Current through Reg. 49, No. 38; September 20, 2024
(a) HHSC may assess
an administrative penalty against a person who:
(1) violates Chapter 242, Health and Safety
Code or a rule, standard or order adopted or license issued under Chapter
242;
(2) makes a false statement,
that the person knows or should know is false, of a material fact:
(A) on an application for issuance or renewal
of a license or in an attachment to the application; or
(B) with respect to a matter under
investigation by HHSC ;
(3) refuses to allow a representative of HHSC
to inspect:
(A) a book, record, or file
required to be maintained by a facility; or
(B) any portion of the premises of a
facility;
(4) willfully
interferes with the work of, or retaliates against, a representative of HHSC or
the enforcement of this chapter;
(5) willfully interferes or retaliates
against a representative of HHSC preserving evidence of a violation of a rule,
standard, or order adopted or license issued under Chapter 242, Health and
Safety Code;
(6) fails to pay a
penalty assessed by HHSC under Chapter 242, Health and Safety Code by the 10th
day after the date the assessment of the penalty becomes final;
(7) fails to notify HHSC of a change of
ownership before the effective date of the change of ownership;
(8) willfully interferes with the State
Ombudsman, a certified ombudsman, or an ombudsman intern performing the
functions of the Ombudsman Program as described in 26 TAC § 88.2(relating
to Definitions); or
(9) retaliates
against the State Ombudsman, a certified ombudsman, or an ombudsman intern:
(A) with respect to a resident, employee of a
facility, or other person filing a complaint with, providing information to, or
otherwise cooperating with the State Ombudsman, a certified ombudsman, or an
ombudsman intern; or
(B) for
performing the functions of the Ombudsman Program as described in 26 TAC
Chapter 88 (relating to State Long-Term Care Ombudsman Program).
(b) The persons against
whom HHSC may impose an administrative penalty include:
(1) an applicant for a license;
(2) a license holder;
(3) a partner, officer, director, or managing
employee of an applicant or a license holder; and
(4) a person who controls a nursing
facility.
(c) HHSC
recognizes the limited immunity from civil liability granted to volunteers
serving as officers, directors or trustees of charitable organizations, under
the Charitable Immunity and Liability Act of 1987 (Texas Civil Practice and
Remedies Code, Chapter 84).
(d) In
determining whether a violation warrants an administrative penalty, HHSC
considers the facility's history of compliance and whether:
(1) a pattern or trend of violations exists;
or
(2) the violation is recurrent
in nature and type; or
(3) the
violation presents danger to the health and safety of at least one resident;
or
(4) the violation is of a
magnitude or nature that constitutes a health and safety hazard having a direct
or imminent adverse effect on resident health, safety, or security, or which
presents even more serious danger or harm; or
(5) the violation is of a type established
elsewhere in HHSC rules concerning licensing standards for long term care
facilities.
(e) In
determining the amount of the penalty, HHSC considers at a minimum:
(1) the gradations of penalties;
(2) the seriousness of the violation,
including the nature, circumstances, extent, and gravity of the violation and
the hazard or potential hazard to the health and safety of the
residents;
(3) the history of
previous violations;
(4) deterrence
of future violations; and
(5)
efforts to correct the violation.
(f) Administrative penalties may be levied
for each violation found in a single survey. Each day of a continuing violation
constitutes a separate violation. The administrative penalties for each day of
a continuing violation cease on the date the violation is corrected. A
violation that is the subject of a penalty is presumed to continue on each
successive day until it is corrected. The date of correction alleged by the
facility in its written plan of correction will be presumed to be the actual
date of correction unless it is later determined by HHSC that the correction
was not made by that date or was not satisfactory.
(1) Table of administrative penalties. The
following table contains the gradations of penalties in accordance with the
relative seriousness of the violation. While the table addresses most
administrative penalty situations, administrative penalties for unique
circumstances to which the table does not apply are established elsewhere in
the requirements. The amount of the administrative penalty listed in subsection
(a)(7) of this section is $500.
Attached
Graphic
(2)
Definitions. The following terms when used in this section have the following
meanings, unless the context clearly indicates otherwise.
(A) Severity.
(i) No actual harm with a potential for
minimal harm is a deficiency that has the potential for causing no more than a
minor negative impact on the resident(s).
(ii) No actual harm with a potential for more
than minimal harm is noncompliance that results in minimal physical, mental
and/or psychological discomfort to the resident and/or has the potential (not
yet realized) to compromise the resident's ability to maintain and/or reach
his/her highest practicable physical, mental, and/or psychosocial well-being as
defined by an accurate and comprehensive resident assessment, plan of care and
provision of services.
(iii) Actual
harm that is not immediate jeopardy is non-compliance that results in a
negative outcome that has compromised the resident's ability to maintain and/or
reach his/her highest practicable physical, mental and/or psychosocial
well-being as defined by an accurate and comprehensive resident assessment,
plan of care and provision of services. This does not include a deficient
practice that only has limited consequence for the resident and would be
included in (i) or (ii) above.
(iv)
Immediate jeopardy to resident health and safety is a situation in which
immediate corrective action is necessary because the facility's non-compliance
with one or more requirements has caused, or likely to cause, serious injury,
harm, impairment or death to a resident receiving care in the
facility.
(B) Scope.
(i) Isolated means one or a very limited
number of residents are affected and/or one or a very limited number of staff
are involved, or the situation has occurred only occasionally or in a very
limited number of locations.
(ii)
Pattern means more than a very limited number of residents are affected and/or
more than a very limited number of staff are involved, or the situation has
occurred in several locations, and/or the same residents have been affected by
repeated occurrences of the same deficient practice. The effect of the
deficient practice is not found to be pervasive throughout the
facility.
(iii) Widespread means
the problems causing the deficiencies are pervasive in the facility and/or
represent systemic failure that affected or has the potential to affect a large
portion or all of the facility's residents.
(g) The penalties for a violation
of the requirement to post notice of the suspension of admissions, additional
reporting requirements found at § 554.601(a) of this chapter (relating to
Resident Behavior and Facility Practice), or residents' rights cannot exceed
$1,000 a day for each violation, unless the violation of a resident's right
also violates a rule in Subchapter H of this chapter (relating to Quality of
Life), or Subchapter J of this chapter (relating to Quality of Care).
(h) No facility will be penalized because of
a physician's or consultant's nonperformance beyond the facility's control or
if documentation clearly indicates the violation is beyond the facility's
control.
(i) HHSC may issue a
preliminary report regarding an administrative penalty. Within 10 days of the
issuance of the preliminary report, HHSC will give the facility written notice
of the recommendation for an administrative penalty. The notice will include:
(1) a brief summary of the
violations;
(2) a statement of the
amount of penalty recommended;
(3)
a statement of whether the violation is subject to correction under §
554.2114 of this subchapter (relating to Right to Correct) and if the violation
is subject to correction, a statement of:
(A)
the date on which the facility must file a plan of correction (POC) to be
approved by HHSC ; and
(B) the date
on which the POC must be completed to avoid assessment of the penalty;
and
(4) a statement that
the facility has a right to a hearing on the violation, the amount of the
penalty, or both.
(j)
Within 20 days after the date on which written notice of recommended assessment
of a penalty is sent to a facility, the facility must give HHSC written consent
to the penalty, make a written request for a hearing, or if the violation is
subject to correction, submit a plan of correction in accordance with §
554.2114 of this subchapter (relating to Right to Correct). If the facility
does not make a response within the 20-day period, HHSC will assess the
penalty.
(k) The procedures for
notification of recommended assessment, opportunity for hearing, actual
assessment, payment of penalty, judicial review, and remittance will be in
accordance with Health and Safety Code, §§
242.067
-
242.069.
Hearings will be held in accordance with Health and Human Services Commission's
rules at 1 TAC, Chapter 357, Subchapter I. Interest on penalties is governed by
Health and Safety Code §
242.069(g).
