephone numbers for pre-arranged receiving facilities;

(E) includes procedures for maintaining a current list of telephone numbers for the facility's staff;

(F) identifies the location of the lists described in subparagraphs (C) through (E) of this paragraph and in subsection (d)(1)(A) and (B) of this section;

(G) includes procedures to notify:

(i) facility staff about an emergency situation;

(ii) a receiving facility about an impending or actual evacuation of residents; and

(iii) residents and residents' responsible parties about an impending or actual evacuation;

(H) provides a method for a person to obtain resident information during an emergency situation; and

(I) includes procedures for the facility to maintain communication with:

(i) facility staff involved in an emergency situation;

(ii) a receiving facility; and

(iii) the driver of a vehicle transporting residents, medication, records, food, water, equipment, or supplies during an evacuation.

(4) Sheltering Arrangements. A facility's plan must contain a section for sheltering arrangements that:

(A) includes procedures for implementing a decision to shelter-in-place that includes:

(i) having access to medications, records, food, water, equipment and supplies; and

(ii) sheltering facility staff involved in responding to an emergency situation, and their family members, if necessary;

(B) includes procedures for notifying HHSC Regulatory Services regional office for the area in which the facility is located by telephone immediately after the EPC makes a decision to shelter-in-place:

(i) before, during, or after a hurricane or flood impacts a facility, if the risk assessment identified a hurricane or flood as a potential emergency situation; or

(ii) after any other type of emergency situation that has caused property damage to a facility;

(C) includes procedures for accommodating evacuated residents, if the facility serves as a receiving facility for a facility that has evacuated.

(5) Evacuation. A facility's plan must contain a section for evacuation that:

(A) identifies evacuation destinations and routes, and includes a map that shows the destinations and routes;

(B) includes procedures for implementing a decision to evacuate residents to a receiving facility;

(C) includes a current copy of an agreement with a receiving facility, outlining arrangements for receiving residents in the event of an evacuation, if the evacuation destination identified in accordance with subparagraph (B) of this paragraph is a receiving facility that is not owned by the same entity as the evacuating facility;

(D) includes procedures for:

(i) ensuring facility staff accompany evacuating residents;

(ii) ensuring that residents and facility staff present in the building have been evacuated;

(iii) accounting for residents and facility staff after they have been evacuated;

(iv) accounting for residents absent from the facility at the time of the evacuation;

(v) releasing resident information in an emergency situation to promote continuity of a resident's care;

(vi) contacting the local EMC to find out if it is safe to return to the geographical area after an evacuation;

(vii) determining if it is safe to re-enter and occupy the building after an evacuation; and

(E) includes procedures for notifying the local EMC regarding an evacuation of the facility;

(F) includes procedures for notifying HHSC Regulatory Services regional office for the area in which the facility is located by telephone immediately after the EPC makes a decision to evacuate; and

(G) includes procedures for notifying HHSC Regulatory Services regional office for the area in which the facility is located by telephone immediately when residents have returned to the facility after an evacuation.

(6) Transportation. A facility's plan must contain a section for transportation that:

(A) arranges for a sufficient number of vehicles to safely evacuate all residents;

(B) identifies facility staff designated to drive a facility owned, leased or rented vehicle during an evacuation;

(C) includes procedures for safely transporting residents, facility staff involved in an evacuation; and

(D) includes procedures for safely transporting and having timely access to oxygen, medications, records, food, water, equipment, and supplies needed during an evacuation.

(7) Health and Medical Needs. A facility's plan must contain a section for health and medical needs that:

(A) identifies the types of services used by residents, such as dialysis, oxygen, respirator care, or hospice services; and

(B) ensures the resident's needs identified in subparagraph (A) of this paragraph are met during an emergency situation.

(8) Resource Management. A facility's plan must contain a section for resource management that:

(A) includes a plan for identifying medications, records, food, water, equipment and supplies needed during an emergency situation;

(B) identifies facility staff who are assigned to locate the items in subparagraph (A) of this paragraph and who must ensure the transportation of the items during an emergency situation; and

(C) includes procedures to ensure medications are secure and maintained at the proper temperature during an emergency situation.

(e) Training. The facility must:

(1) train a facility staff member on the staff member's responsibilities under the plan within 30 days after assuming job duties;

(2) train a facility staff member on the staff member's responsibilities under the plan at least annually and when the staff member's responsibilities under the plan change; and

(3) conduct one unannounced annual drill with facility staff for severe weather and other emergency situations identified by the facility as likely to occur, based on the results of the risk assessment required by subsection (c)(1) of this section.

(f) Self-Reported Incidents.

(1) A facility must report a fire to HHSC as follows:

(A) by calling 1-800-458-9858 immediately after the fire; and

(B) by submitting a completed HHSC form titled "Fire Report for Long Term Care Facilities" within 15 calendar days after the fire.

(2) A facility must report an emergency situation that caused the death or serious injury of a resident to HHSC as follows:

(A) by calling 1-800-458-9858 immediately after the death or serious injury; and

(B) by submitting a completed HHSC form titled "HHSC Provider Investigation Report" within 5 working days after making the telephone report required by paragraph (2)(A) of this subsection.

(g) Emergency Response System.

(1) The facility administrator and director of nursing must enroll in an emergency communication system in accordance with instructions from HHSC.

(2) The facility must respond to requests for information received through the emergency communication system in the format established by HHSC.
Source Note: The provisions of this §554.1914 adopted to be effective August 1, 2011, 36 TexReg 4668; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871; amended to be effective January 24, 2023, 48 TexReg 217.

[§554.1915 Transfer Agreement]
(a) The facility must have in effect a written transfer agreement with one or more hospitals that reasonably assures that:

(1) Residents will be transferred from the facility to the hospital and ensured of timely admission to the hospital when transfer is medically appropriate as determined by the attending physician or, in an emergency situation, another practitioner in accordance with written facility policy.

(2) Providers will exchange medical and other information, including information required under §19.502(b)(4) of this chapter (relating to Transfer and Discharge in Medicaid-certified Facilities), needed for care and treatment of residents, and when the transferring facility deems it appropriate, for determining whether such residents can receive appropriate services, receive services in a less restrictive setting than either the facility or the hospital, or reintegrate into the community.

(3) For Medicaid-certified facilities, the hospitals must be approved for participation under the Medicare and Medicaid programs.

(b) In addition, to ensure continuity of care, the transfer agreement must:

(1) provide for prompt diagnostic and other medical services;

(2) ensure accountability for a resident's personal effects at the time of transfer;

(3) specify the steps needed to transfer a resident in a prompt, safe and efficient manner; and

(4) provide for supplying, at the time of transfer, a summary of administrative, social, medical, and nursing information to the facility to which the resident is transferred.

(c) If the board or governing body for a long-term care facility and a hospital are the same, the controlling entity must have written procedures outlining how transfers will occur.

(d) The facility is considered to have a transfer agreement in effect if HHSC determines that the facility attempted in good faith to enter into an agreement with a hospital sufficiently close to the facility to make transfer feasible but could not, and it is in the public interest not to enforce this requirement. The facility must document in writing its good faith effort to enter into an agreement.
Source Note: The provisions of this §554.1915 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1916 Respite Care]
Facilities offering respite care must meet the requirements of this chapter, except as provided in paragraph (4) of this section.

(1) Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(A) Plan of care--A written description of the medical care or the supervision and nonmedical care needed by an individual during respite care.

(B) Respite care--The provision by a facility to an individual, for not more than two weeks for each stay in the facility, of room, board, and care at the level ordinarily provided for permanent residents.

(2) Plan of care. The facility and the individual arranging respite care must agree on the plan of care, and the plan must be filed at the facility before the facility admits the individual.

(A) The plan of care must be signed by:

(i) a licensed physician if the individual needing care requires medical care or treatment; or

(ii) the individual arranging the care if medical care or treatment is not required.

(B) The facility may keep a plan of care for an individual for six months from the date on which it is developed. During that period, the facility may admit the individual as frequently as needed.

(3) Notification. A facility must notify the Texas Department of Human Services (DHS) in writing that it offers respite services.

(4) Inspections. During licensing or certification inspections, or at other times DHS determines necessary, DHS inspects a facility's records of respite care services, physical accommodations for respite care, and the plan of care records to ensure that the respite care services comply with the certification requirements of this chapter, with the following exceptions.

(A) The clinical record of each respite care resident must contain:

(i) general identifying information necessary to care for the individual and maintain his clinical record;

(ii) resident assessment and care plan according to facility policy;

(iii) progress notes and/or flow sheets which document care and services;

(iv) reports of diagnostic or lab studies;

(v) physician's orders; and

(vi) discharge and readmission information as required by facility policy for respite care services.

(B) Resident assessment requirements of §19.801 of this title (relating to Resident Assessment) apply to respite care services only on the 14th day of care.

(C) The clinical records requirement found at §19.1912(e) of this title (relating to Additional Clinical Record Service Requirements) does not apply.

(5) Suspension. DHS may require an institution to cease providing respite care if DHS determines that the respite care does not meet the requirement of this chapter and that the facility cannot comply with those requirements in the respite care it provides. DHS may suspend the license of a facility that continues to provide respite care after receiving a written order from DHS to cease.

(6) Licensed capacity. When a facility provides respite care:

(A) the total number of individuals receiving services in the facility must not exceed the number of licensed beds; and

(B) any required nurse-to-resident ratio must include any individual receiving respite care services regardless of the number of hours that the individual spends in the facility.
Source Note: The provisions of this §554.1916 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1917 Quality Assessment and Assurance]
(a) The facility must maintain a Quality Assessment and Assurance Committee consisting of:

(1) the director of nursing services;

(2) the medical director or designee;

(3) at least three other members of the facility's staff, at least one of whom must be the administrator, a board member or other individual in a leadership role; and

(4) effective November 28, 2019, the infection preventionist.

(b) The Quality Assessment and Assurance Committee reports to the facility's governing body regarding its activities. The committee must:

(1) meet at least quarterly to identify issues with respect to which quality assessment and assurance activities are necessary;

(2) develop and implement appropriate plans of action to correct identified quality deficiencies; and

(3) regularly review and analyze data, including data resulting from drug regimen reviews, and act on available data to make improvements.

(c) The State of Texas or the Secretary of Health and Human Services may not require disclosure of the records of the Quality Assessment and Assurance Committee except insofar as such disclosure is related to the compliance of the committee with the requirements of subsection (b) of this section.

(d) Good faith attempts by the committee to identify and correct quality deficiencies may not be used as a basis for sanctions.

(e) The Quality Assessment and Assurance Committee must adopt and ensure implementation of a written policy to identify, assess, and develop strategies to control risk of injury to residents and nurses associated with the lifting, transferring, repositioning, or moving of a resident. The policy must establish a process that includes:

(1) analysis of the risk of injury to both residents and nurses posed by the resident handling needs of the resident populations served by the nursing facility and the physical environment in which resident handling and moving occurs;

(2) annual in-service education of nurses in the identification, assessment, and control of risk of injury to residents and nurses during resident handling;

(3) evaluation of alternative ways to reduce risks associated with resident handling, including evaluation of equipment and the environment;

(4) restriction, to the extent feasible with existing equipment and aids, of manual resident handling or moving of all or most of a resident's weight to emergency, life-threatening, or otherwise exceptional circumstances;

(5) collaboration with and an annual report to the nurse staffing committee;

(6) specific procedures for nurses to refuse to perform or be involved in resident handling or moving that the nurse believes in good faith will expose a resident or a nurse to an unacceptable risk of injury;

(7) submission of an annual report by the nursing staff to the Quality Assessment and Assurance Committee on activities related to the identification, assessment, and development of strategies to control risk of injury to residents and nurses associated with the lifting, transferring, repositioning, or moving of a resident; and

(8) in developing architectural plans for constructing or remodeling a nursing facility or a unit of a nursing facility in which resident handling and moving occurs, consideration of the feasibility of incorporating resident handling equipment or the physical space and construction design needed to incorporate that equipment at a later date.
Source Note: The provisions of this §554.1917 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective June 1, 2006, 31 TexReg 4458; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1918 Disclosure of Ownership]
(a) The facility must comply with the disclosure requirements of 42 Code of Federal Regulations, §420.206 and §455.104.

(b) The facility must provide written notice to Facility Enrollment, Long-Term Care-Regulatory, Texas Department of Human Services (DHS) at the time of change if a change occurs in:

(1) persons with an ownership or control interest, as defined in 42 Code of Federal Regulations, §420.201 and §455.101;

(2) the officers, directors, agents or managing employees;

(3) the corporation, association, or other company responsible for the management of the facility;

(4) the facility's administrator or director of nursing; or

(5) the controlling person.

(c) The notice specified in subsection (b) of this section must include the identity of each new individual or company.

(d) Failure to notify Facility Enrollment within 30 days of a change specified in subsection (b) will result in a $500 administrative penalty. If the notice is postmarked within the 30-day period, 15 days will be added to the time period to receive the notice.
Source Note: The provisions of this §554.1918 adopted to be effective October 1, 1990, 15 TexReg 5220; amended to be effective April 1, 1992, 17 TexReg 1915; amended to be effective May 1, 1995, 20 TexReg 2868; amended to be effective July 1, 1996, 21 TexReg 4408; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective July 1, 2002, 27 TexReg 5245; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1919 Right to Possession]
(a) As a condition of continued licensure, a license holder must maintain the right to possession of the facility as described in §19.204(b)(1) of this title (relating to Application Requirements).

(b) The license holder must notify DADS in writing within 72 hours after the license holder becomes aware of or should have become aware of the loss and imminent loss of the right to possession of the facility, such as notice of eviction, foreclosure, termination of lease, or similar proposed action. The notification must:

(1) include a description of the specific situation that resulted in loss of possession of the facility;

(2) be faxed to (512) 438-2730 or (512) 438-2728; and

(3) be kept on file with a copy of the fax confirmation.
Source Note: The provisions of this §554.1919 adopted to be effective September 1, 2007, 32 TexReg 4231; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1920 Operating Policies and Procedures]
(a) The facility must have an administrative policy and procedure manual that outlines the general operating policies and procedures of the facility. The manual must include policies and procedures related to admission and admission agreements, resident care services, refunds, transfers and discharges, termination from Medicaid or Medicare participation in accordance with §554.2121 of this chapter (relating to General Provisions), receiving and responding to complaints and recommendations, and protection of a resident's personal property and civil rights. A copy of this manual must be made available for review upon request to each physician, staff member, resident, and resident's next of kin or guardian and to the public.

(b) The facility must have written personnel policies and procedures that are explained to employees during initial orientation and are readily available to them after that time.

(c) The facility must ensure that personnel records are correct and contain sufficient information to support placement in the assigned position (including a resume of training and experience). When appropriate, a current copy of the person's license or permit must be in the file.

(d) Upon request of HHSC, the facility must make available financial records to demonstrate the facility's compliance with applicable state laws and standards relating to licensing.

(e) A facility must develop, implement, and enforce a written policy that:

(1) requires a facility employee who provides direct care to a resident with Alzheimer's disease or a related disorder to successfully complete training in the provision of care to residents with Alzheimer's disease and related disorders; and

(2) ensures the care and services provided by a facility employee to a resident with Alzheimer's disease or a related disorder meet the specific identified needs of the resident relating to the diagnosis of Alzheimer's disease or a related disorder.

(f) The training required for facility employees under subsection (e)(1) of this section must include information about:

(1) symptoms and treatment of dementia;

(2) stages of Alzheimer's disease;

(3) person-centered behavioral interventions; and

(4) communication with a resident with Alzheimer's disease or a related disorder.

(g) A facility must have a workplace violence prevention committee and develop workplace violence prevention policies and procedures in accordance with Texas Health and Safety Code, Chapter 331.
Source Note: The provisions of this §554.1920 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective October 15, 1998, 23 TexReg 10496; amended to be effective October 31, 2013, 38 TexReg 7465; amended to be effective October 28, 2018, 43 TexReg 7189; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871; amended to be effective September 18, 2024, 49 TexReg 7331.

[§554.1921 General Requirements for a Nursing Facility]
(a) The facility must admit and retain only residents whose needs can be met through service from the facility staff, or in cooperation with community resources or other providers under contract.

(b) Individuals who have met the requirements of Chapter 303 of this title (relating to Preadmission Screening and Resident Review (PASRR)) and have mental or physical diseases, or both, that endanger other residents may be admitted or retained if adequate rooms and care are provided to protect the other residents.

(c) The term "hospital" may not be used as part of the name of a nursing facility unless it has been classified and duly licensed as a hospital by the appropriate state agency.

(d) A facility that ceases operation, temporarily or permanently, voluntarily or involuntarily, must provide notice to the residents and residents' relatives or responsible parties of closure. See §554.2310 of this chapter (relating to Nursing Facility Ceases to Participate) for additional notice requirements that apply to a Medicaid or Medicare certified facility.

(1) If the closure is voluntary, within one week after the date on which the decision to close is made, the facility must send written notice to residents' relatives or responsible parties stating that the closure will occur no earlier than 60 days after receipt of the notice.

(2) If the closure is involuntary, the facility must make the notification, whether orally or in writing, immediately on receiving notice of the closure.

(e) Each licensed facility must conspicuously and prominently post the information listed in this subsection in an area of the facility that is readily available to residents, employees, and visitors. The posting must be in a manner that each item of information is directly visible at a single time. In the case of a licensed section that is part of a larger building or complex, the posting must be in the licensed section or public way leading to it. Any exceptions must be approved by HHSC. The following items must be posted:

(1) the facility license;

(2) a complaint sign provided by HHSC giving the toll-free telephone number;

(3) a notice in a form prescribed by HHSC that inspection and related reports are available at the facility for public inspection;

(4) a concise summary prepared by HHSC of the most recent inspection report;

(5) a notice of HHSC toll-free telephone number 1-800-458-9858 to request summary reports relating to the quality of care, recent investigations, litigation or other aspects of the operation of the facility that are available to the public;

(6) a notice that HHSC can provide information about the nursing facility administrator at (512) 438-2015;

(7) if a facility has been ordered to suspend admissions, a notice of the suspension, which must be posted also on all doors providing public ingress to and egress from the facility;

(8) the statement of resident rights provided in §554.401 of this chapter (relating to Introduction) and any additional facility requirements involving resident rights and responsibilities;

(9) a notice that employees, other staff, residents, volunteers, and family members and guardians of residents are protected from discrimination or retaliation as provided by the Texas Health and Safety Code §260A.014 and §260A.015; and that the facility has available for public inspection a copy of the Texas Health and Safety Code Chapter 260A;

(10) a prominent and conspicuous sign for display in a public area of the facility that is readily available to the residents, employees, and visitors and that includes the statement: CASES OF SUSPECTED ABUSE, NEGLECT, OR EXPLOITATION SHALL BE REPORTED TO HHSC BY CALLING 1-800-458-9858;

(11) for a facility that advertises, markets, or otherwise promotes that it provides services to residents with Alzheimer's disease and related disorders, a disclosure statement describing the nature of its care or treatment of residents with Alzheimer's disease and related disorders in accordance with §554.403(n)(2) of this chapter (relating to Notice of Rights and Services);

(12) at each entrance to the facility, a sign that states that a person may not enter the premises with a handgun and that complies with Texas Government Code §411.204; and

(13) daily for each shift, the current number of licensed and unlicensed nursing staff directly responsible for resident care in the facility. In addition, the nursing facility must make the information required to be posted available to the public upon request.

(f) The reports referenced in subsection (e)(3) of this section must be maintained in a well-lighted, accessible location and must include:

(1) a statement of the facility's compliance record that is updated at least bi-monthly and reflects at least one year's compliance record, in a form required by HHSC; and

(2) if a facility has been cited for a violation of residents' rights, a copy of the citation, which must remain in the reports until any regulatory action with respect to the violation is complete and HHSC has determined that the facility is in full compliance with the applicable requirement.

(g) The facility must inform the resident or responsible party or both upon the resident's admission that the inspection reports referenced in subsection (e)(3) of this section are available for review.

(h) A facility must provide the telephone number for reporting cases of suspected abuse, neglect, or exploitation to an immediate family member of a resident of the facility upon the resident's admission to the facility.

(i) A copy of the Texas Health and Safety Code Chapters 242 and 260A must be available for public inspection at the facility.

(j) Within 72 hours after admission, the facility must prepare a written inventory of the personal property a resident brings to the facility, such as furnishings, jewelry, televisions, radios, sewing machines, and medical equipment. See §554.416 of this chapter (relating to Personal Property).

(1) The facility does not have to inventory the resident's clothing; however, the operating policies and procedures must provide for the management of resident clothing and other personal property to prevent loss or damage.

(2) The facility administrator or his or her designee must sign and retain the written inventory and must give a copy to the resident or the resident's responsible party or both.

(3) The facility must revise the written inventory to show if property is lost, destroyed, damaged, replaced, or supplemented.

(4) Upon discharge of the resident, the facility must document the disposition of personal effects by a dated receipt bearing the signature of the resident or the resident's responsible party or both.

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

(l) Before a facility hires an unlicensed employee, the facility must check the nurse aide registry (NAR) and the Search Engine for Multi-Agency Reportable Conduct (SEMARC) established under Texas Health and Safety Code Chapter 810 to determine if the person is employable. If the person's name is on the NAR as unemployable, the facility must not hire the person. If the person's name is listed in the SEMARC, the person is unemployable, and the facility must not hire the person.

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

(n) A facility must provide notice about the SEMARC to an employee according to §561.3 of this title (relating to Employment and Registry Information).

(o) In addition to the initial search of the NAR and the SEMARC, a facility must:

(1) conduct a search of the NAR and the SEMARC to determine if an employee of the facility remains employable, at least once every 12 months.

(2) keep a copy of the results of the initial and annual searches of the NAR and the SEMARC in the employee's personnel file.
Source Note: The provisions of this §554.1921 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective September 1, 1996, 21 TexReg 7859; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective October 15, 1998, 23 TexReg 10496; amended to be effective August 1, 2000, 25 TexReg 6779; amended to be effective May 1, 2002, 27 TexReg 2832; amended to be effective June 1, 2003, 28 TexReg 3828; amended to be effective September 1, 2003, 28 TexReg 6939; amended to be effective September 1, 2010, 35 TexReg 6353; amended to be effective August 1, 2011, 36 TexReg 4671; amended to be effective October 31, 2013, 38 TexReg 7465; amended to be effective July 21, 2016, 41 TexReg 5203; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871; amended to be effective December 6, 2022, 47 TexReg 7712; amended to be effective July 30, 2026, 51 TexReg 4887.

[§554.1922 Resident Care Policies]
(a) The facility must have written policies to govern the nursing care and related medical or other services provided. The written policies must include plans for promoting self-care and independence. If children are admitted to the facility, written policies must address the care of children, consistent with currently acceptable pediatric practice and should address the ongoing assessment of the potential for community reintegration.

(b) Resident care policies are developed by the medical director and by professional personnel, including one or more physicians, licensed or registered nurses, a registered pharmacist, and the licensed nursing home administrator. The advisory group must review the policies at least annually and update them as necessary.
Source Note: The provisions of this §554.1922 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1923 Incident or Accident Reporting]
(a) The facility must detail in the medical record every accident or incident, including allegations of mistreatment of residents by facility staff, medication errors, and drug reactions.

(b) Accidents, whether or not resulting in injury, and any unusual incidents or abnormal events including allegations of mistreatment of residents by staff or personnel or visitors, must be described in a separate administrative record and reported by the facility in accordance with the licensure Act and this section.

(1) If the incident appears to be of a serious nature, it must be investigated by or under the direction of the director of nurses, the facility administrator, or a committee charged with this responsibility.

(2) If the incident involves a resident and is serious or requires special reporting to HHSC, the resident's responsible party and attending physician must be immediately notified.

(c) Accident or incident reports must be retained for at least two years following the occurrence and must contain the following information.

(1) For incidents involving residents, the name of the resident; witnesses, if any; date, time, and description of the incident; circumstances under which it occurred; action taken including documentation of notification of the responsible party and attending physician, if appropriate; and the resident's current (post-incident) health condition, including vital signs and date and time of entry.

(2) Incident reports describing incidents not involving residents must contain such information as names of individuals involved, date, time, witnesses (if witnesses were present), description of the event or occurrence, including the circumstances under which it occurred, action taken, and final disposition that indicates resolution of the event or occurrence.

(d) The facility must investigate incidents/accidents and complaints for trends which may indicate resident abuse. Trends that might be identified include but are not limited to: type of accident, type of injury, time of day, staff involved, staffing level, and relationship to past complaints.

(e) The facility must make incident reports available for review, upon request and without prior notice, by representatives of HHSC, the U.S. Department of Health and Human Services, if applicable; and the Texas Department of Family and Protective Services. The facility must make reports related to specific incidents available to the State Ombudsman and a certified ombudsman.
Source Note: The provisions of this §554.1923 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective April 5, 2018, 43 TexReg 2017; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1924 Financial Records]
Nursing facility staff must maintain current financial records in accordance with recognized fiscal and accounting procedures. The facility must ensure that records clearly identify each charge and payment made on behalf of each resident residing in the facility. The facility must clearly state in its records to whom charges were made and for whom payment was received. Medicaid-certified facilities must also comply with the following requirements.

(1) The facility must make financial records and supporting documents available at any time within working hours and without prior notification for review by the Texas Department of Human Services, the Department of Health and Human Services, and the Texas attorney general's Medicaid Fraud Control Unit.

(2) The facility must keep the financial records in the facility for a minimum of three years and 90 days after the termination of the contract period or for three years after the end of the federal fiscal year in which services were provided if there was a provider agreement/contract with no specific termination date in effect. The facility must also keep for the same period of time supporting fiscal documents and other records necessary to ensure claims for federal matching funds.
Source Note: The provisions of this §554.1924 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1925 Financial Condition]
(a) Effective December 1, 2008, minimum standards of financial condition require the applicant or license holder to have sufficient financial resources to:

(1) satisfy obligations at the time they come due; and

(2) ensure at all times the delivery of essential care and services, such as nursing or dietary services, or utilities.

(b) A license holder must notify DADS of significant adverse changes in financial condition, which include changes in financial position, cash flow, results of operation, or other events that could adversely affect the delivery of essential care and services, such as nursing or dietary services, or utilities. The following are examples of significant adverse changes in financial condition that must be reported:

(1) The license holder, operator, administrator, manager, or other controlling person receives notice that a judgment or tax lien of at least $50,000 has been filed, recorded, or levied against the facility or any of the assets of the facility or the license holder and the judgment or tax lien is not satisfied, or an appropriate extension has not been obtained, within three working days after receipt of the notice.

(2) A financial institution refuses to honor facility-operation-related checks or other financial instruments issued by the license holder, operator, administrator, manager, or other controlling person or agent of the license holder, operator, administrator, manager, or other controlling person and:

(A) the cumulative amounts of the checks or financial instruments are $50,000 or more; and

(B) the checks or financial instruments are not honored or replaced to the satisfaction of the holders of the instruments within five working days after the holders have notified the license holder, operator, administrator, manager, or the person authorized to issue the instrument of the dishonored items.

(3) The facility fails to maintain the facility's utilities or a sufficient quantity of supplies, including nursing, dietary, pharmaceutical, or other care and service supplies, to meet the needs of the residents.

(4) The license holder, operator, administrator, manager, or other controlling person fails to make timely payments of any facility-related tax of at least $10,000 and fails to satisfy such tax within five working days after the date the tax becomes due.

(5) The license holder, operator, administrator, manager, or other controlling person files a voluntary bankruptcy petition, or a creditor files an involuntary bankruptcy petition against the license holder or controlling person, under the United States Code or any other laws of the United States.

(6) A court appoints a bankruptcy trustee for the facility.

(7) A person seeking appointment of a receiver for the facility files a petition in any jurisdiction.

(8) The license holder, operator, administrator, manager, or other controlling person is unable to meet conditions of a facility-operation-related loan or debt covenant unless the loan or debt covenant has been waived, and that inability leads to:

(A) the imposition of a fine or penalty;

(B) restructuring;

(C) a change in terms or conditions of the loan or debt covenant; or

(D) a recall by the issuing entity.

(9) The license holder, operator, administrator, manager, or other controlling person is delinquent on more than $50,000 of facility-related contractual obligations or vendor contracts and has not cured the delinquency within five working days after receipt of notice from the creditor or creditors to pay the debt.

(c) The license holder must notify DADS in writing of a significant adverse change in its financial condition as required by subsection (b) of this section within 72 hours after the license holder becomes aware of or should have become aware of the change.

(d) The license holder's notice required by subsection (b) of this section must include a description of:

(1) the specific significant adverse change in financial condition;

(2) how the significant adverse change in financial condition affects the license holder's ability to deliver essential care and services; and

(3) the actions the license holder has taken to address the significant adverse change in financial condition.

(e) The license holder must fax the notice required in subsection (b) of this section to (512) 438-2730 or (512) 438-2728, and the notice must be kept on file with a copy of the fax confirmation.

(f) The license holder must provide any other information DADS requests to substantiate continued compliance with the requirements of this section within 30 days after the request.
Source Note: The provisions of this §554.1925 adopted to be effective September 1, 2007, 32 TexReg 4231; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1926 Medicaid Hospice Services]
(a) When a nursing facility (NF) contracts for hospice services for residents, the nursing facility must:

(1) have a written contract for the provision of arranged services, which must be signed by authorized representatives of the NF and hospice and must include the following:

(A) the services to be provided;

(B) a stipulation that hospice-related services performed by NF staff may be provided only with the express authorization of the hospice;

(C) how the contracted services are to be coordinated, supervised, and evaluated by the hospice and the NF;

(D) delineation of the roles of the hospice and the NF in the admission process, recipient and family assessment, and the interdisciplinary team case conferences;

(E) a requirement for documentation of services furnished; and

(F) the qualifications of the personnel providing the services;

(2) provide room and board services, which include the performance of personal care services, including assistance in the activities of daily living, administration of medication, socializing activities, maintaining the cleanliness of a resident's room, and supervision and assisting in the use of durable medical equipment and prescribed therapies;

(3) immediately notify the hospice of any significant changes in the hospice recipient's condition;

(4) have joint procedures with the hospice provider for ordering medications that ensure the proper payor is billed and for reconciling billing between NF and hospice, including:

(A) contacting the hospice prior to filling a new prescription; and

(B) ensuring that drugs unrelated to the terminal illness are ordered through the Vendor Drug program; and

(5) ensure that hospice documentation is a part of the current clinical record, which, at a minimum, must include the current and past:

(A) Texas Medicaid Hospice Recipient Election/Cancellation form;

(B) MDS assessment;

(C) Physician Certification of Terminal Illness form;

(D) Medicare Election Statement, if dually eligible;

(E) verification that the recipient does not have Medicare Part A;

(F) hospice interdisciplinary assessments;

(G) hospice plan of care; and

(H) current interdisciplinary notes, which include the following:

(i) nurses notes and summaries;

(ii) physician orders and progress notes; and

(iii) medication and treatment sheets during the hospice certification period.

(b) The NF and hospice must ensure that the coordinated plan of care reflects the participation of the hospice, the NF, the recipient, and the recipient's legal representative to the extent possible. The plan of care must include directives for managing pain and other uncomfortable symptoms, and must be revised and updated as necessary to reflect the recipient's current status.

(c) The recipient has the right to refuse any services from the nursing facility and the hospice provider.

(d) The hospice retains overall professional management responsibility for directing the implementation of the plan of care related to the terminal illness and related conditions, which includes:

(1) designation of a hospice registered nurse to coordinate the implementation of the plan of care;

(2) provision of substantially all core services (physician, nursing, medical social work, and counseling services) that must be routinely provided directly by the hospice employees, and cannot be delegated to the NF, as outlined under 42 Code of Federal Regulations §418.80;

(3) provision of drugs and medical supplies as needed for palliation and management of the terminal illness and related conditions; and

(4) involvement of NF personnel in assisting with the administration of prescribed therapies in the plan of care only to the extent that the hospice would routinely use the services of a hospice patient's family or caregiver in the home setting.

(e) The hospice may arrange to have non-core hospice services provided by the NF if the hospice assumes professional management responsibility for the services and assures these services are performed in accordance with the policies of the hospice and the recipient's plan of care.
Source Note: The provisions of this §554.1926 adopted to be effective December 1, 2000, 25 TexReg 10374; amended to be effective January 1, 2002, 26 TexReg 10389; amended to be effective September 1, 2008, 33 TexReg 7264; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1928 Volunteer Program]
(a) The facility must promote a volunteer program designed to assist in meeting the social and emotional needs of the residents.

(b) A volunteer council may be utilized to solicit community involvement in the volunteer program.

(c) The facility should promote volunteer programs designed to provide social, emotional, educational, and sensory opportunities for its pediatric residents.
Source Note: The provisions of this §554.1928 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1929 Staff Development]
Each facility must develop, implement and maintain effective training programs of orientation, training, and continuing in-service education to develop the skills of its staff, including all new and existing staff; individuals providing services under a contractual arrangement; and volunteers, consistent with their expected roles. Effective November 28, 2019, a facility must determine the amount and types of training necessary based on a facility assessment as specified at §19.1931 of this subchapter (relating to Facility Assessment) and as described in §19.1001 of this chapter (relating to Nursing Services).

(1) As part of orientation and annually, each employee must receive instruction regarding:

(A) Human Immunodeficiency Virus (HIV), as outlined in the educational information provided by the Texas Department of State Health Services Model Workplace Guidelines. At a minimum the HIV curriculum must include:

(i) modes of transmission;

(ii) methods of prevention;

(iii) behaviors related to substance abuse;

(iv) occupational precautions;

(v) current laws and regulations concerning the rights of an acquired immune deficiency syndrome/HIV-infected individual; and

(vi) behaviors associated with HIV transmission which are in violation of Texas law;

(B) restraint reduction and the prevention of falls through competency-based training. Facilities also may choose to train on behavior management, including prevention of aggressive behavior and de-escalation techniques;

(C) activities that constitute abuse, neglect, exploitation, or misappropriation of resident property as set forth at §19.601 of this chapter (relating to Freedom from Abuse, Neglect and Exploitation);

(D) procedures for reporting incidents of abuse, neglect, exploitation, or misappropriation of resident property; and

(E) dementia management and resident abuse prevention.

(2) Each registered nurse, licensed vocational nurse, and nurse aide (nurse assistant) who provides nursing services must receive at least one hour of training each year in caring for people who have dementia.

(3) Nursing staff, licensed nurses, and nurse aides must receive annual in-service training which includes components, appropriate to their job responsibilities, from one or more of the following categories:

(A) communication techniques and skills useful when providing geriatric care, such as skills for communicating with the hearing impaired, visually impaired and cognitively impaired; therapeutic touch; and recognizing communication that indicates psychological abuse;

(B) assessment and nursing interventions related to the common physical and psychological changes of aging for each body system;

(C) geriatric pharmacology, including treatment for pain management and sleep disorders;

(D) common emergencies of geriatric residents and how to prevent them, for example, falls, choking on food or medicines, injuries from restraint use; recognizing sudden changes in physical condition, such as stroke, heart attack, acute abdomen, and acute glaucoma; and obtaining emergency treatment;

(E) common mental disorders with related nursing implications; and

(F) ethical and legal issues regarding advance directives, abuse and neglect, guardianship, and confidentiality.

(4) Facilities with pediatric residents must comply with the following:

(A) Facility staff must be trained in the use of pediatric equipment and supplies, including emergency equipment and supplies.

(B) Facility staff must receive annual continuing education dealing with pediatric issues, including child growth and development and pediatric assessment.

(5) Minimum continuing in-service education requirements are listed in subparagraphs (A) - (B) of this paragraph. Attendance at relevant outside training may be used to satisfy the in-service education requirement. The facility must keep in-service records for each employee listed. The minimum requirements are:

(A) licensed personnel--two hours per quarter; and

(B) nurse aides--12 hours annually. For the purpose of this paragraph, a medication aide is considered a nurse aide and must receive the same continuing in-service education. This in-service education does not qualify as continuing education units required for renewal of a medication aide permit.

(6) A rural hospital participating in the Medicaid Swing Bed Program as specified in §19.2326 of this chapter (relating to Medicaid Swing Bed Program for Rural Hospitals) is not required to meet the requirements of this section, if the swing beds are used for no more than one 30-day length of stay per year, per resident.

(7) Effective November 28, 2019, the facility must also include as part of its mandatory training the following topics:

(A) effective communications for direct care staff;

(B) rights of the resident and the responsibilities of a facility to properly care for its residents as set forth in Subchapter E of this chapter (relating to Resident Rights);

(C) standards, policies, and procedures for the facility's infection prevention and control program, as set forth in §19.1601 of this chapter (relating to Infection Control); and

(D) behavioral health training, as set forth in §19.904 of this chapter (relating to Behavioral Health Services).
Source Note: The provisions of this §554.1929 adopted to be effective September 1, 1996, 21 TexReg 7859; amended to be effective June 1, 2003, 28 TexReg 3828; amended to be effective May 1, 2004, 29 TexReg 3235; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1930 Blood and Blood Products]
If the facility stores and transfers blood or blood products, the facility must meet the conditions established for certification of hospitals that are contained in 42 Code of Federal Regulations §482.27(d)(1)-(6).
Source Note: The provisions of this §554.1930 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1931 Facility Assessment]
The facility must conduct and document a facility-wide assessment to determine what resources are necessary to care for its residents competently during both day-to-day operations and emergencies. The facility must review and update that assessment, as necessary, and at least annually. The facility must also review and update this assessment whenever there is, or the facility plans for, any change that would require a substantial modification to any part of this assessment. The facility must address or include:

(1) the facility's resident population, including:

(A) both the number of residents and the facility's resident capacity;

(B) the care required by the resident population considering the types of diseases, conditions, physical and cognitive disabilities, overall acuity, and other pertinent facts that are present within that population;

(C) the staff competencies that are necessary to provide the level and types of care needed for the resident population;

(D) the physical environment, equipment, services, and other physical plant considerations that are necessary to care for this population; and

(E) any ethnic, cultural, or religious factors that may potentially affect the care provided by the facility, including activities and food and nutrition services;

(2) the facility's resources, including:

(A) all buildings and other physical structures and vehicles;

(B) equipment (medical and non-medical);

(C) services provided, such as physical therapy, pharmacy, and specific rehabilitation therapies;

(D) all personnel, including managers, employees, contractors, and volunteers, as well as their education, training and any competencies related to resident care;

(E) contracts, memorandums of understanding, or other agreements with their parties to provide services or equipment to the facility during both normal operations and emergencies; and

(F) health information technology resources, such as systems for electronically managing patient records and electronically sharing information with other organizations; and

(3) a facility-based and community-based risk assessment, utilizing an all-hazards approach.
Source Note: The provisions of this §554.1931 adopted to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1934 Educational Requirements for Persons under Age 22]
(a) A nursing facility that accepts school-age residents, ages 3 through 21, must provide assurances to the Texas Department of Human Services (DHS) that it has:

(1) established a written cooperative agreement with the local independent school district that includes:

(A) general responsibilities of the facility and the school district in delivering appropriate and mutually supportive services to eligible school-age residents;

(B) a provision allowing the school district staff to access, with appropriate consent of the eligible resident or guardian, the facility's resident record and assessment information to avoid unnecessary duplication of services;

(C) a provision allowing the school district staff an opportunity to participate in or provide information for the facility's admission, programmatic, and discharge-planning meetings when the educational needs of an eligible resident are being considered; and

(D) a provision allowing the NF staff to participate in or provide information to the school district's admission, review, and dismissal (ARD) committee during its deliberations about each eligible school-age resident; and

(2) developed written policies and procedures to ensure that all eligible school-age residents, ages 3 through 21, who have neither successfully graduated from nor completed an approved school program are enrolled in a Texas Education Agency-approved educational program. The facility must:

(A) notify the local education agency (LEA), in writing, within three days of the admittance of an individual between the ages of birth and 22; and

(B) provide the LEA with any of the following information or records available to the facility within 14 working days of a school-age child's admission to the facility:

(i) birth certificate or other document as proof of a child's identity;

(ii) medical history and medical records, including current immunization records;

(iii) social history;

(iv) vision and hearing screening and/or evaluation;

(v) assessment reports, including psychological, educational, related service, and vocational assessments;

(vi) the facility's care plan;

(vii) educational history (at last previous educational placement to facilitate the LEA's efforts to obtain educational records from the previous LEA); and

(viii) any court order which authorizes the placement in the facility.

(C) maintain, as a separate document in the school-age resident's record, a copy of the original Individual Education Plan (IEP) developed by the school district, and any subsequent changes;

(D) document, in the comprehensive care plan, the following:

(i) efforts to resolve differences between the IEP and the comprehensive care plan;

(ii) educational objectives (such as behavior therapy or speech therapy), services, and approaches;

(iii) the resident's adjustment to the educational program;

(iv) changes and modifications to the plan; and

(v) discipline(s) in the facility responsible for follow-through on each educational objective; and

(E) provide to the local ARD committee a description of available space should a child need to be educated at the facility. If the ARD committee decides that the facility is the appropriate educational placement and the space is adequate, the facility must:

(i) provide the space as described, free of any costs, including those incurred for the operation and maintenance of the space; and

(ii) if the space will no longer be available or must be reduced, notify the LEA 30 days in advance with regard to one student and 90 days in advance regarding more than one student.

(b) If a provider desires to provide and administer the provider's own educational program(s), the provider must secure and maintain certification as a nonpublic school from the Texas Education Agency.

(c) In accordance with the Education Code, §29.012, DHS adopts by reference 19 TAC §89.1115 (relating to the Memorandum of Understanding Concerning Interagency Coordination of Special Education Services to Students with Disabilities in Residential Facilities).
Source Note: The provisions of this §554.1934 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective June 15, 1997, 22 TexReg 5277; amended to be effective May 1, 2003, 28 TexReg 2619; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.1935 Automated External Defibrillators]
(a) In this section:

(1) "automated external defibrillator" means a heart monitor and defibrillator that:

(A) has received approval from the United States Food and Drug Administration of its premarket notification filed under United States Code, Title 21, §360(k);

(B) is capable of recognizing the presence or absence of ventricular fibrillation or rapid ventricular tachycardia;

(C) is capable of determining, without interpretation of cardiac rhythm by an operator, whether defibrillation should be performed; and

(D) after determining that defibrillation should be performed, automatically charges and requests delivery of an electrical impulse to an individual's heart; and

(2) "onsite" means:

(A) in a single story building;

(B) on each floor of a multiple story building; or

(C) in each small house of a multiple small house model.

(b) A facility must have at least one automated external defibrillator available for use onsite at all times. The facility must place the automated external defibrillator in a location that is easily accessible for staff persons who are trained to operate it.

(c) A facility must ensure at least one staff person who has completed and maintains training in cardiopulmonary resuscitation (CPR) and automated external defibrillator operation in accordance with the guidelines established by the defibrillator's manufacturer and as approved by the American Heart Association, the American Red Cross, or other nationally recognized associations is onsite at all times.

(d) A facility must ensure that a licensed physician provides medical consultation or general oversight of the staff training to ensure the facility complies with subsection (c) of this section.

(e) A facility must maintain and test the automated external defibrillator according to the manufacturer's guidelines and keep records of the maintenance and testing.

(f) A facility must conduct a monthly inspection to verify the automated external defibrillator:

(1) is placed at its designated location;

(2) reasonably appears to be ready for use; and

(3) does not reasonably appear to be damaged in a manner that could prevent operation.

(g) A facility must ensure the use of an automated external defibrillator is consistent with a resident's advance directive executed or issued under Texas Health and Safety Code, Chapter 166, Subchapter C.

(h) The facility must notify the local emergency medical services provider by calling 9-1-1, per standard CPR procedures, while using an automated external defibrillator on a resident.

(i) Within 24 hours after acquiring an automated external defibrillator, a facility must notify the local emergency medical services provider of:

(1) the existence of the automated external defibrillator;

(2) the location of the automated external defibrillator in the facility; and

(3) the type of automated external defibrillator.

(j) If a facility has an automated external defibrillator on the effective date of this rule, the facility must provide the notification described in subsection (i) of this section within seven days after the effective date.
Source Note: The provisions of this §554.1935 adopted to be effective April 29, 2015, 40 TexReg 2283; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871; amended to be effective December 6, 2022, 47 TexReg 7712.

[§554.1936 Guardianship Orders for a Nursing Facility Resident]
(a) A facility must request a copy of any current court order appointing a guardian and letters of guardianship for a resident or a resident's estate from the resident's nearest relative or the person responsible for the resident's support.

(b) A facility must request the court order and letters of guardianship:

(1) when a facility admits an individual; and

(2) when the facility becomes aware a guardian is appointed after the facility admits a resident.

(c) A facility must request an updated copy of the court order and letters of guardianship at each annual assessment and retain documentation of any change.

(d) A facility must make at least one follow-up request within 30 days after the facility makes a request in accordance with subsection (b) or (c) of this section if the facility has not received:

(1) a copy of the court order and letters of guardianship; or

(2) a response that there is no court order and letters of guardianship.

(e) A facility must keep in the resident's clinical record:

(1) documentation of the results of the request for the court order and letters of guardianship; and

(2) a copy of the most recent court order appointing a guardian of a resident or a resident's estate and letters of guardianship that the facility received.
Source Note: The provisions of this §554.1936 adopted to be effective July 21, 2016, 41 TexReg 5203; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2002 Procedural Requirements--Licensure Inspections and Surveys]
(a) HHSC inspection and survey personnel perform inspections and surveys, follow-up visits, complaint investigations, investigations of abuse or neglect, and other contact visits from time to time as they deem appropriate or as required for carrying out the responsibilities of licensing.

(b) An inspection may be conducted by an individual qualified surveyor or by a team, of which at least one member is a qualified surveyor.

(c) To determine standard compliance which cannot be verified during regular working hours, night or weekend inspections may be conducted to cover specific segments of operation and will be completed with the least possible interference to staff and residents.

(d) Generally, all inspections, surveys, complaint investigations and other visits, whether routine or non-routine, made for the purpose of determining the appropriateness of resident care and day-to-day operations of a facility will be unannounced; any exceptions must be justified. Releasing advance information of an unannounced inspection is a third degree felony, as provided in §242.045 of the Health and Safety Code.

(e) Certain visits may be announced, including, but not limited to, consultation visits to determine how a physical plant may be expanded or upgraded and visits to determine the progress of physical plant construction or repairs, equipment installation or repairs, or systems installation or repairs or conditions when certain emergencies arise, such as fire, windstorm, or malfunctioning or nonfunctioning of electrical or mechanical systems.

(f) Persons authorized to receive advance information on unannounced inspections include:

(1) citizen advocates invited to attend inspections, as described in subsection (g) of this section;

(2) the State Ombudsman, a certified ombudsman, and an ombudsman intern who are authorized to attend and participate in inspections;

(3) representatives of the United States Department of Health and Human Services whose programs relate to the Medicare/Medicaid Long Term Care Program; and

(4) representatives of HHSC whose programs relate to the Medicare/Medicaid long term care program.

(g) HHSC conducts at least one unannounced inspection annually of each institution licensed under Health and Safety Code, Chapter 242, except as provided for in this subsection. For purposes of this subsection, "annually" means a statewide average of once every 12 months.

(1) In order to ensure continuous compliance, a sufficient number of inspections will be conducted between the hours of 5:00 p.m. and 8:00 a.m. in randomly selected institutions. This cursory after-hours inspection is conducted to verify staffing, assurance of emergency egress, resident care, medication security, food service or nourishments, sanitation, and other items as deemed appropriate. To the greatest extent feasible, any disruption of the residents is minimal.

(2) For at least one unannounced inspection annually, HHSC invites to the inspections at least one person as a citizen advocate from the Ombudsman Program or any other statewide organization for older adults. HHSC provides to these organizations basic licensing information and requirements for the organizations' dissemination to their members whom they engage to attend the inspections. Advocates participating in the inspections must follow all protocols of HHSC. Advocates provide their own transportation. The schedule of inspections in this category are arranged confidentially in advance with the organizations. Participation by the advocates is not a condition precedent to conducting the inspection.

(h) The facility must make all of its books, records, and other documents maintained by or on behalf of a facility accessible to HHSC upon request.

(1) During an inspection, survey, or investigation, HHSC is authorized to photocopy documents, photograph residents, and use any other available recordation devices to preserve all relevant evidence of conditions that HHSC reasonably believes threaten the health and safety of a resident.

(2) Examples of records and documents which may be requested and photocopied or otherwise reproduced are resident medical records, including nursing notes, pharmacy records medication records, and physician's orders.

(3) When the facility is requested to furnish the copies, the facility may charge HHSC at the rate not to exceed the rate charged by HHSC for copies. The procedure of copying is the responsibility of the administrator or his designee. If copying requires the records be removed from the facility, a representative of the facility is expected to accompany the records and assure their order and preservation.

(4) HHSC protects the copies for privacy and confidentiality in accordance with recognized standards of medical records practice, applicable state laws, and HHSC policy.

(i) HHSC provides for a special team to conduct validation surveys or verify findings of previous licensure surveys.

(1) At HHSC's discretion, based on record review, random sample, or any other determination, HHSC may assign a team to conduct a validation survey. HHSC may use the information to verify previous determinations or identify training needs to assure consistency in deficiencies cited and in punitive actions recommended throughout the state.

(2) Facilities are required to correct any additional deficiencies cited by the validation team but are not subject to any new or additional punitive action.
Source Note: The provisions of this §554.2002 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective April 5, 2018, 43 TexReg 2017; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871; amended to be effective December 6, 2022, 47 TexReg 7712.

[§554.2004 Determinations and Actions Pursuant to Inspections]
(a) DADS determines if a facility meets the licensing rules, including both physical plant and facility operation requirements.

(b) Violations of regulations will be listed on forms designed for the purpose of the inspection or will be listed in letter form when administrative penalties are being proposed.

(c) At the conclusion of an inspection, survey, or investigation, the violations will be discussed in an exit conference with the facility's management. A written list of the violations will be left with the facility at the time of the exit conference; any additional violation that may be determined during review of field notes or preparation of the official final list will be communicated to the facility in writing within 10 working days after the exit conference. DADS gives the facility an additional exit conference regarding the additional violations.

(d) Not later than the fifth working day after the date a facility receives the final statement of violations under this section, the facility must provide a copy of the statement to a representative of the facility's family council.

(e) Within 10 working days after receipt of the final statement of violations, the facility must submit an acceptable plan of correction to the regional director, except plans of correction under §19.2112(i) of this chapter (relating to Administrative Penalties). An acceptable plan of correction must address the following areas:

(1) how corrective action will be accomplished for those residents affected by the violations;

(2) how the facility will identify other residents with the potential to be affected by the same violations;

(3) what measures will be put into place or systemic changes made to ensure the violations will not recur;

(4) how the facility will monitor its corrective actions to ensure that the violations are being corrected and will not recur; and

(5) when corrective action will be completed.

(f) A clear and concise summary in nontechnical language of each licensure inspection or complaint investigation will be provided by DADS at the time the report of contact or similar document is provided.
Source Note: The provisions of this §554.2004 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective January 1, 2000, 24 TexReg 11781; amended to be effective August 1, 2000, 25 TexReg 6779; amended to be effective September 1, 2008, 33 TexReg 6151; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2006 Reporting Incidents and Complaints]
(a) Each incident or complaint report must reflect the reporting person's belief that a resident has been or will be abused or neglected and must contain the following information:

(1) the address or phone number of the person making the report so that DADS can contact the person for any additional information, except for an anonymous report;

(2) the name and address of the resident;

(3) the name and address of the person responsible for the care of the resident, if available;

(4) information required by DADS guidelines, when the report is an incident; and

(5) any other relevant information. Relevant information includes the reporter's or complainant's basis or cause for reporting and his or her belief that a resident's physical or mental health or welfare has been or may be adversely affected by abuse or neglect caused by another person or persons, and any other information DADS considers relevant for the report.

(b) Should a report not include the information in subsection (a) of this section, the report may be considered a complaint or an incident report not meeting the reporting criteria and may be investigated using other procedures. In receiving an oral report, DADS will take all reasonable steps to elicit from the reporter all the information in subsection (a) of this section.

(c) Anonymous complaints of abuse or neglect will be treated in the same manner as acknowledged reports unless the anonymous report accuses a specific individual of abuse or neglect, which report need not be investigated.
Source Note: The provisions of this §554.2006 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective August 1, 2000, 25 TexReg 6779; amended to be effective October 31, 2013, 38 TexReg 7465; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2008 Investigations of Incidents and Complaints]
(a) In accordance with a memorandum of understanding between DADS and the Texas Department of Family and Protective Services (DFPS) (relating to Memorandum of Understanding Concerning Protective Services for the Elderly), DADS will receive and investigate reports of abuse, neglect, and exploitation of elderly and disabled persons or other residents living in facilities licensed under this chapter. In investigating allegations of abuse and neglect of children residing in facilities, the definitions of "abuse," "neglect," and "person responsible for a child's care, custody, or welfare" are those found in §261.001 of the Texas Family Code.

(b) DADS will investigate complaints of abuse, neglect, or exploitation when the act occurs in the facility, when such licensed facility is responsible for the supervision of the resident at the time the act occurs, or when the alleged perpetrator is affiliated with the facility. Complaints of abuse, neglect, or exploitation not meeting this criteria will be referred to DFPS.

(c) The primary purpose of an investigation is the protection of the resident. If, before the completion of an investigation, DADS determines that the immediate removal of the resident is necessary to protect the resident from further abuse or neglect, DADS will petition a court to allow the immediate removal of the resident from the facility.

(d) Investigations under this section are conducted in accordance with Texas Health and Safety Code, §260A.007.

(e) Investigations of reports do not preclude actions under the provisions of Subchapter V of this chapter (relating to Enforcement).

(f) If the initial phase of an incident or complaint investigation concludes that no abuse or neglect adversely affecting the physical or mental health or welfare of a resident has occurred, no further investigation will be undertaken.

(g) The individual reporting the alleged abuse or neglect or other complaint, the resident, the resident's family, any person designated by the resident to receive information concerning the resident, and the facility will be notified of the results of DADS investigation of a reported case of abuse or neglect or other complaint.
Source Note: The provisions of this §554.2008 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective June 1, 1997, 22 TexReg 3816; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective October 15, 1998, 23 TexReg 10496; amended to be effective July 1, 2001, 26 TexReg 3824; amended to be effective September 1, 2003, 28 TexReg 6939; amended to be effective October 31, 2013, 38 TexReg 7465; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2009 Hearings on Complaints of Resident Neglect and Abuse, and Misappropriation of Resident Property in Medicaid-Certified Facilities]
Hearings required by 42 Code of Federal Regulations §488.335 will be conducted in person or by telephone for the purpose of determining whether sufficient grounds exist for a referral of an individual to the appropriate licensure authority and the facility administrator. The hearings referenced in this section are not applicable to information provided by the Texas Department of Human Services pursuant to 42 CFR §488.325(h) (referrals for substandard quality of care).
Source Note: The provisions of this §554.2009 adopted to be effective July 31, 1995, 20 TexReg 5258; amended to be effective August 1, 1998, 23 TexReg 7388; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2010 General Provisions]
(a) Confidentiality. All reports, records, and working papers used or developed by the Texas Department of Human Services (DHS) in an investigation are confidential and may be released to the public only as provided below.

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

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

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

(B) detail the information to be released;

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

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

(b) Immunity. A person who reports suspected instances of abuse or neglect will, in the absence of bad faith or malicious conduct, be immune from civil or criminal liability which might have otherwise resulted from making the report. Immunity will extend to participation in any judicial proceeding resulting from the report.

(c) Privileged communications. In a proceeding regarding a report or investigation conducted under this subchapter, evidence will not be excluded on a claim of privileged communication except in the case of a communication between an attorney and a client.

(d) Central registry. DHS will maintain a central registry of reported cases of abuse and neglect at the central office in Austin.
Source Note: The provisions of this §554.2010 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective June 1, 1997, 22 TexReg 3816; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2011 Procedures for Inspection of Public Records]
(a) Procedures for inspection of public records will be in accordance with the Texas Government Code, Chapter 552, and as further described in this section.

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

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

(1) the application must be made to Long-Term Care-Regulatory, Texas Department of Human Services, 701 West 51st Street, Austin, Texas 78751 or P.O. Box 149030, Austin, Texas 78714-9030;

(2) the requestor must identify himself;

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

(4) the requestor must specify the records requested;

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

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

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

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

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

(2) all reports, records, and working papers used or developed by DHS in an investigation of reports of abuse and neglect are confidential, and may be released to the public as provided in §19.2010(a) of this title (relating to General Provisions);

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

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

(5) information identifying complainants or informants is confidential;

(6) itineraries of surveys and inspections are confidential;

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

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

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

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

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

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

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

(5) When a request involves more than one long-term care facility, each facility will be considered a separate request.
Source Note: The provisions of this §554.2011 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective June 1, 1997, 22 TexReg 3816; amended to be effective May 1, 2002, 27 TexReg 3207; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2204 Voluntary Certification of Facilities for Care of Persons with Alzheimer's Disease]
(a) A facility may apply for certification as a facility that provides specialized care for Alzheimer's disease and related disorders either at the time of the initial application for a license or at any time subsequent to the issuance of a license under this chapter.

(b) Application must be made on forms prescribed by the Texas Department of Human Services (DHS). The application fee must accompany the application as provided in §19.216(c) of this title (relating to License Fees).

(c) A facility licensed under this chapter is not required to apply for certification under this section in order to provide care and treatment of persons with Alzheimer's disease and related disorders.

(d) A facility may not advertise or otherwise communicate that the facility is certified by DHS to provide specialized care for persons with Alzheimer's disease or related disorders unless the facility is certified under this subchapter.
Source Note: The provisions of this §554.2204 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2206 General Requirements for a Certified Facility]
(a) Resident admission. The facility must admit and retain only residents whose needs can be met through service from the facility staff, or in cooperation with community resources or other providers under contract.

(b) Allowable number of residents. Each certificate must specify the maximum allowable number of residents to be cared for at any one time in the certified area. No greater number of residents must be kept in the certified area than is authorized by the certificate.

(c) Nullification of certificate. When a certificate becomes null and void, the facility must remove the certificate from display and advertising, and the certificate must be surrendered to DADS on request. A certificate is nontransferable and nonassignable; therefore, a certificate existing at the time of change of ownership becomes null and void.

(d) Display of certificate. A certificate must be displayed in a prominent location for public view. The facility may advertise as long as the certificate is in effect; however, the type of advertising must be such that the advertising can be withdrawn if the certificate becomes null and void. Upon removal of the certificate it is the responsibility of the facility to inform interested persons of the revised status. The certificate is the property of DADS.

(e) Cancellation of certificate. A certificate must be canceled if DADS finds that the certified unit is not in compliance with applicable laws and rules.

(f) Effective period of certificate. An initial certificate that is based on an application submitted to DADS on or after January 1, 2014, or a renewal certificate that has an effective date on or after January 1, 2014, is valid for three years.
Source Note: The provisions of this §554.2206 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective January 1, 2014, 38 TexReg 9629; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2208 Standards for Certified Alzheimer's Facilities]
(a) General requirements.

(1) Residents eligible for admission to Alzheimer's units will have a diagnosis of Alzheimer's disease or related disorders. The need for admission to the Alzheimer's unit must be documented by the attending physician.

(2) Security and safety measures are provided to prevent the residents from harming themselves or leaving designated indoor or outdoor areas without supervision by staff members or other responsible escort. Policies will also be provided to prevent abuse of the rights and property of other residents.

(3) Understanding that security measures to prevent wandering may infringe on resident rights, care must be exercised in the use of physical or chemical restraint. The specific purpose and time-limited orders for any physical or chemical restraint must be written and renewed according to facility policy. The frequency of such renewal must not exceed 60 days.

(4) Activity and recreational programs will be provided and utilized to the maximum extent possible for all residents in order to promote physical well being and help with behavior management. The program must be tailored to the individual resident's needs, being appropriate for his specific impairment and stage of disease.

(5) Residents are provided privacy in treatment and in care for his or her personal needs.

(6) Access to outdoor areas must be provided and such areas must have suitable walls or fencing that do not allow climbing or present a hazard.

(A) The minimum distance of the fence from the building must be:

(i) 8'-0" from the building if there are no window openings; or

(ii) 20'-0" from a bedroom window if the fencing is solid and 15'-0" from a bedroom window if the fencing is open similar to chain-link.

(B) The minimum area of enclosure must be 800 square feet. Exception: If the enclosed space has an area of refuge which extends beyond a minimum of 20'-0" from the building and the area of refuge is equal to or greater than 15 square feet per resident for the wings enclosed.

(C) An exit gate from the enclosure to a public way must comply with the following criteria.

(i) A minimum of two gates must be remotely located from each other if only one wing or exit is enclosed. If the enclosed space between the building and the fence is less than 10'-0", one of the remotely located exit gates must be directly in line with the building exit door.

(ii) If doors into two or more smoke compartments are enclosed by the fencing and entry access can be made at each door, a minimum of one gate is required.

(iii) The gates must be located to provide a continuous path of travel from the building exit to a public way including walkways of concrete, asphalt, or other approved materials suitable for wheeled beds, chairs, and stretchers. Gates and walkways must be wide enough to accommodate beds and wheelchairs.

(D) If gates are locked, the gate nearest the exit from the building must be locked with an electronic lock which operates the same as electronic locks on corridor control doors or exit doors and is in compliance with the NFPA 70 for exterior exposure. Additional gates may also have electronic locks or may have keyed locks provided staff carry the keys. A gate between two enclosed wings may have a keyed lock provided access can be gained into both wings from the exterior.

(E) Fencing material must comply with the following:

(i) Wood--no limit on height, should be constructed with posts and support members on the exterior to deter residents from climbing over fence.

(ii) Wire--if chain-link type fence, provide protection on top of the fence to prevent resident injury from pointed wire.

(7) Any security measures taken to provide for the safety of wandering patients should be as unobtrusive as possible.

(8) Toxic garden plantings must be prohibited.

(b) Staff.

(1) All assigned staff members and consultants to the unit must have documented training in the care and handling of Alzheimer's residents, including at least:

(A) eight hours of orientation to cover the following:

(i) facility Alzheimer's policies;

(ii) etiology and treatment of dementias;

(iii) stages of Alzheimer's disease;

(iv) behavior management; and

(v) communication; and

(B) four hours of the required annual continuing education must be in Alzheimer's disease or related disorders.

(2) A social worker, licensed or temporarily licensed by the State of Texas, must be utilized as Community/Family Support Coordinator whose functions must include:

(A) evaluation of resident's initial social history on admission;

(B) utilization of community resources;

(C) conducting quarterly family support group meetings; and

(D) identification and utilization of existing Alzheimer's network.

(3) Specially trained staff will be maintained and assigned exclusively to the Alzheimer's unit. Although emergency scheduling may require substitution of staff, every effort should be made to provide residents with familiar staff members in order to minimize resident confusion. Staff training will meet at least the minimum requirements in subsection (a)(2) of this section.

(4) Required overall minimum staffing ratios for direct care in certified Alzheimer's units in nursing facilities are as follows.

Attached Graphic

(c) Physical plant. Alzheimer's units must be segregated from other parts of a facility with appropriate security devices and measures and must meet the following requirements.

(1) Living rooms, day rooms, lounges, and sun rooms, must be provided on a sliding scale as follows.

Attached Graphic

(2) A dining area must provide a minimum of ten square feet per resident with at least one exterior window.

(3) Bathtubs or showers must be provided at a minimum rate of one for each 20 beds in nursing facilities.

(4) Water closets and lavatories must be provided at a minimum rate of:

(A) one for each eight beds in nursing facilities; and

(B) one for each 15 clients in adult day health care facilities.

(5) In all facilities a lavatory must be provided in or adjacent to each area having a water closet.

(6) A monitoring station for staff must be provided with the following:

(A) writing surface such as a desk or built-in counter top;

(B) chair;

(C) task illumination;

(D) communication system such as a telephone or intercom to the main staff station of the facility; and

(E) storage for resident records such as a lockable metal cabinet or storage closet.

(7) Two remote exits must be provided in order to meet NFPA 101 requirements.

(8) Corridor control doors, if used for security of the residents, must be similar to smoke doors, that is, be 44 inches in width each leaf, and must swing in opposite directions. A latch or other fastening device on a door must be provided with a knob, handle, panic bar, or other simple type of releasing device, the method of operation of which is obvious, even in darkness.

(9) Locking devices may be used on the control doors provided the following criteria are met.

(A) The building must have a complete sprinkler system and a complete fire alarm system including a corridor smoke detection system or smoke detectors located in each resident bedroom, which are interconnected into the fire alarm system.

(B) The locking device must be electronic and must be released when the following occurs:

(i) activation of the fire alarm or sprinkler systems;

(ii) power failure to the facility; and

(iii) pressing a button located at the main staff station and at the monitoring station.

(C) Key pad or buttons may be located at the control doors for routine use by staff for service.

(D) Upon loss of primary power, the control doors must not automatically reset on emergency power, but must be reset by manual means only. An exception is when the control doors are not in an exit access, they may automatically reset on emergency power. There must be at least two remote exits on each side of the control doors which meet all of the requirements for exits, such as proper width of egress and proper size of exterior doors, according to the NFPA 101.

(E) Staff must be trained in the methods of releasing the locking device.

(10) The exit doors may be equipped with a locking device provided one of the following methods is met:

(A) the locking arrangement meets the requirements for Delayed Egress Locking Systems in NFPA 101, or

(B) the following criteria which have been approved by CMS:

(i) The building must have a complete fire alarm system including a corridor smoke detection system or smoke detectors located in each resident bedroom and a complete sprinkler system which are interconnected to the fire alarm system.

(ii) The locking device must be electro-magnetic; that is, no type of throw-bolt is to be used.

(iii) The device must release when the following occurs:

(I) activation of the fire alarm or sprinkler system;

(II) power failure to the facility; and

(III) activating a switch located at the main staff station and at the monitoring station.

(iv) Upon loss of primary power, the exit doors must not automatically reset on emergency power, but must be reset by manual means only.

(v) A manual fire alarm pull must be located within 5'0" of the exit door with a sign stating, "Pull to release door in an emergency."

(vi) A key pad, card, control button, or other electronic device may be located at the exit door for routine use by staff.

(vii) Staff must be trained in the methods of releasing the locking device.
Source Note: The provisions of this §554.2208 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective July 1, 1996, 21 TexReg 4408; amended to be effective March 22, 2018, 43 TexReg 1646; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2301 Conditions for Participation as a Medicaid-Certified Facility]
(a) The facility must meet the following conditions to be approved by the Texas Department of Human Services (DHS) for participation in the Title XIX Texas Medical Assistance program and receive state and federal reimbursement for services to Title XIX residents:

(1) the facility has been certified by DHS as meeting the conditions of participation, including the requirement to have a license from DHS, in the Title XIX Texas Medical Assistance program;

(2) the entity licensed to operate the facility has filed a complete application with the Provider Enrollment Section of DHS for participation as a nursing facility in the Title XIX Texas Medical Assistance program; and

(3) the beds for which the facility wishes to contract meet the requirements of §19.2322 of this title (relating to Medicaid Bed Allocation Requirements).

(b) Only a facility with a fully executed current contract with DHS may receive state and federal reimbursement for services to Title XIX recipients.
Source Note: The provisions of this §554.2301 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective July 1, 2001, 26 TexReg 3824; amended to be effective November 1, 2002, 27 TexReg 9154; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2302 Requirements for a Contracted Medicaid Facility]
(a) This section applies to nursing facilities (NFs) that have been licensed and certified as eligible for participation under Title XIX.

(b) Each nursing facility (NF) must comply with the state requirements for participation and the facility's contract on a continuing basis.

(c) Each NF must comply with the Texas Health and Human Services Commission's (HHSC's) utilization review requirements as provided in 1 TAC §371.212 (relating to Minimum Data Set Assessments) and §371.214 (relating to Resource Utilization Group Classification System).

(d) A facility may not participate in the Texas Medical Assistance Program if it has restrictive policies or practices, including:

(1) requiring the resident to make a will, with the facility named as legatee or devisee;

(2) requiring the resident to assign his life insurance to the facility;

(3) requiring the resident to transfer property to the facility;

(4) requiring the resident to pay a lump sum entrance fee or make any other payment or concession to the facility beyond the recognized rate for board, room, and care as a condition for entry, departure, or continued stay;

(5) controlling or restricting the resident, the resident's guardian, or responsible party in the use of the resident's personal needs allowance;

(6) restricting the resident from leaving the facility at will except as provided by state law;

(7) restricting the resident from applying for Medicaid for a specified period of time;

(8) denying appropriate care to an individual on the basis of his race, religion, color, national origin, sex, age, disability, marital status, or source of payment; and

(9) preventing terminally ill adult residents from exercising their will in making written or unwritten directives to reject life-sustaining procedures.

(e) If DADS has documentation showing good cause, it reserves the right to reject the facility's participation or to cancel an existing contract if the facility charges the Title XIX resident, any member of his family, or any other source for supplementation or for any item except as allowed within DADS policies and regulations.

(f) If DADS suspends a facility's vendor payments or proposes to terminate a facility's contract, the facility may request an administrative hearing to challenge the action. If a facility requests a hearing, the facility must make the request in accordance with HHSC rules at 1 TAC Chapter 357, Subchapter I.

(g) DADS' interpretations of the requirements for participation or the contract may not be appealed to HHSC's hearings department unless the interpretation has caused an adverse action for the facility.

(h) Facilities must allow representatives of DADS, the Medicaid Fraud Control Unit, and the Department of Health and Human Services to enter the premises at any time to make inspections or to privately interview the residents receiving assistance from DADS.

(i) Facilities must supply DADS complete information according to federal and state requirements about the identity of:

(1) each person who directly or indirectly owns interest of 5% or more in the facility;

(2) each owner (in whole or in part) of any property, assets, mortgage, deed of trust, note, or other obligation secured by the facility;

(3) each officer and director, if the facility is organized as a corporation;

(4) each partner, if the facility is organized as a partnership (A copy of the partnership agreement is required, but the dollar amount of capital contributions of the partners may be omitted); and

(5) any director, officer, agency, or managing employee of the institution, agency, or organization, who has ever been convicted of a criminal offense related to the person's involvement in programs established by Title XVIII, XIX, and XX (Effective dates for disclosure of any convictions are July 1, 1966, for Medicare, and January 1, 1969, for Medicaid.)

(j) If a profit-making corporation operates the facility, a copy of the following material is required:

(1) certificate of incorporation (for Texas corporations only);

(2) certificate of authority to do business in Texas (for out-of-state corporations only);

(3) a resolution from the board of directors authorizing a specific person or officer to sign contracts between DADS and the corporation; and

(4) any management contract for the facility. If no stockholder owns, directly or beneficially, 5.0% or more of the corporate stock, the president and secretary of the corporation should state this on the department form.

(k) If a nonprofit corporation operates the facility, a copy of the following material is required:

(1) certificate of incorporation (for Texas corporations only);

(2) certificate of authority to do business in Texas (for out-of-state corporations only);

(3) a resolution from the board of directors authorizing a specific person or officer to sign contracts with DADS; and

(4) a copy of any management contract for the facility.

(l) Facilities other than those described in subsections (j) and (k) of this section must furnish a copy of:

(1) charter or other legal basis for the organization which owns the facility;

(2) any management contract or agreement for the facility;

(3) by-laws of the organization (if applicable); and

(4) other information required by DADS to determine the status of the legal entity that owns the facility.

(m) Facilities must disclose business transaction information. A facility must send to DADS, within 35 days after the date of a written request, complete information on:

(1) the ownership of a subcontractor with whom the facility has had, during the previous 12 months, business transactions totaling more than $25,000; and

(2) any business transactions between the facility and any wholly owned supplier, or between the facility and any subcontractor during the five-year period ending on the date of the request.

(n) The facility must report changes in the required information promptly to DADS.

(o) Failure to provide this information may result in suspension, termination, or other contract action, including holding vendor funds. Payment to the facility is denied beginning on the day after the date information was due, and ending on the day before the date the information is received by DADS.

(p) Each facility must comply with Texas Government Code §545.0201. A facility that furnishes services under the Medicaid program is subject to Occupations Code, Chapter 102. The facility's compliance with that chapter is a condition of the facility's eligibility to participate as a facility under those programs.
Source Note: The provisions of this §554.2302 adopted to be effective May 1, 1995, 20 TexReg 2393; amneded to be effective January 1, 2002, 26 TexReg 10389; amended to be effective June 1, 2004, 29 TexReg 5416; amended to be effective August 31, 2004, 29 TexReg 8140; amended to be effective September 1, 2008, 33 TexReg 7264; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871; amended to be effective April 1, 2025, 50 TexReg 2209.

[§554.2304 Contract Requirements]
(a) The Texas Department of Human Services (DHS) may enter into contracts with the facility.

(b) Nursing facilities (NFs) must comply with all state and federal requirements for participation.

(c) The contracting nursing facility agrees to:

(1) comply with Title VI of the Civil Rights Act of 1964 (Public Law 88-352), §504 of the Rehabilitation Act of 1973 (Public Law 93-112), the Age Discrimination Act of 1975, the Americans with Disabilities Act of 1990 (Public Law 101-336), the Safe Medical Devices Act of 1990, and all amendments to each, and all requirements imposed by the regulations issued pursuant to these acts. In addition, the contractor agrees to comply with Chapter 73 of this title (relating to Civil Rights). These provide in part that no persons in the United States shall, on the grounds of race, color, national origin, sex, age, disability, political beliefs or religion be excluded from participation in, or denied, any aid, care, service or other benefits provided by federal and/or state funding, or otherwise be subjected to discrimination;

(2) comply with Texas Health and Safety Code, Chapter 85, Subchapter E (concerning workplace and confidentiality guidelines regarding AIDS and HIV);

(3) comply with 42 Code of Federal Regulations, Part 455, Program Integrity: Medicaid.
Source Note: The provisions of this §554.2304 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2306 Effective Dates of Provider Contracts]
(a) The effective date of the provider contract for an initial certification is the date the on-site survey is completed if the facility meets:

(1) all federal health and safety standards; and

(2) any other requirements imposed by the Texas Department of Human Services (DHS).

(b) If the facility does not meet any of the requirements specified for an initial certification, the contract is effective on the earlier of the following dates:

(1) the day the facility meets all requirements; or

(2) the day the facility's correction plan, approvable waiver request, or both are accepted by DHS. The facility must have met all requirements imposed by DHS.
Source Note: The provisions of this §554.2306 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2308 Change of Ownership]
(a) Definition. An ownership change is defined in §19.210(c) of this title (relating to Temporary Change of Ownership). For purposes of this section, prior owner is defined as the legal entity with a Medicaid contract for the facility before the change of ownership. The new owner is the legal entity to which DADS has assigned the contract (in accordance with 42 CFR §442.14 and subsection (d) of this section). The effective date of the ownership change is the effective date of the new owner's license for the facility.

(b) Notice of ownership change. The prior owner must give DADS written notice of a change of ownership at least 30 days before the effective date of the change. If written notice of the change is not received 30 days before the agreed change date, DADS is not responsible for payments made to the prior owner or new owner that do not reflect the established change date. DADS will not make a duplicate payment. It is the responsibility of the prior and new owner to make arrangements between themselves for such contingencies.

(c) Vendor holds based on a change of ownership.

(1) Holds on payments due to a prior owner.

(A) When DADS receives information about a proposed or actual change of ownership, DADS may place vendor payments to the prior owner on hold. Vendor payments will not be released until the Texas Health and Human Services Commission notifies DADS that the prior owner meets the final reporting requirements as specified in 1 TAC §355.306 (relating to Cost Finding Methodology) and 1 TAC §355.308(f)(1)(A) (relating to Direct Care Staff Rate Component).

(B) Once the final reporting requirements in subparagraph (A) of this paragraph are met, vendor payments may still be held so that money owed to DADS can be recouped from the funds placed on hold. Vendor payments will be released after:

(i) completion of a billing and claims reconciliation, or the passing of a time period of 12 months after the effective date of the change of ownership, whichever is sooner; or

(ii) the prior owner provides, at DADS' option, either of the following documents in a format acceptable to DADS to cover possible liabilities of the prior owner:

(I) a surety bond or an irrevocable letter of credit as described in §19.2312 of this title (relating to Surety Bonds or Letters of Credit); or

(II) written authority by the prior owner to withhold and retain funds normally due the prior owner from other Medicaid contracts the prior owner may have with DADS.

(2) Waiving holds on payments due to a prior owner.

(A) DADS may waive placing vendor payments to the prior owner on hold, if, at least 60 days before the effective date of the change of ownership:

(i) the prior owner notifies DADS of the change of ownership;

(ii) the new owner provides DADS with a signed and notarized contract application;

(iii) DADS receives information sufficient to verify that the ownership change is a reorganization of the prior owner's ownership structure and that the new owner's ownership structure:

(I) consists of individuals who owned at least 51% of the ownership in the prior owner and own at least 51% of the ownership in the new owner;

(II) does not consist of a change in a general partner, if the prior owner's ownership structure was a limited partnership; and

(III) retains control of the prior owner's financial records; and

(iv) the prior owner returns to DADS the nontransferable DADS Successor Liability Agreement (provided by DADS) signed by the prior and new owners indicating that the new owner has agreed to pay DADS for any liabilities that exist or may be found to exist during the period of the prior owner's contract with DADS.

(B) Meeting the conditions in subparagraph (A) of this paragraph but not meeting the 60-day time frame may result in DADS placing vendor payments to the prior owner on hold; however, once all of the conditions listed in subparagraph (A) of this paragraph are met, the hold will be released.

(3) Holds on payment due to the new owner.

(A) During the period between the issuance of the temporary change of ownership license and the inspection or survey of the nursing facility, DADS may not place a hold on vendor payments to the temporary license holder.

(B) If the nursing facility fails to pass the inspection or survey or fails to meet the requirements in §19.201 of this title (relating to Criteria for Licensing), DADS may place a hold on vendor payments to the new owner.

(d) Contract assignment. When a change in ownership occurs, DADS automatically assigns the agreement to the new owner by issuing a new contract. By signing the contract, the new owner is representing to DADS that the new owner meets the requirements of the contract and the requirements for participation in the Medicaid program. The new owner's contract is subject to the prior owner's contract terms and conditions that were in effect at the time of transfer of ownership, including the following:

(1) any plan of correction;

(2) compliance with health and safety standards;

(3) compliance with the ownership and financial interest disclosure requirements of 42 CFR §§455.104, 455.105, and 1002.3;

(4) compliance with civil rights requirements in 45 CFR Parts 80, 84, and 90;

(5) compliance with additional requirements imposed by DADS; and

(6) any sanctions as specified in this chapter relating to remedies for violations of Title XIX nursing facility provider agreements, including deficiencies, vendor holds, compliance periods, accountability periods, monetary penalties, notification for correction of contract violations, probationary contracts, and history of deficiencies.

(e) Medical assistance payments nontransferable. Neither medical assistance nor amounts payable to vendors out of public assistance funds are transferable or assignable at law or in equity. DADS will not allow non-split agreements in the case of ownership changes. Non-split agreements are arrangements where DADS does not interrupt payments to prior and new owners but continues reimbursements as though no ownership change has occurred. A split in pay agreement ensures that payments to the prior owner stop on a certain date and payments for services thereafter go to the new owner.

(f) Owner agreements. The new owner and the prior owner of a nursing facility may reach any agreement they wish, but DADS will not participate in a non-split procedure which would allow the new owner to receive the prior owner's accrued vendor payments.

(g) Financial records. The prior owner of the facility may remove the financial records pertaining to his period of ownership from the facility, but must maintain them for the time period prescribed by law or until such time as all audit exceptions are reconciled, whichever period is the longer. The original copies of the trust fund records, including ledger cards, may be removed by the prior owner if an exact duplicate of the trust fund records, including ledger cards, remains with the new owner.
Source Note: The provisions of this §554.2308 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective April 1, 1996, 21 TexReg 1432; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective April 1, 2002, 27 TexReg 2060; amended to be effective February 1, 2003, 27 TexReg 12009; amended to be effective April 2, 2007, 32 TexReg 1916; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2310 Nursing Facility Ceases to Participate]
A nursing facility may voluntarily terminate or be involuntarily terminated from Medicaid participation. A facility must have policies and procedures in place to ensure that the administrator's duties and responsibilities include providing the appropriate notices in the event of a Medicaid termination.

(1) If a facility voluntarily closes and ceases providing nursing facility services, the facility must comply with this paragraph.

(A) The facility must close on the first day of a month.

(B) At least 75 days before closure, the administrator must submit to the HHSC regional director a plan for relocation of all residents. The plan must:

(i) provide for the transfer and adequate relocation of the residents;

(ii) include assurances that residents are transferred to the most appropriate facility or other setting in terms of quality, services, and location, taking into consideration the needs, choice, and best interests of each resident; and

(iii) be revised as necessary to obtain HHSC approval.

(C) At least 60 days before closure, the administrator must submit written notice of the closure that includes the approved closure plan and the closure date to:

(i) the secretary or the secretary's designee;

(ii) HHSC Regulatory Services;

(iii) the State Ombudsman;

(iv) each resident; and

(v) each resident's legal representative or responsible party.

(D) The notice to each resident and the resident's legal representative or responsible party must include the information required by §19.502(f) of this chapter (relating to Transfer and Discharge in Medicaid-certified Facilities).

(E) The facility must not admit any new residents on or after the date the written notice is submitted.

(F) The facility must have the resources to operate through the closure date.

(2) If HHSC or CMS terminates a facility's Medicaid provider agreement, the facility must comply with this paragraph.

(A) At least 15 days before the notice date set by HHSC or CMS, the administrator must submit to the HHSC regional director a plan for relocation of all residents. The plan must:

(i) provide for the transfer and adequate relocation of the residents;

(ii) include assurances that residents are transferred to the most appropriate facility or other setting in terms of quality, services, and location, taking into consideration the needs, choice, and best interests of each resident; and

(iii) be revised as necessary to obtain HHSC approval.

(B) By the date set by HHSC or CMS, the administrator must submit written notice of the closure that includes the approved plan and the closure date to:

(i) the secretary or secretary's designee;

(ii) HHSC Regulatory Services;

(iii) the State Ombudsman;

(iv) each resident; and

(v) each resident's legal representative or responsible party.

(C) The notice to each resident and the resident's legal representative or responsible party must include the information required by §19.502(f) of this chapter.

(D) The facility must not admit any new residents on or after the date the notice is submitted.

(3) If a facility voluntarily withdraws from Medicaid but continues to provide nursing facility services, the facility must comply with this paragraph.

(A) The facility may not use the withdrawal as a reason to transfer or discharge a resident who was residing in the facility on the day before the effective withdrawal date.

(B) The facility is deemed to have a provider agreement with regard to any resident who was residing in the facility on the day before the effective withdrawal date and who is eligible for Medicaid or who later becomes eligible for Medicaid.

(C) The facility must:

(i) provide oral and written notice to an individual who is admitted after withdrawal from Medicaid that:

(I) the facility is not participating in the Medicaid program with respect to new residents; and

(II) the facility may transfer or discharge a resident if the resident does not pay the facility charges even though the resident may have become eligible for Medicaid nursing facility services;

(ii) provide the written notice in a prominent manner on a separate page of the admission agreement when the resident is admitted; and

(iii) have the resident sign a written receipt, separate from other signed documents, that the resident received the information in the written notice.
Source Note: The provisions of this §554.2310 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective August 1, 2000, 25 TexReg 6779; amended to be effective October 31, 2013, 38 TexReg 7465; amended to be effective April 5, 2018, 43 TexReg 2017; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2314 Financial Audits]
DADS may audit or monitor a facility, including the facility's trust fund accounts, periodically or as a result of a complaint investigation. DADS may also refer a facility to the Office of Inspector General for an audit. A facility is notified of monitoring or audit plans and is given a report of the final findings.
Source Note: The provisions of this §554.2314 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective April 1, 1996, 21 TexReg 1432; amended to be effective November 20, 2012, 37 TexReg 9112; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2316 Collection of Applied Income]
(a) Nursing facilities may collect from the recipient only the applied income that is specified on the recipient's payment plan forms, except when that amount exceeds the monthly vendor rate. In this event, the facility may collect only an applied-income amount equal to the maximum monthly Medicaid vendor rate.

(b) If a payment plan appears incorrect, the facility administrator should contact the local Texas Department of Human Services (DHS) worker to correct the plan. Even if a recipient's income increases, the administrator must not collect an increased payment until the plan is changed. The administrator should not collect an increased payment in anticipation of a payment plan increase.

(c) If an admitted recipient does not have a payment plan, the administrator should contact the local worker for help in determining how much applied income is owed. If the forthcoming forms indicate a lesser payment, the administrator should refund the excess immediately and notify the worker.

(d) Facilities that collect payments (part applied income, part Medicaid) in excess of the vendor rate are in violation of DHS regulations and of Public Law 95-142 which makes "solicitation of supplementation" a felony.

(e) Regional DHS staff must report any violations. If an investigation shows that the facility has violated this standard, a recommendation for withholding vendor payments, contract termination, referral to the courts, or other contract action may be made.

(f) The nursing facility must refund the recipient's prorated applied income money when the recipient has paid in advance for the full month and is discharged from the facility any time during the month. The facility must make the refund within 30 calendar days from and including the date of discharge, even when vendor payment has not been received from DHS.
Source Note: The provisions of this §554.2316 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2318 Computation of Daily Reimbursement Rate for Recipients with Applied Income]
(a) Reimbursement is computed by multiplying the established daily rate by the number of days in the month. The recipient's applied income is then subtracted and the result is divided by the number of days in the month.

(b) A facility may not collect more than the applied income reported on the payment plan form in a 31-day month.
Source Note: The provisions of this §554.2318 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2320 Medical Transportation]
(a) The nursing facility is responsible for providing normal transportation for the recipient to medical services outside the facility. The attending physician must have ordered the medical services.

(b) Normal transportation is to and from the medical care provider of the recipient's choice, who is generally available and used by recipients of the locality for medical care included under the Texas Medical Assistance program. If a Title XIX provider is not in the locality, transportation is to and from the nearest appropriate Title XIX provider if the recipient so chooses. The term "locality" means the service area surrounding the nursing facility from which individuals ordinarily come or are expected to come for inpatient or outpatient services.

(c) Transportation charges, including non-emergency, routine ambulance services, involved in the certification or recertification of a recipient are the responsibility of the nursing facility.

(d) The facility may not charge the state's Medicaid health insuring agent, the recipient, the family, or responsible party for normal transportation as defined in this section. Normal transportation charges are covered in the monthly vendor rate. The facility may not use the state's Medicaid community-based Title XIX medical transportation program except to transport recipients for renal dialysis treatments.

(e) Charges for the following medically necessary ambulance services, when provided by a Medicaid-enrolled provider, are not the responsibility of the nursing facility, but are payable by the state's Medicaid health insuring agent as a Medicaid benefit:

(1) emergency transport, which is ambulance service for a Medicaid recipient with an emergency medical condition. Emergency medical condition is defined as one which manifests itself by acute symptoms of sufficient severity such that the absence of immediate medical attention could result in placing the recipient's health in serious jeopardy; and

(2) nonemergency transport, under the following conditions:

(A) the recipient is severely disabled, which is defined as a condition which limits mobility and requires confinement to bed at all times, prevents sitting unassisted at all times, or requires the monitoring of life support systems, including oxygen or intravenous infusion;

(B) the severely disabled recipient cannot be transported by any means other than an ambulance without endangering the health or safety of the recipient; and

(C) the nonemergency ambulance transportation of the severely disabled recipient is to or from a scheduled medical appointment and authorization has been received from the Texas Department of Health or its designee. If payment under the medical assistance program is denied because the facility failed to obtain prior authorization, the facility must pay for the service if presented a copy of the bill for which payment was denied.

(f) If ambulance services are reimbursable by the state's Medicaid health insuring agent, they are not the responsibility of the recipient, the family, or the responsible party.

(g) Nursing facilities are encouraged to use family, friends, sponsors, civic groups, or charitable organizations as resources for transportation services. If normal transportation is not obtainable from these sources, the facility must provide or purchase the appropriate services.
Source Note: The provisions of this §554.2320 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective June 1, 2004, 29 TexReg 5416; amended to be effective August 31, 2004, 29 TexReg 8141; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2322 Medicaid Bed Allocation Requirements]
(a) Definitions. The words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise.

(1) Applicant--An individual or entity requesting a bed allocation waiver or exemption.

(2) Assignment of rights--The Health and Human Services Commission (HHSC) conveyance of a specific number of allocated Medicaid beds from a nursing facility or entity to another entity for purposes of constructing a new nursing facility or for any other use as authorized by this chapter.

(3) Bed allocation--The process by which HHSC controls the number of nursing facility beds that are eligible to become Medicaid-certified in each nursing facility.

(4) Bed certification--The process by which HHSC certifies compliance with state and federal Medicaid requirements for a specified number of Medicaid beds allocated to a nursing facility.

(5) County or precinct occupancy rate--The number of residents, regardless of source of payment, occupying certified Medicaid beds in a county divided by the number of Medicaid beds allocated in the county, including Medicaid beds that are certified and Medicaid beds that have been allocated but are not certified. In the four most populous counties in the state, the occupancy rate is calculated for each county commissioner precinct.

(6) Licensee--The individual or entity, including a controlling person, that is:

(A) an applicant for licensure by HHSC under Chapter 242 of the Texas Health and Safety Code and for Medicaid certification;

(B) licensed by HHSC under Chapter 242 of the Texas Health and Safety Code; or

(C) licensed under Chapter 242 of the Texas Health and Safety Code and holds the contract to provide Medicaid services.

(7) Lien holder--The individual or entity that holds a lien against a physical plant.

(8) Multiple-facility owner--An individual or entity that owns, controls, or operates under lease two or more nursing facilities within or across state lines.

(9) Occupancy rate--The number of residents occupying certified Medicaid beds divided by the number of certified Medicaid beds in a nursing facility.

(10) Open solicitation period--A period during which an individual or entity may apply for an allocation of Medicaid beds in a high-occupancy county or precinct.

(11) Physical plant--The land and attached structures to which beds are allocated or for which an application for bed allocation has been submitted.

(12) Property owner--The individual or entity that owns a physical plant.

(13) Transfer of beds-- HHSC conveyance of a specific number of allocated Medicaid beds from an existing nursing facility or entity to another existing licensed nursing facility. The nursing facility may use the transferred Medicaid beds to increase the number of Medicaid-certified beds currently licensed or to increase the number of Medicaid-certified beds when additional licensed beds are added to the nursing facility in the future.

(b) Purpose. The purpose of this section is to control the number of Medicaid beds that HHSC contracts, to improve the quality of resident care by selective and limited allocation of Medicaid beds, and to promote competition.

(c) Bed allocation general requirements. The allocation of Medicaid beds is an opportunity for the property owner or the lessee of a nursing facility to obtain a Medicaid nursing facility contract for a specific number of Medicaid-certified beds.

(1) Medicaid beds are allocated to a nursing facility and remain at the physical plant where they were originally allocated, unless HHSC transfers or assigns the beds.

(2) When HHSC allocates Medicaid beds to a nursing facility as a result of actions by the licensee, HHSC requires that the beds remain allocated to the physical plant, even when the licensee ceases operating the nursing facility, unless HHSC assigns or transfers the beds.

(3) Notwithstanding any language in subsections (f) and (g) of this section and the fact that applicants for bed allocation waivers and exemptions may be licensees or property owners, HHSC allocates beds to the physical plant and the owner of that property controls the Medicaid beds subject to HHSC rules and requirements and all valid physical plant liens.

(d) Control of beds. Except as specified in this section, HHSC does not accept applications for a Medicaid contract for nursing facility beds from any nursing facility that was not granted:

(1) a valid certificate of need (CON) by the Texas Health Facilities Commission before September 1, 1985;

(2) a waiver or exemption approved by the Department of Human Services before January 1, 1993; or

(3) a valid order that had the effect of authorizing the operation of the nursing facility at the bed capacity for which participation is sought.

(e) Level of acceptable care. Unless specifically exempted from this requirement, applicants and controlling persons of an applicant for Medicaid bed allocation waivers or exemptions must comply with level of acceptable care requirements. Level of acceptable care requirements apply only in determining bed allocation waiver and exemption eligibility and have no effect on other sections of this chapter.

(1) HHSC determines a waiver or exemption applicant or a controlling person of an applicant complies with level of acceptable care requirements if, within the preceding 24 months, the applicant or controlling person:

(A) has not received any of the following sanctions:

(i) termination of Medicaid or Medicare certification;

(ii) termination of Medicaid contract;

(iii) denial, suspension, or revocation of a nursing facility license;

(iv) cumulative Medicaid or Medicare civil monetary penalties totaling more than $5,000 per facility;

(v) civil penalties pursuant to §242.065 of the Texas Health and Safety Code; or

(vi) denial of payment for new admissions;

(B) does not have a pattern of substantial or repeated licensing and Medicaid sanctions, including administrative penalties or other sanctions; and

(C) does not have a condition listed in §19.214(a) of this chapter (relating to Criteria for Denying a License or Renewal of a License).

(2) HHSC considers the criteria in paragraph (1) of this subsection to determine if local facilities provide a level of acceptable care in counties, communities, ZIP codes or other geographic areas that are the subject of a waiver application. HHSC only considers sanctions that are final and are not subject to appeal when determining if a local facility complies with level of acceptable care requirements.

(3) Nursing facilities that have received any of the sanctions listed in paragraph (1) of this subsection within the previous 24 months are not eligible for an allocation of Medicaid beds under subsection (h) of this section or an allocation of additional Medicaid beds under subsection (f) of this section. In the case of sanctions against the nursing facility to which the beds would be allocated that are appealed, either administratively or judicially, an application will be suspended until the appeal has been resolved. Sanctions that have been administratively withdrawn or were subsequently reversed upon administrative or judicial appeal are not considered.

(4) If an applicant for an allocation of additional Medicaid beds or a controlling person of an applicant is a multiple-facility owner or a multiple-facility owner owns the applicant, the multiple-facility owner must demonstrate an overall record of complying with level of acceptable care requirements. HHSC considers the number of facilities that have received sanctions listed in paragraph (1) of this subsection in relation to the number of facilities that the multiple-facility owner owns to determine if a multiple-facility owner meets level of acceptable care requirements. HHSC only considers sanctions that are final and are not subject to appeal when determining whether the multiple-facility owner's facilities not receiving the new bed allocation comply with level of care requirements.

(5) When the applicant is a licensee that has operated a nursing facility less than 24 months, the nursing facility must establish at least a 12-month compliance record immediately preceding the application in which the nursing facility has not received any of the sanctions listed under paragraph (1) of this subsection.

(6) When the applicant has no history of operating nursing facilities, HHSC will review the compliance record of health-care facilities operated, managed, or otherwise controlled by controlling parties of the applicant. If a controlling party or the applicant has never operated, managed, or otherwise controlled any health-care facilities, a compliance review is not required.

(7) The executive commissioner, or the executive commissioner's designee, may make an exception to any of the requirements in this subsection if the executive commissioner or the executive commissioner's designee determines the needs of Medicaid recipients in a local community will be served best by granting a Medicaid bed allocation waiver or exemption. In determining whether to make an exception to the requirements, the executive commissioner or the executive commissioner's designee may consider the following:

(A) the overall compliance record of the waiver or exemption applicant;

(B) the current availability of Medicaid beds in facilities that comply with level of acceptable care requirements in the local community;

(C) the level of support for the waiver or exemption from the local community;

(D) the way a waiver or exemption will improve the overall quality of care for nursing facility residents; and

(E) the age and condition of nursing facility physical plants in the local community.

(f) Exemptions. HHSC may grant an exemption from the requirements in subsection (d) of this section. All exemption actions must comply with the requirements in this subsection and with requirements of the Centers for Medicare & Medicaid Services (CMS) regarding bed capacity increases and decreases. When a bed allocation exemption is approved, the licensee must comply with the requirements in §19.201 of this chapter (relating to Criteria for Licensing) at the time of licensure and Medicaid certification of the new beds or nursing facility.

(1) Replacement Medicaid nursing facilities and beds. An applicant may request that HHSC approve replacement of allocated Medicaid beds by the construction of one or more new nursing facilities.

(A) The applicant must own the physical plant where the beds are allocated or possess a valid assignment of rights to the Medicaid beds.

(B) The applicant must obtain written approval by all lien holders of the physical plant where the beds are allocated before requesting HHSC approval to relocate the Medicaid beds to the replacement facility if the replacement facility will be constructed at a different address than the current facility. The applicant must submit the lien holder approval with the replacement nursing facility request. If the physical plant where the Medicaid beds are allocated does not have a lien, the applicant must submit a written attestation of that fact with the replacement nursing facility request.

(C) Replacement nursing facility applicants, including those who obtained the rights to the beds through a HHSC assignment of beds, must comply with the level of acceptable care requirements in subsection (e) of this section, unless the applicant for a replacement nursing facility is the current property owner.

(D) HHSC may grant a replacement facility an increase of up to 25 percent of the currently allocated Medicaid beds, if the applicant complies with the level of acceptable care requirements in subsection (e) of this section. HHSC will not transfer or assign the additional allocation of beds until they are certified at the replacement facility.

(E) The physical plant of the replacement nursing facility must be located in the same county in which the Medicaid beds currently are allocated.

(2) Transfer of Medicaid beds. An applicant may request HHSC transfer allocated Medicaid beds certified or previously certified to another physical plant.

(A) The applicant must own the physical plant where the beds are allocated, or the applicant must present HHSC with:

(i) a valid Medicaid bed transfer agreement that specifies the number of additional Medicaid beds the applicant is requesting HHSC allocate to the receiving nursing facility; or

(ii) a valid Medicaid bed assignment that specifies the number of additional Medicaid beds the applicant is requesting HHSC allocate to the receiving nursing facility.

(B) If the Medicaid beds are allocated to a specific physical plant, the applicant must obtain and submit written approval from the property owner and, if the physical plant has a lien, written approval from all lien holders to obtain a HHSC transfer of the Medicaid beds to another facility. If the physical plant where the Medicaid beds are allocated does not have a lien, the applicant must submit a written attestation of that fact with the transfer request.

(C) The receiving licensee must comply with level of acceptable care requirements in subsection (e) of this section.

(D) Both facilities must be located in the same county.

(3) High-occupancy facilities. Medicaid-certified nursing facilities with high occupancy rates may periodically apply to HHSC to receive bed allocation increases.

(A) The occupancy rate of the Medicaid beds of the applicant nursing facility must be at least 90.0 percent for nine of the previous 12 months prior to the application.

(B) The application for additional Medicaid beds may be for no more than 10 percent (rounded to the nearest whole number) of the facility's Medicaid-certified nursing facility beds.

(C) The applicant nursing facility must comply with level of acceptable care requirements in subsection (e) of this section.

(D) The applicant nursing facility may reapply for additional Medicaid beds no sooner than nine months from the date of the previous allocation increase.

(E) Medicaid beds allocated to a nursing facility under this requirement may only be certified at the applicant nursing facility. HHSC does not transfer or assign the additional allocation of beds until they are certified at the applicant nursing facility.

(4) Non-certified nursing facilities. Licensed nursing facilities that do not have Medicaid-certified beds may apply to HHSC for an initial allocation of Medicaid beds.

(A) The application for Medicaid beds may be for no more than 10 percent (rounded to the nearest whole number) of the facility's licensed nursing facility beds.

(B) The applicant nursing facility must comply with level of acceptable care requirements in subsection (e) of this section.

(C) After the applicant nursing facility receives an allocation of Medicaid beds, the facility may apply for additional Medicaid beds in accordance with paragraph (3) of this subsection.

(5) Low-capacity facilities. For purposes of efficiency, nursing facilities with a Medicaid bed capacity of less than 60 may receive additional Medicaid beds to increase their capacity up to a total of 60 Medicaid beds.

(A) The nursing facility must be licensed for less than 60 beds and have a current certification of less than 60 Medicaid beds.

(B) The nursing facility must have been Medicaid-certified before June 1, 1998.

(C) The applicant licensee must comply with level of acceptable care requirements in subsection (e) of this section.

(D) Facilities that have a Medicaid capacity of less than 60 beds due to the loss of Medicaid beds under provisions in subsection (j) of this section are not eligible for this exemption.

(6) Spend-down Medicaid beds. Licensed nursing facilities may apply to HHSC for temporary spend-down Medicaid beds for residents who have "spent down" their resources to become eligible for Medicaid, but for whom no Medicaid bed is available. A HHSC approval of spend-down Medicaid beds allows a nursing facility to exceed temporarily its allocated Medicaid bed capacity.

(A) The applicant nursing facility must have a Medicaid contract with a Medicaid bed capacity of at least 10 percent of licensed capacity authorized in paragraph (4) of this subsection. If the nursing facility is not currently Medicaid-certified, the licensee must be approved for Medicaid certification and obtain a Medicaid contract with a Medicaid bed capacity at least as large as that authorized in paragraph (4) of this subsection.

(B) All Medicaid or dually certified beds must be occupied by Medicaid or Medicare recipients at the time of application.

(C) The application for a spend-down Medicaid bed must include documentation that the person for whom the spend-down bed is requested:

(i) was not eligible for Medicaid at the time of the resident's most recent admission to the nursing facility; and

(ii) was a resident of the nursing facility for at least the immediate three months before becoming eligible for Medicaid, excluding hospitalizations.

(D) The nursing facility is eligible to receive Medicaid benefits effective the date the resident meets Medicaid eligibility requirements.

(E) The nursing facility must assign a permanent Medicaid bed to the resident as soon as one becomes available.

(F) Facilities with multiple residents in spend-down beds must assign permanent Medicaid beds to those residents in the same order the residents were admitted to spend-down beds.

(G) The assignment of residents in spend-down beds to permanent Medicaid beds must precede the admission of new residents to permanent beds.

(H) The nursing facility must notify HHSC immediately upon the death or permanent discharge of the resident or transfer of the resident to a permanent Medicaid bed. Failure of the nursing facility to notify HHSC of these occurrences in a timely manner is basis for denying applications for spend-down Medicaid beds.

(I) The nursing facility is not required to comply with level of acceptable care requirements in subsection (e) of this section.

(g) Waivers. The executive commissioner or the executive commissioner's designee may grant a waiver of the requirements stated in subsection (d) of this section under certain conditions.

(1) Applicants must meet the following conditions to be eligible for the specific waivers in subsection (h) of this section.

(A) The applicant must meet the level of acceptable care requirement in subsection (e) of this section.

(B) The applicant must submit a complete HHSC waiver application.

(C) At the time of licensure and Medicaid certification of the allocated beds, the licensee must comply with the requirements in §19.201 of this chapter.

(D) A waiver recipient or a subsequent waiver assignee must, at the time of licensure and Medicaid certification, be the property owner or the licensee of the facility where Medicaid beds allocated through the waiver process are certified.

(2) A waiver recipient may request that HHSC approve the assignment of an approved waiver to another entity in accordance with this paragraph. A waiver recipient may request HHSC approval of only one assignment. A waiver assignment is not valid unless and until it is approved by HHSC.

(A) The waiver recipient or the owner of the waiver recipient must maintain majority ownership and management control of the assignee.

(B) The assignee must not have an owner or controlling person who was not an owner or controlling person of the waiver recipient.

(C) The assignee must own the physical plant of the waiver facility at the time of licensure and certification (as landlord) or be the licensee at the time of licensure and certification (as the licensed operator). Under either circumstance, the allocated beds are subject to subsection (c) of this section.

(D) The assignee must meet the requirements in subsection (e) of this section regarding level of acceptable care.

(3) A waiver recipient entity may remove a controlling person from ownership of the entity, but the waiver recipient entity must not add an owner after the waiver is approved by HHSC. A change to the ownership of the waiver recipient entity or the waiver assignment entity must be reported to HHSC.

(4) HHSC may in its sole discretion determine that a waiver applicant that submits false or fraudulent information is not eligible for a waiver. HHSC may, in its sole discretion, revoke a waiver issued and decertify Medicaid beds issued based on false or fraudulent information provided by the applicant.

(5) Except as provided in paragraphs (6) - (9) of this subsection, HHSC considers waiver applications in the order in which they are received. A waiver applicant may request that review of its application be deferred until one or more applications submitted after its application has been reviewed. This request must be in writing.

(6) HHSC gives priority to a small house waiver application submitted in accordance with subsection (h)(9) of this section over a pending community needs waiver application submitted in accordance with subsection (h)(2) of this section for the same county. If approved, HHSC includes the small house facility beds when determining the need for a community needs waiver.

(7) During any period in which HHSC is processing a waiver application in accordance with subsection (h)(2), (4), (5), or (9) of this section, HHSC may suspend processing the waiver application for up to six months if HHSC determines the county or precinct occupancy rate of the county or precinct in which the site of the proposed waiver is located is at least 85 percent during at least six of the previous nine months. HHSC calculates the occupancy rate based on the monthly Medicaid occupancy reports submitted to HHSC by Medicaid-certified nursing facilities and includes the occupancy rate of certified Medicaid beds and allocated Medicaid beds that are encumbered for future certification as a result of approval of a waiver or exemption in the subject county or precinct.

(8) HHSC initiates the high occupancy county or precinct waiver process referenced in subsection (h)(1) of this section if HHSC determines requirements for the open solicitation process for a high occupancy county or precinct waiver are met during the temporary suspension period referenced in paragraph (7) of this subsection. HHSC does not process any pending waiver applications in the affected county or precinct until the open solicitation process referenced in subsection (h)(1) of this section is complete.

(9) HHSC continues to process a suspended waiver application in the affected county or precinct if HHSC determines requirements for the open solicitation process of the high occupancy county or precinct waiver are not met during the suspension period referenced in paragraph (7) of this subsection.

(h) Specific waiver types. HHSC may grant a waiver if it determines that Medicaid beds are necessary for the following circumstances.

(1) High occupancy waiver. A high occupancy waiver is designed to meet the needs of counties and certain precincts that have a high county or precinct occupancy rate for multiple months.

(A) HHSC monitors monthly county or precinct occupancy rates. If HHSC determines that a county or precinct occupancy rate equals or exceeds 85 percent for at least nine of the previous twelve months, HHSC may initiate a waiver process by placing a public notice in the Texas Register and the Electronic State Business Daily (ESBD) to announce an open solicitation period.

(B) The public notice announces that HHSC may allocate 90 additional Medicaid beds in the county or precinct.

(C) The notice identifies the county or precinct and the beginning and end dates of the solicitation period. The notice also includes the HHSC address to which the application for additional Medicaid beds must be submitted and specifies that the application must be received by HHSC before the close of business on the end date of the solicitation period.

(D) An applicant for additional Medicaid beds must comply with the level of acceptable care requirements in subsection (e) of this section.

(E) An applicant must submit a complete HHSC waiver application.

(F) At the end of the solicitation period, HHSC determines if an applicant is eligible for additional Medicaid beds. If multiple applicants are eligible, the applicant who will receive the allocation of beds will be chosen by a lottery selection.

(G) If no application for the waiver process is received or if no applicant meets the requirements in this section, HHSC conducts no further solicitation. HHSC closes the process without allocating Medicaid beds.

(H) An applicant that is granted a high occupancy waiver must provide to HHSC a performance bond, surety bond, or an irrevocable letter of credit in the amount of $500,000 payable to HHSC to ensure that the Medicaid beds granted to the applicant under the waiver are certified within the time periods required by subsection (i)(4)(G) of this section, including any extensions granted under subsection (i)(6) of this section. HHSC will revoke a waiver if the performance bond, surety bond, or irrevocable letter of credit is not provided within 90 days after HHSC approves the waiver application.

(I) If an applicant chooses to provide a performance bond or surety bond instead of an irrevocable letter of credit, the performance bond or surety bond provided under this subchapter must:

(i) be executed by a corporate entity in accordance with Texas Insurance Code, Chapter 3503, Subchapter A;

(ii) be in a form approved by HHSC; and

(iii) clearly and prominently display on the face of the bond:

(I) the name, mailing address, physical address, and telephone number of the surety company or financial institution to which any notice of claim should be sent; or

(II) the toll-free telephone number maintained by the Texas Department of Insurance in accordance with Texas Insurance Code, Chapter 521, Subchapter B, and a statement that the address of the surety company to which any notice of claim should be sent may be obtained from the Texas Department of Insurance by calling the toll-free telephone number.

(J) If an applicant chooses to provide an irrevocable letter of credit, the irrevocable letter of credit must be issued by a banking institution or similar financial institution.

(K) An applicant must notify HHSC at least 60 days in advance if:

(i) the applicant does not intend to renew its performance bond, surety bond, or irrevocable letter of credit on the annual renewal date; or

(ii) the applicant changes the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.

(L) An applicant may choose a performance bond, surety bond, or irrevocable letter of credit and substitute one for the other over the course of development and construction, but regardless of which option is chosen, the performance bond, surety bond, or irrevocable letter of credit must continue in effect until the facility is certified to participate in the Medicaid program or until paid to HHSC after notice provided in accordance with subparagraph (M) of this paragraph.

(M) A performance bond, surety bond, or irrevocable letter of credit is immediately due and must be paid to HHSC upon receipt of notice from HHSC to the issuer of the performance bond, surety bond, or irrevocable letter of credit that:

(i) the applicant did not comply with subsection (i)(4)(G) of this section, which may include an extension granted under subsection (i)(6) of this section;

(ii) HHSC revokes the applicant's waiver;

(iii) the applicant did not notify HHSC of its intent not to renew the performance bond, surety bond, or irrevocable letter of credit at least 60 days before its automatic annual renewal date; or

(iv) the applicant did not notify HHSC of a change in the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.

(2) Community needs waiver. A community needs waiver is designed to meet the needs of communities that do not have reasonable access to acceptable nursing facility care.

(A) The applicant must submit a demographic or health needs study, prepared by an independent professional experienced at preparing demographic or health needs studies, that documents:

(i) an immediate need for additional Medicaid beds in the community; and

(ii) Medicaid residents in the community do not have reasonable access to acceptable nursing facility care.

(B) The application must include a statement by the preparer of the study that the preparer has no interest, financial or otherwise, in the outcome of the waiver application.

(C) The demographic or health needs study must include at least the following information pertaining to the community's population:

(i) population growth trends;

(ii) population growth trends specific to the elderly, including income or financial condition;

(iii) Medicaid bed occupancy data;

(iv) level of acceptable care provided by local nursing facilities; and

(v) any existing allocated Medicaid beds not currently certified but that could be used for a new Medicaid nursing facility.

(D) The applicant must submit documentation of substantial community support for the new nursing facility or beds.

(E) When determining the immediate need for additional Medicaid beds, and whether residents have reasonable access to acceptable nursing facility care, HHSC considers:

(i) the number and occupancy rate of certified Medicaid beds that comply with level of acceptable care requirements; and

(ii) the number of encumbered Medicaid beds that have been approved by HHSC but are not yet certified.

(F) Replacement beds or waiver beds approved in accordance with subsection (f)(1) or (h) of this section will not be considered in the calculation in subparagraph (D) of this paragraph if the owner of the replacement beds or waiver beds has not purchased land for a new construction site within 24 months after the date HHSC initially approves the replacement request or the waiver for the beds.

(G) HHSC considers an application withdrawn if it is not completed within 90 days after the application is submitted to HHSC.

(H) HHSC notifies local nursing facilities when a complete community needs waiver application is received and affords local nursing facilities an opportunity to comment on the waiver application. The notification includes a deadline for submission of comments. HHSC limits subsequent comments during the review process to facilities that submit timely comments in response to the notification of a completed application.

(I) An applicant that is granted a community needs waiver must provide to HHSC a performance bond, surety bond, or an irrevocable letter of credit in the amount of $500,000 payable to HHSC to ensure that the Medicaid beds granted to the applicant under the waiver are certified within the time periods required by subsection (i)(4)(G) of this section, including any extensions granted under subsection (i)(6) of this section. HHSC will revoke a waiver if the performance bond, surety bond, or irrevocable letter of credit is not provided within 90 days after HHSC approves the waiver application.

(J) If an applicant chooses to provide a performance bond or surety bond, instead of an irrevocable letter of credit, the performance bond provided under this subparagraph must:

(i) be executed by a corporate entity in accordance with Texas Insurance Code, Chapter 3503, Subchapter A;

(ii) be in a form approved by HHSC; and

(iii) clearly and prominently display on the face of the bond:

(I) the name, mailing address, physical address, and telephone number of the surety company or financial institution to which any notice of claim should be sent; or

(II) the toll-free telephone number maintained by the Texas Department of Insurance in accordance with Texas Insurance Code, Chapter 521, Subchapter B, and a statement that the address of the surety company to which any notice of claim should be sent may be obtained from the Texas Department of Insurance by calling the toll-free telephone number.

(K) If an applicant chooses to provide an irrevocable letter of credit, the irrevocable letter of credit must be issued by a banking institution or similar financial/lending institution.

(L) An applicant must notify HHSC at least 60 days in advance if:

(i) the applicant does not intend to renew its performance bond, surety bond, or irrevocable letter of credit on the annual renewal date; or

(ii) the applicant changes the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.

(M) An applicant may choose a performance bond, surety bond, or irrevocable letter of credit, and may substitute one for the other over the course of development and construction, but regardless of which option is chosen, the performance bond, surety bond, or irrevocable letter of credit must continue in effect until the facility is certified to participate in the Medicaid program; or until paid to HHSC after notice provided in accordance with subparagraph (N) of this paragraph.

(N) A performance bond, surety bond, or irrevocable letter of credit is immediately due and must be paid to HHSC upon receipt of notice from HHSC to the issuer of the performance bond, surety bond, or irrevocable letter of credit that:

(i) the applicant did not comply with subsection (i)(4)(G) of this section, which may include an extension granted under subsection (i)(6) of this section;

(ii) HHSC revokes the applicant's waiver;

(iii) the applicant did not notify HHSC of its intent not to renew the performance bond, surety bond, or irrevocable letter of credit at least 60 days before its automatic annual renewal date; or

(iv) the applicant did not notify HHSC of a change in the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.

(3) Criminal justice waiver. The criminal justice waiver is designed to meet the needs of the Texas Department of Criminal Justice (TDCJ). The applicant must document that:

(A) the waiver is needed to meet the identified and determined nursing facility needs of TDCJ; and

(B) the new nursing facility is approved by TDCJ to serve persons under their supervision who have been released on parole, mandatory supervision, or special needs parole in accordance with Texas Government Code, Chapter 508, Parole and Mandatory Supervision.

(4) Economically disadvantaged waiver. The economically disadvantaged waiver is designed to meet the needs of residents of ZIP codes located in communities where a majority of residents have an average income below the countywide average income and do not have reasonable access to acceptable nursing facility care.

(A) The applicant must submit a demographic or health needs study, prepared by an independent professional experienced at preparing demographic or health needs studies that documents:

(i) the ZIP code in which the new nursing facility will be constructed has a population with an income that is at least 20 percent below the average income of the county according to the most recent U.S. census or more recent census projection;

(ii) an immediate need for additional Medicaid beds in the ZIP code in which the new nursing facility will be constructed; and

(iii) residents in the ZIP code in which the nursing facility or beds will be located do not have reasonable access to acceptable nursing facility care.

(B) The application must include a statement by the preparer of the study that the preparer has no interest, financial or otherwise, in the outcome of the waiver application.

(C) The demographic or health needs study must include at least the following information pertaining to the community's population:

(i) population growth trends;

(ii) population growth trends specific to the elderly, including income or financial condition;

(iii) Medicaid bed occupancy data;

(iv) level of acceptable care provided by local facilities; and

(v) any existing allocated Medicaid beds not currently certified but could be used for a new Medicaid nursing facility.

(D) When determining the immediate need for additional Medicaid beds, and whether residents have reasonable access to acceptable nursing facility care, HHSC considers:

(i) the number and occupancy rate of certified Medicaid beds that comply with level of acceptable care requirements; and

(ii) the number of encumbered Medicaid beds that have been approved by HHSC but are not yet certified.

(E) Replacement beds or waiver beds approved in accordance with subsection (f)(1) or (h) of this section will not be considered in the calculation in subparagraph (D) of this paragraph if the owner of the replacement beds or waiver beds has not purchased land for a new construction site within 24 months after the date HHSC initially approves the replacement request or the waiver for the beds.

(F) HHSC considers an application withdrawn if it is not completed within 90 days after the application is submitted to HHSC.

(G) HHSC notifies local nursing facilities when a complete economically disadvantaged waiver application is received and affords local nursing facilities an opportunity to comment on the waiver application. The notification includes a deadline for submission of comments. HHSC limits subsequent comments during the review process to facilities that submit timely comments in response to the notification of a completed application.

(H) An applicant that is granted an economically disadvantaged waiver must provide to HHSC a performance bond, surety bond, or an irrevocable letter of credit in the amount of $500,000 payable to HHSC to ensure that the Medicaid beds granted to the applicant under the waiver are certified within the time periods required by subsection (i)(4)(G) of this section, including any extensions granted under subsection (i)(6) of this section. HHSC will revoke a waiver if the performance bond, surety bond, or irrevocable letter of credit is not provided within 90 days after HHSC approves the waiver application.

(I) If an applicant chooses to provide a performance bond or surety bond instead of an irrevocable letter of credit, the performance bond provided under this subparagraph must:

(i) be executed by a corporate entity in accordance with Texas Insurance Code, Chapter 3503, Subchapter A;

(ii) be in a form approved by HHSC; and

(iii) clearly and prominently display on the face of the bond:

(I) the name, mailing address, physical address, and telephone number of the surety company or financial institution to which any notice of claim should be sent; or

(II) the toll-free telephone number maintained by the Texas Department of Insurance in accordance with Texas Insurance Code, Chapter 521, Subchapter B, and a statement that the address of the surety company to which any notice of claim should be sent may be obtained from the Texas Department of Insurance by calling the toll-free telephone number.

(J) If an applicant chooses to provide an irrevocable letter of credit, the irrevocable letter of credit must be issued by a banking institution or similar financial institution.

(K) An applicant must notify HHSC at least 60 days in advance if:

(i) the applicant does not intend to renew its performance bond, surety bond, or irrevocable letter of credit on the annual renewal date; or

(ii) the applicant changes the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.

(L) An applicant may choose a performance bond, surety bond, or irrevocable letter of credit, and may substitute one for the other over the course of development and construction, but regardless of which option is chosen, the performance bond, surety bond, or irrevocable letter of credit must continue in effect until the facility is certified to participate in the Medicaid program; or until paid to HHSC after notice provided in accordance with subparagraph (M) of this paragraph.

(M) A performance bond, surety bond, or irrevocable letter of credit is immediately due and must be paid to HHSC upon receipt of notice from HHSC to the issuer of the performance bond, surety bond, or irrevocable letter of credit that:

(i) the applicant did not comply with subsection (i)(4)(G) of this section, which may include an extension granted under subsection (i)(6) of this section;

(ii) HHSC revokes the applicant's waiver;

(iii) the applicant did not notify HHSC of its intent not to renew the performance bond, surety bond, or irrevocable letter of credit at least 60 days before its automatic annual renewal date; or

(iv) the applicant did not notify HHSC of a change in the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.

(5) Alzheimer's waiver. The Alzheimer's waiver is designed to meet the needs of communities that do not have reasonable access to Alzheimer's nursing facility services.

(A) The applicant must document that:

(i) the nursing facility is affiliated with a medical school operated by the state;

(ii) the nursing facility will participate in ongoing research programs for the care and treatment of persons with Alzheimer's disease;

(iii) the nursing facility will be designed to separate and treat residents with Alzheimer's disease by stage and functional level;

(iv) the nursing facility will obtain and maintain voluntary certification as an Alzheimer's nursing facility in accordance with §§19.2204, 19.2206, and 19.2208 of this chapter (relating to Voluntary Certification of Facilities for Care of Persons with Alzheimer's Disease; General Requirements for a Certified Facility; and Standards for Certified Alzheimer's Facilities); and

(v) only residents with Alzheimer's disease or related dementia will be admitted to the Alzheimer's Medicaid beds.

(B) The applicant must submit a demographic or health needs study, prepared by an independent professional experienced at preparing demographic studies that documents the need for the number of Medicaid Alzheimer's beds requested. The study must include a statement by the preparer of the study that the preparer has no interest, financial or otherwise, in the outcome of the waiver application.

(C) HHSC notifies local nursing facilities when a complete Alzheimer's waiver application is received and afford local nursing facilities an opportunity to comment on the waiver application. The notification will include a deadline for submission of comments. HHSC limits subsequent comments during the review process to facilities that submit timely comments in response to the notification of a completed application.

(D) HHSC considers an application withdrawn if it is not completed within 90 days after the application is submitted to HHSC.

(E) A facility that has Medicaid beds allocated under provisions of an Alzheimer's waiver may apply for a waiver in accordance with other subsections of this section, including subsection (f)(3) or (4) of this section. HHSC does not count the beds allocated under an Alzheimer's waiver to determine the allowable bed allocation increase. For example, a 120-bed nursing facility with 60 Alzheimer waiver beds would be eligible for 10 percent of the 60 remaining beds or six additional Medicaid beds.

(6) Teaching nursing facility waiver. A teaching nursing facility waiver is designed to meet the statewide needs for providing training and practical experience for health-care professionals. The applicant must submit documentation that the nursing facility:

(A) is affiliated with a state-supported medical school;

(B) is located on land owned or controlled by the state-supported medical school; and

(C) serves as a teaching nursing facility for physicians and related health-care professionals.

(7) Rural county waiver. A rural county waiver is designed to meet the needs of rural areas of the state that do not have reasonable access to acceptable nursing facility care. For purposes of this waiver, a rural county is one that has a population of 100,000 or less according to the most recent census, and has no more than two Medicaid-certified nursing facilities. HHSC approves no more than 120 additional Medicaid beds per county per year and no more than 500 additional Medicaid beds statewide in a calendar year under this waiver provision. HHSC considers a waiver application on a first-come, first-served basis. Requests received in a year in which the 500-bed limit has been met will be carried over to the next year. The county commissioner's court must request the waiver.

(A) The commissioner's court must notify HHSC of its intent to consider a rural county waiver and obtain verification from HHSC that the county complies with the definition of rural county.

(B) The commissioner's court must publish a notice in the Texas Register and in a newspaper of general circulation in the county. The notice must seek:

(i) comments on whether a new Medicaid nursing facility should be requested; and

(ii) proposals from persons or entities interested in providing additional Medicaid-certified beds in the county, including persons or entities currently operating Medicaid-certified facilities with high occupancy rates. HHSC, in its sole discretion, may eliminate from participating in the process persons or entities that submit false or fraudulent information.

(C) The commissioner's court must determine whether to proceed with the waiver request after considering all comments and proposals received in response to the notices provided under subparagraph (B) of this paragraph. In determining whether to proceed with the waiver request, the commissioner's court must consider:

(i) the demographic and economic needs of the county;

(ii) the quality of existing Medicaid nursing facilities in the county;

(iii) the quality of the proposals submitted, including a review of the past history of care provided, if any, by the person or entity submitting the proposal; and

(iv) the degree of community support for additional Medicaid nursing facility services.

(D) The commissioner's court must document the comments received, proposals offered and factors considered in subparagraph (C) of this paragraph.

(E) If the commissioner's court decides to proceed with the waiver request, it must submit a recommendation that HHSC issue a waiver to a person or entity who submitted a proposal for new or additional Medicaid beds. The recommendation must include:

(i) the name, address, and telephone number of the person or entity recommended for contracting for the Medicaid beds;

(ii) the location, if the commissioner's court desires to identify one, of the recommended nursing facility;

(iii) the number of beds recommended; and

(iv) the information listed in subparagraph (D) of this paragraph used to make the recommendation.

(F) An applicant that is granted a rural county waiver must provide to HHSC a performance bond, surety bond, or an irrevocable letter of credit in the amount of $500,000 payable to HHSC to ensure that the Medicaid beds granted to the applicant under the waiver are certified within the time periods required by subsection (i)(4)(G) of this section, including any extensions granted under subsection (i)(6) of this section. HHSC will revoke a waiver if the performance bond, surety bond, or irrevocable letter of credit is not provided within 90 days after HHSC approves the waiver application.

(G) If an applicant chooses to provide a performance bond or surety bond, instead of an irrevocable letter of credit, the performance bond or surety bond provided under this subchapter must:

(i) be executed by a corporate entity in accordance with Texas Insurance Code, Chapter 3503, Subchapter A;

(ii) be in a form approved by HHSC; and

(iii) clearly and prominently display on the face of the bond:

(I) the name, mailing address, physical address, and telephone number of the surety company or financial institution to which any notice of claim should be sent; or

(II) the toll-free telephone number maintained by the Texas Department of Insurance in accordance with Texas Insurance Code, Chapter 521, Subchapter B, and a statement that the address of the surety company to which any notice of claim should be sent may be obtained from the Texas Department of Insurance by calling the toll-free telephone number.

(H) If an applicant chooses to provide an irrevocable letter of credit, the irrevocable letter of credit must be issued by a banking institution or similar financial/lending institution.

(I) An applicant must notify HHSC at least 60 days in advance if:

(i) the applicant does not intend to renew its performance bond, surety bond, or irrevocable letter of credit on the annual renewal date; or

(ii) the applicant changes the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.

(J) An applicant may choose a performance bond, surety bond, or irrevocable letter of credit, and may substitute one for the other over the course of development and construction, but regardless of which option is chosen, the performance bond, surety bond, or irrevocable letter of credit must continue in effect until the facility if certified to participate in the Medicaid program; or until paid to HHSC after notice provided in accordance with subparagraph (K) of this paragraph.

(K) A performance bond, surety bond, or irrevocable letter of credit is immediately due and must be paid to HHSC upon receipt of notice from HHSC to the issuer of the performance bond, surety bond, or irrevocable letter of credit that:

(i) the applicant did not comply with subsection (i)(4)(G) of this section, which may include an extension granted under subsection (i)(6) of this section;

(ii) HHSC revokes the applicant's waiver;

(iii) the applicant did not notify HHSC of its intent not to renew the performance bond, surety bond, or irrevocable letter of credit at least 60 days before its automatic annual renewal date; or

(iv) the applicant did not notify HHSC of a change in the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.

(8) State veterans homes. State veterans homes, authorized and built under the auspices of the Texas Veterans Land Board, must meet all requirements for Medicaid participation.

(9) Small house waiver. A small house waiver is designed to promote the construction of smaller nursing facility buildings that provide a homelike environment.

(A) A facility must meet the requirements in §19.345 of this chapter (relating to Small House and Household Facilities) for HHSC to grant a small house waiver for the facility.

(B) An applicant for a small house waiver must submit an application to HHSC and a schematic building plan of the proposed facility with sufficient detail to demonstrate that the proposed project meets the requirements in §19.345 of this chapter.

(C) An applicant that is granted a small house waiver must submit final construction documents in accordance with §19.344 of this chapter (relating to Plans, Approvals, and Construction Procedures) before facility construction begins.

(D) HHSC notifies local nursing facilities when a complete small house waiver application is received and allows the local nursing facilities to comment on the waiver application. The notification includes the deadline for submitting comments. HHSC limits subsequent comments during the review process to facilities that submit timely comments in response to the notification of a completed application.

(E) HHSC does not approve more than 16 beds for a small house facility or for a household in a facility that is granted a small house waiver.

(F) HHSC considers an application withdrawn if it is not completed within 90 days after the application is submitted to HHSC.

(G) Subject to subparagraph (E) of this paragraph, HHSC approves the replacement or transfer of beds certified at a small house nursing facility in accordance with subsection (f)(1) or (2) of this section only to another small house or household facility.

(H) A facility that has Medicaid beds allocated under provisions of a small house waiver may apply for general Medicaid beds in accordance with other subsections of this section, including subsection (f)(3) or (4) of this section. HHSC does not count the beds allocated under a small house waiver provision in determining the allowable bed allocation increase. For example, a 120-bed nursing facility with 60 Small House waiver beds would be eligible for 10 percent of the 60 remaining beds or six additional Medicaid beds.

(I) An applicant that is granted a small house waiver must provide to HHSC a performance bond, surety bond, or an irrevocable letter of credit in the amount of $500,000 payable to HHSC to ensure that the Medicaid beds granted to the applicant under the waiver are certified within the time periods required by subsection (i)(4)(G) of this section, including any extensions granted under subsection (i)(6) of this section. HHSC will revoke a waiver if the performance bond, surety bond, or irrevocable letter of credit is not provided within 90 days after HHSC approves the waiver application.

(J) If an applicant chooses to provide a performance bond or surety bond, instead of an irrevocable letter of credit, the performance bond or surety bond provided under this subparagraph must:

(i) be executed by a corporate entity in accordance with Texas Insurance Code, Chapter 3503, Subchapter A;

(ii) be in a form approved by HHSC; and

(iii) clearly and prominently display on the face of the bond:

(I) the name, mailing address, physical address, and telephone number of the surety company or financial institution to which any notice of claim should be sent; or

(II) the toll-free telephone number maintained by the Texas Department of Insurance in accordance Texas Insurance Code, Chapter 521, Subchapter B, and a statement that the address of the surety company to which any notice of claim should be sent may be obtained from the Texas Department of Insurance by calling the toll-free telephone number.

(K) If an applicant chooses to provide an irrevocable letter of credit, the irrevocable letter of credit must be issued by a banking institution or similar financial/lending institution.

(L) An applicant must notify HHSC at least 60 days in advance if:

(i) the applicant does not intend to renew its performance bond, surety bond, or irrevocable letter of credit on the annual renewal date; or

(ii) the applicant changes the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.

(M) An applicant may choose a performance bond, surety bond, or irrevocable letter of credit, and may substitute one for the other over the course of development and construction, but regardless of which option is chosen, the performance bond, surety bond, or irrevocable letter of credit must continue in effect until the facility is certified to participate in the Medicaid program; or until paid to HHSC after notice provided in accordance with subparagraph (N) of this paragraph.

(N) A performance bond, surety bond, or irrevocable letter of credit is immediately due and must be paid to HHSC upon receipt of notice from HHSC to the issuer of the performance bond, surety bond, or irrevocable letter of credit that:

(i) the applicant did not comply with subsection (i)(4)(G) of this section, which may include an extension granted under subsection (i)(6) of this section;

(ii) HHSC revokes the applicant's waiver;

(iii) the applicant did not notify HHSC of its intent not to renew the performance bond, surety bond, or irrevocable letter of credit at least 60 days before its automatic annual renewal date; or

(iv) the applicant did not notify HHSC of a change in the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.

(i) Time Limits and Extensions.

(1) Medicaid beds transferred in accordance with subsection (f)(2) of this section must be certified within six months after HHSC grants the exemption.

(2) Time limits applicable to temporary Medicaid beds are specified in subsection (f)(6) of this section.

(3) All facilities and beds approved in accordance with waiver provisions of subsection (h) of this section and replacement nursing facilities approved in accordance with subsection (f)(1) of this section, must be constructed, licensed, and Medicaid-certified within 42 months after the waiver or replacement exemption is granted.

(4) A recipient of a waiver must provide HHSC with evidence of compliance with subparagraphs (A) - (G) of this paragraph. The recipient must submit evidence of compliance on or before the date stated in the subparagraph, including any extensions granted under paragraph (6) of this subsection.

(A) The land must be under contract within 12 months after HHSC approval of the waiver or replacement.

(B) An architect or engineer must be under contract to prepare final construction documents within 15 months after HHSC approval of the waiver or replacement.

(C) The facility's preliminary plans must be completed within 18 months after HHSC approval of the waiver or replacement.

(D) The land must be purchased and a progress report submitted to HHSC within 24 months after HHSC approval of the waiver or replacement.

(E) Entitlements (including municipality, planning and zoning, building permit) and the facility's foundation must be completed within six months after land purchase or 30 months after HHSC approval of the waiver or replacement, whichever is later.

(F) Facility construction must be active and ongoing, as evidenced by a construction progress report submitted to HHSC within 12 months after land purchase or 36 months after HHSC approval of the waiver or replacement, whichever is later.

(G) The facility must be constructed, licensed, and certified within 18 months after land purchase or 42 months after HHSC approval of the waiver or replacement, whichever is later.

(5) HHSC, in its sole discretion, may declare the exemption or the waiver void if the applicant fails or refuses to provide evidence of compliance with each benchmark or deadline, or the evidence of compliance submitted to HHSC in accordance with paragraph (4) of this subsection contains false or fraudulent information.

(6) Waiver or exemption recipients may request an extension of the deadlines in this section. At the discretion of the executive commissioner or the executive commissioner's designee, deadlines specified in this section may be extended. The applicant must substantiate every element of its extension request with evidence of good-faith efforts to meet the benchmarks and construction deadlines or evidence confirming that delays were beyond the applicant's control.

(7) Waiver or exemption recipients who receive an extension of their waiver or exemption must submit a progress report every six months after approval of the extension until the nursing facility beds are certified. HHSC may declare the waiver or exemption void if the applicant fails or refuses to provide the progress report as required or if the progress report contains false or fraudulent information.

(8) HHSC may revoke a bed allocation for failure to meet the requirements of this section.

(j) Loss of Medicaid Beds.

(1) Loss of Medicaid beds that are not available to be occupied.

(A) Medicaid nursing facilities must report certified Medicaid beds that do not comply with requirements of §19.1701 of this chapter (relating to Physical Environment) and are not available for occupancy on monthly Medicaid occupancy reports.

(B) HHSC decertifies and de-allocates Medicaid beds that are intended for use in bedrooms that have been converted to other uses if the rooms are not being used for bedroom occupancy use on two consecutive standard surveys.

(C) HHSC does not decertify and de-allocate Medicaid beds that are intended for use in rooms that are licensed and certified for multi-occupancy use but are being used for single occupancy only.

(D) HHSC decertifies and de-allocates Medicaid beds granted through a criminal justice waiver, Alzheimer's waiver, a teaching nursing facility waiver, state veterans home waiver, or a small house waiver that are no longer being used for the intended purpose for which the waiver was granted.

(2) Loss of Medicaid beds based on sanctions.

(A) A Medicaid nursing facility operated by the person or entity who also owns the property will lose the allocation of all Medicaid beds assigned to the nursing facility property if the nursing facility's license is denied or revoked.

(B) A Medicaid nursing facility operated by one person or entity and owned by another person or entity will lose the allocation of Medicaid beds if two or more of the following actions occur within a 42-month period:

(i) licensure denial;

(ii) licensure revocation; or

(iii) Medicaid termination.

(C) HHSC may waive this loss of allocation of Medicaid beds in order to facilitate a change of ownership or other actions that would protect the health and safety of residents or assure reasonable access to acceptable nursing facility care.

(3) Voluntary decertification of Medicaid beds.

(A) Facilities may request to voluntarily decertify Medicaid beds.

(B) The licensee must submit written approval of the Medicaid bed reduction signed by the property owner and all physical plant lien holders.

(C) HHSC reduces the number of allocated Medicaid beds equal to the number of beds voluntarily decertified.

(D) Facilities that voluntarily decertify Medicaid beds are eligible to receive an increased allocation of Medicaid beds if the facility qualifies for a bed allocation waiver or exemption.

(4) Nursing facility ceases to operate or participate in Medicaid.

(A) The property owner of a nursing facility that closes or ceases to participate in the Medicaid program must inform HHSC in writing of the intended future use of the Medicaid beds within 90 days after closure or ceasing participation in Medicaid.

(B) Unless the Medicaid beds will be used for a replacement nursing facility, the allocated beds must be re-certified within 12 months of the date the Medicaid contract was terminated.

(C) Time limits in subparagraphs (A) and (B) of this paragraph may be extended in accordance with subsection (i)(6) of this section.

(D) HHSC may de-allocate Medicaid beds for failure to meet the requirements of this paragraph.

(5) Loss of Medicaid beds based on low occupancy.

(A) HHSC may review Medicaid bed occupancy rates annually for the purpose of de-allocating and decertifying unused Medicaid beds. The Medicaid bed occupancy reports for the most recent six-month period that HHSC has validated are used to determine the bed occupancy rate of each nursing facility.

(B) HHSC de-allocates and decertifies Medicaid beds in facilities with an average occupancy rate below 70 percent. The number of beds decertified is calculated by subtracting the preceding six-month average occupancy rate of Medicaid-certified beds from 70 percent of the number of allocated certified beds and dividing the difference by 2, rounding the final figure down if necessary. For example, for a facility with 100 Medicaid-certified beds and a 50 percent occupancy rate, the difference between 70 percent (70 beds) and 50 percent (50 beds) is 20 beds, divided by 2, is 10 beds to be decertified.

(C) Medicaid beds in a nursing facility that has obtained a replacement nursing facility exemption are not subject to the de-allocation and decertification process.

(D) Medicaid beds in a new or replacement physical plant or a newly constructed wing of an existing physical plant are exempt from this de-allocation and decertification process until the new physical plant or new wing has been certified for 24 months.

(E) Medicaid beds that have been subject to a change of ownership within the past 24 months are exempt from the de-allocation and decertification process.

(F) Medicaid beds in a county or in a precinct in one of the four most populous counties in the state in which a facility approved through the waiver process is constructed are exempt from the de-allocation and decertification process for 24 months after licensure and certification of the facility.

(G) Medicaid beds allocated to a closed nursing facility are exempt from this de-allocation and decertification process.

(H) Nursing facilities that lose Medicaid beds through this process are eligible to receive an additional allocation of Medicaid beds at a later date if the facility qualifies for a bed allocation waiver or exemption.

(I) The de-allocation and decertification of unused beds does not affect the licensed capacity of a nursing facility.

(k) Informal review procedures.

(1) A waiver or exemption applicant, or a Medicaid nursing facility that has been denied an increase in Medicaid bed allocation or was subject to decertification or de-allocation of Medicaid beds, may request an informal review of HHSC actions regarding bed allocations. The request must be submitted within 30 days after the date referenced on the notification of the proposed action.

(2) A waiver or exemption applicant or a Medicaid nursing facility that has been denied an increase in Medicaid bed allocation or was subject to decertification or de-allocation of Medicaid beds, must submit a request for an informal review and all documentation or evidence that forms the basis for the informal review in writing.

(3) The executive commissioner or the executive commissioner's designee conducts the informal review.

(l) Medicaid occupancy reports.

(1) Medicaid nursing facilities must submit occupancy reports to HHSC each month.

(A) The occupancy data must be reported on a form prescribed by HHSC. The form must be completed in accordance with instructions and the occupancy data must be accurate and verifiable. The completed report must be received by HHSC no later than the fifth day of the month following the reporting period.

(B) HHSC determines the Medicaid occupancy rate by calculating the monthly average of the number of persons who occupy Medicaid beds.

(C) HHSC includes all persons residing in Medicaid-certified beds, including Medicaid recipients, Medicare recipients, private-pay residents, or residents with other sources of payment, in the calculation.

(D) Failure or refusal to submit accurate occupancy reports in a timely manner may result in the nursing facility's vendor payment being held in abeyance until the report is submitted.

(2) HHSC determines nursing facility and county occupancy rates based on the data submitted by the nursing facilities.

(A) HHSC uses the occupancy data to determine eligibility for or compliance with waiver and exemption requirements. HHSC also uses the occupancy data to determine if Medicaid beds should be decertified based on low occupancy.

(B) HHSC makes the occupancy data available to nursing facilities, licensees, property owners, waiver or exemption applicants, and others in accordance with public disclosure requirements.

(C) HHSC may disqualify a facility that provides inaccurate or falsified occupancy data from eligibility for bed allocation exemptions and waivers. HHSC may refuse to accept corrections to bed occupancy data submitted more than six months after the due date of the occupancy report.

(m) School-age residents. Any bed allocation waiver or exemption applicant that serves or plans to serve school-age residents must provide written notice to the affected local education agency (LEA) of its intent to establish or expand a nursing facility within the LEA's boundary.
Source Note: The provisions of this §554.2322 adopted to be effective November 1, 2002, 27 TexReg 9154; amended to be effective October 23, 2013, 38 TexReg 7316; amended to be effective April 1, 2014, 39 TexReg 2313; amended to be effective August 31, 2015, 40 TexReg 5464; amended to be effective February 20, 2018, 43 TexReg 900; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2326 Medicaid Swing Bed Program for Rural Hospitals]
(a) Program description. HHSC operates the Medicaid Swing Bed Program for rural hospitals located in counties with populations of 100,000 or less. The Medicaid Swing Bed Program is modeled on Medicare's Swing Bed Program. The Medicaid Swing Bed Program permits participating rural hospitals to use their beds interchangeably to furnish both acute hospital care and nursing facility care to Medicaid recipients, when no care beds are available in nursing facilities (NFs) in the area. When a participating rural hospital furnishes NF nursing care to Medicaid recipients, HHSC makes payment to the hospital using the same procedures and the same Resource Utilization Group daily rates that the Texas Health and Human Services Commission authorizes for reimbursing NFs participating in the Texas Medicaid Nursing Home Program.

(b) Application to participate. Rural hospitals apply to HHSC to participate in the Medicaid Swing Bed Program. Each applicant must be located in a county with a population of 100,000 or less and must meet the qualifying requirements of the Medicare Swing Bed Program. Hospitals approved for participation enter into swing bed provider agreements with HHSC.

(c) Parallel participation in Medicare. A rural hospital participating in the Medicaid Swing Bed Program must:

(1) have a Medicare hospital provider agreement; and

(2) be Medicare-certified as a swing bed hospital in the Medicare Swing Bed Program.

(d) Applicability of Medicare requirements. Each participating rural hospital must satisfy all the requirements of the Medicare Swing Bed Program, except that Medicare's five-weekday transfer requirement and 15 percent payment limitation, as stated in 42 CFR §413.114(d)(2), do not apply for Medicaid reimbursement purposes.

(e) Applicability of NF requirements. From day one of the resident's stay, a rural hospital participating in the Medicaid Swing Bed Program must meet the requirements set forth in §554.2304(c) of this chapter (relating to Contract Requirements); §§554.2601 - 554.2608 and 554.2610 of this chapter (relating to Vendor Payment (Items and Services Included), Additional Charges (Items and Services Excluded from Vendor Payment), Therapeutic Home Visits Away from the Facility, Vendor Payment Information, Effective Date of Vendor Coverage, Supplementation of Vendor Payments, Penalties for Supplementation, Limitations on Provider Charges, and Medicare part A Skilled Nursing Facility Deductible and Coinsurance Payment); and Subchapter Y of this chapter (relating to Medical Necessity Determinations).

(f) Rural hospital (Medicaid swing bed facility) licensure and certification requirements. Pursuant to Texas Health and Safety Code §222.024 concerning the duplication of health care inspections and licensing, a rural hospital participating in the Medicaid Swing Bed Program satisfies licensure and certification requirements referenced in this section when it is currently licensed and certified as a hospital. However, in accordance with Texas Human Resources Code, §32.024, if the rural hospital's swing beds are used for more than one 30-day length of stay per year, per resident the hospital must comply with the full Nursing Facility Requirements.

(g) Rural hospital (Medicaid swing bed facility) administrator. The governing body of a rural hospital participating in the Medicaid Swing Bed Program satisfies the requirement to appoint a qualified full-time nursing facility administrator, found at §554.1902(b) of this chapter (relating to Governing Body), when it appoints a hospital administrator as its official representative and designates the administrator's responsibilities and authority, subject to the following exception. If the swing beds are used for more than one 30-day length of stay per year, per resident, the hospital's governing body must appoint a full-time licensed nursing facility administrator.

(h) Rural hospital (Medicaid swing bed facility) staff development requirements. A rural hospital participating in the Medicaid Swing Bed Program satisfies the staff development requirements found at §554.1929 of this chapter (relating to Staff Development) if the swing beds are used for no more than one 30-day length of stay per year, per resident.

(i) Rural hospital (Medicaid swing bed facility) transfer agreement. A rural hospital participating in the Medicaid Swing Bed Program is not required to have a transfer agreement with another hospital, as required by §554.1915 of this chapter (relating to Transfer Agreement).

(j) Rural hospital geographic region. The phrase "a participating rural hospital's geographic region" refers to an area that includes nursing facilities with which the hospital normally arranges transfers and all other nursing facilities in similar proximity to the hospital. If a hospital has no previous transfer practices on which to base a determination, the phrase "geographic region" refers to an area that includes all nursing facilities within 50 miles of the hospital except for facilities that the hospital demonstrates to be inaccessible to its patients.
Source Note: The provisions of this §554.2326 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective July 1, 1996, 21 TexReg 4408; amended to be effective September 1, 2008, 33 TexReg 7264; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871; amended to be effective December 6, 2022, 47 TexReg 7712.

[§554.2401 General Qualifications for Medical Necessity Determinations]
Medical necessity is the prerequisite for participation in the Medicaid (Title XIX) Long-term Care program. This section contains the general qualifications for a medical necessity determination. To verify that medical necessity exists, an individual must meet the conditions described in paragraphs (1) and (2) of this section.

(1) The individual must demonstrate a medical condition that:

(A) is of sufficient seriousness that the individual's needs exceed the routine care which may be given by an untrained person; and

(B) requires licensed nurses' supervision, assessment, planning, and intervention that are available only in an institution.

(2) The individual must require medical or nursing services that:

(A) are ordered by a physician;

(B) are dependent upon the individual's documented medical conditions;

(C) require the skills of a registered or licensed vocational nurse;

(D) are provided either directly by or under the supervision of a licensed nurse in an institutional setting; and

(E) are required on a regular basis.
Source Note: The provisions of this §554.2401 adopted to be effective September 1, 2008, 33 TexReg 7264; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2403 Medical Necessity Determination]
(a) Purpose. A recipient must have a determination of medical necessity for nursing facility care to participate in the Texas Medicaid Nursing Facility Program.

(1) The state Medicaid claims administrator makes a medical necessity determination by evaluating a recipient's medical and nursing needs based on the MDS assessment required by DADS.

(2) A recipient must have a determination of medical necessity for nursing facility care before the nursing facility can be paid for services, except as provided in §19.2413 of this subchapter (relating to Determination of Payment Rate Based on the MDS Assessment Submission) and §19.2611 of this chapter (relating to Retroactive Vendor Payment).

(b) Admission MDS assessment review.

(1) The admission MDS assessment review process is initiated when the state Medicaid claims administrator receives an MDS assessment and the Long-Term Care Medicaid Information Section, in accordance with §19.2413 of this subchapter, indicating that a Medicaid applicant or recipient is requesting vendor payment for care in a contracted nursing facility. A registered nurse must sign and certify that the MDS assessment is completed in accordance with §19.801 of this chapter (relating to Resident Assessment).

(2) The admission MDS assessment review determines medical necessity and establishes the authorization for payment of a calculated RUG rate.

(c) Role of the state Medicaid claims administrator. The state Medicaid claims administrator reviews all MDS assessments, including significant change in status assessments, modifications, and significant corrections, and approves or denies medical necessity in accordance with §19.2401 of this subchapter (relating to General Qualifications for Medical Necessity Determinations).

(d) Effective period.

(1) A determination of medical necessity based on the admission MDS assessment review remains in effect for the time period determined by the federal MDS submission schedule.

(2) If a nursing facility submits a recipient's MDS assessment after the due date established by the federal MDS submission schedule, the recipient's medical necessity remains in effect for the period between the due date and the date the state Medicaid claims administrator received the MDS assessment.

(3) If a nursing facility submits a recipient's MDS assessment after the due date established by the federal MDS submission schedule and, after reviewing the MDS assessment, the state Medicaid claims administrator determines that the recipient does not meet the criteria for medical necessity, the effective date of the denial of medical necessity is the date the state Medicaid claims administrator received the MDS assessment. A denial of medical necessity is conducted in accordance with §19.2407 of this subchapter (relating to Denied Medical Necessity).

(e) Permanent medical necessity.

(1) A recipient's permanent medical necessity status is established on the completion date of any MDS assessment approved for medical necessity no less than 184 calendar days after the recipient's admission to the Texas Medicaid Nursing Facility Program.

(2) A nursing facility must submit a recipient's MDS assessment in compliance with the federal MDS submission schedule even after the recipient achieves permanent medical necessity status.

(3) A recipient's permanent medical necessity status moves with the recipient, unless the recipient is discharged to home for more than 30 days.

(4) If a recipient who has permanent medical necessity status transfers to another Medicaid-certified nursing facility, the nursing facility to which the recipient transfers must complete a new MDS assessment in compliance with the federal MDS submission schedule.

(f) Insufficient information. If an MDS assessment does not have sufficient information for the state Medicaid claims administrator to make a medical necessity determination, the MDS assessment is put in suspense for 21 days with a message from the state Medicaid claims administrator informing the nursing facility that the MDS assessment has been put in suspense for 21 days. Unless the nursing facility provides sufficient information on the MDS assessment to determine medical necessity within 21 days, medical necessity is denied.
Source Note: The provisions of this §554.2403 adopted to be effective September 1, 2008, 33 TexReg 7264; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2405 Physicians' Certifications and Recertifications]
The recipient's physician is required at intervals specified in §19.1210(b) of this title (relating to Certification and Recertification Requirements in Medicaid-Certified Facilities) to certify or recertify the necessity for continued nursing facility care.
Source Note: The provisions of this §554.2405 adopted to be effective May 1, 1995, 20 TexReg 2393; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2407 Denied Medical Necessity]
(a) If the state Medicaid claims administrator determines that a Medicaid applicant or a recipient does not meet the criteria for medical necessity described in §19.2401 of this subchapter (relating to General Qualifications for Medical Necessity Determinations), the state Medicaid claims administrator notifies the attending physician and the nursing facility in writing and provides them an opportunity to present additional information about the applicant's or recipient's medical need for nursing facility care.

(1) If the attending physician or a nursing facility physician does not respond or contest the findings of the state Medicaid claims administrator within 10 working days after receipt of the written notice about the decision, the findings are final.

(2) If the attending physician or a nursing facility physician contests the findings of the state Medicaid claims administrator, at least one physician with the state Medicaid claims administrator must review the case. If the state Medicaid claims administrator's physician determines that the applicant's or recipient's admission or stay is not medically necessary, the determination becomes final.

(3) The state Medicaid claims administrator sends written notification of the final determination of denied medical necessity to the attending physician, the nursing facility, and the applicant or recipient (or responsible party).

(b) After an applicant receives written notice of a determination of denied medical necessity, the applicant or responsible party must request a fair hearing within 90 days after the date of denied medical necessity, or the applicant loses the right to a fair hearing.

(c) After a recipient receives written notice of a determination of denied medical necessity, the recipient or responsible party must request a fair hearing within 10 days after the date of the written notice in order to have nursing facility services paid for during the appeal.

(1) If the recipient requests a fair hearing within 10 days after the date of the written notice and the determination of denied medical necessity is upheld, the effective date of the denial is 10 days after the hearing officer's written decision.

(2) If the recipient does not request a fair hearing within 10 days after the date of the written notice, DADS makes vendor payments to the nursing facility at the previously established RUG rate for 15 days or until the recipient is discharged, whichever occurs first.

(3) If the recipient does not request a fair hearing within 10 days after the date of the written notice, the recipient must request a fair hearing within 90 days after the date of denied medical necessity, or the recipient loses the right to a fair hearing.

(d) Fair hearings are conducted by the Texas Health and Human Services Commission (HHSC) in accordance with HHSC rules at 1 TAC Chapter 357.
Source Note: The provisions of this §554.2407 adopted to be effective September 1, 2008, 33 TexReg 7264; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.

[§554.2413 Determination of Payment Rate Based on the MDS Assessment Submission]
(a) Definitions. In this section, the following words and terms have the following meanings unless the context clearly indicates otherwise.

(1) All conditions of eligibility--A recipient meets all conditions of eligibility when the state Medicaid claims administrator approves the recipient for medical necessity and the recipient meets financial eligibility for Medicaid.

(2) On-time MDS assessment--An MDS assessment that is submitted in accordance with the federal MDS submission schedule and is received by the state Medicaid claims administrator within 31 days after the completion date.

(3) Missed MDS assessment--An MDS assessment that is received by the state Medicaid claims administrator outside the time period that the MDS assessment covers.

(b) MDS submission requirement. A nursing facility must:

(1) complete all MDS assessments according to CMS' instructions;

(2) submit a recipient's MDS assessment, including an admission MDS assessment, a quarterly MDS assessment, and a significant change in status assessment, to the state MDS database in compliance with the federal MDS submission schedule;

(3) submit the Long-Term Care Medicaid Information Section to the state Medicaid claims administrator; and

(4) submit the recipient's MDS assessment in compliance with the federal MDS submission schedule even after the recipient has permanent medical necessity as described in §19.2403(e) of this subchapter (relating to Medical Necessity Determination).

(c) Admission MDS assessments.

(1) If a nursing facility discharges a recipient with a status of return not anticipated, and the recipient returns to the facility, the nursing facility must complete an admission MDS assessment for a determination of medical necessity and establishment of a RUG rate, regardless of the amount of time between the recipient's discharge and return.

(2) A nursing facility must complete and submit an admission MDS assessment to receive payment for a recipient's period of stay in the nursing facility, even if the recipient leaves the nursing facility before the MDS assessment is completed and never returns long enough for the MDS assessment to be completed. See subsection (i) of this section for completion of an admission MDS assessment in the event of a recipient's death.

(3) DADS pays a calculated RUG rate for an admission MDS assessment from the date the recipient was admitted to the nursing facility, except as provided in §19.2611 of this chapter (relating to Retroactive Vendor Payments).

(d) Payment of a calculated RUG rate. If a recipient meets all conditions of eligibility, DADS pays a calculated RUG rate for an MDS assessment if it is received by the state Medicaid claims administrator during the time period that the MDS assessment covers.

(e) On-time MDS assessment. If a recipient meets all conditions of eligibility, DADS pays a calculated RUG rate from the completion date of the required MDS assessment, except for an admission MDS assessment as described in subsection (c)(3) of this section.

(f) MDS assessments that are not on time. The state Medicaid claims administrator stops payment for services if the state Medicaid claims administrator does not receive an on-time MDS assessment. Payment for services resumes when the state Medicaid claims administrator receives all MDS assessments that are due as required by the federal MDS submission schedule.

(g) Missed MDS assessments. When the state Medicaid claims administrator receives a missed MDS assessment, DADS pays the nursing facility a default RUG rate for the entire period of the missed MDS assessment if the recipient meets financial eligibility for Medicaid, except as provided in paragraph (2) of this subsection.

(1) If an MDS assessment is missed for the purpose of calculating a RUG rate, the nursing facility must still submit the MDS assessment to comply with §19.801 of this chapter (relating to Resident Assessment).

(2) For a newly contracted nursing facility and a nursing facility that undergoes a change of ownership, DADS pays the calculated RUG rate for any missed MDS assessments that occur while the nursing facility is unable to submit MDS assessments to the state MDS database.

(h) Significant change in status assessment, modification, or significant correction. If a recipient meets all conditions of eligibility, DADS pays the calculated RUG rate from the completion date of a significant change in status assessment, modification, or significant correction.

(i) Incomplete or erroneous MDS assessments. If an applicant meets all conditions of eligibility, DADS pays a default rate for an MDS assessment that is incomplete or has errors.

(j) Prohibition against recourse. A nursing facility must not charge and must not take any other recourse against a recipient, the recipient's family members, the recipient's estate or the recipient's representative for a claim that is reduced because the facility failed to comply with a DADS rule or procedure pertaining to reimbursement.
Source Note: The provisions of this §554.2413 adopted to be effective September 1, 2008, 33 TexReg 7264; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871.